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Q: What are some examples of entities that are not considered public servants, despite common assumptions?

Entities not considered public servants include a union board member, headmasters, principals, or teachers of privately aided schools, as their roles lack public duty as defined by the penal code. Similarly, clerks, chowkidars, and officers on suspension or unpaid apprentices are not considered public servants as they do not meet the necessary criteria .

Q: How does the concept of "common intention" in criminal law differ from "conspiracy"?

The concept of "common intention" under Section 34 implies a pre-arranged plan or concert among the accused, requiring participation in action for a unified purpose. In contrast, "conspiracy" under Section 120A merely requires an agreement to commit a crime and does not necessitate the actual commission of an illegal act. While common intention focuses on a collective goal resulting in a specific criminal act, conspiracy emphasizes the agreement to break the law, even if no criminal act follows .

Q: What are some critical differences between the punishments for abetment and direct offences under the penal code?

The punishment for abetment, under Section 109 of the Penal Code, mirrors the punishment for the direct offence if the crime is committed as a result of the abetment and no specific provision exists for punishing such abetment. However, if the offence is not committed, the abetment itself can still be punished, but the sentencing depends on the specific circumstances and legal provisions governing abetment .

Q: How is the abetment of a crime treated if the primary offence is not completed?

Even if the primary offence is not completed, the abetment remains an offence in its own right. As such, an abettor can still be held liable for instigating or conspiring to commit an offence, even if the crime itself does not materialize .

Q: What is the requisite burden of proof for an accused claiming the right of private defence?

When an accused claims the right of private defence, they must prove that their act was in self-defence. It is sufficient for the accused to establish a prima facie case showing the possibility that their defence is reliable. They do not need to prove their claim beyond reasonable doubt .

Q: What criteria are used to determine whether someone is considered a public servant under the law?

To determine whether someone is considered a public servant, it is essential to check if the person is in the service or pay of the government and if they are entrusted with the performance of any public duty. The title or the nature of duties performed (whether exalted or humble) does not affect this classification .

Q: Explain the importance of "proportionality" in the exercise of the right to private defence.

Proportionality is crucial in exercising the right to private defence, as the force used must be adequate to avert the threat without exceeding the necessary limits. The exercise of this right should be defensive, not vindictive, and should match the level of danger faced to ensure it remains within legal bounds. Proportionality prevents the misuse of this right as a pretext for retaliation .

Q: In what instances does the right of private defence extend to causing death?

The right of private defence extends to causing death if the assault on a person could reasonably cause the apprehension of either death or grievous hurt. This is allowed under specified circumstances where there is an immediate threat of severe harm .

Q: Discuss the distinction between a public servant on deputation and an officer under suspension regarding their status as public servants.

A public servant on deputation remains in the service of the government, thus maintaining their status as a public servant. On the other hand, an officer under suspension is not considered a public servant during the suspension period, as they are not actively engaged in official duties .

Q: Can a person be convicted for abetting if the main offender is acquitted, and under what circumstances?

Yes, a person can be convicted for abetting even if the main offender is acquitted. This can occur if the abetment itself fulfills the criteria of incitement, conspiracy, or assistance to commit the offence. The abetment becomes complete upon such actions, irrespective of the principal offence being realized or the principal offender's acquittal .

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First Edition August 1981

Second Edition December 1986

Third Edition October' 1991
Fourth Edition July 2001
Fifth Edition July 2005
Reprint 2010
Reprint 2015

Publisher: K. Mohammad Au, B. Cm, LLB

• Anupam Gyan Bhandar
156 B. B. National Stadium, (First Floor)
Dhaka-1000
Phone: 955 7942

Copyright: Reserved by the Publisher

• . No part of this publication/book may be translated in any language, produced
or transmitted in photocopying, recording or otherwise, or stored in any
i riiieval system of any nature, without the written permission of the publisher,
for which shall be made to the copyright holder.
2.

Printer: The Goodluck Printers

13 NayaPaltan, Dhaka- 1000'

Price: Taka 1,600/-

Zahirul Huq's
Penal Code
Revised by
Syed Lutfor Rahman Soioor
&
Others

Fifth Edition 2005

Reprint 2015
S
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Z L&)'siflf/ llPWi
(f

zle .d1%/a 4(4a4a .7&

9(O th(IO? 3 .Jtuch -19.98

— Zahirul Huq -

"To my late mother Maimuna Khasun who died on 10 November 1989 and father
Alhaj Nazir Ahmed chowdhury, but for whom neither the author nor this book
would [have] come out to what they are [now] and at their feet do I most humbly
lay myself to seek their blessings on the publication of this book which is designed
to make smooth, the path ofjustice, fair play and equity. On this occasion I do also
remember with solemn gratitude the graceful patronage extended to my career by my
late father-in-law Alhaj M H. Saidur Rahinan Waresy; May Almighty Allah rest the
souls of my matter, father and father-in-law in peace".•
—Zahirull-fuq
Abbreviations of Law Jourflals and Reports and of Sources of References

Bangladesh:. All. W. R. = Allahabad Weekly Reporter.
DLR = Dhaka Law Reports I. L. R. Andhra = Indian Law Reports, Andhra.
DLR Digests and References A. P. L. J. = Allahabad Pradesh Law Journal.
BID = Bangladesh Legal Dicisions Andh. L. T. = Andhra Law Times.
BLD Digests Andhra W. R. Andhra Weekly Reporter.
MLR = Mainstream Law Reports I. L. R. Assam = Indian Law Reports, Assam,
MLR Digests. Assarn L. R. = Assam Law Reports.
BLC = Bangladesh Law Chronicles Beng. L. R. Bengal Law Reports,
B.B. C. J. = Bihar Bar Council Journal.
13CR Bangladesh Case Reports
Bihar Cri. C. Bihar Criminal Cases.
BSCR Bangladesh Supreme Court Reports
B. L. J. or Bihar L. J. Bihar Law Judgments.
BSCD = Bangladesh Supreme Court Digest
B. L. J. or Bihar L. J. R. = Bihar Law Journal Reports.
BIT = Bangladesh Law Times
B. I. T. (Rep.) or Bihar I. T. (Rep.) Bihar Law
Pakistan; Times (Reports).
PLD Pakistan Legal Decisions B. R. = Bihar Reports.
PCrLJ = Pakistan Criminal Law Journal Born, or I. L. R. Born. Indian Law keports, Bombay;
Indian and other: Born. C. R. Bombay Cases Reporter.
A. I. ft. All India Reporter. B. H. C. R. or Born. H. C. R. = Bombay High Court
AIR Digests, Manuals Reports.
A. I. R. (N.O.C.) All India Reporter (Notes or Born. I. R. = Bombay Law Reporter.
Cases). Born. P. J. = Bombay Printed Judgments.
A. I R. (N.S.C.) All India Reporter (Notes or Bur. L. J. = Burma Law Journal.
Supreme Court Cases.) Bur. I. R. = Burma Law Reports.
Agra H. C. R. Agra High Court Reports. Bur. L. T. = Burma Law Times.
A. I. T. C. = All India Tribunal Cases. Cal. or! I. R. Cal. Indian Law Reports, Calcutta.
All. Cr. C. AHahabad Criminal Cases. Cal. H. N. or Cal. H. C. N. = Calcutta. High Court
All. Cr. L. J. Allahabad Criminal Law Journal. Notes.
All. Cr. R. Aflahabad Criminal Reports. Cal. L. J. = Calcutta Law Journal.
All. Cii. RuI. = AIlahabadCrirnjnal Rulings. Cal. L. R. Calcutta Law Reports.
All. L. J. = Allahabad Law Journal, (Published by CWN or Cal. W. N. = Calcutta Weekly Notes.
A.I.R.)
Cal. W. N. (D. R.) Calcutta Weekly Notes (Dacca
All. L. J. (N.O.C.) = Allahabad Law Journal (Notes Reports).
of Cases).
Chand. Cri. C. Chandigarh Criminal Cases.
All. L. R. = Allahabad Law Reports Chand. L. R. = Chandigarh Law Reporter.
All. L. T. = Allahabad Law Times.
Chand. I. R. (Cr1.) = Chandigarh Law Reports
AU. W. C. = Allahabad Weekly Cases. (Criminal).
All. W. N. Allahabad Weekly Notes. Crimes Crimes.
VII

Cr1. App. Rep. (S. C.) = Criminal Appeals Reporter I. L. R Karachi = Indian Law Reports, Karachi.
(Supreme Court). I. L. R. Kant. = Indian Law Reports, Karnataka.
Cr. L. C. Criminal Law Cases.
Kant. L. J. = Karnataka Law Journal.
Cr. or Cr1. L. J. Criminal Law Journal.
Kash. L. J. = Kashmir Law Journal.
(Published by A. I. R.)
I. L. R. Ker. Indian Law Reports, Kerala.
Cr1. L. J. (N. 0. C.) Criminal Law Journal.
K. H. C. N. = Kerala High Court Notes.
(Notes of Cases).
Ker. L. J. Kerala Law Journal. -
Cr1. L. R. = Criminal Law Reporter.
Ker. L. R. = Kerala Law Reports.
Cr1. L. R. = Criminal Law Reports.
K. L. T. or Ker. L. T. = Kerala Law Times.
Cri. L. R. Criminal Law Reports.
I. L. R. Lahore Indian Law Reports, Lahore.
Cii. L. T. = Criminal Law Times (Punj).
L. R Law Reporter (All).
Cur. L. J. = Current Law Journal.
Law. Rep. = Law Reports (Mys)..
Cur. L. J. (Cri.) Current Law Journal (Criminal).
L. S. (A. P.) = Law Summary (Andhra Pradesh).
1. L. R. Cut. = Indian Law Reports, Cuttack.
Lawyers = Lawyers.
Cut. L. R. (Cr1.) = Cuttack Law Reports, (Criminal).
Cut. L. T. = Cuttack Law Tifnes. Legal Surv. Legal Surveyor.

Cut. W. R. = Cuttack Weekly Reports. Low. Bur. R. = Lower Burma Rulings.

I. L. R. Delhi Indian Law Reports, Delhi.. I. L. R. Luck. = Indian Law Reports, Lucknow.
P. L. T = Delhi Law Times. Luck. L. J. Lucknow Law-Journal.
D. R. J. or Delhi Rep. J. Delhi Reported Judgments. Luck. L. T. Lucknow Law Times.
I. L. R. E. P. or East Punj. Indian Law Reports, Madh. B. or M. B. Madhya Bharat.
East Punjab. I. L. R. Madh. B. = Indian Law Reports, Madhya
East L. R. = Eastern Law Reporter. Bharat.
F. L. J. = Federal Law Journal. Madh. B. L. J. Madhya Bharat Law Journal.
F. C. R. Federal Court Reports. Madh. B. L. R. = Madhya Bharat Law Reporter.
I. L. R. Guj. Indian Law Reports, Gujarat. I. L. R. M. P. = Indian Law Reports, Madhya
Guj. Cri. R. = Gujarat Criminal Reporter. Pradesh.
Guj. H. C. R. .Gujarat High Court Reporter. M. P C. Madhya Pradesh Cases.
Guj. L. H. = Gujarat Law Herald. M. P. L. J. = Madhya Pradesh Law Journal. -
Guj. L. R. = Gujarat Law Reporter. Mp. P. L. T. = Madhya Pradesh Law Times.
H. P. or I. L. R. Him. Pra. = Indian Law Reports, Mp. P. R. C. J. Madhya Pradesh Rent Control
Himachal Pradesh. Journal.
Hindu L. R. = Hindu Law Reporter. M. P. W. R. Madhya Pradesh Weekly Reporter.
Hyd. or 1. L. R. Hyd. Indian Law Reports, I. L. R. Mad. = Indian Law Reports, Madras.
Hyderabad. Mad. H. C. H. = Madras High Court Reports.
Mad., L. J. = Madras Law Journal.
Ind. App. = Law Reports. Indian Appeals.
Mad. L. J. (Cr1.) Madras Law Journal (Criminal).
Ind. Cas. = Indian Cases.
Mad. W. N. =. Madras Weekly Notes.
I. J. R. Indian Judgment Reporter.
Ind. J. Indian Jurist. Mah. Cr1. R. Maharashtra Criminal Reporter
Ind. R = Indian Rulings. Mah. L. J. = Maharashtra Law Journal.
Jab. L. J. = Jabalpur Law Journal. Mah. L. R. = (Brihan) Maharashtra Law Reporter.
J. &•K. = Jammu and Kashmir. Marr L. J. Marriage Law Journal.
J. & K. L. R. = Jammu and Kashmir Law Reports. M. L. R. or Marwar L. R. = Marwar Law Reporter.
J. L. R. or Jaipur L. R. Jaipur Law Reports. Moo. Ind. App. = Moore's Indian Appeals.
"III

Moo. P. C. C. = Moore's Privy Council Cases. Recent Cii. R. = Recent Criminal Reports.
I. L. R. Mys. Indian Law Reports Mysore. Recent Laws Recent Laws.
Mys.C. C. R. = Mysore Chief Court Reporter, Ren. Cas. = Rent Cases.
Mys. H. C. R. = Mysore High Court Reports. Ren. C. J. = Rent Control Journal.
Mys. L. J. = Mysore Law Journal. Ren. C. R. Rent Control Reports.
Mys. L. R. Mysore Law Reports. Rent L. R. = Rent Law Reporter.
I. L. R. Nag = Indian Law Reports Nagpur. R. D. Revenue Decisions.
Nag, L. Jour. = Nagpur Law Journal. Rev. L. R. = Revenue Law Reports.
Nag. L. R. Nagpur Law Reports. R. R. or Rev. Rul. Revenue Rulings.
N. W. P. H. C. R. = North West Provinces High S. T. Ad. Sales Tax Advices.
Court Reports. S. T. A. Sales Tax Affairs.
0. J. D. Orissa Judicial Decisions. S. T. C. Sales Tax Cases. (Mad.)
Oudh. Cas. Oudh Cases, S. T. D. Sales Tax Tribunal Decisions.
Oudh L. A. Oudh Law Journal. S. T. I. Sales Tax Interpretations.
Oudh I. R. = Oudh Law Reports. S. T. L. Sales Tax Literature.
Oudh S. C. Oudh Select Cases. S. T. R. = Sales Tax Rulings.
Oudh W. N. = Oudh Weekly Notes. Sar. = Saraswati' Privy Concil Judgments.
I. L. R. Patiala = Indian Law Reports, Patiala. Sau. L. R. = Saurashtra Law Reporter.
I. L. R. Pat. Indian Law Reports, Patna. Serv. L. C. = Services Law Cases.
Pat. H. C. C. = Patna High Court Cases.; Serv. L. J. = Service Law Journal.
Pat. L. J. Patna Law Journal. Serv. L. R. = Services Law Reporter.
P. L. J. R. or Pat. L. J. R. Patna Law Journal S. L. W. R. Service Law Weekly Reporter.
Reports. Shome L. R. Shome's Law Reports,
Pat. L. R. Patna Law Reporter. Sikkim L. J. Sikkim Law Journal.
Pat. L. Tim Patna Law Times. Sim. L. C. = Simla Law Cases.
Pat, L. W. Patna Law Weekly. Sim. L. J. = Simla Law Journal.
Pat. W. N. = Patna Weekly Notes. Sind L. R. Sind Law Reporter.
Pepsu L. R. = Pepsu Law Reports. Sri. L. J. or Srinagar L. J. = Srinagar Law Journal.
1. L. R. Punj. = Indian Law Reports, Punjab. S. C. A. Supreme Court Appeals.
P. L. J. or Pun. L. J. Punjab Law Journal. S. C. C. = Supreme Court Cases.
Pun. L. J. (Cri.) = Punjab Law Journal (Criminal). S. C. C. (Cri) = Supreme Court Cases (Criminal).
Pun. L. R. = Punjab Law Reporter (Delhi). S. C. C. (Lab.) Supreme Court Cases (Labour).
Pun. Re. = Punjab Records. S. C. C. (Tax.) Supreme Court Cases (Taxation).
Pun. W. R. Punjab Weekly Reporter. S. C. Cr. R. Supreme Court Criminal Rulings.
I. L. R. Raj. = Indian Law Reports, Rajasthan. S. C. D. = Supreme Court Decisions.
Raj. Cri. C. = Rajasthan Criminal Cases. S. C. J. = Supreme Court Journal.
Raj. L. R. = Rajasthan Law Reporter. S. C. N. or S. C. Notes Supreme Court Notes.
Rajdhani L. R. = Rajdhani Law Reporter. S. C. R. = Supreme Court Reports.
R. L. W. or Raj. L. W. = Rajasthan Law Weekly. S. C. S. T. J. = Supreme Court Sales Tax Judgments.
Ranj. or 1. L. R. Rang. Indian Law Reports, S. C. W. R. = Supreme Court Weekly Reporter.
Rangoon. Suther = Sutherland's Privy Council
Rang L. R. = Rangoon Law Reports. Judgments.
Rat. Un. Cr. C. Ratanlat's Unreported Suth. W. R. = Sutherland's Weekly Reporter.
Criminal Cases. T. L. N. J. = Tamilnadu Law Notes Nournal.
ix

Tax = Taxation. Upp. Bur. Rul. = Upper Burma Rulings.
Tax Affairs Tax Affairs. U. P. Cri. C. Uttar Pradesh Criminal Cases.
Tax B. R. Tax Bar Reporter. U. P. Cri. L. C. U. P. Criminal Law Cases.
T. L. R. or Tax. L. R. = Taxation Law Reports U. P. Cri. Rul. U. P. Criminal Ruling
(Published by A. I. R.) U. P. L. B. E. C. Uttar Pradesh Local Bodies &
T. L. R. or Tax Law Rev. = Tax Review. Educational Cases.
Taxmann Taxmann. U. P. L. R. Uttar Pradesh Law. Reports.
Tax Rep. Tax Reporter. U. P. L. I. Uttar Pradesh Law Tribune (Published
T. T. J. Tax Tribunal Judgment. byA.LR.)
T. A. C. - (All India) Transport and Accidents U. P. L. T. (N. 0. C.) - Uttar Pradesh Law Tribune
Cases. (Notes of Cases) (Published by A. I. R.).
I. L. R. Rrav-Co. or T. C. Indian Law Reports. U. P. R. C. C. Utter Pradesh Rent control Cases.
Travancore-Cochin Series. U. P. S. T. J. - Uttar Pradesh Sales Tax Journal.
T. C. L. R. or Tray-Co. L. R. Travancore-Cochin U. P. T. C. Uttar Pradesh Tax Cases.
Law Reports. Vind Pm. or V. P. Vindhya Pradesh.
T.L. J. or Tray. L. J. Travancore Law Journal. Weir Weir's Criminal Rulings.
U. C. R. (Born.) Unreported Cases Reporter W. L. N. - Weekly Law Notes. (Rajàsthan)
(Bombay). W. L. N. (U. C.) Weekly Law Notes (Unreported
U. J. (SC) = Unreported Judgments (Supreme Court). Cases) (Rajasthan).

Note.—In references to Indian Law Reports (ILR), we omitted its abbreviation 'ILR' designed to he at the
beginning of the citations, e.g. 152 All 203', instead of '!LR 52 All 203'.
Preface to the Fifth Revised and Enlarged Edition
It is really a matter of great pleasure and satisfaction on my part to have edited the Fifth Edition of late Zahirul
Huq's Penal Code. Both in the past and in the present, it was and it is the Only book on Penal Code in
Bangladesh that deserved and still deserves the kind appreciation of the lawyers, law teachers, law students,
members of the police and honorable members of the judiciary equally.
The revising editors have tried their best to gather, collect and make full use of all the important cases
and materials at home and abroad in order to enrich the penal law in Bangladesh.
We have drawn the foreign case references from the publications on penal law done especially by the
Pakistan Legal Decisions (PLD), the All India Reporter (AIR), the Eastern Book Company (EBC), the Law
Publishers (LP), the Bharat Law House (BI.H), the Orient Law House (OLH), etc. Like other reference book
authors, we don't claim that our book on penal law is one of originality. Some readers are by mistake used to
thinking that authors, compilers or editors of reference books, write them as originals from their creativity or
ingenuity, or from memory.
The clear references. -proper headings,' topical divisions, chapter introductions, amendment references
with footnotes case law synopses, presentation of amending statutes in detail and soo on which were not
before in earlier editions are all new additions to this Book and shall be of immense help to the Bar and the
Bench, to the law faculties and the law chamber, and to the readers at large.
Our aim was to provide our readers with the maximum cases and materials editorially well laid out in the
minimum space. In order to do that we have had to change the whole gamut and presentation e.g. format, make-'
up, get-up and everything in the original book into new ones. By the very look of it, one must find that
Zahirul Huq's book is no more there and it is as if a new book on penal law in Bangladesh.
Occasionally case,, references might have been repeatedly presented in order that in one way or the other,
the reader might comeacross them. -
The revising editors could not revise and edit some of the doubtful materials, if they are so at all, given
by the late author, because the materials could not be ascertained on query in his absence.
As to the herculean and strenuous task of proofreading of this book, good or bad, credit goes to the
labour of Mowlana Mohammad Khaled.
The revising editors and their assistants of this edition have done their best in revising it minutely and
enlarging it reasonably. In spite of great care and Caution, sometimes errors and omissions manage to creep in.
Our patrons will kindly bear with us for any discrepancy, if found, and they will be really placing us under
- deep debt of gratitude if such errors, omissions or discrepancies are kindly brought to our notice so that they
may b suitably dealt with in future editions.. -
Last but not least, one thing we want to make clear to our readers and make them aware of: The Code was
made and promulgated through gazette notification in 1860. It was an event about one hundred and fifty
years ago. Since then till '1947, hundreds of government editions- of the bare Code had been published which
are not easily available now. After the partition of the Subcontinent in 1947. the Government of Pakistan
published several official editions of the Code which Bangladesh has inherited as if it were the original Code
of 1860, mutatis mutandis. But we now see that there are some differences or discrepancies among the
government or official or authorized or authentic texts of the Code of Bangladesh, India and Pakistan, apart
from the respective amendments, due to either the printing mistakes or the other. May be they are clerical
errors. We have tried to make some of them what they should be, wherever possible, of our own accord and to
point out the others,
Syed Lutfor Rahman Soioor
Revising Chief Editor (Honorary)
July 2005
The Penal Code
• (Act No. XLV of 1860)*
[6 October 1860]

A. Preliminary Notes
1. The text of the Code printed here -is. as in June 2005.
2. The case 'law,especially Bangladesh case, law, on the Code presented under the
respective sections is as in 2004
3. The Act presented here has throughout been updated by the following amending
statutes
(A) During the British period (1860-1947), the Code was amended by the Acts numbered: 6 of
1861.27of1870, 19of1872, 10of1873,8of1882, 10of1886, 14of1887, 18of1887, 1 of
1889, 4 of 1889, 13of1889,9of1890, 10of1891, 12of1891,3'0f1894,30f1895,60f
1896, 4 of-1898, 12 of 1899,3 of 1910, 8 of 1913,39 of 1920, 16 of 1921,20 of 1923, 5 of
1924, 18 of 1924,8 of 1925,29 of 1925, 10 of 1927,25 of 1927,8 of 1930, 14 of 1932,35 of
1934,22of1939,4of194O.,2of1941,8of1942 and 6Of1943.
(B) During the Pakistan period (1947-1971), the Code was amended by the Acts or Ordinances
mentioned beloW:
(1) The Adaptation of Central Acts and Ordinances Order, 1947 (G.G.O. No. 4 of
1949=A.0., 1949).
(2) The 'Criminal Law (Extinction of Discriminatory Privileges) Act, 1949(2 of 1950).
(3) The Penal Code (Amendment) Act, 1950 (71 of 1950).
(4) The Federal Laws (Revision and Declaration) Act, 1951(26 of 1951).
(5) The Criminal Law Amendment Act, 1953 (37 of 1953). .
(6) The Criminal Laws Amendment Act. 1958 (34 of 1958).
(7) The Penal Code (Amendment) Act, 1958 (36 of 1958).
(8) The'Criminal Law Amendment Ordinance, 1958 (8 of 1958).
(9) The Central Laws (Statute Reform) Ordinance, 1960(21 Of 1960).
(10) The Central Laws (Adaptation) Order. 1961 (P.O. I of 1961 = A.O., .1961).
(11) The Penal Code (Amendment) Ordinance, 1962 (59 of 1962).
(12) The Penal Code (Second Amendment) Ordinance, 1962 (70 of 1962).
(13) The Penal Code (Third Amendment) Ordinance, .1962 (76 of 1962).
(14) The Penal Code (Amendment) Act. 1965 (20 of 1965).

*
The Penal Code has been declared in force in the Chittagong Hill-Tracts by the Chittagong Hill-Tracts Regulations, 1900
(I of 1900). s.4 and Sch.
Offences punishable under sections 121 121A. 122, 123A, 124A, 125, 131, 164, 192, 194, 195, 197 and 198 of the
Code shall be triable exclusively by Special Tribunal constituted under sub-section (2) of Section 26 of the Special
Powers Act, 1974 (Act No. X1 of 1974), Sch.
General Contents

Pages
Preface to the Fifth Edition xi

The Penal Code

A. Preliminary Notes XIII
B. Contents of the Code in detail Xv
C. Text of the Code with Cases and Materials thereon 1-1596
B. Contents of the Code in detail

CHAPTER!.
Introduction
Page Nos;
Preamble .
SfCtIOIIS .
1. Title and extent of operation of the Code.
2. Punishment of offences committed within Bangladesh.
3. Punishment of offences committed beyond, but which by law may be tried within
Bangladesh. . .
4. Extension of Code to extra-territorial offence.
5. Certain laws not to be affected by this Act. .. .

CHAPTERH
General Explanations
6. Definitions in the Code to be understood subject to exceptions. II
7. Sense of expression once explained. 12
8. Gender. 13
9. Number. 13
10. "Man." 14
"Woman."
11. "Person." 14
12. "Public." 16
13. [Omitted.] 16
14. "Servant of the State." 16
15 [Repealed.] 16
16. [Repealed.] 17
17. "Government." . 17
18. [Repealed.] . 17
19. "Judge." . . 17
20. "Court of Justice." . 19
21. "Public servant." 21
22. "Moveable Property." 37
23. "Wrongful gain." 38
"Wrongful loss." .. . . . ..
Gaining wrongfully.
Losing Wrongful. .
24. "Dishonestly." .
xvi

25. "Fraudulently." 42
26. "Reason to believe." 47
27. Property in possession of wife, clerk or señ'arit. 47
28. "Counterfeit," . 49
29. "Document." 50
30. "Valuable security." 52
31. "A will." 55
32. Words referring to acts include illegal omissions. 56
33. "Act" 56
"Omission"
34. Acts done by several persons in furtherance of common intention. 56
35. When such an act is criminal by reason of its being done with a criminal knowledge 89
or intention.
36. Effect caused partly by act and partly by omission. 90
37. Co-operation by doing one of several acts constituting an offence. 91
38. Persons concethed in criminal act may be guilty of different offences. 93
39.. "Voluntarily." 95
40. "Offence." 97
41. "Special law." 100
42. "Local law." 101
43. "Illegal." 101
"Legally bound to do."
44. "Injury." 105
45. "Life." 107
46. "Death." 107
47. "Animal." 107
48. "Vessel." 107
49. "Year." 107
"Month."
50. "Section." 108
51. "Oath." 108
52. "Good faith." 108
52A. "Harbour." 113

CHAPTER III
Of Punishments
53. Punishments. -' 114
53A. Construction of reference to transportation. 117
54. Commutation of sentence of death. 118
55. Commutation of sentence of imprisonment for life. 118
55A . Saving for President's prerogative. 118
xvii

56. [Repealed.] 119

57, Fractions of terms of punishment. 119
58. [Omitted.] 119
59. [Omitted.] 119
60. Sentence may be (in certain cases of imprisonment) whólle or partly rigorous or 119
simple.
61. [Repealed.] 120
62. [Repealed.] 120
63. Amount of fine. 120
64. Sentence of imprisonment for non-payment of fine. 121
65. Limit to imprisonment for non-payment of fine, when imprisonment and fine 124
awardable.
66. Description of imprisonment for non-payment of fine. 125
67. Imprisonment for non-payment of fine, when offence punishable with fine only. 125
68. Imprisonment to terminate on payment of fine. 126
69. Termination of imprisonment in payment of proportional part of fine. 127
70. Fine leviable within six years, or during imprisonment. Death not to discharge 128
property from liability.
71. Limit of punishment of offence made up of several offences. 130
72. Punishment of person guilty of one of several offences, the judgment stating that it is 139
doubtful of which.
73. Solitary confinement. 140
74. Limit of solitary confinement. 141
75. Enhanced punishment for certain offences under Chapter XII or .Chapter XVII after 141
previous conviction. -

CHAPTERIV
General Exceptions
76. Act done by a person bound, or by mistake of fact believing himself bound, by lw. 145
77. Act ofjudge when acting judicially. 147
78. Act done pursuant to the judgment or order of Court. 149
79. Act done by a person justified, or by mistake of fact believing himselfjustified, by 150
law.
80. Accident in doing a lawful act. 154
81. Act likely to cause harm, but done without criminal intent and to prevent other harm. 156
82. Act of a child under nine years of age. 158
83. Act of a child above nine and under twelve of immature understanding. 158
84. Act of a person of unsound mind. 160
85. Act of a pçrson incapable ofjudgment by reason of intoxication caused against his 169
will.
86. Offence requiring a particular intent or knowledge committed by one who is 169
intoxicated.
xviii

87. Act not intended and not known to be likely to cause death or grievous hurt, done by 171
consent.
88. Act not intended to cause death, done by consent in good faith for person's benefit. 172
89. Act done in good faith for benefit of child or insane person, by or by consent of 173
guardian.
Provisos.
90. Consent known to be given under fear or misconception. Consent of insane person. 175
Consent of child.
91. Exclusion of acts which are offences independently of harm caused. 177
92. Act done in good faith for benefit of a person without consent. 178
Provisos. -
93. Communication made in good. faith. 179
94. Act to which a person is compelled by threats. 179
95. Act causing slight harm. 181
Of the Right of Private Defence
96. Things done in-private defence 183
97,. Right of private defence of the body and of property. 193
98. Right of private defence against the act of a person of unsound mind, etc. 195
99. Acts against which there is no right of private defence. Extent to which the right may 196
be exercised.
100. When the right of private defence of the body extends to causing death. 209
101. When such right extends to causing any harm other than death. 216
102. Commencement and continuance of the right of private defence of the body. 217
103. When the right of private defence of property extends to causing death. 218
104. When such right extends to causing any harm other than death. 222
105. Commencement and continuance of the right of private defence of property. 224
106. Right of private defence against deadly assault when there is risk of harm to innocent 226
person.
CHAPTER V
Of Abetment
107. Abetment of a thing. 228
108. Abettor. 236
108A. Abetment in Bangladesh, of offences outside it. 240
11)9. Punishment of abetment if the act abetted is committed in consequence and where no 240
express provision is made for its punishment.
110. Punishment of abetment if person abetted does act with different intention from that of 249
abettor.
111. Liability of abettor when one act abetted and different act done. 250
112. Abettor when liable to cumulative punishment for act abetted and for act done. 252
113. Liability of abettor for an effect caused by the act abetted different from that intended 253
by the abettor. -
xix

114. Abettor present when offence Is committed. 254

115. Abetment of offence punishable with death or imprisonment for life— 256
if offence not committed;
if act causing harm be done in consequence.
116. Abetment of offence punishable with imprisonment— 257
if offence be not committed;
if abettor or person abetted be a public servant whose duty it is to prevent offence.
117. Abetting commission of offence by the public, or by more than ten persons. 260
118. Concealing design to Commit offence punishable with death or imprisonment for life— 26!
if offence be committed; . .
if offence be not committed. .
119. Public servant concealing design to commit offence which it is his duty to prevent— 263
if offence be committed; .
if offence be punishable with death, etc.;
if offence be not committed. .
120. Concealing design to commit offence punishable with imprisonment.— 264
if offence be committed; .
if offence be not committed.

CHAPTER VA
Criminal Conspiracy
120A. Definition of criminal conspiracy. 266
120B. Punishment of criminal conspiracy. 272

CHAPTER VI
Of Offences against the State
121. Waging, or attempting to wage war, or abetting waging of war, against Bangladesh. 279
121A. Conspiracy to commit offences punishable by section 121. 283
122 Collecting arms, etc., with intention of waging war against Bangladesh. 287
123. Concealing with intent to facilitate design to wage war. 288
123A. Condemnation of the creation of the State, and advocacy of abolition of its 290
sovereignty. .
124. Assaulting President, Government, etc., with intent to compel or restrain the 290
exercise of any lawful power.
124A. Sedition. 291
125. Waging war against any Asiatic Power in alliance with Bangladesh. 299
126.. Committing depredation on territories of Power at peace with Bangladesh. 300
127. Receiving property taken by war or depredation mentioned in sections 125 and 126. 300
128. Public servant voluntary allowing prisoner of State or war to escape. 301
129. Public servant negligently suffering such prisoner to escape. 302
130. Aiding escape of, rescuing or harbouring such prisoner. 302
xx
CHAPTER VII
Of Offences relating to the Army, Navy and Air Force
131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty. 304
132. Abetment of mutiny, if mutiny is committed in consequence thereof. 306
133. Abetment of assault by soldier, sailor or airman on his superior officer, when in 306
execution of his office.
134. Abetment of such assault, if the assault is committed. 307
135. Abetment of desertion of.soldier, sailor, or airman. 307
136. Harbouring deserter. 308
137. Deserter concealed on board merchant vessel through negligence of master. 309
138. Abetment of act of insubordination by soldier, sailor or airman. 310
138A . [Repealed]. 310
139. Persons subject to certain acts. 310
140. Wearing grab or carrying token used by soldier, sailor or airman. 311

CHAPTER VIII
Of Offencces against the Public Tranquillity
141. Unlawful assembly. 312
142. Being member of unlawful assembly. 321
143. Punishment. 322
144. Joining unlawful assembly, armed with deadly weapon. 325
145. Joining or continuing in unlawful assembly, knowing it has been commanding to 326
disperse.
146. Rioting. 328
147. Punishment for rioting. 333
148. Rioting, armed with deadly weapon. 340
149. Every member of unlawful assembly guilty of offence committed in prosecution of 349
common object.
150. Hiring or conniving at hiring, of person to join unlawful assembly. 367
151. Knowingly joining or continuing in assembly of five or more persons after it has 368
been commanded to disperse.
152. Assaulting or obstructing public servant when suppressing riot, etc. 370
153. Wantonly giving provocation with intent to cause riot— 371
if rioting be committed;
if not committed.
153A. Promoting enmity between classes. 372
153B. Inducing students, etc. to take part in political activity. 376
154. Owner or occupier of land on which an unlawful assembly is held. 377
155. Liability of person for whose benefit riot is committed. 378
156. Liability of agent of owner or occupier for whose benefit riot is committed. 379
157. Harbouring persons hired for an unlawful assembly. 380
xxi

1. 58. Being hired to take part in an unlawful assembly or riot ; or to go armed. 381
159. Affray. . 382
160. Punishment for committing affray. 382

CHAPTER IX
Of Offences by or relating to Public Servants
161. Public servant taking gratification other than legal remuneration in respect of an 387
official act.
162. Taking gratification in order, by orrupt or illegal means, to influence public servant. 406
163. Taking gratification, for exercise of personal influence with public servant.. 408
164. Punishment for abetment by public servant of offences defined in section 162 or 163. 409
165. Public servant obtaining valuable thing, without consideration, from person 410
concerned in proceeding or business transacted by such public servant.
165A. Punishment for abetment of offences defined in sections 161 and 165. 413.
165B. Certain abettors excepted. 417
166. Public servant diso6eying law with intent to cause injury to any person. 418
167. Public servant framing an incorrect document with intent to cause injury. 419
168. Public servant unlawfully engaging in trade. 422
169. Public servant unlawfully buying or bidding for property. 423
170. Presenting a public servant. 424
171. Wearing grab or carrying token used by public servant with fraudulent intent. 426

CHAPTER IXA.
Of Offences relating to Elections
171A. "Candidate", "Electoral right" defined.. 428
171B. Bribery. 429
171C. Undue influence at elections. 431
171D; Personation at elections. 433
- 171E. Punishment for bribery. 435
171F. Punishment for undue influence or personation at an election. 436
171G. False statement in connection with an election. 437
171H. Illegal payments in connection with an election. 439
1711. Failure to keep election'áccounts. 440

• CHAPTER X
Of Contempts of the Lawful Authority of Public Servants
172... Absconding to avoid service of summons or other proceeding. 442
173. Preventing service of summons or other proceeding or preventing publication thereof. . 443
14. Non-attendance in obedience to an order from public servant. : 445
175. Omission to produce document to public servant by person legally bound to produce . 449
it. . .. .
xxii.
N

176. Omission to give notice or information to public servant by person legally bound to 451
give it.
177. Furnishing false information. i 454
178. Refusing oath or affirmation when duly required by public servant to make ' it. 457
179. Refusing to answer public servant authorized to question. 458
180. Refusing to sign statement. 460
181. False statement in oath or affirmation to public servant or personauthor.ized to 461
administer an oath or affirmation.
182. False information with intent to cause public servant to' use his lawful power to the 463
injury of another person.
183. Resistance to the taking of property by the lawful authority of a public servant. 473
184. Obstructing sale of property offered for sale by authority of public servant. 476
185. Illegal purchase or bid for property offered for sale by authority of public servant. 477
186. Obstructing public servant in discharge of public functions. 479
187. Omission to assist public servant when bound by law to give assistance. 485
188. Disobedience to order duly promulgated by public servant. 487
189. Threat of injury to public servant. 498
190. Threat of injury to induce person to refrain from applying for protection to public 499
servant.

CHAPTER XI
Of False Evidence and Offences against Public Justice
191. Giving false evidence. 502
192. Fabricating fise evidence. 509
193. Punishment for false evidence. 515
194. Giving or fabricating false evidence with intent to procure conviction of capital offence; 524
if innocent person be thereby convicted and executed. C
195. Giving or fabricating false evidence with intent to procure conviction of offence 527
punishable with imprisonment for life or imprisonment.
196. Using evidence known to be false. 528
197. Issuing or singing false certificate. 533
198. Using as true a certificate known to be false. 535
199. False statement made in declaration which is by law receivable as evidence. 536
200. Using as true such declaration knowing it to be false. 539
201. Causing disappearance of evidence of offence, or giving false information to screen 540
offender—
if capital offence;
if punishable with imprisonment for life;
if punishable with less than ten years' imprisonment.
202. Intentional omission to give information of offence by person bound to inforñi. 551
203. Giving false information respecting an offence committed. 554
204. Destruction of document to prevent its production as evidence. 556
xxiii
205. False personation for purpose of act or proceeding in suit or prosecution. 55 1
206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in 559
execution.
207. Fraudulent claim to property to prevent its seizure as forfeited or in execution. 562
208. Fraudulently suffering decree for sum not due. 563
209. Dishonestly making false claim in Court. . .. . 564
21. 0. Fraudulently obtaining decree for sum not due. 567
211. False charge of offence made with intent to injury. 571
212. Harbouring offender— 582
if a capital offence; . . .. .
if punishable with imprisonment for life, or with imprisonment.
213. Taking gift, etc., to screen an offender from punishment— 585
if a capital offence;
if punishable with imprisonment for life, or with imprisonment.
214. Offering gift or restoration of property in consideration of screening offender— 587
if a capital offence;
if punishable with imprisonment for life, or with imprisonment.
215. Taking gift to help to recover stolen property, etc. 588
216. Harbouring offender; who has escaped from custody or whose apprehension has, been • 591
ordered-- . .
if a capital offence; .
if punishable with imprisonment impri sonlVent for life, of with imprisonment.
216A. Penalty for harbouring robbers or dacOits. . 54
216B. [Omitted] .. . 596
S
217. Public servant disobeying direction of law with intent to save person from 596
punishment or property from forfeiture. . . .
218. Public servant framing incorrect record or writing with intent to save person from 597
punishment or property from forfeiture. ..
219. . Public servant in judicial proceeding corruptly making report, etc., contrary to 1aw. 602
220. Commitment for trial or confinement by person having authority who knows that he • 603
is acting contrary to law.
221. Intentional omission to apprehend on the part of public servant bound to apprehend. 605
222. Intentional omission to apprehend on the part of public servant bound to apprehend 607
person under sentence or lawfully committed.
223. Escape from confinement or custody negligently suffered by public servant. 608
224. Resistance or obstruction by a person to his lawful apprehension. 611
225. Resistance or obstruction to lawful apprehension of another person. 614
225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not • 619
otherwise provided for..
225B. Resistance or obstruction to lawful apprehension, or escape or rescue, in cases not • 620
otherwise provided for. . .
226. [Omitted] 624
xxiv.

227. Violation of condition of remission of punishment. 624

228.. Intentional insult or interruption to public servant sitting in judicial proceeding. 625
229.. Personation of juror or assessor. 634

CHAPTER XJJ
Of Offences relating to Coin and Government Stamps
230. "Coin" defined. - 63.6
Bangladesh coin.
231. Counterfeiting coin 537
232. Counterfeiting Bangladesh coin. 638
233. Making or selling instrument for counterfeiting coin. 639
234. Making or selling instrument for counterfeiting Bangladesh coin. 640
235. Possession of instrument or material for the purpose of using. the same for 641
counterfeiting coin ; if Bangladesh coin
• 236. Abetting in BargIadesh the counterfeiting but of Bangladesh of coin. 644
237. Import or export of counterfeit coin. 644
238. Import or export of counterfeits of Bangladesh coin. 645
239. Delivery of coin, possessed with knowledge that it is counterfeit. 646
240. Delivery of Bangladesh coin, possessed with knowledge that it is counterfeit. 646
241. Delivery of coii as genuine, which, when first possessed, the deliverer did not know 648
to be counterfeit.
242. Possession of counterfeit. coin by person who knew it to be counterfeit when he 650
became possessed thereof.
243. Possession of Bangladesh coin by person who know it to be counterfeit when he 650
became possessed thereof.
244. Person employed in mint causing coin to be of different weight or composition from 653
that fixed by law.
245. Unlawfully taking coining instrument from mint. 654
246. Fraudulently or dishonestly diminishing weight or altering composition of coin. 655
247. Fraudulently or dishonestly diminishing weight or alternating composition of 655
Bangladesh coin.
248. Altering appearance of coin with intent that it shall pass as coin , of different description. 656
249. Altering appearance of Bangladesh coin, with intent that it shall pass as coin of 656
different description.
250. Delivery of coin, possessed with knowledge that it is altered. 657
251. Delivery of Bangladesh coin, possessed with knowledge that it is altered. 658
252. Possession of coin by person who know it to be altered when he became possessed 659
thereof.
253. Possession of Bangladesh coin by person who knew it to be altered when he became 659
possessed thereof.
254. Delivery of coin as genuine which, when first possessed, the deliverer did not know 660
to be altered.
xxv

255. Counterfeiting Government stamp. 661

256. Having possession of instrument or material for counterfeiting Government stamp. 662
257. Making or selling instrument for counterfeiting Government stamp. 663
258. Sale of counterfeit Government stamp. 664
259.. Having possession of counterfeit Government stamp. 665
260. Using as genuine a Government stamp known to be counterfeit. 665
261. Effacing writing from substance bearing Government stamp, or removing from 666
document a stamp used for it, with intent to cause loss to Government.
262. Using Government stamp known to have been before used. 667
263. Erasure of mark denoting that stamp has been used. 668
263A. Prohibition of fictitious stamps. 669

CHAPTER XIII
Of Offences relating to Weights and Measures
264. Fraudulent use of false instrument for weighting. 673
265. Fraudulent use of weight or measure. 674
266. Beiig in possession of false weight or measure. 675
267. Making or selling false weight or measure. 677

CHAPTER XIV
Of Offences affecting the Public Health, Safety, Convenience,
Decency and Morals
268. Public nuisance. 679
269. Negligent act likely to spread infection of disease dangerous to life. 685
270. Malignant act likely to spread infection of disease dangerous to life. 687
271. Disobedience to quarantine rule. 687
272. Adulteration of food or drink intended for sale. 688
273. Sale of noxious food or drink. 689
274. Adulteration of drugs. 690
275. Sale of adulterated drugs. 691
276. Sale of drug as a different drug or preparation. 692
277. Fouling water or public spring or reserviour. 693
278. Making atmosphere noxious to health. 694
279. Rash driving or riding on a public way. 695
280. Rash navigation of vessel. 702
281. Exhibition of false light, mark or buoy. 703
282. Conveying person by water for hire in unsafe or overloaded vessel. 704
283. Danger or obstruction in public way or line of navigation. 705
284. Negligent conduct with respect to poisonous substance. 709
285. Negligent conduct with respect to fire or combustible matter. 719
286. Negligent conduct with respect to explosive substance. 711
xxvi

287. Negligent conduct with respect to machinery. 713

288. Negligent conduct with respect to pulling down or repairing buildings. 715
289.. Negligent conduct with respect to animal. 716
290. Punishment for public nuisance in cases not otherwise provided for. 718
291. Continuance of nuisance after injunction to discontinue. 720
292. Sale, etc., of obsence books, etc.. 721
293. Sale, etc., of obscence objects to young person. 726
294. Obscence acts and songs. 727
294A. Keeping lottery-office. 729
29413. Offering of prize in connection with trade, etc. 733

CHAPTER XV
Of Offences relating to Religion
295. Injuring or defiling place of worship, with intent to insult the religion of any class. 736
295A. Deliberate and malicious act intended to outage religious feelings of any class by 739
insulting its religion or religious beliefs.
296. Disturbing religious assembly. 743
297. Trespassing on burial places, etc. 744
298. Uttering words, etc., with deliberate intent to wound religious feelings. 747

CHAPTER XVI
Of Offences affecting the Human Body
Of Offences affecting Life
299. Culpable homicide. 750
300. Murder. 750
When culpable homicide is not murder.
301. Culpable homicide by causing death of person other than person whose death was intended 819
302. Punishment for murder. 820
303. Punishment for murder by life-convict. 869
04. Punishment for culpable homicide not amounting to murder. 870
304A Causing death by negligence. 886
304B Causing death by rash driving or riding on a public way. 896
305. Abetment of suicide of child or insane person. 899
306. Abetment of suicide. 900
307. Attempt to murder. 902
Attempts by life-convicts.
308. Attempt to commit culpable homicide. 916
309. Attempt to commit suicide. 917,
310. Thug. 919
311. Punishment. 919
xxvii

Of the causing of Miscarriage, of Injuries to Unborn

Children, of the Exposure of Infants and
of the Concealment of Births
312. Causing miscarriage. 920
313. • Causing miscarriage. without woman's consent. 921
314. Death caused by act done with intent to cause charge. 922
If act done without woman's consent.
315. Act done with intent to prevent child being born alive or to cause it to die afterbirth. 923
316. Causing death of quick unborn child by act amounting to culpable homicide. 924
317. Exposure and abandonment of child under twelve years, by parent or person having 925
care of it.
318. Concealment of birth by secret disposal of dead body. 927
Of hurt
319. Hurt. 929
320. Grievous hurt. 930
321. Voluntarily causing hurt. 934
322. Voluntarily causing grievous hurt. 935
323. Punishment for voluntarily causing hurt. 937
324. Voluntarily causing hurt by dangerous weapons or means. 944
325. Punishment for voluntarily causing grievous-hurt. 951
326 Voluntarily causing grievous hurt by dangerous weapons or means. 959
326A. Voluntarily causing grievous hurt in respect of both eyes, head or face by means of 968
corrosive substance, etc.
327. Voluntarily causing hurt to extort property or to constrain to an illegal act. 969
328. Causing hurt by means of poison, etc. with intent to commit an offence. 970
329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act. 974
330. Voluntarily causing hurt to extort confession, or to compel restoration of property. 974
331. Voluntarily causing grievous hurt to extort confession, or to compel restor of property 976
332. Voluntarily causing hurt to deter public servant from his duty. 978
333. Voluntarily causing grievous hurt to deter public servant from his duty. 981
334. Voluntarily causing hurt on provocation. 982
335. Voluntarily causing grievous hurt on provocation. 983
336. Act endangering life or personal safety of others. 984
337. Causing hurt by act endangering life or personal safety of others. 985
338. •Causing grievous hurt by act endangering life or personal safety of others. 988
338A. Causing grievous hurt by rash driving on a public way. 991
Of Wrongful Restraint and Wrongful Confinement
339. Wrongful restraint. 992
340. WrOngful confinement. 995
341. Punishment for wrongful restraint. 997
342. Punishment for wrongful confinement. 998
xxviii

343. Wrongful confinement for three or more days. 1001

344. Wrongful confinement for ten or more days. 1002
345. Wrongful confinement of person of whose liberation writ has been issued. 1003
346. Wrongful confinement in secret. 1003
347.. Wrongful confinement to extort property, or constrain to illegal act. 1004
348. Wrongful confinement to extort confession, or compel restoration of property 1005
Of Criminal force and Assault
349.. Force. 1006
350. Criminal force. 1007
351. Assault. 1009
352. Punishment for assault or criminal force otherwise than on grave provocation. 1011
353. Assault or criminal force to deter public servant from discharge of his duty. 1014
354. Assault or criminal force to woman with intent to outrage her modesty. 1019
355. Assault or criminal force with intent to dishonour person, otherwise than on grave 1022
provocation.
356. Assault or criminal force in attempt to commit theft of property carried by a person. 1022
357. Assault or criminal force in attempt wrongfully to confine a person. 1023
358. Assault or criminal force on grave provocation. 1024
Of kidnapping, Abduction, Slavery and Forced Labour
359. Kidnapping. • 1025
360. Kidnapping from Bangladesh, etc. . 1025
361. Kidnapping from lawful guardianship. 1025
362. Abduction. . 1038
363. Punishment for kidnapping. 1040
364. Kidnapping or abducting in order to murder. 1046
364A. Kidnapping or abductirig a person under the age often. 1053
365. Kidnapping or abducting with intent secretly and wrongfully to confine person. 1054
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. 1057
•366A. Procreation of minor girl. 1067
366B. Importation of girl from foreign country. 1073
367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. 1074
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. 1075
369. Kidnapping or abducting child under ten years with intent to steal from its person. .1076
370. Buying or disposing of any person as a slave. 1077
371. Habitual dealing in slaves. . 1078
372. Selling minor for purposes of prostitution, etc. 1079
373. Buying minor for purposes of prostitution, etc. 1083
374. Unlawful compulsory labour. . . . . . 1086
Of Rape.
375. Rape. . • . . . . • . . 1087
376. Punishment for rape. . .. . . • 1088
xxix

Of Unnatural Offences
377. Unnatural offences. 1099

CHAPTER XVII
Of Offences against Property
Of Theft
378. Theft. 11 03
379. Punishment for theft. 1104
380. Theft in dwelling-house, etc. 1127
381. Theft by clerk or servant of property in possession of master. 1131
382. Theft after preparation made for causing death, hurt or restraint, in order to the 1134
committing of the theft.
Of Extortion
383. Extortion. 1136
384. Punishment for extortion. S

1137.
385. Putting person in fear of injury in order to commit extortion 1140
386. Extortion by putting a person in fear of death or grievous hurt. 1141
387. Putting person in fear of death or of grievous hurt, in order to commit extortion. 1142
388. Extortion by threat of accusation of an offence punishable with death or imprison- 1143
ment for life, etc.
389. Putting person in fear of accusation of offence, in order to commit extortion. 1144
Of Robbery and Dacofty
390. Robbery. 1145
When theft is robbery.
When extortion is robbery.
391. Dacoity. . 1146
392. Punishment for robbery. 1147
393. Attempt to commit robbery. 1151
394. Voluntarily causing hurt in -committing róbbery. 1152
395. Punishment for dacoity 1156
396. Dacoity with murder. 1167
397. Robbery or dacoity, with attempt to cause death or grievous hurt. 1172
398. Attempt to commit robbery or dacoity when armed with deadly weapon. 1177
399. Making preparation to commit dacoity. 1179
400. Punishment for belonging to gang of dacoity. 1183
401. Punishment for belonging to gang of thieves. 1187
402. Assembling for purpose of committing dacoity. 1191
Of Criminal Misappropriation of Property
403. Dishonest misappropriation of property. 1194
404. 1 Dishonest misappropriation of property possessed by deceased person at the time of 1203
Ui
his death.
xxx

Of Criminal Breach of Trust

405. Criminal breach of trust. 1206
406. Punishment for criminal breach of trust. - 1211
407. Criminal breach of trust by carrier, etc.. 1234
408. Criminal breach of trust by clerk or servant. 1236
409. Criminal breach of trust by public servant orby banker merchant or agent. 1243
Of the Receiving of Stolen Property
410. Stolen property. 1266
411. Dishonestly receiving stolen property. 126T/
412. Dishonestly receiving property stolen . in the commission of a dacoity. 1276
413. Habitually dealing in stolen property. 1281
414. •Assisting in concealmentof stolen property .. -. 1282
Of Cheating
415 Cheating. . .. . 1285
416 Cheating by personation. ...... . . .. • 1286
417 Punishment for cheating. . . . . .. ...• .... 1286
418 Cheating with knowledge that wrongful loss may ensue to person whose interest 1300
offender is bound to protect. . ., . . . .. :
419. Punishment for cheating by personation. . 1302
420. Cheating and dishonestly inducing-delivery of property. 1306
Of Fraudulent Deeds and Dispositions of Property
421. Dishonest or fraudulent removal or concealment Of property to prevent distribution 1323
among creditors. . . ... .
422. Dishonestly or fraudulently preventing debt being available for ditors.: • 1325
423. Dishonest or fraudulent execution of deeds of transfer containing false statements Of 1326
consideration.. ,..
424. Dishonest or fraudulent removal or concealment of property....... . 1328
Of Mischief .
425. Mischief. . 1330
426-. Punishment for mischief. 1332
427. Mischief causing damage to the amount of fifty taka. 1338
428. Mischief by killing or maiming animal of the value often taka. 1342
429. . Mischief by killing or maiming cattle, etc., of any value or any animal of the value of 1344
flftytaka.
430. Mischief by injury to works of irrigation or by wrongfully divertingwáter. 1345
431. Mischief by injury to public,road, bridge, river or channel. 1349
432. Mischief by causing inundation Or obstruction to public drainage attended with 1350
damage. .• . .. - .
433. Mischief by destroying, moving or rending less useful alight-house or sea-mark. 1351
434. Mischief by destroying or moving etc., a landmark fixed by public authority. 1352
xxxi

435. Mischief by fire or explosive substance with intent to cause damage to amount of one 1353
hundred or (in case of agricultural produce) ten taka.
436. Mischief by fire or explosive substance with intent to destroy house, etc. 1355
437. Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons 1359
burden.
438. Punishment for the mischief described in section 437 committed by fire or explosive 1360
substance. -
439. Punishment for intentionally running vessel aground or ashore with intent to commit 1361
theft, etc.
440. Mischief committed after preparation made for causing death or hurt. 1361
Of Criminal Trespass
441. Criminal trespass. 1362
442. House-trespass. 1366
443. Lurking house-trespass. 1367
444. Lurking house-trespass by night. 1367
445. House-breaking. 1368
446. House-breaking by night. . 1370
447. Punishment for criminal trespass. U 1370
448. Punishthent for house-tress. 1379
449. House-trespass in order to commit offence punishable with death. 1386
450. House-trespass in orderlocommit offence punishable with imprisonment for life. 1387
451. House-trespass in order to commit offence punishable with imprisonment. 1388
452. House-trespass after preparation for hurt, assault or wrongful restraint. 1390
453. Punishment for lurking house-trespass or house-breaking. . 1392
454. Lurking house-trespass or house-breaking in order to commit offence punishable with 1394
imprisonment.
455. Lurking house-trespass or house-breaking after preparation for hurt, assault or 1395
wrongful restraint. .
450. Punishment for lurking house-trespass or house-breaking by night.. 1.396
457. Lurking house-trespass or house-breaking by night in order to commit offence 1397
punishable with imprisonment.
458. Lurking house-trespass or house-breaking by night, after preparation for hurt, assault 1402
or wrongful restraint. .
459. Grievous hurt caused whilst committing lurking house-trespass or house-breaking. 404
460. All persons jointly concerned in lurking house-trespass or house-breaking by night 1406
punishable where death or grievous hurt caused by one of them.
461. Dishonestly breaking open receptacle containing property. :. 1409
462 Punishment for same offence when committed by person entrusted with custody 1.410
Of the Loss of Property of Banking Co!npany.,
462A. Penalty for negligent conduct of bank officers and employees. .1410
462B. Penalty for defrauding banking company. '4"
xxxii

CHAPTER XVIII
Of Offences relating to Documents and to Trade or Property Marks
463. Forgery 1412
464. Making a false document. 1414
465. Punishment for forgery. 1422
466. Forgery of record of Court or of public register. etc. 1428
467. Forgery of valuable security, will. etc. 1433
468. Forgery for purpose of cheating. 1447
469. Forgery for purpose of harming reputation. 1451
470. Forged document. 1452,
471. Using as genuine a forged document. 1,452
472. Making or possessing counterfeit seal, etc. with intent to commit forgery punishable 1460
under section 467.
473. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable 1461
otherwise.
474. Having possession of document described in section 466 or 467, knowing it to be 1462
forged and intending to use it as genuine. .
475. counterfeiting device or mark used for authenticating document described in section 1465
457, or possessing counterfeit marked material.
476. Counterfeiting device or mark used for authenticating documents other than those 1466
described in section 467, or possessing counterfeit marked material.
477. Fraudulent cancellation destruction, etc.., of will, authority to adopt, or valuable 1467
• security.
477A. Falsification of accounts. 1470
Of Trade, Property and other Marks
478. Trademark. 1479
479. Property mark. 1479
480 Using a false trade mark. 1480
481. Using a false property mark.. 1480
482. Punishment for using a false trade mark or property mark. 1481
483. . Counterfeiting a trade mark or property mark used by another. 1483
484. Counterfeiting a mark used by a public servant. 1484
485. Making or possession of any instrument for counterfeiting a trade mark or property 1485
mark.
486. Selling goods marked with a counterfeit trade mark or property mark. 1486
487. Making a false mark upon any receptacle containing goods. 1489
488. Punishment for making use of any such false mark. 1491
489. Tampering with property mark with intent to cause injury. 1492
Of Currency-Notes and Bank-Notes
489A. Counterfeiting currency-notes or bank-notes. 1492
489B. Using as genuine forged or counterfeit currency-notes or bank-notes. 1494
xxxiii
489C. Possession of forged or counterfeit currency-notes or bank-notes. 1496
489D. Making or possessing instrument or materials for forging or counterfeiting currency- 1498
notes or bank-notes.
489E. Making or using documents resembling currency-notes or bank-notes. 1499

CHAPTER XIX
Of the Criminal Breach of Contracts of Service
490. [Repealed.] 1501
491. Breach of contract to attend on and supply wants of helpless person. 1501
492. [Repealed.] 1502

CHAPTER XX
Of Offences relating to Marriage
493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. 1503
494. Marrying again during life-time of husband or wife. 1508
495. Same offence with concealment of former marriage from person with whom 1514
subsequent marriage is contracted.
496. Marriage ceremony fraudulently gone through without lawful marriage. 1515
497. Adultery. 1517
498. Enticing or taking away or detaining with criminal intent a married woman 1521

CHAPTER XXI
Of Defamation
499. Defamation. . 1529
Imputation of truth which public good requires to be made or published.
Public conduct of public servant.
Conduct of any person touching any public question.
Publication of reports of proceeding of Courts
Merits of case decided in Court, or conduct of witness and others concerned.
Merits of public Performance.
Censure passed in good faith by person having lawful authority over another.
Accusation preferred in good faith to authorized person.
Imputation made in good faith by person for protection of his other's interests.
Caution intended for good of person to whom conveyed or for public good.
500. Punishment for defamation. 1536
501. Printing or engraving matter known to be defamatory. . 1555
502. Sale of printed or engraved substance containing defamatory matter. 1557
xxxiv

CHAPTER )MI
Of Criminal Intimidation, Insult, Prejudicial Act and Annoyance
503. Criminal intimidation. 1558
504. Intentional insult with intent to provoke breach of the peace. 1561
505. Statements conducing to public mischief. 1564
505A. Prejudicial act by words, etc. 1566
506. Punishment for criminal intimidation. 1567
If threat he to cause death or grievous hurt, etc.
507. Criminal intimidation by an anonymous communication. 1569
508. Act caused by inducing person to believe That he will be rendered an object of the 1570
Divine displeasure.
509. Word, gesture or act intended to insult the modesty of a woman. 1571
510. Misconduct in public by a drunken person. 1573

CHAPTERXXIII
Of Attempts to Commit Offences
511. Punishment for attempting to commit offence punishable with imprisonment for life 1575
or imprisonment. . ,.
C. Text of the Code with Cases and Materials thereon

CHAPTER I
Introduction

Preamble
Preamble.— Whereas it is expedient - to provide a general Penal Code for
'[Bangladesh]; It is enacted as follows
Cases : Synopsis.
I.. Scope and applicability of the Code. 6. Illustrations of the Code.
2. A "general Penal Code' 7. Explanations of the Code.
3. Interpretation of the Code. 8.'- Provisos of the Code.
4. Marginal notes of the Code. 9. Punctuation marks of the Code.
5. Headings of the Code.
• I. Scope and applicability of the Code.—(l) The preamble states that the object of the code is
to provide a general Penal Code. AIR 1921 Cal 1.
(2) The general substantive law of crimes is contained in the Penal Code. The procedural law as
to crimes is contained in the Code of Criminal Procedure. AIR 1968 Born 400. .
(3) The Penal Code applies to every person without regard to his race, religion, caste or
community, provided he otherwise comes within the provisions of the Code. (1902) ILR 25 All 31
(4) If there exists a right to prosecute under the Penal Code such right cannot be "impliedly" taken
away by the provision of another statute. AIR 1928 Mad 1235. .
2. A "general Penal Code".-.–(I) Although, according to the Preamble, the object of enacting the
Code was to provide a general Penal Code, it should be noted that the Code contains no specific
provision repealing the penal laws which were then in force. AIR 1914 Cal 69.
(2) The general principle is that the essence of a Code is to consolidate the whole of the law on the
subject and to be exhaustive on the matters in respect of which it declares the law. This principle also
applies to the Code and hence, Courts are not at liberty to go outside the Code and stretch or limit its
provisions by reference to the previous law. A IR 1951 Madhbha I (FB).
(3) The Code contains the substantive law of crimes. The general law of criminal , procedure is
contained in the Code of Criminal Procedure. AIR 1922 Mad 443.
3. Interpretation of the Code.—(l) In construing a penal statute, where there is any doubt
or ambiguity, that construction should be adopted which is favourable to the accused. A IR 1964 SC
464.

I. The word "Bangladesh" was substituted for the word "Pakistan" by the Bangladesh Laws (Revision and Declaration)
Act, 1973 (Act VIII of 1973), Second Schedule (w. e. f. 26th March 1971). . . .'
2 Penal Code

(2) If, having regard to the context in which the words are used, a construction, which is not
favourable to the accused, appears to be more in consonance with the intention of the Legislature. such
construction should be adopted. A IR 1959 SC 436
(3) The words of a statute should, not be limited so as to exclude from the operation of a penal
provision persons who would otherwise fall within their scope. AIR 1963 SC 550.
(4) The presumption that the same word is used in the same sense in every part of a statute is not
of much weight and, if sufficient reason can be assigned, the same word may be construed in different
, senses in the same statute and even in the same section. AIR 1962 Guj 218.
(5) Where two constructions are possible that construction must be adopted which avoid
absurdity or unreasonability. AIR 1963 Born 21.
(6) The literal meaning of the words used in a statute need not be adopted if to do so would defeat
the object of the Legislature. In such case, the court may adopt a construction which will advance the
remedy and suppress the mischief.. AIR 1965 SC 871, . .
(7) Dictionary meanings, however helpful in understanding the general sense of the words, cannot
control where the scheme of the statute considered as a whole clearly conveys a somewhat different
shade of meanirg. AIR 1971 SC 1283.
(8) The policy of the Legislature is no concern of the Courts in interpreting statute. AIR 1933 Born
417.• . . . .
(9) It is not permissible to construe the Code at the present , day in accordance with the notions Of
, criminal jurisdiction prevailing at the time when the Code was enacted. It is legitimate to construe the
Code with reference to modem conditions and needs unless there is anything in the Code or any
section thereof to preclude such construction. AIR 1957 SC 857.
4. Marginal notes of the Code.—(1) The marginal notes to a section do not form part of the
statute and cannot be referred to for the purpose of construing the section. AIR 1947 PC 82.
(2) In the case of an ambiguity in the wording of a section the marginal note may be referred to for
interpreting the section. A IR 1944 Sind I.
(3) Where the marginal note has been inserted by or under the authority of the Legislature or
assented to by the Legislature, the marginal note' can be referred to for the purpose of interpretation. AIR
1933 Born 417. .
5. Headings of the Code._-_(1) In case of doubt or ambiguity in the wording of a section or group
of sections the headings used in the statute can be referred to as an aid in understanding the provisions.
AIR 1933 Born .417.
(2) Where the meaning of the words is clear, that meaning cannot be controlled by referring to
headings. AIR 1955 Born 82.
6. Illustrations of the Code.—(1) Illustrations do not stand on the same footing as marginal
notes but form part of the statute. AIR 1928 Oudh 15.
(2) Illustrations cannot override the express words of astatute. A IR 1921 Call.
(3) Illustrations .rank as cases decided upon the provisions of the Code. (1876)'ILR / Born 147.
7. Explanations of the Code.—(I) The purpose of an Explanation is often to explain some
concept or expression or phrase occurring in the main provisions and it is not uncommon for the
Legislature to accord either an extended meaning or a restricted meaning to such concept or expression
or phrase by inserting appropriate Explanation. AIR 1975 Born 244.
Sec. 1-2 Introduction 3
(2) An Explanation is at times appended to a section to explain the meaning of words contained in
the section. It thus becomes a part and parcel of the enactment. A IR 1955 SC 661.
(3) The meaning to be given to an Explanation must depend upon its terms and "no theory of its
purpose can be entertained unless it is to be inferred from the language used". ILR 43 Mad 550 (PC).
(4) On the natural reading of an Explanation it appears that it has widened the scope of the main
section. Effect must be given to the legislative intent notwithstanding the fact that the legislature
named that provision as an Explanation. In all these matters the Courts are to find out the true
intention of the Legislature. 1977 Lab AC 1308.
(5) But if the language of the Explanation shows a purpose and a construction consistent with that
purpose can be reasonably placeed upon it, that construction will be preferred as against any other
construction which does not fit in with the description or the avowed purpose.
8. Provisos of the Code.—If the language of the proviso makes it plain that it was intended to
have operation more extensive than that of the provision which it immediately follows, it must be
given such wider effect. Undoubtedly, the general rule is that a proviso is added to an enactment to
qualify or create an exception to what is in the enactment and, ordinarily, aproviso is not interpreted as
stating a general rule. (1.979) 47 CLT 244.
9. Punctuation marks of the Code.—Punctuation cannot be read or regarded as a controlling.
factor. 1979 Mah LJ 555.

Section 1
1. Title and extent of operation of the Code.—This Act shall be called the
2[Penal Code], and shall take effect 3[* * *] throughout '[Bangladesh].
Cases
1. Extent of the Code.—It lays down that the Penal Code extends only to offences committed in
Bangladesh and not to offences committed outside Bangladesh. 14 BLD (HCD) 204.

Section 2
2. Punishment of offences committed within 'IBangladeshj.—Every person
shall be liable to punishment under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which he shall be guilty within.
'[Bangladesh] 4[* * *]. . . . . . . . . .

Cases Synopsis
1. Penal liability under general and special Acts. (ii) Foreign sovereigns.
2. Every person : Meaning and definition. (iii) A mbassadors.
3. Exceptions to every person (iv) Public servants.
(i) President's Immunity.

2. The words within square brackets were substituted for the words "Pakistan Penal Code", Ibid.
3. The words and figures "on and from the first day of May, 1861", were repealed by the Act XII of 1891.
4 The words and figures "on or after the said first day of May, 1861," were repealed, Ibid.
4 Penal Code Sec. 3

1. Penal liability under general and special Acts.—The Penal Code is a general penal Act and
it does not affect any special penal Act. Section 2 must be read subject to section 5 which clearly
makes a reservation with regard to offences specified therein. Sections 2 and 5 taken together declare
that offences defined by special and local laws continue to be punishable as before. A penal provision in
a special Act is no bar to prosecution under the Penal Code. Where there is a specific punishment
provided in a special Act it takes precedents of the general punishment under the Penal Code. AIR 1937
Allahabad 714.
2. Every person : Meaning and definition.— Every person means any one irrespective of his
rank, caste or creed who shall be liable to punishment for an offence under the Code for every act or
omission committed within Bangladesh and of which he is found guilty. The expression "every
person" includes a foreigner who has committeçl an offence within Bangladesh. AIR 1957 SC 857.
The words "every person" may be compared with section 3 and 4 of the Code where the words
"any person" have been used. The word "person" .is defined in sec. 11 of the Code as including a
company, an association of persons whether incorporated or not. AIR 1964 Born 195. But the words
"every person" in Sec. 2 are used in a narrow sense and will mean only natural persons and not
judicial persons.
3. Exceptions to "every person".—(,) President's immunity— A rticle 51(2) of our Constitution
provides that "during his terms of office no criminal proceedings whatsoever shall be instituted or
continued, against the President in, and no process for his arrest or imprisonment shall issue from, any
court".
(ii) sovereigns.— In accordance with the law of Nations a sovereign of a foreign Country IS
Foreign
exempt from the jurisdiction of a criminal court on the ground that it is incompatible with legal
dignity. .: .
(iii) Ambassadors..— The rights, powers, duties and privileges of Ambassadors are determined by
the Law of Nations. The immunities of diplomats are extended to the family living with them, to the
secretaries and attaches, whether Civil or Military forming part of the mission. They cannot be arrested
on a criminal charge. The immunities of Ambassadors do not extend to offences such as murder.
(iv) Public servants.— Some statutes confer immunity from prosecution for acts done by them in
their official capacity, for example section 132, Criminal Procedure Code.

Section 3
3. Punishment of offences committed beyond, but which by law may be tried
within, '[Bangladesh].—Any person liable, by any 5 [Bangladeshlaw], to be tried
for an offence committed beyond '[Bangladesh] shall be dealt with according to the
provisions of this Code for any act committed beyond '[Bangladesh] in the same
manner as if such act had been committed within '[Bangladesh].

& The original words "Law passed by the G.G. of India in-C." have successively been amended by A. 0 1949. Sch, and
the word "Bangladesh" was substituted for the word "Pakistan" by the Bangladesh Laws (Revision and Declarations Act.
1973 (Act VIII of 1973), Second Sch. (w.e.f. 26th March 1971) to read as above.
Sec. 4 Introduction 5
•
Cases
1. Offences committed beyond, but triable within, Bangladesh.— .This section deals with
offences committed beyond Bangladesh which may be tried in Bangladesh. Where a Bangladesh citizen
commits an offence beyond Bangladesh and such offence' does not constitute an offence it the place
where it was committed, nevertheless he may, be tried by the Bangladesh courts for such offence or
extradited into the county where it said that he has committed the offence. (A IR 1968 Cal 220). Where
a foreigner commits an offence in Bangladesh, he maybe tried and punished for such offence regardless
of his corporeal presence in Bangladesh at the time. (A IR 1957 SC 857). The real test for the purpose of
jurisdiction for trial and punishment is the place where the offence is committed. A Bangladesh citizen
shall be deemed to have committed an offence outside Bangladesh even if the act complained of does
not constitute under the law prevailing in the place in which the offence had been committed. (AIR
1964 Born 264). The words "liable by any Bangladesh law," would refer to the Extradition Act. 1974
and Sec. 188 of the Cr. Pro. Code. Sections 188 and 189 of the Criminal Procedure Code are only
procedural sections dealing with offences committed outside Bangladesh.

Section 4
6[4. Extension of Code to extra-territorial offences.—The provisions of this
Code apply also to any offence committed by—
(1) any 7[citizen of Bangladesh] in any place without and beyond 8[Bangladesh];

* * * * *1 * *
IO[* * * * * *1 * *
"[(4) any person on any ship or aircraft registered in 8[Bangladesh] wherever it
may be].
Explanation.— In this section the word "offence" includes every act committed
outside 8 [Bangladesh] which, if committed in $ [Bangladesh], would be punihable
under this Code.
Illustrations
(a) A , 12[a Bangladesh subject], commits a murder in Uganda. He can be tried and
convicted of murder in any place in 8[Bangladesh] in which he may be found

6. Section 4 was substituted for the original section 4 by the Act IV of 1898, S. 2.
7. The original words "Native Indian subject of Her Majesty" have successively been amended by A.O. 1949 and A.O.
1961. Art, 2 and Sch. (with effect from the 23rd March 1956) to read as "Citizen of Pakistan" and the word
"Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973 (with effect from 26th March 1971) to read
as above,
8. . Subs ibid. for "Pakistan."
9. Clause (2) as amended by A.O. 1949, Sch. was omitted by A.O. 1961, Art. 2 and Sch. (w.e.f. the 23rd March 1956).
10. Clause (3) was omitted by Act VIII of 1973 (with effect from 26th March 1971).
II. Clause (4) was inserted by the Offences on Ships and Aircraft Act, 1940 (Act IV of 1940), s. 2.
12. The words "a Pakistan subject" were substituted for the words "a coolie who is a Native Indian subject" were substituted
by Act XXVI of 1951 and then the word "Bangladesh" was substituted for the word "Pakistan" by the Bangladesh Laws
(Revision and Declaration)'Acti, 1973 (Act VIII of 1973), Second Schedule (with effect from 26th March 1971).
6 Penal Code Sec.. 4

(b) B, a European British subject, commits a murder in 13[Rangpur]. He can be tried

and convicted of murdr in anyplace in 8 [Bangladesh] in which he may be found.
(c) C, a foreigner, who is in the service of the 14[Bangladesh] Government, commits
a murder in [Khulna]. He can he tried and convicted of murder at any place in
9[Bangladesh] in which he may be found.
(d) D, a British subject living in 15[Khulna],. instigates E to commit, a murder in
16[Chittagong], D is guilty of abetting murder.]
C ases and Materials: Synopsis
1. General scope of the section. 5. Offence committed on High Seas.
2. Territorial waters, economic or maritime 6. Piracy.
zones—discussed. 7. This section read with section 188 Cr.P.ç
3. Fixation of territorial waters requires expert 8. Practice under the section
knowledge. (1) Evidence
4. Offence committed outside Bangladesh. (2) Charge
1. General scopeof the section.—This section shows the extent to which the Court now applies
to
offences committed outside or inside Bangladesh. Where an offence has been committed beyond the
limits of Bangladesh but the offender is found within its limits two contingencies arise
(a) The offender may be given up for trial in the country where the offence was committed
(extradition).
(b) The offender may be tried in Bangladesh (extraterritorial or ex-territorial jurisdiction).
2. Territorial waters, economic or maritime zones—discussed.—In Vichien Chaperon and
another V s. Bangladesh represented by the Secretary, Ministry of Finance and ors., reported in 34
DLR 315, it is stated that the seizure report and the Government do not say whether the 16 miles west
of Cox's Bazar is covered by the coast line of Bangladesh 'Presumption is, seizure took plaé outside
the territorial waters of Bangladesh. Whether the seizure has been within the contiguous zone of
Bangladesh :Seizure took place within the contiguous zone as provided in section 4(1) of the
Territorial Waters and Maritime Zones Act 26 of 1974. Under section 4(2) the Government may
provide for punishment for contravention of any customs law in contiguous zone. It is not established
that any punishment has been prescribed by the Government. Therefore seizure of the trawler is not
lawful. People of Bangladesh can fish in economic zone in ordinary boats. No punishment has been
prescribed by the Government for violation of the right of Bangladesh in economic zone. Sovereignty of
Bangladesh does not extend to the economic zone. Punishment not provided for violation of the
Republic's right of such economic zone. 16 miles west of Cox's Bazar from 12 miles beyond is
territorial waters of Bangladesh.
3. Fixation of territorial waters requires expert knowledge.—In Bangladesh Vs. Somboon
A savahcim, reported in 32 DLR (A D) 194, it is stated that Government issued notification defining
territorial waters and economic zone of Bangladesh and it is not Court's function to decide what should

13. The word "Rangpur" was substituted for the word 'Kashmir" by Act VIII of 1973, s. 3 & 2nd Sch.
14: The word "Bangladesh" was substituted for the words "West Pakistan", ibid.
15. The word "Khulna" was substituted for the word "Junagadh". ibid.
16. The word "Chittagong" was substituted for the word "Lahore" ibid.
Sec. 4 Introduction 7
be the limits of Bangladesh's territorial waters—Fixing of baseline for determination of the territorial
waters is a technical matter requiring expert knowledge.
4. Offence committed outside Bangladesh.—In MG Towab A ir Vice Marshal (Rerd) Vs. The
State, reported in 34 DLR 390, it is stated that Court in Bangladesh has, jurisdiction to try the
accused. Mere fact that the accused when he committed the alleged offence was Deputy Chief Martial
Law Administrator will not exempt him from prosecution under sub-paras (2) and (3) of Para 3A of the
.4th Schedule of the Constitution. Resort to section 561A CrPC not permissible when the Court has
before it FIR and the chargesheet.
5. Offences committed on High Seas.—The jurisdiction to try offences committed on the
High Seas is called the admiralty jurisdiction. It is founded on the principle that a ship on 'the High
Seas is a floating islanq belonging to the nation whose flag she is flying. It extends over all
Bangladeshi vessels not only when they are sailing on the High Seas but also when they are in the
rivers of a foreign territory at a place below bridges, where the tide ebbs and flows and where great
ships go. It is clear that Bangladeshi ship on the 'High Seas is subject to the laws of Bangladesh. In -'
order to assume jurisdiction it is sufficient to show that the ship sailed under the Bangladesh flag and
the owner is Bangladeshi or Bangladesh Government. The jurisdiction to try such offences committed
on the High Seas has been 'vested on all Courts to try offenders wherever they are found. The procedure
to be followed in cases where offences are committed on the High seas is the ordinary criminal
procedure (Gunning (1894) 21 Cal 782). A Court, of criminal justice in Bangladesh dealing with a
Bangladeshi citizen for an offence alleged to have been committed on the High Seas is bound to apply
the provisions of the Penal Code to the act or acts alleged against him. The phrase "within
Bangladesh" towards the end of section 2 cannot be read with the phrase "every person". The plain
meaning of the words "every person" is that it comprehends all persons without limitation and
irrespective of nationality, allegiance, rank, status, caste, colour or creed (PLD 1958 SC 115 (India)).
In this connection it is to be noted that ignorance of law by a foreigner may be no legal defence but it
is a matter to be taken into consideration in the matter of mitigation of punishment (A IR 1953
Punjab 227).
6. Piracy.—Every one commits piracy by the law of nations who, without legal authority from
any State and without any colour of right, (a) seizes or attempts to seize any ship on the high seas
within the jurisdiction of the Admiralty by violence or by putting those in possession of such ship in
fear ; or (b) attacks such ships and takes and carries away any of the goods thereon by violence or
by putting those in possession of such ship in fear or (c) attacks or attempts to attack such ship
with intent to take and carry away any of the goods thereon by violence or by putting those in
possession of such ship in fear; or (d) attacks such ship and offers violence to anyone on board thereof
or attacks or attempts to attack such ship with intent to offer violence as aforesaid. A person is guilty of
piracy who, being peaceably upon any such ship, seizes or attempts to seize her by violence or by
putting those in possession of such ship in fear or takes and carries away or attempts to take and carry
away any of the goods thereon by violence to those in possession of such ship or by putting them in
fear. ('Stephen Dig. Crim. Law, 9th edn. 101). Actual robbery is not an essential element of the crime,
of piracy. A frustrated attempt to commit a piratical robbery is equally piracy ((1934) A C 586). If the
subjects of the same State commit robbery upon each other, upon the high seas, it is piracy. It the
subjects of different States commit robbery upon each other, upon the high seas, if their respective State.
are in amity, it is piracy ; if at enmity, it is not; for it is general rule, that enemies can never commit
piracy on each other, their depredations being deemed mere acts of hostility. (4 Coke 154 vide
A rchbold 32nd edn. 635).
8 Penal Code Sec. 5

7. This section read with section 188, Cr.P.C.—(1) Section 188, Criminal P.C. provides that
in such cases, the offender may be dealt with at any place at which he may be found as if the offence had
been committed at such place. AIR 1968 Cal 220.
(2) Proviso to S. 188 of the Criminal P.C. only relates to offences committed in "territory".
Offences committed on the high seas beyond the territorial waters of any country will not come within
the purview of the proviso and in regard to such offences, therefore, the requirement as to the sanction of
the Government will not apply (1911) 12 CrLJ 198.('FB).
(3) Section 188 of the Criminal P.C. applies, like this section, only to offences committed outside
Bangladesh. If the offence charged is one committed in Bangladesh itself, neither of the sections will
apply. A IR 1968 Cal 220 (DB).
8. Practice under the section.—(/) Evidehce.— Prove-
(i) that the accused has committed acts which amount to robbery (sec. 390) or to frustrate
attempt to commit it,
(ii) that such acts have been committed within the jurisdiction of admiralty.
(2) Charge.— When a person is tried before a Court which would not havç jurisdiction but for
special circumstances, the Court should specify in the charge those circumstances.
The charge should run thus
I (name and office of Magistrate) hereby charge you as follows :-
That you, being a citizen of Bangladesh [or that you being on (name ship) or (name aircraft).
registered in Bangladesh, on or about the—day of,—at----, without and beyond Bangladesh, did—and
thereby committed an offence punishable under s. 4 and s... of the Penal Code, and within my
cognizance (or the cognizance of the Court of Session). .
And I hereby direct that you be tried [by the said Court (in cases tried by Magistrate Omit these
words)] on the said charge.
Or if on land That you a citizen of India. (foreign National) on or
about.............at...................within Bangladesh (outside the Indian Union) committed an offence
(describe the offence) punishable undersection ... . ........ of the Code.

Section '5
5. Certain laws not to be affected by this Act.—Nothing in this Act is intended
to repeal, vary, suspend, or affect 17[* * *] any of the provisions of any Act for
punishing mutiny and desertion of officers, 18 [soldiers, sailors or airmen] in the service.
of 19[the 20[Republic]], or of any special or local law.

17. The words "any of the provisions of the Statute 3 and 4. William IV, Chapter 85, or of any Act of Parliament of the
United Kingdom passed after that Statute in any way affecting the East India Company or Pakistan or the inhabitants
thereof; or" were omitted by Act VIII of 1973, 2nd Sch. (with effect from 26th March 1971).
18. The original words "and soldiers" have successively been amended by the Repealing and Amending Act, 1927 (Act X of •.
1927), s. 2 and Sch. I, and Amending Act, 1934 (Act XXXV of 1934), s. 2 and Sch. to read as above.
19, The original words "Her majestyor of the East India Company" have successively been amended by the Repealing Act.
1870 (Act XIV of 1870). and A.O. 1961, Art. 2 and Sch. (with effect from the 23rd March 1956) to read as "the state".
20. The word "Republic" was substituted for the word "State" by Act VIII of 1973, 2nd Sch. (w.e.f. 26 March 1971).
Sec. 5. Introduction 9

Cases Synopsis
I. 'Special or local law. 3. A ccusation under special law, but conviction
2. A person cannot be sentenced under both the under the Penal Code, illegal.
A C and a special or local law for the same 4. Offences for contempt of court. - -.
offence.
1. 'Special or local law'.—Although an offence is expressly made punishable by a special or local
law, yet it will be punishable under the Penal Code, if the facts come within the definitions of the
Code. (11953,) CrLf 932). The distinction between a statute creating a new offence with a penalty and a
statute enlarging the ambit of an existing offence by including new acts within it with a particular
penalty is well settled. In the former case the new offence is punishable by the new patenity, only, in the
latter, it is punishable also by all such penalties as were applicable before the Act to the Offence in
which it is included. ((1929) 31 BomLR 1151). The principle is that where, a new offence is created and
the particular manner in which proceedings should be taken is laid down, the proceedings cannot be
taken in any other way. (Ibid). No prosecution under the Code is admissible, if it appears upon the
whole frame of the special Act that it was intended, to be complete in itself' and to be enforced only by
the penalties created by it ((1894) 22 Cal 131), but in the absence of anything in .the special Act to
exclude the operation of the Code, an intention on the part of the Legislature to exclude it should not
be inferred. (1918 A IR (M) 460). "The principle that where a particular set of acts or omissions
constitute an offence under the general law and also under a special law the prosecution should be under"
the special law, is confined to cases where the offences are coincident or practically so. ('(1931) 53 All
642). Where the offence falls strictly within the provisions of a section of a special Act and does not go
beyond it, it would be more appropriate to prosecute the offender and convict him under that special
Act, rather than fall back upon a more general law which prescribes a heavier penalty. (1932, AIR (A)
69). Where there is a conflict between a special Act be and a general Act the provisions of the special
Act prevail. (1934 A IR (B) 162). However, a persOn cannot be punished under both the Penal Code
and a special law for the same offence (1918 A IR (P) 649), and it is ordinarily desirable' that the
sentence should be passed under the special Act. (1931 A IR (M) 18). For, it is presumed that the
Legislature intends that the special form of punishment is appropriate to special cases. The General,.
Clauses Act provides that "where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of those
enactments, Out shall not be liable to be punished twice for the same offence." Where the accused is I
guilty of a specific offence under the Penal Code he should be convicted under the Code if the
punishment under' the special Act is not adequate. ((1874) PR No. II of 1874). It has been held that a
conviction of theft under s. 379 of the Penal Code in respect of a certain amount of crude opium is no
bar to a subsequent trial and Conviction of the convict under s. 9 of the Opium Act, 1878 ((1926) 48
All 496).- . . . . ...
2. A person cannot be sentenced under both the P.C. and a special or local law for the
'same offence,—"Where an act or omission constitutes an offence under two or more enactments, then'
the offender shall be liable to be prosecuted and punished under either or any of those enactments but
shall not be liable to be punished twice for the same offence.".(Section 26 of the General Clauses Act.X
of 1897), . . . .. .
3. Accusation under special law, but conviction under the P.C. illegal.—In District Council,
Kushtia V s. A bdul Gani, reported in 22 DLR 217, it is 'stated that the Magistrate summoned the
10 Penal Code Sec.S

accused under sections 7 and 12 of the EP Pure Food Ordinance. The accused appeared and pleaded
guilty. The Magistrate examined the accused under section 242 CrPC and convicted and sentenced the
accused under section 273 PC instead of convicting the accused under the aforesaid special law. Held.'
Offence covered by the special , law should have been dealt . ith under the special law. The order of
conviction and sentence under section 273 PC is, therefore, contrary to law.
4. Offences for contempt of court.—(l) Contempt of Courts Act. may very well be regarded as a
"special" law dealing with a "special kind" of offences and hence, as being covered by the definition of
"special law" and therefore as constituting a "special law" within the meaning of this section. AIR
1954 SC 186.
(2) Where an act or omission constitutes an offence both under the Penal Code and under the
Contempt of Courts Act, it may be dealt with under either Act. AIR 1955 Orissa 36.
(3) This section only means that where under the Penal Code there is already a provision for
punishing an offence as a contempt of Court (S. 288), the Contempt of Courts Act shall have no
application. It does not mean' that even in 'other cases, i.e. in cases where an act is not dealt with under
the Penal Code as a contempt of Court, (but still constitutes an offence under the Code), it cannot be
dealt with as a contempt.of Court under the Contempt of Courts Act. In such cases, under Section 26
of the General Clauses Act, the offence can be dealt with both under the Penal Code and the Contempt
of Courts Act. AIR 1933 Pat 204.
(4) Where the act of the accused constitutes a contempt of a subordinate Court but is not an offence
, under the Penal Code, the High Court can deal with it under the Contempt of Courts Act and the bar
under the Act will not apply. AIR 1959 SC 102.
(5) Besides the Contempt of Courts Act, the Supreme Court is the Court of Record and have all
the powers of such Court including the power to' punish contcmpts of themselves. AIR 1957 Hyd 17.
(6) This power is inherent in Courts of Record and the Constitution merely expressly recognizes
the existence of such power. A IR 1926 Lah 1.
(7) The provisions of the Constitution being Supreme, their operation does not depend on the
saving clause in this section. AIR 1954 SC 186. .
CHAPTER II
General Explanations

Chapter Introduction.— This chapter is for the most part an elaborate Interpretation
clause. It is a key to the interpretation of the whole Code. The leading terms are here
defined and explained, and the meanings thus announced, are steadily adhered to
throughout the subsequent chapters. The object of the chapter is to prevent captious
Judges from wilfully misunderstanding the Code, and cunning criminals from evading its
provisions. It does not provide explanations for all cases indiscriminately, but only for
those cases where difficulty may arise, when it will be necessary to refer to this chapter to
see what the meaning of the Code is. (Proceedings of Council, 1860, P. 1261).

Section 6
6. Definitions in the Code to be understood subject to exceptions.—
Throughout this Code every definition of an offence, every penal provision, and every
illustration of every such definition or penal provision, shall be understood subject to
the exceptions contained in the Chapter entitled "General Exceptions", though those
exceptions are not repeated in such definition, penal provision, or illustration.
Illustrations
(a) The sections, in this Code, which contain definitions of offences, do not express
that a. child under seven[C] years of age cannot commit such offences; but the definitions
are to be understood subject to the general exception which provides that "nothing shall
be an offence which is done by a child under sevenIsid] years of age
(b) A , a police officer, without warrant, apprehends Z who has committed murder.
Here A is not guilty of the offence of wrongful confinement ; for he was bound by law to
apprehend Z, and therefore the case falls within the general exception which provides
that "nothing is an offence which is done by a person wh is bound by law to do it";
Cases
1. Definitions, penal provisions and illustrations thereof to be subject to General
Exceptions.—(1) The allegation that an accused person has committed an offence under the Penal
Code implies not only that he has committed an act or omission which falls under a certain definition
of an offence but also that the case does not fall within any of the general exceptions laid down in
Chapter IV of the Code. AIR 1941 A ll 402. . .

Sic. Read "nine" in place of "seven".

Penal Code Sec. 7

(2) Neither Section 6 of the Penal Code nor section 211(5) of the Criminal P.C.. overrides Section
105 of the Evidence Act, under which the burden of proof is on the accused to prove that his case
comes within one of the general exceptions in Chapter IV of the Penal Code. AIR 1941 All 402.
(3) Section 6 carves out or stands in the nature of a proviso to s. 106 of the Evidence Act and
imposes an obligation on the Court as well to consider the cases of exceptions on its own in so far as it
relates, burden of proving legal insanity as the essential element of "special knowledge" envisaged in
S. 106 of Evidence Act is always impaired due to mental derangement. All offences under the Penal
Code are subject to or governed by S. 6. S. 6 is an extraordinary provision which obligates the Court
to consider whether a case is covered by an exception or not. 1981 Cr1LJ 1205 (DB) (Gauhati).
(4) It is sufficient for the accused to make out a prhna facie case that he is entitled to the benefit of
one of the exceptions to criminal liability including the general exceptions in Chapter iv; If he makes
out.a prima facie case to this effect then the burden of proof is shifted to the prosecution which has still
to discharge the major onus of proving the guilt of the accused beyond reasonable doubt. AIR '1951
Kutch i•1.
(5) The accused is not bound to adduce any "evidence" to show that he is entitled to the benefit of
any of the general exceptions. He can always prove that he is entitled to the benefit of one of the general
exceptions from the facts proved or admitted or from the evidence led by the prosecution itself. 1977
CriLJ (NOC) 245 (Gauhati).
(6) The absence of a plea by the accused that his case is covered by one of the "General
Exceptions" in the Penal Code is no excuse for the court not considering if the accused is entitled to
the benefit of any of the exceptions that may apply to him. 1977 CriLJ (NOC) 245 (Gauhati).

Section 7
• 7. Sense of expression once explained—Every expression—which is explained
in any part of this Code is used in every part of this Code, in conformity with the
explanation. .
Cases : Synopsis
1. Inclusion or mention of one is exclusion of another.
2. General exceptions and general explanations.
.1. Inclusion or mention of , one is exclusion of another.—(1) This section is based on the
maxim's jnc/usjo unius est exclussjo alterius (=the inclusion of one is the exclusion of another) or
expressio unius est exclusio alterius ( =the mention of one is the exclusion of another). In 3 M. H. C.
Appendix H Holloway J. referring to this section said 'to say that every expression shall have a
particular meaning everywhere under the Code is to say that it shall have no other meaning anywhere
(in the Code). The point, therefore, is to ascertain the meaning of that explanation and if the words
taken grammatically have a definite, certain and unequivocal meaning and if they constitute a perfectly
complete expression susceptible grammatically of that one unequivocal meaning and of that only, then,
however, absurd and 'pernicious the consequences, that meaning is to be followed. If, however, the -.
qression does not include the complete thought of the Legislature or if the words are equally
tiscepible of several meanings we are to seek in other parts of the same statute or in other statutes in
pan m ria with this, the one of several possible meanings which ought to be put upon the words".
(1916) 4LC'al 477 (FB).
Sec. 8-9 General Explanations i3

(2) It is an ordinary canon of construction that a Word or expression which occurs more than once
in the same Act, must be given the same meaning throughout the Act, unless some definition in the
Act or the context shows that the Legislature used the word in different senses. AIR 1931 Nag 177.
(3) The Explanation given in this Chapter of various expressions will be applicable to the
interpretation of the expressions in whatever section of the Code they may occur. AIR 1967 SC 63.
(4) The usual qualification found in definition clauses in statutes "unless there is anything
repugnant in the subject or context" is not found in this section. But in spite Of this, such a
qualification must be implied as forming part of it inasmuch as little weight is to be attributed to an
omission in the definition clause, of this "usual" qualification. 1974 J & KLR 101 (FB).
(5) The definitioi of "election" given in section 21, Explanation 3, would, by its own force,
apply only in deciding whether a person is a public servant or not, yet by virtue of section 7, it is
applicable to the whole of Chapter dealing with election offences. (Forty-second Report, Indian Law
Commission (1971), P. 10).
2. General exceptions and general explanations.—By virtue of Section 6, the general
exceptions in Chapter IV are part of every section in the Code. Similarly, by virtue of Section 7, the
general explanations contained in Chapter ii are to govern the interpretation of every part of the Code.

Section 8
8. Gender.—The pronoun "he" and its derivatives are used of any person,
whether male or female.
Cases
I. General interpretation.—(l) There is similar provision in section 13 of the General Clauses
Act, 1897, which provides that in all Acts and Regulations, unless there is anything repugnant in the
subject or context, words importing the masculine, gender shall be taken to include females. 1983 C,L.J
412. (Ker).
(2) "He" includes a "female". AIR 1953 MB 147.
(3) The pronoun "he" in the expression "or knowing it to be likely, that he will thereby outrage
her modesty" in s. 354 must be understood, according to the present section, as referring to "any
person, whether male of female'.'. AIR 1967 SC 63.
(4) S. 8 states that the pronoun 'he' and its derivatives are used of any person whether male or
female. The words used in S. 125 Criminal P.C. regarding orders for maintenance of wives, children
and parents being 'any person', "his" and "such person" the daughter would also be bound to
maintain her father, if he has no means of livelihood. 1983 CrL14I2.

Section 9
9. Number.—Unress the contrary appears from the context, words importing the
singular number include the plural number, and words importing the plural number
include the singular number. .
Cases .
1. General interpretation.—(1) This section is similar to section 13(2) of the General Clauses
Act, 1897.
14 Penal Code Sec. 10-11

(2) Most of the sections in the Penal Code are worded in the singular number even when the
offence concerned may require more than one person to commit it. (1966) 68 BomLR 286
(3) Under S. 391 the offence of dacoity requires at least five persons as perpetrators of the offence.
But still S. 395 which prescribes the punishment for dacoity is expressed in the singular number,
(1966) 68 BornLR 286,
(4) Section 494 which deals with the offence of bigamy is expressed in the singular but
nevertheless it will apply to a case where both the parties contracting a second marriage have a previous
spouse living and both the parties will be guilty under the section. (1966) 68 BomLR. 286,

Section 10
10. "Man"; "Woman".—The word "man" denotes a male human being of any
age; the word "woman" denotes a female human being of any age.
Cases
1. General intrpretation.—(1) By force of the explanation in S. 10 read with S. 7 the word
"worman" in S. 354 would include any female person irrespective of her age. Thus even a female child
of 7 and a half months may be the victim of an assault with the intention of outraging her modesty
within the meaning of S. 354. A IR 1967 SC 63.
(2) A girl of six years was a "woman" for the purpose of S. 354. (1912) 13 CrLJ 858 (DB) (Born).
(3) For the purpose of S. 366 (kidnapping or abducting a "woman" with intent to compel her to
marry any person against her will) the words "woman" will include a minor female. 1878 Pun Re
(Cri) No. 8, P. 19 (DB).

Section 11
11. "Person".—The word "person" includes any Company or Association, or
body of persons, whether incorporated or not.
Cases : Synopsis
1. Scope. 4. Child in womb as a person.

2. Corporation or company as a person. 5. Club as a person. -

3. Idol as a person. 6. Government as a person.

1. Scope.—(]) The definition in this section, as that in the General Clauses Act, uses the word
"includes" which, it is well known, indicates that the definition is not intended to be exhaustive. A IR
1966 All 590.
(2) The use of the word "includes" also indicates that the term defined retains its ordinary meaning
but is enlarged so as to include matters which the ordinary meaning would not include. A IR 1966 All
590.
2. Corporation or Company as a person..—(1) The definition of "person" in this section, as the
definition in the General Clauses Act, includes any company or association or body of persons whether
incorporated or not. Hence, the definition will clearly include an incorporated Company or
Corporation, although such company is only a juridical or legal person and not a natural person. AIR
1970 Raj 145.
Sec. I General Explanations 15

(2) The definition in this section which purports to include a company within the meaning of the
word "person" would not necessarily make a company indictable in the particular circumstances of a
case. (1975) 2 A nd/i W R 46
(3) A company would not be indictable for offences which can be committed by only a human
individual or for offences which must be punished with imprisonment, or for which mens rca is
essential. AIR 1964 Born 195.
(4) The offence of cheating under S. 420 is one for which a sentence of imprisonment is obligatory
and hence a company cannot be prosecuted for such an offence. AIR 1954 Born 195.
(5) The question whether a corporate body should or should not be liable for criminal action
resulting from the acts of some individuals must depend on the nature of the offence disclosed by the
allegations in the complaint or in the charge-sheet, the relative position of the officer or agent vis-a-vis
the corporate body and the other relevant facts and circumstances which could show that the corporate
body as such meant or intended to commit that act. AIR 1964 Born 195.
(6) A body corporate or a firm may be prosecuted for an offence under Ss. 480 and 482. AIR 1929
Rang 322.
(7) Just as a company can be prosecuted under certain circumstances for a criminal offence, so also
it can be treated as a "person" against whom an offence is committed within the meaning of this Code.
Thus, .a company may be "defamed" within the meaning of S. 499. AIR 1952 All 114.
(8)A company may be a."person'.' within the meaning of S. 415 (cheating) and may be "cheated"
with in the meaning of that section. AIR 1924 Cal .495.
1 Idol as a person.—.(l) When a person makes a document with the intention of causing it-to be
believed that it was made under the authority of a juristic person like an idol, he commits forgery. AIR
1944 Mad 77. . .
4. Child in womb as a person.—(1) A "person" includes a child, whether born or unborn. In
other words, even if a child is unborn and in the womb of its mother it is capable of being spoken of as
a "person" if its body is sufficiently developed to make it possible to call it a "child". Hence the term
"person" in S. 304A, Penal Code, includes an unborn child in the mother's womb after the seventh
month of pregnancy. AIR 1966 All 590.
5. Club as a person..—(1) The definition of "person" in this section includes "inter alia" a body
of persons whether incorporated or not. Hence a club, even if it is not a registered body, would be
covered by the expression "person" for the purpose of the Code subject to the context in which the
expression occurs. The members of the executive committee of a club can be held guilty of an offence
under S. 294A (keeping lottery office). AIR 1914 Low Bur 23.
6. Government as a person.—.-(1) The definition in S. 11 of the word "person" is sufficiently
wide to include Government as representing the whole community so that the removal of immovable
property with a dishonest intention from the possession of a public servant having custody of the
property on behalf of the Government would amount to removal of the property out of the possession of
a "person" within the meaning of S. 378 and would be "theft" under that section. (1877) ILR I Born
610 (DB).
(2) A prosecution for an offence will lie against the Government in certain circumstances provided
that the applicability of the law, alleged to be infringed, to the Government is not excluded impliedly.
AIR 1967 SC 997.
16 Penal Code Sec 1,2-1

Section 12
12. "Public".—The word "public" includes any class of the public or any
community.
Cases
1. General interpretation.--(I) By virtue of S. 4(2) of the Criminal P.C., the definition of the
word "public" in this section is also applicable to the Criminal Procedure Code. But that definition
merely says that it includes any class of the public or any community but is otherwise inconclusive.
(1949) 51 PunLR 176.
(2) A class or community residing in a particular locality may come within the term "public". In
determining the existence of a public right within the meaning of S. 133 of the Criminal P. C., the
number of persons claiming the right and the nature of the right itself will no doubt be the criteria. But
the best criterion will be to see whether the right is vested in such a large number of persons as to
make them unascertainable and to make them a community or a class. AIR 1939 Pat 460.

Section 13
13. "Queen".— Omitted by the Central Laws (A daptation) Order, 1 .961 (P. 0. No.
1 of 1961 = A . 0., 1961).

Section 14
1114. "Servant of the State".—The words "servant of the State" denote all
officers or servants continued, appointed or employed in 2 [Bangladesh] by or under
the authority of the 3 .
.

Cases
I. General interpretation.-.--(1) The words "servant of the State" in this section will include
employees of the Government. AIR 1938 Born 419.
(2) A member of Stibordinate Medical Service in charge of a grant-in-aid dispensary is a servant of
the Crown within section 270 of the Govmment of India Act, 1935. AIR 1938 Born 419.
(3) A surveyor employed by the Collector acting in the management of a Government Khas Mahal
t6 make a survey of certain portion of a water-èourse is a servant ofthe Government or a "public
servant" within the meaning of S. 21 of the Penal Code. (1898) ILR 26 Cal 158 (DB).

Section 15
15. "British India".— Repealed by the Government of India (A daptation ofA cis of
Parliament and Indian Laws) Order, 1937 (=A . 0., 193 7).

1. The original section 14 has successively been amended by A.O. 1937, A. 0. 1949, Sch. and A. 0. 1961, Art. 2 and Sch.
(with effect from the 23rd March 1956) and Act VIII of 1973 (with effect from 26th March 1971), to read as above.
2. The word "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973 (w.e.f. 26 March 1971).
. The word "Government" was substituted for the words "Central Government or any Provincial Government", ibid.
Sec. 1619 General Explanations 17

Section 16
16. "Government of India".— Repealed by the Government of India (A daptation
ofA cts of Parliament and Indian Laws) Order, 1937 (=A . 0., 1937).

Section 17
17. "Government".—The word "Government" denotes the person or persons
authorized by law to administer executive Government in 2[Bangiadesh], or in any
part thereof
Cases
1. General interpretation.—(1) Government means the system of Government and not the
persons holding the offices of President or Governor. AIR 1959 All 101 (FB).
(2) "Government" denotes more than Governor or his advisers. It denotes person or persons
authorised by law to administer executive Govtment. AIR 1947 Nag 1.
(3) Ministers of Provinces are not "officers subordinate" to Governor and therefore not
"Government" although in popular language they may be referred to as such. AIR 1939 Cal 529.
(4) Collector acting in management of a Khas Mahal is "Government" within meaning of Section
17. (1899) 26 Cal 158 (DB).

Section 18
18. "Presidency".— Repealed by the Government of India (A daptation of A cts of
Parliament and Indian Laws) Order, 1937 (=A . 0., 1937).

Section 19
19. "Judge".—The word "judge" denotes not only every person who is officially
designated as a judge, but also every person,—
who is empowered bylaw to give, in any legal proceeding, civil or criminal, a
definitive judgment, or a judgment which, if not appealed against, would be
definitive, or a judgment which, if confirmed by some other authority, would be
definitive, or
who is one of a body of persons, which body of persons is empowered by law
to give such a judgment.
Illustrations
(a) A Collector exercising jurisdiction in a suit under A ct X of 1859 is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power
to sentence to fine or imprisonment with or without appeal is a Judge.
•* * * * *1

do 4. Illustration (c) was repealed by the Federal Laws (Revision and Declaration) Act, 1951 (Act.XXVI of 1951), S. 3 and
2nd Sch.
I8 Penal Code Sec. 19

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

only to commit for trial to another Court is not a Judge.
Cases : Synopsis
I. Scope and applicability S. Panchayat or village court.
2. Power to give definitive judgment in legal 6. Magistrates.
proceedings. 7. A rbitrators.
3, Persons held to be judges. 8. Legal proceedings.
4. Persons held not to be judges.
1. Scope and applicability.—(1) According to definition the term "Judge" includes not only a
person who is officially designated as a Judge but also every person who is empowered by law to give
in any legal proceeding, civil or criminal, definitive judgment. By the expression "definitive
judgment" is meant a judgment which, so far as the. Court pronouncing it is concerned, is final. A IR
1938 Born 489.
(2) The Criminal P.C. does not contain adefmition of the word "Judge" but by force of S. 4(2) of
that Code, even in the absence of the words "within the meaning of S. 19 of the Penal Code" in S. 197
of the Code, the word"Judge" in that section would only mean a "Judge" as defined by S. 19 of the
Penal Code., A IR 1926 Pat 214.
(3) The definition of "Judge" in this section is for a special purpose, as for, instance for the
purpose of S. 197 of the Criminal P.C. and has no bearing on the question whether a particular office
belongs to the revenue department or the judicial department. AIR 1956 Mad 613.
(4) Under . 20, the expression "Court of Justice" has been defined as denoting a "Judge", who is
empowered to act judicially alone or a member of body of Judges. The word "Judge" in S. 20 is also
to be understood in the sense defined in S. 19. Similarly, S. 21 (definition of public servant). Third,
refers to a "judge" and in this section also the word "iudge" is to be understood in the sense defined in
S. 19. A IR 1952 A ll 306.
(5) "Judge" and "Court of Justice" are not synonymous terms. A person may be a Judge within
the meaning of this section and S. 107 of the Criminal P.C. so as to require sanction for his
prosecution. AIR 1929 Mad 175.
(6) A Judge may not be a "Court of justice" within S. 20, as S. 20 requires a judicial proceeding
and a legal proceeding is not necessarily a judicial proceeding. AIR 1956 SC 158.
(7) The Evidence Act, S. 3, and the Criminal P.C., S. 2(i), make the power of taking evidence the
test of a "Court" and "judicial proceeding" respectively. But this test is not conclusive for the purpose
of this section. AIR. 1954 SC 375 .
2. Power to give definitive judgment in legal proceeding.— (1) The term "Judge" as defined in
the section includes not only a person officially designated as a Judge but also every person who is
'empowered by law to give, in any legal proceeding, a definitive judgment. A definitive judgment
means a judgment which, so far as the Court, delivering it is concerned, is conclusive. (1907) 5 CrL.J
255 (Born).
(2) The power to give judgment must be one exercised in a legal proceeding. AIR 1929 Mad 175.
(3) A Village Magistrate exercising jurisdiction under a certain law and trying an offender is a
"Judge" within the meaning of the section. (1900) ILR 23 Mad 540 (DB).
(4) A Village Magistrate exercising jurisdiction under certain law while acting in the prevention of
an offence would not be a "Judge". (1900) ILR 23 Mad 540.
Sec. 20 General Explanations 19

• (5) Magistrate who has no seisin of a criminal case is not a Judge within this section. A IR 1926
Pat 214. .
(6) A merely fact-finding body or authority, like a Commissioner 'appointed under the Public
Servants (Inquiries) Act (37 of 1850) would not be a "Judge" or a "Cout". 'AIR 1956 SC 66.
t7)AReftirning..Officer scrutinising the election papers of the candidates contesting the, election of
the-managing committee of a co-operative society is not a "Judge" as defined in this section. AIR 1970
Punj2J.
(8) A Village Police giving judgments of conviction or acquittal in cases under the Village Police
Act is a "Judge". AIR 1938 Born 489.
(9) An order of discharge under S. 253 of the Criminal P.C. is not a "judgment" within Ss. 366,
367 and 368-of that Code. (1909) 9 CriU 80 (DB) (Mac).
(10) An order of dismissal of a complaint under S. 203 of the Criminal P.C. would not be a
definitive judgment as it would not be conclusive and would not bar a fresh criminal proceeding with
regard to the same accused and with regard to the same matter. (1906) 3 CrLJ 274 (FB) (Mad).
''tt) Dëis.io hich4eai'üóW tI 4üCsffon hChéir a' order amounts, to a judgment for the
purpose of the Criminal P.C. are only of academic interest so far as this section is concerned, inasmuch
as, even though an order will not amount to a "definitive judgment" still it may be passed at a stage of
the lçgLproceeding-in-whieh-th.-Magis.trate can pass a definitive judgment. AIR 1914 Lãh 561.
3. Persons held to be judges.— Village police deciding cases under the Village Police Act
(A IR 1938 Born 489) ; Member of Panchyati Adalat ('Village Court) (1952 CrLf 621) ; Member of
Panchayat (37 CrLf 294) ; Magistrate exercising jurisdiction in a suit or proceeding. (1955) CrLJ
1221 ; AIR 1937 Pat 160; AIR 1956 HI! 134).
4. Persons held not to be judges.—Magistrate swearing affidavits (1955) CrLf 1221 ; President
of a Union Board (AIR 1929 Mad 176).
5. Panchayat or Village Court.—(l) According to Illustration (c) to the section, a member of a
panchayat which has power to try and determine suits is a "Judge". 1962 (2) CrLJ 408 (All).
(2) Various Acts provide for panchayat courts and the members of such Courts will be "Judges"
when sitting for deciding cases. 1962(2) CrL.J 408 (A ll) ; A IR 1959Raj 12.
(3) A member of a Panchayat court, when he is not sitting on the Bench for deciding cases will not
be. a "Judge". 1959 Raj LW 51; A IR 1956 A ll 134.. ,
6. Magistrates.—(1) A Magistrate, before whom no judicial proceeding is pending at the time, is
not a "Judge" before whom an affidavit can be sworn.. AIR 1954 HimPra 57.
7. Arbitrators.—(1) An arbitrator is not a "Judge" under this section. AIR 1940 Posh 41.
8. Legal proceedings.—(1) The expression "legal proceeding" in Section 19 means a proceeding
regulated or prescribed by law in which a judicial decision may or must be given. A judicial
proceeding is not exactly equivalent to a legal proceeding. The President of a Union Board accepting Or
rejecting a nomination paper after scrutiny gives a definitive judgment in a legal proceeding. AIR 1929
Mad 175.

Section. 20
20. "Court of Justice".—The words "Court of Justice" denote a 'Judge wh6 is
empowered by law to act judicially alone, or .a body of Judges which is empowered
20 Penal Code Sec. 20

by law to act judicially as a body, when such Judge or body of Judges is acting
judicially.
* * * * * *1
Cases
I. General interpretation.--(I) A Union Chairman accepting or rejecting a nomination paper
gives a "definitive judgment" in a legal proceeding and hence, is a "Judge" within the meaning of S.
19, P.C. and also within S. 197 of the Criminal Procedure Code, so as to require the sanction of the
Government under the tatter section, for his prosecution for a criminal offence committed by him,
while acting in the discharge of his public duties. 1929 Mad 175.
(2) A Returning Officer deciding on the validity of a nomination paper under the Representation of
the People Act, (who is in a comparable position with the Union Chairman, in the abovementioned
example) is not a"Court" within the meaning of S. 195 of the Criminal P.C. AIR 1956 SC 153.
(3) A quasi-judicial authority will not be a "Court of Justice" within the meaning of this section.
AIR 1956 SC 153. .
(4) The Sea Customs Authority under the Sea Customs Act is not a judicial Tribunal and the
adjudging of confiscation, increased rate of duty or penalty under that Act, does not constitute judgment
or order of Court or judicial Tribunal necessary for supporting a plea of double jeopardy. AIR 1953 SC
325. .
(5) A merely administrative body will not be a "Court of Justice" within the meaning of this
section. (1892) 1 QB 431.
(6) A mere fact-finding authority as, for instance, a Commission of Inquiry under the Public
Servants (Inquiries) Act (37 of 1850), is not a "Court of Justice", within the meaning of this section or
within the meaning of the Contempt of Courts Act. AIR 1956 SC 66.
(7) The expression "act judicially" as used in S. 20 does not connote only the legal power of
taking evidence. Hence, the existence of such power will not be conclusive on the question whether a
particular authority is a "Court of Justice". (1883) ILR 12 Born 36 (DB).
(8) The Commissioner appointed under the Public Servants (Inquiries) Act, 1850 is not a "Court
of Justice" within this section. AIR 1954 SC 375.
(9) 'Judicial act' is one done by competent authority upon consideration of facts and
circumstances, and imposing liability or affecting the rights of others. (1902) 2 Jr R 373.
• (10) The expression "Court of Justice" occurs in Section 466 of the Code and should be
understood in the sense defined in this section. (1912) 13 CrLf 588 (All).
(11) The expression 'court' is not defined in the Criminal P.C. and is not restricted to Courts,
Civil, Revenue or Criminal and includes other tribunals also. However, a mere duty to act judicially
either expressly imposed or arising by necessary implication of the nature of the duties required to be
performed does not of itself make a tribunal, judicial or quasi-judicial, a 'Court' , within the meaning of
S. 195, Criminal P.C. The definitions of 'Court' .under S. 3, Evidence Act, or 'Court of Justice'
under S. 20, Penal Code, do not apply to the expression 'Court' as used in the Criminal P.C. AIR
1 . 969 SC 724.

5. The original Illustration which was previously substituted, ibid. S. 4 and 3rd Sch. has been ommitted by A.Q. 1961, Art, 2
and Sch. (with effect from the 23rd Mach 1956). .
Sec. 21 General Explanations 21

Section 21
• 21. "Public servant".—The words "public servant" denote a person falling under
any of the descriptions hereinafter following, namely :-
6[*
*
*
*
*
*

Second.— Every Commissioned Officer in the Military, . 7 [Naval or Air] Forces of

2 [Bangladesh] ; 8[* * *
9 [Third.-Every Judge including any person empowered by any law to perform,

whether by himself or as a member of any body of persons, any adjudicatory

function
Fourth.— Every officer of a Court of Justice whose duty 'it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate, or keep
any document, or to take charge or dispose of any property, or to execute any judicial
process, or to administer any oath, or to interpret, or to preserve order in the Court
and every person specially authorized by a Court of Justice to perform any of such
duties;
Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of
Justice or public servant;
Sixth. —Every arbitrator or other person to whom any cause or matter has been
referred for decision or report by any Court of Justice, or by any other competent
public authority;
Seventh. —Every person who holds , any office by virtue of which he is empowered
to place or keep any person in confinement;•
Eighth.— Every officer of '°[the Government] whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to justice, or to
protect the public health, safety or convenience; .
Ninth.— Every officer whose duty it is, as such officer, to take, receive, keep or
expend any property on behalf of '°[the Government], or to make any . survey,
assessment or contract on behalf of '°[the Government], or to execute any revenue-
process, or to investigate, or to report, on any matter affecting the pecuniary interests
of '°[the Government], or to make, authenticate or keep any document relating to the
pecuniary interests of '°[the Government], or to prevent the infraction of any law for
the protection of the pecuniary interests of '°[the Government] II [* * * . *

6. Clause First was omitted by Ord. No. X of 1982, S. 2
7. Subs, by the Repealing and Amending Act, 1927 (Act X of 1927), S. 2 and Sch. I, for "or Naval".
8. The words "while serving under the Government" were omitted by Ord. X of 1982. S. 2.
9. Subs, ibid, for the former clause "Third",
10, The original word "Government" has Successively been amended by A.O., 1937, and A.O., 1961, Art., .2 (with effect
from the 23rd March 1956), to read as above,
II. The comma and certain words were ommited by Ord. No. X of 1982, S. 2.
22 Penal Code Sec. 21

Tenth.— Every. officer whose duty it is, as such officer, to take, receive, keep Or
expend any property, to make any survey or assessment or to levy any rate or tax for
any secular common purpose of any village, town or district, or to make, authenticate,...
or keep any document for the ascertaining of the rights of the people of any village,
town or district ; .,. . . .- .' .•. .. .. -
12 [Ele-en.th.— Every person who holds any office in virtue of which he-is
empowered to prepare, publish, maintain or revise an electoral roll or to conduct an
election or 'part of an. election 13[;} . . .
Illustration
A Municipal Commissioner is a public servant
' 4 [Twelfth.
—Every person—
(a) in the service or pay . of the Government or remunerated by the
Government by fees or commissions for the performance of any .public
duty;
(b) in the service or pay of a local authority or of a corporation, body or
authority established by or under any law or of a firm or company in
which any part of the interest or share capital is held by, or vested in, the
- Government.]
Explanation 1.—Persons falling under any of the above descriptions are public
servants, whether appointed by the Government or not.
Explanation 2.—Wherever the words "public servant", occur, they shall be
understood of every person who is in actual possession, of the situation of a public
servant, whatever legal defect there may be in his right to hold that situation.
15 [Explanation 3.—The word "election" denotes an election for the purpose of
selecting members of any legislative, municipal or other public authority, of whatever
character, the method of selection to which is by, or under, any law prescribed as by
election.] . . ..
Cases : Synopsis
I. , Test to determine whether a person is an (iv)' Clause Sixth
officer of Government. . (v) . Clause Seventh
2. Scope and applicability. (vi) Clause Eighth
3. W ho are and are not public servants:
(vii) Clause Ninth
(1) Generally
(viii)Clause Tenth
(2) Clause-wise
(ix) Clause Eleventh
(i) Clause Third
(ii) Clause Fourth (x) Clause Twelfth (a).
(lii) Clause Fifth (xi) Clause Twelfth (b)

12..' Ins, by the Election Offences and Inquiries Act, 1920 (XXXIX of 1920), section 2.
13.' The semi-colon was subs, for the full-stop at the end in clause Eleventh by Ord. No. X of 1982, S. 2.
14. Added, ibid, after clause Eleventh and before Explanation 1.
15. Ins, by the Election Offences and Inquiries Act, 1920 (XXXIX of 1920), section 2.
Sec. 21 General Explanations 23

(3) Explanation-wise 16. Officer on deputation to a company.

(1) Explanation I 17. Muiawallj whether a public servant.
(ii) Explanation 2 II. Principal of a ôrirate college is not a public
(ill) Explanation 3 servant.
4. Minister— W hether a public servant. 12. Functionaries of a 'banking company whether
5. Railway servants public servants.
6. Apprentice 13. Employee of DESA fa public servant.
7. Officer under suspension 14. Labour under a government contractor
whether a public servant.
8. Officer on leave.
1. Test to determine whether a person is an officer of Government.--(l)-This section does
not define "public servant" but describe it by enumeration. The true test, in order to determine whether
a person is an officer of the Government, is : (I) whether he is in the service or pay of the Government,
and (2) whether he is entrusted with the performance of any public duty. If both these requirements are
satisfied it matters not the least what is the nature of this.office, whether the duties he is performing are
of an exalted character or very humble indeed. 30 DLR (SC) 127.
• (2) The word officer was held to include only persons who had some authority vested in them and
would not include persons like mere .clerks, peons, etc., who had no authority of their own and merely
carried out orders. A IR 1957 SC 13.
2. Scope and applicability.—(1) The mere fact that a person is a Government servant will not
necessarily make him a "public servant". The Court cannot extend the definition of the words "public
servant" beyond the enumerated descriptions. 1978 Cal HCN 765.
(2) Under the Prevention of Corruption Act, the expression "public servant", for the purpose of
that Act, means a public servant as defined in S. 21 of the Penal Code. 1979 A l/Li 922.
(3) The material date for determining whether the accused was .a "public servant" within the
meaning of the Prevention of Corruption Act so as to make him guilty under that Act is the date on
which the alleged offence is committed. The fact that subsequently he has retired or been removed, or
has otherwise ceased to be a "public servant" is immaterial. A IR 1977 SC 1772.
(4) Where a public servant is an offender and as such offender is triable by a special court, the
question ofjurisdiction of the special . court is not affected by the fact that subsequent to the commission
of the offence charged, he has ceased to be a "public servant" for the purpose of the Act. A IR 1977SC
1772.
(5) Where the accused officers were not public servants when the alleged offence was committed by
them and at the time they were triable by ordinary Court despite the fact that by subsequent
amendment of an Act, it was provided that the Officers concerned shall, be deemed to be public servants
within the meaning of S. 21 of the Penal Code when the amendment was not retrospective. (1981) 1
CaIHN 543 (DB). . . .
(6) Where an Act (like the Prevention of Corruption Act) adopts the definition of a "public
servant" in this section the definition will apply as it stands at the date of the offence charged even
though such definition may have been amended by the legislature after the Act under which the accused
is charged. A IR 1975 SC 1835.
(7) The expression "every" officer in Clause (10) of the section seems rather to point to an
individual than to an incorporated body. Therefore, a Municipal Corporation is not a public servant
within the meaning of the section; (1877-78) ILR 3 Cal 758.
24 Penal Code Sec. 21
are
(8) Apart from the provisions of this section which enumerates the categories of persons who
public servants there are statutory provisions declaring that certain person shall be deemed to be public
servants within the meaning of this section. 1972 Cr1 Li 1583 (Raj).
(9) While the framework of this section would indicate that it is only illustrative and not
exhaustive, the wording of the different heads especially 9 and 10, is so elaborate and comprehensive
that it virtually amounts to an exhaustive definition. AIR 1954 Vindh Pro 17.
'(10) Where the prosecution was launched by secretary of a Development Authority, the
Development Authority has to be treated as the complainant and not the secretary. The Development
Authority not being a public servant, appeal has to be filed within 60 days -from the date of order of
acquittal. (1981) 19 DeihiLT 353 (DB).
3. Who are, and are not, public servants : (1) Generally.— (a) In Sheikh Sabur vs Returning
Officer, reported in 41 DLR (A D) 30, it has been stated that District Education Officer in charge,
Gopalganj, Members of Union Parishad are 'Public servants' whom the Legislature has treated as a
separate class of people's representatives and provided additional disqualification for them. Exclusion of
members of Parliament from the disqualificatiOn law which is undisputedly a beneficial one, is not
unconstitutional, though unethical. Right to seek election to the local bodies or even to the Parliament
is not a fundamental .right guaranteed by the constitution. It is a statutory right. A member of
Parliament is not answerable to the Court for his legislative functions. Court has no duty to offer
unsolicited advice as to what the Parliament should or should not do. "Principle of equality"—does
not mean every law must have universal application for all persons irrespective of whether they belong
to different classes requiring separate treatment. A law cannot be struck down merely because it fails to
spell out the particular objective of a provision in the legislation itself.
(b) In Haji Md. Mohsin vs the State, reported in 40 DLR 431, it has been stated that if it is
accepted that the petitioner is not a public servant within the meaning of section 2(b) of the Criminal
Law Amendment Act, 1958, then the offence under section 409 of the Penal Code cannot be tried by
the Senior Special Judge but for this reason the criminal proceeding under section 409 of the Penal
Code cannot be quashed.. .
it has been observed that the
(c) In Majibur Rahman Khan vs the State, reported in 33 DLR 83,
employees of Khulna Newsprint Mills Ltd. were charged under section 409 of the Penal Code for
alleged offence committed between 5th November and 11th November 1964. The Prevention of
Corruption Act was amended by Anti-Corruption Laws Amendment Act, 1965 on 31-7-65. The
question is whether the law amended in 1965 could be retrospectively applied to include offences
falling under section 5(2) of Act 11 of 1947. Amending enactments were not given retrospective
operation and hence on the date when the offences were alleged to have been committed by accused
persons, they are not public servants and as such Special Judge had no jurisdiction to try them under
Criminal Law Amendment Act, 1958.
it has been held that a
(d) In Shafluddin Mia vs the State, reported in 30 DLR (SC) 127,
mutawalli is not a public servant within the meaning of section 21 of the Penal Code. The words "any
other person" in section 98 of Waqf Ordinance do not include a mutwalli.
has been maintained
(e) In A bdul A ll and another vs the State, reported in 30 DLR (SC) 58,it
that labourer working under a Government Contractor, whether public servant within the meaning of
section 21 of the Penal Code. A labour working under Government Contractor—His work may be a
public service but not a discharge of public duty. Labourers doing their allotted work when solely
responsible to the contractor who employed them are not discharging any public duty.. Contractor
discharging certain functions on the basis of agreement with the Government is not a public servant
under section 21.
Sec. 21 General Explanations 25

(1) In A KMA Halim vs the State, reported in 29 DLR 218, it has been mentioned that the accused
was not a public servant as defined in section 21 of the Penal Code when the alleged offence was
committed. He became a public servant within the meaning of section 21 of the Penal Code afterwards
as such he cannot be tried as a public servant. (Ref 26 DLR 17).
(g) In A lhaj A bdur Rob vs Mobarokullah reported in 20 DLR 876, it has been stated that
• Managing Director of a jute mill is a not a public servant.
(h) In A bdul Sattar and others vs the State reported in 19 DLR 862, it has been held that a Nikah
Registrar is not a public servant. The Muslim Family Laws Ordinance does not provide that the Nikah
Registrar to whom licence is granted for registration of Muslim marriages by the Union Council is a
public servant.
(i) In Sheikh Muzibur Rahman vs the State, reported in 15 DLR 549, it has been observed that a
Minister is a public servant. A person who was appointed by the Governor to discharge the function of
a Minister and who was paid out of the public exchequer and who was also liable to be dismissed by
the Governor comes within the description as indicated in the latter part of sectiOn 21 of the Penal
Code and as such a Minister cannot but be regarded as a public servant.
(j) In Md. Halim vs the State, reported in 15 DLR 282, it has been said that a Railway servant in
respect of offence of cheating, is not a public servant. For offences falling under sections 419 and 420 of
the Penal Code, a railway employee in view of section 137(l)(iv) of the Railways Act, is not a public
servant within the meaning of this section.
(k) In Md A had A li vs the State reported in 14 DLR 785, it has been averred that the poddars
of a treasury are not public servants as defined in section 21, clause (10) of the Penal Code. (Ref. 14
DLR 730).
(I) A Union Board member is not a public servant. Manindra Cha'ndra Biswas vs the State, 12
DLR 84.
(m) Others : Secretary of a District Soldiers', Sailors' and Airmen's Board is not a public servant
(12 DLR 485) ; Collecting Agent appointed by a Liquidator (who is a public servant) for realisation of
debts due to a cooperative society is a public servant (12 DLR 105; 11 DLR (SC) 219; 9 DLR 442;
6 DLR 527) President of a Union Board is a public servant (7 DLR 166) ; Government servant not
appointed according to statute, held, to be public servant (6 DLR 143 (W P) ; Masters, Principals or
teachers of f,rivately aided schools are not public servants. By no stretch of imagination, the Head
Masters, the Principals or the teachers of the privately aided schools, can be called public servant nor it
can be said that the certificates issued by them is done by them in their capacities as public servants in
their official capacity (1971 A ll CrR 297) ; Person appointed as invigilator—If public servant within
meaning of section 21. A person appointed as invigilator by the University is definitely public servant
within the meaning of section 21 of the Penal Code. (1971 All CrR 610).
(n) The clerk of the office of the Union Board is not a Public Servant. A sgar A li Vs. State (1959)
/1 DLR (SC) 219; 1959 PLD (SC) 242.
(o) Chowkidar of a Government godown is not a public servant within the meaning of the said
clauses of the Code. Suresh Chandra Chakma Vs. State (1962) 14 DLR 730.
(p) The Secretary of a District Soldiers', Sailors and Airmen's Board is not a public servant.
A .K.M. .Shamsul Huq Choudhury Vs. State (1960) 12 DLR 485: 1961 PLD. 753.
(q) Dafadar or Chowkidar is a public servant and has a right under section 24 of the Village Self-
Government Act to keep an arrested person in confinement. Ahmed Kab.ir Vs. State (1957) 9 DLR 323.
(r) Dafadars and Chowkidars are not public servants within the definition of section 21. They are
only public servants for the limited purposes laid down in rule 45 of the Rules framed under the
26 Penal Code Sec. 21
Village Self-Government Act i.e, public servants for the purposes of section 68(2) of the Cr.P. Code.
Loknath Vs. Crown (1955) 7 DLR 344; 1 PCR 21.
(s) The cashier of a Central Co-operative Bank is not a public servant. Salimullah Khan Vs.
Crown (1954) 6 DLR 527..
—Neither a poddar of a Bank nor a President of a Co-operative Society is a public servant.
Saljmujla/, Khan Vs Crown (1954) 6 DLR 527.
(2) Clause-wise.— _(j) Clause. Third : (a) Under Cl. (3) of the section every "Judge" is a "public
servant". The word "Judge" is to be taken in the sense defined in S. 19. Under that section a member
of a panchayat having power to try and determine causes is a "Judge" and hence, such a member of a
panchayat will be a 'public servant' within this section. A IR 1952 A ll 306
(b) A subordinate Judge being clearly a "Judge" within Section 19 is a public servant within this
section. A IR 1942 Cal 434.
(c) An arbitrator has been held not to be a Judge within S. 19 as he is not empowered to give a
judgment. A IR 1940 Pesh 41. .
(d) M. L. A. is not a public servant within the meaning of the expression in Cl. (3) or Cl. (7).
AIR
1984 SC 684.
(ii) Clause Fourth : ( a) Even a person, who is not an officer of a Court whose duty it is to
perform any of the enumerated functions, will be a public servant if he is specially authorised by a
Court of Justice to perform any of such duties. AIR 1933 Pat 187.
(b) A Receiver has been expressly included in the clause as an officer of a Court of Justice who will
be a "public servant". A Receiver in insolvency is thus a "public servant". (1962) 1 CrLJ 658
(Orissa).
(c) An Advoc ate-Commissioner will undoubtedly be an officer of Court.
1981 MadLW (Cr1) '123.
(d) The Court has no power to appoint a Commissioner to seize account books in the possession
of the plaintiff, upon an application by the defendant. Such a Commissioner, if appointed will not,
therefore, be covered by this clause. AIR 1961 SC 218.
(e)A Commissioner appointed by a Court to divide properties by metes and bounds under a
preliminary decree for partition is a "public servant" by virtue of this clause. AIR 1951 Mad 773.
(f) The, Sales Officer of a Cooperative Society who is entrusted with the duties of taking property in
execution of decree of the society is a "public servant". A M1942 Mad 552.
(g) An 'officer of Court whose duty it is to execute any judicial process is a "public servant" within
the meaning of this clause. (1868) 2 BengLR 21 (FB).
(h) A Nazir has an authority to delegate the execution of a warrant of arrest addressed to him and a
person acting under such delegation is a public servant within this clause. (1895) 1LR 22 Cal 759.
NO Clause Fifth : (a) A member of a Panchayat assisting a "Court of justice", is a public Servant.
A IR 1955 NUC (Pat) 1592.
(iv) Clause Sixth: (a) To bring a case within Cl. (6), there must be some cause or matter existing
in dispute or controversy in regard to which a competent public authority is desirous of a report to
enable it to deal with the matter in dispute between the parties. Therefore, a conservancy inspector who
is directed to make a report if somebody objected to his carrying out certain directio'n does not come
within this clause. 1886 A1IWN 295 (DB).
Soc. 21 General Explanations 27
(b) An arbitrator to whom a dispute under S. 145 of the Criminal P.C. has been referred by the
parties and not by the Court is not a "public servant" within this clause. (1903) ILR 30 Cal 1084.
(v) Clause Seventh : (a) It is only a person who is empowered by virtue of his office to place or
keep any person in confinement that would be covered by this clause and would be a public servant
under it. Thus, this clause will not apply to villagers who assist a headman in arresting and in taking
the accused to the police station. AIR 1917 Upp Bur 8.
(b) A warder of a jail is a public servant coming under this clause. AIR 1929 Lah 631.
(c) Public servant—Definition of—M. L. A. is not a public servant within meaning of either Cl.
(3) or Cl. (7). AIR 1984 SC 684.
(vi) Clause Eight (a) In order to come under this clause the person in question must be an officer
of Government having certain duties of the kind mentioned in the clause. Thus, the clause will
not include merely private persons. For instance, neither this c' lause nor Cl. (7) will apply to the
villagers who assist a headman in arresting and taking to the police station an accused person. AIR
1968 Pat 506;
(b) A village choukidar is not an officer of Government and hence not covered by this clause: A IR
1923 Lah 260.
(c) This clause includes an officer whose duty it is to give information of offences. Thus, a
mukaddam or a mukaddam gumasta under the Land Revenue Code, is a "public servant" under this
clause as one of his duties is to report the commission of certain offences under the PenalCode. A IR
1947 Nag 60.
(d) An agent of the Society for the Prevention of Cruelty to Animals, who has been appointed in
respect of offences, is a "public servant" within the meaning of this clause. AIR 1923 Mad 188.
(e) An officer of the Society for the Prevention of Cruelty to Animals is a "public servant". (1906)
3 CriLJ 420 (Cal). .
(f) A Police Officer would be a public servant within the meaning of both CIs (7) and (8). A IR
1962 Cal 410.
(g) A Sub-Inspector of Police belonging to the Finger Print Bureau and in the service and pay of
the Government is a public servant even if he is not performing the ordinary duties of a Police ,officer.
AIR 1924 Lah 355.
(h) A Police Officer under suspension is not a public servant. AIR 1945 Nag 190.
(i) An officer of State having the same powers, privileges and protection as an officer of the Police,
has the power to bring the offenders to justice and to protect the public health, safety and convenience
within the meaning of Cl. (8) and is clearly a public servant. ILR (1947) 1 Cal 409.
) A "taliari" of a village, unless enrolled as a Police officer, is not a Police officer. (1979) 1 W eir
342 (DB).
(k) An official who assumes or discharges Police functions but has not been enrolled and has not
received a certificate of enrolment, is not a Police officer. (1879) 1 Weir 342.(DB).
(I) A member of the Civic Guard has the same duty as a Police officer when the Civic Guard has
been called out on duty under the relevant law and will be a public servant when so called out on duty.
ILR (1947) 1 Cal 409 (DB). . . . .
(m) Under Cl. (8) every Government officer whose duty it is to protect the public health is a public
servant. Thus,a Lady Health Visitor employed by the Government is a public servant. A IR 1963
Pun) 201. .
28 Penal Code Sec. 21

(n) A Vaccinator is.a public servant within Cl. (8) read with Explanation 1 even though he has not
been appointed by the Government. (1881) 1 Wier 129.
(o) The Sarpanch,•the Mukhiya and the Gram Sevak are public servants as these persons have the
power to take such measures as may be necessary for the protection of life and property including the
power to arrest in an emergency. AIR 1955 NUC (Pat) 5958.
(p) When a police officer investigating into cognizable offence under the Essential Commodities
Act submits a report in writing under S. 173, Cr. P. C. disclosing such an offence, such a police officer
submitting a report would be "Public Servant" within the meaning of S. 21. AIR 1980 SC 506.
(q) The duties of the kotwal relate to bringing the offenders to justice, to -protect the public health,
safety and convenience. The post of kotwal, therefore, would fall under clause (8) or (12)(a) of S. 21 and
as such the kotwal is a public servant, 1981 CriLJ 653.
(vii) Clause Ninth : ( a) A mere Babu or Clerk who only carried out the orders of his superior and
had himself no authority would not be an "officer" within the meaning of the clause and would not,
therefore, be a "public servant" under clause 9. (1905) 2 CriLi 512.
(b) Clause 9 is intended to include officers whose business it is to care for the pecuniary interest of
the Government. (1889) ILR 26 Cal 158 (DB).
(c) The word "officer" in this clause means some person employed to exercise to some extent and
in certain circumstances a delegated function of the Government. The holding of office imp lies charge of
a duty attached to the office. AIR 1973 SC 333.
(d) An Izapatdar who is a lessee of a village who has undertaken to keep an account of forest
revenue and pay a certain proportion to the Government, keeping the remainder to himself, is not an
'officer' and therefore, not a "public servant".. (1875) 12 Born HCR 1(5).
(e) The question as to who is to be deemed to be an 'officer' within the meaning of Cl. 9 of this
section is a substantial question of law. AIR 1955 Ajmer 18(1).
(f) The Poddar of a Bank to whom money , is paid and who 'receives the money on behalf of the
Bank does not act on behalf of the Government and is not a public servant. (1879), ILR 4 Cal 376.
(g) A Stamp Clerk who is appointed by a Government Treasurer and who is required to keep
stamps and receive money is a 'public servant' within the meaning of this clause read with
Explanation I to the Section. (1963) 65 PunLR 958.
(h) The driver of a Roadways Bus, a commercial undertaking of the Government, being
responsible for the proper care and maintenance of the bus in his charge, comes within the words of this
clause and is therefore a "public servant". AIR 1965 All 478.
(i) The word "survey" also occurs in clause 10 and under that clause it has been held to include
inspection or superintendence. AIR 1962 Raj 250.
(j) A Cadastral Surveyor performing his legitimate functions under the rules under the Land
Revenue Code is clearly a public servant. AIR 1929 Born 385.
(k) A Surveyor employed by the Collector in Khas Mahal Department to make a survey of 'a
certain portion of the watercourse is a public servant within the meaning of this clause. The Collector
acting in the management of Khas Mahal, the property of the Government, is as much "Government"
within the meaning of Section 17 of the Code as when he is exercising any other duties of his official
position. (1889) ILR 26 Cal 158.
(I) Under this clause an officer whose duty it is, as such officer, to execute any revenue process is a
"public servant". A IR 1944 Mad 183.
Sec. 21 General Explanations 29

(m) Senior Lecturer of a Government College—Appointment by University as an Examiner—

Acceptance of bribe for giving more marks to a candidate—Governemnt could have no control over him.
as an examiner—Accused not guilty either under Section 161, Penal Code, or under Prevention of
Corruption Act. A IR 1970 Guj 97.
(n) The Officers of a nationalised Bank are not public servants within the meaning of clause Ninth
of S. 21 of Penal Code. 1983 CriLl (NOC) 1.54.
(viii) Clause Tenth . ( a) The word "Officer" has been held to mean any person who is vested with
authority to carry out any part of the executive power of the Government. 1960 A/IL..! 357.
(b) The expression "every Officer" suggests an individual and not a corporate body and so a
corporation cannot be a public servant within Clause 10. (1877-78) !LR 3 Cal 758.
(c) It is not necessary that, in order to be an officer under this clause so as to be a public servant,
the person concerned should be in the employ of the Government as such if he otherwise falls within
the description given in this clause. 1960 A l/LI 357.
(d) An officer whose duty it is as such officer to take, receive, keep or expend any property is a
public servant under this clause. 1960 A l/Li 357.
(e) A person remunerated by a fee or commission for the performance of a public duty will be a
public servant. 1960 A l/LI 357.
(f) The Chairman of a Co-operative Credit Society is not a public servant within the meaning of
this clause. A IR 1970 Cal 557.
(g) The Chairman of Co-operative Credit Society is not a public servant as the words in the clause
"for any secular common purpose of any village etc." show that receipt or expenditure of money must
be for a public purpose. A IR 1935 Born 36
(h) The duties of Secretary of a Co-operative Society as laid down in the Co-operative Societies
Act are not such as may be coveredby the definition of the public servant as laid down in clause (110) of
S. 21, P.C. 1980 A ll Cr1 R 427. *
(i) A kamdar of a co-operative union was not a public servant within S. 21-when it was not his
duty to receive money and issue receipt. 1981 UPLT (NOC) 53
(j) An Engineer employed by a municipality who pays municipal money to others is a public
servant within Clause (10) although he may not have the power of sanctioning such expenditure.
(1869) 6 Born HCR (Cr C) 64 (DB).
(k) The word "survy" in clause (10) is used in an extensive and not a restricted sense. It includes
inspection or superintendence. A IR 1962 Raj 250.
(1) In so far as an Act vests the power of inspection in the members of a District Board qua
members, without more, a member of the Board is a public servant within the meaning of this clause.
A IR 1962 Raj 250.
(m) The Patwari having the duty to collect cesses is a public servant. ILR (1964) 2 A ndhPra
1237.
(n) The "village" in the singular in this clause includes the plural and so, the authority which a
Local Board has over groups of villages is covered by the word "village". (1937) 38 CriLJ 444 (Nag).
(o) A Port Trust Estate does not fall within the expression "village town or District", in this
Iause. Hence, the Chief Store Keeper and Assistant Superintendent of Machinery for the whole Port
Estate are not public servants. A IR 1941 Sind 30.
(p) The poddars of a treasury are not public servants. Mujibor Rahrnan V s. State 14 DLR 785.
30 Penal Code Sec. 21
(q) Where appointment of Cotton Inspector had been made by the Director of Agriculture without
his being duly authorised and had been assigned duties, the Cotton Inspector so appointed would be a
"public servant". Tufail Md. Vs. Crown (1954) 6 DLR (W PC) 143.
(r) The Ansars can only be held to be public servants in a certain area provided the Government by
a notification has embodied them in the District Police Force. Where they were not so embodied,
they were not public servants within the meaning of the Act. Haroon Malakar Vs. Crown (1953) 5
DLR24.
(s) President of Union Board—a public servant.' Khabiruddin Vs. Crown (1955) 7 DLR 166.
(t) A Union Board member is not a public servant. Manidra Chandra Biswas Vs. State (1960) 12
DLR 84.
(u) Secretary of a Central Co-operative Bank is not a public servant. Abul W ahab Vs. State (1957)
9 DLR 442.
(v) When a person gratuitously performs a duty of the nature mentioned in clause (10), he is a
public servant. Zainal A bedin Vs. State (1957) 9DLR 640.
(w) The head treasure is an officer whose duty, as such officer, is to take, receive or keep any
property on behalf of the Crown. He could also be said to be an officer in the service or pay of the
Crown. 1950 PLD 361.- LA peon in the passport office is a public servant. 1955 DLR (Lah) 1032.
(x) "Any officer in the service or pay of the Crown.........for the performance of any public duty"—
"Public duty" a necessary qualification of such officer. 1955 PLD (Sind) 230.
(y) Managing Director of a Jute Mills not a public servant. A l-haj A bdur Rab Vs. Mobarakullah,
(1968) 20 DLR 876 .
(z) A Nikah Registrar is a public servant—The mere fact that the Nikàh Registrar is remunerated
by fees to be received from the parties does not prevent his becoming a public servant if he is otherwise
• discharging a public duty. 21 DLR (SC) 330.
(aa) A compulsory registration of marriages provided for by the Ordinance is clearly a public duty
undertaken by the Government. A Nikah Registrar is also a person charged with the duty of making
and authenticating documents and registers necessary for the ascertainment of the rights of people
within the meaning
' of the tenth clause of section 21 of the Penal Code. So, the Nikah Registrar under
the Muslim Family Laws Ordinance is a public servant within the meaning of the said clause.
Muhammad A rjf k's. Kawshar A ll, (1969) 21 DLR (SC) 330.
(bb) The Nikah Registrar to whom licence is granted for registration of Muslim marriages by the
Union Council is not a public servant. A Nikah Registrar is not an appointee of the Government or of
the Union Council and he is not remunerated by fees or commission by the Government. The ninth
clause of section 21 of the Penal Code indicates that a public servant should be either in the service or
pay of the Government or remunerated by fees or commission by the Government for the performance of
his public duties. The mere fact that the Nikah Registrar registers Muslim marriages on the strength of
licence issued to him by the Union Council does not clothe him with the character of a public servant.
Nor shall he be deemed to be a public servant under Article 97 of the Basic Democracies Order, 1959.
(Overruled by the S.C. in Md. Arif case, 21 DLR (SC) 330.) A bdus Sattar Vs. The State, (1967) 19
DLR 862.
(cc) A Government servant's (here an Assistant Registrar of Co-operative Societies) services were
• lent to the Chittaranjan Cotton Mills Ltd., a private limited company (not a statutory body formed
under any statute) to look after the interests of that Company's co-operative societies formed with the
shares of the Company's employees. Company's Board of Directors also appointed him as a trustee to
Sec. 21 General Explanations . 31.

look after the trust fund belonging to the co-operative societies and in that capacity, the allegation is,
he misappropriated some funds. When put on trial under sections 420/511 and 464 of the Penal Code
he contended that he was, even when his services were lent by the Govt. to the Company, a public
servant within the meaning of s. 197 Cr. P.- Code and his prosecution without Govt.'s sanction was
illegal. HELD : For his prosecution no sanction was necessary and s. 197 no bar, he, when
discharging the function of a trustee of the trust fund was not a public servant within the meaning of
section 21 of the Penal Code. Md. Motaleb Vs. A.M. Ahmed (1974) 26 DLR 17.
(dd) Members of Union Parishad are "Public Servants" whom the Legislature has treated as a
separate class of people's representatives and provided additional disqualification for them. Above all,
members of a Union Parishad are 'public servants' within the meaning of section 21 of the Penal Code.
The term 'Public Servants' denotes some executive control over them- and they are subject to
disciplinary rules which are applicable to regular government servants. In view of these differences in
respect of functions and duties, the Legislature thought it proper and expedient to treat them as a
- separate class of people's representatives and has provided for the additional disqualification in
question. Sheikh Abdus Sabur Vs. Returning Officer 41 DLR (AD) 30.
(ee) Although receivers appointed by the Courts are public servants, guards appointed by them are
not public servants. Md. Jahar A li Vs. A fraiul Islam Chowdhury and others 9 BLD (HCD) 509.
(ix) Clause Eleventh (a) The Head clerk of a. Municipality appointed by the Chairman acting
under the relevant rule to prepare electoral rolls of persons entitled to be registered as voters in each of
the Wards of a municipality is covered by this clause and hence is a "public servant" under the
Section. AIR 1941 Pat 539.
(x) Clause Twelfth (a) : ( a) Each of the three categories enumerated in CI.(a) are independent—
Word 'or' is disjunctive—Expression "in the pay of the Government" .—_Does not import master.
servant relationship. AIR 1984 SC 684.
(b) Even under the old Cl. (9) it was held that a Class Ill Officer may be a public servant under
that clause. AIR 1957 SC 13.
(c) The true test in order to determine whether a person falls under sub-clause (a) is whether he is
in the service or pay of the Government and whether he is entrusted with the performance of any public
duty. If both these requirements are satisfied, it does not matter in the least what the nature of his office
is and whether his duties are of an exalted or a humble character. AIR 1973 SC 330.
(d) The fact that a person is only an extra departmental hand does not affect the question whether
he is a "public servant" within the meaning of this section where he otherwise comes within the
purview of Cl. 12(a) as a person in the service or pay of the Government. 1975 CriL.J 1122 (All).
(e) The question whether a person in the service or pay of the Government is a "civil servant" or
holds a civil post for the purpose of the Constitution is irrelevant under this section. 1975 CriLJ 1122
(A 11).
(f) An apprentice-trainee in the signals department of the railway is not a public servant although
he may receive a stipend. (1974) 15 GÜJLR 293.
(g) It was held with reference to Clause 9 as it existed originally in this section, that even a
Class III officer could be an 'officer' within the meaning of that clause and that the question whether
his duties were of an exalted or of an humble nature was irrelevant in deciding the question. AIR 1957
SC /3. -
(h) Unless a person-wielded some authority on behalf of the Government, he would not be an
"officer" and therefore, would not be a public servant. AIR 1918 Lah 152.
Penal Code Sec. 21
32

(i) A person might be an "Officer" under Clause 9 and as such a "public servant" under that clause
irrespective of the nature of his duties. AIR 1955 NUC (Pak) 4390.
(j) Clause (a) requires that the person in question must be either in the pay or service of the
Government or must be remunerated by fees or commission for the performance of any public duty by
the Government. AIR 1956 SC 314.
(k) The payment of a salary is not an essential hallmark of a public servant. He may be
remunerated by a commission or a fee. (1886) JLR 8 All 201.
(I) He must be remunerated for the performance of a public duty and he must be remunerated by the
• Government. AIR 1959 SC 847.
(in) A mere contractor will not be a public servant although his contract may be with the
Government and he is paid on a commission basis. AIR 1956 Hyd 180.
(n) A Chartered Accountant who has been directed by the order of the Government to investigate
into the affairs of an lnsurnce Company and to report to the Government on the investigation made by
him cannot be said to be a public servant though he is to get a remuneration for his work, the reason
being that he is not an employee of the Government. AIR 1962 SC 1821.
• (o) Tracer in Soil Conservation Office is public servant—But if he takes leave for 2 years and
becomes an apprentice,a Trainee in the signals section of the Railway he will cease to be "public
servant" though he may be receiving a stipend as such apprentice. (1974) 15 GujLR 293..
(p) Khalasis in Railway Carriage Section working in office of Works Manager in connection with.
preparation and issue of passes are "public servants". AIR 1976 SC 1003. .:.
• . (q) The general tenor and setting of the Auxiliary Force clearly show that a member of the
Auxiliary Force is as much a public servant as an acting member of the Air Force. A IR 1980 sc 522.
(r) The Authorised Medical Attendant appointed under the Medical Attendance Rules was not
public servant within meaning of clause 12 (a) of S. 21 as he was not in the service of the Government
or in the pay of Governments or being remunerated for performance of public duty. 1982 CriLJ 255.
(s) The Bench clerk in the office of the Labour 'Commissioner in the charge of the compensation
seat would be a public servant within the meaning of S. 21, Penal Code. 1983 Cr1LJ (NOC) 151.
(t) Public servant—Definition of—Historical evolution of S. 21 reveals that M.L.A. was not and is
not a public servant. AIR 1984 SC 684.
(u) Laboratory Officer in Municipal Corporation appointed as Public Analyst for the local area
comprised within the limits of Municipal Corporation—Even by virtue of his appointment by the
• Government as Public Analyst, he is not in Govt. service or pay and therefore he is not covered by S.
21, Twelfth(a) and therefore, he is not a Public Servant. 1984 Cr1 LR (Guj) 162.
(xi) Clause Twelfth (b) : ( a) The words of Clause 12 in their original form were wide enough to
include a Corporation established under an Act. 1966 AI1LJ 1070.
(b) Clause 12(b) refers to persons in the service or pay of three classes of entities, (I) a Local
authority, (2) a Corporation established by or under a Act, (3) a Government Company as defined in
the Companies Act. AIR 1975 SC 1835. • .
(c) The illustration which is. given under Clause 12 states that a Municipal Commissioner is a
public servant. This illustration originally occurred under Cl. I of the Section. It was held with
reference tolhat illustration that the word "Commissioner" would include a member of the Municipal.
Committee and not only an Officer of a Municipal Committee. AIR 1962 Raj 250.
Sec. 21 General Explanations 33

(d) The illustration shows that sub-cl. (b) will include not only persons in the employment of a
Local authority but also members of a Local body like a Municipality, District Board, Union
Panchayat and so on, including the Chairman or President of such a body. AIR 1961 SC 785.
(e) A public, officer in the context of the relevant Ordinance is an officer who discharges any duty
the discharge of which the public are interested, more so if he is paid from public funds. Therefore,
Commissioner of a Municipality is a public officer within the definition .of public officer in the.
Prevention of Corruption Act (1979) 1 Malayan LJ 166.'
(f) Although the members of a Municipal Corporation or similar, body are public Servants within
the meaning of this Section, the Corporation such as a Municipal Committee is not, as a Corporation,
a public servant. AIR 1930 Nag 33. . .. .
(g) An employee under a Municipality or other Local authority will clearly be a public servant by
virtue of Cl. 12(b). 1961 criLi 564.
(h). In many cases there are statutory provisionsmaking servants of local bodies "public servants"
for the purpose of this section. (1968) 9 GuJLR 672. . .
(i) Under sub-clause (b) a person in the sriice or pay of a Corporation established by or under Act
is a public servant. 1979 A1IL.J 922. ..
(j) The words of Cl. 12(b) are wide enough to cover an employee of a Cooperative Union
established by virtue of the provisions of the Co-operative Societies Act. 1966 A11LJ 1070.
(k) The employees of the Airlines Corp. are public servants within. CI. 12(b). AIR 1.966 A ndhPra
35. . .
(I) The person appointed as a Stall Assistant under the Coir Board, a statutory body, will also be
a public servant under Cl. 12 (b). (1963) 1' CriLJ 675 (Ker).
(m) Under Section 43 Of the ROad Transport Corporation Act all members of the Corporation and
all officers and servants of the Corporation that were appointed by the Government or, the Corporation
shall be deemed, while acting, or purporting to act, in pursuance of the provisions of the Act or any
other, law, to be public servants within the meaning of S. 21. AIR 1964 SC 492.
(n) Under Section . 81 of the Electricity 'Supply Act, all members, officers and servants of the
Electricity Board while acting or purporting to act under the Act, shall be deemed to be public servants.
within this section. (1970) 2 SCJ 172.
(o) The position of a part-timed member of an Electricity Board is clearly covered , by the
expression "every person in the service of" as used in sub-cl. (b) of clause '12 of Section 21 because he
holds a regular Office for a' fixed period. ILR (1978) 1 Punj 239.
(p) Chairman of the Board of Film Censors is a public servant. 1977 CriLi 21 (Pat).
(q) Privately aided School cannot be said to be established under the Education Act—Headmaster
of such School is not a "public servant". 1974 CutLR• (Cri) 545.
(r) A University established by Govemment.—Invigilator appointed by University is g public
servant. 1971 All Cr1 R 610.
(s) A person in the service or pay of a Government Company as defined in the Companies Act, has
been expressly included in the definition of a public servant under Cl. 12(b). (1972) 74 PunLR 383.
(t) Though a person in the service or pay of a Government Company is a public servant within
this clause it does not necessarily follOw therefore that such person is a "civil servant" as contemplated
by of the Constitution. (1968) 72 Ca1WN 398. '
34 Penal Code . . Sec. 21
(u) The word "established" in S. 21 . means "to create" and not "registered" or "incorporated". A
Co-operative Society is not a corporation established by or under an Act, within the meaning of sub-cl.
(b) of clause twelfth of S. 21. 1980 Cr1LJ494.
(v) A government employee working on deputation in a óo-operative society is not a public
servant within the meaning of cf. (12) of S. 21, as during his period of deputation, he was not an officer
in the service or pay of the Government. AIR 1.981 SC 1395.
(w) Assistant Civil Engineer employed by Co-operative Society, as, a member of its staff is not an
"officer" of the society, but a mere employee. He is, therefore, not a 'public servant'. 1981 CriLJ 17LJ
1718. . . . . ..
(x) Grade II officer of the State Bank is a public servant within meaning of 1982 C'riL.J 961.
(y) A person in the service or pay of the Central Bank is a.public servant within the definition of
the term in S. 21 as the Bank is a body corporate under the Act. 1982.Cr1LJ780;...
(3) Explanation-wise -(i) Explanation I (a) Explanation I provides that persons falling within
the description of any of the clauses of S. 21. will be public servans whether théy.wereappointed to
their posts by the Government or not. 1960 Al/LI 357. . . . .
(b) A person temporarily carrying on the duties of a Branch Postmaster purely as nominee of the
latter without authority by Government by letter of appointment has been held not t6 be a public
servant. A IR 1955 Cal 482. . .
(ii.) Explanation 2 : (a) The Court has no power to appoint a Commissioner to seize, account
books in the possession of the plaintiff and such a Commissioner, if appointed, will not be covered by
clause 4 and therefore, he will not be a public servant by virtue of clause 4 of the section; In such a case
it cannot be argued that by the, force of Explanation 2 the Commissioner should be treated as being a
public servant under this section. AIR 1961 SC 218. .. . ..
(b) Explanation 2 is not confined to mere technical defects but covers a defect occasioned by want
of jurisdiction in the appointing .person to make the appointment. AIR 1932 Cal 462.
(c) Where it cannot be said that a person is in actual possession of a certain situation, he cannot be
deemed to come under Explanation 2. Thus members of the Civil Guard cannot be said to be in actual
possession of the situation of Police Officers until they are legally called out for duty under the terms of
the relevant law. AIR 1944 Cal 79.
(d) Khalasis in the Railway Carriage Section who are actually allowed to deal with the preparation
and issue of passes in the office of the Works Manager are, in fact, performing public'duties and
discharging public functions auxiliary to those of the Works Manager and his office, and hence, they
must be held to be in actual possession of the situation of public servants and thus would be "public
servants" notwithstanding the defect in their right to hold that situation. AIR 1976 SC 1008.'
(e) A person employed irregularly by a clerk in charge of certain criminal records to help him in
his work was in de facto possession of the records during the clerk's absence on sick leave, and that
such person was a public servant by reason of Explanation 2. 1891 AIIWN 206.
- (f) A person who is temporarily carrying on the duties of a Branch Postmater purely as a nominee
of the latter without any authority being given by the Government by letter of appointment, cannot be
regarded as a public servant. It was held that as there was absolutely no appointment by the
Government in favour of such a person there could be no question of any legal "defect" in his right to
hold the situation. Explanation 2 had therefore no application to such a case. AIR 1955 Cal 482.
Sec. 21 General Explanations • .•. •35
• (g) The son of an extra-departmental agent of a Post Office looking after his father's official duties
without any recognition or appointment by the Postal Department, had no right to hold the post and
therefore is not a public servant by virtue of Explanation 2. A IR 1964 Orissa 202...
(h) The person who had assumed and discharged the functions of a.police officer did not become
one or a "public servant" in the absence of enrolment and certificate of enrolment. (1879) 1 W eir 342,
(i) Where the jailorwasnot entitled to call for any prisoner from the sub-jail to his house for the
purpose of having domestic work done by him and the accused S carried out the verbal orders of the
Jailor by taking undertrial prisoner to the house of the Jailor wherefrom the prisoner managed to escape,
the accused S, having duty to keep in confinementthe prisoner in question at that time, would be
deemed to have acted as public servant in view of Explanation II. 1982 W LN (UQ 148 (Raj).
• (iii) Explanation 3 : Election is not merelythe ultimate decision or the ultimate result. "Election"
at. every stage from the time the notification is issued till the result is declared, and even perhaps if
• there is an election petition, till the decision of the Election Tribunal, It is one whole continuous
integrat'ed proceeding and every aspect of it or every stage of it or every step taken in it is a part of the
election, 54 BLR 137. • • •
4. Minister—whether a public servant.--(I )Although a Council of Ministers as stkh cannot be
regarded as a public servant, yet an individual Minister may be regarded as a public servant within the
meaning of Cl. 12(a). AIR 1975 SC 1685.
(2) A Minister was held to be a public servant. AIR 1953 SC 394.
(3) The Prevention of Corruption Act divides public servants into three categories and states who
is to give sanction to prosecute them. A Chief Minister of a State is a public servant for whose
prosecution sanction is necessary from the Governor. ILR (1983) Born 2091 (DB).
(4) A person who Was appointed by the Governor to discharge the functions of a Minister and who
was paid out of the public exchequer and who was also liable to be dismissed by the Governor, comes
within the description as indicated in the latter part Of the ninth clause of section 21 of the Penal Code,
and as such, a Minister cannot but be regarded as a public servant within the meaning of Act 11 of 1947
read with A ct xL of 1958. Sheik Mojibur Rahman Vs. State (1963) 15 DLR 549.
(5) A Minister is public servant. Abul Monsur A hmed Vs. State (1961) 13 DLR 353.
S. Railway servants.—(1) After the Railways, which were originally owned by Companies,
were nationalised and became the property of the Government it is obvious that railway servants are
public servants within S. 21. They will clearly fall within clause 12(a) as being persons in the service
of the Government and charged in the performance of a public duty by the Government. AIR 1959 SC
1310. .. • . .
(2) Railway servant in respect of offence of cheating, not a public servant. For offences falling under
sections 419 and 420 P.C, a railway employee, in view of section 137(1)(iv) of the Railways Act is not
a public servant within the meaning of this section. Md. Halim Vs. State (1963) 15 DLR 282.
(3) Railway servants are public servants under the Penal Code irrespective of any particular Chapter
of the said Code. Besides, the Railways today being a department of the Government, all its employees
are Government servants and, as such, public servants. The State Vs. Ali Akhtar (1966) 18 DLR 684.
6. Apprëntice.—(1) Clause 12(a) only provides that in order to be a public servant a person need
not be paid a salary but may be remunerated by a fee or commission. But a person who receives no
36 ' Penal Code Sec. 21

remuneration at all like an unpaid apprentice in a Government. office will not be covered by the Clause
and hence will not be a public servant. A IR 1950 East Punj 167.
(2).A trainee apprentice is not a "public servant" within Cl. 21(a) even though he may be in
receipt of a stipend. (1974) 15 Guj LR 293.
7. Officer under suspension.—(1) A police officer under suspension is no longer such officer
under the Police Act and, therefore, is not a public servant. (1872) 17 Suth W R (Cr) 12.
(2) A person holding the office of a Lecturer in a Government Engineering College or as an
Assistant to a Public Health Engineer is a public servant. But when. he is under suspension, he cannot
be said to "abuse his position as a public servant". AIR 1951 Born 233 (DB).
8. Officer on leave.--(I) Govt. Employee working as a tracer in Soil Conservation Office is
Public Servant. But when he takes leave for 2 years and joins the Railway Department he ceases to be a
public servant although he may receive a stipend as such apprentice. (1974) 15 GujLR 293.
9. Officer on deputation toa company. —Public Servant—The service of the Republic—Public
duly—A Government servant deputed to fuñctioñ as an officer of a company continued to be a public
servant—Offence committed by him in his deputationary capacity—Sanction for prosecution U/s. 197
of the Code of Criminal Procedure is necessary.. Mansur A li A hmed Vs. Bangladesh & another. (1977)
6 BLR (A D) 104 = 29 DLR (SC) 224=2 BSCR7. .. .
.10. Mutawalli .whether a public servant.—A Mutawalli appointed by Administrator of waqf.
cannot be deemd to be a public servant within the meaning of Sec. 21 of Penal Code. Shafiuddin Mia
V s. The State. (1977) 6 LR (A D) 91 (1977) 1 BSCR I = 30 DLR (SC) 127.
11. Principal of a private College Is not a public servant.—(1) Clause 12 of section 21 of the
Penal Code provides that every person in the service or pay of the Government or remunerated 'by the
Government by fees or commission for the performance of public duly is a public servant. Public duty
is one which is created and conferred by law by which an individual is vested with some portion of the
• sovereign function of the Government to . be exercised by him for the performance of the duty for the
term and tenure prescribed by law. There is no such law in the instant case and as such the petitioner
cannot be said to perform public duty and called a public servant. Md Matiur Rahman Vs. The State,
19.BLD (HCD) 607.
(2) Although the petitioner as a Principal of a Private College gets 70% of his salary from the
Government exchequer by way of subsidy but it does not-fall within the purview of clause 12 of section
21 of the Penal Code as it cannot be said that the petitioner has been performing public duty acquiring
a status of a public servant. Matiur Rahman Md) Vs. State, represented by the Deputy Commissioner
(Criminal) 4 BLC 375. . . . ..
• 12. Functionaries of a banking company whether public servants.--Section 110 of Banking
Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Bangking
Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant
and the respondent are public servants and the case has been rightly instituted in the - Court of Special
Judge against the respondent. More so, section 5 of Act II of 1947 speaks of the offences as mentioned.
in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and
477A of the Penal Code with which the accused has been charged for committing misconduct as a
public servant. International Finance Investment and Commerce Bank Ltd V s. A bdul Quayum and
another (Criminal) 4 BLC (A D) 255. •. .• ..
Sec. 22 General Explanations 37

13. Employee of DESA if public servant.—Admittedly victim Abdul Malek is an employee of

the DESA. Although the petitioner is not a public servant according to the DESA Ordinance but the
petitioner is a public servant within the meaning of Clause 12(b) of S. 21. Taleb Hossain Abu
Taleb Hossain (Md.) Vs. State (Criminal) 6 BLC (AD) 71.
14. Labour under a government contractor whether a public servant.—From the contract it
is manifest that the labourers are-neither remunerated by the Government, nor are they discharging any
public duty. They are solely responsible for their duty and remuneration to the contractor. They
Cannot be said to be auxiliary, to any Government servant. There is no statutory sanction for giving
extended meaning to cI. 9 and 10 of S. 21, so as to bring the labourers of a Government carrying and
handling contractor within the purview of public servant. Abdul Ali & another Vs. The State. 2 BSCR
43 30 DLR (SC) 59.

Section 22
22. "Moveable property".—The words "moveable property" are intended to
include corporeal property of every description, except land and things attached: to the
earth or permanently fastened to anything which is attached to the earth.
Cases : Synopsis
1. Movable property. 5. Immovable things to be movable property by
2. Corporeal property. severence.
3. Land and things attached to the earth. 6. -Crops, when severed, become movable properly.
4. Attached to the earth Meaning.
1. Movable Property.—The expression 'movable property' is also defined in Section 3(34),
General Clauses Act as property of every description except immovable property. See also Section 3,
Registration Act. The definition in Section 22 of 'movable property' is an inclusive definition. It
informs that 'movable property' includes 'corporeal property of every description.' AIR 1962 SC 1821.
- 2. Corporeal property.—In the P.C. the words 'movable 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. Property is of two kinds—corporeal and
incorporeal. Corporeal property or tangible property is property which can be perceived by the senses.
Cheques and letters are movable property. 52 ALL 894; 40 ALL 119. Standing crops and trees are not
movable property. AIR 1930 Mad 509; 8 Rang 13. Assessment order is property. AIR 1969 SC 40.
3. Land and things attached to the earth.—"Earth, that is soil, and all the component parts of
the soil, inclusive of stories and minerals when severed from the earth or land to which it was attached,
is movable property capable of being the subject of theft. Whoever, dishonestly severes such earth from
the earth commits theft. 15 Born 702. Salt in a swamp is actually a part of the soil, while trees are not ;.
yet things immovable become movable by severance, and this would apply to severed parts of the soil.
e.g., stone quarried; minerals, iron or salt collected, as well as to timber.which has grown, or edifices
which have been raised on the land. 4 Mad 228. "Stones" when quarried and carriedaway are "things-
severed from the earth" (within the meaning of Section 378, explanation I) and are "movable property"
(within the meaning of Section 22). 27 Mad 531. ..
4. Attached to the earth Meaning.—Section 3 of T.P. Act reads : "Attached to the earth"
means (a) rooted in the earth, as in the case of trees and shrubs ; (b) imbedded in theearth, as in the
38 1
Penal Code Sec. 23-24

case of walls or buildings ; or (c) attached to what is so imbedded for the permanent beneficial
employment of that to which it is attached.
S. Immovable things to be movable things by severance.—See Note 3, See also Explanation I
and Illustration (a) to Section 378.
6. Crops, when Severed, become movable property.—AIR 1930 Mad 509.

Section 23
23. "Wrongful gain".—"Wrongful gain", is gain by unlawful means of property
to which the person gaining is not legally entitled.
"Wrongful loss".—"Wrongful loss" is the loss by unlawful means .of property to
which the person losing it is legally entitled. .
Gaining wrongfully; Losing wrongfully;—A person is said to gain wrongfully
when such person retains wrongfully, as well as when such person acquires
wrongfully. A person is said to loss wrongfully when such person is wrongfully kept
out of any property, as well as when such person is wrongfully deprived of property.
Case reference
I. See case law under section 24 and see also AIR 1960 All 103 and AIR 1960 Pat 518.

Section 24 ,.
24. "Dishonestly".—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".
Cases : Synopsis
1. Dishonestly ' 7. Deterioration is not loss.
2. Wrongful gain ; Wrongful loss. 8. Gain or loss has reference to a thing
3. . Wrongful gain To persons not entitled to it. dishonestly taken. -
4. Wrongful loss To someone legally entitled to 9. Dishonest intention.
the property. , ' 10. Claim of right and intention.
5. By unlawful means. ' 11. Section 24 if exhaustive.
6. Gain or loss to be material.
I. Dishonestly.—As 'dishonestly' involves wrongful gain or wrongful loss, obviously it does not
apply where no pecuniary question arises. The definition of 'dishonestly' in Section 24 of the Code
applies only to wrongful gain or wrongful loss and although there are conflicting rulings on the
question of the definition of the word 'fraudulently' the consensus of opinion has been that there must
be some advantage on the one side with a corresponding loss on the other. 22 Cal 1017 FB. And ,a
thing is, said to be done dishonestly according to the definition in Section 24, not only when it is done
with the intention of causing wrongful gain to one person in the first mentioned sense of the words
"wrongful gain" (and this is in alcordance with the ordinary popular signification of the term), but also
when it is done with the intention of causing wrongful gain in the other sense, or done only with the
intention of causing wrongful loss to some one, though such loss to one person may not be
Sec. 24 General Explanations 39
accompanied by any wrongful gain to another. 25 Cal 416 But to constitute theft there must be an
intention to take the thing in question , dishonestly, that is, with intent to cause wrongful gain or
wrongful loss. Removing a box to put the owner to trouble is not necessarily and in every case causing
"wrongful loss." 1956 Cr. Li 664. Deliberate and illegal concealment is not necessarily dishonest
concealment so as to amount to deception. 25 IC 338. A tenant cutting trees standing on his own land
and for which he has executed a lease which gives the landlord only a claim for compensation for trees
so cut cannot be said to be acting "dishonestly" within the meaning of Section. 24 and is not guilty of
theft. A IR 1932 Born 545. Personal benefit is not necessary. A IR 1931 Pat 337 Fabricating receipts in
lieu of genuine receipts which had been lost is not dishonesty. 7A11 459. Purchasing rice from a famine
relief officer and selling it, at a rate. higher than that agreed upon is not dishonest as it does not cause
wrongful loss and as it was not unlawful to sell one's own property after purchase at such.prices as one
thought fit. 22 W C 82. All that is required to be proved in order to establish that the person doing the
act was doing it dishonestly is that by that act he is gaining by unlawful means property to which he is
not legally entitled to gain, or that any person is losing property by reason of that act which the person
losing is legally entitled. If Government keeps grain with P for distibution in deficit areas and Q the
partner of P removes it from the godown where it is kept, the removal by Q is dishonest under Section
403,P.C. A IR 1964 Ori 119.
The expression 'dishonestly' used in the P.C. should not be confused with the commonly used
word 'dishonestly' which is understood to involve an element of fraud or deceit. A IR 1959 A ndh 530.
2. Wrongful gain Wrongful •loss.—Every word in the definitions in Sections 23 and 24 is
important. The expressions 'wrongful gain' and 'wrongful loss' are the main ingredients of the
definitions of 'dishonesty' in Section 24.. Wrongful gain includes wrongful acquisition or wrongful
retention. Losing wrongfully includes, wrongfully being kept out of properry or being wrongfully
deprived of property,. A IR 1959 SC 1390. .
The words "gaining wrongfully" or "losing, wrongfully" as defined in Section 23, need not be
confined only to the actual acquisition or to the actual deprivation of property and would cover also
cases of wrongful retention of property in the one case and wrongfully being kept out of property in the
other. Again, the element of actual loss to any member of the community should not be conceived as
essentially included in the meaning of the word "fraudulently" as defined in Section 25 it being enough
that the accused has aimed at an advantage by deception which, if it would have succeeded, would have
secured the same to him, such advantage being always regarded as having an equivalent in loss or risk
of loss to some other member or members of the community. If the accused had substituted a fresh
writing subsequently prepared for the writing which he had originally filed as his defence in the
proceedings before the House Controller, his action is fraudulent and dishonest. A IR 1949 A ll 353. A
person keeping concealed for a time a valuable thing belonging to a friend, who is a. careless man, in
just for the purpose of causing him a little anxiety, or in earnest for the purpose of teaching him the
salutary lesson. of being careful, would be guilty of theft, a result which the Legislature could never
have intended. No doubt, the language of Section 23 which defines wrongful loss, and says a person is
said to lose wrongfully when such person is wrongfully kept out of any property as well as when such
person is wrongfully deprived of property, might at first sight seem to create a difficulty in the way of
accepting the view taken. But•the difficulty is only apparent and not real. Of course, when the owner is
kept out of possession with the object of depriving him of the benefit arising from the possession even
temporarily, the case will come within the definition. But where the owner is kept out of possession
40 Penal Cow Sec. 24

temporarily not with any such intention, but only with the object of causing him trouble in the sense
of mere mental anxiety, and with ultimate intention of restoring the thing to him without exacting or
expecting any recompense, it is difficult to say that the detention amounts to causing wrongful loss in
any sense. 25 Cal 416 If apostman keeps a V. P. parcel for himself, he gains wrongfully even if he
pays the money of the parcel. A IR 1959 Mys 185. See also A IR 1957 SC 369 A IR 1963 SC 1572;'A IR
1960 A ll 103 A IR 1960 Pat 518.
3. Wrongful gain : To persons not entitled to it.- .--All the immediate gain that the accused
could have obtained by means of the false certificate was permission to sit for the Entrance
Examination. Assuming that he passed examination and thereafterwards obtained distinction he might
have eventually at some future time derived some material benefit from having done so but such
material benefit would be very remote. In the present case the applicant's intention was to obtain a
lucrative appointment immediately and the gain which he might have obtained through his deception,
had it succeeded could have been measured in rupees. There is no doubt that it would have been
wrongful gain and consequently there was dishonety. A IR 1925 Rang 9. The accused in order to
obtain a recognition from a Settlement Officer that they were entitled to the title of "loskur" filed a
sannud before that officer purporting to grant that title. This document was found not to be genuine.
Even supposing the accused had used the document knowing it not to be genuine, they could not be
found guilty, as the intention of the accused was not to cause wrongful gain or wrongifil loss to any one
their intention being to produce a false belief in the mind of the Settlement Officer that they were
entitled to the dignity of "Loskur". 10 Cal 584. Accused had made no objection to the production of
the document. It had been brought in by a stakeholder ; it had been used in .evidence and filed. The
opposite party had called a witness who spoke to a payment of Tk. 516 as made on account of, and
endorsed on, the instrument. It is said the sum endorsed was Tk. 540, and in order to refresh the
witness' memory, the opponent of the accused applied that the bond should be shown to the witness.
The accused strenuously objected to this course, and when the arbitrator pronounced against him, he
seized the amount, ran out of the house with it, and subsequently refused to produce it. It can hardly be
inferred from these circumstances that the act of the accused was prompted by any desire to cause
wrongful loss or wrongful gain. 3 Mad 261.
4. Wrongful losi To someone legally entitled to the property.—Where . a bull is dedicated
and set at large it ceases to be any one's property and cannot give rise to loss to any one. 8 All 51. "A
closed, a water-course without Obtaining any permission to do so, and thereby diminished the supply of
water received by certain fields belonging to B lower down the water-course. As there was nothing on
the record to show that B had any legal right to the water intercepted by A , it was not proved that B's
loss was wrongful, and the offence of mischef was therefore not established. 7 Cr.LJ 448.
5. By unlawful means.—The Code does not 'define 'unlawfu!.' which means the same things.as
'lllegal'.which is defined in Section 43. The words "by unlawful means" in the definition of
"wrongful gain" and "wrongful loss" are intended to refer to an act which would render the doer liable
either to a 'civilaction or to a criminal prosecution. I Cr.LJ 730 FB. It is not unlawful , to do
something on your own land without trespassing on your neighbour's land which something
necessarily causes injurious effects to the property of your neighbour. "It is the law, that at any time
within 20 years after the house is built, the owner of the adjacent soil, may with perfect legality dig
that soil away, and allow his neighbour's house, if supported by it, to fall in ruins to the ground." AIR
1921 Mad 322. If the demolition, of the walls and the terrace undertaken by the accused has no
Sec. 24 General Explanations 41
justification in law, then the loss caused to the complainants by reason of that demolition must be
deemed to be by unlawful means; Unless these accused have got a right of abating a public nuisance,
the acts done by them can in no sense be deemed to be lawful." 57 Mad 351.
6. Gain or loss to be material.—In the definition of "dishonestly" the word "gain" must be
taken to mean a material gain. A recognition from a Settlement Officer that a person was entitled to the
title of Loskur was not "gain",.within the meaning of Section 24. 10 Cal 584.
7. Deterioration is not loss.—There is wrongful loss of property only if person is KEPT OUT
OF or DEPRIVED OF property. Therefore, if property deteriorates as a result of use by the pledgee
there is no loss of the property. 3 MHCR (App) 6.
8. Gain or Loss has reference to the thing dishonestly taken.—Section 24 says that 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'. Obviously, there was no wrongful gain to the applicants
in the driving of the cattle-to the pound ; nor can it be said that any wrongful loss was caused to the
owners of the cattle even though they would have had to incur expense in order to get the cattle
released. It was held in 24 WR Cr 7 that the loss refers to the thing dishonestly taken; which, in this
case, would mean the animals themselves ; and, it could not be contended that the owners were in any
way deprived of them, except temporarily whilst they remained in the pound—the last words of the
clause referred to (Section 23) "to which the person losing it is legally entitled," show clearly what is
meant by the words "wrongful loss" as applied .t6 the owners of the cattle. A similar view that an
illegal seizure of the cattle and taking them to the pound does not constitute theft was also held in 10
CaIW N ccxxviii. AIR 1943 Oudh 280.
9. Dishonest intention.—lnteiition has got to be proved. A dishonest intention may be presumed
anlyif an unlawful act is done or if a lawful act is done by unlawful means. A IR 1934 A ll 711. The
determining factor is the intention. A IR 1915 Mad 600. Intention must be inferred 'from the acts done
and the circumstances. 1955 A ndhra W R 239, A px A .. it was held that the prisoner's immediate and
more probable intention, which alone, and not his remoter and less probable intention, should be
attributed to him was not to cause wrongful loss to the second payee by delaying payment of 1k. 500
due to her, though the act might have caused her loss, but to conceal the previous fraudulent
withdrawal of the first payee's Tk. 500 ; that under these circumstances he could not be said to have
acted "dishonestly" or "fraudulently" within the meaning of Section 24 or Section 25. 8 A ll 653.
Intention must be inferred from the acts done and the circumstances. 1955 A nd/ira W R 239, The
obvious and known effect of the advantage to be gained and even the intention to, profit by it are
insufficient to prove an intention to defraud. An intention to gain, an advantage for one's 'self may
incidentally involve loss to another. But it is not identical with an intention to cause such loss. 25
Born 202. "When a person takes another man's property, believing, under a mistake of fact and in
ignorance of law, that he has a right to take it, he is not guilty of theft because there is no dishonest
'intention, even though he may cause wrongful loss within the meaning of the Code. Mere intention to
deceive does not necessarily imply a dishonest intention. 28 Mad. 90. Intention to. convert an illegal, or
doubtful claim into an apparently legal one is dishonest. A IR 1937 Nag 89. Illegal seizure of the cattle
and taking them to the pound is not dishonest and does not constitute theft was also held in .lO Cal
W. N. ccxxviii. AIR 1943 Oudh 280. Sending a forged certificate or signing a certificate in a false name
or giving an address which is not his may not necessarily be.dishonest. 43 Cal 421;. 25 Mad 726; 28
Mad 90. But presenting false certificate was held to be dishonest.- 15 A ll 210. A person taking the fruit
42 Penal Code Sec. 25

of jungle trees would not necessarily know that tress belonged to some one and dishonesty cannot be
presumed, but not so in the case of a person who by deceit reaps the crop of another. AIR 1935 All 264.
A co-owner of a movable, property whose share is defined can be held guilty of committing theft if he
removes the joint property dishonestly without the consent of other co-owners. 1966 Cr Li 856. A
person can be said to have dishonest intention only if in taking the property his intention is to cause
gain by unlawful means of the property for which the person so gaining is not legally entitled or to
cause loss by. For dishonest, intention, it is not necessary that there must be wrongful gain to the thief.
It is enough if the removal causes a wrongful loss to the owner. 1967 Raj 190.
10. Claim of right and intention.—If a person enters on land in the possession of another in the
exercise of a bona fide claim of right, but without any intention to intimidate, insult or annoy the
person in possession, or to commit an offence, then although he may have no right to the land he
cannot be convicted of criminal trespass, because the entry was not made with any such intent as
constitutes the offence. So also if a person deals injuriously with property in the bonafide belief that it
is his own he cannot be convicted of the offence of mischief, because his act was not committed with
intent to cause wrongful loss or damage to any person. But the mere assertion of a claim of right is not
in itself a sufficient answer to such charges. It is the duty of the Court .to inquire whether the claim • is
bonafide or is a mere pretence and to determine what was the intention of the alleged offender, and if it
arrives at the conclusion that he was not.acting in the exercise of a bonaJlde claim of right, then it
cannot refuse to convict the offender, assuming of course that the other facts are established which
constitute the offence. AIR 1931 Pat 337.
ii. Section 24 if exhaCstive.—Section 24 is not an exhaustive definition of the word
"dishonestly". The section does not say that the word "dishonesily" is applicable only when there is
an intention of causing wrongful gain to one person or wrongful loss to another person but properly
construed meang that case of intention of causing such wrongful gain, or loss are to be considered as
coming within the wider class of dishonest actions. The obtaining of an acquittal is very distinctly the
obtaining of an advantage and brings the case within the definition of "dishonestly" in Section 24, AIR
1929 Pat 60.

Section 25
• 25. "Fraudulenfly".—A person is said to/do a thing fraudulently if he does that
thing with intent to defraud but not otherwise. .
Cases Synopsis
I. Fraud. advantage.
2. Intent to defraud 5. Deprivation of property not necessary.
3. Deceit, secrecy and Intention 10 cause injury. 6. Fraudulently; Dishonestly.
4. Deceit plus unlawful or unfair 7. Concealment of fraud is fraud.
I. Fraud.—Where there is an intention to deceive and by means of the decejt to obtain an
advantage there is a fraud and if.a document is fabricated with such intent, it is a forgery. Jahangir
Hossain V s. Slate. 40 DLR 545. By fraud is meant an intention to deceive ; whether it be from any
expectation of advantage to the party himself or from ill-will towards the other is immaterial. 13 Born
.515. In the ordinary legal sense the expression "intent to defraud" implies conduct coupled with an
intention to deceive and thereby to injure. The word "defraud" involves two conceptions, viz., deceit
Sec. 25 - General Explanations 43
V

and injury to the person deceived, that is an infringement of some legal right possessed by him, but
not necessarily deprivation of property. 38 Cal 75. The word 'fraud' or 'fraudulently' must be
understood in the general and popular sense. It involves two elements, viz., (I) deceit and (2) injury
caused or likely to be caused to the person deceived or someone else in consequence of the deception.
AIR 1968 Mad 349.
•Q purchased a motor car with her own money in the name of her minor daughter N, had the
insurance policy transferred in the name of her minor daughter by signing her (minor's) name and also
received compensation for the claims made by her in regard to the two accidents to the car. The claims
were true claims and she received the moneys by signing in the claim forms and also in the receipts as
N. The accused in fact and in substance put through her transactions in connection with the said motor
car in the name of her minor daughter. N was in fact either a benarnidar for Q, or her name was used for
luck or other sentimental considerations. On the facts found, neither Q got any advantage either
pecuniary or otherwise by signing the name of N in. any of the said documents nor the Insurance
Company incurred any loss, pecuniary or otherwise, by dealing with Q in the name of N. The
Insurance Company would not have acted differently even if the car had stood in the name of Q and she
had made the claims and received the amounts from the insurance company in her name. On these facts,
the question that arose was whether Q was guilty of offences under Sections 463 and 464. It was held
that Q was guilty of deceit, for though her name was Q she signed in all the relevant papers as N and
made the insurance company believe that her name was N, but the said deceit did not either secure to
her advantage or cause any non-economic loss or injury to the insurance company. The charge did not
disclose any such advantage or injury, nor was there any evidence to prove the same. In the charge
framed, she was alleged to have defrauded the insurance company and the only evidence given was that
if it was disclosed that N was a minor, the insurance company might not have paid the money. But the
entire transaction was that of Q and it was only put through in the name of her minor daughter N for
reasons best known to herself. On the-evidence as disclosed, neither was she benefited nor the insurance
company incurred loss in any sense of the term. Q was not guilty of the offences under Sections 467
and 468. AIR 1963 SC 1572.
2. Intent to defraud.—Intention to defraud is another essential ingredient. Unless there is an
intention to defraud, no act can be fraudulent. Intent to defraud does not mean an intention to deceive.
It means an intent to cause a person to do or omit to do something as a result of deception. A IR 1966
SC 523. There may be intention to defraud without the power or the opportunity to defraud.........It is
not necessary that any person should be in a situation to be defrauded. There may be an intention to
defraud although no person could be defrauded. A general intention to defraud without the intention of
causing wrongful gain to one person or wrongful loss to another, would, if proved, be sufficient to
support a conviction. A IR 1926 Mad 1072. In construing Sections 24 and 25 of the Code the primary
and not the more remote intention of the accused must be looked at. 19 Cal 380. Intention, ex
necessitate rei, relates to some future occurrence and not to the past. It cannot be said when wrongful
loss or wrongful gain has already been caused, or a person has already defrauded, anything can be
subsequently done which could be dictated with the intention to cause that which has already occurred.
He intended by those falsifications to escape the punishment and disgrace which the expected discovery
of the deficit and criminal breach of trust would involve. Such an intention does not, in the eye of the
lai, render the case one of forgery. 5 A ll 221. In a trial upon a charge, under Section 471 of
fraudulently or dishonestly using as genuine documents known to be forged, it was found that the
forged-receipts for the payment of rent, used by the prisoner, had been fabricated in lieu of genuine
44 Penal Code Sec. 25

receipts which had been lost. With reference to the definitions of the terms "dishonestly" and
i fraudulentIy in Section 24 and 25 the prisoner, upon the facts as found, had not committed -the
offence punishable under Section 471. 7 A ll 459. Whether or not there is an intent to defraud in any
particular case depends on the circumstances of the case. 36 Cal 955.
3. Deceit, secrecy and intention to cause injury.—The word "fraudulently" in the Code
ordinarily connotes firstly, an element of deceit or secrecy and secondly, an intention to ca use injury.
The accused having so recently given an undertaking must have known that the transfer in breach of the
undertaking would have the effect of impending the execution of the decree and he must have intended
that it would have that effect. It is quite immaterial whether it would be possible for the decree-holder
by taking other proceedings to defeat that attempt. If there was an intention to prevent this property
being taken in execution of the decree and if that intention had as its motive the object of injuring the
creditor, it does not matter whether the object was likely to be achieved or not. A IR 1940 Mad 271.
The words 'dishonestly' and 'fraudulently' do not mean exactly the same thing. A dishonest act is not
necessarily a fraudulent act. The elements which make an act fraudulent are deceit or intention to
deceive and in some cases even mere secrecy. Where there is neither the intention to deceive nor
secrecy, the act though dishonest is not fraudulent. A IR 1934 Hyd 56. The accused in order to obtain a
recognition from a Settlement Officer that they were entitled to the title of "Loskur", filed a sunnud
before the officer purporting to grant that title. This document was found not to be genuine. The
intention was to produce a false belief in the mind of the Settlement Officer that they are entitled to the
dignity of"Loskur" and in order to produce this belief they produced the sunnud which has been found
to be not genuine. It cannot be held in this case that the sunnud was produced to "defraud" the
Settlement Officer and therefore it cannot be said that they used the document "fraudulently", as defined
- in Section 25. 10 Cal 584. 'Fraudulently' implies something more than a deception intended to secure
an advantage to the receiver. The advantage sought to be gained by the deception should make it
fraudulent, involve some distinct loss or detriment to another or the likelihood of such loss or -
detriment though, no doubt, it would ordinarily be so when an advantage would accrue to the deceiver.
• A mere intention to deceive does not necessarily imply an intention to defraud or to cause wrongful
loss to one person or wrongful gain to another. A person to be defrauded must suffer some harm or
damage or injury. Where a person gave a false application to the University his intention was to
subject himself to examination, which could not be deemed a thing of value ; if he failed, it ended in
nothing ; if he passed, he became entitled to a certificate not in consequence of the false writing but on
his own merits. There was no fraud. 28 Mad 10. S held a Matriculation certificate which had been
issued to him by a University. Chad failed to pass the Matriculation examination. .The Registrar of the
University received a letter purporting to be signed by S, stating that his certificate had been lost and
.requesting that a duplicate might be issued. Enclosed with the letter was what purported to be a
certificate by the ,headmaster of a local school, corroborating the statement as to the loss and supporting
the application for the issue of a duplicate. This document had not, in fact, been written by the head-
master and S had not -in fact lost his Marticulation certificate. It was held that no offence was
committed. 25 Mad 726 Q inserted his name as an attesting witness. The insertion of his name as an
attesting witness may have increased the apparent evidence of the genuineness of the instrument. But
- the insertion of the name by itself could not have been intended to cause wrongful gain to one person or
- wrongful loss to another person. The insertion of the name of the appellant as a witness could not have
-- :-been with intent to defraud. In popular phraseology his conduct may he described as dishonest and
fraudulent, but his act does not fall within the scope of the definitions given in Sections 24 and-25 of
Sec. 25 General Explanations 45

the Code. The essence of the matter is that, although he might have intended that it should be believed
that he was an attesting witness, he could not have thereby intended to cause wrongful gain to one
person or wrongful loss to another person or to defraud any person by his act. 38 Cal 75. Q made a
,revaricatory statement in respect to his place of residence, in order to facilitate his recruitment in the
Police force. The element of "fraud or dishonesty" is absent from these circumstances ; and there is no
attempt to show that the act "caused or was likely to cause damage'or harm in body, mind, or
reputation" to the person when he is supposed to have misinformed as to his ordinary place of
residence. 6 All 97. .
4. Deceit plus unlawful or unfair advantage.—An intent to defraud implies something more
than mere deceit. The object for which the deceit is practised has to be considered. The advantage
intended to be secured or the harm intended to becaused need not have relation to property or be such
as is implied in the term "dishonestly" ; but it must be something to which the party perpetrating the
deceit is not entitled either legally or equitably. As Mr. Mayne puts it, "of course there can be no
intention to defraud where no wrongful result was intented or could have arisen from the act of accused"
(Criminal Law, 3rd Edn, p. 817). There must be some advantage on the one side with a corresponding
loss on the other. Two employees of a bank which was financially unsound and likely to fail at any
moment falsified the booki of the bank by enetering therein certain totally fictitious traimsactions, not
with any intention to defraud the bank or its preditors, but simply in order to secure repayment of the
security which had been deposited by one of them on his appointment and which was then about to
become due for refund. 47 A ll 948. Altering the age in a certificate of passing an examination is
fraudulent even if it is not dishonest. 13 Born 513. It is fraudulent to use a false certificate to' obtain a
situation. 22 Born 768.
5. Deprivation of property not necessary.—The word "fraudulently" should not be confined to
transactions of which deprivation of property forms apart. 25 Cal 512 FB.
6. Fraudulently ; dishonestly.—The difference between an act done dishonestly and an act done
fraudulently is that if there is the intention by the deceit practiced to cause wrongful loss that is
dishonestly, but even in the absence of such an intention, if the deceitful act wilfully exposes anyone to
risk of loss, there is fraud. A IR 1938 Pat 165. An act may be dishonest and yet not fraudulently. AIR
1954 1-lyd 56 A person lawfully entitled 'to possess arms and ammunition signing the prescribed
certificate of purchase of the same in the name of another with an address not his own, and thereby
deceiving the gunsmith and the Government and defeating the object of the certificate commits forgery
his act having been done "fraudulently" if not "dishonestly". The question is whether the signing of
the certificate in a false name and giving in each case an address, which was not his, amounts to forgery
on the part of the appellant. It may be that the action of the appellant was not "dishonest" raking 'that
word in the sense ascribed to it by Sections 23 and 24. There can, however,, be no doubt he acted
"fraudulently". His intention was undoubtedly to deceive both the firms, who sold him these revolvers
and ammunition and also the Government, which has prescribed the formalities to be observed in such
sales. He must be taken to have known that the certificate was required for the identification of the
purchaser and the weapons purchased. This purpose he deliberately defeated by his action in making
out false certificates. 43 Cal. 421. In order to do a think dishonestly there must be intention to cause
wrongful loss or wrongful gain of property, but in order to do a thing fraudulently it is not necessary
the there should be the intention to cause wrongful loss or wrongful gain of property. The Legislature;
advisedly uses the terms "dishonestly" and "fraudulently". To 'say that to 'do a thing fraudulently there
46 Penal Code Sec. 25

must be the intention to cause wrongful loss or wrongful gain would be attributing to the Legislature
redundancy. On the other hand, the words "dishonestly" and "fraudulently" are used to denote two
different things. A IR 1926 Mad 1072. The term "defraud" denotes some form of dishonestly. An
'intention to defraud' has to be inferred from the conduct of the accused and must necessarily involve
something in the nature of -cheating. A bona fide allegation that is a tax is not payable, which
allegation is subsequently proved to be ill-founded, does not justify a finding that there was an
intention to defraud. AIR 1935 Born 162. "Dishonest intention" is something different from "fraudulent
intention", It was the appellants' intention that the share-holders and the public should, as a result of
deception exercised by them by placing before them false figures about the position of the Bank,
deposit their money in the Bank and purchase a larger number of shares which otherwise they would
not have done. This constitutes an intent to defraud: "Intent to defraud" implies deceit and consequent
injury or intended injury, i.e., the infringement or intended infringement of some legal right possessed
by the person deceived. It does not necessarily imply that the person deceived should be deprived of
property. It includes deceit which causes or is likely to cause any damage or harm to the person
deceived in respect of his property or otherwise. The conduct of the appellants in issuing the false
statutory report was calcul'ted to deceive the public and was intended to induce them to invest their
money in the Bank which they would not otherwise have invested. Any persons who might invest
their money in the Bank as a result' of the appellants' deceptions must be deemed to have been
defrauded by them. AIR 1926 Lah 385. "Let a person's title to property be ever so good yet if, in the
'course of an action brought against him to gain possession of the property, he uses by way of
supporting.his title, though there may be no necessity for the use of it, a forged document, he uses if
fraudulently. 9 Cal 53. R was authorised to draw the money, due to the members of the family, it
follows that he was legally entitled to the money and that the money was not property to , which the
Collector was legally entitled, for he could have been compelled, on proof of the authority, to pay it
over to R, and no doubt.'had he realised that he would have been justified in paying it to R on his sole
receipt, he would have paid it. Therefore, it cannot be said that the Collector was dishonestly induced
to part with the money. The word "fraudulently" is not confined to transactions in which there is
wrongful gain on the one hand, or wrongful loss on the other, either, actual or intended. The word
"defraud", which is not defined in the Code, may or may not imply deprivation, actual- or intended.
The Collector was undoubtedly deceived. He had refused to pay upon the receipt of R and would not
have paid but for the fact that the 'receipt purported to be, though in fact it was not, signed by all the
persons entitled to the money but in the general acceptation of the word he was not defrauded. One K,
who had agreed to sell land, set out to register the conveyance, but fell ill on the way and sent on the
defendant who, by personating her, had the deed registered in her name, it was held that the defendant
had ' committed an offence under the Registration Act, but that he was not guilty of cheating by
personation under Section 419, P.C. It was considered that there was nothing to show that the prisoner
intended to defraud or injure any one in personating K and doing an act which K, doubtless, would
have done, had she not been prevented, by illness from going to the office of the Registrar in person. 32
Cal 775. -
• 7. Concealment of fraud is frand : One view.—A man who deliberately makes a false
document with false signatures in order to shield and conceal an already perpetrated fraud is himself
acting with intent to commit fraud. It is a fraud to take deliberate measures in order to prevent persons
already defrauded from ascertaining the fraud practised on them and thus to secure the culprit who
.practised the fraud in the illicit gains which he secured by the fraud. 37 Born 666. The making of false•
Sec. 26-27 General Explanations 47

entries in a book or register by any person in order to conceal a previous fraudulent or dishonest act
falls within the purview of Section 477A of the Code, inasmuch as the intention is to defraud. 35 Cal
450.
Contrary view.—The alternative of accounts so as to show the receipt of a sum of money
criminally misappropriated and in order to remove evidence of such misappropriation, is not an offence
either under Section 465 or Section 477A, there being no intent to commit fraud. 36 èal 955. A clerk
who had committed criminal breach of trust, subsequently made false entries in an account book with
the intention of concealing such offence, did not intend to cause wrongful loss or wrongful gain to any
person, or intent to defraud any one. 5 All 221.

Section 26
26. "Reason to believe".—A person is said to have "reason to believe" a thing if
he has sufficient cause to believe that thing but not otherwise.
Cases Synopsis
1. Reason to believe. 3. Reason to believe and suspect.
2. Knowledge and reason to believe.
1. Reason to believe. —If the circumstances are such that a reasonable man would be led by a
chain of probable reasoning to conclude that the articles found were stolen, he must be held to have the
reason to believe. 1972 Cr1 L.J217; A IR 1969 Delhi 91.
2. Knowledge and reason to believe.---A person can be supposed to "know" where there is a
direct appeal to his senses. A person "has reason to believe" under Section 26 if he has sufficient cause
to believe the thing but not otherwise. AIR 1930 All 33.
3. Reason to believe and suspect.—The word "believe" in Section 414, is a very mush stronger
word than "suspect", and it involves the necessity of showing that the circumstances were such that a
reasonable man must have felt convinced in his mind that the property with which he was dealing must
be stolen property. 6 Born 402, A IR 1917 Mad 418; A IR 1961 Tri 46; A IR 1969 Delhi 91.

Section 27
27. Property in possession of wife, clerk or servant.—When property is in the
possession of a person's wife, clerk or servant, on account of that person, it is in that
person's possession within the meaning of this Code.
Explanation.— A person employed temporarily or on a particular occasion in the
capacity of a clerk, or servant, is a clerk, or servant, within the meaning of this section.
Cases Synopsis
1. Possession of wife.. 5. Possession of the head ofafamily.
2. Possession of clerk or servant. 6. Pointing out is not possession.
3. Temporary clerk or servant. 7. Possession must be with knowledge and
4. On account of that person. exclusive.
1. Possession of wife.—While a permanent mistress may be regarded as a "wife" for the purfose
of Section 27, it would still be necessary to prove that the possession by the mistress was on accouht
of her protector before it could be held that the latter was in possession of articles of which the actual
48 Penal Code Sec. 27

physical possession was with the mistress. In the ordinary course of things when a man furnishes a
house for his mistress' occupation he may reasonably be presumed to be in possession of all articles
therein which can reasonably be inferred to belong to lim or to be in the possession of his mistress on
his behalf. A IR 1914 Lah 455. "The possession of the husband does not necessarily connote that the
wife was also liable. It cannot be presumed that the wife was also jointly in possession with him.
Section 27, also, lays down that the temporary possession of the wife should always be attributed to
the husband. A IR 1935 Pesh 68. Husband is not responsible if the key of the box is produced by the
wife. A IR 1961 Punj 30.
2. Possession of Clerk or. Servant.—Where there is nothing to show that a pistol is a sort of
article that one can reasonably expect to be for sale in the shop of the accused, possession by servant of
the accused of the pistol is not possession on account of master. A IR 1923 A ll 33. Possession of
the driver and the cleaner was possession of their master. The driver and the cleaner, therefore, had
no power whatever to execute the two receipts and give any consent on behalf of their master.
Possession of wood by a forest inspector, who is a servant of Government, is possession of the
Government itself; and a dishonest removal Of it without payment of the necessary fess, from his
possession, albeit with his actual consent, constitutes theft, if that consent was unauthrised or
fraudulent. A IR 1942 Oudh 318.
3. Temporary clerk or servant.— See Explanation to the Section.
4. On account of that person.—If the clerk or servant is in possession of property on his own
account and not on account of his master, the property is not deemed to be in the possession of the
master. Possession of the staff quarters lawfully obtained by a Railway employee, while under the
service of the Railway is that of the Railway through him as its servant, but it can be lawfully
determined only by steps taken under Section 138 of the Railways Act, and the fact of his dismissal
does not, by itself, put an end to his right of possession. In order to render such possession unlawful,
there must be an interruption of possession and a re-entry after such interruption, it cannot be said that
a true owner may, at all times, enter his own premises and use force and violence to eject a trespasser;
such an act though not tortuous and actionable, may still give rise to criminal liability if attended with
force and violence. 231C 177 A IR 1923 A ll 33. "Where, in K's absence from home, the accused
entered his house with wife's consent in order to commit adultery with her ; the house being in the
wife's possession on account of her husband it was in his possession within the meaning of Section 27
and the consent of the wife to the entry of the acused could not save him. 591C 550.
5. Possession of the head of family.—Where proceedings under the Arms Act, 1878, in
respect of the unlawful possession of arms are taken against a member of a joint family not being the
head of such joint family and arms are found in a common room of the joint family house, it is
incumbent upon the prosecution to give good evidence that such arms are in the exclusive possession:
and control of the particular member of the joint family who is sought to be charged with this
possession. 15 A ll 129. There is no general presumption that head of the family is in possession. A IR
1933 A ll 437. The mere fact that an article is found in a house belonging to ajoint family does notper
Se render every member of the family liable for its possession ; and where, the afticle is found in a
portion of the house, not in the exclusive possession of any particular member, but used by, or
accessible to, all the members of the family, there is no presumption that it is in the possession.,-or
control of any person other than the head of the family. Although D as the head of the family must be
prima facie presumed to be in pbssession, this presumption was rebuttable and in the absence of any
Sec. 28 General Explanations

evidence to the contrary had been sufficiently rebutted by the fact of his absence at the time of recovery
and for two days previously from the village. Possession to be punishable under the criminal law must
be possession with knowledge and neither knowledge, nor intention as to the use of an object can be
imputed to a person who is not conscious of its existence. A IR 1928 Lah 272 ; A IR 1961 Mad 162.
Where the meaning of possession is explained at length as conscious possession and not merely
physical possession of the accused.
6. Mere pointing out is not possession.—See 47 A ll 2511 , 17 A ll 577; A IR 1948 Lah 69 A ll?
1944 Mad 117; and Section 114 in the Evidence Act.
7. Possession must be with knowledge and exclusive.—See Section 114 in the Evidence Act.

Section 28
28. "Counterfeit".—A person is said to "counterfeit" who causes one thing to
resemble another thing intending by means of that resemblance to practise deception,
or knowing it to be likely that deception will thereby be practised..
16 [Explanation 1.--It is not essential to counterfeiting that the imitation should be
exact. .
Explanation 2.—When a person causes one thing to resemble another thing, and.
the resemblance is such that a person might be deceived thereby, it shall be presumed,
until the contrary is proved, that the person so causing the one thing to resemble the
other thing intended by means of that resemblance to practise deception or knew it to
be likely that deception would thereby be practised.]
Cases Synopsis
I. Counterfeit ingredients. 5. Intention presumed (Explanation 2)
2. "Causes one thing to resemble another". 6. A ltering used stamps.
3. "IntendIng by means of that resemblance to 7. Mere palming off is not counterfeiting.
practise deception' 8. Onus of proof
4. Imitation need not be exact (Explanation 1).
1. Counterfeit ingredients.—In Section 28, the word, "counterfeit" does not connote an exact
reproduction of the original counterfeited (1971 Mad L.J (Cri) 400) and it follows that the difference
between the counterfeit and original is not limited to difference existing only by reason of faulty
reproduction. A person, for instance convicted of counterfeiting the King's coin would not be able to
avoid conviction on the ground that he had deliberately made a small alternation in the design or.
omitted a letter from the superscription surrounding the Monarch's head. The same principle would
apply in the counterfeiting of trade mark. 1938 Nag 192. Although the resemblance need not be
exact, it is . essential that the counterfeit must be of such a character that it would be-possible to pass it
off as a genuine coin and unless that is so, it would not be possible to practise deception which is one
of the ingredients of the definition of counterfeit in Section 28. Therefore, where the evidence of the
expert was that is was not possible to pass off the alleged counterfeit coins as genuine coins the accused
could not be said to have committed an offence within Section 243. AiR 1956 Born 511.

N)
16. Subs, by the Meta' Tokens Act, 1889 (2 of 1889). s. 9, for the original Explanations.
50 Penal Code Sec. 29
Ordinarily, counterfeiting implies the idea of the exact imitation ; but for the purpose of the Penal
Code there can be counterfeiting even though the imitation is not exact and there are differences in
detail between the original and the imitation so long as the resemblance is so close that deception may
thereby be practised. Explanation 2 to Section 28 lays down rebuttable presumption where the
resemblance is such that a person might be deceived thereby. In such a case the intention to deceive or
knowledge of likelihood of deception would be presumed. See also Explanation I.
Where on a comparison of the labels and wrappers used by the accused on his soaps with the
genuine labels and the wrapper of the Sunlight and Lifebuoy soaps of the complainant companyihe
Court came to the conclusion that the resemblance between them was such as might deceive a person
and that the differences in details did not affect the resemblance. Explanation 2 to Section 28 will apply
and as the contrary was not proved it must be held that necessary intention or knowledge was there and
these wrappers and labels are counterfeit of the genuine wrappers and labels of the Sunlight and
Lifèbuoy soaps of the company. AIR 1960 SC 669.
2. Causes one thing to resemble another thing.—Causing resemblance is an important
ingredient but mere causing resemblance does not amount to counterfeiting unless it is coupled with an
intention to practise deception or knowledge of its likelihood. However, if resemblance is such that a
person might be deceived tfiereby, an intention, .or knowledge is to be presume1 unless contrary is
proved.
3. Intending by means of that resemblance to practise deception.—If coins are made to
resemble genuine coins and the intention of the makers is merely to use them in order to foist a false
case upon their enemies those coins do not come within the definition of counterfeit coins. AIR 1937
Mad 711;
4. Imitation need not be exact.— See Explanation I and AIR 1960 SC 669.
5 Intention presumed.—See Explanation 2.
Where the coins manufactured by the accused are very good imitations of a genuine coin and
persons might be deceived by the resemblance, the presumption referred to in the Explanation arises,
and it is for the accused to prove that their intention was innocent or that they did not know that it was
likely that deception would be practised. A IR 1931 cal 445.
6. Altering used stamps.—Section 28 applies where middle part stamps are altered to resemble
first:part stamps in order to deceive the licensees, who were in first deceived. They were sold to the
licensees, as genuine first part stamps, though they were In reality second part stamps altered to
resemble first stamps. AIR 1921 Nag 86.
7. Mere palming off or passing one thing as another.—Without causing it resemble another is
not counterfeiting. See 2 WR 65.
8. Onus of proof.—The onus of making out the elements of the offence rests upon the
prosecution and can be discharged by paying in aid the presumption which arises under Explanation 2
to Section 28. It is to be observed, however, that the prosecution must call relevant evidence to lay the
foundation for a presumption under Explanation 2 as the presumption, whereby an intention to practise
deception can be established, is rebuttable. AIR 1954 Cal 277.

Section 29
29. "Document".—The word "document" denotes any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than
Sec. 29 General Explanations 51

one of those means, intended to be used, or which may be used, as evidence of that
matter.
Explanation 1.— It is immaterial by what means or upon what substance the
letters, figures or marks are formed, or whether the evidence is intended for, or may be
used in, a Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract which may be used as evidence of the
contract, is a document.
A Cheque upon a banker is a document.
A power of attorney is a document.
A map or plan which is intended to be used or which may be used as evidence, is a
document.
A writing containing directions or instructions is a document.
Explanation 2.—Whatever is expressed by means of letters, figures or marks as
explained by mercantile or other usage, shall be deemed to be expressed by such
letters, figures or marks within the meaning of this section, although the same may not
be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to his order. Thç
meaning of the endorsement, as explained by mercantile usage, is that the bill is to be
paid to the holder. The endorsement is a document, and must be construed in the same
manner as if the words "pay to the holder" or words to that effect had been written over
the signature.
Cases Synopsi
1. "Document", be used as evidence" of that matter.
2. Intended to be used or which may 3. Evidence.

1 "Document".—An LTI affixed on a blank stamp paper simpliciter cannot signify

acknowledgment of legal liability nor can it signify that person who put his LTI has not a legal right.
QQ It is, therefore, difficult to hold that a mere LII on a blank paper to be a valuable security. Even though
the appellants cannot be convicted of the offence under Section 467 of the Penal Code, they are guilty of
the offence under section 465 having committed forgery. Conviction is altered from sections 467/34 to
465/34 of the Penal Code. 7 BCR 16=6 BLD 52. Is blank stamp paper containing L.T.I. a

"document"—If the blank stamp paper is produced in a Court of law it will be admissible in evidence
for proving the L.T.I.—It, therefore, fully answers the definition of the word "document" appearing in
Section 29 of the Penal Code.
The blank stamp papers containing L.T.I. is "false document" under the third clause of Section
464 of the Penal Code. The accused persons will be guilty of committing the offence of forgery for
creation of a false document—It is immaterial whether the stamp paper contained any contents or not—
It is enough that the victim did not know the contents of the documents even though it was blank by
reason of deception practised upon him buta mere L.T.I. on a blank stamp paper cannot be regarded as
a-valuable security. 6 BLD (HCD) 52=7 BCR 10. A careful reading of sections 29, 463 and 464 of the
Penal Code together would clearly show that a false document must have been actually made and that
52 Penal Code Sec. 30

mere taking of a signature on a blank paper without writing anything on that paper does not make it a
document. Since the complainant petitioner did not disclose the nature of the document allegedly
created the allegations made do not constitute the offence under section 465 of the Penal Code and as
such the impugned proceeding is liable to be quashed. 49 DLR 16
Section 29 defines "document". See also Section 3 of Evidence Act and 3(16) of General Clauses
Act. According to this section the document is the matter expressed or described upon any substance
by means of letters etc. and not the substance on which the matter is expressed. The illustration also
makes it clear that the endorsement on the back of a bill of exchange is a document. For convenience
the substance on which the whole matter is expressed may be referred to as a document. The
illustrations state that a cheque is document and that a map or plan is a document. Document includes
foreign currency. A IR 1962 Trip 50 An instrument though not signed by all the parties thereto, fulfils
the requirements of the definition of a 'document" in Section 29. 41 Mad 589. A printed marriage
invitation is a document. AIR 1954 Mys 119. X-ray photoplate orSkiagram is a document, ILR (1962)
1 Cal 392. See also explanation 1. Letters or mark, imprinted on trees and intention to be used as
evidence that the trees had been passed for removal by the Ranger of a forest, are documents within the
meaning of Section 29. A IR 1925 Born 327. Hammer may be a document. 3 Rang 17. Assessment
order is a document and valuable security. AIR 1969 SC 40.
2. Intended to be used or which may be used as evidence of that matter.—If the matter is
intended to be used as evidence it would be a document even if it cannot be legally used as evidence.
10' WC 61: 12 Mad 148: 7 MHC (A pex.) 26 Unless, the matter is intended to be used or which may
be used as evidence of that matter, it would not be a document. On this ground, the English cases
which lay down that an announcement whether written or printed of the character or quality of a chattel,
the false signature of an artist's name on a picture and the imitation of a trade mark on a wrapper
enclosing spurious goods would not be documents, are correct. 27 Li MC 225.
3. Evidence,—it is immaterial whether the evidence is intended for or may be used in a Court of
Justice or not, See Explanation 1. The word "evidence', occurring in Section 29 precedes the words
"of the matter" and the word "matter" as occurring in the opening portion of the section is qualified by
the words "expressed or described upon any substance by means of letter, etc." This -means that the
matter contemplated by this section is what is expressed or described upon any substance, and the
question is whether such a matter can be evidence of-its existence. It is obvious that the matter
expressed or described upon substance would certainly be the evidence of the fact that the matter exists,
though it may not by itself be a proof of the truth of the contents of the matter. The word "evidence" in
Section 29, implies evidence of the truth of the matter expressed and not merely of its existence. The
actual meaning of the word, 'evidence' would depend on the question as to what is the matter of which
evidence is in question. Is it the existence of a writing, if the question has arisen in connection with
that, or is it the truth of the subject of the writing ? If the question is what was in fact the writing
which the accused had filed before the House Controller and there is no question as to whether the
contents of that writing were true or false the production of the writing would certainly be evidence
within the meaning of Section 29. AIR 1949 All 354 which referred to 4 Mad 393. -

Section 30
30. "Valuable security".—The words "valuable security" denote a document
which is, or purports to be, a document whereby any legal right is created, extended, -
Sec. 30 General Explanations 53

transferred, restricted, extinguished or released, or whereby any persdn acknowledges.

that he lies under legal liability, or has not a certain legal right.
Illustration
A writes his name on the back of a bill of exchange. A s the effect of this endorsement
is to transfer the right to the bill to any person who may become the lawful holder of it,
the endorsement is a "valuable security",
Cases Synopsis
I. Valuable security. . .11. Account books and papers.
2. Document which is or purports to be a 12. Settlement of account not signed by any
document whereby any legal right is created, person.
3. Legal right. 13. Extorted documents.
4. Improperly stamped or un-stamped. 14. . Document executed by a minor.
5.. Document with blanks apid uncancelied stamps. . 15. Application.
6. Unregistered document. 16. Acknowledgment of legal liability.
7. Cancelled document. 17. Illustration.
8. Invalid document. 18. Illustration of documents which are valuable
9. Document not signed by all the praties thereto. securities.
10. Document signed by a person on behalf of 19. Illustrations of documents which are not
others, valuable securities.
1. Valuable security : This term occurs in Sections 329, 330 331, 347, 348, 420, 467 and 477.
It refers to every document affecting a legal right of a person over a property. 'Valuable security'
includes a document which on the face of it is a valuable security though in fact it is not so. Fatik
Thlukdar VS. State (1956) 8 DLR 414.
2. Document which is or purports to be a document whereby any legal right is created.—A
document means the original document and not a copy of it. A IR 1924 Cal 502. A document (patta
which purports to have been executed by six persons, but two only signed the document, is a valuable
security. It purports to create a legal right in S in a land. The use of the words "which is or purports to
be" in Section 30 indicates that a document, which , upon certain evidence being given, may be held
to be invalid, but on the face of it creates, or purports to create, a right in immovable property,
although a decree could not be passed upon the document, is contemplated within the purview of that
section. Had if not been so, any forged document, if the forgery was admitted, or any document which
was not executed or stamped according to law and on which no decree could be passed by a civil court,
could not be called a valuable security. 90 IC 918. Even if the document be not admissible in evidence
it might nevertheless be a valuable security. 12 Mad 148. A copy does not create a right. 5 BH.0 56. A
transit pass without which no forest produce could be removed was a valuable security. 59 Cal 1233.
An import licence without which no foreign goods could be imported would be a valuable security. 56
blr 188. An acknowledgment of receipt of an insured parcel is not a valuable security. It is merely
evidence that a parcel of some sort was delivered to the complainants and cannot operate as a discharge
of any liability and is not, therefore, a valuable security. A IR 1917 Pat 699.
There can be no conviction under Section 467 for forging a copy of a document which is a valuable
security. It is the original document which is a valuable security within the meaning of Section 30 and'
not a copy of it. A IR 1962 Cal 174.
54 Penal Code Sec. 30

Certificate in form of sales tax is a valuable security. A IR 1960 Born 145. Share certificate. ILR
(1962) 1 A ll 451, lottery ticket 1970 Ker LT 358 passport 1968 Cr Li 1282 are valuable securities.
3. Legal right.—The expression 'legal right' used in the definition of valuable security is not
defined but it can be said that a legal right is one which is either enforceable or recognized. A passport
creates a legal right and is A valuable security. A IR 1968 Mad 349. Interview letter does not give any
legal right to be consideration for the post and as such it is a valuable security. 1973 Cr Li 1640.
4. Improperly stamped or unstamped document.—This may not create such a legal right, but
as it purports to create a legal right it would be within Section 30. It is a valuable security as it
purports to be one. A IR 1918 Pat 274. Two documents were found in the possession of the accused
each bearing a signature which purported to be that of one B, but which in fact was a forged signature.
One document was intended to be filled up as a promissory note, the other as receipt, but the spaces for
particulars of the amount, the name of the person in whose favour the document was executed, the date
and place of execution and the rate of interest were not filled in ; a one-anna stamp was affixed to each
but it was not cancelled.. in any way. Even if the documents as they stood did not purport to be
valuable securities they would purport to be documents giving authority to the holder of the same to
make a valuable security. No doubt, the holder of these documents had no intention of propounding
them or using them in a court of law without first cancelling the adhesive stamps ; but the documents
as they stand cannot be said to be stamped in accordance with law. However, the documents must be
lId to be, as they stand, "valuable securities", as they purport to be documents whereby a legal right
is created.38 Al! 430.
5. Document with blanks and uncancelled stamp.—May be a valuable security. 38 A ll 430.
6. Unregistered document.—See 25 Cal 207.
7. Cancelled instrument or document.—Document in Section 30 refers to one which is
operative and not one which is cancelled. A document whereby any legal right is extinguished is
within Section 30. But the legal right must be extinguished by the document and not by the
cancellation of a document. Therefore, a cancelled document is not within Section 30. A cancelled
instrument though by the cancelling of it legal right may be extinguished inasmuch as the instrument
upon which such right depended is thereby voided, does not fall within its scope.
8.. Invalid instrument.—See 48 All 140.
9. Document not signed by all the parties thereto.—May be a valuable security if it imposes an
obligation on the parties who have signed it. 41 Mad 589.
10. Document signed by a person on behalf of other.—May be a valuable security. 48 A ll
140.
11. Account books and papers.—An account paper which purports to be a document whereby a
person acknowledges that he lies under a legal liability is a valuable security. A IR 1918 Pat 274.
Account books do not come within the definition of the expression, "valuable security" under Section
30. As such, they do not create any right and any entry in the account books cannot be the basis of
charging an accused with the liability of what is noted against him. Entries in the account books can be
merely evidence of certain alleged facts. Certain entries which might be signed by constituent may
form the basis of acknowledging his liability. A IR 1953 A ll 660. To become a 'valuable security' the
document itself should create the right or liability. Ordinarily speaking, account books do not by
themselves create any such right or liability, though they may evidence the existence of such right or
Sec. 31 General Explanations 55
liabilities. In other words, an account book generally speaking may be valuable evidence but is not
valuable security within the definition given in Section 30. That is not to say that under n
circumstances can an account book be considered valuable security. For instance, if such books
contained entries showing that certain amounts have been received from customers as sale tax which
would be an acknowledgment by the dealer of his liability to turn over those amounts to the Sales Tax
Department, then it can be rightly argued that the books themselves arevaluable security. AIR 1963
Ker 68.
12.Settlement of accounts not signed by any person.—Is a valuable security. A IR 1918
. Pat
274.
13.Extorted documents.—(Blank or otherwise) Executed as a result of fear of force or threat of
injury are valuable securities. AIR 1953 Pat 160.
14.Document executed by a minor.—May be a.valuable security. AIR. 1953 Pat 601.
15. Application.—Application filed by .Q and subsequently, torn by him is not a valuable
security. AIR 1963 All 131.
16. Acknowledgment of legal liability.—The section provides that a document whereby any
person acknowledges that he was under legal liability is a valuable security. A IR 1918 Pat 274.
17.Illustration.—See Explanation 2 to Section 29.
18. Ilustration of documents which are valuable securities..-(1) A title page in an account
book signed by the partners and stating their names and the capital contributed by each ; (2) Deed of
divorce ; (3) Hundi. (4) Imported licence ; (5) Kabuliyat ; (6) Transit pass of forest produce ; (7)
Counterfeit of a bank pay in slip acknowledging receipt of money A IR 1956 V P 30 ; (8) Discharge
receipt purporting to be signed by a fictitious nominee in an Insurance policy ; A IR 1956 V P 30;
Assessment order is a.valuable security. AIR 1969 SC 40. .
19. Illustrations of documents which are not valuable securities—Copies, A IR 1924 Cal
502. Interview letter, 1973 Cr1 LJ 1640. Postal receipt of insured parcel. A IR 1917 Pat 699. Forged
sanad to support title of Loskur—an office of dignity. 10 Cal 584. An administrative order passed by
the Criminal Superintendent of a Court of Sessions directing the Nazir of the Court to release an
accused on bail is not a valuable security. Accused gave a (post-dated) cheque for certain goods
delivered to him at an earlier date and got a receipt, but. the cheque was dishonored. The receipt does
not extinguish or realise any legal right. Unit payment of these charges, the rights remain, and the
giving of the receipt does not cancel or extinguish them. The receipt could be given in evidence to
prove that the payment had actually been made, but it would always be open to rebut this evidence by
showing that in fact no payment had been received by them. Moreover, the receipt does not even
purport to be an acknowledgment of payment. It amounts only to an acknowledgment that a cheque has
been received. A cheque whether post-dated or not is only a promise to pay, either on demand, or upon
the date which it has been post-dated. Therefore, the only effect of the receipt is an acknowledgment
that a promise to pay has been given by means of the cheque in question It cannot even come within
the last part of Section 30. AIR 1936 Cal 324.

Section 31
31. "A will".—The words "a will" denote any testamentary document.'
56 Penal Code Sec. 32-34

Meteriat
Will.—A "will' is a disposition or declaration by which the person making it provides for the
distribution or administration of property after his death. It does not take effect until the testator's
death, and is always revocable by him. The term occurs in Sectioncs 467 and 477. Sections 3(h) of
Succession Act XXXIX of 1925 defines will as the legal declaration of the intention of a testator with
respect to his property which he desires to be carried into effect his death. Will shall include a codicil
and every writing making a voluntary posthumous disposition of property. Section 3(57) of General
Clauses Act, X of 1897.

Section 32
32. Words referring to acts include illegal omissions—In every part of this
Code, except where a contrary intention appears from the context, words which refer
to acts done extend also to illegal omissions.
Cases
1. Illegal omission.—'Act.' is defined in Section 33. When the law imposes a duty to act on a
person, his illegal omission to act renders him liable to punishment. 20 Born 394.In view of Section
32 an omission is included in an act, but it is incumbent that such an omission must be illegal and the
onus lies in the perosecution to show that the omission, which is being treated as an act, was either an
offence or was prohibited by law or was one which furnished grounds for a civil action as required by
Section 43, which defines what "illegal' means. An inaction, which is not shown to be illegal would
never amount to an act under P.C. It is an illegal inaction alone that can make a person equally liable
with the actor himself. A IR 1934 Lah 813. The omission must be such as to have an effect conducing
to the result, as a link in the chain of facts from which an intention to bring about the result may be
inferred.. 1. W éir 49. G, a village chowkidar, was wrongly convicted of abetment of the extortion
committed by S, as the omission on the part of 0 to disapprove of the conduct of S is not an illegal
omission. 8 Cal 728. An illegal omission would constitutte an act in law. 1968 Cr Li 405.

Section 33
33. "Act"—"Omission".—The word "act" denotes as well a series of acts as a
single act; the word "Omission" denotes as well a series of omispions as a single
omission. -
Material
I. Act includes illegal omission.— See Secetion 32.
2. Acts or act or a transaction.—'Act' must be construed inthe light of common sense androt
in a metaphysical sense.

Seètion 34
17[34. Acts done by several persons in furtherance of common intention.—
When a criminal act, is done by several persons, in furtherance of the common
intention of all, each of such persons.is liable for that act in the same manner as if it
were done by him alone]. .

17. Subs, by the Indian Penal Code Amendment Act, 1870 (XX VII of 1870), section I, for the original section.

Sec. 34 General Explanations 57

Cases Synopsis
Editorial Introduction.-The case law on this section and the synopsis thereof as printed below
have been excerpted and adapted from V.B. Raju's book on Penal Code and have been enriched with
that of Bangladesh.
1. Ingredients and applicability. 33. Presence when the act Is done.
2. Common intention generally discussed. 34. Mere presence if sufficient to infer common
3. Principle of Section 34. Intention.
4. Section 34 does not create a distinct or 35. Persons with common Intention and
substantive offence but enunciates principle participating are not abettors.
of constructive joint criminal liability. 36. Fatal assault with laihis by several persons.
5. Principle of vicarious liability, applicability .37. The principle of Constructive liability cannot
Of. be applied twice under Section 34 and Section
6. Criminal act. 149.
7. Criminal act is done by several persons. 38. Constructive gullt-"common Intention" and
8. No overt act is necessary. "common object" under sections 34 and 149.
9. In furtherance of the, common intention of alL 39. Act which can be done by only one person.
10. Liable for that act in the same manner as if It 40. Section 34 and Section 35.
was done by him alone. 41. Section 34 and Section 37.
11. Common Intention Is the basis of liability. 42. Section 34 and Section 107 or Section 109.
12. Common Intention-when applicable. 43. Section 34, Section 109 an4 Section 149.
13. Common Intention implies previous Concert 44. Section 34 and Section 114.
and prearranged plan. It may also develop a 45. Section 34 and Section 1204.
moment before the criminal act. 46. 'Section 34 and 148.
14. Common intention must be known to all and 47. Section 34 and 149.
be shared by all. 48.:; Section 34, Section 149 and Section :302.
15. Common intention must exist when the 49. Section 34, Section 149 and Section 326.
criminal act Is done. 50. Section 34, Section 302 and Section 324.
16. Common intention to commit a crime. Si. Section 34 and Section 304 Part II.
17. Common intention and similar Intention. 52. Section 34 and Jurisdiction.
18. Section 34 refers to common intention and not 53. Charge.
to common knowledge. 54.. Omission to mention Section 34 in the charge
19. Common intention and common object. is not necessarily a fatal' defect.
20. Common intention and conspiracy. .55. Proof and inference.
21. Common Intention and Mens. Rea. 56. W hat the common Intention was must be
22. Common intention is a question offact. proved.
23. Common intention if proved, motive Is 57. Conviction of one accused and acquittal of the
Immaterial. remaining.
24. Common intention and individual intention. 58. C'onviction read with Section 34, without a
25. Common intention and primary intention. charge under Section 34.
26.' Common intention of master and servant. 59. Conviction read with Section 34 but without a
27. Common intention to kill A but B killed. charge under Section 34 but with .4itharge
28. Common intention not shared after a stage. under Section 149.
29. Principle of common intention must not be 60. Charge with ' Section 34: ConvictIon without
pushed too far. Section 34.
30. There can be no common intention if one 61. Conviction under Section 302 read with
person can claim the benefit of an exception: Section 34 may be altered to one under
-4
31. No common Intention in cases of sudden fight Section 326 read with Section. 149.
- or quarrel. 62. Section 34 and Sentence.
32. Instigation is not common intention. 63. Miscellaneous.
58 : Penal Code See. 34

1. Ingredients and applicability.—For the applicability of Section 34, the following must be
proved, viz-
(i) Commission of some criminal act.
(ii) Commission of criminal act by several persons.
(iii) Commission of criminal act in furtherance of common intention. See 1973 SCC(Cr) 384.
(A )A pplicability of the section in general.— A pplicability of the section to all of group insulting
the modesty of women, in which some accused are found to have taken active part. 9 DLR (SC) 127.
Section 34 of the P.C. is applicable when the common intention of the participants in a crime is to
commit an offence, and will have application when the number of the participants in the crime is more
than one It is established that the offence which resulted was committed in furtherance of the common
intention of all the participants, the fact that any of them did not take part in the commission of that
offence will not prevent his being held liable for the offence. Feroze Vs. State (1956) 8 DLR (W PC)
128. The question what injuries were inflicted by a particular accused in cases to which section 34
applies is immaterial the principle underlying the section being that where two or more persons act
with a common intention each is liable for the act committed as if it had been done by himself alone.
(1950) PLD (Pesh) 60. Accused grappling with the deceased—Other persons coming and stabbing him
to death—S. 34 not applicable. Where the accused was grappling with the deceased and held by hair
when another person came and stabbed him. It was held that S. 34 did not apply to the case and as aid
given to the killer by the accused was not given intentionally, sec. 107(3) did not apply. Taj Din Vs.
Crow 1955 PLD (lah) 356. Abduction—person not actually taking part in, but doing his part by
remaining outside the house—S. 34 applicable. Ghulam Quadir V s. State 1960 PLD (SC) 254.
Abduction and murder—Persons joining hands to abduct—One of them committing murder on the
spot'—Other not guilty of murder. Ghulanr Quadir Vs. State 1960 PLD (SC) 254.
(B) Sudden fight— Common object of party proved— S. 34 applicable.— It is wrong to say that
section 34 of the Penal Code, 1860 does no not apply in the case of a sudden fight or chance encounter.
If there is proof that some of the persons taking part in the fight which had suddenly arisen committed
an act indicating that their object was to commit that offence there is no bar to holding that they shared
the common intention there and then. Mohámmad Akber Vs. State 1961 PLD (Lah) 348.
(C) Sudden fight— "Common intention cannot be easily deduced"— Sec. 34 not applicable.— in a
sudden fight as in this case, .unity of mind and unity of action is not easily conceivable unless the
circumstances conjointly point the same. Ohulam Quadir V s. State 1959 PLD (Lah) 753. Under
section 34 each of the accused must do some act in furtherance of common intention. Abu Syed Vs.
State (1986) 38 bLR 17. In order to make an accused constructively liable with the help of s. 34 for an
offence not actually committed by him, it is essential to prove that he had intention to commit the
offence. Unless such intention is proved, he cannot be made liable under that section. Be/al Ahmed Vs.
The State (1988) 40 DLR 154. Mere standing of accused Belal at the door of Parvin will not constitute
an offence uls 34 read with s. 324 Penal Code in causing voluntary hurt by dangerous weapon. Bela!
A hmed Vs. The State (1988) 40 DLR 154. Principle of vicarious liability— Applicability of—Test as
to the applicability of that principle—Common intention implies a prearranged plan and it must be
proved that a criminal act was done in concert pursuant to the pre-arranged plan. Kabul Vs. The state
(1988) 40 DLR 216 Common intention—Distinction between same or similar intention and common
intention. Kabul V s. The state (1988) 40 DLR 216 Mere proof of each of the participating culprits
having same intention to commit certain act is not sufficient to constitute common intention. Kabul
Sec. 34 General Explanations 59
V s. The State (1988) 40 DLR 216. Principle of joint liability Existence of common intention
animating the accused sledding to the doing of a criminal act in furtherance of it. Kabul Vs. The State
(1988) 40 DLR 216. Inference of common intention shall never be reached unless it is a necessary
inference from the circumstances of the case. Kabul V s. The State (1988) 40 DLR 216. Common
intention may be proved by direct evidence. Kabul V s. The State (1988) 40 DLR 216. Inference of
common intention shall not be reached unless it is a necessary inference from the circumstances of the
case. Kabul V s. The State (1988) 40 DLR 216. Common intention—Each person may have same
intention to kill yet there might not be a prior meetings of minds to form a pre-arranged plan—
Individual liability as opposed to joint liability. Kabul V s. The State (1988) 40 DLR 216. No
evidence of a pre-concert or meeting of minds to cause the death of the deceased—Assault in furtherance
of common intention is difficult to prove. Kabul Vs. State (1988) 40 DLR 216. Common intention—
Joint liability—all the appellants are equally liable. Majibur Rahman Vs. State . (1947) 39 DLR 437.
Common intention—Unless the Court is told what the exact words were used by the accused person it
cannot act on the inference supplied by the witness—There is no evidence on record that the appellant
Nos 2-4 had an intention to -cause the death of Nandalal. A mar Kumar Thakur Vs. The State (1988) 40
DLR (AD) 147. Common intention—Each person may have same intention to kill yet there might not
to be aprior meeting of minds to form a pre-arranged plan—Individual liability as opposed to joint
liability. Kabul V s. State 40 DLR 216 Pre-plan not essential ingredient—It is true in this case there
was no pre-plan of the accused to kilt the victim—their common intention to kill developed on the
spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. State Vs.
Montu 44 DLR (AD) 287. Unless there is meeting of minds between the accused as to the commission
of crime of common intention, the application of section 34 of the Penal Code is improper. A bdul.
Khaleque and V s. State 48 DLR 446 For application of Section 34 ' it must be established first that a
criminal act has been done by several persons and secondly that all the participants intended the
commission of the criminal act and lastly the criminal act had been done in furtherance of a common
intention shared by all of them—There must be evidence to show that the accused were physically
present at the scene of the occurrence and they actually participated in the commission of the offence
following a pre-concert or a pre-arranged plan—Inference of common intention within the meaning of
Section 34 of the Penal Code should not be readily draw or pushed too far unless the same is clearly
deducible from the evidence on record. S.K. Baharul Islam V s. The Slate 11 BLD (HCD) 158. To
invoke Section 34 successfully, it must be shown that the original act complained against was done by
one of the accused persons in furtherance of the common intention of all. Mahbub Shah Vs. Emperor
A IR 1945 PC 118. Slate Vs. Md. Er shad A li . Sikdar and others (Criminal) 55 DLR 672.
2. common intention generally discussed.—(/) Common intention when can be inferred—
First blow by the Is: accused— A nother blow by another accused— Latter guilty under section 34,
common intention being inferred—In this case it should be noted that the allegation made by the
prosecution is that the accused S dealt a very severe blow on the shoulder of the deceased, soon after he
was given' a similar blow by the accused. If the prosecution case is believed in this respect, and
inference can be drawn that the blow given by S was in furtherance of the common intention with
which he had dealt the blow. Abbas Ali Vs. Ledu Sk. (1965) 17 DLR 108.
(2) Judicial statement— Incriminating portions of the judicial statement were corroborated by
other evidence on record— It was held that the very admission of presence on the scene of occurrence
indicates that the accused had complicity in the crime and the murder took place in , furtherance of their
common. intention. State Vs. Badiuzzaman, 91973) 25 DLR 41.
60 Penal Code Sec. 34

• (3) Common intention "— Pre-arranged plan—Common intention as used in section 34 p.c.,
• implies a pre-arranged . plan and an accused person cannot be convicted in respect of a criminal act by
application of this section unless such act was "done" in concert pursuant to the pre-arrangèd plan.
Sarder A li Vs. Crow (1957) 9 DLR (FC) 7.
(4) Common intention can develop in course of the events.— Common intention can develop in
course of the event which constitute the incident as a whole, although such intention may not have
been present in the mind of any of the culprits at the commencement of the incident. Sarder A ll. Vs.
Crow (1,957) 9 DLR (FC) 7. Common intention can be formed even during the course of the
• transaction. Sana U/la/i Vs. Crow (1954) 6 DLR (W PC) 90. The common intention under section 34
of the P. Code can beestablished as an inference from the fact of participation in the commission of the
offence. Tera Mean. Vs. Crow (1955) 7 DLR 539. The facts of the case were that when the accused
went to the house of the deceased, he had no intention to kill him. When in response to his call for
help the other accused came, they 'could have no intention to cause the death of the deceased although
they came armed with aticks and takwa. It was held that they must have formed the common intention
to cause the death of the deceased when they attacked him with their respective weapons, for they
inflicted as many as five injuries in the region of the. head, and only one on the chest and with such a,
force as to cause a fracture of as many as three of the ribs. Sana Ullah Vs. Crown (1954) 6 DLR (W PC)
90. Intention—To be gathered from conduct of accused and attending circumstances. In order to
determine the intention of a person, it is very seldom that one can expect to find positive affirmative
evidence; generally speaking, the intention is to be gathered from the conduct of the person and the
attending circumstances. Bahar Vs. crown (1954) 6 DLR (FC) 205.
(5) In furtherance of common ; intention. —Under sec. 34, the criminal act must itself be committed
by the accused persons in furtherance, of a common intention the gist of the offence under section 3
consists on the "unity of criminal behaviour, which results in something, for which an individual
would be punishable if it were all done by himself alone." A bdul Larf Vs. Crow (1956) 8 DLR 238.
The words. "in furtherance of common intention of all" in S. 34 of the Penal Code do not 'require that
in order that the section may apply, all participants in the joint act must either have common intention
of committing the same offence or the common intention of producing the same result by their joint
act. It is enough if all of them' intend that the joint act be perform. Fazar Vs. Crow (1952) 4 DLR 99.
When three accused were tried under section 304, Part II, read with section 34, P. Code for causing the
death of one M, two of the accused being armed with sharp weapons and the third accused being armed
with lathi only, the third accused can be found guilty under Sce. 304(11), read with section 34. Fazar
Vs. Crown (1952) 4'DLR 99.
(6) Section 34 P. C. does not create any distinct offence but merely lays down principle ofjoint
liability.— Since section 34 of the Penal Code does not create any distinct offence, but merely lays
down a principle of joint liability in a criminal act, it is immaterial whether it is mentioned in the
schedule to Act VII of 1963 or not as a referable offence. So, the mere fact that a person is charged
constructively for an offence by appending section 34 P.C. to the said offence, does not affect the
validity of the reference itself. Shahadat Khan , V s. Home' Secy. to the Govt. of W est Pakistan and
others. (1969) 21 DLR (SC) 323.
(7) Common intention— Deaf and dump accused.— It cannot be said that a deaf and dump person
cannot form an intention common with another person to commit an offence, but before such an
inference is drawn, the evidence with regard to it must be very cogent. Md. A slam Vs. Crow (1954) 6
DLR (W PC) 133. '
Sec. 34 General Explanations 61
• (8) Common intention— Charge of criminal breach of trust.—If section 34 of P.C. is to be
applied to punish persons for the offence of criminal breach of trust, it is necessary to establish that all
of them were entrusted with the amount. In the absence of instrument a person cannot .be charged and
punished as a principal offender by the application of section 34, for this section cannot create
instrument where there is none. A Salam Vs. Crown (1952) 4 DLR 80.
(9) Common intention—Strict proof—Before a person can be saddled with contraceptive liability
and convicted for the act done by another person under section 34, it must be satisfactorily proved by
the prosecution that the person so convicted had common intention of doing that particular act with the
person actually doing it. "Common intention" should not be mixed up with "common object".
(1950) PLD (Pesh) 60. In the present case only three persons took part and the absence of any evidence
form which it can be inferred that they had a common intention, formed prior to the occurrence, to use
the revolver if resisted, the common intention which can be safely attributed to them is, at the worst,
the intention to commit robbery with the added knowledge that murder was a crime which was likely
to be committed in the prosecution oftheir common object. Rahmatuliáh Vs. State 1961 PLD (Lah)
221. Where for instance 3 -or 4 armed relatives burst upon a habitation, kill or injure 2 or 3 persons,
and carry off a girl, the subject of a dispute between the two sides, the only reasonable inference is that
these acts are unified by a common in possessed by each, namely, to use force even to extent of
murder in carrying off the girl. The prosecution must show that the offence committed was covered by
the common intention. Khalil Vs. State 1960 (W P) (Kar.) 38. Common intention can be formed On
the spur of the moment and can be inferred for the surrounding circumstances. If three gunmen fire shots
simultaneously at the deceased and one of the shots proved fatal they will be held guilty under section
302/34 of the Penal Code, 1860, even if there be nô evidence of a pre-planned conspiracy to murder the
victim. There must be clear evidence of some action of conduct on his part to show that he shared in
the common intention of committing murder. Muhammad A kbar Vs. State 1961 PLD (W P) (Lah) 348.
In furtherance of a common intention' indicate pre-arranged plan—Such plan in the sense of previous
distinct plan need not be proved—A common intention may develop on the spot between the
participants—To apply s. 34 the person must be physically present at the actual commission of the
crime. A bdur Rahim Vs. State (/977)29 DLR (SC)'246.
(JO) Common intention— Circumstances that attract operation of section 34, P.C.—Evidence on
record shows that three persons including the appellant had come around with fire-arms for a theft to the
place where, the deceased and his partners are asleep and they had a pre-planned design to counter-act
resistance in their adventure. While they were committing theft the deceased and his party woke up,
pursued the thieves and caught hold of one of them who shouted for his rescue ;whereupon, one of
associates fired a shot at the pursuers killing one of them. The accused (excepting ' the other two who
absconded), was tried and convicted under sections 302/34 P.C. on appeal before the High Court
question raised was whether the circumstances as established by evidence atract section 34 P.C. It was
held that the prosecution has proved that the accused-appellant committed the criminal act of theft and
murder of Moula Baksh (one of the pursuers) in furtherance of the common intention pursuant to the
prearranged plan with his other two co-accused absconders. Therefore, conviction and sentence of the
appellant under sections 302/34 P.C. do not call for interference by the High Court. Muhib Gui Vs.
State (1976) 28 DLR (W P) 4. Common object as envisaged u/s 34 can develop even at the time of
occurrence. It is at the same time essential that the accused persons must be physically present when
the crime was being committed and the incriminating acts and circumstances lead to the conclusion
about their intention to commit the crime. Nazimuddin Vs. the State (1984) 36 DLR, 22.
62 Penal Code Sec. 34

(11) Common intention (to commit an offence) is the result of prior concert which may be
established by direct or circumstantial evidence— It is true that a prior concert is a precondition of a
common intention before anyone can vicariously be convicted for criminal offence committed by
another. There may be direct evidence of the prior concert or there may be circumstantial evidence,
leading to that inference which are incompatible with the innocence of the accused or incapable of
explanation on any other reasonable hypothesis. Abul Basher Vs. State (1980) 32 DLR 182.
(12) Common intention-A pplicabiliiy---Un less the Court is told what the exact words were used
by the accused persons, it cannot act on the inference supplied by the witness. The evidence of witness
as to passing of order "to kill us" was nothing but a hyperbole. It seems rightly argued that there must
have been some sort of a slogan uttered by the appellant, call for action, which prompted the accused to
indulge in rioting. We have not come across anything particular that the appellant had any intention to
cause the death. BCR 1947 (A D) 465=1988 BLD (A D) 101= 40 DLR (A D) 147.
3. Principle of Section 34.—Section 34 does not create a distinct offence; it only lays down the
principle of joint criminal liability. I970 SCC (Cr) 274. The necessary conditions for the applicatiàn
of Section 34 are common intention to commit an offence and participation by all the accused in doing
act or acts in furtherance of that common intention. It these two ingredients are established, all the
accused would be liable for the said offence ; that is to say, if two or more persons had common
intention to commit murder and they had participated in the acts done by them in furtherance of that
common intention, all of them would be guilty of murder. What would be an offence by reason of
constructive liability would cease to be one if the act constituting the offence was done in exercise of
the right of private defence. AIR 1965 SC 257.
A meeting of minds to commit an offence and participation in the commission of the offence in
furtherance of that common intention invite the application of Section 34. But this participation need
not in all cases be by physical presence also. A Common intention pre-supposes prior concert. The
plan need not be elaborate, nor is a long interval of time required. 1970 Cr LI 653. It could arise and
be formed suddenly, as for example when one man calls on bystanders to help him kill a given
individual and they, either by their words or their acts, indicate their assent to him and join him the
assault. There is then the necessary meeting of the minds. There is a pre-arranged plan .however hastily
formed and rudely conceived. But per-arrangement there must be and premeditated concert. It is not
enough to have the same intention independently of each other, e.g., the intention to rescue another,
and if necessary to kill those who oppose. It is true, prior concert and arrangement can, and indeed
often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign
unfolding itself during the course of the action which could only be referable to prior concert and pre-
arrangement, or a running away together in a body or a meeting subsequently. But the inference of
common inteniion should never be reached unless it is a necessary inference deducible from the
circumstances of the case. But to say this is no more than to reproduóe the ordinary rule about
circumstantial evidence,' for there is no special rule of evidence for this class of case. All that is
necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead
to that inference, or, the incriminating facts must be incompatible with the innocence of the accused and
'.incapable of explanation of any other reasonable hypothesis. AIR 1955 SC 216, 431.
Section 34 has been enacted precisely to cope with a situation where it is not possible to ascribç
particular acts to individual accused in an attack jointly made by them. The Section lays down joint
responsibility and the foundation of it lies in the common intention can be attributed to the several
Sec. 34 General Explanations 63
accused. It is enough, even if it is not possible to ascribe a particular act to a particular individual
provided it is shown that the ultimate result was in furtherance of that common intention. Purta
Venkata Reddy and Others Vs. State of A ndhara Pradesh, Supreme Court Judgment dated 20-3-1968.
To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained
against was done by one of the accused persons in the furtherance of the common intention of all ; if
this is shown, then liability for the crime may be imposed on any one of the persons in the same.
manner as if the act were done by him alone. Common intention within the meaning of the section
implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be
proved that the criminal act was also done in concert pursuant to the pre-arranged plan. It is difficult if
not impossible to procure direct evidence to prove the intention of an individual; in most cases it has
to be inferred from his act or conduct or other relevant circumstances of the case. AIR 1945 PC 118.
Principle of vicarious liability does not depend upon the necessity to convict a required number of
persons. 1975 SCC 595; A IR 1975 SC /917: 1977 . SC 710. Once it is found that a criminal act was
done in furtherance of the common intention of all, each of such persons is liable for the criminal act as
if it were done by him alone. The Section is intended to' meet a case in which it may be difficult to
distinguish between the acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them. The principle which the
section embodies is participation in some action with the common intention of committing a crime
once such participation is established, Section 34 is at once attracted. A IR 1960 SC 289..
.The essence of liability under Section 34 is to be found in the existence of a common intention
animating the offenders leading to the doing of a criminal act in furtherance of the common intentioh
and presence of the offenders sought to be rendered liable under Section 34 is not one of the conditions
of its applicability. To establish joint responsibility for an offence, it must of course be established
that a. criminal act was done by several persons ; the participation must be in doing the act, not merely
in its planning. A common intention—a meeting of minds—to commit an offence and participation
in the commission of the offence in furtherance of that common intention invite the application of
Section 34. But this participation need intention not in all cases be by physical presence. In offences
involving physical violence, normally presence at the sence of offence of the offenders sought to be
rendered liable on the 'principle of joint liability may be necessary, but such is not the case in respect of
othe'r offences where the offences consist of diverse acts which may be done at different times and places.
AIR 1960 SC 889.
The question whether a particular criminal act may be properly held to have been 'dOne by several
persons' cannot be answered regardless of the facts of the case. In order to convict a person for an offence
with the aid of the provisions of Section 34 it is not necessary that that person should actually with his
own hand commit the criminal act. If several persons have the common intention of doing ' a particular
criminal act and if in furtherance of that common intention all of them join together and aid or abet each
other in the commission of the act, then although one of these persons may not actually with his own
hand do the act, but if he helps by his presence or by other acts in the commission of the act,.he would
be held to have done that act within the meaning of Section 34. A IR 1951 Mys /
Persons who take no part in the actual commission of criminal acts, whatever they have done prior
to the doing of those acts, which did not form an ingredient of the offences committed by another
accused Q could not be said have participated in the commission of the criminal act which amounted to
offences. They could not be, therefore, held liable by virtue of Section 34, P.C., for the acts committed
by Q alone, even if those acts had been committed in furtherance of the common intention of all the
three accused. AIR 1955 SC 287; AIR 1965 SC 264.
64 Penal Code Sec. 34.

This section does not say, "Common intention Of all" nor does it say, "an intention common.to
all". It emphasises the doing of a criminal in furtherance of such intention. The petitioner and the co-
accused N and M were tried for causing the death of three persons by firing sten-gun on 15-5-73.. On
being charged for an offence u/s 302134, PC nw el. 4(a) of the art. 2 of Bangladesh Scheduled Offences
(S.d'.) Order, .1972. Prosecution examined 15 witness. The trial Court convicted the petitioner and co-
accused "T'" u/s. 302/34, PC and "M" was acquitted. On appeal, the High court cons idered.evidence
and found that except the incorporated testimony of P.W.I., there was hardly any evidence against "N"
and therefore acquitted him by giving benefit of doubt. The conviction of the petitioner was affirmed
who was seen by eye-witnesses running away from the place of occurrence with sten-gun. Before the
Appellant Division, it was urged when the tow accused were acquitted, one by the trial court and
another Eu,y the High Court, whether the conviction u/s 302/34, PC could be sustained. It was
contended that when the two co-accused are acquitted, the common intention disappears and therefore,
the conviction u/s. 302/34 cannot be sustained.. Observed :—The petitioner was seen by as many as 4
witnesses running away from the place of occurrence with a sten-gun. The witnesses are the tea-stall-
keepers where the occurrence took place. There persons killed by brush-fire and petitioner was holding
the gun. Held :—Suffice . it to mention that Sec. 34, Penal Code does not say, "the common
intentions of all" not does it say "an intention common to all". It emphaseses the doing of a criminal
act in furtherance of such intention. The crime was committed by firing sten-gun causing the death of
three persons instantaneously which obviously show a pre-arranged plan of committing crime by the
accused and since the petitioner was the person who was holding sten-gun, an irresistible conclusion is
,that his conviction u/s. 302 nw S. 34, Penal Code was correctly recorded notwithstanding the acquittal
of his co-accused. 4BSCD, 25.. If one of the inflictors of the blows sees that his partner is infliéting
blows on the head of the victim and he himself goes inflicting blows on other parts of the body.
knowing fully well that the blows on the head are likely to cause death, he shares the intention of his
accomplices, even if he himself does not inflict any blow on the head. 1961 PLD (W P) (Kar) 358.
This section does not create any distinct offence. It is intended to meet a case: where the members
of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the
part played by each of them. It means that if two or more persons intentionally do a thing jointly, it is
just the same as if each of them had done it individually. "Common intention' within the meaning. of
the section pre-supposes 'a prior concert. There must , be a prior meeting of the minds leading to a pre-
arranged plan to commit an offence. The common intention to commit the offence invites the
application of section 34 of the Penal Code. In offences involving physical violence, the presence of the
accused at the scene of the occurrence renders him liable on the principle of joint liability but where
the offence consists of diverse acts and it may be committed at different times, the presence of the
accused at the scene of. the occurrence is not necessary. The State Vs. Tajul Islam and 8 others, 15
BLD (HCD) 53, . ..
4. Section 34 does not create a distinct or substantive offence but enunciates principle 4f
constructive joint criminal liability (AIR 1956 All 241) —Section 34 is only a rule of evidence and
does not create a substantive offence. It means, that if two or more persons intentionally do a thing
jointly it is just the same as if each of them had done individually A IR 1958 SC 672; 1965 SC 257;
1965 SC 132. Section 34 is a mere statement of explanation to be attached to any section which deals
with a criminal offence. Section 34 lays down a principle of joint liability for acts cone by several
persons in pursuance of a criminal design or enterprise, and the principle laid down in the section, as
originally enacted; was the same principle as is recognised by the common law in England. Under that
l, ec. 34 General Explanations 65.

_principle one of several persons who engaged in a criminal enterprise of design may be liable for act
done by another which he himself never intended, and perhaps never contemplated. If, for instance, a
number of men set out to burgle a house, and entrust one among their number with a fire-arm,
impressing on him that he is not to use it except under circumstances of compelling necessity, and- if
that man loses his head and shoots one of the inmates of the house, it would be no defence on the part
of his companions to assert that they had never intended him to use his weapon in the way he did. AIR
1952 Pat 135. . -.
Principle of joint liability—Existence of common intention animating the accuses leading to the
doing of a criminal act in furtherance of it. Kabul V s. State 40 DLR 216 Rule of joint responsibility
for crime—In orde.r to attract section 34 it is not necessary that any overt act must be doneby the
particular accused. The provision shall be applicable if it is established that the criminal act has been
done by any one of the accused persons in furtherance of the intention of all. Mere distance from the
scene of crime cannot exclude culpability. Criminal sharing, overt or covert; by active presence or by
distant direction,, making out a certain measure of jointness in the commission of the act is the essence
of section 34. State Vs. A bdul Khair 44 DLR 284. Constructive criminality—Section 149, like section
34, does not create and punish any substantive offence. These sections may be added to the charge of
any substantive offence. Wuithout the charge for any substantive offence, no charge under either of them
can be conceived of. Abdus Sarncid Vs. State 44 DLR (AD) 233.
The essence of joint liability is to be found in the existence of a common intention animating the
accused in the doing of a criminal act in furtherance of such intention. Before application of section 34
of the Penal Code to a case it must be shown that (1) a criminal act was done by several persons; (2)
all of them intended the commission of the criminal act; and (3) the criminal act was -done in
furtherance of the common intention. In the instant case it is not clear that except accused appellant
Abul Kalam Azad, the other accused had the intention of causing such bodily injury as was likely to
cause the death of Abdul Wadud and even the participation of the other accused in causing death of the
deceased is not free from doubt. A bdul Kalam A zad Vs. 47 DLR 317. Under section 34 of the Penal•
Code the essence of joint liability is to be found in the existence of a common intention animating the
accused in the doing of a criminal act in furtherance of such intention. Before application of this section
to a case, it must be shown (a) a criminal act -was done by several persons. (b) all the accused
intended the commission of the offence and (c) the criminal act was done in, furtherance of the common
intention of all. A bdul Kalam A zad Vs. The State, 14 BLD (HCD) 401. Section 34 of the Penal Code
does not create any distinct offence it merely lays down the principle of joint liability in a criminal act
done in furtherance of the common intention of the offenders. 53 DLR 439. Since section 34 merely
lays down a principle of joint liability in a criminal act, the fact, that a person is charged
constructively for the offencec by appending section 34 to the said offence does not 'affect the validity of
the reference itself. State Vs. Lieutenant Colonel Syed Farook Rahman (Criminal) 53 DLR 287.
The principle of joint liability for doing a criminal act—The essence of the liability lies in the
• existence of. common intention animating the accused persons to the doing of a criminal act in
furtherance of the common intention of them all. "Common intention" of several persons is to be
inferred from their conduct, manner of doing the act and the attending circumstance—If one has
intention to do any act and others share his intention, then their intention becomes 'common
• intention' of them all. If the act is done in furtherance of the common intention, then all who
pfrticipated in the act are equally liable for the result of the act. 12 BLD (A D) 42 44 DLR (A l?) 287.'
Section 34 of the Code provides that when a criminal act is done by several persons in fuTtherançe ofa.
66 . Penal Code Sec. 34
common intention, each of such persons is liable for that in the same manner as if it were done by him
alone. It does not create any distinct offence but merely lays down the principle of joint liability in a
criminal act done in furtherance of the common intention of the offenders. (Abdul Quium Vs, The State)
21 BLD (HCD) 300.. Section 34 lays down a principle of joint liability in the doing of a criminal act.
Common intention implies acting in concert and existence of pre-arranged plan. (Bangladesh V. Md.
Ershad A li Si/cder and others) 23 BLD (HCD) 423. Under section 34 of the Penal Code, the essence of
joint liability is to be found in the commonness of intention animating the accused in doing of
criminal act in furtherance of such intention. The circumstances of this case patently show that the
common intention of the four appellants was to cause the offence under section 325 read with 34 of the
Penal Code and accordingly they are guilty under sections 325/34 instead of sections 302/34 of the
Penal Code. State Vs. Kowsar (Criminal) 1 BLC 455.
5. Principle of vicarious liability, application
of.—Test as to the applicability of that
principle—Common intention implies a pre-arranged plan and it must be proved that a criminal act
was done in concert pursuant to the pre-arranged plan. Kabul V s. State 40 DLR 216 The order of
conviction under sections 302/34 of the Penal Code in respect of appellants other than Shamim is not
tenable in law because..a person cannot be held vicariously liable for the act of pnother if common
imteñtion for doing the act is not proved. State V s. Md. Shamim alias shamim Sikder and ors.
(Criminal) 53 DLR 439.
6. Criminal Act.—No liability can arise under Section 34 unless some criminal act is done. Mere
intention is not punishable. An act includes a series of acts. See Section 33 and 1976 5CC (Cr) 578. It
need not necessarily mean one single and indivisible act. 1924 Cal 257. An act also includes illegal
omissions. See Section 32.
Once the criminal act becomes independent of the common intention, though done in pursuance to
an intention same or similar to the common intention, the rule of constructive liability ceases to
operate, A IR 1968 A ll 358. Presence of persons facilitating the crime itself amounts to actual
participation in the criminal act. 1976 SC'C (Cr) 578. .
7. Criminal act is done by several persons.—A
criminal act means that unity of criminal
be which results in something, for which an individual would be punishable, if it were all done
by himself alone, that is, in a crininaI offence. A IR 1927 Lah 765. It the essence of Section 34 that
is
the person must be physically present at the actual commission of the crime. He need not be present in
the actual room : he can, for instance, stand guard by a gate outside ready to warn his companions
about any approach of danger or waiting in a car on a nearby road ready to facilitate their escape, but he
must be physically present at the scene of the occurrence and must actually participate in the
commission of the offence in some way or the other at the time the crime is actually being committed.
A IR 1955 Pat 161.
It must be proved that all the persons sought to be made liable did participate in the criminal act.
Section 34 is not applicable except in a case where there is participation in action to commit a crime
with a common intention. If, for example, one of four accused had prevented FF from running away and
another had held him down and a third had struck him over the head with a lathi, they could all rightly
be convicted under Section 325 read with Section 34. The element in Section 149, of being a member.
of the unlawful assembly has a counterpart in Section 34, viz., participation in action to produce
grievous hurt. But it is quite wrong to say that because they had a common intention to assert a right
to the bamboo clump, therefore without showingwhich of these peàple took any part in beating either
F or his wife, they can all be convicted because one of them—we do not know who—committed a
grievous hurt. There must be participation in action with a common intention to produce grievous
Sec. 34 . General Explanations 67:

hurt, although the different accused might have taken different parts. AIR 1956 Sc 177. The fact that

one of the accused indicatedthe place from where the weapon could be recovered would not be sufficient
to establish his participation in the incident beyond reasonable doubt. 1974(3) SCC 704.
Section 34, can be applied only when a criminal act is committed by several persons and there can
be a criminal act which cannot be committed by several persons, If, in such a case, the criminal act is
done by several persons it amounts only to repetition of the criminal act, 1966 Cr Li 727. Proof that a
particular person committed crime is not necessary. AIR 1961 Guj 16 Nature of injuries caused by
different accused—The fact that some of the accused had caused fatal injuries and others caused minor
injuries is immaterial if the act was done in furtherance 'of their common intention. The nature of
injuries has nothing to do as the two accused are found to have shared the intention of other accused
whose acts resulted in the death of the victim. 44 DLR (AD) 287 This section does not create any
distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the
common intention of all but it was difficult to prove exactly the part played by each of them. In means
that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had
done it individually, common intention within the meaning of this section pre-supposes a prior
concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an
• offence. The common intention to commit the offence invites the application of section 34 of the Penal
Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence
renders him liable on the principle of joint liability but where the offence consists of diverse acts and it
may be committed at different times, the presence of the accused at the scene of the occurrence is not
necessary. 48 DLR 305. If it is established that the offence which resulted was committed' in
furtherance-of the common intention of all the participants, the fact that any of them did not take part in
the commission of that offence will not prevent his being held liable for the offence. .53 DLR 287.
8. No overt act is necessary—Mere distance from the scene of crime cannot exclude culpability
under Section 34 which lays down the rule of joint responsibility for a criminal act performed by a
plurality of persons. (1974) 4 SCC 544. In 35 CWN 463, it has been observed that 'all the accused
persons can be found guilty of an offence constructively under Section 34, only on a finding that each of
them took some part or other in, or towards, the commission of an offence'. To convict any particular
accused constructively under Section 34 of an offence, say of murder, it is not necessary to find that he
actually struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct
on his part to show that he shared in the common intention of committing murder. AIR 1946 Cal 452.
For intentional co-operation in the commission of an offence, see Section 37. The act may be
committed by several persons or actually by a single individual. AIR 1953 All 668.. A mere direction
from one person to an other and the carrying out of that direction by the other may be only instigation
of the latter's act and may not be case ofajoint act falling under Section 34. But where two persons
with their followers, all of them armed, move about together for a set purpose and one gives
instructions to the other and keeps himself on the spot in readiness to see it carried out and the other
carries it out, it is hardly possible to say that the act is not one which was done in the furtherance of'
the common intention of both. The accused's saying, people areollecting, let us fire', brings out the
common, intention clearly. But if the evidence makes out no more than mere instigation, it is, 'even so,
instigation by a person who is present at the scene of offence when the act is committed. In such a case
by
the instigator is 'deemed' to commit the murder virtue of Section 114. Actual presence plus pior
abetment can mean nothing else but participation. That is the irrefutable presumption raised by Section
114 and brings the case under Section 34. AIR 1956 SC 177.
68 Penal Code Sec. 34

9. In furtherance of the common intention of all.—Each of the persons joining in the
commission of a criminal act is liable for any such act committed by any of the persons joining as was
done in furtherance of the common intention and it is not necessary for the liability of all that they
must have the common intention about the exact resul( ' which was to follow from the act or about the
offence which would be made out on account of the actual physical act and its result. It is practically
impossible for any set of people to decide beforehand all the acts which may have to be performed in
order to carry out the common intention. Only such acts are not to be deemed to be the acts done in
furtherance of the common intention as could not have taken place ordinarily in carrying out of the
common intention. Such acts would be mostly unpremeditated ones by some of the persons joining in
the criminal act. For such an unpremeditated act of one person, the others cannot be made liable. The
view that a person'committing the particular crime can be held guilty of that crime with the aid of
Section 34 of Penal Code if the commission of the act was such as could be shown to be in furtherance
of the common intention not necessarily intended by every one of the participants, is-not correct. The
common intention must be to commit the particular crime, although the actual crime may be
committed by anyoji'e sharing the common intention. (1975) 3 SCC 731. The words 'in furtherance of
the common intention of all' were added to Section 34 by Act, XXVII of 1870.
Whether an act is in furtherance of the common intention or not depends upon the common
intention and the nature of the act. It is an incident of fact and not of law. If A and B jointly agree to
strike X. with lathis, then the striking with lathis only can be in furtherance of their common intention
and if A shoots Xand kills him, his act being in opposition to the common intention cannot be said to
be in furtherance Of it and B will not be responsible for it. But of course there must be evidence to show
that the common intention was to strike with lathis only. If at the time of their joint decision to strike
X, A openly carried weapons must be deemed to have been contemplated and A's shooting with the
pistol would be an act in furtherance of the common intention. If, however, A had concealed the pistol
and B did not know that he was armed with it and he suddenly took it out and shot X it is obvious
that the common intention did not contemplate the use of the pistol. When B did not know of its
• existence, he could not have intended its use and if he could not have intended the use there could have
been no . common intention to use it. The act of shooting with the pistol would not be said to be in
furtherance of the common intention. When there is an agreement between A and B to assault C with
fists and A of his own impulse, kills C with a weapon suddenly caught up, B would not be responsible
• for the death because the killing was not an act in pursuance of the common design. (1874) 12 Cox CC
624. See also AIR 1951 All 21.
A particular criminal act done by an individual in order to constitute a constructive, liability
against others must be one which is done in pursuance of a common intention as a step-in-aid to attain
it or as a means to the end underlying that or must be one which is a link in the chain of acts all
originating out of the common intention and culminating in its attainment. In case a particular criminal
act is committed not as a means to the end contemplated by the common intention or not as .a step-in-
aid to attain the common intention or in case it does not constitute a link in the chain of acts all
originating out of the common intention and culminating in its attainment; it will not constitute a
basis for constructive liability under Section 3 . 4 against others who may be a party to the common
intention. Once the criminal act becomes independent, of the common intention though done in
pursuance to an intention same or similar to that common intention or giving rise to consequences
same or similar in nature as contemplated by the common intention, the rule of constructive liability as
Sec. 34 General Explanations 69
laid down, under Section 34 ceases to operate and others, who are a party to the original common
intention, will not be held liable constructively for that criminal act. Unless the facts lead to the
irresistible conclusion that the criminal act done by an individual doer is in furtherance of the common
intention, the doctrine of constructive liability under Section 34 should not be resorted to for a
conviction of others for that act. And therefore, when the circumstances give rise to a number of
alternative inferences, one of which indicates that the act done by an individual may be the result of
common intention while others do not lend support to that conclusion, the safer course is to hold that
the act done by that individual was his personal act and not done in pursuance of the common
intention. 1955 Pat 161; 1948 All 229. Intention or object of the accused is to be judged from the acts
done by him, AIR 1968 All / 70. The words "in furtherance of the common intention of all" after the
word 'person' and before the word 'each'—Aim was to make the object of the section clear. (1989)
BLD (AD) 155= 42 DLR (AD)3.
10.. Liable for that act in the same manner as if it was done .by him alone.—When a number
of persons are engaged in the commission of something criminal, all acting in furtherance of a common
intention, each is of coarse punishable for what he has done as if he had done it by himself. But his
liability does not end there, for he is liable not only for the acts he himself does but also for those
which he thereby facilitates, provided of course they are done in pursuance of the common intention.
AIR 1941 Lah 423. If the intention of a person be higher than the common intention or if he has special
criminal knowledge he would be guilty of a more serious offences See Section 38. For tests and
guidelines for fixing vicarious liability. See 1979 SCC (Cr) 61. It is not necessary that each person
must have caused an injury, 1979 SCC (Cr) 722.
11. Common intention is the basis of Iiability.-1970 SC 1266; (1971) / SCR 31. Also See
1979 SCC (Cri) 61; 1979 SCC (Cr) 496; 1979 SCC (Cr) 722. Intention or object of the accused is
to be judged from the.acts done by him. AIR /968A11 170. Suddenly developed common intention can
be gathered from the conduct of the accused, the weapons used and the injuries caused. AIR 1979 Pat
411. A bonaJlde mistake by one accused in killing one person in place of another does not displace
"common intention" if the evidence showed that there was a pre-arranged plan to kill the escaped
person. AIR 1970 1970 SC 126
12. Common intention—When applicable.—Unless the Court is told what the exact words
were used by the accused persons it cannot act on the inference supplied by the witnesses—The
evidence of the witnesses as to passing of order "to kill" was nothing but a hyperbole—In the absence
of any reliable evidence to show that appellants 2 7 4 ordered appellant No. I Amar Kumar Thakur to
cause the death of Nandalal, they cannot be convicted under Section 34 of the Penal Code. Arnar
Kumar Tha/cur and others V s. The Stale 8 BLD (AD) 101.
13.Common intention implies previous concert and pre-arranged plan. It may also develop
a moment before the criminal act.—Common intention implies a pre-arranged plan, and to convict
the accused of an offence applying the section it should be proved that the criminal act was done in
concert pursuant to the pre-arranged plan. It is difficult if not impassible to procure direct evidence to
prove the intention of an individual in most cases it has to be inferred from his act or conduct or other
relevant circumstances of the case. AIR 1945 PC. 118. Common intention referred to in Section 34 pre-
suppoes a prior concert, a pre-arranged plan, i.e. a prior meeting of minds. This does not men that
there must be along interval of time between the formation of the common intention and the doing of
the act. AIR 1968 Raj 305. it is not necessary to adduce direct evidence of the common intention.
70 Penal Code Sec 34

Indeed, in many cases it may be impossible to do so. Th& common intention may be inferred from the
surrounding circumstances and the conduct of the parties. A IR 1955 Sc 331. Common intention
implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said
plan may also develop on the spot during the course of the commission of the offence but the crucial
cpcumstance is that the said plan must precede the act constituting the offence. There must be a pre-
arranged plan but that plan may be made shortly or immediately before the commission of the crime. A
long standing conspiracy is not required for the application of the section. Same or similar iptention'
is not to be confused with 'common intention. A IR 1946 0u?Ih 250. Act or conduct on the part of the
accused must be proved from which an inference of a pr-arranged plan could be raised. AIR 1956 SC
177. Common intention implies acting in concert, the existence of a pre-arranged plan which is to be
proved either from conduct or from circumstances or from any incriminating facts. AIR 19.58B om 439.
A pre-concert in the sense of a distinct previous plan is not necessary to be proved. AIR 1956 M Bh
269. Pre-concert. should be distinct from the act. AIR 1956 Sau 107. -
It is necessary before the section could come into play that there must be a pre-arranged plan in
pursuance of 'which the criminal act was done.. A , common intention may develop in the course of
events though it might not have been present to start with. And the intention can' be inferred from the
conduct of the assailants. The question whether there was. such an intention or not will have to depend
in many cases on inferences to be drawn from the proved facts and not on any direct evidence about a
pre-conceived scheme or plan which may not be available at all. A IR 1945 Mad 259. Where a person
commits an assault upon another and a third person joins in committing the assault, it is a fair
inference that the two were acting in concert. A IR 1954 SC 7O6. Pre-arranged plan can come into
existence at the time of crime and can be inferred. A IR 1961 Guj 16. Common intention can develop
suddenly without a pre-arranged plan and can be gathered even from circumstantial evidence. But in the
absence of circumstantial evidence and motive it must be held not proved. 1963 RLW 436 The
arranged plan may develop on the spot during the commission of the offence. A IR 1963 SC 1413. But
see 1972 Cr LJ 465, holding that it cannot develop during the fight. Despite their statement that they
would kill D, if the wrong side of axe was used by one of them. Section 34 does not apply, (1975) 3
SCC 751. Prior concert and pre-arranged plan are essential. (1971) 1 SCR 31. Common intention may
develop a few minutes before the criminal act. It has to be inferred from the consequences of the acts,.
motive, weapons used, the individual, acts and the attitude of the others. (1975) 2 A W R 413.
Common , intention may be inferred if Q stands by to give warning and P commits murder. AIR 1974
SC 2118.
(A ) Elements of common intention.-Common intention implies a pre-arranged plan in
pursuance of which the criminal act is done—A pre-concert in the sense of a distinct previous plan is
not necessary to be proved—Common intention to bring about a particular result may develop on the
spur of the moment as between a number of persons. Md. Chand !vuia alias Chand Miah Vs. The State.
9 BLD (A D) 155.. A common intention pre-supposes a prior concert and physical presence of the
accused in the actual commission of the crime—The fact that all the accused were armed with deadly
weapons and were physically present at the place of the occurrence and inflicted multiple injuries on the
victim clearly prove the common intention of the accused persons. Hazrat A ll and others Vs. The State
4 BLD (HCD) 257. The test as to the applicability of the principle is that common intention implies a
pre-arranged plan and it must be proved that a criminal act was done in concert to the prearranged plan.
State. Vs. Lieutenant Colonel Syed Farook Rahman (Criminal). 53 DLR 287.
Sec. 34 General Explanations 71

Common intention is a state of mind which may develop in the' course of the transaction
constituting the offence and may be gathered from the number and nature of injuries inflicted on the
person of the victim when in the instant case as many as 13 injuries most of which were grievous in
nature were caused as a result of frontal attack can be said to be a result of pre-concert. Although the
convict-appellant Badal had no' pistol or any weapon in his hands, but in a different manner he also
prevented the victim either from fleeing away or warding off the attack and facilitated the consequent
infliction of injuries resulting in his death. A KM A taur Rahman Khan alias Badal and another V s.
State (Criminal) 5 BLC 508. Common intention within the meaning of section 34 of the Penal Code
though implies prearranged plan or concert between the persons, it can come into existence whilst the
acts are being committed. State V s. Md. Shamim alias Shámim Slkder and ors (Criminal). 53 DLR
439. The common intention to bring about a particular result may well develop on the spot as between
a number of persons with reference to the facts and circumstances of the case. State V s. Lieuteant
Colonel Syed Farook Rahman (Criminal) 53 DLR 287. Common intention can even be formed on the
spot and a person can be killed without any pre-plan. Md. Chand Mia @ Chand Mia & others Vs.
State .1999 BLD (A D) 15; State V s.. Md. Ershád A li Sikder and others (Criminal) 55 DLR 672.
There was no preplan of the accused persons to kill the victim but thir common intention to kill the
victim developed on the spot when they all simultaneously fell upon him as soon as he came to the
scene. The Trial Court has correctly held that as soon as the victim ran towards the accused persons
they intended to kill him. The fact that some of them had caused fatal injuries and others caused minor
injuries is immaterial if the act was done in furtherance of their common intention. This section is
clearly applicable in this case and the persons who had participated in the criminal act causing the
death, of the victim are equally liable for it. The State Vs. Montu & Ors. 44 DLR (A D) 287 = 12 BLD
A D 42. 'Common intention' within' the meaning of section 34 of the Code though implies a pre-
arrangd plan or concert amongst the accused persons, yet it can come into existence, while the acts are
being committed. The ingredients of section 34 of the Code are not attracted in the instant case and as
such the order of conviction under section 302/34 of the Penal Code in respect of the other appellants
other than Shamim is not tenable in law. A person cannot beheld vicariously liable for the act of
another if common intention for doing the act is not proved. (The State Vs., Md. Shámim Q. Shamim,
Sikder) 21 BLD (HcL) 256.
14. Common intention must be known to all and be shared by all.—Common intention
under Section 34, O.C. does not mean , similar intention of several persons. To constitute common
intention it is necessary that the intention of each one of them be known to the rest of them and shared
by them. A IR 1953 A ll 668. Also see 1979 SCC (Cr) 61, for test and guidelines for fixing vicarious
liability. See also 1980 SCC (Cr) 648 and 1980 SCC (Cr) 946
15..Common intention must exist when the criminal act is done.—A mere common intention
to commit murder in certain circumstance, e.g. in the event of interference with escape, might not, of
itself, be sufficient to justify a finding that the accused and his companions had, at the time of actual
occurrence, the common intention of murdering Ramjan. In order to decide whether or not the accused
and his companions had the common intention of murdering R it is necessary to consider what
happened immediately before R was shot. A IR 1935 Cal 526. See also 1972 c'r ,LJ 465.
16..Common intention to commit a crime.- The common intention, must be to commit a crime.,,
But it was observed , that under Section 34 when a criminal act is done by several persons in furtherance
of the common Intention of all each of such persons is liable for that act in the same manner as if it
72 Penal Code Sec. 34

were done by him alone. The words 'in furtherance of the common intention of all are a most essential'
part of Section 34 of the Penal Code. It is common intention to commit the crime actually committed.
The common intention of same persons may be to commit simple hurt and the intention of one of that
may be to commit murder which is actually committçd. In some cases it was held that the common
intention referred to in Section 34 is intention to commit the crime actually committed. See AIR 1955
A ll 230.
If P and Q set out with the common intention to cause an injury to R. which is likely to cause
death, and P stands guard while Q causes the injury toR, in view of Section 34, p cannot plead that
the injury was caused by Q and not by P. To extend this illustration, if in the same circumstances Q
intentionally causes the death of. R by intentionally causing him injury sufficient, in the ordinary course
of nature to cause death, P cannot plead: (1) that P did not cause death and (2) that the common
intention of P. and Q was not to cause death but only to cause an injury likely to cause death. Section
34 provides that P cannot make these two pleas if the act was done in furtherance of the common
intention of both P and Q . But Section 34 does not proceed further and make P guilty of murdr
because Q is guilty of murder under Section 302. Section 34 merely makes Pliable for the criminal act
done: In other words, P alone is deemed to have caused the death ofR. But Section 34 does not say
that the intenti9n of Q must be attributed to P. P is liable for his own or for the common intention
alone although by virtue'of Section 34 he is'made liable for the death of R. Q would be guilty of
murder as in addition to the common intention to cause an injury likely to cause death he had the
individual intention to cause the death of R. But P had no intention beyond the common intention to
cause an injury to R which was likely to cause death. Still Section 34 makes him liable for causing the
death of R. Therefore, P is guilty of culpable homicide Only although Q is guilty of murder. The words
guilty' of that offence found in Section 149 are not found in Section 34. A criminal act done with a
particular intent is an offence. The nature of the offence committed depends on the criminal act done or
constructively deemed to have been done and the intention proved or inferred. That the view is correct
is clear from Section 35 and the use of the words 'such act' in the marginal note to Section 35. Section
35 refers to the liability for the criminal act as if it were done by him alone. Therefore Section 35
applies only to 'such acts' as are referred to in Section 34 and makes it clear that the doers are liable
only fOr the individual intention or knowledge or for the common intention.
17. Common intention and similar intention.—Same or similar intention is not to be confused
with common intention. 1971 SCC (Cri) 497. Persons who have a common intention must have.the
same intention. 'Same intention' must, to make it 'common intention', be indicated in some way by
words or acts between the persons who share it. Such indication may be inferred from' circumstances.
The circumstances may lead to an irresistible inference that they had the same intention and that
intention was shared by all in the sense that it had been communicated by them to each other before
they rushed from their door. A IR 1946 Oudh 250. The impulse to assault may have arisen
independently, but when five men assault at one and the same time, each of them seeing that the other
four are assaulting also, the assault may be regarded as a common one. A IR 1954 SC 706. Where
accused persons hearing a shout for help ran instantaneously to the spot and attacked the complainant's.
party, they might have been inspired by similar motives to help the person who was shouting for help
but that cannot be taken to mean that they were inspired by a common intention. Common intention
always presupposes some plan or some design to commit an act. 1952 RLW 17. Common intention
within the meaning of section 34 of the Penal CQde pre-supposes prior concert ; it also requires pre-
arranged plan and care must be taken not to confuse same or similar intention with common intention,
Sec. 34. General Explanations 73

the partition which divides "their bounds" is often very thin ; nevertheless the distinction is real and
substantial and if overlooked will result in mis-carriage of justice. Kabul Vs. State 40 DLR 216
18. Section 34 refers to common intention and not to common knowledge.—See other notes.
19. Common intention and common object.—A common object is different from a common
intention in that it does not require. prior concert and a common meeting to minds before the attack,
and an unlawful object can develop after the people get there. In case under Section 149 there need not
be a-prior meeting of minds. It is enough that each has the sameobject in view and that their number
is five or more and that they act as an assembly to achieve that object. It is true that the two sometimes
overlap but they are used in different senses in law and should be kept distinct. AIR 1956 SC 513, 546.
Section 34 provides that when a criminal act .is done by several persons in furtherance of their common
intention each of them is liable for that common intention each of them is liable for that act in the same
manner as 'if it was done by him alone, Section 149 postulates an unlawful assembly and commission
of an offence by any of its members in prosecution of the common object of such an assembly. Abdus
Samad V s. State 44 DLR (A D) 233. Whether the accused who, did not" actively participate in the
commission of the crime can be convicted for the offence committed by the co-accuse" —Whether
accused who did not actively participate in the commission of the: , offence can be convicted under
Section 326 of the Penal Code without adding Section 34 or 149 of the Penal Code in the charge and
evidence that they acted in a concert or in furtherance of 'a common object—The prosecution case being
that it was Ajit who threw the bomb at the order of the Chairman but there was no evidence as to
acting in a concert or in pursuance' of any common object and as such appellant Nos 2-6 could not be
convicted individually under Section 326 of the Penal Code. Ibrahim 'Mollah and others Vs. The State
7 BLD (AD) 248. •. .
20. Common intention and conspiracy.—Common intention cannot be inferred if on the same
evidence conspiracy is held disproved, A IR 1956 Hyd 99. Courts cannot distinguish between co-
conspirators nor can they inquire as to the part taken by each in the crime. State Vs. Lieuteant Colonel
Syed Farook Rahman (Criminal) 53 DLR 287. .
21. Common intention and Mens Rea.—There are cases in which common intention is identical
with 'mens rea' required for the offence actually committed, and there are others in which its horizon is
wider. A IR 1944 Cal 339.
22. Common intention is a question of fact.—The existence of a common intention said to
have been shared by the accused person is, on ultimate analysis a question of fact. A IR 1955 SC 331.
Appellants' participation from beginning to end in a pre-planned murder establishes a clear case under
Section 34. 1979 SCC (Cr) 496.
23. Common intention if proved, motive is immaterial.— See other notes.
24. Common intention and individual intention.—In addition to entertaining the common
intention, such persons may in addition have their own individual criminal intention. 57 IC 918.
25. Common intention and primary intention.—The two men were armed with guns and had
plenty of ammunition and they entered the shop for the purpose of committing robbery. When they
were disturbed in their act by a large number of villagers they decided to retreat and in so retreating
they fired a large 'number of shots. It is clear that their primary intention was to effect their escape from
their pursuers and it was their determination to prevent the pursuers from arresting them. It was not
their primary intention to kill any of their pursuers. Their intention was merely to effect their escape
°' from the pursuers, but it may be concluded that their intention was to effect their escape even though for
74 Penal Code Sec. 34
that purpose it was necessary to shoot any of the pursuers mortally. In the circumstances of this case
the accused might welJ have been convicted under Section 302 read with Section 34. A IR 1955 Pep 81.
26. Common intention of master and servant.-Where both master and servant were present at
the sale of ganja in contravention of the terms of his licence and the servant received the money paid for
the, ganja having regard to the provisions of Section 34, the servant was guilty of the offence of selling
ganja without a licence and Section 114 had no application. !LR 29 Cal 496
27. Common intention to kill A, but B killed.—In 1965 ISCR 287, the accused killed B to
wreak his private vengeance, it could not be possibly in furtherance of the 'common intention for which
others can be liable. But if on the other hand he killed B bona fide believing that he was A and the
.common intention was to kill A , the killing of B was in furtherance of the common intention. A IR
1970 SC 1266
• 28. common intention not shared after a stage.—Jt is quite wrong to say that if several persons
have a common purpose, eaèh person will be liable for every act done by the other in furtherance of that
common purpose. For instance, three persons may have the common purpose of robbing a'bank ; one
of these persons, unknown to the others, arms himself with a pistol and shoots one of the bank's
assistants who resisted him. The others will certainly not be liable for 'murder unless it is proved that
all of them had the common intention that anyOne who resisted them would be shot. A IR 1941 Cu!
659. 'Where several accused persons struck the deceased everal blows, it was held that, Pin' the
circumstances, it could not be said' that those who did not strike the fatal blow contemplated the
likelihood of such a blow being struck by the others in prosecution of the common object and that they
were all' guilty under Section 326 and not under Section 302. A IR 1953 A ll 203. Although M and L
took no part themselves in the assault, they joined in the pursuit of K. It is not at all clear from the
evidence that these two men really pursued K to any distance. It may be that they ran at him or after
him, but presumably their intention in so doing was merely to scare him away from the land so that
they and their labourers might continue to cut the khesari without further interruption. They soon
stopped and did not go up to K or strike him or molest him in any way. In these circumstances, it is
quite 'impossible to apply 'Section 34 and make either M or L constructively liable for the assault
committed by the other two men. A IR 1942 Pat 376. Even assuming that the primary object was to
commit robbery the common intention to carry out the unlawful design at all costs, even at the cost of
overcoming resistance by taking life, would be sufficient for the application of Section 34. A IR 1955
Pep 81. The accused assaulted the deceased while the latter was in the very act of violating a woman
related to the accused. The deceased escaped out of the room ; in the corridor he was assaulted by
persons other than the accused. The deceased finally got into the courtyard where he was beaten to
death by ,a large body of persons. There was no common intention between the accused and the persons
assembled outside the house. The accused were not shown to have taken any part in the assault upon
the deceased after he had escaped from the room and come to the corridor and finally to the courtyard.
Held that the accused could not be convicted under Section 304. 17 IC 1001. Due to old enmity, five
accused, four armed with lathis and one with a spear, intended to give beating to the deceased. With
this intention they attacked the deceased. One of the accused A aimed a first lathi blow at the deceased
who avoided it and succeeded in striking a lathi at 'A'. A fell down and could not take any further part
in the incident on account of the injuries -he received. The rest of the accused then beat the deceased
with lathis and spear as a result of which the deceased received many injuries including wounds on the
head and died instantaneously. Held that: (1) The accused formed on unlawful assembly with the
Sec. 34 General Explanations 75

common intention of giving beating to the deceased. They further did commit the offence of rioting the
moment 'A 'attacked the deceased; (2).The accused, other than A , were guilty under Section 302, reads
'with Section 34. (3) A was guilty of the offence under Section 304, Part .11, read with Section 109. A IR
1950 All 418. Where the appellant after the fatal gun-shot by his companion attacked the deceased with
the blunt edge of a Gandasi, held, it was a separate and individual act under Section 323 P.C. not
relevant to conviction under Section 302/34, P.C. 1979 SCC (Cr) 496.
29. Principle of common intention must not be pushed too far.—In order to determine the
common Intention and to determine also whether a particular act was done in furtherance of that
common intention regard must be had not solely to the particular act, but to: all the acts that were
done. If two or three of several men proceed to assault. another man with their fists and if suddenly one
of the bystanders joins in the affray and pulls out .a.knife .and stabs him fatally, it might well be said
that the stabbing was not part of the criminal act in which all of them had joined, but was the
individual act of the man who used the knife. Where however, two men, each armed with lathis, set
out in pursuit of another and overtake and assault him, each of them striking him several blows, it is
quite impossible to argue that any particular blow was not struck in furtherance of the common
intention. A IR 1952 Pat 125. There must be evidence from which one might reasonably infer a
common intention infecting each of the accused, in order to apply Section 34 and hold each accused
responsible for the act done by several persons in furtherance of the common intention of all. The
presumption of constructive intention must not be too readily applied or pushed too far. it is obvious•
that the mere fact that a man may think a thing likely to happen is vastly different from his intending
that that thing should happen. The latter ingredient is necessary under Section 34 ; the former by itself
is irrelevant to the Section. It is only when a Court can with some judicial certitude hold that a
particular accused must have preconceived or premeditated the result which ensued, or acted in concert
with others in order to bring about that result, that Section: 34 may be applied. A IR 1953 A ll 203.
Where each of the two accused dealt a lathi blow on non-vital part of the deceased's body, held, in the
absence of evidence as to which blow was fatal, none of the accused could be held liable under Section
302/34 as the common intention to cause death could not be inferred. They were, however, liable under
Section 325/34: 1969 Cr Li 1273. Bona fide assertion of right of way through the uncultivated portion
of a private land, by the villagers, wheil the road is submerged during the rainy season, cannot be
onsidered to be the common intention to commit an offence. A IR 1970 SC 219. Section 34 may
possibly be applied even though no charge was framed under Section 34 if the evidence is clear. 1973
SC 460.
30. There can be no common intention if one person can claim the benefit of an
exception.—If one of the accused had brought his case within Exception 4 to Section 300 there was no
room for the application of Section 34 against the other accused at all. A IR 1940 Cal 147. If tliee was a
sudden quarrel over some exchange of words, Section 34 does not apply. A IR 1973 SC 460.
31. No Common intention in cases of sudden fight or quarrel.—AIR 1949 A ll 191. If there
was a sudden quarrel over some exchange of words, Section 34 does not apply. A IR 1973 SC 460.
32. Instigation is not common intention.—A mere direction from one person to another and the
carrying out of that direction by the other may be only instigationof the latter's act and may not be a
case ofajoint act falling under Section 34. But where two persons with their followers all of them
armed, move about together for a set purpose and one gives instruction to the other and keeps himself
on the spot in readiness to see it carried out and the other carries it out, it is hardly possible to say that
76 . Penal Code. . Sec. 34

the act is not one which was done in the furtherance of the common intention of both. Actual presence
plus prior abetment can mean nothing else but participation. That is the irrebuttable presumption
raised by Section 114 and brings the case under Section 34. AIR 1956 SC 177; AIR 1956 SC 177.
33. Presence when the act is done.—For Section 34 to apply presence of accused is essential but
not necessarily the physical presence. A IR 1970 SC 1266 If the accused was not present:, he cannot be
convicted with the aid of Section 34. A IR 1955 SC 287. Mere presence at the time of commission of
an offence by confederates is not in itself sufficient to attract Section 34. 1963 MU (Cr) 491. Mere
presence of a peson at the scene of offence does not bring him under Section 34, AIR 1963 KLT 222. It
is the essence of Section 34 that the person must be physically present at the actual commission of the
crime. He need not be present in the actual room ; he can, for instance, stand guard by a gate outside,
ready to warn his companions about any approach of danger or wait in a car on a nearby ,road ready to
facilitate their escape, but he must be physically present at the scene of the occurrence and must actually
participate in the commission of the offence in some way or other at the time the crime is actually
being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the
planning, which is covered by Section 109 and the stage of commission when the plans are put into
effect and carried out ; . Section 34 is concerned with the latter. It is true there must be some sort of
preliminary planning which may or may not beat the scene of the crime and which may have taken
place long beforehand, but there must be added to it the element of physical presence at the scene of
occurrence coupled withactual participation, which, of course, can be of a passive character such as
standing by a door, provided that it is done with the intention of assisting in furtherance of the
common intention of them all and there is a readiness to play his part in the pre-arranged plan when the
time comes for him to act. The emphasis in Section 34 is on the word "done". It is essential that the
accused join in the actual doing of the act and not merely in planning its preparation. If the accused was
not present he cannot be convicted with the aid of Section 34. AIR 1955 SC 287.
A person who is an eye-witness of the incident is present at the spot as well as a person who is a
confederate of the, assailant. The former, is not guilty because he is present merely to see the
commission of the crime. On the other hand, the latter is guilty because he is present for the purpose of
seeing that the crime is committed. In other words, presence on the spot for the purpose of facilitating
or promoting the offence is itself tantamount to actual participation in the criminal act. It is the
expectation of aid, in case it is necessary, to the completion of the crime and the belief that his
associate is near and ready to render it, which encourage and embolden the chief perpetrator and incite
hiin to accomplish the act. By the countenance and asistance which the accomplice thus' renders, he
participates in the commission of the offence. It is, therefore,' sufficient to hold a party as principal, if it
is made to appear that he acted with another in pursuance of a common design ; that he operated at one
and the same time for the fulfilment of the same pre-concerted end, and was so situated as to be able to
furnish aid to his associates with a view to ensure success in the accomplishment of the common
enterprise. A IR 1956 A ll 246. It was held that a common intention pre-supposes prior concert and
requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of
another,, the act must have been done in furtherance of the common, intention of them all. But the pre-
arranged plan need.not precede the commission of the crime by any great length of time. A pre-concert
in,the sense of distinct previous plan is not also necessary to be proved. The common intention to
bring about a particular result may well develop on the spot as between a number of persons. All that
is necessary is either to have direct proof of prior concert or proof of circumstances which necessarily
Sec. 34 General Explanations 77

lead to that inference or the incriminating acts must be incompatible with the innocence of the accused
and incapable of explanation on any other reasonable hypothesis. Further it is the essence of S. 34 that
the person must be physically present at the.actual commission of the Crime. Abdur Rahim MoAdul Vs.
The State, 29 DLR (AD) 246. It is the essence of section 34 that the accused persons must be
physically present at the place and at the time of commission of crime and the incriminating acts and
circumstances must be necessary to lead the inference of common intention to commit the crime. State
Vs. Lieutenant Colonel Syed Farook Rahman (Criminal) 53 DLR . 287. In order to attract the principle
of section 34 physical presence at the place of occurrence is not necessary provided the jointness of
action can be inferred from the facts and circumstances of the case. 53 DLR 287. Section 34 PC though
may require some sort of physical presence in thC place of occurrence but the physical presence may
vary in the facts and circumstances and from circumstances to circumstances. State Vs Lieutenant
Colonel SyedFarook Ràhrnan (Criminal) 53 DLR 287. Physical presence of the accused is necessary at
the place of occurrence, there are series of decisions that physical presence is not necessary provided
jointness of action can be inferred from the facts and circumstances of the case furthering or facilitating
from a distance in committing the offence. State Vs. Lieutenant Colonel Syed Farook Rahman
(Criminal) 53 DLR 287. ..
34.Mere presence if sufficient to infer common intention.—The mere circumstance of a person
,eing present on a lawful occasion does not raise a presumption of that person's cothplicity in an
offence then committed so as to make Section 34 applicable. 14 Born 115: In Case of physical violence
the presence of person aiding or instigating is essential. 1976 SCC (Cr) 578. Mere presence without
proof of any act or omission done to facilitate the offence or at least without proof the existence of a
common intention will not be sufficient to support a conviction. Certainly, if common intention is
proved it will be no answer to say that the prosecution have not established which of the acts done in
the commission of a crime was done by each individual accused. Actual participation in the
commission of the offence is a condition precedent of Section 34 and is its main feature. Presence on
the spot for the purpose of facilitating or promoting the offence is itself tantamount to actual
participation in the criminal act. Every person charged with the aid of Section 34 must in some form or
the other participate in the offence in order to make him liable thereunder:.AIR 1953 SC 420. Mere
presence of the accused without anything more can bring him within Section 34 1969 Cr Ll 542.
Mere distance from the scene cannot exclude culpability if criminal sharing is proved. 1974 SCC (Cr)
580. Mere standing of accused Belal at the door of Parvin will not constitute offence under section 34
read with section 324, Penal Code in causing voluntary hurt by dangerous weapon. Bela! Ahmed Vs.
State 40 DLR 154. . .
35. Persons with common intention and participating are not abettors.—AIR 1953 All 668.
36.Fatal assault with lathis by several persons.—Accused came to the place of occurrence only
with lathis in their hands with which they assaulted the deceased and though death had occurred there
was nothing to show . any apparent severity in the blows that were inflicted. From the facts and
circumstances of the case, it did not appear that the three accused had ever any common intention to
cause the death of the deceased. It was not therefore possible to uphold their conviction under Section
302 read with Section 34. But they had the common intention, which though not being in concert
pursuant to the pre-arranged plan, developed on the spot to beat the deceased with lathis in their hands
were likely to produce grievous injuries. In this view, therefore, the three accused would be guilty not
under Section 302/34 but under Section 326/34. AIR 1954 SC 706
78 Penal Code Sec. 34

37. The principle of constructive liability cannot be applied twice under Section 34 and

Section 149.—When the charge and conviction are both under Section 302/34 and Setion 302/149
and the conviction under Section 302/34 is held to be redundant or is set aside that would not affect the
conviction under Section 302/149. A IR 1964 Pat 158. In order to make an accused constructively
liable with the help of section 34 for an offence not actually commited by him, it is essential to prove
that he had intention to commit the offence. Unless such intention is proved, he cannot be made liable
under that section. 40 DLR 154.
38. Constructive guilt— "Comman intention" and "Common object" under sections 34 and
149.—Both deal with a combination of persons to become punishable as "sharers in an offence"—They
have a certain resemblance and may to some extent overlap--The basis of constructive guilt under
Section 149 is mere membership of an unlawful assembly while the basis for the offence under Section
34 is participation in an act with the common intention of doing that act—Where the common
intention and the common object are one and the same in a given case, both these Sections may
apply—Alteration of the finding by applying Section 149 instead of Section 34 is not bad in law—But
the accused cannot beheld responsible for the offence of arson under Section 436 of the Penal Code
though they are guilty of rioting under Section 147 by applying section 149. Bangladesh Vs. Abed Al!
and others 4 BLD (A D) 324.
39. Act which can be done by only one person.—In such a case Section 34 cannot apply (1)
Sections 307 and 308. 52 Born 168; (2) Section 397 and Section 398. A IR 1931 Pat 49; (3) Section
458, 4 LAH 399; (4) Section 498. A IR 1926 Rang. 207. .
40. Section 34 and Section 35.—Where several persons are concerned in committing anct
which is criminal only by reason of its being done with a criminal knowledge, each of such persons
who joins in the act with such knowledge is liable for the act in the same manner as if the att were
done by him alone with that knowledge. This principle is embodied in Section 35 of the Code, which
supplements the principle embodied in Section 34. A IR 1949 A ll 341
41. Section 34 and Section 37.—Section 34 requires common intention for a criminal act which
is done by a number of persons . in order that they should become liable as if the act was done by each
of them while the latter deals with the intentional co-operation in the offence which has resulted from
several acts, each of which standing by itself is not the offence with which the accused-are charged. AIR.
1952 A ll 435. Section 34 required a common intention for a criminal act done by several persons, (i.e.
'a unity of criminal behaviour which results in criminal offence'), in which case each actor becomes
liable as if that act was done by him alone. Section 37 deals with intentional co-operation (which, it
was pointed out in 52 Cal 197, may be the same as a common intention) in an offence committed by
means of several acts, and punishes such co-operation (Provided it consists in doing any one of those
acts either singly or jointly with any other person) as if it constituted the offence itself. If intentional co-
operation may not be the same as a common intention, it must include action which contributes to the
offence and is done with the consciousness that the offence is on foot, though without sharing the
intention to commit that offence. AIR 1938 Pat 258.
42. Section 34 and Section 107 or Section 109.—
Section 34 . Section 107
.A criminal act is done by several persons The abettor doesnot take part in the criminal act;
he merely abets it.
Sec. 34 General Explanations 79

A criminal Act must have been completed : there The act abetted may not be committed. See
must be common intention Expin. 2 to Section 108.
Presence of all at the scene of offence is necessary. Common intention is not necessary. See Expins.
A IR 1955 SC 287; A IR 1955 SC 331. 2 and -5 to Section 108.
/
Abettor need not be present at the scene of
offence. See Section 114.
It is not necessary to call in aid Section 109 when the charge includes Section 149 or Section 34.
AIR 1956 Tc 230. The conviction of appellant Nos. 2-4 upon the evidence on record for the offence of
murder with the application of section 34 or 109, Penal Code is not sustainable in law. A mar Kumar
Thakur Vs. The State (1988) 40 DLR (AD) 147.
43. Section 34, Section 109 & Section 149.—For application of section 34 some overt act by
each nf the accused is necessary in the commission of the crime by two or more persons but in the case
of application of section 149, if one is found to be a member of.the unlawful assembly for the
commission of the crime, whether he takes active part in it or not, he comes within its mischief, and so
far as section 109 is concerned, it is simply for abatement of the offence committed. Now in the ;instant
case, according to the prosecution, all the accused planned-to commit the murder of the victim and
towards Mat end they started acting and then all together in a joint action with common intention
caused the murder of the victim. So, in such circumstances, it is not understood . why section 34 will
not be attracted in this case,, when allegation is to the effect that each one of the accused persons took
part in the commission of the alleged crime of murder of the victim Kalam The question is whether.
the prosecution has been able to prove the allegation by evidence is a different one. We, therefore, find.
no illegality in framing the charge against the accused under sections 302/34 of the Penal Code apart
from -other sections of law. A bdul Khayer and 3 others V s. State 46 DLR .212.-
44. Section 34 and Section 114.—A person may be guilty of abetment even if he is not present at
the scene - of offence and even if the offence be not committed. If the offence is committed and he is,
present when the act is committed, Section 114 provides that he shall be deemed to have committed
such act. Although the criminal liability under both Sections 34 and 114 is similar, the basis for the
criminal liability is not exactly identical. There need not be any abetment in the case of Section 34 and
there need not be any common intention in the case of Section 114. The whole object of Section 34
and 114, is to provide for cases in which the exact share of one of several criminals cannot be
ascertained, though the moral culpability of each is clear and identical. Neither of these two sections
should be so interpreted as to defeat the very object which underlies them. A IR 1936 A ll 437. There
may be cases in which a person convicted under Section 302, read with Section 114 might as well
have been convicted under Section 302, read with Section 34. 61 Cal 10.
45. Section 34 and Section 120A.—"There is not much substantial difference between
conspiracy, as defined in Section 120A and acting on a common intention, as contemplated in Section
34. While in the former, the gist of the offence is bare engagement and association to break in law even
though the illegal act does not follow, the gist of the offence under Section 34 is the commission of a
criminal act in furtherance of a common intention of all The offenders, which means that there should be
unity of criminal behaviour resulting in something, for which an individual would be punishable, as if
it were all done by himself alone". The evidence as to conspiracy under Section 120B having been
rejected,- the same evidence could not be used for finding a common intention proved under Section 34.
A IR 1955 SC 42.0. Section 34 requires not only common intention but also participation in crime,
80 Penal Code Sec. 34

whereas conspiracy is merely an agreement to commit crime. Thus, where an offence is committed by
some conspirators in pursuance of the conspirary, the common intention of all would not be enough to
fasten the guilt on all of them. Only participants in the crim,will be responsible. AIR 1969 Cal 481.
Requisite ingredients when the section will apply—In furtherance of the common intention—
Actual participation not necessary—Difference between section 34 and section 120A. There is a
difference of substance between common intention as contemplated under section 34 and acting in
concert or conspiracy as contemplated under section 120A, P.C. for, under section 120A, the
association or coming together or the forming of the. common intention itself without more may be
sufficient. A bdul Latf Vs. Crown (1956) 8 DLR 238. Under section 34, the criminal act must itself be
committed by the.accused persons in furtherance of that common intention. The gist of the offence
under section 34 consists in the "unity of criminal behaviour which results in something, for which an
individual would be punishable, if it were all done by himself alone." A bdul Latf Vs. Crown (1956) 8
DLR 238. Distinction between conspiracy as defined in section 120A and acting in common intention
uñdèr section 34 Is a very fine one. In the case of section 120A, the gist of the offence is a bare
engagement or association to break the law even though illegal act does not follow, while the gist of
the offence under section 34 is the commission of the original act in furtherance of common intention of
all the offenders and that only means that there must be unity of criminal behaviour resulting in
something for which an individual be punishable if it were done by himself alone. Md. Yaqub Vs..
CrOwn (1955) 7 DLR 75. .
46. Section 34 and Section 148.—Common intention is an intention to commit the crime
actually committed and each accused person can be convicted if he shared the common intention. The
common intention contemplated by section 34 is anterior to the commission of the crime and it does
not refer to the time when the offence is actually committed. A person cannot be found guilty under
section 148 of the Penal Code unless he carried with him a dangerous weapon, A general statement that
the accused persons were armed with dangerous weapons like dhal, katra, .lathi and sorki is not
sufficient to warrant gi conviction under this section. Nurul Haque Màtbar and others Vs. The State, 14
BLD. (HCD) 178. .
47. Section 34 and Section 149.—(1) .Generally.—Like Section 149, Section 34 also deals with
cases of constructive criminal liability. It ptovides that where a criminal act is done by several persons
in furtherance of the common intention of all, each of such persons is liable for that, act in the same
manner as if it were done by him alone. The essential constituent of the vicarious criminal liability
prescribed by Section 34 is the existence of common intention. If-the common intention in question
animates the accused persons and if the said common intention leads to the commission of the criminal
offence charged, each of the persons sharing the common intention is constructively liable for the
, criminal act done by one of them. Just as the combination of persons sharing the same common object
is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the
same common intention is one of the features of Section 34. In some ways the two sections are similar
and in some cases they may overlap. But nevertheless, the common intention which is the basis of
Section 34 is different from the common object which is the basis of the composition of an unlawful
assembly. Common intention denotes action in concert and necessarily postulates the existence of a
pre-arranged plan and. that must mean aprior meeting of minds. Cases to which Section 34 can be
applied disclose an element of participation in action on the part of all the accused persons. The acts
may be different, may vary in their character, but they are all actuated by the same common intention.
Sec. 34 General Explanations .- 81

The common intention required by Section 34 is different from the same intention or similar intention.
AIR 1963. SC 174. Whereas Section 34 is merely declaratory of a rule of 'criminal liability' and does
not create a distinct offence. Section 149 is not a merely declaratory provision and does create a distinct
offence. AIR 1956 All 241.
(2) Differences between sections 34 and 149.— To some extent Section 34 and 149 overlap as
they provide for joint liability but there are points of difference. 1956 SC 731 : A IR 1955 SC 274,' 52
Cal 197 PC.
Section 34: common intention Section 149: Common object.
Section 34 applies when 2 or mote persons Common intention is not necessary but an
including the accused do a criminal act and must , offence must be committed by any member of an
therefore be prescnt when the act is done. . unlawful assembly in prosecution of the common
Before Section 34 can be applied to persons they, object of that assembly or such as the members of
must all participate in a criminal act, ' . that assembly knew to be likely to be committed
in prosecution of that object.
A criminal act must be done by 2 or more Section 149 applies only when there is an,.
persons IN FURTHERA10E of the COMMON unlawful assembly of 5 or more persons.
INTENTION of ALL.
In Section 34 it is not sufficient that one person In Section 149 it is not necessary that persons
knew it to be likely that another would commit should participate in a criminal act. But an
an offence. Both 'must fully share the common offence should be committed by a member of the
intention. . unlawful assembly, before Section 149 is applied
to another. member of the unlawful assembly.
Before Section 34 can be applied several persons Section .149 imposes, liability on every person.
must actually participate in the offence. who, at the time of the commission of the offence
Section 34 does not create a distinct offence but by another, was a member of the unlawful
explains, a principle of criminal liability. assembly.
Section 34 has a wider application to cases of 2 Section 149 creates a distinct offence.
or more persons but the range is restricted to Sectiond 149 is restricted in its application to 5
participation. in a criminal act by all in or more persons who form an unlawful assembly
furtherance of the common intention of all. but when Section 149 is applicable, that is when
there is an unlawful assembly of 5 or more
persons Section 149 has a wider scope and
criminal range.
See A IR 1956 SC 116; A IR 1954 SC 204; A IR 1953 SC 364.
The words 'in furtherance of common intention of all' which are a most essential part Of Section
34 are absent in Section 149. It is common intention to commit the crime actually committed. The
common intention is anterior in time to the commission of the crime. Common intention requires a
prearranged plan. But Section 149 speaks of-an offence being committed by any member of an unlawful
assembly in prosecution of the common object iDf that assembly. The distinction between 'common
intention' in Section 34 and 'common object' in Section 149 is of vital importance. Under section 34
in case of a' criminal act in furtherance of common intention by several persons each shall be
individually liable'for the act which . he has .com'mitted—Under. section J49 every member of the
-a
unlawful assembly is guilt' of the offence committed in prosecutiOn of the common object. A bu Syed
82 Penal Code Se34
Vs. State (1986) 38 DLR 17. Section 34 applies to cases in which whatever the number of the culprits, -
the prosecution can establish that the criminal act was done in furtherance of the common intention of
all in which case each one of them-is punishable as if he had done the act himself. Nawab Vs. Crown
(1954) 6 DLR (W PC) 22. Section 149, on the other hand, does deal with a common intention but
applies to an offence committed by any member of an unlawful assembly in furtherance of the common
object of the assembly. Section 149 will apply even if the common intention of the culprits was not to
commit the offence committed if the offence was committed in order to gain the common object of
unlawful assembly. Nawab V s. Crown (1954) 6 DLR (W PC) 22. Section 34 and 149 have some
common fentures, but some difference between them is that while section 34 may apply to a case where
the culprits are five, more than five or less than five ; section 149 can apply only to cases in which
culprits are five or more. Another difference is that while section 34 will apply where the common
intention is to do . anact which was done, the latter section will apply even if there was no common
intention to do the act but it was done in furtherance of the common object of unlawful assembly.
Nawab Vs Crown (1954). 6 DLR (W PC) 22.
(3) Resemblance between sections 34 and 149.—Both may apply in a case where "common
intention" and "common object" are one and the same—Both the sections deal with combination of
persons who became punishable as "shares in an offence"—They have certain resemblance and may, io
some extent, overlap—The basis of constructive guilt u/s.149 is mere membership of an unlawful
assembly---The basis of the offence u/s. 54 in participation in an act with common intention of doing
the act—Where common intention and common object are the one and the same in a given case, both
these sections may apply. The alteration of finding by applying Sec. 149, instead of Sec. 34 is not bad
in law in a case where "common intention" and "common object" have overlapped—But the accused
cannot be held responsible for the offence of arson u/s. 436 though they are guilty of rioting u/s 147 by
applying Sec. 149. 4 BCR 1984 A D 186 = 1984 BLD (AD) 324 = (1985) 14 BLR (AD) 115.
(4) Conversion of a charge u/s. 302134 to one u/s 149 not safe.— It is not only a question of
prejudice but in a charge of murder where the normal sentence is death and the lesser sentence is
transportation, the conversion of conviction from sections 302/34 to 302/149 is not at all safe. The
State Vs. Idris Pandit, (1973) 25 DLR 232. The intention in using a firearm was clearly to cause death
and, therefore, the two deaths which have been caused can be rightly held to be result of a joint attack
by the four, persons before us thus attracting the application of section 34 P.C. Yet, it would have
been similar and in fact, not in any way a contravention of either fact or law, to hold that these four
persons with others who had not been identified carried out the attack in which case the liability would
be extended to all of them under section 149, P.C. Mohammad Shall Vs. The State, (1967) 19 DLR
(SC) 216.
(5) Section 34 and 149 deal with liability for Constructive criminal action— Distinct features of
these two sections— Points on which both are similar and on which they are different. — These two
sections both deal with combinations of persons who became punishable as "sharers in an offence".
They have a certain resemblance and may to some extent overlap. Section 34 applies to a case in which
several persons both intend to do an act and in fact do that act ; it does not apply to a case where
several persons intend to do an act but some one or more of them do an entirely different act ; in such a
case section 149 mayr apply provided other frequirement arefülfilkd.Mere membèship of an unlawful
assembly, makes one liable u/s 149 under section 34 there is participation in an act with common
:intention. Bq?gladsh V s. A bed A ll (1984) 36 DLJ4D) 234. :.
Sec. 34 General Explanations 83
(6) Scope of the two sections. —Both sections deal with combination of persons to become
punishable as sharers in an offence. Basis of a case under section 34 is the element Of participation, and
that of one under section 149 is membership of an unlawful assembly. The scope of the latter is wider
than that of the former. A bdus Samad Vs. State 44 DLJ? (A D) 233. These sections do not confer
punishment for any substantive offence. They are intended to deal with liability , for constructive
criminality. Section 34 applies where criminal act is done by two or more persons in furtherance of the
common intention of all, whereas section 149 applies in the case of a member involved in unlawful
assembly for a common object So there is difference between the two sections as there is a difference
between object and intention A taur Rahman Vs State 43 DLR 87
Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing 'a
common intention" with others for the commission of.an Offence :while section 149 , essentially a
vicarious liability for being a member of an unlawful assembly with the "common object of
committing the offence. These two offences are of different nature. Abu Talukder Vs. State 51 DLR 188.
Section 34 applies in a case where a criminal act is done by two or more persons in furtherance of the
common intention of all while section 149 applies in the case of a.member of an unlawful Issembly
when a criminal act is committed by any member Of therunlawful assembly in prosecutio.n of the
common object of that assembly.. A taur Rahman and others V s. The State, 14 BLD (HCD) 391.
Section . 34 and 149 of the Penal Code are two distinct and sparate offences with different ingredients.
Section 34 of the Penal Code involves a direct Overt act on the part of the accused sharing a 'common
intention' with others for the commission of an offence while section 149 Of the Penal. Code is
essentially a vicarious liability for being member of an unlawful assembly with the 'common object'
of committing the offences. These two offences are of different nature. A bu Talukder Vs. The State 19.
BLD 07D) 22S.', Section 34 and 149 of the Penal Code 1860 operate in two different situations in
relation to commission of an offence There can be no charge under section 34 and 149 of the Penal
Code independent of any substantive offence When several accused in furtherance of common intention
participate in the commission of offence the charge against all of them will be under section 34 of the
Penal Code together with the principal offence On the other hand when five or more persons forming
an unlawful assembly commit an Offence animated with common Object, every member of the assembly
is equally liable for the offence under section 149 Of the Penal Code read with the substantive offence.
Abdus Samad Vs. The State 44 DLR (AD) 233.
48. Section 34, .Seçtion 149 and Sectiofl .302.—Under section 34 the two elements that
constitute the crime are the common intention and the , participation in the crime, while those in the
case under section 149are the common object and the participation in the unlawful assembly. Where
the common object becomes equivalent to the common intention and where participation in the
assembly is coupled with the participation in the crime then the two elements of both the constructive
liabilities become the same. In such cases, no separate charge need be framed for each of them as laid
down under section 233, CrPC and the conviction of the accused may be altered from one under
sections 302/149 to that uQder sections 302/34 without there being a charge for the latter as provided
under sections 236 and 237, CrPC. State .Vs. Abdul 1-lye Miaf and Others (Criminal) / BLC 125.
49. Section 34, Section 149 and Section 326.—Strict scrutiny of oral evidence—In a case where
witnesses are related and partis4an and have a strong motive to depose falsely their evidence must be
put to the strict scrutiny having regard to the attendant circumstances–Common intention and common
object–An accused who did not actively participate in the commission of the crime whether can he
84 . Penal Code Sec. 34

convicted .for in the offence committed by the co-accused--The accused who did not actively participate
in the commission of the offence, whether can be convicted u/s 326 without adding section 34 or 149
in the charge and evidence that they acted in a concert or in furtherance of a common object–The
prosecution case being that it was Ajit who threw the bomb at the order of the Chairman–No evidence
having been led as to acting in concert or in pursuance of any common object, it is surprising how
appellants No. 2 to 6 could be convicted individually u/s 326, Penal Code. BCR 1987 A D 320= 1987
BLD (A D) 248=40 DLR (A D) 216
50. Section 34, Section 302 and Section 324.—In the absence of premeditated intention to kill.
the injuries caused by the four accused persons are not being grievous in nature and the same has no
contribution towards the cause of death for which they would not be guilty of the offence under section
302 of the Penal Code and accordingly, their conviction is altered from 302/34 of the Penal Code to
that under section 324 of the Penal Code and the sentence is reduced to the period already undergone.
Madris Miah and others Vs. State (Criminal) 2 BLC 249.
51. Section 34 and Section 304 Part 11.—I1 is legally permissible to apply Section 34 to a case
under Section 304 Paii II provided the facts establish common intention. A IR 1964 SC 1263. In the
case of offences depending on knowledge, the sections to be applied are Sections 34 and 35 and not
Section 34 alone. The wording of Section 35, and the words 'such act' inthe marginal note to Section
35 are a complete answer to the difficulty. Persons can be convicted under Section 304, Part II in fit
cases by the application of Sections 34 and 35 and not Section 34 alone. Section 34 can be applied
where a criminal act is done by several persons in furtherance of the common intention of all. In such a
case each of such persons is liable for the act in the same manner as if it were done by him alone.
Further. if in addition to the common intention, some of the persons have a criminal knowledge such
as that the act done is likely to cause death, those persons will be liable for the act under Section 34
and will also be liable for the criminal knowledge not by reason of Section 34 but by reason of the fact
that their individual criminal knowledge is proved. But Section 34 cannot be applied where an act is
not criminal but for the knowledge with which it is done e.g., Section 413 or Section 497.
52. Section 34 and jurisdiction.—Section 34, not only provides for liability to punishment. but
also for subjection of a conspirator who is not within the jurisdiction of the Court where the act
conspired is committed to its jurisdiction. The accused C is a subject of the Cambay State. He lived in
Cambay and there traded with his business partner, A . In May 1910 the accused, conspiring with A .
sent A to a certain professional forger by name S. R., living in Umreth, with instructions to instigate S
to forge a valuable security, namely a khata. To facilitate the forgery, the accused sent his khata book
with A to 5, S committed the forgery in pursuance of A's instigation. As there is a conspiracy, Section
34 applies and each of the conspirators is liable for any or all of the acts of the others done in pursuance
of the common intention. Where a foreigner in foreign territory initiates an offence which is completed
within British territory, he is, if found within British territory, liable to be tried by the British Court
within whose jurisdiction the offence was completed. A IR 1960 Mys 228.
53. Charge.—If a person is charged under Section 302, it is not necessary that he should be
charged under Section 302 read with Section 34 before he can be convicted under Section 302 read with
Section 34. If a person is charged under Section 302 read with Section 34 he can be committeq under
Section 302 simpliciter. A IR 1956 SC 116
Model charge.— That on or about (date) at (place) you, A , B, C and D (Names of persons charged)
along with F, G and H(names of persons absconding or dead) and others unknown or unidentified did
a criminal act, to wit (here state the criminal act and its consequences), which is an offence punishable
Sec. 34 General Explanations 85

under Section in furtherance of the common intention of you all to wit (here describe the common
intention of all) and you. are therefore guilty under Section (here state the section) read with Section 34,
P. C., etc.
54. Omission to mention Sectiond'34 in the charge is not necessarily a fatal defect.—Section
34 can be applid even though no charge was framed for it if the evidence establishing it is clear and free
from doubt. A IR 1973 SC 460. The object of a charge is to warn the accused person of the case he is to
answer. It cannot be treated as if it was apart of a ceremonial. The omission to mention Section 34 of
the Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in
consequence thereof. A IR 1958 SC 672. The omission to mention Section 34, in the charge had only
an academic significance and had not in any way misled the accused and further that on the evidence in
the case the chargé of murder had been brught home against both the appellants. A IR 1956 SC 171.
Where the charge under Section 409/34 against • two persons did not state that there was joint
entrustment of property, held, charge of misappropriation of property entrusted in furtherance of
common intention could not be sustained. 1967 Cr LJ 1429. section 34 does not create any specific
offence. It is a principle f constructive liability. A person could be convicted of an offence read with
Section 34 if the facts of the case justify and if the accused had understood the evidence led against him,
of such facts irrespective of the fact whether the section was expressly mentioned in the charge or not.
A IR 1956 SC 116, 171. Omission of charge as to common intention—Non-mentioning of section 34,
Penal Code during his examination under section 342, CrPC has not in any manner prejudiced the
accused in their defence. It is a mere irregularity which is curable and there has been no failure of justice
for such non-mentioning. A bulKashem V s. State 42 DLR 378,
55. Proof and inference.—To apply Section 34, prove that— .
(I) A criminal act was done.
(2) It was done by several persons (including the accused). -
(3) They had a common intention.
(4) What the common intention was. . .
(5) The criminal act was done in furtherance of that common intention. See 1977 SCC.(Cr) 602.
The inference of common intention should never be reached unless it is a necessary inference
deducible from the circumstances of the case. A IR 1968 Born 254. "Even if it is held proved, that all
- the appellants were seen at that spot at the time of firing, this fact by itself could not be held enough to
prove a common intention of the appellants to murder S. It can well be that these four persons were
-standing together and one of them suddenly .seeing S fired at him. This possibility has not been
eliminated by any evidence on the record. In such a situation when it would not be known who fired
the fatal shot, none of such persons could be convicted of murder under Section 302", A IR 1954 PC.
118. The evidence as to conspiracy under Section 120B, P. C., having been rejected, the same
evidence could not be used for finding a common intention proved under Section 34. 34. A IR 1953 SC
420. The mere circumstance of a person being present on a lawful occasion does not raise a
presumption of that person's cothplicity in an offence then committed so as to make Section 34
applicable. A IR 1947 Mad 259. Mere presence without proof of any act or omission done to facilitate
offence or at least without proof of the existence of a common intention will not be sufficient to support
a conviction. A IR 1951 Pat 550. Where a criminal act or series of acts is done by several persons in
combination, it is essential to consider, first, the common intention of all, and secondly, the individual
86 . . Penal Code . Sec. '34
intention of each of the accused as disclosed by the circumstances. 57 IC 918. A common intention
may' be inferred, from the conduct of the assailants or their participation in the commission of the crime
and from circumstances such as the character of the attack or the nature of the injuries inflicted or from
the nature of the weapons employed. Common intention can develop in the course Of .events though it
may not have been present to start with. The question whether there was such an intention or not will
in most cases depend on inferences to be drawn from proved facts and not on any 'direct evidence about
a . pre-arranged plan which may seldom be available. Common intention may be conceived , of,
immediately before or at the time of the offence The precise intention of several persons acting in
concert is. a matter of inference from their conduct. AIR 1936 A ll 437. In that case itwas held that where
it is proved that the, accused attacked with lathis.a person belonging to a party with whom they were
oil inimical terms, as soon as they sighted him, and all of them used their lathis, it can be inferred that
all of their of one mind when they suddenly saw that person and entertained the common
intention of beating him with lathis. It was also pOinted out there that every one is supposed to intend
the probable consequences of his acts. A IR 1955 SC 331. If common intention is proved, 'motive. is
immaterial. 18 Pat 101. When several persons attack another, not upon a sudden quarrel but in concert
and after previous consultation they must be deemed to be acting with a common intention and each
one's act must be presumed to have been done in furtherance of the common intention, the intention
to be inferred must be tlat deducible from the entire act committed by all. A IR 1953 A ll 203. The mere
fact that human blood was found on the appellant's dhoti at one place, in the absence of other evidence,
was no corroboration of the prior concert that Section 34 required. It was no corroboration of
participation in the crime. A IR 1956 SC 51. Direct. evidence of'common intention is always difficult to
obtain and its existence which is an essential ingredient of constructive liability has invariably to be
deduced from surrounding facts. A IR 1964 Punj..321: Whther there was common intention or not is in
the ultimate analysis a question of fact and' it has to be determined on the circumstances Of each case.
Common intention has to come into being prior to the commission of the act in point of time, but this
point of time has not to be a long gap. A' common intention may develop on the spot and suddenly.
Direct evidence of common intention is a rarity. It has to be found mostly on circumstantial evidence.
The ordinary rule on which circumstantial evidence has to bejudged by Courts must be applied in
judging circumstantial evidence showirg common intention. A IR 1957 All 50.
Common intention cannot be inferred because P and Q were on the same cycle where Q fired a shot
and both ran away. A IR 1975 SC 12. Where the assault started at the instigation of the accused, held,
he shared common intention even though he had no weapon in his hand 1971 SCC Cr 497. Giving of
2 forcible lathi blows on the head by Hand K does not prove that their associate P and Q'who gave
kicks shared the common intention with H and K. (1976) 1 SCC 406. Mere carrying of spears, which
is not unusual for sikhs would not establish pre-planning. 1972. SCC Cr 568. The presumption ..of the
common intention must be subject .to the same restrictions as other presumptions it must not take the
form of a bare surmise or conjecture or suspicion There must be data from which it can be inferred and
the inference of common intention "should never , be reached unless it is a necessary inference deducible
from the circumstances of the case". A IR 1945 PC 118. Pre-arranged plan is proved from 'conduct or
from circumstances or from incriminating facts 1971 (1) SCR 31 Accused's leading to t he place of
recovering of weapon is not sufficient by itself to infer his participation 1074 Cr Li 369 For inference
of "common intention", See also 1978 5CC (Cr) 191. For cases on "inference not drawn". See also
I976.SCCO)414.
Mere proof of each of the participating culprits having same ' intention to commit certain act is not
sufficient to constitute common intention. Kabul Vs. State 40 DLR 216 The conviction of appellant
Sec. 34 General Explanations 87
Nos. 2-4 upon the evidence on record for the offence of murder with the application of section 34 or
109, Penal Code is not sustainable in law. A mar Kumar Thakur V s, State 40 DLR (A D) 147.
Common intention may be proved by direct evidence. Kabul V s. 'State 40DLE 216 Common
intention—Unless the Court is told what the exact words were used by the accused person it cannot act
on the inference supplied by the witnesses—There is no evidence on record that the appellant Nos. .2-4
had an intention to cause the death of Nandalal. A mar Kumar Thakur Vs; State 40 DLR (A D) 147.
Inference of common intention shall not be reached unless it is a necessary inference deducible from the
evidence or circumstances of the case. Kabul Vs. State 40 DLR 216 There is no evidence whatsoever.
from the side of . the prosecution that the 'accused-appellants attacked Momdel Hossain to kill him,
rather it appears that the presence of deceased Momdet at the place of occurrence is accidental one and as
such the prosecution has failed to prove the ingredient of section 34 of the Penal Code. State Vs..
A zharul (Criminal) 3 BLC 382. .
Although under section 34 of the Penal Code, when a criminal act is done by several persons, in
furtherance of the common intention of all, each of such persons is liable for that act in the same manner
as if it 'were done by him alone, in awarding punishment each of such persons may be sentenced to
death if there is direct evidence of their criminal act in furtherance of the common intention of all.
Khalil Mia Vs. State (Criminal) 4 BLC (A D) 223. Section 34 of the Penal Code provides that when a
criminal Act is done by several persons in furtherance of common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him alone. It does not create any distinct
offence but merely lays down principle of joint liability in a criminal act.done in furtherance of common
intention of the offenders, that is, there must be a common intention. It appears that the learned
Sessions Judge mIsconstrued the meaning of section 34 of the Penal Code as in the absence of proof of
prior planning of common intention it cannot be said that the acts done by the accused persons is in
furtherance of common intention. A bdul Qazyum Vs. State (Criminal) 6 BLC 415. In the impugned
judgment the learned Sessions Judge recorded on finding as to the offence committed by the appellants
• in furtherance of their common intention when the High Court Division has found that there is no
evidence to that effect. KalaMiah & others Vs. State (Criminal) 6 BLC 335.
56.What the common intention was must be proved.—The existence of a common intention
is the sole test of joint responsibility and'what the common intention is must be proved. It is of course
but rarely that there could be direct evidence of a common intention which must be judged and decided
by a consideration of all the facts proved, and the circumstances surrounding the case. It is not sufficient
to say that such and such act Was likely to occur, but it must be found on a consideration of all the
circumstances available, what the common intention was. AIR 1941 Rang 301.
57. Conviction of one accused and acquittal of the remaining.—Where two accused were
convicted under Section 302/34 and one of them was acquitted in appeal, the other accused could not
be convicted under Section 302 simpliciter in the absence of proof of exact nature of injury caused by
.
each accused. He can be convicted under Section 325 only. A IR 1968 SC 728. Once the other named
co-accused persons are acquitted, the remaining accused .cannot be convicted on the basis of his having
shared the common intention. A IR 1966 Pat 448. If the case proved is that some persons committed an
offence in pursuance of their common intention and all but one of the accused are acquitted on the
ground that their identity with the actual participation is not proved, the.remainipgone accused can be
convicted under Section 34 but not if the acquitted accused are acquitted by giving them benefit of
doubt tl'c. an, ing're . ac used to whom,
be of doubt is. not given .cannqtbe convicted.. under
88 Penal Code Sec. 34

Section 34 because acquittal means that the acquitted persons did not take part in the offence. Q can
be convicted if the court holds that the criminal activity was done by Qand some other person
known Or unknown. (identified or unidentified in furtherance of the common intention of all). 1979
SCC (Cr) 994.
58. Conviction read with Section 34, without a charge under Section 34.—Where by
oversight or otherwise specific mention of Section 34 is not made in the charge, that defect by itself
would not be fatal, if no prejudice is caused and otherwise the Court can come to the conclusion that
the accused had notice that they would be liable under Sectioii 34 also, for after all Section 34 is
merely an explanatory provision in the Code, and does not create any specific offence itself. It is not
necessary to frame a charge under Section 34, for the purpose of convicting a person under Section
498/34, provided the facts and circumstances of the case establish the common intention, AIR 1957 Pat
285. Section 34 can be applied even if no charge is framed. 1972 SCC (Cr) 568.
59. Conviction read with Section 34 but without a charge under Section 34 but with a
charge under Section 149.— A IR 1956 SC 116 When there is a charge under Section 149 but no
charge under Section 34 even in the alternative, Section 34 cannot bd applied. A IR 1953 SC 364.
But it was held that chrge under .Section 149 is no impediment to conviction under Section 34.
Section 34 can be applied even if no charge is framed if the evidence is clear and free from doubt.
(1972) 3 SCC 418.
6O. Charge with Section 34—Conviction without Sectioh 34.—A reference to the decisions of
the Supreme Court, the Privy Council and the High Courts would bear out the proposition that.where
an accused is charged with a substantive offence by invoking the aid of Section 34, there is no legal bar
to the conviction of the accused under the substantive offence simpliciter. A conviction of an accused
person under Section 420 would be valid though the charge is under Section 420 read with Section 34
unless prejudice is shown to have occurred. A IR 1957 SC 857. A person charged with other accused
under Section 201 read with Section 34, can be convicted onlyunder Section 201 if the evidence
justifies. The omission to frame alternative charge under Section 201 does not become material when
the evidence on record is sufficient for a conviction under Section 201. AIR 1958 Andh 37
61. Conviction under Section 302 read with Section 34 may be altered to one under section
326 read, with Section 149.— A IR 1926 (SC) 238, which relied on A IR 1956 SC 116
62. Section 34 and Sentence.—When Section 34 is.applied lesser sentence may given to the
persons who did not give fatal blows. AIR 1956 SC 754:
63. Miscellaneous.—(1) In a jury trial the section has to be explained with reference to the facts
of a particular case.—The Sessions Judge explained the law to the jury with regard to the application
of section 34 of the Penal Code, but in doing so, he failed to direct the jury as to what bearing the law
had with reference to the faàts of the particular case before them. Held The explanation of law in the
abstract could not have been of any assistance to the jury to appreciate the facts of the case with
reference tothe laws which would be applicable. Samar Ma/lick V s. State (1960) 12 DLR 438.
Accused standing outside—Others going in, and pulling girl outside courtyard and killing her—
Accused standing outside is guilty of the offence of abduction though not of murder. Ghulam Quadir
V s. State (1960) 12 DLR (SC) 171 1960 PLD (SC) 254. Joint action by several persons based on
common intention more properly fits section 34 rather than section 149. Ghularn Quadir Vs. State
(1960) 12 DLR (SC) 171 To sustain a charge under section 34 pre-concert is a necessary element
11
.Exstence of such•pre conoertcan beëstablishèd venby prOcfOi' act's perfoiméI by individual after the
Sec. 35 General Explanations 89
completion of main crime..Ghularn Quadir Vs. State (1960) 12 DLR (SC) 171. Knife was taken out by
one of the accused at the spur of moment—Death caused by knife injuries amounts to an individual act.
Shihab Din Vs. State (1964) 16 DLR (SC) 269. In the case, where the number of assailants is five or
more than five, section 149 of the P. Code is attracted. This section has no concern with the common
intention of the participants in the crime but concerns itself mainly with either common object and
provides that even if the offence committed by any member of the unlawful assembly was not
committed in furtherance of the common object of that assembly, every one of the •members of the
unlawful assembly would be liable for the offence if the result was such as was known to ,be likely.
Feroze V s. State (1960) 8 DLR (W P) 128. Ingredients of s. 34 must be fulfilled to justify its
application in the absence of which no conviction under sec. 34 valid. The State Vs . Idris Pandit,
(1973) 25 DLR 232.
(2) S. 34 with sec. • 309.—The accused Mitho actually stabbed the deceased fatally.
Simultaneously, Abdul Jabbar held off the other inmates of the house by pointing a pistol at them and
sought to suppress their effort to seek assistance from outside. A Jabbar V s. State (1964)16 DLR
(SC) 177.
(3) See also Sekendar A li Vs. Crown. (1950) 2 DLR 158 (Supra) ; Muzaffar Sarker Vs. Crown
(1950) 2 DLR 90; LalMeah A ll Vs. State (1988) 40 DLR 377; A hmed A li Vs. State (1960) 12 DLR
365; Fazar A li Vs. Crown (1952) 4 DLR 99; State Vs. Tayed A /i (1988) 40 DLR (A D) 6; La! Meah.
Vs. State (1988) 40 DLR 377 Ibrahim Mo/la Vs. State (1988) 40 DLR (A D) 216; A bdus Saelam Vs.
Croen (1952) 4 DLR 80 or Crown Vs. Ivffitilal Sen (1953) 5 DLR 66.

Section 35
35. When such an act is criminal by reason of its being done with a criminal
knowledge or intention.—Whenever an act, which is criminal only by reason of its
being done with a criminal knowledge or intention, is done by several persons, each of
such persons who joins in the act with such knowledge or intention is liable for the act
in the same manner as if the act were done by him alone with that knowledge or
intention.
Cases and Materials
1. When such an act is criminal by reason of its being done with a criminal knowledge or
intention.-.-The word 'such' is found in the marginal note but not in the section but it is clear from
Section 35 that it refers to such an act as is referred to in Section 34. Every word in the section is
important. The expression 'in furtherance of the common intention of all' is absent in Section 35.
Moreover Section 35 deals with act which is criminal only by reason of its being done with a criminal
knowledge or intention. Section 35 applies also to criminal knowledge whereas Section 34 does not.
In Section 34 all must have the same common criminal intention. In Section 35, some may have a
criminal intention others may have a different criminal intention and others may have only criminal
knowledge. In such a case all are responsible for the criminal act but only for their individual criminal
intention or knowledge.
2. Act is done by several persons.—As in the case of Section 34, this section deals with joint
constructive liability where an act is done by several persons.
3. Charge under Section 35 not necessary.—See Notes under Section 38.
90 Penal Code Sec. 36

• 4. Case Law.—(1) Like S. 34 this section also refers to cases in which a criminal act is done by
•several persons and provides that each of such persons will be liable for such act as if it were done by
him alone. A IR 1964 SC 1263 (1267).
(2) The section is confined to cases in which an act is criminal only by reason of its being done
with a certain criminal knowledge Or intention. While the 'language of Section 34 is not so limited.
But. S. 34 is wide enough to cover acts which are criminal only by reason of their being done with a
criminal knowledge or intention. Provided that such actis done by several persons in furtherance of the
common intention of them all. AIR 1964 SC 1263.
(3) S. 35 operates by way of a supplement to S. 34 and elucidates the legal position in cases in
which the criminality of an act done jointly by several persons depends on the possession of a
particular knowlódge or intention on the part of the accused. AIR 1964 SC 1263.
(4) Like S. 34, this section also requires, that the crime committed must be a joint crime which is
the result of a joint action of two or more persons. AIR 1955 NUC (Pepsu) 3280 (DB).
(5) Suppose two men go out together and one of them holds a third man for the purpose of
enabling his compani9n to cut that man's throat and his companion does so. They are both equally
guilty of murder. This will be the position both under S. 34 and this section. (1857) 7 .Cox CC 357.
(6) A pre-concerted plan will not be necessary to make this section aplicable. Thus, in this sense,
S. 35 may be looked upon as supplementing the principle embodied in S. 34. AIR 1925 PC 1.
(7) Where it is not proved on the evidence that the accused had the same criminal intention, even
S. 35 will not apply and each of the accused will be liable only for his individual act. 1961 (2) CrILJ
515 (Mys).
(8) A and B make an attack on C. A's intention is to cause grievous hurt to C and murder, him.
B's intention is to assist A in the attack. Grievous hurt is caused to C as a result of which he dies.
Here A and B share in the common intention of causing grievous hurt to C and by virtue of S. 34, B
also is liable for the grievous hurt, although the primary actor in the crime is A. But, unless it is
proved that B also shared A's intention of murdering C, B will not be liable for the murder but A
alone will be liable foe it. (1838) 173 ER 610.
(9) A, B and C attacked D 'with the common intention of giving a beating to D, and each
knowing it to be likely that grievous hurt was likely to be caused to D. Grievous hurt is caused to D.
A, B and C are all of them guilty of causing grievous hurt. AIR 1968 Born 254.
(10) Father armed with a stick and his two sons armed with knife rushing' from their house to
attack the opponents—Accused attacking opponents with stick and knife—All will be held guilty
under Section 326/35, P.C. AIR 1968 Born 254.
(11) Where two persons go out with the common object of robbing a third person, and one of
them, in pursuit of that common object, does an act which causes the death of that third person, under
such circumstances as to be murder in him who does the act, it is murder in the other also. (1857) 7
Cox CC 357.

Section .36
36. Effect caused partly by act and partly by omission.—Wherever the causing
of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an
offence, it is to be understood that the causing of that effect partly by an act and
partly by an omission is the same offence. . '
Sec. 37 General Exp1antions 91

Illustration
A intentionally causes Zs death, partly, by illegally omitting to give Zfood, and partly
by beating Z. A has committed murder.
Cases
1. Effect caused partly by an act and partly by an omission.—The section is clear. But the
last two words 'same offence' are important. Section 36 applies only when the causing of a certain
effect by the act alone or by the omission alone amounts to the same offence. It is then only that
causing the effect "partly by an act and partly by an omission" . amounts to the same offence. Causing
death partly by beating and partly by a rash ornegligent omission is not murder. That is because
causing death by rash or negligent omission does not amount to murder. But if in both cases there was
intention to cause death, then causing death partly by beating and partly by a rash Or negligent
omission would be murder. See AIR 1924 Cal 257 FB.
2. Illustration.—Here although there is only beating and omission to give food the offence is
murder because beating was with intention to cause death and the illegeal omission to give food was
also with the intention to cause death. . .
3. Charge under Section 36, not necessary.—See A IR 1924 Cal 257 FB.
4. Scope.—(I) This section. shows that when an offence is the effect partly of the act and partly of
an omission, it is only one offence which is committed and not two. A IR 1924 Cal 257.
(2) Like S. 34, this section also and Sections 35, 37 and 38, create no substantive offence. These -
sections are merely declaratory of a principle of law in charging an accused person ; it is not necessary
to cite , themin the charge. AIR 1924 Cal 257.

Section 37
37. Co-operation by doing one of several acts constituting an Offence.—
When an offence is committed by means.of several acts, whoever intentionally co-
operates in the commission of that offence by doing any one of those acts, either.
singly or jointly with any other person, commits that offence.
Illustrations
(a) A and B agree to murder Z by severally and at different times giving him small
doses of poison. A and B administer the poison according to the agreement with intent to
murder Z. Z dies from the effect of several doses of poison'so administered to him. Here A
and B intentionally co-operate in the commission of murder and as each of them does an
act by which the death is caused, they are both guilty of the offence though their acts are
separate. . .
(b) A and B are 'joint jailors, and as such, have the charge of Z, a prisoner,
alternately for six hours at a time. A and B, intending to cause Zs death, knowingly co-
operate in causing that effect by illegally omitting, each during the time of his
attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger.
Both A and B are guilty of the murder of Z

*
In all Indian books on the Penal Code, the word "alternatively" has been mentioned in place of "alternately". —Chief
Editor. .
92 Penal Code Sec. 37
(c) A , a jailor, has the charge of Z, a prisoner. A , intending to cause Z's death,
illegally omits to supply Z with food, in consequence of which Z is much reduced in
strength, but the starvation is not sufficient to cause his death. A is dismissed from his
office, and B succeeds him. B without collusion or co-operation with A , illegally omits to
supply Z with food knowing that he is likely thereby to cause Z's death. Z dies of hunger.
B is guilty of murder, but, as A did not co-operate with B, A is guilty only of an attempt to
commit murder.
Cases Synopsis
1. Co-operation by doing one of several arts 3. This section and section 35.
constituting an offence. 4. "Co-operates"
2. This section and section 34. 5. Charge under section 37 not necessary.
1. Co-operation by doing one of several acts constituting an offence.—As in Sections 34 and
35, in Section 37 also an offence is committed by means of several acts. In Section 34, the several acts
form one criminal act. In Section 37, the several persons do not participate in doing the same act but
intentionally co-operative by doing several acts either singly or jointly with any other person. A IR
1953 A ll 663. Sections 37 provides that, when servile acts are done so as to result together in the
commission of an offence, the doing of any one of them, with an intention to co-operate in the offence
(which may not be the same as an intention common to all), makes the actor liable to be punished for
the commission of the offence. 52 IA 40. Where it is established that P and Q were acting in concert in
the sense that their attach was a single indivisible thing, so that both of them would , be liable for the
result ensued. That is the consequence of the provisions of Section 37. 14 Cr Li 235.
2. This section and section 34.--(l) A, B and C attacked D and caused various hurts and
grievous hurts to D. Such a case will fall under S. 34 and not this section. A IR 1952 A ll 435.
(2) A, B and C attacked D and caused various hurts and grievous hurts to D. If S. 37 is to be
applied to such a case it will have to be found what act was done by each of the accus'ed for the purpose
of co-operating in the commission of the crime, which for the purpose of S. 34, it is sufficient to find
that the accusel participated in the doing of a criminal act which was done in furtherance of the
common intention of the joint criminals. A IR 1924 A ll 78.
(3) "Section 34 deals with the doing of separate acts, similar or diverse by several persons ; if all
are dong in furtherance of a common intention, each person is liable for the result of them all as if he
hd done them himself. Section 37 provides that when several acts are One so as to result together in
the commission of an offence, the doing of any one of them with an intention to co-operate in the
offence (which may not be the same as an intention common to all), makes the actor liable to be
punished for the commission of the offence". A IR 1925 PC 1.
(4) A and B attacked D with lathis while C was holding D by the waist. There were two marks of
blows on the arm of D. A and B gave one blow each, but whose blow broke D's arm was not proved.
It was held that in the absence of evidence of a common intention of all to cause grievous hurt, A and
B could only be convicted under S. 323 and C who abetted the commission of the offence could also
be convicted under S. 323/109. In such a case, although all the three A, B and C do different acts, they
are not doing several acts within the meaning of this section but must be regarded as doing only one
act together, i.e., the acts are parts of the same act as explained abovà. (1912) 13 CriLi265
Sec: 38 General Explanations 93

(5) If several persons jointly attack the deceased with lathis fracturing his skull and inflicting.a
number of other injuries they are all equally guilty even though it may not be possible to prove which
of them actually inficted the fatal blow. AIR 1924 All 78.
3. This section and Section 35.—(1) A lathi is a lethal weapon.'
eapon Where the three accused armed
with lathis moved by same intent and object on a sudden altercation with the deceased attacked him
with lathis causing him several injuries including a fracture of the skull resulting in death it was held
that all of them must be held guilty under Section 304, Penal Code as the case falls within Excep. 4 to
Section 300. 14 Cr1LJ 615.
(2) Where three persons acting in concert brutally and mercilessly assaulted another with lathis and
killed him but two of the accused alone were convicted and the third acquitted, the acquittal was bad.
(1913) 14 Cr1LJ 615 (A ll).
(3) A and B attacked C acting in concert in the sense that their attack was single, indivisible act.
A struck C savagely on the head with a heavy stick and B smashed C's skull by a blow dealt with a
heavy stone held firmly in his hand. C died in consequence of the injury. 'But there was no general
fight of any description before the attack. It was held that A and B were both guilty of murder according
to S. 37, because A who used the stick intentionally co-operated with B in the commission of murder.
(1913) 14 CriLi 235 (Born).
4. "Co-operates".--(1) This section contemplates two or more persons co-operating by their
several acts and committing one offence by such co-operation. In such a case the section provides that
each person who co-operates in the commission of thó offence by doing any one of the acts is ' either
singly or jointly liable for that offence. AIR 1964 SC 1263.
(2) If several persons combine to forge an instruments and each executes by himself a distinct part
of the forgery, the fact that they are not together when the instrument is completed will not absolve
them from liability and they will all be guilty as principals. (1821) 168 ER 890.
(3) It is not necessary to constitute intentional cooperation within the meaning of this section in
the commission of an offence, that each one of the persons alleged to do an act in such co-operation
must know who the other persons co-operating in the commission of the offence are. (1831) 168 ER
1281.
5. Charge under Section 37 not necessary.—See A IR 1924 Cal 257 FB.

Section 38
38. Persons concerned in criminal act may be guilty of different offences.—
Where several persons are engaged or concerned in the commission of a criminal act,
they may be guilty of different offences by means of that act.
Illustration
A attacks Z under such circumstances of grave provocation that his killing of Z would
be only culpable homicide not amounting to murder. B having ill-will towards Z and
intending to kill him, and nbt having been subject to the provocation, assists A in killing
Z. Here, though A and B are both engaged in causing Zs death, B is guilty of murder,.
and A is guilty only of culpable homicide.
94 . Penal Code Sec. 38

Cases : Synopsis
. Scope 4. This section and section 34.
2. Persons concerned in a criminal act may be 5. This section and section 35.
guilty of different offences. 6. This section and section 37
3. Sections 34, 35, 36, 37 and . 38 create no 7. This section and section 149.
substantive offence.

1. Scope.—(l) This Section is one of a batch of Sections, viz.. Ss. 34, 35, 37 and 38, which deal
with eases in which two or more persons are involved in one and the same crime. The Sections do not
create any substantive offence but only lay down a principle for the determination of the criminal
liability of such persons; In this respect the sections differ from S. 149 which also deals with the
question of. vicarious, liability of a person for an offence which he himself has not committed, but which
is committed by another person. A IR 1925 PC I
(2) The failure to make specific mention of the sections which create a constructive liability, is not
necessarily fatal to a charge or a trial but it is only a matter which has to be considered from the point
of view whether the accused has been prejudiced in his defence by such omission. AIR . 1955 SC 274.
(3) Section 38 applies where a criminal act is jointly done by several persons and the several
perons have different intentions or stages of knowledge in doing the joint act. A IR 1968 Born 254.
/ 2. Persons concerned in, a criminal act may be guilty of different offences.—When a criminal
act is done by several persons ., they will all be guilty of the same offence if Section 37.applies, that is if
they intentionally co-operate in the commission of the same offence. But they will be guilty of different
offences if Section 35 or Section 38 applies. When the criminal intention or knowledge of the several
persons is different, they will be guilty of different offences. This is what Section 38 provides.
3. Sections 34, 35, 37 and 38 create no substantive offence.—They are merely declaratory of a
principle of law and in charging an accused person it is not necessary to cite them in the charge. A IR
1924 Cal 257 FB.
4. This Section and S. 34.— (1) Under S. 34 the liability of the different actors participating in a
crime is of an equal degree. Each of such participants is liable for the crime as if he alone had
committed it. His liability is not confined to what he himself personally did or omitted to do. A R
1925 PC 1.
(2) Under this Section as contrasted with S. 34 there is no common intention so far as the
particular offence charged is concerned, among the criminals. Each of the participants is held liable for
his individual act and for the offence constituted by such act, so that although several persons may take
part in the same crime they may, by their acts, make themselves liable for different offences. A IR 1977
SC 2252. . . .
(3) Where the several persons taking part in a crime have not been acting in furtherance of a
common intention of all. Sec. 34 does not come into play at all and each of the persons who takes part
in the crime will be guilty only of the offence which is constituted by his particular act and the
intention with which he does such act. A IR 1927 Oudh 313. . .
(4) Several persons acting with a similar or same intention cannot be said to be acting under a
common intention so as to attract the application of S. '34 and in such a case each of them will be
liable for the offence constituted by his own individual act. In such cases, therefore, different offences
See; 39 General Explanations 95

may be committed by different persons although the criminal transaction in the course of which they are
committed maybe one and the same. AIR 1927 Oudh 313.
(5)A and B cause C's death. A is acting under sudden and grave provocation and is entitled to the
benefit of Exception 4 to Section 300. But B merely acts out of vengeance and not entitled to the
benefit of Exception 4 to S. 300. They commit different offences, although in the course of the same
criminal act. A is guilty of culpable homicide not amounting to murder and B is guilty Of murder. AIR
1955 NUC (Pepsu) 3280 (DB.
5. This Section and Section 35.--(1) Section 35 contemplates only cases of a single act
constituting an offence although done by two or more persons.. The present section contemplates cases
in which different persons do different acts and thereby become liable for different offences. But it is not
necessary that the accused should be guilty of offences falling under different sections of the Code as the
acts of the different accused may constitute offences falling under the same provision of the Code.
(1961) 2 CrIL.J 515 (DB) (Mys).
6. This Section and Section 37.—(1) Section 37, like Sections 34 and 35, is a section under
which the several persons taking part in a crime commit the same offence. But under this section the
persons taking part in a crime become liable for different offences, although the act.done by the
criminals is one and the same. Illustration to the section brings out this point clearly. AIR 1964 SC
1263. . . .
7. This Section and Section I49—(1) The principle of Sections 38 and 110 applies to offences
under Section 149 and the liability of individual members of an unlawful assembly under the latter,
section depends on the intention or knowledge of the -members. AIR 1936 Pat 481.

Section 39 . ..
39 "Voluntarily". —A; person is said to cause an effect "voluntarily" when he
causes it by means whereby he intended to pause it, or by means which, at..the time of
employing those means, he knew or had reason to believe to be likely to cause it..
Illustration
A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating robbery and thus causes the death of a person. Here, A may not have
intended to cause 'death, and may iven be sorry that death has been caused by his act
yet, if he knew that he was likely to cause death, he has caused death voluntarily.
• . . ' Cases: Synopsis
1. "Intention " , "knowledge" and "reason 10 4. Knowledge presumed.
believe ". 5. Voluntarily and negligently.
2. Causing an effect voluntarily. 6. Rash and negligent act.
3. Intention presumed. 7. Act under threat.
1. "Intention", "knowledge" and "reason to believe".—(l) It is not necessary in order to
constitute an offence under Section 296. viz., the offence of voluntarily causing disturbance to a
religious assembly that the accused should have intended to cause disturbance to such assembly. If the
accused knew or had reason to believe that this act.would'cause such disturbance, he would be guilty
under the Section. (1896) ILR 20 Cal 60 (DB). ' •
96 Penal Code Sec. 39

(2) Where the accused threw brickbats at another's house as result of which an inmate of the
house was injured, the accused may be convicted of voluntarily causing hurt under Section 323. AIR
1916 Low Bur 98.
(3) The intention, etc. referred to in this Section must be determined from the nature of the injury,
the weapon used, the part of the victim's body affected; force used and other related circumstances.
(1968) 2 SCW R 801.
(4) Where the accused threw an ignited match stick upon the clothes of his wife resulting in
serious burns and grievous injury to her, it was held that in the circumstances of the case, and from the
manner in which the accused lit the match stick and threw it upon the clothes of his wife, it could be
reasonably inferred that the accused did in*endto cause burns to'her body and that hence, his act was
"voluntary" within the meaning of S. 39. 1979 Born CR 507 (DB).
(5) All accused persons travelling in a long distance bus with prior plan to commit dacoity—More
than one person armed with pistols and cartridges—One accused asking bus driver to stop bus in a
lonely place—Bus driver shot dead—In execution of their plan 2 victims were robbed of cash worth
Rs. 2 laks—Held that the common object of the unlawful assembly was to commit dacoity at all costs
including use of firearms—Murder could not be said to constitute separate transaction. (1980) CriLi
(N0C)131. .
2. Causing an effect voluntarily.—Voluntarily causing an effect embraces (I) with intention to
cause the effect, (2) with the knowledge of likelihood of causing the effect,(3) having reason to believe
that the effect is likely to be caused. In all the three cases there is criminal responsibility for causing the
effect. The principle of exemption from criminal responsibility in respect of a hurtful consequence is
that ofbonafide ignorance of the connexion existing between the mere mechanical act and its
consequence. That principle ceases to operate where the connexion is known to be either certain or
probable. If the doer of an act knows or believes that a noxious consequence will result from that act, he
is just as culpable both in Law and Morals as if he had acted with the most direct intention to hurt. Let
it however be suppoed that the consequence is not certain, but that it is a likely or probable
consequence and that the likelihood or probability is known to the doer of the act. Here again it is clear
that the principle of exemption above-mentioned is unavailable to exempt the offender from liability in
respect of the consequence. All he can urge is that he was not sure that the hurtful consequence would
follow but he had no right to incur the risk and danger of producing the mischief and having done so
is justly responsible for it; he cannot reasonably complain that the law did not give him notice of the
penalty annexed to the offence or that he did not wilfully offend, for the law may justly, after due
notification, doom such an offender to the penalties inflicted on those who accomplish their purposes
by more certain direct means ; the safety of society is inconsistent with any distinction in this respect
nd the offender in truth acted wilfully, in wilfully incurring the risk and danger of causing the injurious
result. (English Law Commissioner's 7th Report.)
3. Intention presumed.—Everyone is ordinarily presumed to intend the natural and probable
consequences of his Acts. A man is not guilty of culpable homicide if his intention was directed only
to what he believed to be a lifeless body. Complications may arise when it is arguable that the two
acts of the accused should be treated as being really one transaction as in 15 Born 194, or when the
facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and
ignorance as to whether the body he handled was alive or dead, as in 42 Mad 547, FB, which
followed, 15 Born 194.
Sec. 40 General Explanations . 97
4. Knowledge presumed.-A person is said to cause an effect voluntarily when he causes it by
means whereby he intended to cause it, or by means, which at the time of employing those, means, he
knew, or had reason to believe, to be likely to cause it (see Section 39). It is not, therefore, necessary
for the purpose of Section 296, that the accused should have had an active intention to disturb religious
worship. It is sufficient if knowing they were likely to disturb it by their music they took the risk and
did actually cause the disturbance. 6 IC 774.
5. 'Voluntarily', 'negligently'.-Culpable rashness is acting with the consciousness that the
mischievous and illegal consequences may follow, but with the hope that they may not and often
with the belief that the actor has taken sufficient precautions to prevent their happening. The
imputability arises from acting despite the consciousness. Culpable negligence is acting without
the consciousness that the illegal or mischievous effect will follow, but in circumstances which show
that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have
had the consciousness. The imputability arises from the neglect of the civil, duty of circumspection. 7
MHC 119.
6. Rash and negligent act.-(1) For the purposes of the criminal law an act or omission must be
treated as voluntary, if it mjght have been avoided by the exercise of reasonable care and hence the
negligent act or omission must be treated as voluntary actor omission, because the person responsible
for it does not exercise his will to prevent or to avoid the commission or the omission. A IR 1951
Punj 418.
(2) Where the driver of a lorry carrying passengers allows a minor boy to drive the lorry with the
full knowledge that the boy did not know driving, and the boy drives in a rash and negligent manner
causing an accident in which persons received grievous hurt, the driver of the lorry must, in such a•
case, be held to have voluntarily aided the rash and negligent driving by the minor boy, both by not
preventing him from driving as well as by allowing him to drive the lorry. A IR 1951 Punj 418.
7. Act done under threat.-(1) Where a person aids in the commission of a murder under a threat
that otherwise he will himself be put to death, it must be held to have acted voluntarily within the
meaning of Section 39. (1913) 14 CriLJ 207.

Section 40
18 [40. "Offence".-Except in the 19[chapters] and sections mentioned in clauses 2
and 3 of this section, the word "offence" denotes a thing made punishable by this
Code.
In Chapter IV, 20 [Chapter VA] and in the following sections, namely, Sections
21 [64] , 42 [65] , 42 [66], 22 [67] , 42[71] , 109, 110, 112, 114, 115, 116, 117, 187,194, 195,
203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 3.88,
389 and 445, the word "offence" denotes a thing punishable under this Code, or under
any special or local law as hereinafter defined.

IS. Subs, by the Indian Penal Code Amendment Act, 1870 (XXVII of 1870), s.2. for the original section 40.
19. Subs, by the Repealing and Amending Act, 1930 (VII of 1930), S. 2 and.Sch. I, for "chapter".
20, Ins, by the Indian Criminal Law Amendment Act, 1913 (VIII of 1913), s. .2.
21. Ins, by the Indian Penal Code Amendment Act, 1882 (VIII of 1882), s. I..
22, Ins, by the Indian Criminal law Amendment Act, 1886 (X of 1886), section 21(1).
98 Penal Code Sec. 40

And in sections 141, 176, 177, 201, 202, 212, 216, and 441, the word "offence"
has the same meaning when the thing punishable under the special or local law is
punishable under such law with imprisonment for a term of six months or upwards,
whether with or without fine.]
Cases and Materials: Snopsis
1. Scope of section. 8. Rules and bye-laws made under a special law
2. 'Offence' denotes a thing made punishable by or local !aw.
the Penal Code. 9. Abetment..
- 3. 'Offence' denotes a thing punishable under ill. Attempt.
• the Penal Code or under any Spccial Law or 1J Acts not amounting to offence.
Local Law. . 12. Mens rea.
.4. Only some offences under a special or local 13. This section and Section 149.
law. . .
14. Continuing offence.
S. Offence as defl;ed In Criminal Procedure 15. Technical offence.
Code.
16. Contempt of Court.
6. Offence defined in General Clauses Act.
17. Offence for purpose of Constitution of
7. Special or local law.
. Bangladesh; Article 35.
I. Scope of section.—(l) It is a fundamental principle that What constitutes crime is essentially
matter of statute law. AIR 1931 PC 94.
(2) Doing of an act prohibited by statute is an offence. 1983 TaxLR (NOC) 47.
(3) The test of a thing being an offence is its punishability under a statutory provision. But the
same act or omission may be both an offence under the criminal law and a matter which gives rise to a
suit for damages in a Civil Court. Hence an act which amounts to an offence under the law will not
cease to be such merely because asuit for damages in a Civil Court will lie in respect of such act. 1966
AI1WR (HC) 703.
2. 'Offence' denotes a. thing made punishable by the Penal Code.—The subject-matter of
P.C. is crimes and the punishment of those who commit crime. Except in sections referred to in
Clauses 2 and 3 offences denote a thing punishable by Code.
3. 'Offence' denotes a thing punishable under the Penal Code or under any Special Law
or Local Law.—In the second para of Section 40 'offence' has an extended meaning and denotes a
thing punishable under the Penal Code or under any Special or Local Law. AIR 1943 Pesh 72.
4. Only some offeñces under a special or local law.—In the sections enumerated in clause 3
of Section 40, 'offence' does not include all offences punishable under a special or a local law but only
those punishable with imprisonment for 6 months or upwards whether with or without fine.
5. Offence as defined in Criminal Procedure Code.— See Section 2(n) Cr. P.C.
6. Offence defined in General Clauses Act.—Offence shall mean any act or omission
punishable by any law for the time being in force. A IR 1956 Cal 253. See Article 35, Constitution of
Bangladesh. .
7. Special or local law–Special Law.— See Section 41. Local Law.— See Section 42. The
definition includes offences under special Acts. 1972 cr1.1 1097.
Sec. 40 General Explanations 99
8. Rules and bye-laws made under a special law or local law.—Under Section 40 the term
"offence" employed in Section 109 denotes a thing punishable under the Code, or under any special or
local law and it is clear that the Rural Self-Government Act is a local law within the meaning of
Section 42. But the Act itself has not declared a breach of a bye-law of a District Council to be an
offence. A IR 1929 Rang 75, Where a'iocal law declares, a breach of the rules made under its authority
to be punishable, then a breach of such rules might constitute an offence within the meaning of Section
40. 'AIR 1938 Rang 350.
9. Abetment.—Of an offence as defined in clause (2) is an offence as defined in Section 40.
Abetment is a thing punishable by the P.C. See Section 109-117.
10. Attempt—An attempt to commit an offence is itself an offence within the definition of an
offence as given in Section 40 and where no express provision is made in any other part of the Code for
the punishment of such offence, it is punishable under Section 511:
11. Acts not amounting to offence.—An escape from custody when being 'taken before a
Magistrate for the purpose of being bound over to be of good behaviour, is not punishable under either
Section 224 or Section 225, P.C. as he wasnot charged with an offence as defined in Section 40. 8 Gal
331. Neglect to maintain a wife is not an 'offence'. An order for payment of maintenanâe is not a
conviction for an offence. (16 Mad 234); 7 W C 10; 5 BHC 81. A breach of an order under the Defence
Rules is not an offence. 1945 Nag 395.
12. Mens rea.—It is an essential ingredient of the offence unless excluded by statute. AIR 1966 SC
43.
13. This section and Section 149.—(]) The 'word "offence" in S. 149 covers only an offence
under the Penal Code and not an offence under a special or a local Act. The reason is that, although S.
141 is included in paragraph 2 of this .section and so, for the purpose of S. 141 the word "offence"
occurring In that section will include an offence under a special or local law, yet, as S. 149 is not
included in paragraph 2 or 3 of S. 40, the word "offence" occurring in that section will not include an
offence under a special or local law. AIR 1929 Mad 880.
14. Continuing offence.—(1) A continuing offence is one which continues without a break from
moment to moment, and without interruption and is not the same as one which is repeated day after
day. AIR 1961 All 88.
(2) An offence under the Defence Rules is not a continuing offence. AIR 1970 Guf 108.
• 15. Technical offence.—Under Section 79 of the Code an act done under a mistake of law,
although in good faith, does not cease to be an offence. But if a person accepts the decision of a Full
Bench of the High Court from which no appeal has been preferred to the Supreme Court as a guide to
his conduct, he commits nothing more than a technical offence, if that view is later on not accepted as
laying down the correct law. AIR 1955 All 397:,
16.Contempt of Court.—(1) Contempt of the High Court is an offence and contempt proceedings
are of a criminal nature though contempt of Court is not an offence under the Penal Code except in
cases coming under S. 228. 'AIR 1945 Oudh 266
17. Offence for purpose of Constitution of Bangladesh, Article 35.—(1) The word "offence"
has not been defined in the Constitution and hence under Art 152(2) of the Constitution the definition
of "offence" in S. 3(37) of the General Clauses Act. 1897, will apply to the interpretation of , the word
"offence" in Art. 35 of the Constitution. AIR 1954 All 319.
100 Penal Code Sec. 41

Section 41
41. "Special law".-A "special law" is a law applicable to a particular subject.
Cases and Materials
1. Scope of section.—(1) The present section defines the words "special law" as a law applicable
to a particular subject. In other words the words "special law" refer to a law which is not applicable
generally but which only applies to a particular or specified subject or class of subjects. AIR 1961 Born
154.
() The expressions "general law" and "special law" are relative terms and refer to the particular
subject dealt with by the respective Acts, so that it is not possible logically to label any set of laws as
being general laws or special laws. Thus, provisions relating to crimes in connection with the Stamp
Law contained in the Stamp Act, will come under the description of a 'special law', although as
regards stamps the Stamp Act will be a general law. Thus, the same enactment may be a general law
with regard to a particular subject and a special law with regard to some other subject. AIR 1964 SC
260.
(3) The Municipalities Act (1959) is a special law, as well as local law within the definition of Ss.
41 and 42, Penal Code and as such the application of S. 64. P.C., cannot ordinarily be ruled out to the
offences under the Municipalities Act, but in view of the special provision in Section 265(2) of that Act
which provides a special mode for the recovery of fine imposed under the A& S. 64, P.C. which deals
with the power of the Criminal Court for awarding sentence of imprisonment in lieu of fine cannot
-. apply to the cases where fine is imposed under the Municipalities Act. AIR 1966 Raj 238.
(4) Essential Articles Control and Requisitioning (Temporary Powers) Act and Livestock (Control
of Movement and Transactions) Order are covered by Ss. 41 and 42. In view of S. 40 of the Code it
cannot be said that the principles underlying the 'general exceptions' in Chapter 4 of the Code are not
applicable to a special or local law. A IR 1951 Orissa 284 52 Cr1LJ 837 (DB).
(5) Section 36 of the Legal Practitioners Act, 1879 is a special law and the abetment of an offence
under that section is covered by the provisions of the Penal Code relating to abetment. (1895) ITR 17
All 498.
(6) The Municipal Act is a special or local law within the meaning of Ss. 41 and 42, Penal Code,
and therefore by virtue of S. 40, Para. 2, Penal Code, offences under the Municipal Act will be offences
for purposes of Ss. 64 to 67, Penal Code. AIR 1953 Cal 41.
(7) The expression 'special law', as defined in S. 41, P.C., cannot be taken to mean only
enactments which create fresh offences not made punishable under the P.C. The term 'special law'
refers only to a law dealing with those matters which had not been dealt with in the P.C., i.e., law
creating offences not contemplated by the Code. AIR 1940 Lah 129.
(9) The Criminal Law Amendment Act is a special law , within the meaning of S. 41 and hence
there can be abetment of an offence under Criminal Law Amendment Act. AIR 1939 Mad 21.
(10) Section 103 of Insolvency Act does not substantially interfere with S.421 of the Code. As its
essential ingredients show, it is more or less a new offence created by the Act in addition to the offence
under the Code. (1910) 11 CriLi 548.
(11) An offence falling under both the Penal Code and under a special or a local law is triable under
both the laws although it can be punishable only once. AIR 1953 Mad 137..
Sec. 42-43 General Explanations . 101

2. Special Law must create fresh offences.—The special law contemplated by Sections 40 and
41 of the Penal Code are laws creating fresh offences, that is, laws making punishable certain things
which are not already punishable under the general Penal Code. Coroners Act is a special and local
law. .16 Born 169; 31 Cal 1. Criminal Law Amendment Act is a special law. 1939 Mad 87.

Section 42
42. "Local law".—A "local law" is a law applicable Only to a particular part of
23 [the territories comprised in 24 [Bangladesh]].
Cases and Materials
1. Local Law.—Local law is a law applicable only to a particular part of Bangladesh. A IR 1954
Mad 321, See Notes to Section 41. ..
2. Scope of section.—(1) It is only where the act or omission charged is punishable under a local
(or a special) law, it would be an offence within the meaning of S. 40. AIR 1929 Rang 75.
(2) The Municipalities' Act is a special law, as well as local law Within the definition of Ss. 41 and
42 of the Penal code. AIR 1966 Raj 238. .
(3) Municipal Act is a local Act and Section 26 of the General Clauses Act attracts the provisions.
of Section 67 of the Penal Code and Section 23 read along with Sections 67 and 42 of the Penal Code
made the position plain that a Court is entitled to pass a defaulting sentence of simple imprisonment in
case under the Municipal Act. (1958) 62 ,Cal WN 812.
(4) The Maintenance of Public Order Act creates no fresh offence but merely provides the
,
supplementary or alternative punishment for offences primarily punishable under P.C. or which can be
dealt with under preventive or reformative provisions of the Code, Therefore, this is not a special law.
On the other hand it is a local law within the meaning of Section 42, Penal Code. AIR 1954 Mad 321.
(5) The Municipal Act is a special or local law. A IR 1953 Cal 41
(6) See also AIR 1951 Orissa 284.
2. Rules made under a local law.—They do not fall under the category of 'local law' but a
breach of such rules would be an offence as defined in Section 40 if the local law makes such a breach
punishable.

Section 43
43. "Illegal"—"Legally bound to do".—The word "illegal" is applicable to
everything which is an offence or which is prohibited by law, or which furnishes.
ground for a civil action; and a person is said to be "legally bound to do" whatever it is
illegal in him to omit. .
Cases and Materials Synopsis
I. Scope of section. s. "Legally bound to do'
2. "W hich is an offence' 6. Illegal omission.
3. "W hich is prohibited by law. 7. "üi,i" and "unlawful"--Distinction.
4. "Which furnishes ground for a civil action.

23. Subs, by A. 0. 1949. Sch., for "British India".

24. The word "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973, Second Sch. (w.e.f26-3.71).
102 Penal Code Sec. 43
I. Scope of section.—(I) The section gives three calegories of acts or Omissions which will be
"Illegal" within the meaning of the Code. The three categories are as follows:
(a) A thing which is an offence; or
(b) which is prohibited by law ; or
(c) which furnishes ground for a civil action.
A thing which does not fall under any of these categories cannot be regarded as "illegal" for the
purpose of the Code, as for instance, for the purpose of determining whether a certain act is intended to
cause "illegal" harm to a person within the meaning of S. 44. AIR 1933 Sind 196 (DB).
2. "Which is an offence".—(l) Offence in section 43 means an offence punishable under the P.C.
A IR 1945 PC 147.
(2) The term "illegal" under the Code will, according to this section, cover inter alia everything
which is an offence. Thus, for instance, pointing a gun at a person is an assault within the meaning of
Section 351 and will be an offence under the Code, unless it is done for the protection of person or
property. Hence it is an illegal act, if it is done without such lawful excuse. AIR 1946 PC 20.
(3) The omission on the part of a husband to give food and shelter to his wife under circumstances
under which she is completely helpless will amount to the offence of murdering her, if the omission
leads to her death and will, therefore, be an offence and the omission will, therefore, be illegal within
the meaning of this section, where the husband is guilty of such omission in spite of his being in a
position to maintain and support his wife and protect her. AIR 1959 Punj 134.
3. "Which is prohibited by law.—(1) To be illegal the thing must be prohibited by law and not
by, government or departmental rules or orders. Then what is law? Constitution of Bangladesh lays
down the definition of law as such : 'law' means any Act, ordinance, order, rule, regulation, bye-law,
notification or other legal instrument, and any custom or usage, baring the force of law in Bangladesh
(A rticle 152 (1)).
(2) Where a Counsel, who threatens a witness to put the questions, which are prohibited by Ss.
151 and 152 of Evidence Act, to him in cross-examination. with a view to coerce that witness into
paying him money to prevent him from puffing such question, commits an offence under S. 385, as the
intention 'of the Counsel is to cause wràngful loss (loss by unlawful means) to the witness within the
meaning of S. 23. AIR 1930 Pat 593.
4. "Which furnishes ground for a civil action".—(l) The publication of a pamphlet of a
defamatory nature which leaves no doubt as to the persons defamed will furnish such persons a ground
for a civil suit and hence, the publication of such a pamphlet is "illegal" within the meaning of this
Section. Where such publication is made malignantly or wantonly so as to give provocation to any
person and thereby to cause the offence of rioting to be committed, the publication will be an offence
under S. 153, as it will be an illegal act within the meaning of that Section and will further be of the
description which will make it an offence under that Section. AIR 1920 Born 402.
(2) When a Karnam is in possession of Government records, he is bound to hand over the same to
another Karnam who is duly appointed to take his place. His failure or refusal to hand over possession
will give rise to a civil action against him and his omission will, therefore, be illegal within the
meaning of this Section and will be an offence falling under Sec. 175 P.C. AIR 1956 Mad 335,
(3) Where according to the contract between a Municipality and the Government the Municipal
Doctor was to furnish reports to the Government about post-mortem examinations ; the contract is not

Sec. 43 General Explanations 103

one between the Doctor and the Government and his failure to furnish such reports will not give a cause
of act on to the Government to sue him for breach if contract. Hence in such a case the Municipal
Doctor cannot be held to be "legally bound" to furnish information within the meaning Of S. 177 and
his furnishing a false report to the Government will therefore not be an offence under this Section. AIR
1934 Born 202.
5. "Legally bound to do".—(l) An act or omission is not an "offence" as that word is used in
Section 40 of the Penal Code if it is punishable only under some other enactment. Reading Section. 40,
43 and 176 of the Code together the result follows that one who fails to furnish information which he is
legally bound to furnish is punishable under Section 176, that he is legally bound to furnish what it is
illegal for him to omit, that it is illegal for him to omit what is an offence and that an offence is what is
punishable under the Code.
(2) A Chdwkidar allowing a person to escape from his custody .has been held not to commit any
offence under S. 221, Penal Code because he was not legally bound to keep in confinement such
person, there being no legal duty on the part of the village Chowkidar to arrest and keep in detention
any person. AIR 1929 All 935
(3) A plaintiff in a Civil Suit who fails to produce his account books as ordered by the Court does
not commit any offence under Section 175, Penal Code, as he is not legally bound to do so within the
meaning of that section read with Section 43. AIR 1955 NUC (Raj) 4627.
(4) Vaccinators who are legally bound to furnish to their official superiors returns in regard to their
work will be committing an offence under S. 177, Penal Code if they furnish false returns. (1871) 6
MHCR (App) 48.
(5) Where a Government servant, who is legally bound to obey' a departmental order requiring him
to keep a diary of his tour and to submit it to his official superior fails to do so or submits a false diary
commits an offence under S. 177, Penal Code. (1882) ILR 4 Mad 144. .
(6) Where a person is not legally bound to furnish information to a public servant as mentioned in
S. 176, Penal Code his failure to furnish information will not amount to an offence under that section.
1886 Pun Re No. (Cr) 19, P. 42(43) (DB).
(7) Where the accused a Deputy Tahsildar submitted to his official superior a false Nil return of
lands in his enjoyment and also made a false statement to the same effect in the Revenue enquiry before
the Principal Assistant Collector, the accused could not be convicted under S. 177, Penal Code.
Though he was guilty of a breach of a departmental order he was not legally bound to furnish such
information within the definition given in this section. (1891) 1 Mac/Li 741 (DB).
(8) Where the licensee of a brick-field failed to take proper sanitary precautions as required by the
conditions of his licence and as a result of his failure to do so there was n outbreak of cholera On
his brick-field and many people died in consequence, and where he also failed to report to the
authorities the outbreak of cholera on his brick-field, it was held that he was not guilty of any offence•
under S. 269, Penal Code. (Negligent act likely to spread infection of disease dangerous to life). AIR
1923 Rang 140.
(9) When a Karnam is in possession of Government records he has ex necessitate to hand over the
records to another Karnam who is duly appointed by the Collector.in his place. His failure to do so
will give rise to a cause of action for a civil suit against him for the recovery of the account books and
the Government records and hence stich failUre will be an illegal omission on his part and will amount
to an offence under S. 175 of the Penal Code. AIR 1956 Mad 335.
104 Penal Code Sec. 43

6. illegal omission.—(l) Where G, one of the co-mortgagors, remained silent when two persons
falsely presented two of the joint-mortgagors before the registering officer at the time of the registration
of the mortgage deed and affixed false signatures to the registration endorsement it was held that G's
mere silence - was not an illegal omission and there was no question of his silence being ipso facto an
offence or being prohibited by law or being a matter which gives rise to a cause of action for a suit
against him, merely because he stood by and heard and saw the personation committed by other
persons. (1906) 4 CriLJ 183.
(2) The omission to fence a well within 8 yards of the highway, within private premises, was held
to be not punishable as a public nuisance. Such omission was neither an offence nor prohibited by law,
nor did it furnish a ground for a civil action and therefore it was not an illegal omission within the
meaning of this section so as to constitute a public nuisance withi .ttImeaning of Section 268, Penal
Code. (1883) ILRI 6 Mad 280.
(3) A decree for injunction was passed entitling a certain Hindu religious sect to the exclusive right
of reciting scriptures in a certain temple. The rival sect was prohibited by the decree from interfering
with the exercise of this right. At the same time the rival sect was assured the continuance of its rights
as ordinary worshippers. It was held that the recital of the scriptural text by the rival sect separately and
at a distance without in any way interfering with the, right of the decree-holder-sect was not an illegal
act so as to amount to an offence under S. 153 of the Penal Code. (1903) ILR 26 Mad 554.
(4) The failure of an agent to remit to his principal the monies collected by him on behalf of the
principal, which he was bound by his contract to remit to the principal is an illegal omission and will
amount to a criminal, breach of trust under the Second Part of S. 405 of the Penal Code, giving
jurisdiction to the Court at the place where such omission takes place. AIR 1936 All 193.
(5) Under Section 304-A causing death of a person by doing a rash or negligent act not amounting
to culpable homicide is made punishable with the punishment prescribed therein. As under S. 32, act
includes an illegal omission causing death by negligently omitting to do something is also covered by
Section 304A. 1968 CriLJ 405.
7. "Illegal" and "unlawful"–Distinction.--(l) The term 'unlawful' is, not defined but as
observed by the Law Commissioners in First Report, Section 658, it has the same meaning as the
word 'illegal' which is defined in Section 43. The word "illegal" has been given by the section a very
wide meaning and that it has the same meaning as "unlawful".
(2) The specific definition of the word "illegal" in this section as including anything which gives
rise to a civil suit will not apply to the interpretation of the word "unlawful" occurring kri definition of
"wrongful loss" in S. 23, Penal Code. Thus the installation of an oil engine on one's own property
but so as to cause vibration and damage to the neighbouring property, would not amount to the offence
of mischief under S. 425 Penal Code although where damage was caused a civil suit for damages might
lie against the person who instals the oil engine and the act of installing the oil engine may, therefore,
come within the definition of "illegal" under Section 43, Penal Code. AIR 1935 Born 164.
(3) The word "unlawful" occurring in the definition "wrongful gain" in S. 23, Penal Code in the
context of the meaning of "dishonestly" in S. 378) would bear the same meaning as the word "illegal"
as defined in this section. Thus where a clerk was bribed to take out official papers. from the Tahsil
office without the Mamlatdar's consent with a view to show them to the vakil of one of the parties to a
case before the Mamlatdar, the act amounted to a theft by the clerk within the meaning of Section 381,
P.C. and that it was an act done with a 'dishonest' intention within the meaning of S. 378 and the
temporary removal of the records amounted to the use of 'unlawful, means within the meaning S. 23,
Penal Code. AIR 1926 Born 122.
Sec. 44 General Explanations 105

(4) The definition of the word "illegal" would apply to the interpretation of the word "unlawful"
in the definition of "wrongful loss" in S. 23 (in the context of the expression "dishonestly" occurring
in S. 383). Thus, trying to extract money from a witness by putting to him scandalous question in
crossexamination would amount to extortion within Section 385 of the Penal Code and that it would
be a "dishonest" act within the meaning of Section 383 and the act amounted to the using of unlawful
means for causing wrongful loss within the meaing of S. 23 and so was "dishonest" within the
meaning of Section 383 as the meaning of "illegal" and "unlawful" was the same. AIR 1930 Pat 593.
(5) The meaning of the word "unlawful" occurring in the Goods (Unlawful Possession) Act has
the same meaning as the word "illegal" as defined in this section. 1977 CriLi (NOC) 231.

Section 44
44. "Injury".—The word "injury" denotes any harm whatever illegally caused to
any person, in body, mind, reputation or property.
Cases and Materials Synopsis
I. Injury. 6. Harm to property.
2. "Damage" and "injury "—Distinction. 7. Threat of legal proceedings.
3. Threat of harm. 8. .Threat of social boycott.
4. Harm illegally caused. 9. . Act done for self-protection.
S. Harm to reputation. 10. Illustrative cases.
1. Injury.—Injury as defined in Section 44 has a very wide meaning. "The word injury has a
wide meaning. Some persons were arrested. Bail was offered but the accused refused to accept it. They
were taken to the police station and locked up. The threat was extended that if they did not pay the
money they would not be released and it was only when money was paid to the accused that the
persons were released." It was held that the accused was guilty under Section 383. A IR i942 Oudh
163. Injury has been held to include every tortious act. Obtaining money against the will of a person
on threat of loss . of appointment may be extortion. A IR 1936 Sind 29. A false charge laid before the
police and never intended to be prosecuted in Court, may obviously subject the accused party to very
substantial injury, as defined in Section 44. 5 Cal 281. Unlawful detention of a cart at a toll gate after
an illegal demand of toll is an injury. I W eir 551. False charge is injury. 5 Cal 281
2. 'Damage ;, "injury"—Distinction.--(I) The word "damage" in Section 477 means
pecuniary damage. As the word "injury" (which also occurs in Section 477) is, according to the
definition in this section, wide enough to include any harm whatever illegally caused to any person in
body, mind, reputation or property, it is not confined to pecuniary damage and hence is of wider
import than the word "damage". AIR 1963 All 131.
(2) In a suit for malicious proseèution against A, A files a compromise petition in which he admits
that the complaint which he had given against the plaintiff was groundless. But the plaintiff does not
accept the document and has it returned to the, defendant (A) saying that he may file it again after
consulting his legal adviser. The defendant takes it and destroys it. By doing so, the defendant does no
harm to the plaintiff. The action of the defendant was due to the fact that the document was of an
incriminatory nature and he did not want that it should be in existence. Thus, there is neither
"damage" nor "injury" intended within Section 477. The word "damage" in Section 425, Penal Code
was considered as equivalent in meaning to "injury" as defined in this section. 1968 CriLJ 398.
106 Penal Code Sec. 44
• 3. Threat of harm.—Threat of forged decree that cannot be executed by competent Court amounts
to harm or injury within meaning of Section 44. A IR 1940 Pat 486 Threat to use the process of law to
obtain more money than was due amounts to a threat of injury. AIR 1923 Cal 590.
4. Harm illegally caused ^ ( 1) Where a person promises another to do a thing which he is not
legally bound to do and says that if money is not paid to him, he would not do that thing, he cannot
be said to threaten the other person with any injury or to put him in fear of any injury, within the
meaning of S. 383 (Extortion). The reason is that in such a case the accused does not threaten the other
person with any illegal harm. AIR 1924 All 197;
(2) The complainant's crops are attached by the Court. The accused tells the complainant that he
can get the crops released, but that he will not do so unless he is paid for his trouble. The accused does
not thereby threaten to cause any injury tothe complainant. AIR 1924 All 197.
5. Harm to reputation.—'Where Counsel threatens to ask scandalous and indecent questions in
the cross-examination of a witness, unless the witness pays him a certain sum of money, the Counsel•
threatens to cause illegal harm to the witness as regards his reputation and hence the Counsel must be
held to threaten the witness with 'injury' within the meaning of the section. The Counsel will in such
a case be liable for trying to commit extortion within the meaning of Section 383. AIR 1930 Pat 593.
6. Harm to proerty.—(1) Illegal harm to property of a person will be injury within the meaning
of this section. Thus, where in a marriage procession the accused used fire works on the road and the
fire works burnt two bundles of straw belonging to the complainant, it was held that in the
circumstances of the case the accused was guilty of an offence under S. 285, P.C. (negligent conduct
• with regard to fire or combustible matter) and that the burining of the bundles of straw belonging to the
• complainant amounted to-injury within the meaning of Ss. 285/44. (186849) 5 Born NCR 67.
(2) Rash and negligent driving so as to endanger another's property is also an offence under S.
279, P.C. though there may not be any danger to any other person's life or body. 1975 KerLT 750.
7. Threat of legal proceedings.—_(1)A threat of a civil suit for a declaration of right is not a
threat of any injury under S. 190, P.C. as such threat is not a threat of illegal harm. AIR 1926 All 277.
(2) The threat to ruin by "cases" does not necessarily imply that the cases are false ones. If the
cases are not false the mere fact that they are instituted for the purpose of persecuting the complainant
will not bring them within the definition of "injury" under this section because the harm although
caused by an improper motive would not be caused illegally. (1903) 7 CaIW N 116.
(3) If the threat is to ruin the complainant by false cases, the offence of criminal intimidation would
be committed. (1903) 7 Cal W N 116
(4) There is nothing illegal in a landed proprietor asking the police to investigate a suspected case
of smuggling liquor. It would, on the contrary, be his duty to give information ' of such 'smuggling.
Hence a threat to report a person discovered in such smuggling to the police does not amount to a
threat of injury within the meaning of Section 385, Penal Code. AIR 1919 Mad 954.
(5) The threat by the President of a selfappointed Court of arbitration to pass an ex parte decree
amounts to a threat of illegal harm to property and, therefore, is a threat of injury within the meaning of
S. 503, Penal Code (Criminal Intimidation). AIR 1923 Cal 590.
• (6) A false charge laid before the police and never intended to be prosecuted before the Court may
subject the accused arty to very substantial injury as defined in this section. (1880) ILR 5 Cal 281.
(7) Though a threat to use the process of the law is perfectly lawful, to do so for the purpose Of
enforcing payment of more than what is illegal and such a threat made with such object must be held to
he a threat of injury sufficient to constitute the offence of extortion. (1968) 2 Malayan LI 39.
Sec. 45-49 General Explanations 107
(8) The accused whose goat had been injured by the complainant demanded of her a sum in excess
of its value and by threatening to prosecute her, succeeded in obtaining payment of that amount. It was
held that the accused was guilty of extortion. (1895) I W eir 441.
(9) Threat of a decree that could not be executed by any competent authority was threat of harm or
injury within the meaning of the Code. A IR 1940 Pat 486
8. Threat of social boycott.—lt is not an injury to threaten excommunication or social boycott
because such a threat is not a threat of illegal harm. A IR 1949 Mad 546
9. Act done for self-protection.–.--(l) Anything done merely to save oneself from a criminal
prosecution and conviction in such prosecution, i.e., something done to save oneself from injury
cannot be said to cause any illegal harm or injury to-another. A IR 1963 A ll 131.
10. Illustrative cases.—(1) The unlawful detention of a cart at a toll-gate caused by an illegal
demand for payment of toll, amounts to injury within the meaning of S. 44 and in such a case S. 384
(Extortion) will apply. (1895) 1 W eir 29 (29).
(2) Obtaining money against the will of a person on threat of loss of apopintment. may be
extortion, threat of injury orillegal harm, within the meaning of Section 44. A IR 1936 Sind 2
(3) A police officer taking a bribe for releasing arrested persons on bail under threat of not r6liamirg
them unless money was paid, commits the offence of extortion by threatening the arrested persón with
"injury". A IR 1942 Oudh 163.
(4) A threat to withdraw the plot allotted to a member of a Building Co-operative Sochtis not a
threat of any illegal harm and so is not a threat of "injury". A IR 1933 Sind 196

Section •45
45. "Life".-The word "life" denotes the life of a human being, unless the
contrary appears from the context.

Section 46
46. "Death".—The word "death" denotes the death of a human being, unless the
contrary appears from the context.

Section 47
47. "Animal". The word "animal" denotes any living creature, other than a
human being.
• . . Cases
(1) A 'hen' would be covered by the definition of an 'animal'. 1972 A.IIWR (I-IC) 901

Section 48
48. "Vessel".—The word "vessel" denotes anything made for the conveyance by
water of human beings or of property.

Section 49
s 49• "Year"—"Month".—Wherever the word "year" or the word "month" is
used, it is to be understood that the year or the month is to be reckoned :ccording to
the British calendar. .
108 Penal Code Sec. 50-52

Cases
(I) The term calendar month is a legal and technical term. In computing time by calendar months,
the time must be reckoned by looking at the calendar and not by counting days and one month's
imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding
to that day in the following month less one. (1879) 4 CPD 233.
(2) 'Month' not defined in Criminal P.C.—It must be given meaning as assigned to it in S. 49.
1964 A 1IW R (HC) 269.

Section 50
50. "Section".—The word "section" denotes one of those portions of a chapter
Of this Code which are distinguished by prefixed numeral figures.

Section 51
51. "Oath".—The word "oath" includes a solemn affirmation substituted by law•
for an oath, and any declaration required or authorized by law to be made before a
public servant or to be used for the purpose of proof, whether in a Court of Justice
or not.
Cases and Materials
(I) An Oath is a religious asseveration by which a person renounces the mercy and imprecates the
vengeande of Heaven if he did not speak the truth. I Leach 430. See the Oaths Act 10 of 1873. It in
cludes solemn affirmation and declaration but declaration must be required or authorised by law and not
by a departmental order. 14 Mad 484.

Section 52
52. "Good faith".—Nothing is said to be done or believed in "good faith" which is
done or believed without due care and attention.
Cases and Materials : Synopsis
1. Scope and applicability of section. 9. Giving false evidence dc, charge of—good
2. Good faith : PEnal Code and General Clauses faith as defence.
Act. 10. Public servant acting in good faith.
3. Moral honesty and good faith. 11. "Due care and attention".
4. Belief. 12. Good faith, if a question of fact.
5. Belief and suspicion. 13. Good faith when presumed.
6. Belief must be based on strong grounds. 14. Arrest must he based on good faith.
7. Good faith as defence in cases of defamation. 15. Burden or onus of proof
8. Contempt of Court.
1. Scope and applicability of section.—(1) A plea of good faith will be negative on the ground
of recklessness indicative of want of due care and attention. A IR 1970 GuI 171.
(2) Even in the realm of criminal offences mens rea may be ecluded either expressly or impliedly
by legislative mandate. A IR 1982 Pun] 1. .
Sec. 52 General Explanations 109

• (3) In Criminal law unless a thing is done with due care and attention, it cannot be held to be
done in good faith. The mere fact that it has been done with a pure motive or without any impure
intention or that the actor has been quite honest and free from malice will not justify his action and
make it one done in good faith, unless it is shown that he has taken due care and paid due attention.
A IR 1957 Orissa 130. .
(4) For the purpose of the Code, good faith is inconsistent with negligence and carelessness,
although the conduct of the person concerned or his words may be absolutely unimpeachable from the
point of view of his honesty and purity of intention. A IR 1961 Punj 215.
(5) An honest blunderer can never be held to act in good faith under the Penal Code if he had been
negligent. 1964 RajLW 126
(6) In order to establish the want of good faith, it is not necessary to prove that the person in
question acted dishonestly. It is enough if it is found that he has acted without due care and attention.
1964 RajLW 126.
(7) "Good faith" as defined in this section requires a genuine effort to reach the truth and not the
ready acceptance of an ill-nIured belief. A IR 1964 Ker 277.
(8) 'Good faith' does not require logical infallibility but only such care and attention as in the
circumstances of each case, considered along with the capacity and the in of a person and the
position he occupies, is held by the Court to be sufficient to constitute due care and attention on his
part. A IR 1966 SC 97. .
(9) The same standard of care and attention will not apply to each and every case and what will be
due'care and attention will naturally depend on the circumstances of each case. A IR 1960 Orissa 161.
(10) Under the Section the expression "good faith" is used both in connection with an act and a
belief. Thus, in S. 499, Exception 9, the expression "good faith" refers to an act and in S. 300.
Exception 3, the expression refers to a belief. In either case it must be taken in the sense explained in
this section. A IR 1929 A ll 1. .. .•
(11) The definition of "good faith" in this Section will apply to the Criminal Procedure Code,
also by virtue of S. 2(2) of ti'e latter Code inasmuch, as there is no separate definition of the phrase
"good faith" under the Cri. Procedure Code and S. 2(2) thereof provides that in such cases the
definition in the Penal Code will apply. A IR 1958 A ndhPra 165. '(Meaning of "good faith". in S. 529,
Cri. P.C.)
2. 'Good Faith' : Penal Code and General Clauses Act.—(1) In the General Clauses Act X of
1897, good faith is defined as follows A thing shall be deemed to be done in "good faith" where it is
in fact done honestly, whether it is done negligently or not. (Section 3(22)). But the definition in P.C.
is different and it requires due care and attention A IR .1955 Cal 353. In the P.C., absence of good faith
does not mean 'want of honesty' but 'want of care. A IR. 1938 Rang 350. The element of 'honesty'
which is prescribed by the General Clauses Act is not introduced by the definition of the Code. A IR
1966 SC 97. In determining the question of good faith of a person one should take into account his
intellectual capacity, capacity to reason, his position, his predilections and the surrounding facts and
the circumstances in which he acted. 12 Born 377. A police constable on duty who has an honest
suspicion that the cloth in the, possession of the complainant was stolen property, was justified in.
putting questions to the complainant the answers to which might clear away his suspicions and having
received answers which were not, in his opinion, satisfactory, he acted under a bonafide belief that he
was legally justified in detaining what he suspected to be stolen property. The putting of questions to
110 Penal Code .. Sec. 52

the complainant, not for the purpose of causing annoyance or from idle curiosity, but in order to clear
up his suspicions, was an indication of good faith. 12 Born 377.
(2) Honest, though negligent, conduct will satisfy the test of good faith under the General Clauses
Act, while negligence will negative good faith for the purpose of the Code. A IR 1966 SC 97.
"Honesty" is enough even in spite of negligence. A iR 1955 Cal 353. Negligence does not by itself
show want of good faith, where General Clauses At applies. 1948 JaipurLR 230.
(3) The undermentioned cases relate to the meaning of 'good faith' in cases governed by the
General Clauses Act. ILR (1965) Cut 255.
(4) The definition of "good faith" in the Limitation Act. S. 2(h) is also on the same lines as the
definition in the Penal Code and hence, "good faith" for the purposes of S. 14 of the Linlitation Act is
incompatible with negligence and unless due care and attention are established, "Good faith" within
the meaning of that section cannot be held to exist. AIR 1956 Orissa 124 (DB).
3. Moral honesty and good faith.—Section' 52 makes no reference to the moral elements of
honesty and right motive ,which are involved in the popular significance of "good faith" and which are
predominant in the positive definition enacted in the other Acts of the Legislature, for example, the
General Clauses Act, 1897. While an honest blunderer acts in good faith within the meaning of the
General Clauses Act, an honest blunderer can never act in good faith within the meaning of the Penal
Code for being negligent. The element of honesty is not introduced in the definition of the term defined
in the Penal Code. A IR 1966 SC 97; A IR 1953 Mad 936
4. Belief.—The expression "good faith" can be used both in connection with something done and
in connection with something believed. For example in Section 300, exception 3, the expression
t "good faith" has been used in connection with a belief. The expression is found, in exception 9 to
Section 499, in connection with an act. 51 All 313.
5. Belief and suspicion.— See Notes to Section 76.
6. Belief must be based on strong grounds.—There must be sufficiently strong and just
grounds for the belief. 10 W C 20; A IR 1953 Mad 936. The phrase "due care and attention" implies
genuine effort to reach the truth and not ready acceptance of an ill-natured belief. When a question arises
as to whether a person acted in good faith, then it devolves upon him to show not merely that he had a
good intention but that he exercised such care and skill as the duty reasonably demanded for its due
discharge. Where the question is whether a public servant was justified in doing a certain thing, his
justification must have a better foundation than his mere private belief, for a man may be very foolish in
believing himself justified, but the law could not adopt so vague and unsafe a criterion. Where a
station-house officer did not believe that it was necessary for the public security to disperse a group by
firing on them, it was held that he and the constable were not acting in good faith and that the order to
shoot was illegal and that both he and the station-house officer were guilty of murder. "A writer cannot
claim to act in good faith when he ignores the sources of the truth which were open to him". 42 Cr Li
I; 1941 Kar 3,
7. Good faith as defence in cases of defamation.—(1) The words "in good faith" in this
provision must be taken in the sense defined in S. 52. Hence, where the accused who were editors of a
newspaper published in it a story said to be given by a correspondent without making any enquiry as
.to the truth of it, it was held that they would be liable for defamation where the story was derogatory to
the reputation of a public functionary. A IR 1914PC 116
'Sec. 52 General Explanations Ill

• (2) It is not using due care and attention to publish defamatory statements about a person and also
to publish his denials of such statements and let the public take their choice. AIR 1933 All 434.
(3)Where defamatory allegations were found to be false it could not be said that they were made
with care and attention and in good faith in view of S. 52. 1980 (UP) CriLR 141 (A ll).
(4) Under Exception 9 to S. 499, it is not defamation to make an imputation on the character of a
person where the imputation is 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. In this provision also the expression "good
faith" must be understood in the sense defined in S. 52. Categorical statements of facts which are
baseless and defamatory will not be protected under Exception 9. AIR 1944 Mad 484.
(5) Where the defamatory imputations are 'made against the complainant as a matter of opinion in
good faith and for public good after taking due care and caution, the accused will be protected by
Exception 9 to S. 499, though such imputations were baseless and incorrect. AIR 1944 Mad 484..
(6) If a man takes upon himself a duty requiring skill or care and a question arises whether he had
acted therein in good faith he must show not merely a good intention but such care and skill as the
duty reasonably demands for its due discharge. 1980 Born CR 567.
(7) Where, at the name of making a defamatory statement the accused had no material with him to
base. his statement on the fact that subsequently he gets some material to support his statement, which
he files in the Court in the case against him, does not prove his good faith at the time of his making
the defamatory statement and does not entitle him to the benefit of Exception 9 to S. 499. A IR 1924
Cal 611.
(8) Reckless imputations negative good faith. AIR 1970 All 170.
(9) Criticism of public man in newspaper—Editor's responsibility in the matter is in a sense
greater—He must submit to a more rigorous test of "good faith" to seek protection of Exception to
S. 499—Held on facts that relevant allegations were true. AIR 1966 Cal 473.
(10) Defamatory matter contained in plaint and signed and filed by plaintiff—Filing of such plaint
amounts to publication. AIR 1966 Mad 363.
(11) Prosecution of Internal Auditor and General Manager of a bank under S. 500. P.C.-
Allegation that General Manager placed report of Internal Auditor containing defamatory matters against
complainant (subordinate of General Manager) before Board of Directors—Communication held
privileged—Even if there was censure against complainant in good faith it was saved by Exception 7 to
S. 499 A IR 1960 Raj 213.
(12) it could not be held that the imputation was for the protection of his own interest or for the
public good. AIR 1957 Andh Pra 345.
8. Contempt of Court.—(i).Contempt of Court except in cases coming under S. 228, is not an
offence under the Penal Code. Hence the definition of "good faith" in this section is not directly
applicable to proceedings forcontempt of Court. But such proceedings being of a criminal nature when
the plea of good faith is raised in defence to such proceedings, the general principle that under Criminal
law good faith always implies due care and attention, will apply and in the absence of such due care
and attention, the plea of good faith raised in defence to contempt proceedings cannot be sustained. A IR
1940 Sind 239.
• . (2) Where an imputation was made against a Magistrate that he did not act in good faith -in
passing an order of forfeiture of a surety bond because his order was contrary to the provisions of the
law and contained various irregularities, the imputation of want of good faith was justified on the facts
and did not amount to contempt of Court. A IR 1960 Pat 326.
112 Penal Code Sec. 52

9. Giving false evidence etc., charge of—good faith as defence.—(1) It is not necessary where
a person, as a matter of fact believes the statement to be true, that in order to avoid liability under the
section for giving false evidence,.he should have taken due care to see that the statement was true. The
reason is that the section only requires that the accused should believe the statement to be true and not
that he should, in good faith, believe it to be true. A IR 1913 A ll 170.
10. Public servant acting in good faith.—(1) A public servant acting in contravention of a
mandatory provision of law cannot be said to have acted in good faith. A IR 1969 Raj 121.
(2) The right of private defence will not be affected or taken away where aSub-Inspector of Police
gives verbal instructions to private individuals to arrest persons whom it is his own duty or the duty of
his subordinates to arrest. A IR 1946 Sind 17.
(3) Police Officer undertaking a search without taking care to see whether he was competent to do
so cannot be said to have acted in good faith. 1964 RajLW 126.
(4) Arrest by order o'fMagistrate of person for violation of Brick and Cement Control Order under
Defence Rules—It was held that the Magistrate had acted with due care and attention. A IR 1958 A ll
758.
(5) Amin trying to execute warrant of attachment after expiry of the period does not act in good
faith. A IR 1942 Oudh 57.
(6) The mere fact that a' Sub-Inspector went to a village dressed up in his uniform to arrest the
accused will not justify one in saying that he was acting in good faith. A IR 1934 Oudh 124.
(7) Sub-Inspector of Police proceeding to search house of person accused of having stolen bicycle
without complying with the provisions of S. 165(1). Criminal P.C—He does not act in good faith.
A IR 1932 Pat 66'.
11. "Due care and attention".—"Care and attention would verify bona fides". A IR 1958 A ll
758. Although M is subject to fits of violent insanity, nevertheless he has lucid intervals. It seems, in
.fact, that these fits only' come on occasionally and are temporary. Having regard to the fact that the
accused is a person of education and wealth and that he lives in a town where medical attendance could
easily be procured, he cannot be said to have acted with.due care and attention in chaining up his
brother who is subject to fits of violentl insanity for over three months. 45 A ll 495. It is certainly not
using due care and attention to publish defamatory statements about , a person and also to publish his
denial and let the public take their choice. A IR 1933 A ll 434; 42 Cr Li . . It does not constitute 'good
faith' necessarilythat the person making the imputation believed it to be true. 'Due care and attention'
implies genuine effort to reach the truth and not the ready acceptance of an ill-natured belief. 271C 657.
Good faith requires not, indeed, logical infallibility but due care and attention. But how far erroneous
actions or statements are to be imputed to want of due care and caution must, in each case, be
considered with reference to the general circumstances and the capacity and intelligence of the person
whose conduct is in question. It is only to be expected that the honest conclusions of a calm and
philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian
zeal and untrained to habits of precise reasoning. At the same time it must be borne in mind that good
faith in the formation or expression of an opinion, can afford no; protection to an imputation which does
not purport to be based on that which is the legitimate subject of public comment. 31 Bo,n. 293.
Question of good failth must be considered with reference to the position of the accused and the
circumstances under which he acted. If he acted with due care and attention such as sought to be
expected from a constable in his position, in the circumstances in which he was placed, , then he acted
in good faith : and even though his act might not have been "strictly justifiable by law", that is, even
though there might not have been a complete basis of fact to justify a reasonable suspicion that the
Sec. 52A General Explanations 113

cloth was stolen property, still the complainant had no right of private defence. 12 Born 377. A kobirqj
operated ona man for internal piles by cutting them out with an ordinary knife. The man died from
haemorrhage. He had performed similar operation on previous occasions. It was held that, as the
prisoner was admittedly, uneducated in matters of surgery, and having regard to the meaning of "good
faith" he was not entitled to the benefit of Section 88 14 Cal 566. Where a search was made but none
of the preliminaries indicated in Section 165, Cr. P.C. was complied with it was held the search was
not strictly in accordance with law and the Sub-Inspeótor did not act in good faith. 10 Pat 821.
12. Good faith, if a question of fact.—Good faith is a question of fact. Even if it is assured to
be a mixed question of fact and law the Court will, not re-examine the matter if there are concurrent
findings of the Courts below unless it appears that High Court has, in dealing with question,
misdirected itself materially on points of law. A IR 1966 SC 97; A IR 1966 Mad 363.
1.3. Good faith when presumed.—When a pleader is charged with defamation, in respect of
words spoken or written, while performing his duty as a pleader, the Court ought to presume good
faith and not him criminally liable, unless there is satisfactory evidence of actual malice and unless
there is cogent proof that unfair advantage was taken of his position as a pleader for an indirect purpose.
36 Cal 375.
14. Arrest must be based on good faith.—Justification for arrest could not bejought under
section 99 if there is absence of good faith. An arrest merely on the report of apprehension of a breach of
the peace is not an act of good faith. Good faith requires due care and attention as provided by section
52. Ahmed Vs. Crown (1954) 6 DLR (W PC) 149. .
15. Burden or onus of proof.—(1) See Evidence. Act, Section 103.
(2) The definition in this section does away with the presumption that the accused acted bona fide
until the contrary is proved and where he is charged with making an imputation for which he is
criminally liable it is for him to show that he made the imputation not without due , care and attention.
A IR 1966 Cal 473.
(3) Where the accused is charged with making an imputation for which he is criminally liable, it is
for him to show that he made the imputation not without due care and attention, but the question . to
what extent he should have pushed his care and circumspection is a different matter and 'it will depend
on the facts and circumstances of eachd case. AIR 1929 cal 346 -

52A
Section
25 [52A. "Harbour".—Except in section 157,. and in section 130 in the case in
which the harbour is given by the wife or husband of the 'person harboured, the word
"harbour" includes the supplying a person with shelter, food, drink, money s clothes,
arms, ammunition or means of conveyance, or the assisting a person by any means,
whether of the same kind as those enumerated in this section or not, to evade
apprehension.]
Cases
(1) The word "harbour" must be construed liberally. The person at whose instance harbouring is
effected is guilty of the offence although the house in which the harboured person stays may belong to a
different person (1912) 13 CriLI 701 (DB(Born)
CD

25. InS, by the Indian Penal Code (Arnen'dment) Act, 1942 (Act VIII of 1942), s.2 .' '
CHAPTER III
Of Punishments

Section 53
• 53. Pünishments.—The punishments to which offenders are liable under the
provisions of this Code are,-
Ffrst.—Death;
Secondly. —1 [Imprisonment], for life;
2[*
Fourthly.—Imprisonment, which is of two descriptions, namely :-

: (1) Rigorous, that is, with hard labour;

(2)Simple; .. .
Fifthly.—Forfeiture of property.
Sixthly.—Fine.
3 [Explanation.— In the punishment of imprisonment for life, the imprisonment
shall be rigorous.] . .
Cases and Materials : Synopsis
1. Scope of sectiom to be deducted..
2. Punishments—General principles. 6. compensation out offine.
3. Measure of punishment—General principles. 7. Compensation is not fine.
4. Measure of punishment-.'Social status of 8. Attitude of Judge.
accused and other considerations. 9. Suspension, remission and commutation of
5. • Imprisonment already suffered—Whether sentence.
1. Scope of section.—( 1) This section enumerates the punishments to which offenders are liable
under the provisions of the Code. The. section is not exhaustive of the kinds of punishment that can be
inflicted on the offender under the criminal law. A IR 1933 Rang 329.
(2) The section is only applicable to the Penal Code and does not cover the punishments to which
an offender under any other law may be sentenced. Thus the suspension of the licence of a taxi driver
under the Motor Vehicles Act. 1939 was held to be a punishment. A IR 1936 Rang 329.

I. Subs, by Ord. No XLI of 1985, for "transportation".. . . -
2. Clause Thirdly was omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (Act. II of 195P'
Sch.
3. Explanation was added by Ord. No. XLI of 1985.
Sec. 53 Of Punishments 115
2. Punishments—General principles.—(1) Section 53 enumerates the different kinds, of
punishments which can be awarded to an accused person and forfeiture of property and fine are
mentioned as two distinct kinds of punishments under clauses fifthly and sixthly. The effect of
conviction of a person on his dependents is not matter for consideration by the Courts. 1966 Cr Li
834. Law is good but justice is better. Sentence should be reasonable. A IR 1969 Cal 32.
(2) Under the Criminal Procedure Code, S. 367 when there is a conviction a sentence must follow
the conviction as a matter of law in each and every case. In other words when a Court.finds an accused
guilty, it is its bounden duty under the law to pass some sentence, on the accused. A IR 1956 SC 146
(3) The Court to specify the nature of the punishment in the judgment. (1971)73 BomLR 215.
(4) An omission to specify the nature of the punishment cannot be rectified by the trial Court by a
subsequent order. (1971) 73 BomLR 215.
(5) The object of punishment is to make the offender suffer either in person or in purse or in both
so that he may not follow his errant way in future and at the same time to make others understand that
they will be similarly deal(with if they commit any offence against society. A IR 1951 Orissa 259..
(6) The objects of punishment are fourfold: (i) to serve as a deterrent to other persons, (ii) to be
preventive, (iii) to be reformative, and (iv) to be retributive. A IR 1960 A ll 190.
(7) The sentence should neither be too lenient nor disproportionately severe. The former losses its
deterrent effect and. the latter has a tendency to tempt the offenders to commit a more serious offence.
The object of punishment for crimes being to impress on the guilty party and other like-minded
persons that the life of crime does not pay, the Court has a duty to guard itself against the aforesaid twQ,
tendencies and to draw a proper balance between them. In order to do so, the Court has to consider the
nature and gravity of the offence and duly take into account all the relevant circumstances 'leading to its
commission. (1969) SCD 1091.
(8) Although the punishment for each offence under the Code is prescribed by the Code itself, the
actual sentence is passed under the provisions of the Criminal Procedure Code. A IR 1933 Pesh 90
3. Measure of punishment—General principles.—(l) The quantum of punishment to be
awarded in each case is a matter within the discretion of the Court. 1969 SCD 1091.
(2) In awarding punishment, the Court must bear in mind the objects for which the law provides
for punishment. The Court must pass such sentence as fits the crime in each case. A IR 1,944 Pat 16.
(3) There must be a proper proportion between the gravity of the offence and the punishment
imposed. A IR 1979
. SC 1820. .
(4) Where an accused (a Reader holding M.Sc.. and Ph.D. degrees) was convicted for offences of
attempting to issue counterfeit University Degrees the award of sentence by the Sessions Court till the
rising of the Court was too lenient. Award of sentence by the High Court for three years was just and
proper. A IR 1978 SC 1548.
(5) In fixing the punishment for any particular crime the Court should take into consideration the
nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by
the offender, the provocation, if any, which he had received, (if the crime is one of violence), the
antecedents of the offender, his age and character and so on. All these factors must be established by the
evidence and not by mere impressions formed on the spur of the moment. A IR 1,976 SC 392.
(6) Except in cases where a minimum period of imprisonment has been prescribed, as for instance'
under Ss. 397 and 398, the Court has a discretion to adjust the period of imprisonment according t6'
.
116 . Penal Code . See. 53

thie requirements of justice in each case subject to the maximum mentioned in the punishment Section.
A IR 1956 Punj 85.
(7) It is the duty of the Court in every case to award a proper sentence having regard to the nature
of the offence, the manner in which it was committed and to all attendant circumstances—Reduction of
sentence in case of an accused found guilty of offence punishable under S. 304, Part H to 20 months R.
I. only on ground of absence of opposition to reduction on part of counsel for State is not proper. AIR
1983 SC 172. . .
(8)The quantum of punishment should, not exceed the interests of justice. AIR 1969 Cal 132.
(9) In case of fine where a maximum amount is fixed by the section, the Court ought not to
impose the maximum amount as fine unless the offence is of a very serious character. AIR .1929
All 919.
(10) The punishment to be awarded must be the least that will achieve the double object of
deterring the accused from repeating his offence and other persons from committing a similar offence.
AIR 1958A11 198.
(11)The real object of punishment being prevention of crime, the measure of punishment naturally
varies according to the prevalence of a particular form of offence at the given time. Hence, the degree of
severity that may be appropriate at one time may be uncalled for at another time. AIR 1950 Pepsu 9.
(12)Justice should be even-handed. Other things being equal the same offence should receive the
same punishment. AIR 1952 Sind 143.
4. Measure of punishment—Social status of accused and other considerations.—(1) The
mere fact that the accused is a man of position and status is no ground for awarding to him a lighter
sentence than would be justified in the case of an ordinary person. AIR 1928 All 150.
(2) The loss of reputation which the accused would suffer his old age and such other factors may be
taken into consideration while awarding a sentence. AIR 1927 Oudh 319.
5. Measure okpunishment—Im prison ment already suffered—Whether to be deducted.—(l)
Ordinarily a sentence of imprisonment commences to run from the time that the sentence is passed. ILR
(1954) 4 Raj 438.
(2) The Court has no power to direct that such sentence should commence from a future date.
(1869) 4 MadHCR A pp I.
(3)The Court has no power to make a sentence precede a conviction. The reason is that a sentence
should follow and not precede a conviction. ILR (1954) 4 Raj 438.
(4) It is illegal to sentence an offender for the period already undergone by him in the police
custody, or for the period of his imprisonment as an under-trial prisoner. ILR (1954) 4 Raj 438.
(5)The period during which the accused has been in detention as an under-trial prisoner should be
taken into account in awarding the sentence and in fixing the period for which a sentence of
imprisonment should be passed. AIR 1923 Lah 104.
(6) A Magistrate in awarding a sentence of imprisonment has no jurisdiction to order that the
period of detention as under-trial prisoner should be counted as part of the sentence. ILR 4 Raj 438.
(7)It is illegal for a Magistrate to refuse to give a punishment however nominal it may be on the
ground that the period of detention as under-trial prisoner is a sufficient punishment, as in every case in
which an accused is convicted, the sentence of punishment must follow as a matter of law. AIR 1962
MadhPra 36:
6. Compensation out of fine.—See Sections 545, 546, Cr. P. C.
Sec. 53A Of Punishments 117
7.. Compensation is not fine.— See AIR 1930 Nag 149.
S. Attitude of Judge--A Judge, when administering justice, is as much influenced by the tides
and currents of human emotions and passions as other human beings, but yet he is enjoined by the law
to restrain and control them, else he will not be qualified to try a criminal case, but at the'same time he
is not expected to act ostrich-like and close his eyes to deliberate disregard of defiance of the law of the
land. Judicial detachment is a virtue, but not judicial passivity. A IR 1970 Goa 56
9. Suspension, remission and commutation of sentence.—Suspension clearly meant that the
sentence had not been remitted and Was only in abeyance at the pleasure of the person who was
authorised to suspend. 1950 A ll 816 See also Chapter XXIX Cr. P. C.

Section 53A
4 [53.A. Construction of reference to transportation.—(1) Subject to the
provisions of sub-section (2), any reference to "transportation for life" in any other
law for the time beiifg in force shall be construed as a reference to "imprisonment for
life"... . .
(2) Any -reference to transportation for a term or to transportation for a shorter
term (by whatever name called) in any other law for the time being in force shall be
deemed to have been omitted., . . .
(3) Any reference to "transportation" in any other law for the time being in force
shall,— . . .
(a) if, the expression means transportation for life, be construed as ,a reference to
imprisonment for life;
(b) if the expression means transportation for any shorter term, be deemed to
ha''e been omitted.]
- Cases -
(I) Sentence of imprisonment for life means rigorous imprisonment for life. AIR 1983 SC 855.
(2) The Borstal Schools Act has to be read along with S. 53A. Therefore the only meaning
that could be given to the term transportation occurring in any law is transportation for life. The result
is that the word transportation in the Act should be construed as imprisonment for life. 1983 CriLJ
509. . .
(3) In Reformatory Schools Act, for the Expression "transportation" the expression "imprisonment
for life" should be substituted. In all those cases where an accused (less than 16 years of age) is
convicted of an offence punishable with a sentence higher than the sentence of transportation which
means imprisonment for life in view of S. 53A, Penal Code, or imprisonment, the accused is not
included within the definition of a "youthful offender". AIR 1968 MadhPra 97.
(4) Children Act—Wherever word "transportation" occurs in the Act, it should be construed in the
light of provisions of S. 53A , Penal Code. 1971 CriLi 1929 (Pr 5) (DB).

4. Section 53A was inserted, ibid.
118 Penal Code Sec. 54-55A

Section 54
54. Commñtatjon of sentence of death.—In every case in which sentence of
death shall have been passed, 5 [the Government] may, without the consent of the
offender, commute the punishment for any other punishment provided by this Code.
Cases
(1) In proper cases an inordinate delay in the execution of the death sentence may be regarded as a
ground for commuting it, but this was no rule of law and was a matter primarily for the consideration
of the Government. If the Court has to exercise a discretion in such matter, the other facts of each case
would have to be taken into consideration. A IR 1954 SC 278. (Supreme Court declined to order
commutation of the death sentence, as there wefe no extenuating circumstances.)

Section 55
55. Commutation of sentence of '[imprisonment] for life.—In every case in
which sentence of '[imprisonment] for life shall have been passed, 6 [the Government]
may, without the consent of the offender, commute the punishment for imprisonment
of either description for a term not exceeding 7 [twenty] years.
Cases
I. Scope of section.—(1) The power of commutation has been conferred on the "appropriate
Government" as defined in S. 55A and not on the Court. AIR 1955 NUC (All) 2753.
(2) Sentence of imprisonment for life means rigorous imprisonrnentk for life. In the absence of order
of commutation under S. 55. P.C. or S. 402(1) of Cr. P.C. a convict cannot be released forthwith even
after expiry of 14 years. AIR 1983 SC 855.
(3) Where the accused was sentenced to imprisonment for life direction by court that he shall in
no case be released unless he has undergone minimum 25 years imprisonment was bad in law.. 1982
CriLJ 1762.
2. Distinction between commutation and remission.—See AIR 1939 Rang 124.

Section 55A
8 [55A. Saving for 9 [President's] prerogative.—Nothing in section fifty-four or
section fifty-five shall derogate from the right of '°[the President] to grant pardons,
reprieves, respites or remissions of punishment.]

5. The words "the Government" were substituted for the words "the Central Government or the Provincial Government of
the Province within which the offender shall have been sentenced" by the Bangladesh Laws (Revision and Declaration)
Act, 1973 (Act VIII of 1973), Second Sch. (w.e.f. 26-3-1971).
6. The words "the Government" were substituted for the words "the Provincial Government of the Province within which
the offender shall have been sentenced", ibid.
7. Subs, by Ord. No.XLI of 1985, for "fourteen".
& Ins, by A.D., 1937, by s. 295 of the G. of India Act, 1935 (26 Geo. 5. ch. 2).
9. Subs, by A.D., 1961, Art. 2 and Sch., for "His Majesty, or of the (Governor-General if any) such right is delegated to him
by His Majesty" (with effect from the 23rd March, 1956).
10.. Subs ibid., for "Royal" (with effect from the 14th October, 1955).
Sec. 56-60 Of Punishments 119

Section 56
56. Sentence of Europeans and Americans to penal servitude.—Rep. by the
Criminal Law (Extinction of Discriminatory Privileges) A ct, 1949(11 of 1950),
Schedule.

Section 57
57. Fractions of terms of punishment.—In calculating fractions of terms of
punishment, "[imprisonment] for life shall be reckoned as equivalent to 121rigorous
imprisonment for thirty years]. -
Cases
1. Scope of section.—(1) It is only for the purpose of calculating fractions of terms of punishment
that a sentence of imprisonment for life is to be treated as one for 20 years. For other purpose such a
sentence will not become one for 20 years by operation of this section. AIR 1976 SC 1552.
(2) A sentence of incprisonment for life cannot be treated as being equivalent a sentence for 14 years
unless it has been commuted by the apropriate Government under S. 55. AIR 1961 SC 600.
(3) Under this section, for the purpose of calculating the fractions of the term of imprisonment for
purpose of granting remisions on the ground of good conduct the sentence of imprisonment for life
should be treated as one for 20 years. AIR 1945 PC 64.
(4) Imprisonment for life is not "imprisonment fora term" within S. 428 of Cr.P.C. 1976 CriLJ315.
2. Sections 57 and 302.—Sentence—Normal sentence under section 302 of the Penal Code is
death but under some extenuating circumstances it may be imprisonment for life but such sentence àait
never be 30 years taking the aid of section 57 of the Code. Farid A ll Vs. State (Criminal) 4 BLC 27.

Sections 58 and 59
I3[* * * * * * * *]

Section 60
6.0. Sentence may be (in certain cases of imprisonment) wholly or partly
rigorous or simple.—In every case in which an offender is punishable with
imprisonment which may be of either description, it shall be competent to the Court
which sentences such offender to direct in the, sentence that such imprisonment shall
be wholly rigorous, or that such imprisonment shall be wholly simple, or that any
part of such imprisonment shall be rigorous and the rest simple.
Cases
1. Scope of section.—(1) Under this section the Court can direct that the imprisonment shall be
rigorous or simple for the whole term of the sentence or for any specified portion of such term. (1971)
73 BomLR 215.

11. Subs, by Ord. No. XLI of 1985, for "transportation".

'12. Subs, ibid., for "transportation for twenty years".
13. Sections 58 and 59 were omitted, ibid.
120 Penal Code Sec. 61-63

(2) The section has no application to cases in which the prescribedpunishment is imprisonment
for life. In 'such cases the imprisonment is always to be rigorous imprisonment and the Court has no
power to direct that the imprisonment should be simple imprisonment. A IR 1964 Orissa 149.
(3) The sentence of imprisonm'eit for life has to be equated to rigorous imprisonment for life. AIR
1983 SC 855.
(4) The nature of imprisonment to be undergone by an accused person must be specified in the
judgment itself. It cannot be specified for the first time in the warrant which the trial court issues to the,
jailor, under the Criminal P.C. for the execution of the sentence. (1971) 73 BomLR 215.

Section 61
61. Sentence of forfeiture of property.—Rep. by the Indian Penal Code
(A mendment) A ct, 1921 (X VI of 1921), S. 4.

Section 62
62. Forfeiture of property, in respect of offenders punishable with death,
transportation or imprisonment.—Rep. by the Indian Penal Code ('A mendment) A ct,
1921 (X VI of 1921), s. 4.

Section 63
63. Amount offine—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.
Cases
I. Scope of section.—(l) Where the maximum amount of fine is not laid down by the Code, the
Court has a discretion to impose any amount of fine that it considers fit according , to the needs of
justice in each case. But the fine must not be excessive and the accused must not be made to feel that
he is being persecuted and not prosecuted. AIR 1957 Assam 74
(2) The amount of fine should amng other things be commensurate with the financial
circumstances of the accused and must not be beyond his means to pay so as to subject him to a further
term of imprisonment as an inevitable consequence in addition to the substantive term of imprisonment
he
to which may haye been sentenced. A IR 1957 All 764.
(3) Though the fine must not be excessive it must be sufficiently heavy to make the accused feel
that it is a punishment. AIR 1953 Mys 75.
'(4) Considering the close relationship of the accused with the victim and the bleeding head injuries
causedfine of Rs. 100/- imposed for offence under S 324, P.C. was held not excessive. 1981 CriLJ
562.
(5) Even though the punishment section may authorise a sentence of fine in addition to a
substantial term of imprisonment such sentence of fine need not be imposed where the accused are poor
people and the imposition of the sentence would be too hard upon them. (1929) 30 CriLJ 838.
(6) A nominal fine may be sufficient in some cases where the offence is not a serious one but some
punishment must be inflicted wherever there is a conviction and after convicting an accused the Court
cannot say that the offence is so trifling that no sentence need be passed. AIR 1951 Orissa 284.
Sec. 64 Of Punishments 121

(7) Where the offence is of an aggravated type, the sentence of imprisonment is obviously more
suitable than mere sentence of fine where the punishment section provides for both. AIR 1924 Lah 81,
(8) \Vhere a substantial term of imprisonment has been imposed there should not be also a heavy
sentence of fine except in exceptional cases. AIR 1952 SC 14.
(9) Where an offender is convicted under two or more sections and is sentenced to fines of different
amounts in regard to the different offences with sentences of imprisonment in case of default if he makes
any payment towards the fines inflicted in him such payments should be first appropriated for the
smaller amounts as otherwise the severity of the punishment may be increased. AIR 1931 Sind-73.
2. Daily fine cannot be imposed under the Penal Code.-27 Cal 565; 25 W C 6.

'Seétjon 64
64. Sentence of imprisonment for non-payment of fine.- 14 [In every case of
an offence punishable with imprisonment as well as fine, in which the offender is
sentenced to a fine, whether with or without imprisonment,
and in every case of an offence punishable 15 [with imprisonment or fine, or] with
fine only, in which the offender is sentenced to a fine,]
it shall be competent to the Court which sentences such offender to direct by the
sentence that, in default of payment of the fine, the offender shall suffer imprisonment
for a certain term, which imprisonment shall be in excess of any other imprisonment
to which he may have been sentenced or to which he may be liable under a
commutation of a sentence.
Cases and Materials Synopsis
1. Scope of section. 6. Applicability of section to local and, special
2. Analogous law. . Acts.
3. Imprisonment in default of payment of fine— 7. Imprisonment in default cannot be Concurrent
When can be ordered. ' with other terms of imprisonment.
4. Period for which imprisonment in default of 8. Amount of fine that can be imposed
fine can be ordered. ' 9. Appropriation of payments of fine.
5. Imprisonment in default.—Whether amounts 10. Imprisonment as well as fine.,.
to discharge of liability for fine. 11. it shall be competent.
1. Scope of section.—(1)This section deals, with the power of the Court to award sentence of
imprisonment in default of payment of fine in 'caes in which a sentence of fine may have been passed.
This power of passing a sentence of imprisonment in default of payment of fine imposed does not make
it imperative on the Court to pass such a sentence of imprisonment in every case in which a sentence of
fine may have been passed. AIR 1953 Trav..Co 233.
(2) Under the Criminal Procedure Code, also, it is not imperative that a sentence of imprisonment.
in default should necessarily be passed wherever a sentence of fine is passed., 1878 Pun No. 30. p. 73.
(3) This section only applies to cases where a sentence of fine has been passed. An amount which
is recoverable as if it were a fine is not fine. This section 'not to apply to such case. A IR 1960 Ker 86

14. Subs, by the Indian Penal Code AmendMent Act, 1882 (VIII of 1882), s. 2, for "in every case in which an offender is.
tj
- ' sentenced to a fine".
15. Ins, by the Indian Criminal Law Arndt. Act, 1886 (X of 1886) s.21(2).
1.22 Penal Code See. 64
2. Analogous law.—(1) Even though a particular special or local Act which provides for the
sentence of fine being passed for a certain offence under that Act does not itself provide for a sentence of
imprisonment being passed in default of payment of the fine such a sentence may be passed under the
provisions of the Penal Code. AIR 1957 SC 645.
3. Imprisonment in default of payment of fine—When can be ordered..—(I) The order for
imprisonment in default of payment of fine should be contained in the sentence itself. This is clear from
the words, "by the sentence" in the third paragraph of the section. There is no provision in the law for
the passing of such an order separately and subsequently. AIR 1936 Lah 348.
(2) Where an accused person is sentenced to a substantive term of imprisonment and fine and has
served the full term of imprisonment and the Court orders his release on his offering security for
payment of the fine by instalments and the accused defaults in payment of the instalments the Court
cannot then order him to suffer imprisonment in default of payment of the fine. AIR 1936 Lah 348.
(3) After-the lapse of six years from the original sentence the fine will not be recoverable. Court to
have no power to pass any order for imprisonment in default of payment of fine. AIR 1936 Lah 348.
4. Period for which imprisonment in defaultof fine can be ordered.----(1) Within the limits
prescribed by Sections 65 and 67 the imprisonment in default of payment of fine should be long
enough to , induce the accused to pay the fine rather than suffer the imprisonment. AIR 1950 Kutch 73.
5. Imprisonment in default—Whether amounts to discharge of liablity for fine.—(1) The
undergoing of imprisonment in default of payment of fine does not operate as a discharge of the liability
to pay the fine. A IR 1969A 11 116
(2) Although it is an obligatory duty of the Court to pass a sentence of punishment, as a matter of
Jaw in every case in which it has recorded a finding of conviction, it is not imperative on the Court to
pass a sentence of imprisonment in default of payment of fine as such sentence is not the. punishment for
the offence for which the accused has been convicted. AIR 1953 Trav-Co233.
(3) Although imprisonment in default of payment of fine does not by itself operate as a discharge of
the liability for the fine yet, under S. 386 of the Criminal P.C. where the accused has suffered the full
term of imprisonment for default in payment of fine the Court shall not issue a warrant for the
realisation of the fine unless for special reasons to be recorded in writing the Court considers it
necessary to do so. A IR 1969 A ll 116

6. Applicability of section to local and special Açts.—(I) Under S. 40, para. 2, the word
"offence" as used in Ss. 64, 65, 66, and 67 includes offences under special and local laws. Hence a
sentence of imprisonment for default in payment of fine can be passed even in cases in which the
sentence of fine has been imposed under a special or local law. AIR 1957 SC 645.
(2) The effect of S. 25 of the General Clauses Act also is that a sentence of imprisonment for default
in payment of fine can be passed even in relation to fine imposed under special and local Acts. AIR
1957 SC 645. .
(3) Where the special or local Act pr ovides a special procedure for the relization of fines imposed
under the Act, the general provisions of the Penal Code and the Criminal P.C. will not apply and a
sentence of imprisonnient for default under such general provisions will be illegal. AIR 1966 Raj 238..
(4) Where a tax is recoverable "as if it were a fine" it does not become a fine and the court cannot
pass an order for imprisonment in default of the payment of such sum. 1959 Ker LT
Sec. 64 Of Punishments 123
(5) Penalties iniposed under a Municipalities Act for failure to comply with the directions of the
Municipal Officers Cannot be equated to fines and a sentence of imprisonment cannot be imposed for
default in the payment of such penalties. AIR 1918 Cal 645.
7. Imprisonment in default cannot be concurrent with other terms of imprisonment.—(I)'
Under S. 31 of the Criminal P.C. when a person is convicted at one trial of two or more offences and is
sentenced to a term of imprisonment for each of the offences the normal rule is that the sentences should
run consecutively. AIR 1953 All 510.
(2) Sentence of imprisonment in lieu of fine cannot ordered to run concurrently with a substantive
sentence of imprisonment. Qutub Vs. State (1959) 11 DLR (W P) 45.
(3) Where a person who is already under a sentence of imprisonment for default in payment of fine
is sentence to a substantive term of imprisonment such substantive term of imprisonment cannot be
made to run concurrently with the term of imprisonment for default. AIR 1931 Rang 51.
(4) Where a person had been ordered to be imprisoned for failure to furnish security under S. 122 of
the Criminal P.C. and is sj,ibsequently convicted fOran offence and sentence to fine the imprisonment
in default of the payment of such fine will run from the expiry of the imprisonment under S. 122
Criminal P.C. A IR 1932 Rang 50.
8. Amount of fine that can be imposed.—(l) Inasmuch as imprisonment in default of pay nent
of fine is in excess of any 'substantive term of imprisonment that may have been awarded to an accused
person, a sentence of fine for an amount which is beyend the means of the accused to pay should not be
passed where he has been sentenced to a substantial term of imprisonment, as the result of such a
sentence of fine would be only to add to the term of imprisonment of the accused. AIR 1941 All 310.
9. Appropriation of payments of fine.—(1) An accused person is convicted under one section
to a fine of Rs. 200 or in default to 3 months' imprisonment and also under twoother sections to a fine
of Rs. 15 or in default to one month's imprisonment for each offence. The accused pays into the Court
Rs. 30 and requests that the payment should be appropriated to two smaller amounts of fine—Held the
amount paid should be so appropriated. AIR 1931 Sind 73.
(2) Where a person prosecuted for non-payment of tax and he is convicted and is ordered to
pay the arrears of tax and is also sentenced to fine the accused making any payment is entitled
to require that the payment should be adjusted towards the fine and not the arrears of tax. A IR 1955
Mad 599.
10. Imprisonment as well as fine.—Section 64 enables the Court , in every case in which an
offender is sentenced to fine, to direct that in default of payment of the fine the offender shall suffer
imprisonment. Sections 65 and 67, declare what shall be the limit of this imprisonment. When an
offence is punishable with imprisonment as well as fine the imprisonment which can be awarded in
default of payment of fine is limited by Section 65, to one-fourth the maximum fixed for the offence, but
if the offence be punishable with fine only, it was necessary to set up another standard, and accordingly
by Section 67, scale was fixed varying with the amount of fine which could be imposed. The wording
of Section 64 is not happy but the Legislature intended by it to provide for the award of imprisonment
in default of payment of fine in all cases in which fine can be imposed. Those cases the section divides
into three classes viz offences : (I) "punishable with imprisonment as well as fine", (2) "punishable
pith imprisonment and fine" and (3) "punishable with fine only". -
11. It shall be competent.—Means it is permissive but not imperative. See 18 Born 400.
A 24 Penal Code Sec. 65

Section 65
65. Limit to imprisonment for non-payment of fine, when imprisonment and
fine awardable.—The term for which the Court directs the offender to be imprisoned
in default of payment of a fine shall not exceed one-fourth of the term of
imprisonment which is the maximum fixed for the offence, if the offence be punishable
with imprisonment as well as fine.
Cases : Synopsis
I. Offences to which section applies. 3. A mount offine that can be imposed
2. Period for which imprisonment can be 4. Offences under special and local laws.
ordered.. 5. This section and Sections 32, 33, Criminal P. C.

1. Offénces to which section applies.—(l) The words "punishable with imprisonment as well
as with fine" will apply not only to cases where the offence is punishable with imprisonment and fine
but also to cases in whith the offence is punishable with imprisonment or fine, or both. (1919) 25 Mys
CCR No. 151.
(2) Where the offender is only sentenced to fine and not to imprisonment at all, it is this section
that will come into play and not S. 67 which only applies to cases in which the offence is punishable
with fine alone. ( 1868) JO Suth W R (Cr:) 30.
2. Period for which imprisonment can be ordered.—(1) Under this section the period of
imprisonment for which an offender can be sentenced on default in payment of fine shall not exceed one-
fourth of the maximum term of imprisonment to which he can be sentenced under the punishment
section by way of substantive punishment. (1881) 2 W eir 26 (FB).
(2) The maximum term of imprisonment referred to in this section is the maximum term fixed in
the punishment section in regard to the offence and does not include the enhanced punishment to which
an offender with a previous conviction is liable under S. 75 of the Penal Code. 1890 Oudh SC No. 175
p. 223 (223).
(3) Where an offender is convicted on three separate charges of bribery and sentenced to fine on each
of the three charges, a sentence of imprisonment in default for 6 months on each charge, i.e. for a total
-term of 18 months is legal. 1919 Pun] W R (Cr1) 3 (4) .
3. Amount of fine that can be imposed.—(l) Where a long term of imprisonment has been
awarded to the offender by way of substantive punishment and he also sentenced to a fine, the amount
of which is beyond his means to pay the period of imprisonment in default of payment of fine to which
he may 'be liable.under his section may, when added to the substantive term of imprisonment which
has been imposed imposed on him, exceed the maximum limit of the substantive term of
imprisonment permissible under the punishment section. Although technically speaking there is
nothing illegal in this yet as far as possible the Court should exercise its discretion in the matter of
imposing a sentence of fine and avoid such a contingency. AIR 1941 All 310.
4. Offences under special and local laws.—(l) By virtue of S. 40, Paragraph 2.
(2) This section applies also to offences under special and local laws and hence even in regard to
such offences the limit of the term of imprisonment in default of payment of fine will apply. 1891 Rat
Un Cr1 C 563.
Sec. 66-67 Of Punishments 125
5.. This section and Sections 32, 33 Criminal P.C.—(I) A Magistrate whose powers of
awarding imprisonment are limited to those conferred by S. 32, Criminal P.C. cannot by resorting to
S. 65 of the Penal Code award a period of imprisonment in default of payment of fine beyond one-fourth
of the maximum period of substantive imprisonment which he is empowered to impose. AIR 1972 SC
1809.
(2) The term of imprisonment which can be legally awarded in default of payment of fine is not to
exceed one-fourth of the maximum term of imprisonment fixed for the offence. Abdul Hakim Bhuiyan
V s. Gulabi (1954) 6 DLR 488.
(3) Scale fixing limits of the terms of imprisonment is binding upon all Courts trying a criminal
case—High Court Division Sessions Judge, Assistant Judge or Magistrate—This section has given the
High Court Division and the Sessions judge unlimited power in respect of awarding fine, but in the
case of imprisonment in default of fine two limits have been imposed, one üJs 65 and the other u/s 67
BPC. 37 DLR (A D) 91=1985 BLD (A D) 166
(4) Sec. 65 relates to a case in which the offence is punishable with imprisonment as well as fine,
whereas Sec. 67 aftracts a case in which the offence is punishable only with fine. Reading all these
sections of the Penal Code and the Criminal procedure Code together it is clearly found that all courts
including the Court of a Magistrate got power to direct recovery of fine, when the offence punishable
only with fine, by any of the three methods, such as by issuing distress warrant or by referring the
matter to the Collector of the District or by committing the offender to prison. Ibid.

Section 66
66. Description of imprisonment for non-payment of fine.—The
imprisonment which the Court imposes in default of payment of a fine may be of any
description to which the offender might have been sentenced for the offence.
Cases
1. Scope of section.-(1) Where the substantive sentence for the offence can only be a sentence
of rigorous imprisonment, the imprisonment in default of the payment of fine must also be rigorous.
(1967) 7 Suth W R (Cri) 31(2) (31) (DB).
(2) If the substantive sentence of imprisonment for the offence can only be simple imprisonment,
then the sentence of imprisonment for default in payment of fine can only be simple imprisonment.
(1868-69) 5 Both NCR (Crown. Cas) 43(43) (DB):
(3) When an offence is punishable with imprisonment of either description, the imprisonment in
default of payment of fine may be of either description. 1872-1892 Low Bur Rul 434 (435).
(4) Imprisonment in default of payment of fine—May be of the description prescribed for the
offence—Simple imprisonment prescribed for offence—R.I. cannot be ordered for default. Shafiq Ahmed
V s. State 1959 PLD (W P) (LaI) 851.

Section 67
67. Imprisonment for non-payment of fine, when offence punishable with
fine only.—If the offence be punishable with fine only, 16 [the imprisonment which

16. Ins, b y the Indian Penal Code Amondnient Act, 1882 (XIII of 1882), S. 3.

126 Penal Code Sec. 68;

• the Court imposes in default of payment of the fine shall be simple, and] the term for
which the Court directs the offender to be imprisoned, in default of payment of fine,
shall not exceed the following scale, that is to say, for any term not exceeding two
months when the amount of the fine shall not exceed fifty 17 [taka], and for any term
not exceeding four months when the amount shall not exceed one hundred 17 [taka], and
• for any term not exceeding six months in any other case.
Cases
1. Scope of section.—()) This section deals with the question of imprisonment in default of'
payment of fine in cases in which the offence is punishable with fine only. (1875-77) ILR I A ll 461.
2) The limit to the period of imprisonment to which an offender can be sentenced in summary
trials under the Criminal P.C: only applies to substantive sentences of imprisonment and not to
sentence of imprisonment in default of the payment of fine. (1883) ILR 6 A ll 61.
(3) Where a warrant is issued for an outstanding sum The period of imprisonment must not be
more than the maximum' for the aggregate sum found on the warrant. (1981) 1 WLR 374.
(4) The period of imprisonment in default of payment of fine varies under this section according to
the amount of the fine whereas under S. 65 such period varies according to the maximum term of
imprisonment to which the offender can be sentenced by way of substantive punishment. (1875-77) ILR
iA /i 461.
(5) Where an offence under a special and local law is punishable only with fine, the offender can
only be sentenced to simple imprisonment in default of the payment of fine. A IR 1957 SC 645.
(6) An accused convicted of an offence to which this section applies can be given the benefit and
can be released on admonition and probation under. Probation of Offenders Act. 1971 CriLJ 873.
(7) When an offence is punishable with fine only, it can be reali .sed by issue of distress warrant,
etc. and also by committing the accused to imprisonment. In an offence punishable with fine only,
awarding of imprisonment in default is not illegal. The State Vs. A bul Kashern (1985) 37 DLR (A D)
91.
Section 68
68. Imprisonment to terminate on payment of fine.—The imprisonment which
is imposed in default of payment of a fine shall terminate whenever that fine is either
paid or levied by process of law.
Cases'
I. Scope of section.--(I) Where the amount of the fine is paid by the offender while undergoing
imprisonment in default the imprisonment shall terminate. A IR 1969 A ll 116
(2) Both under this section and under S. 69 the imprisonment in default of payment of fine will
terminate under either section only on the actual realization of the fine and not merely on the setting in
motion of the legal process for the recovery of the fine. A IR 1963 Born 21.
(3) The word "levied" as used in S. 70 in contrast to that word as used in Ss. 68, 69 refers to
the setting in motion of the legal process for the recovery of the fine imposed, so that where such legal
process has been started within the period of limitation as laid down in the section the , recovery of

17. Subs, by Act VIII of 1973, s. 3 and 2nd Sch, for the word "rupees" (with effect from 26-3.1971).
Sec. 69 Of Punishments 127
the fine will not be time-barred even if the actual realization of the fine is made afterwards. A IR 1963
Born 21.
2. Section 68 and 69.—(1) There being a clear provision in substantive law dealing with tnc:
subject it would not be proper to invoke Atticle 104 of the Constitution by ignoring the provision of
sections 68 and 69 of the Penal Code when exercise of such inherent power comes into direct conflict
with the express provision of the law. Hussain Muhammad Ershad Vs State (Criminal) 6 BLC (A D)
30 = 6MLR (A D) 11..
(2) As there is express provision contained in sections 68 and 69 of the Penal Code for payment of
fine and termination of sentence following thereof, the Appellate Division rejected the prayer for
payment of fine in installments in exercise of the power under article 104 of the Constitution. 6 MLR
(4D) 11 = 6 BLC (A D) 30.

Section 69
• 69. Termination of imprisonment on payment of proportional part of fine.--
If, before the expiration of the term of imprisonment fixed in default of payment, such
a proportion of the fine be paid or levied that the term of imprisonment suffered in
default of payment is not less than proportional to the part of the fine still unpaid, the
imprisonment shall terminate.
Illustration
A is sentenced to a fine of one hundred 17ftakaJ and to four months' imprisonment. in•
default of payment. Here, if seventy-five, 17[taka] of the fine be paid or levied before the
expiration of one month of -the imprisonment, A will be discharged as soon as the first
month has expired. If seventy-five 17 [taka] be paid or levied at the time of the expiration
of the first month, or at any later time while- A continues in imprisonment, A will be
immediately discharged. Iffifty 17[taka] 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 17 [taka] 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.
Cases
1. Scope of section.—(l) Ss. 68 and 69 are independent of S. 70. The expiry of limitation for
levy Of fine imposed under S. 70. P.C. would in no way affect the liability of the convict to undergo
imprisonment in default of payment of fine under S. 68. 1980 CriLJ 1160.
(2) The term "levied" under this section means realized. In other words, unless the proportion of
the fine referred to in the section is actually realized the accused will not be entitled to release from the
imprisonment. This meaning is in contrast to the meaning of the word "levy" as used in S. 70. Under
that section the word "levy" refers to the taking of legal proceedings for the recovery ofthe fine and not
the actual realization thereof. A IR 1963 Born 21. -
(3) Although under this section the accused is entitled to be released from imprisonment on the
payment or realization by process of law of the proportionate part of the fine as mentioned in the section
this will not discharge the accused from his liability for the balance nor entitle him to the remission of
the balance of the fine and the Magistrate has nopower to order such remission, notwithstanding the
128 Penal Code Sec. 70

release of the accused under this section, the balance will still be recoverable from him within the
period of limitation laid down in S. 70. 1882 A 1IW N 85.
(4) Imprisonment in default of payment of fine cannot be made to run concurrently with other terms
of imprisonment to-which the offender may be liable. This principle applies also to two sentences of
imprisonment in default of payment of fine. The illustration given under this section makes this
position still clearer. A IR 1950 A ll 625.

Section 70
70. Fine leviable within six years or during imprisonment—Death not to
discharge property from Jiability.—The fine, or any part thereof which remains
unpaid, may be levied at any time within six years after the passing of the sentence,
and if, under the sentence, the offender be liable to imprisonment for a longer period
than six years,. then at any time previous to the expiration of that period; and the
death of the offender does not discharge from the liability any property which would,
after his death, be legally liable for his debts.
Cases : Synopsis
1. Scope and applicability of the Section. 8. Death of the offender
2. "Levied" 9. Fine written off— Effect.
3. Limitation for levy of fine. . 10. Properly acquired after sentence.
4 Starling point of limitation. 11. A ppropriation of payment.
5. Limitation where offender has been sentenced 12. Enhancement of sentence.
• to i7rlsonmenl for longer term than 6 years. 13. Applicability of special and local laws.
6. Imprisonment in default does not operate as .14. Fine for contempt of High Court.
4
discharge from liability. 15. Amount recoverable as fine..
7. Payment of portion of fine.
1. Scope and applicability ofthesection.—This section only lays down the substantive rule as
to the recoverability of the fine to which an offender may be sentenced. The procedure for the recovery of
the fine is laid down in Criminal P.C. (1898), S. 386. A IR 1963 Born 21.
2. " Levied.— < 1 ). The meaning of the word "levied" in Ss. 68 and 69 different from that under this
section. In the context of Ss. 68 and 69 the word refers to the actual reãlisation of the legal proceedings
for the recovery of the fine. A IR 1963 Born 21.
3. Limitation for levy of fine.—(1) The warrant which is issued to the Collector for the recovery
of the fine by civil process has the effect of a decree. But notwithstanding this, the period of limitation
applicable to the recovery even in such cases will be governed only by this section and not S. 48 of the
Civil P.C. The reason is that the Criminal P.C. S. 421, being only a provision as to procedure, does
not govern the operation of this section. A IR 1941 Born 158.
4. Starting point of limitation..—(1) One of the periods of limitation for recovery of fine under
this section is six years from the date of the sentence. A IR 1979 SC 1263.
(2) Even where there has been an appeal or revision against the sentence, period of limitation must
be counted from the date of the trial Court., inasmuch as the filing of the appeal or revision does not
operate to stay the execution of the sentence automatically. A IR 1962 SC 1145.
Sec. 70 Of Punishments 129

• (3) In computing , the period of limitation of six years for levying the fine from the date pf the
passing of the sentence by the trial court, the period during which the sentence passed by the trial cburt
was stayed by the appellate Court has to be excluded. A IR 1979 Sc 1263
(4) Even where the sentence is substantially modified on appeal, the limitation begins to run only
from the date of the trial Court's order. AIR 1967 All 276.
5. Limitation where offender has been sentenced to imprisonment for longer term than 6
years.—( 1) If the offence is punishable with imprisonment for a period of 10 years but the offender is
actually sentenced only to a term of 7 years imprisonment and fine, the fine can be recovered only
within the period of seven years from the date of the sentence.and not ten years. A IR 1943.Pesh 56
- 6. Impr isonment in default does not operate as discharge from liability.—(l) The fact that
the offender has served the full term of imprisonment to which he has been sentenced in default of
payment of fine, does not discharge him from the liability for the fine. (1865) 3 Suth WR (Cri) 61..
(2) . Even after the accused has suffered the full term of imprisonment for default, the fine can be
levied at any time within the expiry of the period of limitation under this section. But, under S.
386(1)(b) (Proviso) of the Criminal P.C. 1898, as amended by Act 18 of 1923, where the offender has
suffered the full term of imprisonment to which he has been sentenced in default of the payment of fine,
no Court shall issue a warrant for the levy of the fine unless for special reasons to be recorded in writing
the Court considers it necessary to do so. A IR 167 A ll 276
(3) On the 'basis of principle as envisaged in S. 386 (1) (b) proviso of the Cr. P.C., 1898 as
amended by Act 18 of 1923, where a warrant for the recovery of the fine is issued while the offender is
undergoing a term of imprisonment for default and subsequently he serves the full term of such
imprisonment, the warrant ought not to be excused in absence of special reasons recorded although , the
case does not technically fall within the terms of S. 386(1)(b)Proviso. AIR 1964 Mys 64.
7. Payment of portion of fine.—(l) Under S. 69 where the accused pays a portion of the fine
while he is serving a sentence of imprisonment for default in the payment of the fine, he will be entitled
to release, if the period of imprisonment already suffered by him is not less than proportional to the part
of the fine remaining unpaid. 1871 Born Un Cr1 C 40.
8. Death of offender. L 41).Under this section the death of the offender before payment of the fine
to which he has been sentenced does not extinguish the liability for the fine and even after his death the
fine can be levied and recovered from any property which would be legally liable for his debts. AIR
1953 Trav.-Co 233 (234). ' • '.
(2) Where the property held by the deceased passes on his death to reversioners under he
customary law and Is not liable in their hands to be proceeded against for the debts of the deceased the
fine to which the deceased was sentenced cannot be recovered from such property after his death. AIR
1955 Pèpsu 170. • . ' ' •
(3) Where the person in possession of certain property which is sought to be proceeded against for
the payment of a fine for which a deceased person was liable claims the property to be his own his
remedy is by way of -a suit for a declaration of title in a Civil Court and he cannot apply for revision
against the order of the Magistrate's Court issuing a warrant' for proceeding against the property. RR
1950 Kutch 20. , ' • ' ••, • • •• '
(4) As the death of the offender does not extinguish the liability for fine an appeal against sentence
of fine dOes not abate on the death of the offender..A1R 1 941 Pat 526 • •. ' ' , ••
130 Penal Code Sec. 71
(5) Under section 70 the fine imposed on the deceased accused may be realised from his assets
which after his death may come into the possession of his legal representative. An order ' directing the
fine to be realised from any property of the legal representatives of the deceased accused is illegal.
Daktar A li Vs. Sukramain Das.6 DLR'29.
9. Fine written off—Effect.---(l) Even where the Magistrate has written off the fine as
irrecoverable, the fine may be levied at any time within the period of limitation under the section.
1906(4) C,iIJ 404.
10. Property acquired after sentence.—(I) Even where at the time of the sentence the accused
has no means to pay the fine, it can be recovered from any property acquired by him afterwards within
the period specified in this section. A IR 1953 Tray. Co. 233.
11. Appropriation of payment.—( 1) Where an order for payment of arrears of sales-tax is passed•
against the accused and he is also sentenced to fine for not having paid the sales-tax and then he makes
a payment and asks it to be appropriated to the fine and not to the arrears of the tax, he is entitled to
have it so appropriated. AIR 1955 Mad 599.
12. Enhancement 'of sentence.—(1) Where the Appellate Court reduces a sentence of 6 months'
rigorous imprisonment to 4 months but imposes a fine of Rs. 100 or in default, 2 months' further
imprisonment there is in effect an enhancement of the sentence which the Appellat6 Court is not
competent to order. (1901) ILR 23 All 497.
13. Applicability to Special and local laws.—(l) The section applies to fines imposed under-
special and local Acts. AIR 1962 SC 1145.
14. Fine for contempt of High Court.--(l) The power of the High court to punish for contempt
of itself is derived from the Constitution. The jurisdiction , is a special one not arising under the
Contempt of Courts Act and is therefore not .within the purview of the Penal Code. The period of
limitation fixed by S 70 of the Code does not apply to the recovery of fine , imposed by the High Court.
for its contempt. AIR 1972 SC 858.
15. Amount recoverable as fine.—.(I) An amount which is recoverable as if it were a fine is not
"fine" and hence the provisions of this section do not apply to the recovery of such amounts. But
although an amount is not required to be deemed to be fine but is only recoverable as if it were a fire,
the provisions of the Criminal P.C., S. 386 (relating to the issue of a warrant to the Collector of the
District to realise the amount by execution according to civil process) will apply. AIR 1967 Ker 254.

Section 71 '
71. Limit of punishment of offence made up of several offences.—Where
anything which is an offence is made up of parts, any of which parts is itself an
offence, the offender shall not be punished with the punishment of more than one of
such [of] his offences, unless it be so expressly provided. -
18 [Where anything is an offence falling within two or more separate definitions of
any law in force for the time being by which offences are defined or punished, or
where several acts, of which one or more than One Would by itself or themselves
constitute an offence, constitute, when combined, a different offence,
18. 1 Added by the Indian Penal . Code Amendment Act. 1882 (VIII of 1882), S. 4. '''
Sec. 71 Of Punishments + 131

the offender shall not be punished with a more severe punishment than the Court
which tries him could award for any one of such offences.]
Illustrations
(a) A , gives Z fifty strokes with a stick Here A may have committed the offence of
voluntarily causing hurt to Z by the whole beating, and also by each of the blows which
make up the whole beating. If A were liable to punishment for every blow, he might be
imprisoned for fifty years, one for each blow. But, he is liable only to one punishment for
the whole beating.
(b) But if while A is beating Z Y interferes, and A intentionally , strikes Y , here, as the
blow given to Y is no part of the act whereby A voluntarily causes hurt, to Z A is liable to
one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y .
Cases : Synopsis
1. Scope and applicability of the section. 20. Personation of public servant and allied
2. A pplicability of siction to offenders under offences.
special, and local laws. ' ' •21. Laying false charge and giving fplse 'evidence.
3. Section 71, Paragraph 1-Scope. . 22. Illicit manufacture of liquor, etc., and similar
4. Paragraph 1-Illustrative cases-Cases or allied offences.
falling within the clause.. . 23. CouAterfeiting and similar or allied offences.
5. Illustrative cases-Offences not falling within 24. Drunken and disorderly behaviour.
Paragraph. 25. Rioting and hurt.
6. Paragraph 2-Scope.' 26. Paragraph 3, illustrative cases-
7. Paragraph 2-I11ustrative cases. . .. Miscellaneous.
& Paragraph 3-Scope. 27. Distinct offences.
9. Aggravated form of same offence. 28. Sentence-General principles.
10. Offence committed with intent to commit . 29. Effect of Section 71 on question of sentence.
intended offence-Similar cases. . 30. Sentence in cases of distinct offences.
11. Conspiracy to commit offence and offence 31. Distinct offences forming pan of same
committed in pursuance of conspiracy. transaction.
12. Criminal breach of trust and falsification of
accounts. . 32. Separate Conviction or offences coming under
13. Hurt and robbery-Similar cases. section.
14. Theft; robbery, etc. and receipt or retention of 33. Double punishment for offences under two
stolen property. . different statutes or falling under two or more
15. Receiving stolen property and assisting In ' separate definitions of law.
concealing stolen property. ' 34. Separate sentences, when not legal.
16. Theft and taking gratification of restoration
of stolen property. 35. Sentences on two counts legal.
17. Theft and mischief in regard to same property. 36 Convictions under sections 143, 447, 379 and
18. Causing evidence of offence to disappear. 427.
19. Forgery and using as genuine forged 37. Separate sentences under sections 379 and 44
document. improper. +
I. Scope and applicability of the section.-(1) This section deals with what may
- . -compendiously, be called "separable" offences as 'distinguished from "distinct offences" and lays

I
132 Penal Code Sec. 71

down the limits of the punishment to which the offender can be sentenced in such cases. A IR 1953 A ll
510.
(2) The section governs assessment of punishment. It does not indicate that separate punishments
cannot be awarded. AIR 1969 Guj 62. -.
(3) There has to be a community of time, place and person in order to bring the case within the
ambit of this section. 1972 CriLJ 1536
2. Applicability of section offences under special or local laws.—(1) By virtue of S. 40, Para
2 of the Code, the word "offence" used in the section denotes a thing made punishable under the Code
or under any "special" or "local law" as defined in the Code. Thus, this section applies to offences.
under a special law and a local law. AIR 1950 Assam 5. .
3. Section 71, Paragraph 1..—Sc'ope.----(1) Paragraph I of this section deals with cases of the
kind mentioned in Illustration (a) to the section. In such cases, according to paragraph I, the accused
can be punished only with the punishment of one offence. AIR 1953 All 510.
(2) Paragraph I will apply to cases where an offence consisting of several parts of the same nature is
committed by two or more persons acting in concert. AIR 1963 SC 1620.
4. Paragraph 1—Illustrative cases—cases falling within the clause.—(1) The theft of several
properties in the same burglary constitute only one offence, although the properties may belong to
several persons. AIR 1926 Nag 89.
(2) The dishonest receipt of stolen property at the same time constitutes only one offence although
it'fiiay consist of several items stolen at different times from different persons. AIR 1932 Lah 615.
(3) A number of lies uttered in one continuous deposition constitute only one offence of giving
false evidence. (1908) 8 CriL.J 497.
(4) False statements made in two separate depositions will not constitute one offence but two
separate offences. (1898) 6 App Gas 229.
(5) Where the complainant has been induced to part with a sum of money in instalments by fraud
and deception, only one offence of cheating is committed. 1935 Mad WN 1225.
(6) A number of acts of cheating by obtaining money on presentation of false bills may together
constitute only one offence under Paragraph I. AIR 1963 SC 1620.
(7) A bribe received partly on one day and partly on another day together constitutes only one
offence under Paragraph 1. (1901) 5 Cal WN 332.
(8) Where a person causes the death of two children by a rash and negligent act committed at the
same time and place he can be convicted for the offence as one act under paragraph 1 1896 (Born) Un
:Cr/ç 852.
(9) Kindling fire and leaving it burning in the vicinity of a reserve forest so as to endanger the trees
theretn constitute only one offence under the Forest Act AIR 1916 Lah 70
Illustrative cases—Offences not falling within Paragraph 1 —(1) When A attacks two
persons B and C and causes hurt to each of them the hurt caused to either of them is'no part of the hurt
caused to the other and so, A's act does not fall under Paragraph I of S. 71. AIR 1934 Oudh 244.
(2) Wherethe Directors of a Bank cheat three different depositors by means of a false balance sheet
and induce them to make deposits in the Bank, three distinct offences are committed and the three acts
Sec. 71 Of Punishments 133

of cheating do not form parts of one and the same offence coming under Paragraph 1. AIR 1914 Low
Bur 65.
(3) Kidnapping of two persons in the course of the same transaction amounts to two distinct
offences. (1926) 27 CriLJ 64.
(4) A criminal intimidation of three different persons constitutes three distinct offences, though the
intimidation is committed at the same time, and in such a case, Para I of this section will not apply.
(1868) 9 Suth W R (Cr1) 30.
(5) The abatement of two distinct offences of criminal breach of trust by two dirrerent persons
constitutes two distinct offences and is not covered by Para 1. A IR 1923 Cal 403.
(6) Rioting and causing damage to crops on the holdings of different persons will constitute a
distinct offence in regard to each holding. AIR 1929 Pat 710.
(7) The appointment or employment of several persons contrary to the provisions of the Factories
Act is not a repetition of the same offence but constitutes a distinct offence in regard to each of the
workmen employed. AIR 1920 Born 315.
(8) The failure to takeout a licence as required by the law in respect of commodities sold will
constitute a distinct offence in respect of each commodity sold where the law requires a separate licence
for each commodity. The offences will be distinct ones although the commodities are sold at the same
place and time and by the same person under the same proof. 1955 KerLT 106
(9) The possession of a number of excisable articles beyond the permitted limit i s' not single
offence but constitutes as many offences as there are articles illegally possessed. AIR 1932 Rang 184.
(10) A person who delivers counterfeit coin to another knowing it to be counterfeit and with intent
that fraud may be committed, when that coin includes both queen's coin and coin of another country,
can be separately convicted and sentenced to consecutive terms of imprisonment under both Ss. 239
and 240 of the Code. Para 1 of this section will not apply to the case. A IR 1933 Pesh 99.
(II) Offences under Ss. 279 and 338 P.C.—Distinct offences—One include the other—Separate
sentences for each offence legal. AIR 1968 Guj 240..
(12) Unlawful assembly—Common object to commit trespass—Criminal trespass committed—
Separate conviction and sentence under Ss.' 143 and 447 both--Not illegal—Para I of S. 71 does not
apply. A IR 1962 Manipur 23.
(13) It cannot be said that counterfeiting is an offence made up of parts 6 ne of which is the
possessing of the mould and the other is the act of counterfeiting. A IR 1931 Cal 445.
(14) Offence under S. 147, P.C., with object of preventing people from going by train and offence
under S. 127, Railways Act, consisting in throwing stones at train after it started—Distinct offences—
Separate sentence for each offence legal. AIR 1924 Lah 585. .. ..
6. Paragraph 2—Scope--(1) Paragraph 2 of this section corresponds to S.235(2) of the Criminal
P.C. (1896) aiid refers to cases where the offence committed by the accused falls under two or more
provisions of the same law. The law may be a general law (=Penal Code) or special or local Act. AIR
1958 SC 935.
(2) Where the accused seized, dragged and pushed the complainant to a certain place in order to
punish him and was convicted under Ss. 342 of the Penal Code for his acts, it was held that the acts
taken together fell within the definitions both of wrongful confinement and of using criminal force, and
thus fell within the second para. of the section. (1906) 4 Cr1LJ 69.
134 Penal Code Sec. 71

(3) The offence of preparation of a false signature-sheet at an election is specifically provided for in
S 171, and hence it cannot be said that the offence falls also under S. 465 of the Penal Code so as to
attract paragraph 2 of this section. AIR 1925 All 230.
(4) Where the common object of the accused under S. 147 of the Penal Code (Rioting) was the
same as that of the offence under S. 379, Penal Code viz., unlawful removal of paddy, it was held that
only one offence was committed the offence of rioting, under Section 147. A IR 1955 NUC (A ssam)
2850.
(5) Where the accused himself was found carrying illicit opium, he could not be convicted and
sentenced both for importing and possession of illicit opium. AIR 1950 Assam 5.
(6) Where a person is accused of running a common gambling house and also of personally taking
part in the gambling in that house, the latter act is one of the modes of running a gambling house and
the accused is liable under this section to only one sentence, viz., for running a common gambling
house although he may be convicted for both offences. (1908) 7 Cr1LJ 76
7. Paragraph 2—I1lustrative cass.—(l) Sending a fabricated message by telegram may be an
offence both under S. 29 of the Telegraph Act, 1885 as well as under S. 420 read with S. 511, P.C.,
where the false message was sent with the object of obtaining payment of a sum of money to which the
sender of the money was not entitled. 1903 All W N26 (DB).
(2) A person driving on a public road so rashly as to endanger human life and causing grievous
hurt by such rash driving commits an offence which falls both under S. 279 and S. 338 of the Penal
Code. A IR 1956 Madh B 141.
(3) Where a person causes the death of a pregnant woman, he may be committing an offence which
falls both under S. 302 (murder) and under S. 316 (causing the death of a child in the womb) and such
a case will fall under the 2nd para of this section. AIR 1953 Tray-Co 374.
8. Paragraph 3—Scope.—(l) Where the accused personates a public officer and by doing so
commits extortion as the offence of personating a public officer and committing extortion by such
personation do not together constitute any one offence under the Code. The personation and the
extortion, though committed in the course of the same transaction, are distinct offences and neither of
them is a constituent element in the other such a case will not fall under para. 3 of the section. (1888)
ILR 10 A ll 58.
(2) Where the accused causes both hurt and grievous hurt to another, the case will not fall under
para. 3 nor under Criminal P.C. Section 25(3). Hence, in such a case., the accused cannot be charged
and convicted of both hurt and grievous hurt but he can only be convicted of grievous hurt. AIR 1968
Guj 218.
9. Aggravated form of same offence.---(I) Where the acts of the accused amount both to causing
simple hurt (S. 323, P.C. and causing grievous hurt (S. 325, P.C.), he commits only one offence Viz.,
grievous hurt, and the case does not come under para. 3 of the Section or under Cl. 3 of Section 235 of
the Criminal P.C. so that in such a case a conviction both under S. 323 and Section 325, Penal Code,
will not be legal under S. 235 of the Criminal P.C. AIR 1968 Guj 218.
(2) Where the accused purposely aims his gun and shoots at A and causes grievous hurt to him,
the offence falls under S. 307 and he cannot be convicted both under S. 307 and S. 326, P.C. Since
para. 3 of this. section and S.235 not being applicable to such a case, there can be only one conviction
namely for attempt to commit murder. A IR 1953 A ll 726(728): 1953 CriLJ 1677.
Sec. 1! Of Punishments 135
(3) Robbery is only an aggravated fotmof theft and when a person commits robbery he cannot be
convicted both for robbery and theft under. CI 3 of S. 235 of the Criminal • P.C. but can only. be .
convicted of robbery as robbery is not different offence from theft within the meaning of para. 3 of this
section of the corresponding sub-section (3) of S. 235 of the Criminal P.C. AIR 1958 Mys 150.
10. Offence committed with intent to commit another offence and commission of the
intended offence—Similar cases.—(l) Where the accused after committing lurking house-trespass by
night with intent to commit theft therein, steals property in the house the accused can be punished with
a separate sentence both under S. 457 of the Penal Code (imprisonment which may extend to 5 years)
and also under S. 380 (imprisonment for a term which may extend to 7 years) i.e. in the aggregate
imprisonment which may extend to 12 years. The reason is that in such.a case the sentence passes not
subject to the limit imposed by this section Viz., the sentence that can be imposed for the more
heinous of the offences, namely in this case, imprisonment which may extend to 7 years under S. 380.
A IR 1962 SC 11J6
(2) If one of the offences with which an accused has been charged is a constituent element of another
offence with which hehas'also been charged he cannot be sentenced separately on conviction on both
these counts. The testis whether the one is a constituent of the other or whether they are by themselves
separate offences. Rewai! Vs. Stare 8 DLR 569.
11. Conspiracy to commit offence and offence committed in pursuance of conspiracy.—(l)
Where there was a conspiracy to obtain money by cheating and different acts of cheating were done by
different conspirators in pursuance of the conspiracy by presenting false bills, the different acts of1the
conspirators were not distinct offences but only separate offences which could all be lumped together in.
one charge. AIR 1963 SC 1620.
12. Criminal breach of trust and falsification of accounts.—(1) Where moneys are
dishonestly misappropriated and false accounts or vouchers prepared for the purpose of screening the
misappropriation, the offenceof falsification becomes a part and parcel of the offence of misappropriation
and the whole trunsactión must be considered practically as one offence consisting of criminal
misappropriation. (1964) 1 CriLi 105.
13. hurt and robbery—Similar cases.—(l) Causinggrievous hurt combined with lurking house
trespass or house-breaking constitutes the offence under S. 459 and thus, the offence is a compound•
offence directly falling within the purview of paragraph 3 of this section and hence the offender can only
be punished for the offence under S. 459 and not also separately for the offence of causing grievous hurt
under S. 325 of the Penal Code. (1929) 30 CriL.J 838.
(2) Wrongful confinement committed in the course of dacoity was not a constituent part of the
dacoity and was a distinct offence AIR 1962 Manipur 7.
14. Theft; robbery etc. and receipt or retention of stolen property.—(l) Section 411 of the
P.C., which relates to dishonestly receiving or retaining any stolen property does not apply to the thief
himself. Hence, the thief himself cannot be convicted of receiving or rationing stolen property. The
same principle applies also to property which is the subject-matter of dacoity. Henca thief, or a robber
or a dacoit himself cannot be held guilty of receiving stolen property (obtained by such theft, robbery or
dacoity.) AIR 1950 Kutch 88.
15. Receiving stolen propertyand assisting in concealing stolen property—(l) Receiving
stolen property and concealing or. assisting in concealing such property are not distinct offences. AIR
I928Bom145(1). .. . •..• : : . . .
136 Penal Code Sec. 71

16. Theft and taking gratification for restoration of stolen property.—(1) Under S. 215 of the
Penal Code, taking gratification for the restoration of the stolen property is an offence. But this section
does not apply to the thief himself and hence where the thief himself takes such gratification, he is not
liable to punishment under S. 215 in addition to the punishment for theft. He must . be regarded as
having simply committed the offence of theft. AIR 1914 Upp Bur 43.
17. Theft and mischief in regard to same property.—(1) Where a person steals a fowl, calf,
sheep or other animal and then kills it, he cannot be separately punished for the offences of theft and
mischief, and he must be treated as tommitting only one offence viz., theft. AIR 1925 Pat 34.
18. Causing evidence of offence to disappear.—(1) Section 201 is not restricted to the case of
a person who screens the actual offender: it cah be applied even to a person guiltyof the main offence,
though as a matter of . practice a Court will not convict a person both of the main offence and under S.
201. A IR 1953 SC 131.:
(2) In a charge of murder under S. 302 a conviction under S. 201 will be justified under S. 237 of
the Criminal P.C. 1898. A IR 1925 PC 130.
(3) Where the accused, by the same act, causes the disappearance of evidence of two crimes, he
commits two offences, though both the offences fall under the same Section. AIR 1965 SC 1413.
19. Forgery and using as genuine forged document.—Where, a person who has forged a
document uses it as genuine he is only liable to be.punished for the forgery under S. 467 of the P.C.
and not for using it as a genuine document under S. 471 P.C.. AIR 1927 Oudh 630.
(2) The abetment of the forgery of a document and the abetment of using of a forged document as
genuine which are separate transactions constitute distinct offences not falling within the scope of this
section. AIR 1924 Nag 162., . . .. ..
20. PersOnation of public servant, and allied offences.—(1) Where an accused is convicted of
an offence under S. 171 of the P.C., for. wearing the grab of a public constable with the intention that it
may be be that he is a police constable and is also convicted under S. 170 of the Penal Code for
personation such Police constábl.e his offence will come under para. 3 of this section. 1888 Born Un
CriC p. 405. . . .
• . 21. Laying false charge and giving false evidence. —(1) Making a false charge under P.C., S..
211 and giving false evidence under P.C.,S. 193 ate distinct offences and do not fall under this
section inasmuch as the acts of the accused in such a case do not constitute, when combined, any
specific offence different from that under S.211 or S. 193. (1887) ILR 10 Born 254
22. Illicit manufacture of liquor etc., and similar or allied offences.--(1) The manufacture of
illicit liquor and the. possession of illicit liquor so manufactured are not distinct offence .s and are
covered by S. 71. AIR 1951 Born 244. .
23. Counterfeiting and similar or allied offences.—(1)The possession of implements and
materials for counterfeiting coins is a constituent part of offence of counterfeiting coins and the two
offence, therefore, do not constitute distinct offences. AIR 1932 Cal 445.
(2) The offence of counterfeiting trade marks will include the offence of possessing instruments and
materials for counterfeiting trade-marks and the two offences will not be distinct offences but will fall
under para. 3 of this section. AIR 1931 Cal 445.
24. Druken and disorderly behaviour.—(i) The fact that a person gets , drunk and behaves in a
disorderly manner under-the influence, of the drink, means that he was not 'capable of taking care of
himself and hence, the offence of drinking and not being able to take care of oneself is not an Offence
Sec If 'j Of Punishments 137

distinct from the offence of drunken and disorderly behaviour. The two offences together fall under the
-
provisions of para. 3 of this section. AIR 1956 Born 279.
• 25. Rioting and hurt.—{l) Where-A, B ,C, D and E are members of an unlawful assembly and A
in prosecution of the common, object of the assembly commits hurt. A would be guilty of rioting and
hurt, the hurt caused may itself be a form of force used which converted the unlawful assembly into
rioting, or it may be caused in the course of rioting after the offence of rioting is complete, by the use of
other force. In the latter cast, it is clear that the hurt is not part of rioting within the meaning of S. 71
and separate sentences can be passed. (1893) ILR 17 Born 260. -
(2) Separate sentences for rioting and for hurt or grievous hurt, even where the common object of
the unlawful assembly was to commit assault, are legal. A mir Hossain Vs. Crown, 9 DLR 71.
26.. Paragraph 3—illustrative cases—MiscellaneOus.--(i) Where the same person acquires
• rationed food grains without permit and transports the same outside rationing area without permit he
commits two offences, namel i, under Clause 8 and Clause 23 of the Food Grains Rationing (Second)
• Order 1966 but he cannot be punished separately for each of the offences though he can - be convicted of
both the offences the reaspn .beingthat the act of transporting food grains was not feasible without
• previously acquiring the same. He can, therefore, be punished only for the offence under ci, 23. (1973)
75 BomLR 223 (224). . .. . . . . •. .
27. Distinct offences.—(l) A with six others commits the offences of rioting, grievous hurt and
assaulting a public servant endeavoring the discharge of his duty as such to suppress the riot. A
commits distinct offences under Sections 147, 325 and 152 of thePenaI Code. AIR 1953 All 510.
(2) Separate sentences for offence under Section 167(81), Sea Customs Act and one under S. 12013,
Penal Code for conspiracy to commit this offence—Not illegal. AIR 1970 SC 45.. -
(3) Offence under Ss. 279 and 30413—Former is a distinct offence though a minor one in relation
to the latter. AIR 1971 Guj 72. . . • .. .•
(4) P.C., Ss, 379 and 352 (assault) are distinct Offences. A IR 155 NOC (A ll) 5501. H
(5) Failure to hold general body meeting of shareholders of company and failure to lay before..
general body meeting company's balance sheet are distinct offences. A IR 1953 Mad 558. .
(6) Rioting—Damage caused to crops of different owners—.-Distinct offences. AIR 1929 Pat 710
(7) Affray (Section '156) and causing hurt (Section 323) are , distinct offenceS: AIR 1925 All 299.
28. Sentence—General principles.---(1) Although S. 35 of the Criminal P.C. uses the word
"may" and only, provides that subject to the provisions of S. 71 of the Penal Code separate sentences
may bO passed in respect of the several offences of which the offender may be convicted at the same trial
yet the general trend of decisions Js to the effect that the word "may" in the context must be understood
in the sense of must, and it is obligatory on the Court to pass a sentence far every offence of which the
• accused is convicted at trial. A IR 1958 A ll 575. . . . .. . .
(2) Where by the same act the accused was found to have caused the disappearance of the evidence
of two different offences (under Ss. 330 and 348 of the Penal Code) held the case was not covered by S.
71 of the Penal Code or by S. 26 of-the General Clauses Act, 1897 and the punishment for the two
offences could not be limited under those sections, however normally no Court should award two
separate punishments for the said act constituting two offences under S. 201. A IR 165 SC 1413.
(3) Where a person is convicted of two offences at the same trial, the Court may pass a single
• sentence for both the offences but cannot pass a sentence for only one of the offences and refuse .0
any sentence for the other offerce. AIR 1950 All 610(610).
138 Penal Code Sec. 71

• (4) Where th Court passes a sentence under two specified Sections of the Code the order of the
Court must be interpreted to mean that the Court intended to pass concurrent sentences, as this is a
very common, though slovenly, form of order passed by Courts. AIR 1924 All 492.
(5) Prior to the Criminal P.C. 1898 there was no provisions in the Criminal P.C. enabling the
convicted Court to order that the different terms of imprisonment to which the offender was sentenced
should run concurrently and hence where such an order was passed it was held to be illegal. (1886) !LR
10 Born 254 (255).
29. Effect of Section 71 P.C., on question of sentence.—(1) Undr Para. 1 of S. 71, which
relates to an offence consisting of parts, each of which parts constitutes an offence of the same kind it is
expressly provided by the section that the offender shall not be punished with the punishment for more
than one of such offences. AIR 1953 All 510.
(2) Separate sentences for the several offences would be' barred under this section in cases coming
under Parás. 2 and 3 thereof. AIR 1965 SC 1413,
(3) The section does not restrict the aggregate punishment to the lowest punishment that can be
awarded by the Court ftr the different offences, but restricts it to the highest punishment that can be
awarded by the Court for any' of the offences. AM 1955 All 275.
(4) Neither this section nor section 35 of the Criminal P.C. has any application where the
conviction is only for one offence. AIR 1955 All 275.
30. Sentence—distinct offences.—(1) This means (a) that separate sentences can be passed for the
several offences of which the accused is convicted at the same trial and the aggregate of such sentences
need not be restricted to the maximum punishment that can be awarded for the most serious of.the
offences. AIR 1928 Born 145. •. .
(2) The Court has always to adjust the punishment to the needs of justice in each case, and to see
that it is not unduly harsh and out of proportion to the guilt of the accused. AIR 1965 SC 1413..
31. Distinct offences forming .part of same transaction. (1) Where, though 'the offences
charged are distinct and separate offences, the accused can be sentenced only for one of the offences
where the offences are. committed in the course of the same transaction. ILR (1978) 2 Kant 1914.
32. Separate conviction for offences coming under section.—(1) Where the accused is charged
with the different offence at the same trial this section is no bar to the conviction of the offender of
different offences at the same trial. AIR 1962 SC 1116 .
33. Double punishment, for offences under two different statutes or falling under two or
more definitions of law.—Double punishment in a case which the same acts constitute offences under
two different statutes or the same acts constitute offences falling within two or more separate definitions
of law, the person so accused cannot be made to suffer separate sentences for each of the said offences,
although he may be convicted for the same. Imposition of the separate sentences on each of these counts
is a contravention of section 71 and amounts really to a double punishment. The imposition' 'of two
separate sentences, even though they may have been made to run concurrently for each of the offences,
illegal. Fazlül Haque Vs. State 11 DLR 316= 1959 PLD (Däc) 93 1.
34. Separate sentence—When not Iegal.—Separate sentences under S. 147 as well as under S.
426 not legal, though convicted under both Sections is valid Marnataz Uddin Vs. Crown 8 DLR 95.
35. Sentences on two counts legal.-If the two counts are by themselves-separate offences, the
accused can be convicted and sentenced separately on both those counts. Reivail Vs. State 8 DLR 569;
Sec. 72 Of Punishments 139

36. Convictions under sections 143, 447, 379'and 427—Separate sentences.—A and four
others were convicted under Ss. 143, 447, 379 and427 of the Penal Code and separate sentences under
Ss. 143, 379 and 427 of the said Code could legally be imposed on each of them. I PLR (Dac) 10.
37. Separate sentences under sections 379 and 411 improper.—The accused himself being the
thief, the recovery of stolen property from his possession was in fact evidence of theft and cannot
constitute a separate offence under section. 411, P.C. It was improper to convict and sentence the
accused.under both sections 379 and 441. 1950 PLD (Ba!) 14.

Section 72
72. Punishment of person guilty of one of several offences, the judgment
stating that it is doubtful of which.—In all cases in which judgment is given that a
person is guilty of one of several offences specified in the judgment, but that it i
doubtful of which of these offences he is guilty, the offender shall be punished for the
offence for which the lowest punishment is provided if the same punishment io not
provided for all. . '. •.
Cases : Synopsis
1. Scope of sectkin. . . 2. Applicability of section.
1. Scope of section.—(l) Where, a charge in framed in the alternative, for an offence under the
Penal Code and for an offence. tinder any other law, this section will not apply. (1911) 12 C'riLJ 224.
(2) Finding that A has committed the murder of B either, by administering poison to him or by
stabbing him or by drowning him, is not a finding that A is guilty of "one of several offences" antis
not an alternative judgment for the purpose of this section. (1904) 1 CriLi 390.
(3) A finding that A has committed the offence of perjury by giving false evidence in one or other
two contradicting depbsitions is a judgment that he is guilty of "one of several offence?' within the
meaning of this section,. (1874) 13 BengLR 324 (336) (FB). . . ..
(4) Where the Court finds that the accused is guilty of one of several heads of charges framed
"against him, but is in doubt as to which particular charge he is guilty of the case is one of an
alternative judgthent for the purpose of this section. (7867) 7 SuthWR ('C'ri) 13.
2. Applicability of Section.—(1) This section" like Ss. 236 and 372, Cri. P.C. applies only to.
cases where the actual facts are not in doubt and are established but there is a. .doubt as to the law
applicable, namely as to which of several ,offences the accused is guilty on the facts established. If there
is a doubt as to the facts themselves the .Judge must acquit.th'e accused. A IR 1914 Lah 549.
(2) Neither this section nor S. 236 Criminal P.C. applies to a case in which the doubt is only as
to the existence of particular facts. 1887 Pun 'Re (cr0 No. 19(21) (DB).
(3) Where the charge is framed in the alternative in respect of offences under Sections 302 and 201,
in view of S. 72 it may be open to the Court to give a•judgment that the accused is guilty of one of
several offences specified in the judgment but it is dotibtful of which of these offences he is guilty. Such
a finding is in accordance with S. 354(2) of the Criminal P.C. and will have the consequence that
under thi, section, the Offender is to be punished for the offence for which the lowest punishment is
provid , the same punishment not being provided for all. AIR 1940 Pat 289.
140 ... Penal Code . Sec. 73

Section .73 -
73. Solitary confinement.—Whenever any person is convicted of an offence for
which under this 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 imprismnent to which he is
sentenced, not exceeding three months in the whole, according to the following: scale,
that istosay— . .
a: time not exceeding one month if the term of imprisonment shall not exceed six
months; .
• time not exceeding two months if the term of imprisonment shall exceed six
months and 191shall not exceed one] year; .
a time not exceeding three months if the term of imprisonment shall exceed one.
year.
- . Cases:: Synopsis .
1. "Solitary confinement." rigorous Imprisonment."
2. "Offence". . . 4. "Not exceeding three months"
3. "For which court has power to Sentence him to 5. Scale of solitary confinement.
I. "Solitary confinement."—Direction for solitai-y confinement is a salutary punishment for
hardened offenders.
2. "Offence."—(l) The punishment of solitary confinement cannot be awarded for offences not
under the Code but under a special or local Act, in the absenCe of a provision therein for imposing such
punishment. AIR 1927 All 472. .
3. "For which Court has power to sentence him to rigorous imprisonment."--41). Solitary
confinement can be awarded only as part of a substantive sentence of imprisonment. A IR 1923 Rang

4. "Not exceeding three months."—(1) Assuming that separate sentences of solitary confinement
for Separate' offences for which an accused is convicted at one trial may be legal even where the aggregate
period of solitary confinement exceeds maximum of three months under this section, such a sentence is
not considered expedient and advisable, and it is the practice to limit the aggregate sentence of solitary.
confinement to a period of three months, even where theaccused is convicted of several offences and
sentenced to separate terms of rigorous imprisonment at one trial. AIR 1923 Lab 104.
5. Scale of solitary confinement.—(l) Solitary confinement cannot be imposed for the whole' of
the term of a person's imprisonment merely because that term is a short one coming within the
extreme limit of fourteen days . prescribed'in S. 74(1). a869) 3 BengLR (A pp) (Cr) 49(50) (DB).
(2) Where the accused is sentenced to four months' rigorous imprisonment, with a fine and in
default, to one month'.s further figorous imprisonment, a sentence of one month's solitary confinement
would be perfectly legal according to para. 2 of the section even though the accused could not lawfully
under S. 74 be subjected to more than 28 days' solitary confinement, if the imprisonment actually
continued only for four months. 1878 Pun Re (Cri) no. 7p. 16(I7) (DB).

19. Subs. thid, s. 5 for "be less than a".

Sec. 7475. Of Punishments . . . 14E

Section 74
74. Limit of solitary confinement.—In executing a sentence of solitary
confinement, such confinement shall in no case exceed fourteen days at a time, with.
intervals between the periods of solitary confinement of not less duration than such
periods, and when the imprisonment awarded shall exceed three months, the solitary
confinement shall not exceed seven days in any one month of the whole imprisonment
awarded, with intervals between the periods of solitary confinement of .not less
duration than such periods.
Cases
(I) It would be illegal to order a convict to be kept in solitary confinement for the whole term of
imprisonment to which he is sentenced even though such term dots not exceed the maximum limit of
14 days' duration prescribed by this sectioii. (1869) 3BengLR (A Cri) 49.

Section 75
75. Enhanced . punishment for certain offences under Chapter XII or
Chapter XVII after previous conviction.-- 20[ Whoever, having been convicted,—
(a) by a Court in 21 [Bg1adesh] of an offence punishable under Chapter XII or
Chapter XVII of this Code with imprisonment of either description for a term
of three years or upwards,22[ *]
22[ * * ' * * ' *. * ' * . *]
shall be guilty of any offence punishable under either of those Chapters with like
imprisonment for the like term, shall be subject for every such subsequent offence to
23 [imprisonment] for life, or to imprisonment of either description for a term which
may extend to ten years.]
Cases : Synopsis
1. Scope and applicability of sentence. with previous convictions.
2. Separate sentence for previous conviction., 7. Charge.
3. Offence committed before previous conviction. 8. Evidence as 10 previous conviction.
.4. Punishable with imprisonment for a. term of f 9. Enhancement of sentence In revision.
years or upwards. " 10. Enhanced punishment— Meaning of
5. Imprisonment for default in giving security ij• Commitment to Court of Session.
for good behaviour. 12. Practice and Procedure.
6. Question of punisiunent in cases of offenders
1. Scope' and applicability of section.—Where the subsequent offence is not one under Chapter
1, 2 or Chapter 17 of the Code a previous conviion under this Chapter is not relevant for assessing the
punishment for the s,ibsequent offence, thOugh\it could be taken into consideration. 1968 SCD 477.

20. Subs, by the Indian Penal Cede Amendment Act, 1910 (Act III of 1910), for the original section.
21. The word "Bangladesh" was substituted for the 'word 'Pakistan" by Act Vl!1 of 1973; Second Schedule (w.e.f. 26th
March, 1971):
22., The word "or" at the end of clause (a) and clause (b) were omitted, Ibid..
23. Subs by Ord. N(r XLI of 1985. for "transportation". ,
142 . Penal Code Sec. 75

•(2) This section applies only-to offences under Chapter 12 or Chapter 17 of the Penal Code and a
conviction under some section not falling under the, above Chapters will not come under this section.
A fortiori the section does not apply to offences under any other law. AIR .1966 MadhPra 271.
'2. Separate sentenée for previous conviction.—(1). The passing of a separate sentence under this,
section, in addition to the sentence for the offence of whichthe accused is subsequently convicted is not
legal. 1936 Mad W N 752. ' .. .
3. Offence committed before previous conviction.—(1) The mere fact that the accused has
committed an offence after he had committed the offence to which the previous conviction relates is not
enough to attract theapplication of this sectionunless the offence to which the subsequent conviction
relates was committed after the previous conviction. AIR 1941 Sind 207.
(2) The point of time by reference to which it is to be determined whether a conviction is or is not
in law a previous conviction the moment when the charge is framed and not the moment when the
subsequent conviction occurs—The provisions of Section 221(7) make this clear. 1879 Pun Re (Cr1)
No. 21,p.60 (FBI).
• 4. "Punishable with imprisonment for a term of 3 years or upwards."—(l) This Section
applies only to cases in which both the previous as well as the subsequent convictions relate to offences
which not only fall under Chapter 12 or Chap. 17 , of the Penal Code but are also punishable with
imprisonment of either description for a period of 3 years or more. AIR 192,1 Pat 665.
(2) This section is only concerned with the question as to whether the offence for which the
accused was convicted on the previous occasion and is subsequently convicted is one which is
punishable with imprisonment for 3 years. The fact that at the previous conviction the accused was
actually sentenced for a period less than 3 years ' is immaterial where the offence itself was one
punishable with imprisonment for 3 years and more. 1977 Cr1LJ 88 (90).
(3) Where the accused has two previous convictions, only one of which came within the purview
of Section 75 and the other did not it is only the former that can be taken into consideration under this
section. (1928) 29 CriLJ 772 (773) (Lak).
5. Imprisonment for default ii; giving security for good behaviour.—(1) When an order for
security for good behaviour for security and imprisonment in default are proved in the proper way,
they can be taken into consideration, though 'not for enhancement of the sentence hereunder, but for
the purpose of considering the adequacy of sentence that could be awarded to the accused. AIR 1930
Sind 58.
10. Question of punishment in cases of offenders with previous convictions.—(1) Question
of punishment in cases of offenders with previous conviction has to be considered from the point of
view of cases coming under this section. In such cases the Code itself provides that the offender with
previous conviction is liable to enhanced punishment up to the limit mentioned in this section
irrespective of the limit of punishment prescribed for the offence under the section under which such
offence falls. ILR (1966) 1 Ker 251 (253 to 255) (DB).
(2) Question of punishment in cases of offender with previous convictions has to be considered
from the point of view of cases which 'do not fall under the section. In such cases the fact that the
offender has previous convictions may be taken into account while determining the sentence to be
passed against him. But such sentence cannot exceed the limit prescribed by the section under which
the offence falls. AIR 1941 Sind 173.. ' ''
Sec. 75 Of Punishments 143

(3) Where the offender commits the subsequent offender shortly after coming out of jail after the
previous conviction he may properly be dealt with under this section and be awarded the enhanced•
sentence under it. A IR 1926 Lah 336.
(4) In cases of robbery dacoity and other offences of a particularly heinous nature a severe
punishment is called for in the case of old offenders. AIR 1934 Oudh 122.
(5) Even in cases not falling under this section, the fact that the accused is a person with previous
convictions can be taken into consideration in passing sentence on him. A IR 1928 Rang 200.
7. Charge.—(1) In cases in which it is proposed to ask the court to award enhanced punishment
under this section on the ground of the accused being a person with previous convictions, the charge•
itself must include particulars of the previous conviction or convictions. If the above provisions are
not complied with the Court will have no power to act under this section and award enhanced
punishment under this section for a subsequent offence on the ground having previous conviction. AIR
1944 Lah25.
(2) The charge of previous conviction is not to be framed before an accused is convicted and the
accused cannot be asked toplead about the previous conviction unless and until the accused has been
convicted in a subsequent case. 1983 RajasthanLR 615(617).
(3) Facts about the previous conviction have to be mentioned in the charge only when it is
intended to punish the accused by invoking S. 75. 1957 Cr1LJ 275.
8 Evidence as to previous conviction.—(l) The previous, conviction may be proved in addition
to any other mode provided by any law for the time being in force. A IP% 1941 Sind 173.
(2) In cases in which it is intended to award. enhanced sentence under this section on the ground of
previous convictions, the evidence as to the previous convictions can only be taken, where the accused
does not admit it, after he has been convicted of the subsequent offence or in trials by jury after the jury
has returned a verdict of guilty. AIR 1944 La/i 25.
(3) As the evidence about previous conviction can only be taken after the accused has been found
guilty of the subsequent offence, or after the jury in Jury Trial has returned a verdict of guilty, the Court
cannot in itsexamination of. the accused under S. 342 of the Criminal P.C. ask the accused any
question about his previous conviction. AIR 1914 Lah 25.
(4) Previous conviction when need not be proved. Where the accused pleads guilty to the charge of
previous conviction, that amounts to admission of guilt under section 255A, Cr.P.C. and, therefore,
the previous conviction need not be proved under section 511 Cr.P.C. Qaim Din V s. State 10 DLR
(WP) 69.
(5) Enhanced sentence for previous conviction is to be legally proved. Mere admission by the
accused is not enough. A lf Din Vs. State 10 DLR (W PC) 41.
(6) Previous conviction taking place about a month after case under consideration. Application of
section 75 held doubtful. 1949 PLD (Ba!) 11.
9. Enhancement of sentence in revision.—(l) It is the duty of the prosecution to place before the
trial Court itself, under the provisions of the Criminal P.C., the relevant material relating to the
previous conviction justifying an enhanced punishment under this section. If this is not done before the
conclusion of thtt-ial that is no ground for asking the Court of revision to enhance the sentence on the:
ground of previous conviction. AIR 1929 All 267.
144 Penal Code • Sec. 75

10. Enhanced ' punishment—Meaning of.—(1) Enhanced sentence must be taken to mean not
merely a sentence over and above the sentence specified for a particular offence but also a deterrent.
sentence even within the range of the maximum sentence that the Court is competent to award. (1970)
2 MadL.J 668. . ...
11. Commitment to Court of Session.—(1)A committal to the Session is not obligatory in
every case in which the accused may have had previous conviction. Such committal is necessary only
on such cases in which the trying Magistrate, after applying his mind to the case, thinks 'that in view of
all circumstances of the case and the previous convictions of the accused, action under S. 7.5 of the
Penal Code is necessary and the offender must be awarded the enhanced sentence under that section
which is beyond his powers as a Magistrate. A IR 1957 Madh Pra 213.. .
(2) In committing the accused to the Sessions u/s. 348, Criminal. P.C. 1898, the Magistrate must
not record a finding ofguilty against the accused but not only frame a charge. AIR 1914 Mad 140.
12. Practice and procedure.—( .1) The question of previous conviction assumes relevance only in
connection with a sentence to be passed and the question of sentence will arise only after the accused is
found guilty. In the case of substantive offence read with this section the noncompliance with the
provisions .of.S.. 3 10(a) of the Criminal P.C. 1898 would make the conviction illegal.. 1971 All Cri R.
21(25).
CHAPTER IV
General Exceptions

Chapter introduction.— This chapter has been framed in order to obviate the necessity
of repeating in every, penal clause a considerable number of limitations. Some limitations
relate only to a, single provision, or to a very small class of provisions; Every such
exception evidently ought to be appended to the rule which it is intended to modify. But
there are other exceptions which are common to all the penal clauses of the Code, or to
a great variety of clauses dispersed over many chapters. Such are, the exceptions in
favour of infants, lunatics, indiots, persons under the influence of delirium, the exceptions
in favour offacts done by the direction of the law, of acts. done in the exercise of the right
of self-defence, of acts done by the consent of the party harmed bythem. 1.
It will be seen that the dealing with exceptions or criminal responsibility contains 32
sections, but the main principles which they illustrate are only seven: They are
1. W here there is an absence of criminal il Triviality (Sec. 95).
intent ('Secs. . 81-86 and 92-94) 6. A ct done' in exercise of the right of
2. Cases of accident (Sec. 79). ' .private defence .(Secs. 95-106)."
3. Mistake offact (Secs. 76, 79). '6 Privileged 'acts (Secs. 77 and 78).
4 A cts done by consent (Secs 87-90).
A ll these cases though variously classified and described are really cases in which
there is absence of criminal intent There is only one case dealt with in Sec 95 in which
provision is made for exemption in spite of the presence of criminal intent the act
committed being so inconsiderable as to be negligible
The general exceptions in Chapter IV of the Penal Code are applicable not only to
offence under the Penal Code but also to offences under special or local laws

Section 76
76. Act done by a person bound,' or by mistake of fact believing himself
bound, by' law.—Nothing is an offence which is done by a person who is, or who"by
reason of a mistake of fact and not by reason of a mistake of law in good faith believes
himself to be, bound by law to do it. ' . .
Illustrations
(a) A , a soldier, fires on a mob by the order of his superior officer, in conformity with
the commands of the law. A has committed no offence.
(b) A , an officer of a Court of Justice, being ordered by that Court to arrest Y and,
after due enquiry, believing Z to be Y , arrests Z A has committed no offence.
146 Penal Code Sec. 76
Cases...aDd MateuIs. : ^ Synopsis
1. •Scope. 6. Mistake of law.
;2. ..'aLandtspeckdkw-43ffence-sintIer. • 7. Mistake offact.
uadbykuV' 8. Good faith.
4. IcV onvuflder.oMetiofsuperiorautJ,origy. 9. Inconsistent. plea of twcused
.S. ix4standeP.ww!rantof Court.
l:'8ope.—(l)This--section . andsection79.are based upon thewell knéwn Latin Maxim, that
law. However, ignorance of fact
is to 79 are that: (a)
ltntustbeafldeant(byThemistake-must.be -one of-fact-Where an offence is committedby reason
benefit-of-sections 76 t679. in holding
rea in himsolfisessential:The test to ascertain the
-intention^issa*cti-ve,. ,.anduot objective,
Under S. 40 paragraph 2, the word "offence"
-has ndfinedasincludingáthingmadepunishabIe.-by a-specialor a local law also for the purpose
.ófhatriV.OfThe'Code'General:Exceptions). Hence, this sectionapplies.also tor offences under
1951 Orissá 284.
;3Bound bylaW".—(i )-A-person . who: ischarged with the offence of defamation in respect of a
tstatenentmade; by; hmwhile4eposing as a witness in a. Court of..law is not entitled to plead in
as he .is not bound by law-to; make a defamatory statement as a
witness AIR 1920 A11 232. . .
(3)Wheretheaccused ischarged- with;the.. offence of kidnapping a minor girl under S. 361 of the
Penal Codeand.hepleads;that betook away: the girl at the request of her mother his defence will not
aWhimrunderthis.Sectjon,.asthe mother's request-was not legally binding on him, nor can he plead
.that'he;'iivgoodfaith,...believed himself to -bebOund by law to .akeawaythe girl, as requested by the
m6therA7R 1929 Pat- .651. . ..
(3)JMeredfiantattiwde of a;crowd--Not ajustifiable;.ground.forthe police party to fire in self-
-defence----Liabi1itythereunder.Jahjr. Mia andIslamHowlader Vs. State 13 DLR .85 7.
4.ACtdoneuflderorder.-of -superior.. authority.(l)The mere fact that the act which
.constittestheonce:.hasbeen; done by. , the accusedunder the order of a -superior, authority will not
save himrfrom;liabi1ityw.here the order of-the superior, authority, is an obviouslyiegal order. AIR 1942
Sind 106
j% obedience:to- the .order. of his superior.. can. only be taken
. ntw^ o ^demtion:.irL-mitigating- the sentence to. be gassed on- him. and cannotbe pleaded -in: defence to a
chaze..underthis ..sectjon. AIR 1940 Lah 210.
-(3) .Where. as a-result of-the mob violence,-the. Deputy Commissioner ordered police force-to open
' fireand-.in'the-firing resorted-to in- pursuance of that order some persons in the. mob were killed, it was
t
--held, that-the--members of-the police force who opened fire could seek protec ion: of the order of the
superior (orderbeing.justifid).d'pld-thatmey acted. in obedience to that order and therefore they
could . not ;be held guilty of-the offence of murder with'which they were charged. AIR 1981 SC 1917.
(4)Rmtectioirmight-.be claimed- by a police constable under sectiofi 76 for opening flre,.. under the
órders-. ofsuperior-dfficer ,.-and killing a man thereby, if he could reason-ably thing that the officer had
Sec. 77 - General Exceptions 14

good reasons for ordering. to. fire into a disorderly crowd -but..nosuch.protection.couldbe- sought-if .there
was.no riot in progress nor-was there any evidence.toshow . thatthe-policeparty. was, in.ngfrOm-the:.
crowd. A Sattar- Vs Crown 5 DLR 184. . .
(5) Military man acting on illegal..command of-his-:fficer -Nobenefitunder seetion-'76can'be.
given to him. Sube Khan Vs. State 1959 PLD (W P,) 'Lah,) 541.
5.Arrest-under warrant of Court.—(l) A Police officer, irresting.a wrong person under-a warrant-
under bona fide mistake of fact is not liable and is protected by this Section.-AIR -1924 Born -333.
6. Mistake of law —(1) It is a general principle that a mistake or ignorance of law, however-bOna-
fide, is no defence to a charge of a criminal offence. AIR 1928 Nag 188. -
(2) A. mistake of law ordinarily means a mistake as to the existence or otherwise-of any -law onthe
relevant subject as well as a mistake as to what the law is. A IR 1951 Orissa 284.
7. Mistake of fact.—(I) An error on a mixed question of law and .fact.is treated-as -a mistake of
fact. AIR 1951 Orissa 284.
8. Good faith.—(l) Where the accused was not,as.a matter-of fact., bound bylaw: to-do-the-act_
impugned as an offence, he may still rely on this. section where after, takingdte-careand-attention,-:he-
believed in a certain state of facts which would, if true,. have made-his act.anobligatoiy oneunder-the&
law. Thus, due care and attention- on his part are essential before -he- can-plead- good-faith underthis.-.
section. AIR 1943 Pat 64.-
9. Inconsistent plea of accirsed.—(l) Where-the accusedby his pleading-haslaken-upa position-
inconsistent with the fact that his case is covered by- an-exception-he -cannot-chasige-his standnthe-
appeal and rely on the exception. (1910) 11 CriLJ 374 (DB) (All).

Section 77 "
77. Act- of Judge -wen.actingJudiciaI1y--Nithing is an offnce whichis- done.,
by a Judge when acting.judicially-in the exercise.of any powerwhichis,- orwhichin-
good faith he believes to be,. given.to.hirn-byIaw.
Cases and Materials Synopsis;
I. Analogous law. 9 Judge acting-, beyond.. jurisdiction-
2. Scope object and applicability of section. Applicability of-section.
3. "Judge". 8.- Defamatory remarks in judgmenL-
4. "Acting Judicially '% . 9. Illegal refusal of- ball—Llabilily r of:
5. "In exercise of power given by law" Magistrate for-wrongful .cqnfinesnent...

6. In exercise of power believed in good faith lobe 10.Unwarrantabie delay in disposaL--- of,
given by law. crlmlnalcases.

1. Analogous. Iaw.—(l.) The protection afforded'.by the Judicial.. Officers"-ProtectionAct-is-not

absolute but qualified.. AIR 1969 Pat 194.
(2) The protection afforded to judicial officers-rests onpublic policy-,but it does-not-follow-that, a
malicious Judge canexercise. his malice with impunity. His conduct.,can.he investigated elsewhere and:
due punishment awarded. (1905) 7 Born LR 951 (DB).
2. Scope,. object and applicability of section.—(I) This sectionshould.be':read-with.:Judiciai.
Officer's Protection Acts (XVIII of 1850). "No Judge,. Magistrate, Justice of the Peace,- C011ector-or
148 Penal Code Sec. 77

other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered
to be done by him in the discharge of his judicial duty, whether or not within the limits of his
jurisdiction provided that he, at the time in good faith, believed himself to have jurisdiction to do or
order the act complained of. For the prosecution of Judge and Magistrate sanction under section 197
CrPC is prerequisite.
(2) There is no distinction between cases in which a Magistrate delivers a written judgment and
those in which he passes an oral order, so far as the applicability of this section is concerned. Where
the words in a judgment are prima facie defamatory and not bearing directly on the matter in hand, the
complaint against the Magistrate who delivers the judgment should be admitted even if this section
was held to apply. AIR 1934 Nag 123.
(3) The object of the protection given under this section and under the Judicial Officers' Protection
Act (18 of 1850) is to ensure the independence of the Judges to enable them to discharge their duties
without any fear of the consequences. (1874) 14 Reng LR 254.
3. "Judge". —(I)The word "Judge" in this section should be taken in the sense of the definition
given in S. 19. (1910) 11 CriLJ.205.
(2) The -protection. under the Judicial Officers' Protection Act (18 of 1850), in regard to civil
liability of a judicial officer for his official acts applies not only to a person who holds a regular
judicial officer but also to one whose duty is to adjudicate upon the rights of persons, or to punish
for misconduct of any given person, whatever from'the proceedings may have taken. (1874) 14
.BengLR 254.
4. "Acting judicially".—(l) A Magistrate passing an order under S. 133 of the Criminal P.C.
acts judicially. (1870-71) 6 Mad HCR 423.
(2) An orde to bring a person before the Court to be there dealt with on a criminal charge is an act
of a judicial nature. (1837-41) 2 Moor md App 293.
(3) A Magistrate's order under S. 517 the Criminal Procedure Code, 1898 ordering delivery of
stolen property to a certain person is an order of a judicial nature covered by the Judicial Officers'
Protection Act. (18 of 1850). (1905) 9 Ca1W N 495.
(4) A Magistrate's directing a general search in view of an enquiry under the Criminal P.C. is
acting in the discharge of his judicial function within the meaning of the Judicial Officers' Protection
Act (18 of 1850). (1912) 13 CrILJ 693.
(5) The issue of a search warrant by a competent Magistrate is a judicial act. (1909) 13 CaIWN
458 (FB);
(6) Judicial acts not confined to acts done in the open Court but include also orders passed in
Chambers. (1813) 13 ER 15.
(7) An act done by a Magistrate in his executive of 'ministerial capacity is not a judicial act.
(1875) 14 Beng LR 254.
(8) Search conducted by a Magistrate in his executive capacity is not a judicial act. (1909) 13 Cal
WN 458 (FB).
(9) A Magistrate conducting a search for discovery of arms cannot be held to be acting judicially
within Act (18 of 1850). (1908) 12 CaIW N 973.
5. "In exercise of power given by law.—(1) Where the act of the Judge which is alleged to be
an offence was done by him while acting judicially and was within the limits of his legal authority, it
is clear that the act is protected by this section and will not be an offence. (1904) 1 CriLJ 146
Sec. 78 General Exceptions 149
6. an exercise of power believed in good faith to be given by law.--(I) The protection under
this section extends not only to an act done by a Judge (acting judicially in the exercise of a power
which is given to him by any law, but also to an act done by him in the exercise of a power which he,
in good faith, believes to be given to him by law. AIR 1934 Nag 123.
(2) In the context of S. 77 the expression "in good faith" implies that care and attention which the
dictates of justice, prudence and common sense would demand in the particular case. (1904) 1 CriLi
146.
(3) Judicial Officer cannot be held to have acted in good faith in the discharge of his duties, unless
he acted reasonably, circumspectly and carefully.. (1875) ILR I Mad 89.
(4) A mistake of law, though made in good faith, will not be a good defence under Ss. 76 and 79,
but may be one under Ss. 77 and 78. The question in such cases will be (i) whether the Judge believed
he was acting legally and (ii) whether such belief was under all the circumstances, reasonable or so
irrational as to indicate malice or corruption. (1905) 1 CriL] 146
7. Judge acting bey?md jurisdiction—Applicability of section.—(1)The protection under this
section will also extend to cases in which a Judge acts beyond the limits of his jurisdiction. A IR 1934
Nag 123.
(2) Under the Judicial Officers' Protection Act, immunity is given to Judges acting without
jurisdiction but in the , bona fide belief of their having jurisdiction. (1887-41) 2 Moor Ind A pp 293....
8. Defamatory remarks in judgment.—( I) Where in the course of a judgment in a criminal case
the j udge makes the remark that the accused is such a person that his very association with the case
makes the matter so clear that no further proof of the guilt of the accused is required such a remark is
not covered by any of the Exceptions to S. 499 (Defamation) ; nor can S. 77 be pleaded in defence to a
prosecution against Judge fordefamation in respect of such remark. AIR 1934 Nag 123.
9. illegal refusal of bail—Liability of Magistrate for wrongful confinement.—(l) Where a
Magistrate illegally refuses bail to a person from an improper motive he will be liable for wrongful
confinement as the improper motive proves the absence of good faith on the faith of the Magistrate. 4
QB468.. .
10. Unwarrantable delay in disposal of criminal cases.—(l) An unwarrantable delay by a
Magistrate in the disposal of a criminal case and the consequent detention of an under-trial prisoner
illegally beyond the period allowed by law will make the Magistrate liable to a suit for damages and
he will not be entitled to the protection of the Judicial Officers' Protection Act (18 of 1850). (1869) 11
Suth W R 19 (Cri). . .

Section 78 -
78. Act done pursuant to the judgment or order of Court.—Nothing, which is
done in pursuance of, or which is warranted by, the judgment or order of, a Court of
Justice, jf done whilst such judgment or order remains in force, is an .offence,
notwithstanding the Court may have had no jurisdiction to pass such judgment or
order, provided the person doing the act in good faith believes that the Court had such
jurisdiction.
150 . Penal Code Sec. 79

Cases
1. Scope-41) This section is a corollary to section 77. It affords protection to the officer acting.
under the authority of judgment or order of a Court.
(2).This section is supplementary to S. 77. S. 77 deals with imm unity of Judges from criminal
liability for acts done by them while acting judicially.. This section dealswith the immunity of
ministerial officers or others executing the process of Court issued in pursuance of the judgments and
orders, of Court. (1837-1841) 2 MIA 293.
(3).This section will not apply where the officer executing the process of Court acts illegally or
beyond his powers and is sought to be made liable for his conduct and there is no question of the
judgment or order of the Court being beyond jurisdiction.. (1865) 3 Suth WR (Cr1) 53.
(4) A ministerial officer who purports to act. in pursuance of an order of a Court and arrests the
judgment-debtor while the latter is on his way to a Court to give evidence there as a witness, the arrest
is entirely illegal and the ministerial officer concerned cannot claim the protection of this section.'
(1908) 8Cr1LJ68.
(5)..A galore,, who receives, and detains .a personinto his custody under the warrant of a Magistrate
is protected.. (1819) 171 ER 850. .

Section 79
79. Act done by a person justified, or by mistake of fact believing himself
justified, by law.—Nothing is an offence which is done by any person who is
justified by law, or who by reason of a mistake of fact and not by reason of a mistake
of law in good faith, believes himself to be justified by law, in doing it.
Illutration
A sees Z.commit what appears to A to be ainurder. A , . in the exercise,. to the best of
his judgment, exerted in good faith, of the power .which the law gives to all persons of
apprehending murderers in the act, seizes Z, in order to bring Z before the .proper
authorities. A has committed no offence, though it may turn out that Z was. acting in self-
defence.
Cases and Materials Synopsis
1. Scope and applicability. 8. Illustrative . cases— Examples of acts not
2. Mistake of law. justified by law.
3. Mistake offact. 9. Husband and wife— Husband's authority
4. Claim of right. over wife.
5. Good faith. 10. Parent and child— Parent's authority to
6. Onus.ofproof punish, child.
7. 11. Bigamy— Charge of
Illustrative cases— Examples of acts held 12. Offences under special or local law.
justified by law.
I. Scope and applicability.—( .1) This section is analogous to section 76. While section 76
deals with cases in which a person acts in the belief that he is bound by law to act in a particular
manner, section 79 deals with the cases in which a person acts in the belief that he is justified by law
Sec. 79 General Exceptions 151

to act. Mistake of law is no justification under -this section. This section can be distinguished from
section 132 CrPC. Protection given by this section is a protection against conviction, while protectioh
under section. 132 CrPC is a protection against trial.
(2) The protection given under S. 197 of the Criminal P.C. is a protection. against trial, the
protection under this section is against conviction and the section can only be applied after the trial is
over. Similar is the protection under Cis. (a), (b), (c), and (d) of S. 13 .2, Criminal P.C.. A IR 1933
Mad 268. . . .
• (3) Section 79 deals with circumstances, which when proved make {the] . acts complained of 'not an
offence. The circumstances to be established to .get the protection of S. 132, Crimina•lP.C. are not
circumstances •which•make the acts complained of-no offence but are circumstances which required the
• sanction of the Government in the taking of.cógnizance of a .complaint-with respect to the offences
alleged to have been committed by theaccused. AIR 1964 SC 269; .
(4) Section 76.deals with:.cases in which the accused acls under compulsion .of .law , while under
this section he does an act which is justified by law. 1949 Bw.LR (SC) 112.
(5) This section will have no application to cases where, in acting under the provisions of the
Police Act or.other similar iaw..conferring powers 01) the Police. The Police Officer or other person on
whom power is conferred goes beyond what is strictly justified by law (unless he acts.' under a bona
fide mistake offact and believes in good faith that he is justified by law in doing what he does): But,
even in such. cases, any provision, which limits the period of time within which the Police officer or
other person -can be prosecuted or the act done by him in excess of his powers will apply. AIR 1964 SC
33. . . . . .. . .
(6) Defamation—Allegation not true, but believed.to be so published for public good—Section
applicable. 1958 PLD 747 Lah.. ... .. .
2. Mistake óf:law.—Whère: the offence does not require that the .act constituting the offence must
have been .done by the accused with a partic, i1ar knowledge, the fact that the .accused was ignorant that
there was a.law which. prohibited the doing of the act or made it an offence will. be no defence. AIR
1.965:SC 722. . . . .
' (2) The principle that:.ignorance of law isno excuse is -really'. based on the: ground that it is
everybody's business to know the law. It is not based on the principle that-everyone . is :presumed to
know:the. law, because such a presumption will be contrary to actual facts. AIR 1.928 Nag 188;
(3). A mistake of law,even in good ifaith, will not be a. defence. under this section. A IR 1965
All 161. . .
(4) Where: the law prescribes a particular mode in which the law must-be published. and that mode
is not followed in the -publication of the .law, the plea of ignorance will prevail. But where there is no
such . special mode of publication prescribed, the publication in the Government.gazette.will be deemed
to be enough publication to exclude the plea of ignorance of the law, 1955 BL.JR 460.
(5) A misconception arising from a mistake in the construction of a.docurnent would be a good
defence to. a charge for perjury. (1765) 170 ER 357. .
(6) A mistake of law includes both a mistake as to the existence of law On the relevant subject as
well as a.mistake as tothe..contents of such. laws. AIR 1951 Orissa 284.
(7) Although a.m.istake of law as such, even though made .in good: faith, is no defence to a criminal
charge, yet may be taken into.consideration- in mitigation of the punishment to be awarded to the
accused on conviction. AIR 1965 SC 722.
1-52 Penal Code I
Sec. 79

(8) A mistake of law committed owing to Full Bench decision, which is subsequently reversed by
the Supreme Court, will make the offence committed under such mistake only a technical offence. AIR
/955411397.
3 Mistake of fact.—(l) Under this section, although an act may not be justified by law yet if it
is done under a mistake of fact, in the belief in good faith that it is justified by law, it will not be an
offence. AIR 1956 Madh Bha 241.
(2) Where the accused under a bona fide mistake of fact shoots and kills a human being in a jungle
mistaking him to be a wild animal, at night time and under circumstances under which the mistake
must.be held to be one made in good faith, the accused will not be liable. AIR 1947 All 99.
(3) Where the accused shoots and kills another person under the mistaken belief, in good faith,
that such person has entered his house for the purpose of killing him, the accused's act would be
justified under this section. AIR 1947 Lah 249.
(4) Where the accused in a moment of delusion considered that his own sonto. whom he was
attached was a tiger and he accordingly assaulted him with an act, it was held that the accused was
protected under, this sebtion. AIR 1952 Nag 282.
(5) "Mistake of fact" and "good faith" must at least appear from the record of the case if the plea to
that effect is not taken and established by the accused. 7 PLD 356 Làh.
4. Claim ofright.—(1) A bona fide claim of right which negatives the intention which is a
constituent element of the offence as defined under the law niust be distinguished from a claim of right
which (under this section) proves that the accused believed, in good faith, that he was justified by law
in doing the act which is charged as an offence. A IR 1968 Ker 126
(2) A claim of right, in order to be a defence in such cases, must, however, be only due to a
mistake of the accused's rights under the civil law and not due to a mistake as .to Criminal law. (1828)
172 ER 477. y..--
5. Good faith.—( 1) Even in a case where, as a matter of fact, the accused was not justified by
law in doing an act which is alleged to constitute offence, he will be protected under the section, if he
believed, in good faith, under a mistake of fact, that he was justified by law. in doing the thing which i
alleged to constitute the offence. (1903) 5 Born HCR (Crown Cas) 17.
(2) The ..question of good faith has to be determined in the light of all .the surrounding
circumstances of a case including the position of the accused, the general knowledge expected of him
and so on. A IR 1926 Lah 554. -
(3) The expression "good faith" in this section, as throughout the Code, has to be taken in the
sense defined in S. 52 as involving as essential factors due care and attention. AIR 1948 Pat 299.
(4) Where the offence depends upon the existence of certain circumstances and the knowledge
thereof by the accused, it must be seen whether in the circumstances of the case the accused was bound
to enquire and acquaint himself with the facts. If he was so bound and had failed to make due enquiries
before he acted, he would be guilty of want of goodfaith and would not be entitled to the protection of
this section. A IR 1951 Orissa 284.
(5) A party who is charged with an offence cannot plead that he acted under a good motive where
his act was not justified by law and Where he does not prove that he had acted with due care and
attention before coming to the conclusion that his act would be justified by law. 1949 -Bur LR (LC)
11?(120).
Sec. 79 General Exceptions 153

6. Onus of proof.—(1) The burden of proving that the accused believed, in good faith, under a
mistake of fact that he was justified by law in doing something of speaking some words is on the
accused and it is question of fact. AIR 1964 SC 269.
(2) "Mistake of fact" and "good faith" must at least appear from the record of case if plea to that
effect not taken and established by the accused. 1955 PLD (Lah) 356.
7. Illustrative cases—Examples of acts held justified by !aw.—(1) A person is entitled to cut
off those portions of the tree growing on his neighbour's land which . overhang his land. Hence, his act
in cutting off such portions of the tree does not amount to an offence under S. 427 (Mischief). 1978'
KerLT 441.
(2) When the Police officer acts within the limits of his power, it is not necessary to consider
whether he has acted corruptly or maliciously. (1886) ILR 10 Born 506
(3) Where certain violators mistakenly believing that certain Police officers were armed dacoits,
who had in an attempt to escape arrest used a revolver, arrested those officers and kept them in
confinement till the matter was brought to the notice of the proper authorities, it was held that they
were justified by law under S. 43 of the Criminal Procedure Code and so were protected byS. 79. AIR
1924 All 645.
(4) Where the arrest and detention of a person are illegal, his rescue or . escape from custody is not
an offence and is a perfectly justifiable act. (1900) ILR 27 Cal 366
(5) Where a Police Constable entertaining an honest suspicion that a person was carrying stolen
cloth, stopped him and put questions to him to clear his suspicion, but finding that the answers were
not satisfactory, detained the cloth and arrested him in the bona fide belief as to his legal right, through
he was entirely mistaken as to the character of the person, it was held that the Constable was protected
under this section.. (1888) ILR 12 Born 377.
(6) Restraining persons on bona fide suspicion that they were smuggling rice out of the State held
justified. 1977 CriLi 17250728) ('Orissa.).
(7) Defamation allegation not true, but believed to be so—Published, for public good—Section
applicable. Mus/itaq A hmed Gurmani Vs. Z.A . Suleri 1958 PLD (W P) (Lah) 747.
8. Illustrative cases—Examples of acts not justified by law.—(l) The act of a mother-in-law
in abducting her daughter-in-law and selling her to another with the intention that she might be
'compelled to marry against her will, is an offence under S. 366, and is not one which the mother-in-
law is justified by law in doing and S.79 can afford no protection to her. AIR 1929 Lah 713.
(2) Where a private person arresting another in the exercise of his authority given by the Criminal
P.C., (Power to arrest person committing nonbailable and cognizable offence or proclaimed
offender), instead of taking the arrested person to. a Police officer as required by the code keeps
the arrested person unnecessarily in his own custody without making, any effort to handing over to
the police, he Is guilty of an offence under S. 313 and not protected by this section. ('1926) 27 CriLJ
1378 Pat.). '.
(3) Obeying unlawful order of a superior does not exonerate a person who commits an offence as
was sequence of such order—If the order is obviously illegal the officer carrying out the order would be
justified in refusing to carry out such an order. 22 DLR 218.
9. Husband and.wife—Husband's authority over wife.—(l) A husband is not justified by
law to restrain or keep in confinement his wife in order to enforce his right to restitution of conjugal
Uq
rights. AIR 1918 Sind 69.
154 Penal Code Sec. 80
(2) A husband is entitled to carry away by force his own wife from another person who has.enticed
her away. (1909)10 CriLJ 208 (Sind).
10. Parent and child—Parent's authority to punish child.—(1) When a child is sent by his
.parent or guardian to a school the parent guardian must be held to have given an implied consent to
the infliction of such reasonable punishment as may be necessary for the purpose of school discipline.
The limits within which the power of the school master can be exercised extend to the infliction of
• punishment for offences committed out of school also in certain cases. A IR 1926 Rang 107.
(2) The Head Master of a School is justified in inflicting corporal punishment upon one of his
pupils for an act done not only in School premises but also outside the premises while on the way to
and from the school. (1893) QB 465. ..
11. Bigamy__Charge of— .(1) Where the second marriage is contracted under the mistaken belief
• that the. first marriage has been put an end to by a valid divorce but the error is one of law and not of
fact, there will be no defence to a charge of bigamy be reason of this.section. (1921) 2 KB 119.
(2) The' execution of an agreement of divorce would not operate as. a valid divorce in spite of
divorce being a1lowed by the custom of the caste of the parties, and hence, the second marriage
contracted under the belief that the divorce was valid would amount to the offence of bigamy under this
Code.. (1881-82) ILR 6 Born 126 . . .
(3) Where a Mohammedan woman on the opinion of certain Muslim 'theologians that in certain
circumst'ances the first marriage will be dissolved, contracts a second marriage she will be committing
bigamy under S. 494 and her error being one of law, though in good faith, she will not get the
protection of this section A IR 1923 Mad 171
12. Offences under special or local law.—(1) Under Section 40, Para. 2, this section will apply
.also.t9 offences under any special or local law. A IR 1943 Pesh 72. i..
. . Section 80
80. Accident in doing a lawful act.—Nothing is an offence which is 'done by
accident or misfortune, and without any criminal intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means and with proper care and caution.
Illustration
A is at work with a hatchet , the head flies off and kills a man who is standing by.
Here if there was no want ofproper caution on the part of A his act is excusable and not
an offence
Cases and Materials : Synopsis
1. "Criminal intention or knowledge ". 4. Shooting cases. .
2.. "Doing of a lawful act in a lawful manner by 5. Driving accidents.
lawful means". •,. . . 6. A cc4lents in games and sports.
3. "Proper care and caution". . 7. Burden of proof
I. "Criminal intention or knowledge".—(l) To constitute-an act a crime, it must, except in the,
case of certain statutory crimes, be accompanied by a criminal intent or mens rea. The intention may
be express or implied. It is express if the person doing the act expects the resulting situation. It-will be
Sec. 80 General Exceptions 155
implied or presumed if the resulting situation is the natural and probable consequence of his act for,
every person is presumed to intend the natural and probable consequences of his act. A IR 1965 Punj
291. . . . .
2. "Doing of a lawful act in a lawful manner by lawful means.—(1) if an act is not lawful or
is not done in a lawful manner by lawful means the section can have no application. .(1899) 12 CPLR
(Cr) /1 . . . . .. . . '. . .
(2) If a blow is aimed at an individual unlawfully and it strikes another and kills him, the accused
cannot escape under S. 80. AIR 1924 Oudh .228,
(3 .) Where a mother being angry with one of her children took up a small piece of iron used as a
poker and. on. his running to the door threw it after him, and hit another child who happened to be
entering the room at the moment, in consequence of which it died, it was held that the wómán . was
guilty of manslaughtdr although she had no intention of hitting the child with whom she was angry
but only intended to frighten him as her act was an improper mode of correcting her child. (1835) 173
ER 194. . .
(4) Where the accused gives a kick to a. trespasser for the purpose of turning him out and the
trespasser dies as a consequence, the accused would be guilty of manslaughter, inasmuch as the kicking
cannot be said to be a lawful act. (1837) 168 ER 1132.
(5) Where the accused was well within his right to voluntai .ily causing a fatal injury to "N" in the
defence of his father who was lying injured, he was doing a lawful act in a lawful manner when he
aimed the lathi blow at "N" but suddenly deceased came in between and received injury. The accused,
therefore, was not guilty of any offence as S. 80 came to his aid.. 1983 A11LJ 1316
3. "Proper care and caution.—(1) The caution which the law requires is not the utmost that can
be used, it is sufficient if it is reasonable,, such as is ustta'l in ordinary and similar cases, such as have
been found by long experience in the ordinary course of things to answer the end that end being the
safety of life and property. (1867) 19 LT89.
4. Shooting cases.—(1) Where in an area in which the accused could not have reasonably
anticipated the presence of human beings, he, with the intention of killing a wild animal fired at a:
ploving object bona fide believed it to be a wild animal and caused the death of a human being, it was
held that the act of causing death was purely , an accident and the accused was protected under S. 80.
1978 CriLJ 1305 (Orissa)..
(2) Where two hunters agreed to take up different positions in a.forest.and lie iri wait for game and
one of them hearing a result and 'thinking that a porcupine was approaching shot and killed his
companion it was held that no offence was committed under S. 304A as the ki]lihg was an accident
within the meaning of this section. (1901) 3 BomLR 679. .. .
(3) Death of deceased caused by pistol shot when appellant in play, drew the trigger after taking
every possible precaution to ascertain that it was unloaded—It was done in reasonable and bona fide
belief'that
t there was no bullet in it—No offence was committed murder S. 304A as the Icilling was
commit ed. 1974 AIILJ 602 (DB).
5. Driving accidents.—(1) his the duty of every man who drives any carriage to drive it with
such care and caution as to prevent, as far as in his power, any accident or injury that may occur.
(1824) 171 ER 1213.
156 Penal Code Sect 81

(2) If aman drives a cart at an usually rapid pace, whereby a person is killed, though he calls
repeatedly to such person to get out of the way, and if by reason of the fast driving or any other cause
the person cannot get out of the way in time and is killed, the driver is in law guilty of manslaughter.
(1824) 1.71 ER 1213. . ..
6. Accidents in games and sports.—(1) Where a player in a game commits an unlawful act in
the course of the play and thereby causes hurt or injury to another player, he cannot excape. liability by
a resort to this section, although the act was done in accordance with the rules and practice of the
game. (1898) 14 TLR 229(230) (In. such cases it is immaterial to consider whether the .act was done
in accordance with the rules and practice of the game.) .
(2) Where there is no foul play or the doing of an unlawful act on the part of a player, an injury
caused to another player in the course of the play, is not an offence under this section. AIR 1950 All 95.
7. Burden of proof. —(1) The burden of proving an exception is, by virtue of S. 105 of the
Evidence Act, 1872, on the accused and the court shall presume the asbsence of circumstances
excepting the accused from liability. AIR 1962 SC 605. ..
(2) Even where the"accused does not raise the plea of accident, he would be entitled to benefit of
doubt if the prosecution fáils.to prove its case beyorid'reasonable doubt. AIR 1949 Lah 85.
(3) According to section 80, nothing is an offence which is done by accident or misfortune, and
without any criminal intention or knowledge., in doing of a lawful act in a lawful manner by lawful
means and with proper care and caution. The buden of proving all the conditions mentioned above is
on the accused who wishes to bring his case within the purview of section 80. Jalal Din Vs.. Crown 5
DLR (W PC) 58. .

Section. 81 .
81.. Act likely to cause harm, but done without criminal intent, and to
prevent other harm.—Nothing is an offence merely by reason of its being done with
the knowledge that it is likely to cause harm, if it be done without any criminal
intention to cause harm, and in good faith for the purpose of preventing or avoiding
other 'harm to person or property. .
Explanation.— It is a question of fact in such a case whether the harm to be
prevented or avoided was of such a nature and so imminent as to her or. excuse the
risk of doing the act with the knowledge that it was likely to cause harm.
Illustrations
('a) A , the captain of a steam vessel, suddenly and without any fault or negligence on
his part, finds himself in such a position that, before he can stop his vessel, he must -
inevitably run down a boat B, with twenty or thirty passengers on board, unless he
changes the course of his vessel, and that, by changing his course, he must incur risk of
running down a boat C with only two passengers on board, which he may possibly clear.
Here if A alters his course without any intention to run down the boat C and, in good
faith for the purpose of avoiding the danger to the passengers in the boat B, he is not
guilty of an offence, though he may run down the boat C by doing an act which he knew
was likely to cause that effect, .f it be found as a matter of fact that the danger which he
intended to avoid was such as to excuse him in incurring the risk of running down C.
Sec. 81 General Exceptions 157

b) A , in a, great fire, pulls down houses in order to prevent the conflagration from
spreading. He does this with, the intention in good faith of saving human life or property.
Here, if it be found that the harm to be prevented was of such a nature and so imminent
as to excuse A 's act, A is not guilty of the offence. . .
Cases and Materials
1. Scope.-41) Mens Rea is an essential ingredient in every offence except ' in three cases, namely:
(a) Cases not criminal in any real sense but which in the public interest are prohibited under a penalty,
that is Revenue Act; (b) Public nuisances; and (c) Cases criminal in from but which are really only a
summary mode of a civil right. An intention to offend against the penal provisions of an Act constitute
mens rea. The intention and act that must both concurs to constitute the crime; Every offence under the
Code virtually imports the idea of criminal intent or mens rea.
(2) Where A places B in confinement, being under a genuine and resonable apprehension that to
allow B to remain at large will endanger the person and property of others, the case falls under , this
section and A does not commit any offence. AIR 1923 Mad 523. .
(3) When the accusd1 dug up a road in view of the fact that water had accumulated in his field the
section was held 'inapplicable as the act was done bythe accused with the intention of causing damage..
to the road. 1967A11 WR (NC) 572.
(•4) Where a sepoy was stationed to ,guard a burning house under orders not to allow any one to
intrude and a chief constable, not in uniform, attempted to enter, and the sepoy, not knowing who he
was, gave him in good faith, not unnecessarily, a violent kick in the course of the fracas, it was held"
that the sepoy was protected under this section as the kick given in good faith for preventing much"
greater harm (spreading of fire and looting). (1893) ILR 17 Born 626
(5) The "person or property" to be protected may be the person or property of the accused himself
or of others. AIR 1923 Mad 523. .
(6) The word "harm" in this section means physical injury. AIR 1966 SC 1773.
(7) Where there is no apprehension of any danger to the person or, property there is no basis for the
application of this section. (1965) 2 MysLi 263.
(8) Where in the context of the situation the act of firing by a. police officer at the [students] was
done without any criminal intention to cause harm and in good faith for the purpose of preventing
further harm to the persons at the house of Municipal President and his property, the case would
squarely come within the exception embodied in Section 81 of P.Q.. 180 C'riLR (Guj) 238.
(9) Where a toddy-vendor placed juice of milk bush in his toddy pots, knowing that if it was
taken by a human being' it would cause injury his purpose being to detect some unknown thief who'
was in the habit of stealing toddy from such pots and toddy was drunk , by some , soliders who H
purchased it from the unknown vendor, it was held that Section 81. did not apply as there was clearly
a criminal intent to cause harm to a person or persons. (1866-69) 5 Born HCR (Crown Cases) 59.
(10) Criminal trial—Mens rea—When cannot be invoked—It has been'argued that in the absence
of any mens rea the petitioner could not be held guilty of the offence charged. The short answer to this
ground would be that there is hardly any scope of any mens rea being invoked in a case like this.
There 'is no charge or allegation that the petitioners (namely, the shipping agents) concealed or
suppressed a' (act in the import niiiifest that was submitted before the Customs Authority. The only.
thing they w. . charged for was shortage of the imported oil after it was measured in accordance with
the customs regulations. Heig & Company Ltd. Vs. A ssistant Collector of Custom, 31 DLR 306.
158 Penal Code Sec. 82-83
Section 82
82. Act of a child under '[nine] years of age.—Nothing is an offence which is
done by a child under '[nine] years of age.
Cases and Materials
1. Scope.—For relevant case law see under section 83.
2. Comments.--The immunity of children under nine years of age from criminal liability is not
confined to offenders under the Code only but extends to offences under any special or local Jaw by
virtue of section 40. A child under nine years of age cannot distinguish right from wrong and if he is
prosecuted the very fact that he is below nine yeas is a sufficient answer to prosecutions;

Section 83
83. Act of a child above '[nine] and under twelve of immature
understanding.—Nthing is an offence which is done by a child above '[nine] years
of age and under twelve, who has not attained sufficient maturity of understanding to
judge of the nature and consequences of his conduct on that occasion.
Case and Materials : Synopsis
1. Comments. - 7. A ge of offender and quantum of
2. Scope and applicability of Sections 82 and 83. punishment,
3. Offences under • special or local laws. 8. V icarious liability of children.
4. Maturity of understanding: (S 83). 9. Theft by child— Receipt of stolen
5. "Nature and consequence of his -conduct".— property from child.
(Section 83). 10. Rape.
6. Maturity of understanding— Illustrative 11. Onus of proof and evidence;
cases—(Sections 83). 12. Arrest of child offender.
1. Comments.—This section may be read along with the Children Act of 1974 (Act No.XXXIX
of 1974) where definition of "child" has been given in section 2 (f) of the Act and according to the
provision of section 71 of the said Act the words "conviction" and "sentence" shall not be used in
relation to children. If a child between nine and twelve years of age is to be convicted of an offence it
must be shown or proved that he has sufficient maturity of understanding to judge the nature and
consequences of the act done. Full criminal responsibility irrespective of maturity of understanding
commences after a person attains the age of twelve years.
2. Scope and applicability of Sections 82 and 83.—(l) 1An act of child over 7 years of age and
under 12 years should not be taken as an offence unless it can be shown that he has attained sufficient
maturity of understanding the consequences of his conduct. 31 DLR 101.
(2) Section 83 applies to a child-offender who is more than 9 years of age and less than 12 years;
But the immunity conferred by that section is as absolute as that conferred by S 82, provided it is

1.
Substituted by The Penal Code (Amendment) Act, 2004 (Act No XXIV of 2004), for "seven".
Sec. .83 . . General Exceptions 159
found by the Court that the child has not attained sufficient maturity of understanding to judge of the
nature and consequence of his conduct. AIR 1919 Born 173.
(3) Beyond the age of 12 years there is no immunity from criminal liability, even if the offender is
a person of undeveloped understanding and not capable of understanding'the nature and consequence of
his act. AIR 1959 All 698.
(4) The proceeding against 4/5 years old child cannot be allowed to continue and hence it should,
be quashed. Labu Mia Vs. State (Criminal) 53 DLR 218,
3. Offences under special or local laws.—(l) By virtue of S. 40 para. 2, all the-general
exceptions in the Code, including those enacted in Ss. 82 and 83, apply to offences under special or
local laws. A IR 1967 Pat 312. ...
4. Maturity of understanding (Section 83).—(1) Where the accused is below 12 years of age..
(though above 9) the issue as to his having attained sufficient maturity of understanding to judge of the
nature and consequences of his act is essential to determine the question of his guilt.. But if the accused
is past the age of 12, the question of his age does not become totally irrelevant. The question of his
youth and the maturity of understanding he has attained will be relevant in the context of the sentence
to be passed against him in the event of his conviction. AIR 1977 SC 2236;
(2) In determining the question whether a juvenile accused falling within the age limits
mentioned in Section 83 had attained sufficient maturity of understanding to judge of the nature and
consequence of his act, the maxim malitia supplet aetatem (= malice supplies the want of age) may be
applied. A IR 1950 Orissa 261. Boy of eleven cutting to pieces another person). (1864) 1 Suth W R
(Cr) 43. (Girl of 10 cutting throat of her sleeping husband). .
5. "Nature and consequence of his conduct"—(Section 83).—(1) The "consequences of his
conduct" mentioned in S. 83 are not the penal consequences to the offender, but the natural
consequences which flow from the voluntary act, such as, for instance, that when fire is applied to an
inflammable substance, it will burn; or that a heavy blow with an axe or sword will cause death or
grievous hurt. (1874) 22 SuthW R (Cr.) 27(28) (DB)..
(2) Where a child accused of an offence, who is over 11 and below 12 years of age disclosed an
acute and intelligent mind .he cannot be regarded as acting for any immaturity of understanding and he
must be held to have intended the natural and probable consequences of his act and to have known that
such consequence will follow. AIR 1950 Orissa 261(263). (DB).
6. Maturity of understanding—Illustrative cases— . (Section 83).—(1) The acused was held to
have attained "sufficient maturity of understanding". AIR 1950 Orissa 261.
(2) The accuseli was held not to have attained sufficient maturity of understanding for the purpose
of this section. (1977) 1 FA C95(98) (A ll). . .
• 7. Age of offender and quantum of punishment.—(1) Imprisonment for life is the minimum
sentence for murder, irrespective of the age of the offender. A IR 1930 Mad 972. Beyond the provisions
of Sections 82 and 83, the Penal Code does not say anything about there being any age limit for the
capital sentence. AIR 1929 Lah 64. .
8. Vicarious liability of children.-_(l) A child who is entitled to the benefit of those sections
cannot be made vicariously liable for the offences committed by the partners or servants of a firm such -,
as a joint family firm of which he isa member. AIR 1945 Lah 238,
160 Penal Code ., Sec. 84

9. Theft by child-Receipt of stolen property from child.-(1) .Where theft is committed by a

child of 6 years and another person is charged under S. 411 of the Penal Code for having dishonestly
received the property acquired by suh theft, it has been doubted whether such person can be held
guilty under S. 41.1. (1885),1 W eir 470.
10. Rape.-(1) Under English law the presumption is that a boy under 14 is incapable of
committing the offence of rape. This presumption does not apply to the subcontinent, where the
question is one of fact in each case. AIR 1915 All 134.
(2) A boy physically incapable of committing the offence of rape, such as a boy of 12 years can yet
be held to be guilty of an attempt to commit rape. A IR 1918 Low Bur 96
.11. Onus of proof and evidence.-(1) Wheretlie accused is a child above nine years of age and
under 12, it must be shown or proved that he has sufficient maturity of understanding to judge the
nature and consequence of the act done before he can be held guilty. (1862) 1.76 ER 234. -
• (2) It is not necessary for the prosecution, to. lead positive evidence to show that an accused person
below 12 years of age has attained sufficient maturity of understanding within the meaning of S. 83. It
would be permissible for the Court to arrive at that finding on a consideration of all the circumstance of
the case. A IR 1949 Lah 51 = I PLD (Lah) 372.
12. Arrest of child offender.-(1) As Section 82 exempts a child under 9 years of age from any
criminal liability, it is illegal for a Police Officer to arrest.a boy under 9 years of age for the offences of
theft and hence, an obstrution offered to such arrest is not an offence under Section 255-B of the Penal
Code. A IR 1916. Mad 642. . .

Section 84
84. Act of a person of unsound mind.-Nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable
of knowing the nature of the act, or that he is doing what is either wrong or contrary
to law. . .
Cases and Materials : Synopsis
I. Scope and applicability of section. . 12. Partial menial derangement.
2. "By reason of unsoundness of rnind'Y 13. A berrations of mind.
3. "Incapable of knowing the nature of the act 14. Eccentricity of behaviour.
or that he Is doing what is either wrong or 15. ,4nnoyance,fury, etc.
contrary to law."
16. Mental agitation, depression, etc.
4. Legal insanity-General principles.
17. Incapacity to form particular intention
5. Unsoundness of mind as defence to criminal
required for offence.
charge-General principles.
6. Type of insanity to which section applies. 18. Point of time at which accused should be
shown to have been insane.
7. Lucid intervals-Fits of Insanity.
8. "Incapable of knowing that he is doing what 19. Insanity caused, by excessive drinking,
is either wrong or contrary to law." snwkisg Ganja, etc.
9. . Hallucination. 20. Mental retardation.
JO. Irresistible impulse. 21. Deaf and dump accused
11. Somnambulism 22. Insanity-evidence of..
Sec. 84 General Exceptions 161

23. Evidence as to preparation, precautions 30. Evidence of relations.

taken to avoid detection, attempts to conceal 31. Excessive or unusual violence as proof of
offence, etc. insanity.
24. Insanity during trial—Evidenhiary value of 32. Burden of proof
25. Motive for crime. 33. Plea of insanity.
26. Unnaturalness of crime. 34. Sentence.
27. Hereditary insanity. 35. Abnormality of mind of accused—Duty of
28. Handwriting—Relevancy of court.
29. Medical evidence. 36. Procedure.
1. Scope and applicability of section.—(1) Every man is presumed to be sane and to possess a
sufficient degree of reason to be responsible for his crime, until the contrary is proved, and to establish
a defence on the ground of insanity it must be clearly proved that at the time of committing the act the
accused was labouring under such a disease of the mind as not to know the nature and quality of the act
he was doing, or if he did not know it, that he did not know if he was doing what was wrong.
Insanity must be proved by the accused unless proved from the prosecution evidence. The burden of
proving insanity is cast upon the accused by section 105 read with section 4 of the Evidence Act and
under section 84 of the Penal Code, he must prove that at the time of committing the act or crime his
cognitive faculties were impaired, that because of the insanity he was incapable of knowing the
nature of the act or that what he was doing wrong or contrary to law. Legal insanity as contemplated
by the section is different from medical insanity. There are four kinds of persons who may be said
to be not of sound mind: (a) an idiot, (b)one made non compos by illness. (c) a lunatic, (d) one
who is drunk. Drunknness is no excuse. If a deaf mute has sufficient intelligence to understand the
character of his criminal act, he is liable to be punished. A IR 1947 A ll 301. Temporary insanity
caused by one bout of drinking organja smoking which is of such an extremely temporary nature as to
pass off a few hours after the consumption of the liquor or drug, is not even temporary unsoundness of
mind, it is nothing more or less than intoxication and affords no excuse to the accused unless the
intoxication be involuntary (13 CrLJ 164). Somnambulism is the unconscious state known as sleep
walking and might constitute a good ground for exemption from criminal ' liability if it could be
established that the act was done while in that state of mind (A IR 1959 Mad 239). If a deaf mute has
sufficient intelligence to understand the character of his criminal act, he is liable to be punished (18
CrLf 143).The crucial point of time at which the unsoundness of mind as defined in this section has to
be established is when the act constituting the offence was committed (PLD 1954 Pesh 1). A murder
committing during epileptic insanity is covered by this section and the accused cannot be punished
(PLD 1961 SC 998). . . ..
(2) Whether the condemned prisoner was in such a state of mind as to be entitled to the benefit of
section 84 of the Penal Code can only be established from circumstances which preceded, attended and
followed the crime. State Vs. A bdus Samad @ Samad A ll (Criminal) 54 DLR 590.
(3) As an insane person wh,is incapable of knowing what he is doing or that he is doing what is
wrong or contrary to law, cannot be said to have a guilty intention, he is exempted from punishment
by virtue of this section. AIR 1969 SC 15.
(4) The essential elements of the section are as follows.:
a" (a) The accused must at the time of the commission of the act be of unsound mind;
162 Penal Code Sec. 84

(b) The unsoundness of mind must be such as to make the accused, at the time when he is doing
the act charged as an offence, incapable of knowing the nature of the act or that he is doing
what is either wrong 'or. contrary to law. .1962 (2) CriLi 135(140) (DB) (Ker).
(5) It is not in every case 'of'Insanity that the accused will be exempt from criminal liability, but it
is only in cases in which the accused, by reason of his unsoundness of mind, is incapable, qt the time
of his committing the offence of knowing what he is doing, or that he is doing something wrong. AIR
1972 SC 2443. . .
2. "By reason of unsoundness of mind.—(l) This section deals with incapacity due to
unsoundness of mind. Incapacity caused by intoxication forms the subject-matter of Sections 85 and
• 86.41R 1948. Nag 2O. . . • , . ,
(2) The Code does not define "unsoundness Of mind". The Courts have . treated this expression as
equivalent to insanity. But the'.law limits the exemption form liability to those cases where the
cognitive feature are completely, impaired and not to casswhere the insanity affects only the , emotion
and the will. AIR 1,969 Orissa 222:
3. "Incapable" of knowing the nature of the act or that he is doing what is either wrong
or contrary to law.—(1) This section does not confer immunity from criminal liability in every
case of insanity of the accused Coupled with the Insanity of the accused, there must be the additional
fact that at the time of the commission of the 'act, he is, in consequence of the insanity, incapable
of knowing the nature ofthe , aci,or that he is doing what is either wrong or contrary to law. 1976
Cr:LJ 1416
4.-Legal insanity—General principles —(1) An unsoundness of mind which may amount to
inanity from a medical point of view will not necessarily be legal insanity for the purpose of
. . this
section so as to confer immunity on the insaneperson from criminal liability for any act done by him
while he is in that state of mind AIR 1977 SC 608
(2) Guiding principles to be kept in view when accused takes special plea of unsound mind—
Legal insanity different from medical insanity. Principles laid down regarding special plea when raised
by and accused under section 84ire as follows
(i) If the accused raised any special plea or claims exoneration on the basis of any special or general
to
exceptions he must pro've his special plea or the existence of conditions entitling him claim
the exoneration.
(ii) The prosecution must prove its case beyond any reasonable, doubt.
(iii) If after an examination of the entire evidence the Court is of opinion that there is a reasonable.
possibility that the defence put forwardby the accused may be true or that the evidence casts a
.doubt on the existence, , r.the requisite intention or mens rea which is necessary ingredienof
a particular offence, this.'will react on the whole prosecution caseentitling the accused to the
- benefit of doubt. •'
.• • ' • , . • , . •
(iv) Legal insanity as contemplated in section 84 is different from medical insanity. If the cognitive.
faculty is not impaired and the accused knows that what he is doing is either wrong or
contrary to law he is not insane. State Vs. Balashri Das Sutradhar 13 DLR 89..
(3) There is a difference between medical insanity and legal insanity. The mere fact that the
accused was mentally deranged and behaved irrationally on some earlier occasions or even if his mental
Sec. 84 General Exceptions 163

illness is proved subsequently is not enough. (Nikhil Chandra I-/alder Vs. The State) 22 BLD

(I-lCD) 197.
(4) There is distinction between legal insanity and medical insanity. In order to bring a person
within exception of section 84 of the Penal Code the onus lies on the accused to show that at the time
of the occurrence due to unsoundness of mind he was incapable ofuñderstanding the nature of the act
or that what he was doing was unlawful or wrong. Abu Nasir Bhaiya.Vs. State 30 DLR 27.
(5) The test for legal insanity as distinct form the medical insanity is that the nature and extent of
unsoundness of mind must appear to be of such a stage where the cognitive faculty of the mind Would
be so materially affected as would make the offender incapable of knowing the nature of the act or that
what he was doing was wrong or contrary to law. Abu Nasir Bhaiy. a Vs. State 30 DLR 275.
(6) When a plea of legal insanity is set up, it is for the court to consider whether at the time of
commission of the offence the accused by reason of insanity was incapable of knowing the nature of the
act. The crucial point of time for ascertaining the state of mind of the accused is the time When the
offence was committd. Whether the accused was in such state of mind as to be entitled to the benefit
of section 84 of the Penal Code can only be established from the circumstances Which preceded,
attended and followed the crime. Abu Nasir Bhuiya Vs. State 30 DLR 275.
(7) The mere fact that on earlier occasions a person had been subject to insane delusions or had
subsequently from derangement of the mind had suffered from derangement of the mind or had
subsequently at times behaved like a mentally defici 'entperson is per se insufficient to bring his case
within the exemption provided by S. 84. The incapacity must have existed at the time of his doing the
act charged as an offence. AIR 1971 SC 778.
(8) The expression "incapable of knowing the nature of the act" will include the incapacity to
know the consequences of the act. 1976 CriL.J 1416(1418) (DB).
5. Unsoundness of mind as defence to criminal charge—General principles.—(]
Unsoundness of mind is not ipso facto a ground of defence under this section. Unless in consequence of
such unsoundness the accused was incapable, at the time of his committing the alleged offence, of
knowing either the nature of his act or that the act was either wrong or contrary to law. AIR 1955 NUC
(Mad/i-B) 2993. .

(2) The words "the nature of the act" refer to the bearing of the act in relation to other person (i.e.,
the victim) and the words "that he is doing what is either wrong or contrary to law", refer to the
bearing of the act in relation to the doer himself, i.e.. the accused's own responsibility for it. AIR 1949
Nag 66. .

6. Type of insanity to which section applies.—(l) In order to avail of the benefit under this
section, it must be shown that the cognitive faculties of the accused Were, as a result of unsoundness of
mind, so completely deranged as to render him incapable of knowing the nature of his act or that what
he was doing was either morally wrong or contrary to law. AIR 1964 SC 1563.
(2) What may be termed legal insanity under the section. is not identical with medical insanity.
AIR 1960 Guj 1.
(3) A distinction must be made between insanity affecting the cognitive faculties of a man and that
affecting the will or emotions. It is only the first type of insanity that is within the purview of the
ection. AIR 1948 Nag 20. . S
164 Penal Code Sec. 84

• 7. Lucid intervals—fits of insanity.—(1) The section will apply even in cases in which the
accused is subject to periodic fits of insanity. But in such cases it must be proved that at the
time when he committed the alleged offence, he was suffering from such a fit of insanity, (1976) 42
CuILT 958.
(2) Epileptic Psychosis—Whether such psychosis is sufficient to exonerate the accused—Whether
the accused committed the murder during psychosis—An epileptic psychosis is generally characterised
by short transitory fits of uncontrollable mania followed by complete recovery—There is general
impairment of the mental faculty with loss of memory and self-control—They are deprived of all moral
sensibility given to the lowest forms of vice and sexual excesses and are sometimes dangerous to
themselves as well as to others—True epileptic insanity is that which is associated with epileptic fit.
This may occur before and after the fits or may replace them and is known as pre-epileptic insanity,
post epileptic insanity and masked or psychic insanity—There is a total absence of motive behind the
murder—This 4 s in keeping with a motiveless murder by an epileptic patient but the other conditions
do not suggest that the killing was done during an epileptic fit in course of which the condemned
prisoner lost control of her mental faculties temporarily—An epileptic maniac would attack his or her
victim with maniacal fury repeatedly and indiscriminately—Her choice of weapon will also bear the
imprint of a maniacal mind—The condemned prisoner has chosen a sharp-pointed weapon and killed
the victim by single blow on the vital part of the body—There is lack of evidence that the killing as
preceded or followed by maniacal shouts or that the condemned prisoner was in an uncontrollable fury
at that time—No reasonable doubt has been created as to whether the condemned prisoner committed
the murder with a guilty mind or not—The accused is not entitled to the benefit of doubt. The State
Vs. Mosammat Mallika Khatun 6 BLD (HCD) 352.
8. "Incapable of knowing that he is doing what is either wrong or contrary to law.—
(1) Where at the time of committing the alleged offence, he is aware that his act is wrong (whether
from the moral or legal point of view) he will not be entitled to the benefit of this section. 1962
(2) CriL.J 135.
(2) Where at the time of committing the alleged offence the accused in spite of his insanity, is
capable of knowing that he is doing something which is morally or ethically wrong. He will not get
the protection of this section even though he may not be aware and may not be capable of knowing that
his act is contrary to the law. AIR 1941 Cal 129.
(3) The benefit of the section is available to an accused person where owing to insanity, he was
not aware at time of the commission of the alleged offence. either that act was wrong or that it was
contrary to law. AIR 1949 Cal 182.
(4) Murder or other offence committed under the influence of an insane delusion for redressing or
revenging some supposed or imaginary grievance will be an offence punishable under the law where the
accused was not incapable ofknowing that his act was contrary to law. AIR 1918 Pat 179.,
(5) A person suffering for an insane delusion and committing a murder or other offence under its
influence is not the same as a person suffering from insanity within the meaning of this section as this
section contemplates only an inherent and organic defect and not a mere delusion. AIR 1959 All 534.
(6) Facts not disclosing 'irresistible impulse' or 'insane delusion' pleaded in defence could not
attract either S. 84 or Exception 2 to S. 300 Penal Code—The mild quarrel and the alleged threat by
the deceased to kill the accused could not have rendered the latter 'insane' to the extent of killing
deceased. 1982 CriLJ 1044.
Sec. 84 General Exceptions
. .' 165

• 9. Hallucination.--41) Where a person is not insane but is unbalanced and exited and is probably
labouring under some kind of obsession or hallucination, this section cannot be invoked in his favour.
1963 MahL.J (Notes) 24 (DB).
10. Irresistible Impulse.—(j) Irresistible impulse is not insanity, in the sense of this section and
is no defence under it. 1978 KerLT 177.
11. Somnarnbulism.—(I) Somnambulism, if proved, will constitute unsoundnóss of mind
attracting the application of this section. AIR 1959 Mad 239,
12. Partial mental derangement.--(I) Mental derangement of partial type which at the time of
the commission of the alleged offence, does not affect the capacity of the accused to understand the
nature of his act or that he is doing what is morally or legally wrong is not 'within the section. AIR
.
1932 All 233.
13. Aberrations ofmind.—(1) Mere aberrations of mind not amounting to insanity of the degree
and type described in this section (i.e., incapacitating the accused at the time of committing the alleged
offence from understanding what he is doing or that his act is morally or legally wrong) will not make
this section applicable. (1972) 2 MalayanLJ 178.
14. Eccentricity of behaviour.--(I) Mere eccentricityOf behaviour will not prove that the person
concerned was insane in the sense of section, i.e., so as not to be able to understand the nature of
his act, or that his act is wrong or contrary to law. 1979 Cr1LJ 403 (Pr 9) (DB) (Born).
15. Annoyance, fury, etc.—( I) The mere fact that the accused had become highly excited and
flew into a fury would not bring his case within this section and operate as a defence to a'charge of
murder committed by him in that state of mind. AIR 1955 NUC (Assam) 2852 (DB)..
16. Mental agitation, depression, etc.—(1) The mere fact the accused was in a state of acute
mental agitation, depression or despondency or that he was for some time .before the act extremely
moody, taciturn and so on will not prove that he was suffering form such' unsoundness of mind as to
make him, incapable of knowing what he was doing or that his act was morally or legally wrong.
Hence, in such cases the accused will not be entitled to protection under this section merely on the
proof of facts of the above, nature. AIR 1967 Ker 92.
17. Incapacity to form particular intention required for offence.—(l) The unsoundness of
mind of the accused may. in certain cases, make him incapable of understanding that his act is
"dishonest" so as to constitute the offence of criminal breach of trust. In such a case, he will not be
criminally liable at all. AIR 1939 Mad 407.
.18. Point of time at which accused should be shown to have been insane.—(1) The crucial
point of time under this Section at which the insanity of the accused in the sense of the section must
have existed, is the time when the alleged offence was committed by the accused. AIR 1964 SC 1563.
(2) The insanity of the accused at the time of the trial is immaterial for the purpose of the
substantive law under this Section relating to the criminality or otherwise of the accused. 1961 (1)
CriLJ 811.
19. Insanity caused by excessive drinking, smoking. Ganja, etc.--(l) Where insanity is caused
by excessive drinking (although voluntary) or by excessive smoking of Ganja. etc., such insanity will
also amount to "unsoundness of mind" under this section. AIR 1956 SC 488.
(2) The mere loss of self control due to drinking, smoking Ganja, etc., will not be "insanity" in
the sense of this section. AIR 1955 Pun] 13. . ' .
166 Penal Code Sec. 84

20. Mental retardation. —(I) Mental retardation and extremely low intelligence falling into the
category of "severe sub-normality" cannot per se be treated as equivalent to the kind of the
unsoundness of mind contemplated by this section. 1976 RajLW 551.
21. Deaf and dump accused.—(l) The mere fact that the accused is deaf and dump and cannot
understand the proceedings in 9ourt will be no ground for holding him to be exempt from criminal
liability. (1960) .2 KerLR 206(207) 'DB,).
22. Insanity—Evidence of.—(1) Scientific evidence if insanity is not necessary to sustain a
defence under this section and the plea of insanity may be proved from inference of facts and
circumstances of each case. AIR. 1961 SC 998.
(2) Lack of proof of motive and other attending circumstances in the-commission of crime cannot
be . accepted as a valid plea to absolve the accused. Abu Nasfr Bhuiya Vs. State 30 DLR 275.
(3) Evidence as to the conduct of the accused shortly prior to the offence and his conduct at the
time of or immediately after the crime, his mental condition, family history and so forth will be
relevant on the question of the accused's insanity at the time of the offence. AIR 1969 SC 15.
(4) As the material point of time at which the insanity of the type mentioned in the section should
be proved to have existed is the time when the alleged offence was committed, evidence that some time
previous to the offence in the past the accused was behaving like an insane person is not in itself
sufficient to prove his insanity at the time of the commission of the offence. AIR 1965 Mad 283.
(5) The previous history of the mental condition of the accused is a relevant piece of evidence in
determining the question whether insanity of the type mentioned in this section existed at the time
when he committed the alleged offence. AIR 1964 SC 1563.
(6) Where from evidence on record it could be inferred that both prior to the incident as well as
after the incident the accused was mad and that on the date of the incident also his conduct was such
as to show that he was not in a mentally fit condition to understand the nature and consequence of the
act which was committed by him, it was held, that the accused succeeded in discharging the burden
cast on him under Section 84. (1983) 2 Crimes 960(2) (DB) (Raj).
• (7) The previous and subsequent conduct of the accused is only relevant for the purpose of
showing his state of mind at the time when he committed the offence, which is the only material point
of time for the purpose of the section. AIR 1928 Pat 363.
(8) The Court while considering the defence of insanity would have to look at and consider the
totality of the emerging situation and position in light of facts and circumstances relating to the mental
condition of the accused preceding the occurrence, at about the time of the occurrence as also after the
occurrence. 1983 CriLJ 1769.
(9) A tendency to set fire to his own clothes and house is more than mere irrationality. It is prima
facie proof of insanity. AIR 1971 SC 778.
(10) Homicidal tendency. is only a sign of insanity. AIR 1971 SC 778.
(II) Prosecution witness declared hostile and cross-examined—Much reliance could not be placed
on his statement that accused was insane. 1977 CriLJ5I3(517) (Pat).
• 23. Evidence as to preparation, precautions taken to avoid detection, attempt to conceal
offence etc.-( I) The fact that after committing a murder the accused tried to run away to conceal
himself or otherwise tried to avoid detection and punishment would be evidence to show that he was
Sec 84 General Exceptions 167

conscious of his guilty and hence was capable of knowing, in spite of his insanity, if any, that his act
was wrong or contrary to law. 1977 Cr/LI 296
(2) The mere fact that the accused has not attempted to run away or to avoid detection of his crime
will not prove that he was insane and could not understand that he had done something wrong or
contrary to law. 1977 CriLi (NOC) 21 (DB).
(3) f acts that accused did not attempt to run away or to avoid detection of crime are relevant in
determining the question of insanity under this section. 1977 CriLl 1765 (1770) (DB) (Pat).
(4) The conduct of the accused in giving information on leading to the recovery of some pieces of
the dead body indicates that at the time of commission of the offence the accused was not insane. 1980
•Rai CrILJ 113 (117, 118) (DB)
24. Insanity during trial—Evidentiary value of.—(1) Insanity of accused during thetrial or
during the investigation or preliminary enquiry into the offence is by itself irrelevant for the purpose of
this section. But such insanity may give rise to suspicion that the accused might have been insane at
the time of the commission of the offence and might be a relevant fact in that context. 1961 (1) Cr/Li
881 (Cal) (DB).
25. Motive for crime. —(1) The absence of an adequate motive for a serious crime like: murder is
not by itself proof of insanity on the part of the accused in the sense of this Section. 1982 Cr/Li 2158.
(2) The absence of .a strong motive or any motive at all may be taken along with other
circumstances as a relevant factor in determining the question of sanity or insanity of the accused for the
purpose of this Section. AIR 1964 SC 1563.
26. Unnaturalness of crime.--(I) Where the accused, a Woman, committed the murderof her
own child in broad daylight without in the least making any attempt at secrecy or to escape detection
and remained perfectly calm and absolutely unaffected by the act, it may be inferred that she was insane
at the time and did not understand what she was. doing, so that her case would come under this
Section. AIR 1968 Delhi 177. .. .
2.7. Hereditary inanity.—(I) Before evidence regarding hereditary insanity in the family of the
accused can be admitted the accused has to prove insanity, by testimony of medical men. (1844) 1 Cox
Cr C 103. . . . .
28. Handwriting—Relevancy of.—(I) The handwriting of a person is not a conclusion proof of
his sanity or insanity. Hence, the mere fact that the handwriting of the accused is steady and not shaky
does not prove his sanity or disprove his plea of insanity. AIR 1946 Nag 321.
29. Medical evidence.—(l) The opinion of an expert is relevant in determining the question of
insanity under this section. 1886 Born Un Cr C ' 229 (DB).
30. Evidence of relations.—(1) Relations of the accused who are likely to remain in intimate
contact with the accused are proper witness as to the state of mind of the accused. Their evidence
cannot be disbelieved merely because they are relations of the accused. AIR 1971 SC 778.
31. Excessive or unusual violence as proof of insanity.—(1) The insanity of , the accused, in
the sense of this section, at the time of his committing the act constituting the alleged offence, cannot.
be established merely by the brutality or the ferociousness of the Act. AIR 1964 SC 1563.
32. Burden of proof.—(I) The law presumes every person to be sane and quite capable of
distinguishing between right and wrong till the contrary is proved. 1978 KerLT 177.
168. Penal Code Sec. 84

(2) Where the accused pleads insanity at the time of the commission of the offence the burden of
proof of such plea is entirely on the accused. AIR 1974 Sc 216.
(3) If the accused .waflts to bring his acts within any one or more of the general exceptions
enumerated in Chapter IV of the Penal Code, it is for him to prove that his acts are so covered under
any of those general exceptions. Nikhil Chandra Haider Vs. State (Criminal) 54 DLR 148.
(4) The legal test as laid down by section 84 requires that the accused at the time of committing
the crime was in such a state of mind, so much so, that he was incapable of knowing the nature of
consequence of his act or that what he was doing was either wrong or contrary to law. Nikhil Chandra
Haider Vs. State (Criminal) 54 DLR 148.
(5) The duty is generally cast upon the prosecution to negative any special defence raised by the
accused. Nikhil Chandra Holder Vs. State (Criminal) 54 DLR 148. ..
(6) The accused is required to prove his plea of insanity on the balance of probabilities on
preponderance of evidence. Nikhil Chandra Haider Vs. State (Criminal) 54 DLR 148.
(7) The burden of proving the existence of circumstance bringing the case within the exception lies
on the accused. State Vs. Abdus Samad Samad Ali (Criminal) 54 DLR 590.
33. Plea of insanty.—( 1) Plea of insanity must be raised and established during trial. 1983
CriLi 904.
(2) An accused would be better advised when setting up the plea of unsoundness of mind to
specify the type of mental disorder from which he was suffering at the time of offence. AIR 1959
MadhPra 259. . '.
- (3) Occasional looseness of head,' unsoundness of mind or even partial derailment of brain will not
entitle one to claim exemption from criminal liability under section 84 U.P.C.' Uncontrollable impulse
coexisting with the full possession of the reasoning powers is no defence in law. Existence of delusions
which indicate a defect of sanity will not be deemed sufficient to attract section 84. It is not mere
eccentricity or singularity of manner that will suffice to establish the plea of insanity; it must be shown
that the prisoner had no competent use of his Understanding so as to know that he was doing a'wrong
thing in the particular act in question. Shiraf Al! Vs. State, 24 DLR 69.
(4) Plea of insanity—Circumstances to be considered—In all cases where the plea of insanity is
set up it is most material to consider the circumstances .which preceded; attended and followed the
crime—To prove theplea of insanity it is not necessary to adduce scientific evidence—The question as
to whether the accused was mad or insane at the time of the occurrence will have to be decided on the
(acts and circumstances of the case and the evidence on record. Lahi alias Lai Miah Vs. The State, II
BLD (HCD) 1.
34. Sentence.—( I). A person committing multiple murder for no understandable reason at short
intervals on irresistible impulse although may be regarded as subject to some kind of insanity, will not
be entitled to lenient treatment in the matter' of punishment merely on that ground where he was not
incapable of understanding that what he was doing was wrong or contrary to law. AIR 1952 Mad 289.
(2) Where the accused, a woman, was not insane at the time when she murdered her own children
out of desperate poverty, it was held that the capital sentence would not be appropriate and that a
sentence Of imprisonment for life would meet the ends of justice in this case. (1960) 1 .MadLJ
332 (DB).
Sec. 85-86 General Exceptions 169

35. Abnormality of mind of accused—Duty of Court.—(1) An accused, who is insane,

especially if he is undefended is naturally thrown on the mercy of the Court whose duty is then to offer•
him all reasonable assistance. The first thing is to place the prisoner suspected of insanity under
medical observation promptly so that when the case comes up for trial, there would be reliable medical
evidence of the stateof the mind of the accused immediately after the incident. AIR 1960 Ker 241.
(2) When in a trial before the Court of Sessions it is made to appear to the Court that the accused
facing the trial is of unsound mind and consequently incapable of making his defence, the court is
required to enquire into the question of insanity, if necessary by taking evidence, to satisfy itself
whether he is fit to make his defence. State Vs. Abdus Samad @ Samad All (Criminal) 54 DLR 590.
36. Procedure.—The procedure for trial of insane persons is laid down in Chapter XXXIV of the
CrPC.

Section 85
85. Act of a person incapable of judgment by reason of intoxication caused
against his will.—Nothing is an offence which is done by a person who, at the time
of doing it, is, by reason of intoxication incapable of knowing the nature of the act, or
that he is doing what is either wrong, or contrary to law : provided that the thing
which intoxicated him was administered to him without his knowledge or against his
Will..
Cases and Materials
1. Comments.—Voluntary drunkenness is no excuse for the commission of a crime. But if a man
is made drunk through fraud of others or through ignorance or through any other means causing
intoxication against his will, he is excused.
• 2. For case law see under section 86.

Section 86
86. Offence requiring a particular intent or knowledge committed by one
who is intoxicated.—In cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in a state of intoxication
shall be liable to be dealt with as if he had the same knowledge as he would have had if
he had not been intoxicated, unless the thing which intoxicated him was administered.
to him without his knowledge or against his will.
Cases and Materials Synopsis
1. Scope and applicability of sections 85 and 86. 7. Relevancy of drunkenness where intention is
2. Intoxication and insanity. a material factr in determining guilt of
- accused, -
3.- Involuntary intoxication.
8. Presumption that person intends the natural
4. "Liable to be dealt with....."—Meaning.
consequence of his act—Applicability of this
5. Offence requiring particular knowledge.
presumption to cases of voluntary
6. Intention and knowledge—Distinction in mode intoxication.
of treatment under S. 86.
170 Penal Code Sec. 8.6

9. Voluntary Intoxication incapacitating accused 12. Burden of proof

from forming particular intention which is 13. Sentence.
necessary to constitute offence.
14. Right of private defence against acts of
10.. Voluntary intoxication making accused person under intoxication.
excitable and violent.
15. Ganja and other narcotics—Effect.
11. Grave and sudden provocation. -
1. Scope and applicability of sections 85 and 86.—(1) This section attributes to a
drunkenman the knowledge of a sober man when judging of his action, unless the thing which
intoxicated him was administered to him without his knowledge or against him will.
(2) Sections 85 and 86 deal with cases in which an offence is committed by a person while he is in
a stage of intoxication. Where there is no evidence of intoxication, these sections do not apply. A IR.
1970 Pat 303.
(3) Under both the sections, the defence that the alleged criminal aôt was done under the influence
of intoxication will not be available if the intoxication was "voluntary" i. e., was the result of the
accused's own voluntary act. (1978) 45 CuLT 533.
2. Intoxication and insanity. —(l) Although intoxication may resemble insanity, it is not the
same as insanity and offences committed by a person while in a state of intoxication should be dealt
with under Ss. 85 and 86, and not under S. 84 A pp Cas 479.
(2) Where the incapacity to understand the nature of the act or have the particular knowledge or to
have the particular intent necessary to constitute the offence is the result of an inherent defect or
infirmity of the mind, S. 86 will have no application, but the case will come only under S. 84 A IR
1939 Mad 407.

3. Involuntary intoxication.—(l) The expressicln "without his knowledge" means that he is

ignorant of the fact that what is being administered to him is or contains or is mixed with an
intoxication. A IR 1960 MadhPra 242.

4. "Liable to be dealt with..."—Meaning.—(I) The words in S. 86 "is liable to be dealt

with ... had not been intoxicated" only mean that in the case of voluntary intoxication the accused is to
be presumed to have the same knowledge as if he had not been intoxicated. 1971 CrILJ 1497.
- 5. Offence requiring particular knowledge.—(l) In a case of culpable homicide not amountinl
to murder, if the accused was in a state of intoxication at the time of the alleged offence and the
intoxication was voluntary, he will be presumed under S. 86 to have known at the time of his act that
it was likely to cause death and will be liable to punishment under Paragraph II of S. 304. 41R 1955
Punj 13
6. Intention- and knowledge—Distinction in mode of treatment under Sec. 86.—(1) Section
86 makes a distinction between offences requiring a particular knowledge and those requiring a
particular ' intention. While under S. 86 presumption as to the accused at the time of commission of
offence can be raised thereis no provision in S. 86 for presuming intention. A IR 1942 Pat 420.
7. Relevancy of drunkenness where intention is a material factor in determining guilt of
accused.—(l) Where the intention with which an act is done is a material factor in determining the
criminality of the act, it is obvious that the questions whether the accused was intoxicated at the time
of the alleged offence and what was the degree andnature of the intoxication are relevant issues for
determination. A IR 1938 Rang 219.
Sec. 87' General Exceptions 171
8. Presumption that person intends )-the nature consequence of his act—Applicability of
this presumption to cases of voluntary intoxication.—(1) The presumption under S. 86 that tlie
voluntary drunkard who commits an offence has the same knowledge as he would have had if he had
not been intoxicated gives rise to a further presumption that he intended the ordinary and natural
consequence of his act. (1912) 13 CriLi 864 (FB) (UppBur).
9. Voluntary intoxication incapacitating accused from forming particular intention which
is necessary to constitute offence.—(1) Where the voluntary intoxication is not such as to make
'accused incapable of fonning the intention requisite to constitute the offence he will be liable for the
offence notwithstanding the intoxication. AIR 1956 SC 488.
10. Voluntary intoxication making accused excitable and violent.—(l) The presumption that
in spite of intoxication the accused intended the natural consequence of his act, cannot be rebutted by
merely showing that the intoxication had made him excitable and predisposed to violence. A IR 1957
A ll 667.
11. Grave and sudden provocation.—(1) In determining whether the accused acted under grave
and sudden provocation for the purpose, of Ss. 300 and 334. P.C., it may be considered whether the
accused was in a state of intoxication at that time and how far such intoxication might have contributed
to the fact of his having been provoked. (1904) 1 CriLJ 473.
12. Burden of proof.—(I) The onus of proof that by reason of intoxication the accused had
become incapable of having the particular knowledge or forming the particular intention necessary to
constitute the offence is on the accused. 1978 CuILR (Cri) 219.
13. Sentence.—(1) Although voluntary intoxication is no defence to a criminal charge, such
intoxication may be taken into consideration along with other facts and circumstances of the case in
determining the appropriate sentence to be passed. AIR 1953 Raj 40.
14. Right of private defence against acts of person under intoxication. —(1) The right of
private defence against attacks by persons in a state of intoxication is not in any way different from the
right against attacks by other person. AIR 1927 Rang 121,
15. Ganja and other narcotics—Effect.---(l) Hemp acts on the brain causing usually excitement
followed by narciotism. If the drug is taken in small doses the effect produced is slight, consisting
merely of some pleasurable stimulation of the higher centres. This in no way affects the individual's
appreciation of the consequences of his acts. In large doses hemp, like datura, causes a temporary
insanity associated with hallucinations under the influence of which a person may be violent even to
the extent to committing homicide. AIR 1939 Cal 244.

Section. 87
87. Act not intended, and not known to be likely to cause death, or grievous
hurt, done by consent.—Nothing, which is not intended to cause death, or grievous
hurt, and which is not known by the doer to be likely o cause death, or grievous hurt,
is an offence by reason of any harm which it may cause, or be intended by the doer to
cause, to any person, above eighteen years of age, who has given consent, whether.
express or implied, to suffer that harm ; or by reason of any harm which it may be
known by the doer to be likely to cause to any such person who has consented to
take the risk of that harm. .
172 Penal Code Sec. 88

Illustration
A and Z agree to fence with each other for amusement. This agreement implies the
consent of each to suffer any harm which, in the course of such fencing, may be caused
without foul play: and if A , while playing fairly, hurts Z ,A commits no offence.
Cases and Materials : Synopsis
1. Scope and applicability. 4. Consent.
2. Illustrative cases. 5. "Harm"--Meaning.
3. Death of persons caused with his consent— 6. Any person above eighteen years of age.
Effect.
1. Scope and applicability.—(l) The principle of this section is based on two simple
propositions: (a) that every person is the best judge of his own interest, and (b) that no man will
consent to what he thinks harmful to himself. Every man is free to inflict any suffering or damage he
chooses on his own person and property and if instead of doing this himself, he consents to its being
done by another, the doer commits no offence.
(2) In Order that this section may apply the accused must have acted without any intention of
causing death or causing any grievous hurt, or without knowing that his act was likely to cause death
or grievous hurt. (1878) 14 CoxCrC 226
2. Illustrative cases.—(I) Complainant who had made indecent assault on girl consentitig t
submit to decision of panchayat—Panchayat deciding to blacken complainant's face and beat hin with
shoe—Persons doing so in accordance with decision are not liable. AIR 195 7 A ll 500.
3. Death of person caused with his consent—Effect.----(1) Where the accused was not actuated
by any irtention of causing death or grievous injury, or with the knowledge that he is thereby likely to
cause death or grievous injury, the mere fact that by some mishap death may have resulted, will not
deprive the accused of his defence under this section where he has acted with the consent of the
deceased. AIR 1915 LowBur 101.
4. Consent—(l) Where the accused deceased were friends and engaged themselves in a friendly
wrestling match during which the accused's friend received, by accident, an injury on his skull and no
foul play was attributed to the accused, the accused will not be liable for any offence. AIR 1950 All 95
5. "Harm"—Meaning.--(l) A person who attends a cabaret dance in a hotel after buying a ticket
will be precluded from complaining that the cabaret show and acting therein amounted to an offence
under S. 294 (obscenity), even assuming that the causing of such annoyance would amount to the
causing of harm within the meaning of S. 87. (1975) 77 BomLR 218. -
6. Any person above eighteen years of age.—(1) This section only applies to cases where the
harm is caused to a person above the age of eighteen years with his consent. The consent of a person
below that age will not exempt the accused from liability. (1899) 12 CPLR (Cr) 11.

Section 88
88. Act not intended to cause death, done by consent in good faith for
person's benefit.—Nothing, which is not intended to cause death, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose benefit it is done in
good faith, and who has given a consent, whether express or implied, to suffer that
harm, or to take the risk of that harm.
Sec. 89 General Exceptions 173

Illustration

A , a surgeon, knowing that a particular operation is likely to cause the death of Z

who suffers under the painful complaint, but not intending to cause Zs death, and
intending, in good faith, Zs benefit, performs that operation on Z, with Zs consent. A
has committed no offence.
Cases and Materials Synopsis
I. Comments.—(I) Where a person is suffering from painful disease which cannot be cured except
by surgical operation the sufferer has the choice whether he will continue to suffer or to a chance of cure
by an operation and if he chooses to get it cured by an operation and gives his consent but
unfortunately, death results, the surgeon has committed no offence.
2. For case law see under section 89. -

Section 89
89.. Act done in' good faith for benefit of child or insane person by, or by
consent of, guardian.—Nothing, which is done in good faith for the benefit of a
person under twelve-. years of age, or of unsound mind, by, or by consent, either
express or implied, of, the guardian or other person having lawful charge of that
person, is an offence by reason of any harm which it may cause, or be intended by the
doer to cause, or be known by the doer to be likely to cause, to that person:
Provisos—Provided-
First.—That this exception shall not extend to the intentional causing of death, or
to the attempting to cause death;
Secondly.— That this exception shall not extend to the doing of anything which
the person doing it knows to be likely to cause death, for any purpose other than
the preventing of death or grievous hurt; or the curing of any grievous disease or
infirmity;
Thirdly. —That this exception shall not extend to the voluntary causing of grievous
hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of
preventing death or grievous hurt, or the curing of any grievous disease or infirmity;
Fourthly.— That this exception shall not extend to the abetment of any offence, to
the committing of which offence it would not extend.
Illustration
A , in good faith, for his child's benefit, without his child's consent, has his child cut
for the stone by a surgeon, knowing it to be likely that the operation will cause the child's
death, but not intending to cause the child's death. A is within the exception, inasmuch as
his object was the cure of the child.
Cases and Materials : Synopsis
I. Scope 5. "Consent"
2. "Harm"—Meaning of 6. "Good Faith".
3. "Benefit" 7. Corporal punishment of school boys.
4. "Nothing which is not intended to cause death 8. Barden
(Section 88). of proof.
174 Penal Code Sec. 89

1. Scope.—(l) This section empowers the guardian of an,infant under 12 years or an insane to
consent to the infliction of harm to the infant or the insane person, provided it is done in good faith
and is done for his benefit.
2. "Harm"—Meaning of—(I) The expression "harm" in S. 88 and S. 89 means only physical
injury .AIR 1966 SC 1773.
3. "Benefit"—(l) Harm done for the benefit of the person injured and with his consent will not
make the person causing the harm criminally liable. A IR 1951 A ll 500(501.).
•(2) Where the husband desires to have possession of his wife who has attained the age of puberty,
presumably for the purpose of having sexual connection with her the act is not one for her benefit and is
one which it is the policy of the law to prevent. It cannot, therefore, be said that he is entitled to his
minor wife away whether she desires it or not. A IR 1935 A ll 916
4. "Nothing which is intended to cause death" (Section 88)..—(1) The illustrations to this
section and-to Ss. 89 and 92 indicate that the Code uses the word "intention" in. the sense that a thing
is voluntarily done if it is done deliberately or purposely or in other words, is a willed, though not
necessarily a desired, result or a result which is the purpose of the deed. A IR 1970 Ker 98.
5. "Consent".—(I)Under S. 88 the consent of the person harmed is essential to make the act of
causing harm not an offence. Thus, where Devil-dancers attempted to cure a woman with the consent of
her husband but without her consent by branding her and death resulted from the injuries caused by the
treatment, it was held that the DevIl-dangers were guilty under Section 326, Penal Code,
notwithstanding the consent of the husband. A IR 1935 A ll 282.
6. "Good faith".—(I) In order to get the benefit of S. 86 or of S. 89 it must be proved that the
act charged as an offence was done by the accused with "due care and attention". A IR 1923 A ll 546
(2) Unnecessary cruelty in the treatment of a. mad person will negative "good faith" and
the accused who has practised such unnecessary cruelty will be criminally liable for his acts. A IR 1923
Al! 546.
(3) Where death is caused by the culpable negligence of the physician in administering a
dangerous drug, he will be liable criminally for his negligence. (1876) 10 Cox Cr C 486
(4) Where a person undertaking cure of a disease is guilty of gross negligence in attending to his
patient after he has applied a remedy or of gross rashness in the application of it and death ensures in
consequence, he will be criminally liable for the death. (1831) 172 ER 767.
(5) If a person takes upon himself to administer a dangerous medicine, or to perform a surgical
operation it is his duty to administer the medicine to perform the operation with proper care. (1869) 12
CoxCrC 534. . ..
(6) Mere error of judgment or mistake which cannot be said to have been caused by any want of
care or attention on the part of the physician or surgeOn will not be sufficient to make him guilty, even
if death has occurred. (1969) 12 CoxCrC 534. .
(7) Due care and attention, which are essential for good faith within the meaning of the Penal Code
and this section, imply that the, physician or surgeon, who undertakes to administer medicine or to
jerform a surgical operation. possesses a reasonably sufficient knowledge and experience of his
• business. AIR 1963 MadhPra 102. .
(8) An unsuccessful operation for cataract done in arecognised method of treatment will not make
the surgeon criminally liable, although it may have ended in the loss of sight of the patient, where

Sec. 0 General Exceptions 175

there has been no negligence or want, of care or the usual skill on the part of the surgeon. (1908) 7
CriLJ 306 (All).
(9)Where a person not having a reasonable amount of experience or knowledge takes upon himself
the responsibility of prescribing a dangerous drug as a medicine thus causing injury or death to the
patient, the pelson prescribing the medicine will be criminally liable. (4864) 176 ER 598.
(10)The reasonable diligence and care, which good faith connotes, in the context of this section,
is not merely care and caution at the moment when the act is done but also the learning and , the
experience the doer of the act should have acquired before he offers to treat another person medically or
surgically. A IR 1963 MadhPra 102.
7. Corporal punishment of school boys.—(l) Corporal punishment inflicted on a school boy a
by teachçr in good faith, in the interest of school discipline and without exceeding reasonable limits,
will be covered by these sections and the schoolmaster will not be criminally liable for his act in
inflicting the punishment. A IR 1965 Cal 32.
• 8. Burden of proof.—(1) Under S. 105 of the Evidence Act, 1872, the burden of proof is on the
accused to prove his defence under this section In discharging his burden accused should prove that
the patient on whom he operated knows the risk he was running in consenting to the operation by a
Kabiraj uneducated in the practice of surgery. (1887) ILR 14 Cal 566.

Section 90
90. Consent known to be given under fear or misconception.—A consent is
not such a consent as is intended by, any section of this Code, if the consent is given
by a person under fear of injury, or under a misconception of fact, and if the person.
doing the act knows, or has reason to believe, that the consent was given in
consequence ofsuch fear or misconception ; or
Consent of insane person.—if'the consent is given by a. person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent ; or .. . . . ' .
Consent of child.—unless the contrary appears from the context, if the consent
is given by a person who is under twelve years of age.
Cases and Materials : 'Synopsis
1. Scope and applicability of section. '. 6. 'Consent given under misconception of facts.
2. "Consent"— W hat constitutes. 7. Consent by idiot.
3. Act done without consent and act done against 8. Consent of child under 12 years of age.
will—Distinction. . . ,.9. ..... .. of consent. .
Evidence .nsent.
4. Consent and subm ission—Distinction.
10. Killing person at his request.
S. Consent and non-resistance— Distinction.
1. Scope and applicability' of section.—(1) Consent obtaiied by a false representation which
leads to .a misconception of facts will not be a valid consent. Mere submission by one who do not
know the nature of the act done cannot give consent. The consent of an insane woman is no consent in
the eye of law , ,nd a person' who subjects such a woman to sexual intercourse even though she
apparently consents to it cannot escape liability for an offence under section 376 of the Penal Code
176 Penal Code Sec. 90

Consent is an act of reason accompanied with deliberation, the mind weighing as in a balance, the
good and evil on each side:
(2)The meaning of "consent" for the purpose of Ss .378,415 and 375 and similar other Sections
in which the word "consent" may occur is to be determined in accordance with this section, so that the
definiiion in this section is applicable to the whole of the Code and not merely to Ss. 87 to 89.. 1975
MahLJ 660 (DB).
2. "Consent"—What constitutes.—(1) "Consent" under this section may be express or implied.
(1891) 1LR 18 Cal 484.
(2) Mere submission is not consent. (1872) 12 CoxCrC 180.
(3) Consenting to an offence is different from allowing the offence to be committed with a view to
have the offender 'trapped and punished'. (1801) 168 ER 555.
(4) "Consent" under this section is the act of a man in his character of a rajional and intelligent
being, not in that of an animal. It must proceed from the will, not when such will is acting without the
control of reason, as in idiocy or drunkenness, but the will sufficiently enlightened by the intellect to
make such consent the act of a rational being. (1884) 15 Cox CrC 579.
(5) The consent of the husband of a woman to'the infliction of injury on her for the exorcism of the
Devil supposed to dwell in her will not legalise the harm inflicted.-AIR 1935 All- 282 (283) = 36
CriLJ 346.
• (6) Mere consent to a surgical operation without realising the harm or risk of harm which the
operation involved is no "consent" within the meaning of the section. AIR 1915 Born 101.
3. Act done without consent and act done against will—distinction.—(1) An act done
without the consent of person is not necessarily one done against his will. But the converse is not
true and an act done against the will of a person must necessarily be regarded as done without his
consent. A IR 1933 Rang 98.
4. Consent and submission—Distinction.—(1) Mere submission does not amount to consent.
(1841) 178 ER 1026
5. Consent and non-resistance—Distinction.—(I) Mere non-resistance is not consent. (1877)
13 CoxCrC 388.
6. Consent given under misconception of facts.—(1) Where consent is given on a
misrepretation of facts, it must be regarded as a consent not given under misconception of facts and will
not be sufficient to afford a defence under the Penal Code in a criminal prosecution for the act professed
to be done with such consent. AIR 1963 Born 74.
(2) A consent obtained by fraud stands on the same footing as a consent given under a
misconception of facts and will be of no avail for the purpose of defence under the Penal Code. AIR
1914 Mad 49. .
(3) If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and
continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part
and not an act induced by misconception of fact—Section 90 P.C. cannot-be called in aid in such a
case to pardon the act of the girl and fasten criminal liability on the other. (1983) 2 Cal HN 290.
7. Consent by idiot.—(1) Consent by an idiot is no "consent" within the meaning of this
section. (1846) 2 CoxCrC 115. .
Sec. 91 General Exceptions 177

8. Consent of under child under 12 years of age.—(1) The mere fact that a girl under 12 is,
kidnapped does not ipso facto prove that she is kidnapped for the purpose of being compelled to marry
a person against her will within the meaning Of S. 366. A IR 1938 Rang 96
9. Evidence Of consent^ ( 1) Consent may be proved by circumstantial evidence. (1891) ILR 18
Cal 484 (TB).
(2) There is no deference between civil and criminal cases as to the degree of proof necessary to
establish, consent and even in a criminal case evidence, that will be sufficient to prove consent in a
civil, case, will be sufficient to prove consent. (1866) 6 SuIhW R (Cr) 57.
(3) Whether consent was given under a misconception of facts is a question of fact to be decided on
the evidence in each case. (1897-1901) 1 UPR 298. .
.10. Killing, person at his own request.--( I) Where the accused—á snake chamber—represented
that owing to his powers of charming even the bite of a poisonous snake would do no harm and a
person wasinduced by such representation to allow himself to be bitten by apoisonous snake and died
in consequence,: the snake-charmer will,be guilty of murder, not only of -culpable homicide not
amounting to murder, where the knew that the person who allowed himself to be bitten by snake did
so in consequence of the misconception of fact for which the snake charmer was responsible. (1869)
BengLR (A Cr) 25. ..
(2) The accused, a student, became extremely, depressed owing to his repeated failure in his
examination and wanted to put an end to his own life. His wife, who was equally upset, requested him-
that he should first kill her and then kill himself. In accordance with this fact, the husband killed his.
wife, but was arrested by the police before he could kill himself. It was held that the wife's consent .was .
not given under any misconception. of facts and the husband was, therefore, only guilty of culpable
homicide, not amounting to murder under S. 300 Exception 5. A IR 1.958 Pat 190. -

Section 91
91. Exclusion of acts which are offences independently of harm. .caused.-
The exceptions in sections 87, 88 and 89 do not extend to acts which, are Offences
independently of any harm which they may cause, or be intended to cause, or be
known to be likely to cause, to the person giving the consent, or on: whose behalf the.
consent is given.
- .
. Illustration .. . ' .
- Causing miscarriage (unless caused in good faith for the purpose of saving the life Of
the woman) is an offence independently of any harm which it may cause or be intended.
to cause to the woman. Therfore, it is not an offence "by reason of such harm" and the
consent of the woman or of her guardian to the causing of such miscarriage does not
justify the act.
Cases
1.. Scope,—(1) The general principle is that consent of the victim cannot legalise crime, except'
when it is otherwise provided by statute or the absence of consent for the act in question is a
constituent element of the offence as under S. 375 (rape) or S. 378.(.theft). (1934) 103 LJKB 683.
• (2) The word "harm" in this section rpeans physical injury. AIR 1966 SC 1773. -
178 . Penal Code Sec. 92

Section 92.
92. Act done in good faith'.for benefit of a person without consent.—Nothing
I
is an offence by reason of any harm which it may cause to a person for whose benefit
it is done in good faith, even without that person's consent, if the circumstances are
such that it is impossible for that person to signify consent, or if that person is
incapable of . giving consent, and has no guardian or other: person in lawful charge of
him from whom it is possible to obtain consent in time for the thing to be done with
benefit:
Provisos.—Provided-
First-That this exception shall not extend to the intentional causing of death, or
the attempting to cause death; .
Secondly.-That this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than the
preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly.-That this exception shall not extend to the voluntary causing of hurt, or
to the attempting to cause hurt, for any purpose other than the preventing of death or
hurt;
Fourthly.---T hat this exception shall not extend to the abetment of any offence, to
the committing of which offence it would not extend.
Illustrations
(a) Z is thrown from his horse, and is insensible. A , a surgeon, finds that Z requires to
be trepanned. A 'not intending Zs death but, in good faith for Zs benefit, performs the
trepan before Z recovers his power ofjudging for himself A has committed no offence.
(b) Z is carried off by a tiger.. A fires at the tiger knowing it to be likely that the shot
may kill Z, but not intending to kill Z, and in good faith intending Zs benefit. A 's ball
gives Z a mortal wound. A has committed no offence.
(C) A , a surgeon, sees, a child suffer an accident which is likely to prove fatal unless
an operation be immediately performed. There is no time to apply to the child's
guardian. A performs the operation in spite 'of the entreaties of the child, intending, in
good faith, the child's benefit. A has committed no offence.
(d) A is in a house, which is on fire, with Z a child. 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, the child's' benefit.
Here, even if the child is killed by the fall. A has committed no offence.
Explanation.—Mere. pecuniary benefit is not benefit within the meaning of
sections 88, 89 and 92. .
Cases .
1. Scope.—(1) Where a person submits to physical harm being inflicted on him in consideration
of a monetary benefit, it cannot be said that the harm inflicted for his benefit and the persons who inflict
the harm will, therefore, not be protected under this section. (1866) 5 SuthW R('Cr) (77) (DB).
Sec. 93-94 General Exceptions 179

(2) Where a woman is branded in spite of her objection for the alleged purpose of exercisinga
devil from her it cannot be said that, as she was possessed of a devil, she was incapable of giving 61
withholding her consent within the meaning of this section. A IR 1935 A ll 282.
(3) Both under this section and under Sections 88 and 89, the accused, in order to get the benefit
of the sections, must show that he acted in good faith. A IR 1923 A ll 543.

Section 93
93. Communication made in good faith.—No communication made in good
faith is an offence -by reason of any harm to the person to whom it is made, if it is
made for the benefit of that person.
Illustration
A , a surgeon, in good faith, communicates to a patléht 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.
Cases
1. Scope.—(1) The word. 'harm' in Section 93 means an injurious mental reactioh: A IR 1966
SC 1773.

Section 94
94. Act to which a person is compelled by threats.—Except murder, and
offences against the State punishable with death, nothing is an offence which is done
by a person who is compelled to do it by threats, which, at the time of doing it,
reasonably cause the apprehension that instant death to that person will otherwise be
the consequence Provided the person doing the act did not of his own accord, or
from i reasonable apprehension of harm to himself short of instant death, place
himself in the situation by which he became subject to such constraint.
Explanation 1.— A person who, of his own accord, or by reason of a threat of
being beaten, joins a gang of dacoits, knowing their character, is not entitled to the
benefit of this exception, on the ground of his having been compelled by his associates
to do anything that is an offence by .law.
Explanation 2.— A person seized by a gang of dacoits, and forced by threat of
instant death to do a thing which is an offence by law . ; for example, a smith compelled
to take his tools and to force the door of a house for the dacoits to enter and plunder
it, is entitled to the benefit of this exception.
Cases and Materials : Synopsis
I. Scope and applicability of 'section. 6. Explanation 2.
2. Offences to which Section applies. 7. Evidence.
3: Offences against Stale. 8. -Burden of proof
4 Abetment.
9. Sentence.
5. Act must be done under threat of instant death.
180 Penal Code Sec. 94

L Scope and applicability of section. —(1) This section Only applies to cases where a person
'sets up defence to a criminal prosecution against him and not to cases in which merely departmental
action is being taken against him, as under Section 60 of the Motor Vehicles Act, 1939, for
cancellat ion, or suspension of permit for plying transport buses. (1957)2 A ndhW R 296
(2) Order of superior authority was not sufficient to justify irregular payment, 45 DLR 243.
(3) In order to be an accomplice, a person must have mens rea. A person does not become an
accomplice by assisting another person to commit an offence unless voluntarily and knowingly giving
that assistance and knowing -that the offence is being or likely to be committed. This is so even if the
offence is one of strict liability. When he did not act voluntarily and acted under threat of instant death
he could not be said to have had any of the intentions necessary to make him liable for the offence of
murder and therefore his conduct in holding the legs of the deceased would not amount to the
commission of the .offence of murder. Under section 94 of the Penal Code a plea of compulsion by
threats which reasonably cause the apprehension of instant death is a good defence by a person charged
with any offence except murder and offences. against the State punishable with death. The word
, murder' in section 94 of the Penal Code cannot be held to include abetment of murder. 26 DLR 419.
2. Offences to whch section applies.—(1) Membership of an unlawful assembly is an offence
under the Penal Code S. 142 But, where the presence of the accused in an unlawful assembly is due to
a.thEeat of instant death he will not be liable for the offence of being a member of the unlawful
• assembly. AIR 1957A11 184.

3. Offences against State.—(l) This Section is not applicable to offences against the State
punishable with death. There are several offences against the State-which are not punishable with
death—e.g., offences under Ss. 121-A, 122, 123, 124, 124-A. In the case Of these offences this section
will apply and if they are committed under that of instant death the offender will not be liable for
punishment. But offences against the State under S. 121 are punishable with death. That section relates
to the waging of war against the Government, or an attempt to wage such war or the abetment of such,
war. In all these cases the offence is punishable with death, and the exemption from punishment under
S. 94 will have no application. A IR 1931 Rang 235.
4. Abetment.—(]) Actual participation in the commission of a crime must be distinguished from
abetment thereof. Hence, where the act of the accused amounts to participation in commission of
murder, he will not be entitled to protection under this section even though such participation may be
the result of compulsion by a threat of instant death. AIR 1964 Orissa 144.
(2) Although abetment of 'murder is treated on a different footing from murder and is regarded as
'within the purview' of protection of this s'éction when such abetment takes place under threat of
compulsion of insane death the same principle is not applicable to the offence of waging war against the
Government under S. 121. The reason is that under that section, not only the waging of war against
the Government, but also the abetment of the waging of such war and the attempt to wage such war are
punishable with death' and under this section .all offences against the State, which are punishable with
death, are excluded from the purview of the protection conferred by it in regard to offences committed
under threat of instant death. AIR 1946 Nag 173.
- (.3) Mens rea is necessary to constitute an offence in the case of an accomplice. Anything done
unäer threat of instant death is not an offence. Stare Vs. Makbul Hossain 26 DLR 419.
5. Act must be done under threat of instant death.--41) Where the accused has voluntarily
placed himself in the power of another person, who compels him by threat of death to commit an
offence, the accused will not be entitled to the benefit of this section.. AIR 1933 Rang 204.
General Exceptions 1S
Sec. 95
(2) Where one policeman abets another in the torturing of a person for extractiiig a confession, he
will be guilty and liable to punishment as an abettor for an offence under S. 330, unless he can show
that he was compelled., against his will under threat'of instant death, to abet the commission, 'oF the
torture. (1896) ILR 20 Born 394.
(3) An allegation of coercion by the police into making false statements is not covered by this
section, as there is no threat of instant death in such a case. ('1868 10 3uthW R (Cr) 48.
(4) The offence of falsification of accounts committed under the orders of a superior officer cannot be
excused under this section, as there is no question of the offence having been committed .under threat of
instant death. A IR 1951 Mad894. .. .
(5) Anything done under coercion or duress or threat .of certain death is not an offence when it is
shown that the accused had to do the act complained Of under duress, coercion and thereat of life. He
cannot be said to have intentionally aided an act for the consequence of which he is to be held liable.
State Vs. Makbul Hóssain 26 DLR 419.
(6) Even order of the superior authority, in the absence of threat of instant death, was not sufficient
to justify the irregular payment for which the accused was prosecuted. AMA W ajédul Islam Vs. State 45
•..
DLR 243. ' .. . .. . .
6 Explanation-41) It is a question of fact depending on the circumstance and evidence in each
case whether a person was forced by threat of instant death by i gang of dacoitsto commit an offOne
within the meaning of Explanation 2 Where there is no proof that a person was so forced to join, a
gang of robbers or dacoits but was involved in a crime committed by such gang, the Explanation 2
will not apply and he will be liable for the offence notwithstanding his allegation of his having been
forced to join in the crime on threat. of instant death. (1904) / CrIL.1282. .
7. Evidence.—(1) The fact that the act charged as an offence was done of instant death,maybe
inferred from the circumstances of a case, even though there may be no definite al4egatio.n by the
accused himself in that regard.AIR 1957 All 184. .. .
8. Burden of proof.--(.l) Under S. 105 of the Evidence Act, 1872, the burden of proving that the
accused was compelled under threat of instant death to commit the offence and hence was not .liableto
punishment by force of this section, is on the accused. But the accused is entitled to the benefit Of
doubt, if the evidence in the case realises a doubt. AIR 1925 All 315..
9. Sentence.—(1) Where the offence is committed under the influence of some threat of injury, but
the threat falls short of an instant death, the case will not come under this section. But, at the same
time the fact may be taken into consideration in mitigation of the punishment. A IR 1946 , Nag
173 (DB). . . . -. .

Section 95
95. Act causing slight harm.—Nothing is an offence by reason that it causes, or
that it is intended to cause or that it is known to be likely to cause, any harm, if that
harm is so slight that no person of ordinary sense and temper would complain of such
harm. .
Cases and Materials Synopsis
I.. Scope, object and applicability of section. 4. Vulgar abuse.
1 Trifling value of properly involved in offence. 5. Sentence.
3. "Harm" 6. Offences under other , laws.
182 Penal Code Sec. 95

1. Scope, object and applicability of section.—(1) The law does not care about trifles on the
basis of this section. This section is intended to exempt from criminality offences which from thóir.
triviality do not deserve the name.of crime.
(2) One of the first principles of law is deminimise non curate lex (The law does not concern
itself with trifles. This has found expression in S. 95 P.C. A IR 1977 SC 2432. (Prbsécution should
not lodge a complaint where it is simply a case of exchanging abuse in a public street).
(3) Whether an act which amounts to an offence is trivial would depend upon the nature of the
injury, the position of the parties, the relation between them, the situation in which they are placed
the knowledge or intention with which the offending act is done, and other related circumstances. It
cannot be judged solely by the measure of physical or other injury the act causes. AIR 1966 SC 1773.
(4) This section will only apply where the act alleged against the accused would be an offence but
for this section and where such act will not be an offence even independently of this section, there is no
question of applying this section. (1902) 29 Cal 489 (DB).
(5) Trivial • amount alleged as paid as gratification—Court may decline to presume it as such. It
was contended on behalf of the prosecution that since the accused admitted the acceptance of Rs. 3
though denied it was oif account of illegal gratification, it was immaterial whether the prosecution had
succeeded in establishing that it was paid by way of illegal gratification or not, The Court may decline
to draw such presumption if the gratification is, in its opinion, so trivial that no inference of corruption
may fairly be drawn from the same. Where the amount of the alleged gratification was only Rs. 3 the
amount was such a trivial one that it was hardly likely to have been accepted by the accused as illegal
jatification. 8 DLR 562.
2. Trifling value of property involved in offence.—(l) The circumstances of a case may be
such as to attract the application of this section with the result that the court will be led to hold that no
offence has been committed. 1978 KerLT 441.
3. Harm.__( I) The section applies not only to acts which are accidental but also to deliberate acts
which cause harm or are intended to cause harm or known to be likely to cause harm. A IR 1966
SC 1773.
(2) Dragging by hair in an aggressive manner and fisting in the course of attack are not trivial acts
but constitute the offence of causing hurt. The Magistrate is not justified in ignoring the acts by
holding that dragging by hair and fisting was not uncommon amongst the women in'the particular
class and status to which the accused belonged. AIR 1967 And/i Pra 208.
(3) Accused prevented from crossing barrier raised to prevent entry of uninoculated persons into
mela area—Accused pushed aside complainant in charge of barrier and crossed it after lifting it
himself—Sight harm to complainant—Section 95 applied. 1965 A/IWR (HC) 69.
4. Vulgar abuse.-..-(I) If the words used are in and cause provocation, the offence under S.
504 would be constituted if the requisite intention or knowledge under the section is proved by the
/ circumstances of the case. AIR 1955 Assam 211.
(2) Advocate uttering insulting words against witness in cross-examination—Court stopping
further cross-examination—Enmity between advocate and witness—Held, case was not covered by
Sec. 95 but advocate could be validly convicted under S. 504. AIR 1964 Mys 285.
5. Sentence.-(1) Under this section, the effect of the provision is that the act charged as an offence
is not an offence at all and if the Court considers that the section applies, the accused should be
Sec. 96 General Exceptions 183

acquitted. But even where the accused is convicted, the relatively trifling flature of the offence may be
taken into consideration while awarding the sentence. 1891 Born U CrC 564.
6. Offences under other laws.—(l) The provisions of S. 161, P.C. read with S. ' 95 cannot be
applied in a case where a railway servant has demanded and accepted a bakshish from a passenger.
This is because the Railway Establishment Code itself prohibits the acceptance of any 'gifts', gratuity
or reward and it is immaterial whether it was given voluntarily or not by the passenger, and any
contravention of the disciplinary rules prescribing the code of conduct of railway servants must
necessarily amount to misconduct. A IR 1964 Orissa 263 (254).
(2) Even where the offence is of a very trivial nature, where a prosecution has been started and
judicial proceedings have been commenced, the law must take its own course, till the case ends in a
conviction or acquittal unless there is a provision for compromise and the case is compromised in
accordance with such provision. The effect of such composition, if any, will depend in the provisions
of the particular law applicable. AIR 1967 SC 895.
, .
(3) The procession of an empty cartridge case, though it is a part of ammunition • uude.r the Arms
Act, would be ignored under S. 95, Penal Code, if it is, not suspected that the, cartridge, would be
reloaded and used as ammunition. A IR 1936 A ll 392.

Of the Right of Private Defence

Section 96
96. Things done in private defence.—Nothing ig an offence which is done in the
exercise Of the right of private defence. . . . .
-Cases and Materials Synopsis
1. Scope.' -, .. raised.
- 2. Basis of the right of private defence. 10. No right of private, defence against lawful
3. Burden of proof acts.
4. Standard of proof necessary. 11. Relistance to an illegal search or arrest or
5.- Burden of proof how may be discharged. - seizure of properly.
6. Injuries on the accused—Presumption. 12. Right of private defence if available to
aggressor. .
7. Plea of private defence.
13. Trespass and right of private defence.'
8. A ccused denying act charged, if can plead
private defence In the alternative. 14. "Free fight'
9. Court's duty where plea of private defence is 15. Uhlawful assembly and private defence.

1. Scope.—(1) The right of private defence of person and property is recognised all free,i n,
civilised and democratic societies within certain reasonable limits. Those limits are dictated by two
considerations: (a) that the same right is claimed by all other members of the society, and (b) that it is
the State which. .generally undertakes the responsibility for maintenance of law and other. The citizens,
as a general rule, are neither expected to run away for safety when faced, with grave and imminent
danger to their person or property as a result of unlawful aggression, nor are they expected, by use of
force, to right the wrongs done to them to punish the wrongdoer for commission of the offence. The:
right of private defence serves as a social purpose and there is nothing more degrading to the human.
spirit than to run away in the face of peril. But this right is basically preventive and not puhitive. It is
184 . Penal Code Sec. 96

in this background that the provisions of sections 96 to 106 Penal Code which deal with the right of
private defence have to be construed. According to section 96, nothing is an offence which is done in;
the exercise of the right of private defence and under section 97 subject .to the restrictions contained- in
section 99 every person has right to defend: (a) his own body and the body of any other person against
any offence affecting the human body, and (b) the property, whether movable or immovable, of himself
or any other person against any act which is an offence falling under the definition of theft, robbery,
dacoity, mischief or criminal trespass or which is .an attempt to commit these offences. The . right of
private defence according to section 99 does not extend to an act which does not reasonably cause the
apprehension of death or of grievous hurt, or done or'attempted to be done by a public servant acting in
good faith, etc. and there is also no right of private defence in cases in which there is time to have
recourse to the protection of public authorities nor does it extend to the inflicting of more harm than is
necessary to inflict for the purpose of defence Section 100 lays down the circumstances in which the
right of private defence of one's body extends to the voluntary causing of death or of any other harm to
the assailants, They are: (i) if the assault which Occasions the exercise Of the right reasonably causes the
apprehension that death or grievous hurt would otherwise be the consequences thereof and (ii) if such
assault: is inspired by an intention to commit, rape or to gratify unnatural lust or to kidnap or abduct or
to wrongfully confine a person under circumstances which may reasonably cause apprehension. that the
victim would be unable to have recourse to public authorities for his release. In case of less serious
offences his. right extends to causing any harm otJaer then death. The right of private defence to the
body commences as soon as reasonable apprehension of danger to the body arises form an attempt or
threat to commit the offence though the offence may not have been committed and it continues as long
is the apprehension of danger to the body continues. The right of private, defence of prOperty under
section 103 extends, subject to section 99, to voluntary causing of 'death or of any other harm to the
Wrongdoer if the offence which occasions the exercise of the right.is of robbery, house breaking by
night, mischief by fire or any building, etc. if such offence is theft, mischief or house trespass insuch
circumstances as may reasonably cause apprehension that death or grievous hurt will be the
consequence, if the right of private defence is not exercised.-'This right commences whn.reasonable
-"apprehension of danger to the property commences and its duration as prescribed in section 105 in
case of defence against criminal trespass or mischief, continues as long as the offender continues in the
commission of sch offences. Section 106 extends the right of private defence against deadly assault
even when there is risk of harm to innocent person (1970 ct-Li 1004....
(2) The right of private defence is based on the principle that it is the first duty of man to
help himself. The right of private defence is found on two cardinal principles: (a) Everyone has the
right to defend one's own body and property, as also another's body and property. The law does not
require him 'to be cowardly: (b) This right cannot be used as a presence ' for justifying aggression for
causing harm to another person nor for inflicting more harm than is necessary to inflict for the purpose
of defence. Law allows resort to repel force for warding .off an injury but not for taking revenge. The
right of private defence is not available to one who resorts to retaliation, for any past injury but to one
who is -suddenly confronted with the immediate necessity of averting an impending danger not of his
creation. In a . word, the right is essentially of defence and not of retribution. In criminal ca-se where
right of private defence is pleaded by the accused persons that it is not necessary that they must prove
beyond the reasonable doubts the existence of the circumstances on which the right is founded. ft
Would be sufficient in the case if the. accused persons from the evidence on record merely make out a
prima facie case and if from the evidence it app'ears probable that the defence version is true, they are,
Sec. 96 General Exceptions 185

entitled to a decision in their favour though they have not proved the truth of their version beyond
reasonable doubt. It is not necessary in such a case for the accused persons to lead evidence about the
right of self-defence and of property if the evidence on record and circumstances themselves show or
prove that plea of right of private defence need not be specially pleaded. It can be alternatively, taken
with the plea of a alibi also.
(3) Right of private defence of property—This right extends to the causing of any hurt except death
of the aggressor. Siddique Munshi Vs. State (1992) 44 DLR (AD) 169.
(4) The right of private defence is a legal right which one can exercise for. the defence of person and
property. But right is-to be exercised under certain restrictions or limitations. The said-right in no case
extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The
accused intended to cause such bodily injury as was likely to cause death. Sentence of 7 years R.I. not
at all excessive u/s 304 part 1. Antulya Kumar Biswas.. & others Vs. The State. BSCD, Vol 1, P 293.
(5) While the first revolver shot in exercise of right of private defence the second shot immediately
thereafter must be held as exceeding the right of private defence . Rahman Gui Vs. The State 23 DLR
(Pesh) 12.
(6) Right of private defence, when, cannot be claimed. The convict appellant's case was that the
deceased armed with a rifle was proceeding towards him, he as a precaution took position behind a
morcha and warned the deceased not to proceed towards him but in spite of that the deceased continued
proceeding towards him with dangerous intention. The appellant fearing that he would be killed shot
at the deceased to protect his own life and killed him. Right of self-defence as herein asserted cannot be
claimed. The place wherefrom the deceased was coming towards the appellant-convict and the place at
which the appellant took his position and fired short at the deceased is 120 paces. The appellant in the
circumstances could avert the danger of apprehension to his life. If the-act done in exercise of right of
private defence itself amounts to a gross excess of what could be done in the- exercise of that right a plea
of private defence is not available. Gulabat Khan Vs. The State 23 DLR (Pes,h) 7.
(7) Plea of self-defence is not to be discarded on the ground that it is not proved or it is false or
belated. If the plea of self-defence gets reasonable support from the prosecution evidence it shall not be
refused to the appellant. Gulabat Khan Vs. The State, (1971) 23 DLR (Pesh).
(8) The mere fact that acertain theory was not put forward at the time when evidence was recorded
does not prevent a Court from accepting it but before the court accepts a theory which has no evidence
to support it, there must be strong circumstantial evidence which makes it very probable. Firoz Vs.
State (1956) 8 DLR (W P) 128.
(9) Where an owner of cattle uses force to get his cattle, which are wrongfully taken to a pound,
released, he is not . guilty of.any offence as he has a right to protect his cattle in the exercise of the , right
of private defence. Qadir Baksh Vs. Crown (1954) 6 DLR (W P) 179:
(10) Where the seizure of cattle belonging to the accused by the deceased, was illegal and
amounted to theft the accused being competent to get his cattle released by use of force, was justified
to exercise the right of private defence to protect his person.. Qadir Baksh Vs. Crown (1954) 6 DLR
(WP) 179. . . .
- . (Il) 8 persons were on trial for offences under secs. 147 and 148 P. Code, who pleaded exercise Of
the right of private defence—Charge to the injury is defective, if it directs the jury that the accused are
guilty if they exceeded that right., without any quaIification.Naimuddin Vs.. Crown (1954) 6 DLR 120.
186 Penal Code Sec. 96

• (12) Right of self-defence--On a view of the fact as found in this case the High Court was right in
allowing to the respondent the right of self-defence by use of a firearm to the point of killing a person
when he was set upon by a body of persons who started to assault him on suspicion that he was a
thief. State Vs. Md. A kbar (1966) 18 DLR (SC) 299.
(13) .The finding being that either the cattle had caused damage to the ciop or were caught before
they could cause such damage leads to the logical inference that the right to seize the cattle under
section 10 of the Cattle Trespass Act aeros in favour of the accused. .Having seized the cattle they were
taking them to the cattle pound. If in doing so they were resisted and attacked, they had the right of
self-defence. Nàru Vs. State (1966) 18 DLR (W P) 31.
(14) Right of private defence cannot be pleaded by those who believing they will be attacked, and
when the primary object of both the parties is to fight and the vindication of their right to property is
mere pretext—No question of self-defence can, arise. JamshedA li Vs. Crown (1953) 5 DLR 363.
(15) This section applies to cases where there is excess of jurisdiction as distinct from a complete
absence of jurisdiction. It applies where an official does wrongly what he might have done rightly but
not to cases where the act could not possibly have been done rightly. Crown Vs. Fateh Md. (1951) 3
DLR 205.
(16) Where a Naib Tahsjlder issued warrant of arrest against the accused in a bona fide mistake
that revenue was due from them, while it was not; it might be a case of exceeding the jurisdiction and
the accused had no right of private defence. Crown Vs. Fateh Md. (1951) 3 DLR 205.
(17) Exceeding, deliberately, right of private defence of property—Accused responsible for harm or
injury caused. PLD (1955) (Lah) 575.
(18) Private defence of property against a corporation—official debuted to remove encroachment on
the road—Not available unless such act amounts to mischief. 9 PLD (Loh) 451.
(19) Accused actuated by desire to punish deceased and not for purpose of defence—Exceeding
right of private defence. PLD (1954) (Lahore) 170.
(20) Use of force in exercise of the right of private defence to the property must not be
disproportionate to the act which calls for exercise of such a right—Killing atrespasser in the right of
private defence cannot be justified when no apprehension of injury to life is imminent from the
trespasser. Sardarai Vs. The State, (1970) 22 DLR (SC) 129.
(21) The possession for exercising right of private defence must be a settled possession, a peaceful
possession for a pretty long time without any resistance. Sarwar Kamal & others Vs. State 48 DLR 61.
(22) As there is no evidence of any aggression from the side of victim and even if there was any
thrEatening behaviour from the victim, the 'person threatened could have used only that much of force'
which was proportionate to repeat the attract; In the instant case it was a one-sided affair for which the
contention that the action of the convict-appellant was in exercise of the right of private defence either of
his body or property or the body and the property of others cannot be accepted. AKM Ataur Rahman
Khan A lias Badal and another Vs. State (Criminal) 5 BLC 508.
(23) The right of private defence of the body extends to the voluntary causing of death if the offence
which occasions the exercise of the right is an assault which may reasonably caue the apprehension of
either death or grievous hurt. Khandoker Saful Islam Vs. State 50 DLR (A D) 126.
• (24) An act which would be an offence is declared by this section not to be an offence if it is done
inexercise of the right of private defence. AIR 1974 SC 1570.
Sec. 96 General Exceptions 187.

(25) The provisions of Ss. 96 to 106 are complete in themselves and it is not permissibletó
interpret them on the principles governing the right of private defence under the common law of
England; the words used in the sections themselves must be looked to for finding the limits and extent
of the right. AIR 1959 Pat 22.
(26)The subject-matter of the right of private defence covers: (1) the body of the person exercising
the right and the body of any other person; (2) the property of the person exercising the right or of any•.
other person against certain specific offences referred to in S. 97. 1979 CriLJ 502.
(27) The right of private defence applies not only where the accused is charged individually but
also where the charge is laid against him as a member of a group which has together committed an
• offence so as to make each member of the group liable, under S. 34 as if alone committed the offence.
1977 CriLJ (NOC) 244 (DB). -
(28) Right of private defence of property. An accused of murder must prove that the property in
question is his property. 43 DLR 269.
(29) Right of private defence can be pleaded if no. 44 DLR 431.
(30) The onus of approving right of private defence lies on accused claiming or exercising such
right and possession must be settled possession. 48 DLR 61.
(31) Plea of self defence. Defence evidence was contradicting statement of accused recorded by him.
under section 342 CrPC. Plea of self defence taken by accused thus was not, satisfactorily established.
Grave and sudden provocation—Proof—Accused stated that he killed deceased on grave and sudden
provocation as at time of occurrence he saw deceased and his (accused) sister in compromising position
in a cotton'field and he lost his control and gave injuries to accused. Occurrence having taken place in
light of the day in cotton field of one foot height there was no reasonable probability of defence version
that deceased was seen in compromising position with his sister in the field. No injury on person of
sister of accused having been found there was no circumstantial guarantee or judicial certainty of defence
version being true. Sentence—Accused suspected deceased of having illicit relations with his sister—
Family honour being involved in the case, there were mitigating circumstances in favour of accused for
lesser penalty. Sentence of death thus was altered to imprisonment for life (Ref 8 DLR W P 128). 1989
PCrLJ 750. . .
(32) Right of private defence—In exercise thereof the accused shot a person to death (Section 300,
Exception 11 read with section 96 of the Penal Code). While the first revolver shot is in exercise of
right of private, defence the second shot immediately thereafter must he held as exceeding the right of
private defence. Held: That having regard to the evidence on record it is clear that the appellant fired
the shots in self defence but he exceeded theright of self defence in firing twice at the deceased. The
first effective revolver shot at the deceased would have been sufficient to disable him from pursuing his
attack on the appellant. The offence committed by the appellant, therefore, falls under section 304 (Part
1) of the Penal Code. Jail appeal timebarred may be converted into revision. 23 DLR W P 12.
(33) Right of private defence—The case which the accused sought to set up was thus one of self
defence, and there being no other evidence except his own statement in support. It became the duty of
the Trial Court as laid down by the Federal Court in case of Safdar Ali [5 DLR (SC) 107] to place the
allegations for the prosecution and those for defence in juxtaposition against the background of the
prpve.d facts and circumstances and thereafter to consider whether the case set up by the accused was not
a reasonable one. If it should be found to be reasonably possible, then the effect of creating a reasonable'
doubt regarding truth of the prosecution case could not be without effect upon the finding as to the
guilty of the accused. 16 DLR (SC) 33.
188 Penal Code sec. 96

(34) Right of private defenoe, not raised—Evidence of record can be relied on for the purpose to
wFàt extent. In case where the accused persons themselves do not specifically plead self defence, the
plea can only be allowed on the basis of very clear evidence available on the record, which would go at
least to the extent of showing that it was reasonably possible that the accused persons have acted in self
defence. In the absence of proof of aggression by the opposite party the plea of self defence is not
available and ordinarily cannot be thought to be established by mere existenceof slight injury on the
persons of accused. 15 DLR (SC) 107.
(35) Right of private defence—Bare possibility of the accused's acting in exercise of the right of
private defence, not enough to record a favourable verdict in his favour. By hinting at a bare possibility
of accused's acting in exercise of right of private defence a Court would not be justified in discarding
the evidence of the eye-witnesses examined by the prosecution. It was not sufficient for the accused to
suggest a mere hypothesis or a remote possibility in order to rebut the prosecution case. In order to
gain a favourable verdict it was necessary for the accused persons to set up facts upon which they relied
as exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case. Right of
private defence—Evidence and circumstances where established the fact that each party came armed to
fight with the other—rrn question of right of private defence arises. It is reasonable to infer that inferring
upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter.
Hence in the circumstances such as those of the present case no question of right of private defence
would arise and the common object stated in the charge having failed, each person would be held
responsible for his individual acts. 14 DLR (SC) 316
2. Basis of the right of private defence.—(1) The right of private defence is a highly prized and
valuable right granted to the citizen to protect himself and his property by effective resistance against
unlawful aggression. A IR 1976 SC 937.
(2) No man isexpécted, when he is attacked by criminals, to flee away. A IR 1963 SC 612.
(3) No one is expected to exhaust all other available steps before exercising his right of private
defence. A IR 1959 Pat 22.
(4) It is a necessary corollary to the doctrine of private defence that the violence which the citizen
defending himself or his property is entitled to use must not be unduly disproportionate to the injury
which is to be averted or which is reasonably apprehended and should not exceed its legitimate
purpose. The exercise of right of private defence must never be vindictive or malicious. A IR 1968
SC 612.
(5) Law does not require a person whose property is forcibly tried to be occupied by tres passers to
run away and seek the protection of the authorities. The right of private defence serves a social purpose
and that right should be liberally construed. Such a right not only will be a restraining influence on
bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to
the hUman spirit than to run away in the face of peril. A IR 1968 SC 702.
(6) The right of private defence is essentially a defensive right circumscribed by the statute
available only when the circumstances clearly justify it. It should not be allowed to be pleaded or
availed of as a pretext for vindictive, aggressive or retributive purpose. The right is available against an
offence and, therefore, where an act is done in exercise of the right of private defence, such act cannot
give rise to any right of private defence in favour of the aggressor in return. This would be so even if
the person exercising the right of private defence has the better of his aggressor provided he does not
exceed his right. A IR 1971 SC 1491.
Sec. 96 General Exceptions 189

3. Burden of proof.—(1) Where an accused person claims that his act which would otherwise be
an:offence is not offence as it was done in exercise of the right of private defene, the burden is on him
to prove the same. AIR 1979 SC 577.
(2) After separating the chaff of falsehood from the gains of truth it is found that the prosecution has
failed to prove their case against Wali and Khalil and the convict Sy .ed exercised his right of private
defence for which he is entitled to get the benefit of section 96 of the Penal Code and they are found not
guilty of the charge of murder. Syedur Rahman and 2 others Vs State (Criminal) 3 J3LC 299.
(3) The onus of proving right of private defence lies on the accused claiming exercise of such right.
Sarwar Kamal and others Vs. State 48 DLR 61.
(4) The accused must prove, as facts, the existence of the circumstances which gave rise to the
right to private defence claimed by him. If he .has merely acted under mistaken notions as to the
existence of such a right, he will not be entitled to the benefit of the exception. AIR 1976 Orissa 79.
(5) It is not necessary that the accused should have specifically pleaded, before the trial began, that
he acted in the exercise of the right of private defence. Even in the absence of such plea he is not
precluded from making out such a defence on the basis of the prosecution evidence. AIR 1979 SC 577.
(6) The accused may-or may not take the plea of private defence explicitly. So also he may or may.
not adduce evidence in support of it. But he can succeed if in his plea if he is able to show that he
acted in self defence. 1982 Raj Cri C 220. . .
(7) It is open to the Court to consider a plea as to exercise of right of private defence if the same
arises from the materials on the record. AIR 1979 SC 577.
(8)No questions of the right of private defence would arise unless,and until the prosecution has
proved what would but for the exercise of the right be an offence. AIR 1980.SC 660.
(9) Where the evidence let in by the accused for proving his rigjIt of self-defence though not
sufficient and satisfactory to establish the right is sufficient, taken with the prosecution evidence to raise
a doubt as to his guilt, he must be given the benefit of it. AIR 1941 All 402.
(10) The burden of proving the existence of circumstances bringing the case within the exception
lies on the accused and the Court shall presume the absence of such circumstances, the accused will
have to rebut the presumption that such circumstances did not exist, by placing material before the
Court . sufficient to make it consider the existence of the said circumstances so probable that a prudent
man would act upon them. The accused has to satisfy the standard of a 'prudent man'. The evidence
may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a
reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the
offence itself. AIR 1964 SC 1563.
4. Standard of proof necessary.—(1) The standard of proof required to discharge the burden of
proof resting on an accused person who pleads a right of private defence is not as strict and heavy as the
standard of proof necessary for the prosecution to establish that the accused committed the offence. AIR
1979 SC 577.
(2) The accused must at least make out a case out of which a plea of the right of private defence
might arise. A IR 1952 Cal 621.
(3) The accused must set forth, fairly and squarely, the exact circumstance in which he acted to
show that he was justified in doing what he did. A IR 1955 NUC (Pepsu) 3280. . 0

(4) Though the circumstances of a case may not be such as to sustain the plea of private defence
so as to entitle the accused to acquittal, they may legitimately be taken into account in determining the
sentence to be passed against the accused. AIR 1974 SC 1258.
190 Penal Code Sec. 96,
(5) In the case of self defence the accused acts against aggression while the plea of insanity is taken
y a person who is alleged be the aggressor. Hence the question whether the burden of proof is
ischarged or not would call for a closer and stricter seruiny in the latter case than in the former. 183
Cr1LJ 1675. .
5. Burden of proof how may be discharged.—(1) Even without his adducing evidence, the
accused can show from the prosecution evidence itself and from the materials on record that his act was
done in the exercise of his right of private defence. AIR 1968 SC 702.
• (2) Though the burden must be discharged either by adducing evidence or by relying on
circumstances appearing in the prosecution evidence, it is clear that in either case, evidence there must
be, and a plea of private defence cannot be founded on mere surmise or conjecture or the mere legal
ingenuity of the pleaders. AIR 1927 Cal 324.
• (3) There are two important principles in every criminal trial which weigh heavily' in favour of an
accused person first that the accused is entitled to the benefit of every reasonable doubt and secondly
that where an accused person offers a reasonable explanation of his conduct even though he cannot
prove his assertions, they should ordinarily be accused unless the circumstances indicate that they are
false. 1963 (1) CriLJ 700 (DB) (Orissa).

6. Injuries on the accused—Presumption.--(1) The question of accrual of the right of private
defence to a person does not depend upon an injury being caused to him. AIR 1966 All 244.
(2) Where the accused have sustained injuries the burden-is not necessarily shifted to the
prosecution to prove that it was the accused's party which was the aggressor and that the injuries on
the person of the accused were caused by the complainant's party purely in self-defence. AIR 1974
SC 1550.
(3) The reasonable inference which can be drawn by the failure of the prosecution witnesses to
explain the injuries on the bodies of the members of the accused's party is that, they had falsely
suppressed the injuries on the accused which were definitely received by them at the time of
the occurrence. On that account the Court will subject their evidence to a careful scrutiny regarding
the participation of the injured persons in the occurrence. But the Court will not reject their
evidence, relating to the genesis of the occurrence and the substratum of the prosecution story. 1979
CriLJ 1007 (A ll).
(4) Accused whose wounds were minor had fired gun shots resulting in death—Injuries not
explained by prosecution—Accused held to have exceeded right of private defence. 1983 Raj Cr1
Cczs 380. .
7. Plea of private defence.—(1) An omission to set up the plea in the report to the Police will
not preclude him from pleading it at the trial. A IR 1957 Mad/i Pra 153.
(2) The absence of defence evidence showing that the accused acted in the right of private defence is
by itself no ground for discharging the plea of right of private defence because if such a plea receives
support from any evidence direct or circumstance, on the record, it is not necessary to have defence
evidence i'n support of it. Firoz Vs. State (1956) 8 DLR (W P) 128.
• (3) Evidence on record can be relied on for the purpose—In the absence of proof of aggression by
the opposite party, the plea of self defence is not available, and ordinarily cannot be thought to be
established by the mere existence of slight injuries on the persons of the accused. All Zaman Vs. State
(1963) 15 DLR (SC) 107.
Sec. 96 General Exceptions 191
(4) It is true that an accused person is not bound to place all his cards on the table at the first.
opportunity that arises for such a thing to be done but it is equally .true that if an accused person does
not take a plea of the right of self-defence at the earliest opportunity, the plea may be rejected by The
Court on the ground that it was not taken earlier. Firoz Vs. State (1956) 8 DLR (W P) 128.
(5) When the accused's plea of self-defence is inconsistent with the facts and circumstaices of the
case it must be rejected. 1972 CriLi 390 (Mad).
8. Accused denying act charged, if can plead private defence in the alternative.—(]) When
the accused denies having committed the act alleged the plea of private defence, if raised an can only be
in alternative. AIR 1951 Cal 212(2 13).
(2) An alternative plea of defence is seldom successfully. AIR 1954 Nag 127.
(3) If there is sufficient evidence to show that the accused acted in self-defence he cannot be denied
the benefit of the plea of self-defence even though he has denied committing the offence at all and
pleaded the right of private defence in the alternative. AIR 1969 Born 20,
9. Court's duty where plea of private defence is raised.—(1) A Court should not in its zeal to
suppress crime of violence, overlook the importance of the prevision's of law as regaras the right of
private defence. AIR. 192 7Lah 194.
(2) The Court must make all reasonable allowance in favour of the accused and not apply the law
in such a manner that persons would become cowards. The mental conditions of the assailant must
also be taken into consideration. 1961 (1) CriLJ 653.
(3) Where the incident of shooting A and B by C . was an interacted one, not divisible in parts and
it was found that C had a right of private defence against B, it was held that the same right of private.
defence was available against A also. AIR. 1971 SC 1432
(4) It is now well-settled that even if the accused is not able to substantiate his defence by
producing evidence yet if his version gets support from the prosecution to the extent of being
reasonably possible, then the accused is certainly entitled to an acquittal. Karim Vs. State (1960) 12
DLR (WP) 92.
(5) The case which the accused sought to set up was thus one of self-defence, and there being no
other evidence except his own statement in support it became the duty. of the trial Court as laid down
by the Federal Court in the case of Safdar Ali 5 DLR (SC) 107 to place the allegations for the
prosecution and those for the defence in juxtaposition against the background of the proved facts and
circumstances and thereafter to consider whether the case set up by the accused was not a reasonably
possible one. It should be found to be reasonably possible, then the effect of creating a reasonable doubt
regarding truth of the prosecution case could be avoided, and this could not be without effect upon the
finding as to the guilt of the accused. Shamshad Vs. State (1964) 16 DLR (SC) 33.
(6) By hinting at a bare possibility of accused's acting in exercise of right of private defence a coull
would not be justified in discarding the evidence of the eye-witness examined by the prosecution. It
was not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut
the prosecution case. In order to gain a favourable verdict, it was necessary for the accused persons to
set up facts upon which they relied as exculpatory circumstances sufficient to cast a reasonable doubt
over the prosecution case. Syed A li Bepari Vs. Nibaran Mollah and others (1962) 14 DLR (SC) 316.
10. No right of private defence against lawful acts.—(1) Where A is acting lawfully, B cannot,
though he had a claim of right, prevent A by force from doing the act and has no right of private
defence. A IR 1963 CalJ.
192 . Penal Code Sec. 96

(2) A seized B's cattle under S. 10 of the Cattle Trespass Act, 1871, on the ground that they
caused danage to his crops and gave out that he was taking the cattle to the pound. B has no right of
private defence and cannot rescue the cattle by force, inasmuch as A's act in taking the cattle to the
pound is not an offence however mistaken he may be about his right to the crop of land. A IR 1965
SC 926.
(3) A knowing that B's cattle have not damagd his crops, seizes them and drives them to the
pound, with the intention merely of causing loss and expenditure to B. A's seizure is illegal and will
amount to theft B has a right of private defence. But if the seizure by A, though not justified, was
done under a bona fide mistake, A's act is not an offence and B would have no right of private defence
against the seizure. A IR 1963 Orissa 52.
(4) A commits theft or robbery and is running away. B chases him for the purpose of apprehending
him, B's act is justified in law and A has no right of private defence against B. A IR 1951 A ll 3(8) (FB).
Ii. Resistance to an illegal search or arrest or seizure of property.—(1) Where a Commercial
Tax Inspector illegally seized the account books of A, and A and his men resisted the seizure and in
doing so caused injury to the Inspector. A's Act was held justified on the ground of the doctrine of the
right of private defence. A IR 1960 A ndhPra 110.
12. Right of private defence if available to aggressor.—(1) A right of private defence cannot be
claimed by a person who is himself the aggressor against the person who is exercising his right of
private defence against the aggressor. A IR 1979 SC 1230.
(2) Where A armed with a gandasa made a violent attack on B who was unarmed, the fact that
certain persons came to B's rescue would not give A any right of private defence against the rescuers.
A IR 1943 Lah 163. .
(3) Initial firing by accused—Police firing in self-defence—Each of accused again firing towards
police—Initial firing, held, was with common intention to overpower police—Firing by police held
did not give accused right to act in self-defence . A IR 1963 A 11W R (HC) 746(749).
(4) The question as to who the aggressor in any particular case depends upon the facts of the case.
The number of injuries inflicted on a party is not always a safe criterion for determining the question of
- aggression. A IR 1959 A ll 690.
(5) An accused must not be the creator of the necessity for self-defence. A IR 1926 Pat 433.
13. Trespass and right of private defence.—(l) Where A has trespassed upon the immovable
property of B and has been in possession for a period within which the owner B could have had time
to seek redress from the authorities. B cannot take the law into his own hands and attempt to
dispossess A by force. If he does so he would be the aggressor and A's act in defending his possession
would be one in the exercise of the right of self-defence. A IR 1975 SC 1674.
• (2) Force used by owner of land to acquire possession would be an act of private defence. A IR 1969
Orissa 250. -
(3) Where the trespasser was in possession but in his absence the true owner regained possession
• the trespasser cannot have a right of private defence. A IR 1961 A ll 42.
14. "Free fight".—(l) Where two individuals or two parties fight with one another using
unlawful force against each other, the fight has been characterised as "a, free fight". In a "free fight''
where parties are determined to vindicate their right or supposed right by the use of unlawful force, no
question of the exercise by any party of the right of private defence can arise. A IR 1978 SC 414.
Sec. 97 General Exceptions 19

(2) In a case where two parties are having a free fight without disclosing as to who is the initial
Aggressor it maybe dangerous as a general rule to clothe either of them or his sympathiser with a right
of private defence. AIR 1971 Sc 1491.
(3) A free fight' is one where both sides mean to fight from the start, go out to fight and there is a
protected battle. The question of who attacks and who defends in such a fight is wholly immaterial and
depends upon the tracts adopted by the rival commanders. AIR 1954 SC 695.
(4) Where one party is the aggressor and the other party is merely defending its rights in the
exercise of its right of private defence it is not a case of free fight. AIR 1954 SC 695.
(5)The party acting in self-defence cannot be said to be determined to fight for vindicating its right
by the use of unlawful force. AIR 1950 FC 80.
(6) A pre-planning is not necessarily inconsistent with the exercise of the right of private defence.
There is no principle of criminal law which prevents people from getting themselves prepared if neces-
sary when they anticipate an attack upon their subsistence right, by a set of people. AIR 1947 Pat 51.
(7) Where a party of five or more persons fight another person or party with the common intention•
of defending their right, they do not constitute an unlawful assembly and do. not commit any offence
but if they fight with the common intention of vindicating their right by the .case of unlawful force, they
will constitute an unla''ful assembly. A IR 1965 sc 257.
(8) The. appropriate test whether a fight is a free or not is to see whether the parties voluntarily
enter into fight with mutual intent to harm each other. AIR 1965 Raj 74.
(9) When on the date of occurrence both the parties went to enforce their right or supposed right in
the disputed land and for this purpose they armed themselves in full expectation of an armed conflict
and were determined to have a trial of strength; under such circumstances it will be impossible to say
that the accused party were acting on the defensive merely or, in other words, were acting in the
exercise of any right of private defence of person or property. And when form the existing relation
between the parties it is clear that both the parties were prepared to fight on a flimsy ground and a
conflict arose,, it is reasonable to infer that each party knowingly and deliberately took upon itself the
risk of the encounter. Under such a circumstance the ,question of right of private defence would not arise
and the common object stated in the charge although failed, each person would be responsible for his
, individual acts. Syed a/i Bepari Vs. Nibaran Mollah and others (1962) 14 DLR (SC.) 316.
15. Unlawful assembly and private defence.—(1) An assembly of five or more persons acting
in self-defence is not an unlawful assembly, but that where they use unlawful force (i.e., where they do
not act in self-defence ) they would constitute unlawful assembly. Section 141 must be read with this
section. A IR 1970 sc 27.

Section 97
97. Right of private defence of the body and of property.—Every person , has a
right, subject to the restrictions contained in section 99, to defend--
First— His own body, and the body of any other person, against any offence
affecting the human body;
Secondly.—The property, whether moveable or immoveable, of himself or of any
other person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an. attempt to commit theft,..
CD
robbery, 'mischief or criminal trespass. . :
194 Penal Code Sec. 97

Cases and Materials

1. Scope.-_--(l) The right of private defence is a very valuable right. It has a social purpose. That
right should not be construed narrowly. -The second clause of section 97 defines scope of the right of
private defence of property, subject to the general limitations. Every person has a right to defend the
movable or immovable property of himself or any other person against any act which is an offence
falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to
commit any of these offences but omits to mention such offences as house breaking and dacoitj. But we
must not forget that dacoity is a form of robbery. House trespass and house breaking are forms of
criminal trespass. The question of possession is of supreme importance in respect of private defence of
property. He who is in possession of property must be left in undisturbed possession of the same until
and unlessevited therefrom by the due course of law. The right of private defence can be exercised
against aggressors as a rule whether the aggressors be the rightful owner of the property or persons
merely setting up a fanciful title. It is not the province of the Criminal Court to inquire into titles and
protect them irrespective of actual possession. The most common instance in which the right of private
defence is pleaded is in connection with rioting over possession of disputed land. In deciding these
cases the crucial points is to determine whether the accused was a member of an unlawful assembly and
the determination of thi g'question depends upon the further question of possession. In a case of rioting
there should be a definite finding as to which of the two parties was in peaceful possession on the date
and which party was trying to protect by the use of force. The prosecution must prove its possession
affirmatively and if it does not so prove that the land on which the riot took place was in actual
possession of the complainant as alleged in the charge, the accused cannot be convicted of rioting (23
CWPJ 693). Extortion has not been mentioned in the section but on the Principle extortion becomes
robbery if there is a threat of instant violence and the right of private defence can be exercised. Cheating
has been omitted because that he is being cheated and when- he finds out he can go to the time that he
is being cheated and when he finds out he can go to the authorities for redress. Criminal
mi sappropriation and criminal breach of trust have been omitted because the person wronged is not in
the presence of the offender and could not exercise the right of private defence. Dishonestly receiving
stolen property has also been omitted because the time for the exercise of the right of piik'ate defence
arises when the property was being taken and it is for the authorities and not for the private person to
take appropriate action.
(2) Private defence of property—When such defence is lost—The place of occurrence was a part of a
joint property and the parties have been litigating over the land fOr a long time—It is true that there
was no evidence to show that the order of temporary injunction in favour of the appellant was vacated
but there was unimpeachable evidence that 'Kaun' was grown in the land by the deceased—There is
nothing to show that 'Kaun' was sown after the order of injunction—The appellant lost the right of
private defence of property when he allowed the deceased to grow 'Kaun' on the disputed land. Md.
Chand Mia alias ChandMjah and others Vs. The State 9 BLD (A D) 155.
(3) Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding.
Where disputed facts are involved evidence will be necessary to determine the issue—Criminal
proceeding is liable to be quashed only if the facts alleged in FIR or complaint petition, even if
admitted, do not constitute any criminal offence, or the proceeding is barred by any specific provisions
flaw. Long standing litigation and order of temporary injunction against the complainant party must
bq considered along with other evidence during the trial. Application for quashing the proceeding has
ben rightly refused. 10 BLD (AD) I.
Sec.: 98 General Exceptions 195

(4) Appellants convicted under section 302 read with section 149 of the Penal Code and sentenced
to transportation for life—Defence plea was that the incident .took place when the victim opened fire
upon the appellants causing injuries to four of them, that they exercised their right of private defence of
life and property and they filed a counter case against Bazlur Rahman's men—Trial Court sentenced
them as aforesaid. The prosecution case was that the victim had grown paddy in his land has been
supported by PWs 1-5 and 7-10 but defence suggestion was that the incident took place no doubt but
it took place in another plot—The onus to establish the plea of defence is upon them as specifically
provided in section 105 of Evidence Act and the Court will presume the absence of any circumstances
which bring the action of the accused within the exceptions described in Section 300 of the Penal
Code—Accused did nothing to discharge the onus and their plea was rightly rejected by the Court
below. 10 BCR (A D) 86.
(5) Right of private defence—The finding being that either the cattle had caused damage to the
crops or were caught before they could cause such damage leads to the logical inference that the right to
seize the cattle under section 10 of the Cattle Trespass Act arose in favour of the accused. Having seized
the cattle-they were taking them to the cattle pound. If in doing so they were resisted and attacked they
had the right of self defense. 18 DLR (W P) 3.1.
(6) Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous
conviction—(a) by a Court in Bangladesh—Right of private defence—Extent cannot be weighed by
golden scales—Court views with indulgence acts of a person who in heat of moment pursues his
defence a little further than is absolutely necessary. Mere fact that complainant party suffering greater
number of injuries than those suffered by accused not sufficient to hold accused as aggressor.
Prosecution failing to explain injuries on the person of accused—Such omission makes prosecution
version highly doubtful and lends support to accused s plea of self defence Safe administration of
criminal justice—Court should draw its own inference flowing from evidence and circumstances and
not be.deterred by reason of incompleteness of tale given by each party. PLD 1966 Lah 8. . .
(7) Right of private defence—Accused's goats trespassing into the field let by landlords to
tenants—Servants of landlord rounding goats—Accused's resisting killed two of the servants-
Offence—Where an owner of cattle uses force to get his cattle, which are wrongfully taken to pound,
released he is not guilty of any offence as he has a right to protect his cattle in the exercise of the right
of private defence. 6 DLR (W P) 179.
(8) Right of private defence—Eight persons on trial for offence under sections 147 and 148 of the
Penal Code who pleaded exercise of right of privatedefence. If the accused had a right of private defence
but exceeded that right there can be no conviction under sections 147-148 of the Penal Code. 6 DLR
120; .. . .
2. For more casesee under section 99.

Section 98
9• Right of private defence against the act of a person of unsound mind,
etc.—Wlien an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth, the want of maturity of understanding; the unsoundness , of mind
or the intoxication of the person doing that act, or by reason of any misconception' on
the part of that person, every person has the same right of private defence against that.
act which he would have if the act were that offence.
196 Penal Code. Sec. 99

illustrations
(a) 'Z, under the influence of madness, attempts to kill A ; Z is guilty of no offence. But
A has the same right of private defence which he would have. fZ were sane.
(b) A enters by night a, house which he is legally entitled to enter. Z, in good faith,
taking A for a house-breaker, attacks A . Here Z, by attacking A under this misconception,
commits no offence. But A has the same right of private defence against Z, which he
would have if Z were not acting under that misconception.
Cases'
1. Scope-4 1) The section makes it clear that a person does not lose his right of private defence of
property merely because the opposite party is under a misconception. AIR 1959 All 790..
(2) Where A enters upon property under a misconception as to his possession thereof, B, the
persor in actual possession, would have a right of private defence against A, and as has been seen in
Section 96. A cannot have any right of private defence against the exercise by B of his right of private
defence which is a lawful act on his part. 1967 KerLT 463. .. ,
(.) B. was in possession of land as tenant of A. A tree which was on the lane was blown down by
the wind and B cut the fallen tree and stacked it (Sr the purpose of using it himself. A tried to remove
the wood so stacked and B obstructed it under a misconception that he was entitled to it as having
been planted by his father. It was held that A had a right of private defence against B. A IR 1914 Nag 7.
(4) If a drunken man breaks the law and attacks either the person or the property of other people,
any member of the public is entitled to exercise the right of private defence against such attack, even
though the drunken man himself may be entitled to protection of the law , . AIR 1927 Rang 121.

Section 99
99. Acts against which there is no right of private defence.—There is no right
of private defence against an act which does not reasonably cause the apprehension of
death or of grievous hurt, if don; or attempted to be done, by a public servant .acting
in good faith under colour of his office, though that act may not be strictly justifiable
by law.
There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by the
directIon of a public servant acting in good faith under colour of his office though that
direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.
Extent to which the right may be exercised.—The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the
purpose of defence.
Explanation 1.— A person is not deprived of the right of private defence against an
act done, or attempted to be done, by a public servant, as such, unless he knows, or
has reason to believe, that the person doing the act is such public, servant.
See . 99 General Exceptions 197
Explanation 2.-A person is not deprived of the right of private defence against
an act done, or attempted to be done, by the direction of .a public servant, unless he
knows, or has reason to believe, that the person doing the act is acting by such
direction, or unless such person states the authority under which he acts, or if he has
authority in writing, unless he produces such authority, if demanded.
Cases and Materials t Synopsis
1.. Scope of Sections 97 and 99. 17. "Good faith '
2. Right of private defence arises only against acts 18. "Act done".
which are offences. . 19. Time to have recourse to the protection of
3., Private defence of body. . public authorities-Section 99, third
4. Private defence of property-General. paragraph.
5. Private defence against criminal trespass. 20. "Protection of the public authorities" (S.
99 Pr. 3)-Meaning of
6. Privte defence against theft and robbery.
21. Right does not extend to causing more
7. Private defence against obstruction to easement.
harm than necessary---Section 99, fourth
8. Shooting animals on other's lands. paragraph
9. Private defence against mischief. 22. Section 99, fourth paragraph must be
10. Place where right of private defence of property read with Ss. 100, 103 and 104.
may be exercised . 23. A ggressor and right of private defence.
11. Filthy abuse and threat. 24. Presuinptlon from injuries.
12. Preparation and use of weapons for private 25. A ssembly of men and private defence.
defence. 26. A gainst whom right can be exercised
13. Maintenance of right and enforcement of right. 27. Existence and exercise of right of private
14. Private defence against acts of public servant, defence-Question of law or fact.
15. Act done by the direction of public servant. 28. Onus of proof.
16. "Public servant." 29. Court's duty-addressing assessors
1. Scope of Section 97 and 99.-(1) The right of private defence is subject to the restrictions
contained in this section. The right of private defence of body or of property can be e xercised against a
public servant in the following cases (a) when the act of the public servant reasonably causes
apprehension of death or of grievous hurt; (b) when the public servant does not act in. good faith under
colour of his office; (c) when the person exercising the right neither knows not has any reason .to believe
that the assailant is a public servant or acts by the direction of a public servant. There is no right of
private defence; (i) against an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done or attempted to be done, by a public servant or by the direction of a public
servant acting in good faith under the colour of his office, though that direction may not be strictly.
justifiable by law; (ii) in cases in which there is time to have recourse to the protection of the public
authorities, the right of private defence in no case extends to the inflicting of more harm than it is
necessary to inflict for the purpose of defence. The use of self defence must always be proportionate to
the quantum of force used by the assailant and which it is necessary to repel. The right of private.
defence is only a right of protection and not of aggressor. If under the guise of such a right the limits
prescribed by law for the exercise of that right are exceeded and more harm than is necessary is caused
198 Penal Code Sec.-99

then the act would become an offence. The extent of force which would be justifiable depends upon the
circumstances of each case. The nature of attack, the danger apprehending imminence of danger and the
'real necessity of inflicting harm by retaliation for the purpose of self defence are matters to betaken into
consideration in deciding whether the right of private defence has been exceeded. An important
consideration which always arises in order to determine whether the action .of the accused is covered by
the right of private defence is: first, what is the nature of the apprehended danger; secondly, whether
there was time to have recourse to the public authorities, always remembering that where both the
parties are determined to fight and go upto the land fully armed in full expectation of an armed conflict
in order to have a trial of strength the right of private defence disappears ('A IR 1938 Patna 518. 39
Cr,L.J 785) The burden of proof in on the accused They must have to prove that there was no time to
have recourse to the protection of public authorities (A IR 1945 Nagpur 269). Where a free fight takes
place and both parties enter into and engage in a fight of their own free volition, none of them can plead
self defence. A person has a right to resist sodomy and defend his person to the extent of causing death.
The law gives a person the right to cause death in order to save himself or another from the
commission of rape. In a well-ordered civilised society it is generally assumed that the State would
take care of the persons and properties of individual citizen and that normally it is the function of the
State to afford protection to such person and their properties. Where an individual citizen or his
property is faced with a danger and immediate aid from the state machinery is not readily available, the
individual citizen is entitled to protect himself and his property. To begin with, the person exercising a
right of private defence must consider whether the threat to his person or his property is real and
immediate If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled
to exercise his right. In the exercise of his right he must use force necessary for the purpose and he rust
stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of
private defence can be legitimately exercised, it would not be fair to require, as Mayne has observed,
that "he should modulate his defence step by step, according to the attack, before there is reason to
believe the attack is over". The law of private defence does not require that the person assaulted or
facing an apprehension of an assault must run away for safety (1963 CriLJ 495). Section 99 of the
Penal Code is an attempt on the part of the legislature. to reconcile the two rival needs—one of lending
protection to the public servant in.the exercise of their public duties which may sometimes be of a little
difficult nature, even when there might be some errors in the discharge of those duties and the other,
need of preventing the exercise of powers by the public servant from degenerating into arbitrariness and
protecting the public from the arbitrary and capricious acts of public servant, and to strike a proper
balance between them. It is on account of those c .onsideratioos.that the protection has been granted to
only those acts which are not strictly justifiable in law and has been denied to those acts which are
ultra vires and have no legal basis. ., ..
(2) In the instant case an order of temporary injunction was in force but no action was taken to
have this order vacated by the deceased Afzal. Afzal violated the injunction by sowing 'kaun': in the
land which grew for over two months and thereby forcibly dispossessed the appellant. The appellant
had a right of private defence of property which he could have exercised when Afzal first went to grow
the "Kaun" but he did not do so. But after two months he went to plough up the land to destroy the
crop for the purpose for re-establishing his possession. This is not permitted by law 'as during this
period he could have resort to public authorities. Right of private fence of pjqperty will not be
available as section 99, paragraph 3 of the Penal Code stands in his way. This paragraph .. is quoted
below: "There is no right of private defence in cases where there is time to have recourse to the
Sec. 99 General Exceptions 199

protection of the public authorities". Hence, in the facts of this case, the plea is not available. (Ref 9
BLD 155 A D). 42'DLR (A D) 3.
(3) Right of private defence and property—Complainant party unarmed—Accused exercise his right
of private defence of përsoñ and property by inflicting more harm than it was necessary for conviction—
And sentence upheld. The right of private defence is a legal right which one can exercise for the defence
of person and property. But this right is to be exercised under certain restrictions or limitations.
Sentence of 7 years RI not at all excessive under section 304 Part 1. 1 BSCD 239.
(4) Right of private , defence—Use of force in exercise of the right of private defence to the property
must not be disproportionate to the act which calls for exercise of such a right—Killing a trespasser in
the right of private defence cannot be justified when no apprehension of injury to life is imminent from
the trespasser. The landlord without taking possession of his tenanted land in due course of law
obtaining consent of the tenant for such possession entered on the land. When the landlord was
ploughing the land the tenants instead of reentering (to which they were entitled as they had not
acquiesced in such entry) attacked the landlord and deliberately shot him dead. Held: The tenants in
the present case are no doubt clothed with the right of private defence of property but the law does not
permit to kill a man outright in exercise of the right of private defence of property. In a case where the
trespasser is unarmed and there is no threat of grievous injuries to the person who is resisting the
trespass he is not entitled to use such force as may result in the killing of a person. If he does so he
cannot claim that he was dóin&so in the right of private defence and has exceeded in his right. There is
no doubt that the landlord is also to be blamed for taking the law . in his bwn hands which amounts to
reduction of sentence of the tenants. 22 DLR (SC) 129.
(5) Bloody fight between two parties in terms of enmity with each other—Each party in an
incident like this throwing the responsibility on the others—In occurrences of this nature responsibility,
for individual injuries to be fixed on a careful examination of the evidence on the person responsible-for
it, none being held in constructive liability. 17 DLR (SC) 186.
(6) Self defence—Illegal detention of A by police, amounts to illegal confinement—A slipping
away—Police pursuing to catch A, who resists—Police resorting to violence to meet A's resistance—
No right of self defence available to Police—When detention of a person by the police amounts to an
illegal confinement, and even if the man slipped away from the custody of Police the latter had
absolutely no right to pursue him in order to catch hold of him. If any one of them who did so, was
resisted then the Police resorted to violence to meet that resistance, the plea of self defence would not
be available to the police in the circumstances. When a person inflicts hatchet injuries on 'a dead man,
he cannot be charged for the offence of murder (Ref PLD 1954 (Lah) 170). 12 DLR (SC) 266
(7) Public, servant's act must not be wholly without jurisdiction, but only not strictly justifiable
by law and he must act in good faith. Mere apprehension of breach of peace--Arrest not justifiable—
Existence of emergency necessary—Good faith requires due care and attention—Right of private defence
against arrest—In order that the first and second paragraphs of section 99 of the Penal Code may apply,
it is essential that the act against which the, right is sought to be exercised should be one that is not
altogether without jurisdiction but only such as is not strictly justifiable by law and that the public
servant was acting in good faith. Where therefore the arrest is not justified under section 99 Penal Code
the persons concerned would have, the right of private defencewhich extends to the infliction of any
harm, short of death provided they did not cause more harm than was necessary for the defence. 6 DLR
(W P) 149.
200 . Penal Code I
Sec. 99

(8) Right of private defence whether available against a public servant when acting under a mistake.
The protection afforded under section 99 to public servant is not lost even if they make any mistake in
the exercise of their functions. 3 DLR 205.
(9) Right of'private defence—Where right of private defence is pleaded, essence of case, Held:
should be to ascertain who was aggressor and whether accused acted in exercise of his right of private
defence or otherwise—Plea of self defence, Held: further, amounted to presumption that harm which
accused had inflicted on alleged aggressor was not an offence because circumstances entitled him to
exercise of right of self defence. Accused receiving two dagger blows at the hands of deceased which.
were declared as grievous—Attack by deceased on person of accused and giving him dagger blows
bringing latter in imminent danger of death or such bodily injury which could prove, fatal if accused had
not reacted—Trial Court disbelieving presence of only eye-witness produced by prosecution—
Thereafter, statement of accused left in the field to the effect that he committed murder of deceased in
exercise of right of private defence—Fact that accused fired only one shot at deceased brought case
within ambit of second clause of section 100 of the Penal Code—But trial Judge did not extend benefit
of section 97 of the Penal Code to accused for the only reason that since accused had failed to adduce
evidence in his defence. Held, - keeping in view circumstance of the case there was hardly any
justification for trial fudge to hold accused to adduce evidence to prove that he had committed murder
of deceased in exercise of his right of private defence—First information report also showed that it was
deceased who opened attack and medical evidence fully corroborated plea of accused—Accused reported
matter to police prior to lodging of report by deceased party—After disbelieving presence of eye witness
only evidence before trial Judge was that of accused which fully established that he acted in • exercise of
right of private defence—Conviction and sentence set aside in circumstances. 1987 PCrLJ 2164.
(10) Private defence of property against a Corporation—Official deputed .to remove encroachment
on the road—Not available unless such act amounts to mischief. 9 PLD 451 Lah.
(11) Deceased asked by Assistant. Sub Inspector of Police to produce accused before him—
Deceased meeting accused and asking him to surrender as he was wanted by police—Accused asking.
deceased not to come forward—Despite warning deceased advancing towards accused and firing shot
from his gun, which hit deceased, who fell down and died—Case not falling under section 100, but
under circumstances of case, sentence of transportation of life substituted for that of death. Section 100
must be read with sections 99 and 101 of the Penal Code. The effect of reading sections 99 and 101 of
the Penal Code together would not render an individual entirely helpless in the matter, of his unlawful
arrest (Ref A IR 1941 Sind 82). PLD 1967 (Lah) 588:
(12) Right of private defence of person even extends to causing of death when there is a reasonable
apprehension that the intended assault by the aggressor would cause death or grievous hurt. But no
right of private defence of person is available against an unarmed man. Dalim and another Vs. The
State, 15 BLD '(HCD) 133.
(13) Where the arrest is not justified under sec. 99, the persons concerned would have the right of
private defence which extends to the infliction ofany harm, short of death, provided they did not cause
more harm than was necessary for the defence. Ahmed Vs. Crown (1954) 6 DLR (W P) 149.
(14) Self-defence—Illegal detention of A by police amounts to illegal confinement—A slipping.
away—Police pursuing to catch A, who resists—Police resorting to violence to meet A's resistance—
No right of self-defence available to police. Feroz Khan Vs. State (1960) 1 DLR (SC) 266 : (1960)
PLD (SC) 344. . . . ..
Sec. 99 General Exceptions . . .201

(15) Section 97 is, as the section itself provides, subject to the restrictions enacted in S 99. A IR.
1964 SC 205 . .... .. ..
(16) Both Sections 97 and 99 are subject to the subsequent sections of Chap. 4. A IR 1952 SC 162.
(17) The right of private defence of person or property is to be exercised subject to the following
limitations (i) if there is sufficient time for public authorities the right is not available, (ii) more harm
than necessary should not be caused; and (iii) there must be reasonable apprehension of death or of
grievous hurt to the person or damage to property concerned. AIR 1976 SC 1674. ..
(18) It is possible that in appropriate cases in exercising the right of private defence a person may
even kill. The right is no longer restricted to person himself being under attack Of being subjected t'
assault Even a stranger can act to prevent a crime AIR 1983 Del/n 513
2 Right of private defence arises only against acts which are offences .—(1) The right of
private defence arises only against acts which constitute an offence except in certain specifie4
circumstances. A IR 1974 SC 496. . ..... . . . .
(2) The right of private defence does, not arise merely because an , act is unlawful or wrongful. The
act must amount to an offence of a particular kind. AIR-I949.All 180.
(3) An act which may not be one's liking but is not punishable under the provisions of the Penal
Code will not give rise to a right of private defence. AIR 1948 All 2015.
(4) When in execution of a degree obtained by X against A, X was given delivery of ' possession by
the Court, which however gave permission to A to remove his crops. A cannot resist the entry of X
into the land, as his entry would be a lawful one and not an offence. AIR 1927 La/i 193.
(5) A reasonable apprehension of death -or grievous hurt is enough to give rise to the tight of
private defence. It is not necessary that the apprehension must have materialised. A IR 1975 SC 154
3. Private deFence of body.—(I) The right of private defence of the body comprises not only the
right to defend one's own body, against an offence against the human body but also the right to defend
the body of any other person.. AIR 1952 SC 165. . . .
(2) An ünlawrful arrest or unlawful apprehension will be an offence against the human body AIR
1955 NUC (All) 2782.
(3) Dispute with the accused over, payment of amounts claimed by deceased and others in respect
of digging of well in accused's land—Accused while returning home in closed jeep, stopped on the
way by persons including deceased—Persons unarmed—Accused firing the three . shots from the jeep at
the persons fearing physical harm and killing deceased—Right of private defence of body available to
accused—But accused had exceeded right of private defence. A IR 1980 SC 660..
(4) Where a boy raised a cloud Of dust in the street and the accused,, a passerby, chastised him by
slapping him, it was held the act of the boy was causing injury to the body of the passerby and-that the
accuseds act in slapping the boy was in the exercise of the right of private defence. AIR 1944 Mad 168.
4. Private defence of property—General.---(l) If a person has a bare title to a property his
remedy in respect of any wrong to the property would be to seek redress in a Court of law and not to;
enforce it by the use of force himself. AIR 1949 All 274
(2) In cases of private defence of property the question as to who was in actual possession is of
paramount importance. The right to possession Or constructive possession is not generally of much
importance. AIR 1968 SC 702.
202 Penal Code Sec. 99

(3) "A trespasser acquires the right to defend his possession against physical attack only if he has
come to it by the acquiescence, express or implied, of the rightful owner and his possession has
become peaceful and settled". A IR 1961 A ll 38.
(4) Before the trespasser's possession has become a "settled possession" and while he is in the
process of acquiring possession, the trespasser can be ejected by the owner by the use of the necessary
force, in the exercise of the right of private defence. A IR 1971 SC 1213.
(5) A judgment-debtor cannot, by a surreptitious act of planting in land delivered by .the Court to
an auction-purchaser, give himself such possession as would give him the right of private defence
against the auction-purchaser's act in reaping the harvest. A IR 1942 Mad 58.
(6) Land in tenant's possession must be held to be in his possession though it is submerged under
water. The landlord has no right to lease out fishing rights in the water on the land and if the lessee
attempts to fish therein, the tenant would have a right of private defence against such attempt. A IR 1918
Pat 239. . . .
(7) A useful summary of the right of private defence of property enacted in Ss. 97 and 99 given.
A IR 1949A 11274.
5. Private defence against criminal trespass.—(l) A trespass made without any criminal
intention is not a criminal trespass and there is no right of private defence against such trespass. A IR
1969 Born. 20. .. .
(2) A enters on a land (about the possession of which there is, dispute) under an, order of a
Magistrate under Section 145 of the Criminal Procedure Code. A does not commit criminal trespass
and there is no right of private defence against such entry. A IR 1958 A ll 432.
(3) A enters on property in possession of B under an illegal order of delivery of possession by an
unauthorised person with a view to intimidate B, the person in possession. A's entry is,a criminal
trespass and B has a right of private defence against A. A IR 1968 SC 702.
- (4) A, in execution of his degree against B, obtained delivery of possession through Court. When
a few days after,. A came to the land he found that B had come back on the land, held that A's entry in
the bona fide exercise of his right was not a criminal trespass and that B had no right of private defence
against A . A IR 1914 Cal 286 .
(5) Where the accused fixed up a live electric wire in his latrine for the purpose of preventing
strangers from using the latrine and a stranger woman entered the latrine and died from 'contact with the
wire and it was argued that the act of the accused in fixing up the live wire was an act in the exercise of
his right of self-defence, it was held that no question of private defence arose in the case and that th
accused was guilty of the offence under S. 304-A of the Code. A IR 1964 SC 205.
6. Private defence against theft and robbery.—(1) Every person has right of private defence
against a person or persons attempting to commit the offence of theft or robbery. A IR 1927 Lah 355.
(2) A was a landlord who was the owner of a tree on the land in the possession of a tenant B. The
tree was blown up in the wind. The tree was thereupon out by B with a view to appropriate ithimself.
It was held B's act would be an offence of theft, that A had a right to enter on the land for recovering
the tree, and could exercise the right of private defence if B resisted the removal. A IR 1914 Nag 7.
(3) An illegal seizure of cattle and attempt to remove them will constitute theft, and the owner of
the cattle has a right of private defence against such act. A IR 1947 Lah 380. , '
Sec. 99 General Exceptions .' . 203.

7. Private defencec . against obstruction to easement.—(I) Where A puts a construction on his

own property which has the effect of obstruction the light and air to B's windows. B cannot use force
and remove the obstruction in the exercise of any right of private defence. A IR 1958 MadhPra 341.
8. Shooting animals on other's lands.—(I) If
person kills a wild animal or wild bird on the
property of another person the dead creatp,.dpe not belong to the killer but to the owner of the land,
and such owner can lawfully demand, and jf ref'used, seize the dead creature from the possession of the
killer and such persons as help him (the owner) to exercise his right would be doing no illegal act and
will be protected under Sections 97 and 99 of the Code. A IR 1924 Pat 564.
9. Private defence against mischief^ ( 1) The following acts may amount to mischief
(a) the cutting of trees on another man's property. A IR 1940 Pesh 6.
(b) the destruction of wall. A IR 1953 A ll 338:
(c) the destruction of a darn across a channel or water-course lawfully put in by another person or
presons. 1962 KerLT 868.
(d) the unlawful obstruction of water-course by putting up adam across it. A IR 1933 Sind 142.
.(e) allowing one's cattle to graze in another man's field. A IR 1956 Sàu 107.
(2) Taking of another's cattle grazing in one's field to the cattle pound after seizure will be a lawful
act and the owner of the cattle cannot use force and rescue them. If he tries to rescue them by force his
act will be an offence against which the person taking the cattle to the pound will have a right of
private defence. A IR 1956 Sau 107. .
0

(3) The seizure by A of B's cattle which have not caused damage to A's property, and taking them
to the pound will be an unlawful offence and the owner of the cattle can rescue the same by the use of
necessary force and A has no right of private defence against such rescue. A IR 1965 72.
(4) Where X drove a loaded cart across a field belonging to Y who had raised crops on it, X was
held to have committed criminal trespass and mischief and that the Y had a right of private defence in
exercise of which he could use force to prevent X from causing loss. A IR 1959 A ll 690.
(5) In an industrial dispute, even an illegal demand by the workers cannot give rise, by itself, to
any right of private defence to the owner or manager of the institution unless there is an apprehension of
injury to person or property. It is only when workers start hurling brickbats and damaging property;
there would be a right of private defence or person or property. A IR 1979 SC 577.
10 Place where right of private defence of property may be exercised.—(l) Where a body . of
persons armed with lathis and accompanied by bullocks and ploughs started .7 furlongs away from -the
property belonging to X to go to the property with the avowed object of upturning the crop which'had
been sown by X, and X and his party met the coming body of persons and prevented them by use of
force from reaching his property, the mere circumstance that the property was situated at a distance from
the place where X met the aggressive party did not prevent the right of private defence from coming
into existence. A IR 1954 A ll 771. . .
11. Filthy abuse and threat.—(l) The use of fifthy abusive language cannot be considered to be
an act in the exercise of the right of private defence. A IR 1959 Orissa 155.
(2) There are many threats which people use as a form of abuse which are never - intended to be
taken seriously and still others which the persons uttering them have not the capacity to put into
immediate execution. A IR 1952 Orissa 37. . . . . .
T204 - Pena' Code Sec. 99
(3) An oral protest from a distance to an act being done by the accused on his property does not
amount to an invasion of his property so as to give him a right of private defence against the person
protecting. A IR 1946 Rat, 84.
12. Preparation and use of weapons for private defence.—(l) Where a person receives
information of an intended attack on his person or property there is nothing wrong in his getting ready
with weapons and men for the purpose of defence against the attack. AIR 1954 Punj 232.
(2) Where one L stood before a jeep driven by A for preventing it from moving and A drove the
jeep over L causing injuries, held it was atrocious for anybody to think of using a motor-car as a wea-
pon for the exercise of self-defence, and that A had exceeded his right if any existed. AIR 1958 Ker 8,
(4) Where an aggressor B attacks A with a weapon. A is perfectly justified in snatching the weapon
from his hand and hitting B to inflict on him-the necessary harm. A IR 1951 Orissa 245.
13. Maintenance of right anØ enforcement of rlght.—( 1) The enforcement by a party of a right by
force is not hwful even if the right has been ordered in his favour by a Court of law. A IR 1964 Punj 90.
(2) Where neither party is in possession and each of them fights for the enforcement of the right or
supposed right, it will not be an enforcement of right of private defence. A IR 1926 Oudh 148.
14. Private defence against acts of public servant.—(l) Where a public servant does an act
strictly in accordance with law, he commits no offence at all and there cannot be a right of private
defence against such act. A IR 1965 SC 871.
(2) If the act which would otherwise be an offence is one which does not cause an apprehension of
death or grievous hurt, still if the act is illegal, as being without jurisdiction and outside the powers of
the public servant, the public servant is not protected and there will be a right of private defence against
such act. A IR 1969 Raj 121.
(3) In the course of lawful search by a police constable, he illegally laid hands on a woman. It was
held the police constable acted illegally and there was a right of private defence. A IR 1926 A ll 147.
(4) The words "colour of office" also refer to an irregular as distinguished from an illegal act; they
show that the act is within jurisdiction but that jurisdiction is exercisd irregularly as on insufficient
grounds: A IR 1953 Mad 936
(5) Explanation I goes with the first paragraph of Section 99 and it is intended to protect persons
who may have acted in ignorance of the fact that the person they were dealing with was a public
servant. A IR 1953 Mad 936. .
15. Act done by the direction of a public servant.- .-(l) Where a warrant did not authorise a
public servant to make a particular arrest, and under his direction a peon attempted to make an arrest,
the person arrested has a right of pirate defence against such arrest. A IR 1932 A ll 227.
16. "Public servant".—(l) As to who is a "public servant" see Section 21 ante and also the
undmentioned cases. A IR 1974 SC].] 58. . . .
(2) Where a vakil was appointed by the Court to secure an attachment, it was held that at the time
of securing the attachment, the vakil was a public, servant, that an omission to record the reason for the
appointment did not make the order illegal, and that if the vakil acted in good faith and under colour of
his office, there was no right of private defence against such act. A IR 1935 All 490.
17. "Good faith".—(l) "Good faith" in criminal law has not the same meaning as it may have in
civil law. In the former case, it means due care and attention. 1964 Ra1LW 126
Sec. 99 General Exceptions .205
(2) A public servant not acting with due care and attention cannot be said to be acting in good
• faith. A IR 1946 Lah456.
(3) The fact that a public servant acted with a good intention or that he believed himself entitled to
- act as he did does not establish good faith if he had not acted with due care and attention. 1964 RajLW
126. -
- (4) A sowed a crop on the land. B and his party got into the field to cut the crops. A's servants
went there with the station-house officer and some constables. The officer ordered the B party to leave
off cutting the crops. But they did not do so. Then a constable without warning fired at one of the
reapers and killed him, held that the constable did not act in good faith. (1898) ILR 21 Mad 249.
(5) A police officer was ordered by the Magistrate to maintain the "statu quo", but the police
officer, not understanding the meaning of the words "status quo", attempted to demolish a wall, held
that he could not be considered to have acted in good faith in as much as he ought to have taken care to
ascertain the meaning of the words. AIR 1946 Sind 17. .
18. "Act done".—(l) Acts purported to be done by A, a public servant under the prospective
general directions of B, a superior public servant (who was empowered to do certain acts under certain
conditions) without the knowledge and the exercise of direction by B, cannot be considered to be
"acts" done by B and if the acts are illegal by reason of the conditions not being fulfilled, A will not be
protected. AIR 1921 Mad 569.
19
Time to have recourse to the protection of public authorities—Section 99, third
paragraph.—( 1) The third paragraph of Section 99 enacts that a person has no right of private defence
if he has time to have recourse. AIR 1977 SC 619. .
(2) The third para. of S. 99 must be read with the first paragraph of Section 105 which enacts that
the right of private defence commences where a reasonable apprehension of danger commences. AIR
1963 Mys 33. .
(3) Before the apprehension commences a person is not called upon to apply for protection to the
public authorities. AIR 1968 Mys 33.
(4) When the complainant's party invaded the field on July 1, 1962, Jamuna's relations must
naturally have been taken by surprise. Law does not require a person whose property is forcibly tried to
be occupied to run away and seek protection of the authorities. AIR 1968 SC 702.
(5) If the act of mischief has already begun there is more than an apprehension of danger to the
property and the right of private defence has come into exercise. If the right of private defence has
already arisen, it is not expected that a person .entitled to exercise it should have recourse to the
protection of public authorities. AIR 1934 All 829.
(6) Where a Union Board trespassed into the property of the accused and laid a drain therein, the
accused was held entitled to destroy the drain in so far as it encroached upon his land and was not
bound to submit to the act of trespass. AIR 1953 Cal 457.
20. "Protection of the public authorities" (S. 99 (Pr. 3))—Meaning of.—(I) The expression
"the protection of the public authorities in S. 99 Para. 3 means such protection as can preserve the
status quo. A IR 1964 Orissa 262.
(2) It is implied in this provision that the police are in duty bound, where recourse is had to them
for, protection, to take steps to protect the property and person of the complainant. AIR 1973 All 85.
206. Penal Code . Sec. 99

21. Right does not extend to causing more harm than necessary—Section 99, fourth
paragraph.--(]) If there is no right of private defence at all, there can be no question of exceeding that
right. A IR 1971 Sc 1491. .
(2) No person exercising his right of private defence can inflict more harm , on the assailant than is
necessary for the purpose of defence. AIR 1974 SC 1570.
(3) It is a necessary corollary to the doctrine of private defence that the violence which the citizen
defending himself of his property is entitled to use must not be unduly disproportionate to the injury
which is to be averted or which is reasonably apprehended and should not exceed the legitimate
purpose. A IR 1963 sc 612. .
(4) While applying the test under S. 99 P.C. to the effect that no harm is to be caused other than
what is necessary for the purpose of defence, The number of injuries caused by the accused is not the
only consideration. 1983 PakLD 225.
(5) The means which a threatened person adopts or the force which he uses should not be
"weighed in golden scales". AIR 1977 SC 473.
(6) In the exercise of his right of private defence a person must use force necessary for the purpose
ancihe must stop using the force as soon as the threat has disappeared. So long as the threat lasts and
the right of private defence legitimately exercised, it would not be fair to require . that he should
modulate his defence step by step according to the attack, before there is reason to believe that the
attack is over. AIR 1963 SC 612.
(7) The right of private defence does not extend to chasing and killing a person who is running
away from the scene. AIR 1972 SC 2544.
(8) The previous relationship between the deceased and the accused, and the deceased's aggressive
temperament and disposition shown in his conduct of trespassing into the accused's house in order to
assault here while she was retracing her steps, must go a great way to cause belief in the accused of an
impending danger to life accompanied with little change of escape.. AIR 1952 Orissa 37..
(9) Where a party A was reaping crops under police protection and had no arms except their sickles
and the accused came armed and shot down a member of the A party engaged in reaping, their
Lordships of the Supreme Court held that more harm than was necessary was caused and that the
accused had exceeded their right of private defence. AIR 1965 SC 257.
(10) A was in possession of a field and ploughing it and C, D and E criminally trespassed into the
field and C tried to catch the reins of A's bullocks. Thereupon A hit C with a spade. E then went near
A and was also hit by A. It was held that no distinction could be made between the cases of C and E
on the ground that C had used force and E did not; the injuries to both C and E were caused in the
same trespass with the same common object and A could not be held to have exceeded his right of self-
defence. AIR 1955 Sau 2.
(11) Where some armed persons went to harvest certain crops forcibly and during the assault which
they made on the owner of the c.rc:- the accused who was on the side of the owner, gave, a fatal blow to
one of the members of the intruding party reasonably apprehending grievous hurt or death of the owner,
the accused could not be said to have exceeded the right of private defence. A IR 1972
SC 244. . . .
(12) A person exercising his right of private defence is not required to inflict an injury on the
assailant of the same nature as was caused to him by the assailant. The only restriction is as stated
Sec. 99 General Exceptions 207

• above, that he should not use more force than is necessary and should not inflict an injury which is but
of all protection to the threatened injury to himself A IR 1954 Mad 319.
(13) Where, in exercising his right of private defence, the accused exceeds the right given to him
by the law and cause thedeath of his opponent, his act will not amountto murder and he cannot be
convicted under Section 302 but only under S. 304. Such a case has been expressly provided for by S.
300, Exception 2. A IR 1976 SC 2273.
22. Section 99, fourth paragraph must be read with Sections 100, 103 and 104.-(1) The
provisions of Ss. 100, 103 and 104 do not mean that in every case covered by the excepted classes the
causing of death would be justifiable. A IR 1922 Nag 141.
(2) The question always is whether the causing of death was necessary for the defence. In this view
Ss. 100, 103 and 104 must be read subject to last paragraph of Section 99, though S. 99 also must be
read subject to the restrictions in Ss. 100, 103 and 104. A IR 1980 Oudh 408
23. Aggressor and right of private defence..—{1) A person who is an aggressor cannot be said
to defend his person or property and consequently be entitled to a right of private defence against a
person who defends himself against the aggressor.. A IR 1979 SC 1230.
(2) Where A, an aggressor, attacks B and C. D and E come to B's help, A cannot be said io be
acting in private defence against the rescuers. A IR 1943 La/ 163.
(3) When accused went to a house fully armed to commit an offence and when detected by the
deceased and tried to be apprehended, killed the deceased with the weapon which he had brought, held
that the detection and apprehension by the deceased did not give the accused a right of private defence
and that he was guilty of the offence of murder. A IR 1941 Lah 81.
(4)When A picked a quarrel with B and attacked him andwas running away for safety and B
followed him to take revenge and A turned round and defended himself, it wa g held that A's act was an
act of self-defence. A IR 1925 A ll 313.
24. Presumption from injuries.—(1) The fact that the accused has injuries on his person is a
circumstance showing that he was exercising the right of self-defence and that the other party was the
aggressor. A IR 1972 SC 1838.
(2) The absence of any injury on the person of the accused is a strong indication that there was no
attack on him and that he was not acting in self-defence. A IR 1975 SC 216.
(3) Where a reading of two reports by counter parties indicate that both parties were anxious to
make out a case of self-defence and were trying as much as possible to explain the injuries found on the
other side, it becomes - difficult to accept either of the versions as containing whole truth. While what
happened cannot be determined with certainty the accused were entitled to benefit of doubt. A IR 1980
SC 864.
(4) The number of injuries on the accused does not necessarily prove that the party causing them
were the aggressors. A IR 1955 .J and K 9.
(5) The question whether an accused in exercising his right of private defence, exceeded that right,
cannot be decided on the basis merely of the number of injuries which he inflicted on the complainant.
A IR 1952 Cal 217.
(6) Where serious injuries were inflicted on the 'deceased which were not necessary for protecting
property from him and the indiscriminate attack was continued even after the deceased fell down and
208 Penal .Code Sec. 99

only minor injuries were.received by the accused, it was held that the right of private defence was
exceeded. AIR 1971 .SC 2143
25. Assembly of men and private defence.—(l) An assembly of persons , whatever be their
number, acting in the exercise of the right of private defence cannot be said to commit an offence. AIR
1955 NUC (A ll) 3285.
(2) If the common object of an assembly of 5 more persons is doing an act in the exercise of the
right of private defence which would exceed the right, then the assembly will be an unlawful assembly.
A IR 1933 Oudh 41.
(3) Where it is not known which of the members exceeded that right and there is no common
intention to cause death, none of the accused can be held guilty of the offence. AIR 1970 SC 27.
(4) Where 5 or more persons (accused) makes a common plea of self-assembly would be an
unlawful assembly if they purport to inflict harm acting in concert in the purported act of self-defence to
which they were not entitled. AIR 1960 Mys 294.
(5) Where an unlawful assembly attacks a person, the latter is entitled to take all necessary steps to
defend himself. AIR 1936 Pat 622.
(6) Where a body ofpersons are determined to vindicate their rights of supposed rights byunlawful
force and when they engage in a fight with men who are equally determined to vindicate their rights by
unlawful, force, no question of private defence arises. AIR 1926 Pat 433.
26. Agailfst whom right can be exercised.—(]) When a person is being attacked by a party of
aggressors and he is not in a position to distinguish which person in the party is the real assailant and
which person ismerelyan onlooker, he is not deprived of the right of private defence merely because a
person in the attacking party has not attacked him. AIR 1971 Raj 68.
(2 Where an attack is made by an unlawful assembly, the right of private defence can be
exercised against any members of the assembly irrespective of the fact whether he made any attack.
A IR 1971 Raj 68.
27. Existence and exercise of right of private defence—Question of law or fact.-7-(I)
Whether the accused had a right of private defence under the particular circumstances is a question of
law. (1913) 14 CriL.J 295.
(2) Whether the act done by the accused was in the exercise of right of private defence is a question
of fact. 1966 CriLJ 358,
28. Onus of proof.—(1) The burden of establishing circumstances leading to exercise of right of.
private defence rests on the defence. But the nature of the burden resting on the defence is not so
onerous as the burden resting in prosecution. The burden resting on the defence can be discharged as in
any other case, by adducing direct evidence or by establishing probabilities with regard to
circumstances pleaded by accused. Even if the defence fails to discharge burden the matter does not , end
there and the prosecution cannot automatically succeed. 1982 CriLi 170.
(2) An accused pleading the right of private defence of property must prove his possession of the
property at the time. AIR 1955 NUC (All) 4169.
(3) Where the prosecution fails to prove its case as to how the offence was committed the accused
need not prove either his right of private defence or that he did not exceed it. AIR 1925 Pat 175.
29. Court's-duty.—(I) Where a right of private defence is pleaded, the essence of the case should
be to ascertain who was the aggressor and whether the accused party acted in the exercise of their right
of private defence or otherwise. AIR 1965 Ker 44.
Sec. 100 General Exceptions 209

Section 100
100 When the right of private defence of the body extends to causing
death.—The right of private defence of the body, extends under the restrictions
mentioned in the. last preceding . section, to the voluntary causing of death or of any
other harm to the assailant, if the offence which occasions the exercise of the right be
Of any of the descriptions hereinafter enumerated, namely :-
First.-'--Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
Secondly.---Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault;
Thirdly.— A n assault with the intention ofcommitting rape;
Fourthly. — An assault with the intention of gratif'ing unnatural lust;
Fifthly.— A n assault with the intention of kidnapping or abducting;
Sixthly.— A n assault with the intention of wrongfully confining a person under
circumstances which may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release.
Cases and Materials Synopsis
1. Scope of section. . Committing rape.
2. "Under the restrictions mentioned in the7asi 7. Fourthly—Assault. with the Intention of
preceding section." gratifying unnatural lust.
3. "Volunlarj' causing of death." 8. Fifthly—Assault with the intention of
4. Assault. kidnapping or abducting.
5. "Reasonably causing apprehension of death or Sixthly—Assault. with the intention of
grievous hurt." . causing wrongful confinement.,
6. Thirdly—Assault with his . intention of 10. Plea of private defence and burden. of proof

1. Scope of the section.—{l) Section 100 of the Penal Code lays down six cases where the right
of private defence of the body extends to the voluntary causing of death to the assailant. Section 103 is
analogous to section 100 and enumerates certain offences against which the right of private defence of
property extends to the voluntary causing of death t6 . the wrongdoer. The two sections together make
up the complete law of justifiable homicide according to the Penal Code. These sections speak of
offences which are heinous in nature or notoriously dangerous. Section 100 allows this enlarged form of
right in cases of an assault reasonably causing apprehension of death or grievous hurt or to kidnap , or
abduct or to wrongfully confine a person under circumstances :which may reasonably cause a person to.
apprehend that he will be unable to have recourse to the authorities for his release. It - is seen. that
adultery is not included in the category. The killer of an adulterer the act by a husbid.
generally takes under section 300, Exception 1. It will be seen that the division of justifiable homicide
into sections 100 and 103 i.e. those in the defence of the body and of property is artificial or the right
of private defence is allowed to extend to cause death only in case of robbery or house brearing by
night of mischief by fire to a house and offences n which "in addition to the danger to the property,
N.)
the person is also subject to . the danger of death and grievous hurt". Mischief by fire is not only,
peculiarly dangerous, but requires to be stopped at once by the most summary and effective means.
.210 .. Penal Code Sec. 100

Theft and extortion become robbery , when they are attended with violence and as robbery or its
aggravated form dacoity is generally committed by surprie, the law permits every man to resist such
an offence even by going to the extreme, if necessary. The limitation that no more harm should be
caused than is necessary under the cirumstances of the case is of prime importance in almost all cases.
It is to be noted that all that is necessary in order to justify one in taking the life of another is that there
must be reasonable apprehension of any such danger as are enumerated in the section,. Though the
taking of human life is not justifiable by way of prevention yet it is not.essential that an actual felony
should be committed in order to justify killing. if the circumstances are such that after reasonable
cautions the party suspects that the felony is about to be immediately committed he will be justified in
.niaking the resistance.
(2) The law relating to self-defence makes the accused the judge of his own danger, and permits
him to repel the attack even to the taking of life. The courts are to judge him by placing themselves in
the same position in which he was placed: Karim Vs. State (1960) 12 DLR (W P) 92.
(3) Right of private defence not available when the position invoking such plea is in such an
advantageous position over his deceased opponent that the latter was in the condition of being
completely overpowered and disarmed by him. State Vs. Manzoor Ahmed (1966) 18 DLR (SC) 444.
(4) However unexected the occasion for striking in self-defence and whatever the loss of self-
control under provocation, a person who causes the death of another by smashing his skull with
repeated blows on the head with a club must be taken to intend causing death or such bodily injury as
is likely to cause death, and the same intention must be attributed to a person who kills another by
stabbing him in the heart or by blowing his brains out by voluntarily exploding a gun. Quadir Baksh
Vs. Crown (1953) 5 DER (W P) 82.
(5) Land owned by co-owners--One co-owner forcibly stop other co-owners .frorn ploughing the
land—Latter has right of private defence both of body and property. (1956) PLD (Pesh) 71.
(6) In the exercise of self-defence a man can only take another person's life in self-defence if he
could show that he was the victim of such an assault as would have reasonably given, him cause to
apprehend that death or grievous hurt would otherwise be the consequence. State Vs. Manzoor Ahmed
(1966) 18 DLR (Sc) 444.
(7) No right of self-defence when in a case the injuries which resulted in the death of the deceased
were inflicted upon him at a time where he has already been over-powered, thrown on the floor and
disarmed, for there could be thereafter no cause for apprehending either death or grievous hurt. State Vs.
Manzoor A hmed (1966) 18 DLR (SC) 444.
(8) Even in .a sudden quarrel and a sudden fight if unfair advantage is taken by using knife on a
helpless opponent directly to cause fatal injury on the neck—Held : the plea of self defence cannot be
justifiably raised. State Vs. Manzoor A hmed, (1966) 18 DLR (SC) 444.
(9) Even in case of strong provocation by the opponent the killing is not justified. State Vs..
Manzoor Ahmed (1966) 18 DLR (SC) 444.
(10) Law does not confer the right of self-defence on a person who goes and seeks an attack on
himself by his own threatened attack on another, an attack which was likely to end in the death of the
other. The right of self-defence conferred by law for an individual is a very narrow and circumscribed
right and can be taken advantage of only when the circumstances fully justify the exercise of such a
right. Likewise, the right of self-defence is available to those who act honestly and in good faith. In no
Sec. 100 General Exceptions 211

case, can it be employed as a shield to justify aggression. An accused. cannot invoke self-defence.
Furthermore, once , the provocation is given, by an offender himself he cannot subsequently urge that his
rival had acted in a provocative manner. Azmat Khan 'Vs. The Stare, (1969) 21 DLR (W P) 337.
(II) From the evidence placed on record we find that the appellant thought that he was no match
for a duel and decided to escape by retreating. He was chased by the deceased and, his companions
armed with deadly weapons. After traversing some distance he found it difficult to escape, turned round
and fired a shot. In the face of his finding it can be said that the appellant was justified in defending
himself against attack. Azmat Khan' Vs. The State (1969) 21 DLR (W P) 337.
(12) To attack and surround a retreating person is not an act' protected by the right of private'
defence of person or property. Esaruddin Mondäl Vs. Abdus Sobhan . Sarkar, (1976) 28 DLR 341,
(13) Right of. private defence against unauthorised arrest—Exercisable only when there is
immediate danger of restraint—Mere order to arrest no equivalent 'to legal arrest. Hamida Banu Vs.
A shiq Hossain (1963) 15 DLR (SC) 65.
(14) In view of the Explanation to Exception 4 of sec. 300, Penal Code it would be immaterial
which party offers the provocation or commit the first assault. But before this exception is applied the
essential conditions laid down in it must exist. This exception applies only to those cases, where on a
sudden quarrel, both the parties begin to fight on an equal footing. In such cases, it is immaterial,
which party offers the provocation or commits the first assault, because the combat is mutual. It does
not, however mean that if on a sudden quarrel a person attacks another with some weapon, then the
person attacked, if he kills his assailant, cannot avail of the plea of self-defence. In a case of this nature
the person attacked cannot be held guilty of any offence because under the provision of section 100 ol
the Code, he is perfectly justified in killing his assailant. But if both the persons simultaneously take
out their weapons and attack each other then Exception 4 to section 300' of the Code would apply.
Karim Vs. State, (1960) 12 DLR (W P) 92
(15) When the accused had scuffles with the deceased and the fear of retaliation from the deceased
party overpowers the mind, it is not possible for him to weigh the position in golden scales. In such
situation when he is faced with assaults from his rival party it is not unnatural that he would strike a
decisive blow to defend himself and to free himself from clutches of his adversaries. In the instant case.
accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The
attending 'circumstances indicate that he gave the knife blow only to free himself from the grip ol
deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requiremeni
of the right of private defence. The accused cannot be said to have exceeded the right of self-defence.
Ruhul Amin Mondal Vs. State 49 DLR 250.
(16) The section lays down the extent of the right Of private defence against six specified kinds of
assault. AIR 1960 SC 67.
(17) The word "harm" used in the expression "any other harm" means physical injury. AIR 1966
SC 1773.
(18) This section has to be read with S. 101 and the effect of so reading it is that where the offence
committed by the other party is not of any of the descriptions enumerated in this section, the right o
private defence of the individual against whom the offence is committed extends only to causing to the
assailant any harm short of death. AIR 1946 Sind 17.
(19) The right of private defence of person comes to an end as soon as the aggressors leave the
scene of occurrence. In a right of private defence of person and property, the Court is to see what it is.
what is its extent and where it begins and where it ends. 28 DLR 341.
212 Penal Code Sec. 100

(20) Right of private defence not available when the person invoking such plea is in such an
advantageous position over his deceased opponent that the latter was in the condition of being
completely overpowered and disarmed by him—In the exercise of self defence a man can only take
another person's life in self defence if he could show that he was the victim of such an assault as would
have reasonably given him cause to apprehend that death or grievous hurt would otherwise be the
consequence. No right of self defence when in a case the 'injuries which resulted in the death of the
deceased were inflicted upon him at a time where he has already been overpowered, thrown on the floor
and disarmed, for there could be thereafter no cause for apprehending either death or grievous hurt—
Even in a sudden quarrel and a sudden fight if unfair advantage is taken by using knife on a helpless
opponent directly to cause fatal injuries on the neck. Held: the plea of self defence cannot be justifiably
raised—Even in case of strong provocation by the opponent the killing is not justified. Here in this
case a fight possibly arose in between the deceased and the accused respondent over some incriminating
letters and . photographs relating to love affairs with a girl with whom the deceased was earlier betrothed
and "Magne" of the girl was formally celebrated and as those incriminating letters and photographs
were in possession of the accused respondent the deceased tried to .take them back. Fight with fisi
might have ensued and as a result the deceased was overpowered, thrown to the floor and disarmed, the
killing by respondent accused with the knife in this circumstance is not at all justified although he
might have received provocation nor he can raise a plea of self defence when there is no apprehensiop ol
death or grievous hurt. Plea of alibi without calling evidence in support of it is no plea at all—Mere
suspicion will not be sufficient to justify conviction—Circumstantial evidence—Care and caution
which Court must take in arriving at a conclusion based on circumstantial evidence—Witness may lie
but not circurnstances—Reasonableldoubt, explained (Ref A IR 1978 Sc 141). 18 DLR (SC) 444,
(21)The law as to arrest is perfectly clear. When a person pleads the use of force in self defence
against unlawful arrest he must show that he was in immediate apprehension of actual arrest in the form
required by law namely, by restraint upon his person. Criminal trial—Every case is an authority on the
• facts of that case. 15 DLR (SC) 65.
(22)The question whether the accused acted in th'e exercise of the right of private defence arises in
the case of the prosecution itself. To secure a conviction for murder, the prosecution had to establish in
this case not only that the appellant inflicted on the deceased the injuries of which he died, but also
that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder.
If in determining whether this burden was discharged by the prosecution the version of the accused
appears to be reasonably possible, then a reasonable doubt pervades the whole case and the appellant
becomes entitled to an acquittal. Special defence plea under section 105 Evidence Act does not relieve
the prosecution from proving its case beyond reasonable doubt. If defence adduces evidence which on
the circumstances of the whole case raises a reasonable doubt, the accused is entitled to acqufttal-
Defence failing to prove special pleading but succeeded in raising reasonable doubt, accused entitled to
acquittal—Court's duty to examine the entire evidence and circumstance in the case whether led by
defence side or the prosecution side to arrive at definite conclusion—Section 105 of the Evidence Act
has been enacted in order to make it clear that it is not , the..duty of the prosecution-to examine all
possible defences that might be taken on behalf of the accused, and to prove that none of those defences
would be of any assistance to him—In a criminal case it is the duty of the Court to'review the entire
evidence that has been produced by the prosecution and the defence. If after examination of the whole
evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward
by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In thee
Sec. 100 General Exceptions 213

circumstances the accused is entitled to benefit of doubt not as a matter of grace but as of right, because
the prosecution has not proved its case beyond reasonable doubt. It is as necessary to place the defence
version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the
proper examination of the extent to which the charge may be held to have been proved, as it is to
examine prosecution case side with the defence case, in reaching a decision on the accused's special
pleading. "The verdict must be given not on any special pleading but upon the result of the whole of
the 'case" (Ref 1966 CrLJ 481). 5 DLR (FC) 107.
(23) Private defence, right of—Question to be taken into account to find whether reasonable
apprehension of death or grievous hurt existed; kind of weapon. manner of its use and surrounding
circumstances—Apprehension of injury must however always be natural and,probable. 1970 PLD Pesh 6
(24) Private Defence, right of—Prosecution failed to prove that occurrence had taken place in the
manner stated by it—Defence version, on the other hand, appeared more plausible—Accused were first
attacked by two deceased and two prosecution witnesses and it was in exercise of their right-of private
defence that accused had caused injuries to them. Held: accused were entitled to the statutory benefit of
section 100 of the Penal Code—which was extended to them. 1989 PCrLJ 2028.
(25) Private defence, right of—Deceased a young sturdy man taking accused to his room on pretext
of getting him a job—Deceased was living single and his wife had died about 12 years back, plea of
accused that the deceased wanted to commit sodomy on him forcibly and therefore, he snatched Chhuri
from hands of deceased and stabbed him in order to save his honour and life, was probable—Accused.
held, had complete right of private defence in circumstances—Accused was given benefit of doubt and
acquitted. 1989 PCrLJ 504.
2. "Under the restrictions mentioned in the last preceding section".—(l) In appropriate cases,
in exercising the right of private defence, a person may even kill. The only postulate is that the act of
killing will have to be tested on the principles as to whether the person concerned should legitimately
have gone to the extent of killing in exercising his right of private defence. AIR 1983 Delhi 5.13
(2) In order to be entitled to a right of private defence under this section, it must be shown that the
accused had no time to have recourse to public authorities. AIR 1952 SC 165.
(3) The accused cannot be held to have committed any offence intentionally killing the assailant if
the assault could not have prevented by anything short of killing but, he cannot be protected under this
section if it is shown that he used much more force than was necessary. AIR 1974 SC 1570.
(4) Where in the course of a fight between two parties, a person belonging to one party runs away
but a member of the other pa4 chases and overtakes him at a considerable distance form the scene of
fight and kills him, the member must be held to have exceeded his right of private defence. AIR 1939
Lah 393.
(5) Accused, causing numerous injuries but majorities of them on non-vital parts of body
which showed a deliberate effect of not causing more harm than was necessary to save the victim—
Neither good faith was locking nor harm done to save was disproportionate to the threatened 'harm—No
case of revenge established—Held that the plea' of private defence could not be negatived by any
bar contained in S. 99 and as such the accused were entitled to complete right of private defence. 1983
Pak LD 225 SC.
3. "voluntary causing of death".—(l) 'Where A inflicts, in the exercise of his right of self-'
defence, a harm on the assailant B, and it cannot be said to be more harm than is necessary for the
214 Penal Code Sec. 100

defence, and A does not intend or know or have reason to believe that the harm inflicted is likely to
cause death, it cannot be said that A voluntarily causes the death of B though in the particular case
death occurs as a consequence of the harm. A IR 1940 Pal 595.
4. "Assault".—(l) Before the extended right of private defence of person arises under this section
(here has to be the offence of assault and-this assault has to be of one of the six types mentioned in the
six clauses of the section. A IR 1960 Sc 67.
(2) Where a creditor made a demand on his debtor, when he came out of a talkie at 9 p. m., to
repay his debt and told him that he would not allow him to go till his money was paid, it was held
that the action on the part of the creditor did not amount to an assault and that this section did not
apply. A IR 1950 A ll 91.
(3) The right arises as soon as a reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offences though offence may not have been committed. A IR 1970
Orissa 50.'
5. "Reasonably causing apprehension of death or grievous hurt"--(l) When the accused had
scuffles with the deceased sometime before the occurrence and the fear of retaliation from the deceased
party overpowers the mind of the accused, it is not possible for him, whose mental excitement can be
better imagined than described, to weight the position in golden scales. In such a situation when he is
faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to
defend himself and to free himself from the clutches of his adversaries. In the instant case, accused
Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending
circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar
Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of
private defence. Theaccused cannot be said to have exceeded the right of self- defence. Ruhul A min
Mondal V s. The State, 16 BLD (HCD) 91.
(2) Clauses First' and second' of the section do not require as a condition precedent that
grievous hurt must be actually caused by the assailant. A IR 1975 SC 1674.
(3) The test is not whether there was only any actual danger but whether there was reasonable
apprehension that the danger existed. A IR 1952 SC 165.
/ (4) The act of killing would be justified only if the act was committed, because of an honest and
well-founded belief in the imminence of the danger. A IR 1978 sc 414.
(5) The right given by the section is a right esseriially of defence and not of retribution. A IR 1963
sc 612.
(6) When the facts showed that the accused could have easily affected his escape by going into the
inner room and closing the door, it was held that there could be no reasonable apprehension of danger
to his life or of grievous hurt. A IR 1959 Punj 332.
(7) A man cannot justify killing another by pretence of necessity if he is himself responsible for
bringing that necessity upon himself. A IR 1966 Guf 221.
(8) Where it was the accused who began an unwarranted and aggressive assault, such action
cannot be said to have been done in the exercise of the right of private defence. (1965) 31 Cut LT 804
(DB); 1983 Pak LD 204 (SC).
(9) The accused will have no right of private defence unless he apprehends physical violence from
the other party. The law does not recognise the possibility of death or causing any harm by witchcraft.
A IR 1963 Guj 78.
1
Sec. 100 General Exceptions 215

(10) The following are illustrative cases where the accused was held to have a right of private
defence under this section: (1984) 1 Crimes 185; 1981 CriLJ 1125; A IR 1952 SC 165; A IR .1971 Pun]
94; 1970 Cr/LI 931; A IR 1964 Mad 418; ILR (1962) Cut 891; A IR 1960 Ker 258; A IR 1959 Pat 22;
(1958) 24 CutLJ 215; 1957 KerLT 500; A IR 1957 Orissa 130; 1956 Madh BLR (Cr0 457; A IR 1956
Punj 122; AIR 1954 Saw 34; AIR 1953 Pepsu 66; AIR 1952 Bhopal 2.
(11) The following are illustrative cases where it was held that the accused had no right of private
defence or had exceeded such right: AIR 1983 SC 575; AIR 1981 SC 1379,' AIR 1981 SC 451; (1971) 2
SC CriR 116; A IR 1969 SC 956, A IR 1953 Rhapal 1; A IR 1953 Mys 45; A IR 1 951 A ssam 48; 1933
PakLD 251.
6. Thirdly—Assault with the intention of committing rape.—(1) The right of private defence
of body extends to the voluntary causing of death under this clause if the offence which occasions the
exercise of the right is an assault with the intention of committing rape .. (1969) 71 PunLR 591; A IR
1934 Lah 620. .
(2) Where the accused, on seeing the deceased, whom he had befriended and brought up in his
household from infancy, lying on the top of his wife and trying to violate her, took a gandasa lying
nearby and struck the dec.eased a number of blows on the head as a result of which he died, the action of
the accused was covered by the provisions of this clause. AIR 1993 All 213:
7. Fourthy—Assault with the intention of gratifying unnatural lust.—(1) In the absence of
any reliable evidence that the deceased committed an assault with the intention of gratifying unnatural
lust, this clause will not apply. AIR 1950 All 91.
(2) If the person committing the assault referred to in this clause is disabled by a first blow, from
committing it, the right of private defence ceases and any further injury caused will be exceeding the
right of private defence. A IR 1962 Gu] 39. -
8. Fifthly—Assault with the intention of kidnapping or abducting.—(1) For the purpose of
this clause, it is not necessary that the kidnapping or abduction should be of the categories dealt with
by Ss. 363 to 369. All that the clause requires is that there should be an assault which is an offence
against the human body and that assault should be with the intention of abducting. AIR 1960 SC 67.
(2) Where the accused was seized and dragged by, the assailants against his will, it amounted to
abduction under S. 362 and consequently the accused possessed the right of private defence of his body
under this clause. AIR 1980 Pat 347.
(3) Where a party of raiders raided the house Of a person during the night and assaulted the inmate
with the intention of carrying away his daughter, it was held that S. 100 came into operation and the
right of private defence extended to the voluntary causing of death'of the raiders. AIR 19591 and K 5.
9. Sixthly—Assault with the intention of causing * wrongful confinement.—(1) Where the
accused, who was wrongfully confined in a room, fired his gun through the window and killed a person
he could not clam right of private defence under this clause as there was no assault upon him at all at
the time he fired his gun. 1966 All WR (HC) 249.
(2) A person wrongfully arrested and being taken to the Police Station for being handed ove .r to the
police cannot be said to have a reasonable apprehension that he will be unable to have recourse to the
authorities for his release and S. 100, Sixthly, deprives the accused of any defence which he might
otherwise have possession. AIR 1946 Sind 17.
216 Penal Code Sec. 101

10. Plea of private defence and burden of proof.—(l) The plea under this section is not

available to the accused in the absence of circumstances leading to a reasonable apprehension in the
mind of the accused that death or grievous hurt would be the consequence. (1967) 34 CutLT 8.
(2) Murder trial—Plea of self defence under S. 100—Burden is on accused to prove that his case
comes under S. .100. 1982 CriLi NOC 201.
(3) Prosecution having failed to explain satisfactorily the two injuries on the back of the accused
Shahjahan measuring 4"x l"x cavity deep and 3.5"x 1.5"x muscle deep supported by medical
certificate; the plea of right of private defence of life of the accused Shahjahan cannot be brushed aside.
State Vs. Shahjahan (criminal) 53 DLR (AD) 58.

Section 101
101. When such right extends to causing any harm other than death.—If the
offence be not of any of the descriptions enumerated in the last preceding section, the
right of private defence of the body does not extend to the voluntary causing of death
to the assailant, but does extend, under the restrictions mentioned in section 99, to the
voluntary causing t6the assailant of any harm other than death.
Cases and Materials
1. Scope.—(1) When dealing with question relating to the right of private defence of the body,
sections 100 and 101 must be read together. Under this section any harm short of death can be
inflicted in exercising the right of private defence in any case which does not fall within the provisions
of the preceding section which deals with the offences in which the harm is likely to be very serious,
and hence justifies the killing of the assailant.
(2) Where A was wrongfully arrested but the case was one not falling under S. 100, "Sixthly", it
was held that the right of self-defence did not extend to the voluntary causing of death, and that A was
not protected by this section in causing death while resisting the' arrest. AIR 1946 Sind 17.
(3) Dispute with the accused over payment of amount claimed by the deceased and others in
respect of digging of well in accused's land—Accused while returning home, in closed jeep stopped on
the way by unarmed persons including the deceased—Accused firing three shots from the jeep at the
person fearing physical harm and killing deceased—Accused exceeded his right available to him under
S. 101. AIR 1980 SC 660..
(4) Where there existed a dispute between the accused party and the complainant party over the
possession and allotment of a Ahata and the accused party who were then in possession the Ahata on
finding that the members of the complainant party who were not armed had assembled in the chock
near the Ahata, started firing at them, even before the complainant party could advance towards the
disputed Ahata and as a result two persons of the complaint party died, it could not be said that the
accused apprehended grievous hurt and were within their right in killing two persons. The case falls
under Section 101 and the accused had exceeded their right of private defence. 1983 PakLD 251 (SC)
(5) The burden which rests on the accused to prove that any of the general exception is attracted,
does not absolve the prosecution from discharging its initial burden and it never shifts, save when a
statute displaces the presumption of innocence. AIR 1974 SC 1570.
(6) The extent of the right of private defence given by this section is subject to the restrictions in
Section 99. AIR 1979 SC 577. . . . . '. .
See. 102 General Exceptions 2.17

(7) Accused were found aggressors and armed with various weapons—Victims unarmed—Incident
taking place on the land belonging to victims—injuries found on person of accused—Held that the
deceased had a right of private defence which accused could not claim such right—Aggressors (accused)
even if they receive injuries have the right of private aggression cannot have the right of private defence.
AIR 1981 SC 1379. .

Section 102
102. Commencement and continuance of the right of private defence of the
body.—The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed ; and it continues as long as
such apprehension of danger to the body continues.
Cases Synopsis
I. Scope and application. body".
2. Commencement of right. 4. "Attempt or threat to commit the offence".
3. "Reasonable app fehension of danger . 10 the S. Continuance of right.
1. Scope and ipplicatlon.—( I) This section lays down that the right of private defence of the
body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or
threat to commit offence though the offence may not have been committed and it continues as long as
such apprehension of danger to the body continues. Where the victim after first two blows on the head
on the very start fell on the ground and rest of the injuries were caused to him thereafter, there could
have been no apprehension on the part of the petitioners that the victim would cause them any injury or
would be able to do them any harm. In these circumstances, it is a clear case in which the petitioners
have exceeded the right of private defence allowed to them by law. Actual continuing danger not
contemplated—Question will not be whether there was an . actual continuing danger but whether there
was a reasonable apprehension of such danger. Right of private defence commences and continues as
long as danger to body lasts..
(2) Private defence, right of—Cannot continue after assaulter has been disarmed—Not merely
exceeding right of private defence but making it a pretext to cause death—Offence, murder. 8 DLR 11
(Note portion). ..
(3) Right of private defence of body commences when there is reasonable apprehension of danger,
and actual blows not necessary. Under the law, the moment a person apprehends danger from his
assailant, he need not wait to be attacked first, and then to deliver a counter blow in exercise of the
right of self defence because, if he did it, it is possible that as a result of the assailant's blow he may
not have an opportunity at all to defend his person.. In the present case it was not necessry for the
deceased to wait until the accused had first stabbed him with the dagger which he was rdrrying in his
hand. He was perfectly justified in delivering a blow with a spade before he was stabbed. The question
of exceeding the right to private defence does not arise in the case. 8 DLR 55 (WP).
2. Commencement of right.–.-(I) The right of private defence of body commences as soon as a
reasonable apprehension of danger to the body arises and it continues as long as such apprehension
continues. AIR 1980 SC 660.
(2) The right of private defence rests on three ideals: First, that there must be no more harm,
inflicted than is necessary for this purpose of defence; secondly, that there must be reasonable
218.. Penal Code Sec. 103

apprehensiàn of danger to the body from the attempt or threat to commit some Offence; and thirdly, that
the right does not commence until there is a reasonable apprehension. AIR 1971 Sc 1208.
(3) Where during a communal riot a mob had actually broken into one part of accused's house
and were knocking at his doors and shops had been looted and persons killed in the adjoining locality,
it was held that the threat to break into accused's house was implicit in the conduct of the mob, and
gave rise to the right of private defence to the accused even though no actual assault was directly made
on the accused. AIR 1952 SC 165.
(4) Right of private defence of body commences when there is reasonable apprehension of danger..
and actual blows not necessary. Md. Qaiyum Vs. State (1956) 8 DLR (W P) 55; 15 DLR (SC) 65.

3. "Reasonable apprehension of danger to the body.—(1) The right of private defence rests on
the principle that where a crime is endeavouredto be committed by force, it is lawful to repel that force
in self-defence. AIR 1973 SC 473. . .. .
(2) It is the apprehension of danger to the body and not the actual injury received that should be
the criterion in judging whether that act of the accused is justified. AIR 1973 SC 473.
(3) The violent and threatening attitude of the party of the deceased would give rise to a reasonable
apprehension to the accused to believe that he was in danger of receiving a grievous hurt at least. AIR
1952 SC 165.
(4) The right of private defence continues as long as the apprehension of danger lasts. AIR 1961
SC 1541. .. . . -
(5) The right of private defence ceases as soon as the reasonable apprehension of dangerceases. AIR
1973 SC 473. . .
4. "Attempt or threat to commit the offence".—(l) Every attempt or threat to commit the
offence would not entitle a person to take up arms. H(must pause and reflect whether the threat is
intended to be put in execution immediately. AIR 1925 Nag 260.
5. Continuance of right.—(l) The right of private defence of body continues so long as the
apprehension of danger to the body continues. AIR 1970 Orissa 50.
(2) Where the apprehension of danger is past but a person nevertheless continues his attack he
exceeds the right and will not be protected by the section. AIR 1974 SC 1570.
(3) The apprehension that arises in the mind of a person who is attacked continues where his
opponent is in possession of the weapon with which the former was attacked. The right of private
defence, therefore, continues so long as the opponent has the weapon in his hand. 1974 CutLR
(ri) 348.

Section 103
103. When the right of private defence of . roperty extends to causing
death.—The right of private defence of propertj extends, under the restrictions
mentioned in section 99, to the voluntary causing of death or of any other harm to
the wrong-doer, if the offence, the committing of which or the attempting to commit
which, occasions the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely
Sec. 103 General Exceptions 219

First.— Robbeiy;
Secondly.— House-breaking by night;
Thirdly.— Mischief by fire committed on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling or as a place for the custody of
property
Fourthly.— Theft, mischief or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence, if
such right of private defence is not exercised.
Cases and Materials : Synopsis
1. Scope of the section. 5. "Fourthly"— Theft, mischief or house
2. Recourse to protection of public authorities.
3. Right does not extend to causing more harm 6. "A s may reasonably cause apprehension".
than necessary. 7. W atchmen.
4. Robbery.
1. Scope of the section.—(1) Under section 103 of the Penal Code, the right of private defence of
property would extend to the causing of death; if theft, mischief or house trespass is done under the
circumstances as may reasonably cause apprehension that death or grievous hurt would be the
consequence, if the right of private defence is not exercised. Where there is no evidence to justify the
conclusion that there was any reasonably cause for apprehension of death or grievous hurt and the
deceased committed also no offence of theft, mischief or house trespass it should be held that the
accused had no right of private defence so as to cause death. The weapon used, the manner of using it,
the nature of assault and other surrounding circumstances should be taken into consideration in
determining the question of reasonable apprehension. A man acting under an apprehension of death
cannot be expected to judge precisely the force of his own blow. The law always makes just allowance.
for the sentiment of a person placed in a situation of peril who has no time to think. Therefore, if a
person has genuine apprehension that his adversary is going to attack him and reasonably believes that
the attack will result in grievous hurt, he can go to the length of causing the latter's death in the
exercise of the right of private defence even though the latter has not inflicted any blow on him (PLR
1957 Dac 237).The owner of a property is entitled to defend his possession by force against any
attempt by trespassers to take forcible possession of it (PLD 1957 Dac 281). A house trespass
committed under circumstances reasonably causing apprehension.of death or grievous hurt alone can
give the extended right conferred by clause IV. The right of private defence continues only so long as
criminal trespass continues or only so long as there is a reasonable apprehension of hurt being caused.
Robbery by violencà may be resisted by violence sufficient to overcome the force employed by the
attacker and if in the course of such resistance death is caused, it may be justified. If the right of self-
defence is exercised reasonably and properly but the measure of self-defence must always be
proportionate to the quantum of force used by the attacker and which it is necessary to repel. The right
of private defence of property to the extent of causing death arises not only when the house is broken
into but even when an attempt is made to break into the house. (A IR 1926 Cal 1012). A person
employed to guard the property of his employer is protected by sections 97, 99, 103 and 105 of the
Penal Code if he causes death in safeguarding his employer's property when there is reason to
apprehend that the person whose death has been caused was about to commit one of the offences
mentioned in section 103 or to attempt to commit one of those offences. A person in possession of a
220 Penal Code. Sec. 103

property is protected by section 103 under the restrictions mentioned in section 99 of the Penal Code,
if he causes death in safe-guarding his property where there is reason to apprehend that the person
whose death has been caused was about to commit one of the offences mentioned therein. It is not the
law that an original owner in peaceful possession must run away, if there is an actual invasion of his
right. He is, on the other hand, entitled to defend himself and his property by force if he sees an actual
invasion of his right which invasion amounts to anoffence under Penal Code.
(2) The appellant had no licence of the gun and the ammunition .that he was carrying and could
not, therefore, be said to be legally entitled to the property which the deceased and his companions
Intended to take in their possession for the purpose of taking in to the police station. As the act of the
deceased and his companions could not amount to theft no offence of robbery was committed and,
therefore, no right of private defence of property accrued to the áppellant.(1951) PLD (La/i) 279.
(3) The appellant seized cattle which had ' trespassed into the land cultivated by him and was
taking them to the pound when he was overtaken by their owner who was armed with formidable
weapon and attempted to remove the cattle from the possession of the appellant who defended the
possession by causing to the owner injuries which resulted in his death The appellant was convicted
under section 302 P.C. In appeal before the High Court he took the plea of private defence of property
and person. Held: Removal of cattle ,.•from the lawful possession of a person even by the 'real owner of
the cattle, amounts to theft—Under section 104 P.C:the person from whose possession the cattle were
removed had the right to defend his possession of the cattle by causing to the wrongdoer any harm
other than death. lf the owner of the cattle came armed with a formidable weapon to rescue his cattle the
• person in possession of the cattle would have the right, under section 1,03, P.C. extending to the
causing of death of the owner. Nawab Vs. State (1960) 12 DLR (W P) 42=(1960) PLD (La/i) 149.
(4) This section enacts that in the exercise of the right of private defence, a person may voluntarily
cause any harm extending even to death in certain specified cases, namely, robbery, house-breaking by
night or mischief by fire committed on any building, tent or vessel or an offence of theft, mischief or
house-trespass under such circumstances as may reasonably cause an apprehension that death or
grievous hurt will be the consequence, if the right of private defence is not exercised. AIR 1959 All 233
(5) The extension of the right under S. 103 is also subject to the restrictions under S. 99. There
is, therefore, no right of private' defence of property where ' there is time to have recourse to the
protection of the public authorities and the right does not extend to the inflicting of more harm than it
is necessary to inflict for the purpose of defence. AIR 1965 SC 257.
(6) Person in rightful possession—Entitled to defend his possession even to the extent of causing
death of member of aggressive party. A person in rightful possession of the property is entitled to
defend his possession of the same under sections 103 of the Penal Code even to the extent of causing
death of the member of the aggressive party, subject to the restrictions mentioned in sections 99 of the
Penal Code and to prevent mischief to his land and the crop thereon within the neaning of section 425
Penal Code ('Ref. 1971 CrLJ 1595). 1:968 CrLf 1667. .
2. Recourse to protection of public authorities.—( 1) Section 97 confers .a clear and distinct
right on every person to resist an aggression. Recourse to the help of the State can, therefore, be
insisted upon only when there is sufficient time to obtain such help. AIR 1948 La/i 117
(2) An owner is entitled to defend the property, from trespassers who suddenly open an attack and
attempt to take forcible possession, and if he knows or honestly believes that in defending his property
Sec. 103 General Exceptions 221

he is likely to be in danger of receiving grievous injuries he is justified under this section even in
attacking the trespassing party and ..in causing death to any of its members. A IR 1948 Lah 117.
3. Right does not extend to causing more harm than .necessary.-. --(1) The right of private
defence of property, being subject to the restrictions obtained in S. 99, in no case extends to the
inflecting of more harm than it is necessary to inflict for the purpose of defence. A IR 1964 SC 205,
(2) Where even after victims had fallen down on the ground and were rendered harmless and were
not in .a position to offer any resistance the accused continued to assault them, it was held that the plea
of the right of private defence could not be accepted. AIR 1983 SC 488,
4. Robbery.-41) Robbery by violence may be resisted by violence sufficient to overcome the
force employed by the attacker and if In exercise of that right, death is caused it may be justified if the
right is reasonably and properly asserted in defence of property. A IR 1979 SC 577.
5. "Fourthly"—Theft, mischief or house-trespass.--(I) The fourth clause of this section deals
with specifically cases of theft, mischief or house-trespass and it means that when the act.was such as to
cause a reasonable apprehension that death or grievous hurt would be the consequence if the right of
private defence is not exercised, then the causing of death or grievous hurt would be justified. A IR 1966
Pat 464.
(2) If the party which is attacked offers no resistance at all there is no right of private defence
against them and if any one of them is killed by the attacking party, they may be liable to be convicted
of murder under S. 302 read with S. 34A 1R 1965 SC 257.
(3) Accused A and B, armed with a sharp cutting weapon and a bow entered the compound of the
house of the deceased, an old man residing in a lonely spot, and in spite of the repeated challenges from
the house-owner and, his daughter-in-law did not disclose their indent. Thereupon the deceased hit an
arrow which struck B. A then rushed towards the deceased and gave him blows with his weapon which
caused injuries resulting in his death. It was held that the deceased was justified in reasonably
entertaining an apprehension of death or grievous hurt at the hands of the intruders and was within his
rights in attacking them. The accused had no right of self-defence against deceased who was acting in
exercise of his right of private defence. A IR 1962 Guj 203.
(4) Accused laying a trap consisting of live electric wire against trespass, into his latrine—
Trespasser dying as a result of touching wire—Accused guilty under Section 304A P.C. A IR 1964
SC 205.
6 "As may reasonably cause apprehension" —(1) The right of private defence of property is
extended to the voluntary causing of death or grievous hurt under the fourth clause only when the
offences mentioned therein are committed under such circumstances as may reasonably cause
apprehension' of death or grievous hurt to the defender. A IR 1979 SC 44
(2) The clause requiresonly reasonable apprehension of the danger and not actual danger (1949) 1
Pepsu LR 129
(3) The right of self-defence is not dependent on the actual criminality of the person resisted, it
depends solely on the wrongful, or , apparently wrongful, character of the act attempted. If the
apprehension is real and reasonable,, it makesno difference that it is mistaken. A IR 1962 Guf 203.
(4) In case wherein plea of private defence is raised the question always is whether, having regard
to the facts noticed by the accused and to the circumstances in which he was placed at the time of the
222 Penal Code Sec. 104

event, there was reasonable cause for apprehension justifying the accused in exercising his right of self-
defence. AIR 1942 Mad295.
7. Watchmen.—(l)As the right of private defence comprises not only the right to defend one's
own property, but also the property of other persons, persons employed as watchmen to guard the
property of the employer will 'be protected by Ss. 97, 99,.103 and 105 when they cause death in
safeguarding the employer's property, if they act under the circumstances and conditions laid down by
these provisions. A IR 1945 Pat 150: ..
(2) Under this section the watchmen cannot inflict more harm than it is necessary to inflict for the
defence of the property. If he causes more harm than was necessary he exceeds his right of self-defence
and if death is caused, he may be guilty of an offence of culpable homicide under S. 304. Penal Code or
even of murder. 1954 Mad/i BL./ 596

Section 104
104. When such right extends to causing any harm other than death.—If the
offence, the cmmitting of which, or the attempting to commit which, occasions the
exercise of the right7 of private defence, be theft, mischief, or criminal trespass, not of
any of the descriptions enumerated in the last preceding section, that right does not
extend to the voluntary causing of death, but does extend, subject to the restrictions
mentioned in section 99, to the voluntary causing to the wrong-doer .of any harm other
than death.
Cases : Synopsis
1. Scope and applicability. . 3. . Recourse to the protection of the public
2. "Causing of any harm other than death". . authorities.
1. Scope and applicability.—(1) This section is analogous to section 101. Under this section,
.the accused are entitled to cause any harm to the wrong-doer other than death (A IR 1965 Orissa 99).
This section does not apply to a case where death has been caused in exercise of the supposed right of
• privatedefence. Thus where the deceased was committing criminal trespass on the land which he was
ploughing, 'the . act of shooting at him by the accused could not be said to have been done in exercise of
,the right of privãiè'defenceand therefore the accused would not be liable for his act tothe fullest extent
(PLD 1960 Lah 880). Section 104 can have no application by way of defence to a charge under section
:50for .using abusive language (11 CrLJ2I3).
(2) Thiseëtinand S. 105 lay down the limitations on the right of private defence granted by Ss.
and 97. A IR 65Orhsa 99. .
(3) Cattle sèied: being impounded—Right of defence against owner—Owner armed with
formidable weapon--Extet of right of defence The appellant seized cattle which had trespassed into
the land cultwated by him and was tak4ng them to the pound when he was overtaken by their owner
who was armed with formidable weapon and attempted to remove the cattle from the possession of the'-'
appellant who defended the possession by causing to the.owner injuries which resulted in his death.
The appellant was convicted under section 302 Penal Code. In appeal before the High Court he took
the plea of right of private defence of property 'and person. Held: The appellant was in lawful possession
of the cattle under section 10 of the Cattle Trespass Act—Illustration (1) and (k) to section 379 Penal
Code show that the removal of cattle, from the lawful possession of person even by real owner of the
cattle, amounts to theft; the removal by the owner was with dishonest motive of carrying wrongful gain
Sec. 104 General Exceptions 223

to himself at least with respect to the fee which he would have had to pay in retrieving the cattle for the
pound. Under section 104 of the Penal Code, the person from whose possession the cattle was removed
had the right to defend his possession of the cattle by causing to the wrong-doer any harm other than
death. If the owner of the cattle came armed with a formidable weapon to rescue his cattle, the person in
possession of the cattle could have a reasonable apprehension that while attempting to defend his
possession he may receive grievous hurt at the hands of the owner and that in such circumstances the
person in possession of the cattle would have the right under section 103 Penal Code extending to the
causing of death of the owner. 12 DLR (WP) 12. . .
(4) Right of private defence of property extending to the causing of any harm other than death—
Murderous assault on person exercising such right—Further right of private defence of person extending
to the causing of death available under section 100 Penal Code. 1955 PLD (Lah) 170.
(5) Private defence, right of—Extent—Law does not permit a person under pretext of private
defence of property to kill a man outright—Accused arriving at scene of occurrence with determination
to kill deceased, without protesting or raising any objection about trespass of property by deceased, and
shooting at him and killing him on land in dispute—Accused, held acted far beyond what law
permitted him to do and cannot be permitted to claim that he acted in exercise of private defence and
exceeded in it—Convictio.n under section 302/34 upheld. PLD 1970 (SC) 212.
2. "Causing of any harm other than death"..—(l) Right of private defence of property
extending to the causing of any harm other than 'death—Murderous assault on person exercising such
right—Further right of private defence of person extending to the causing of death available under sec.
100. P. Code. PLD (1955) (Lah) 170.
(2) In this section the expression "harm" can only mean physical injury. AIR 1966 SC 1773.
(2) The section can have no application by way of defence to the charge brought against an accused
under S. 504 of the Code for using abusive language. (1910) 11 Cr/Li 213.
(3) In the case of theft, mischief or criminal trespass not of the description enumerated in S. 103 if
death is caused, the right is exceeded. AIR 1973 SC 665.
(4) If the circumstances of the case show that the occasion to use force had not arisen at all the use
of any force would be unjustified and the plea of right of private defence éannot avail the accused. AIR
1956 Sau 107. .
(5) Where in defending the propeity, the injuries caused were few and mere scratches and bruises, it
was held that the accused had not exceeded the right of private defence. AIR 1957 Manipur 34.
3. Recourse to the protection of the public authorities.—(1) The right of private defence of
property under this section is subject to the restrictions mentioned in S. 99. One of the restrictions is
that there is no right of private defence in cases in which there is time to have recourse to the protection
of public authorities. 1955 AIIWR (NC) 101. .
(2) The question whether or not there is time for recourse to the protection of public authorities is
one of facts defending upon the evidence in each case. (1948) 48 CriLJ 503.
(3) There can be no recourse to public authorities in cases where by the time the police arrive:
(a). the offence would have been committed by the complainant. A IR 1940 Pesh 6
(b) the occupation would be changed into actual possession. (1949) 1 Pepsu LR 129.
(C) there would be deprivation of crops. 1961 BL.JR 824.
(d) there would be disappearance of the whole of the grass in cases where cattle are let loose by
the complainant. (1947) 48 CriLi 503.
224 Penal Code Sec. 105

(4) Where the land ploughed but not sown by the accused is re-ploughed by the complainant, there
• is no danger of irreparable loss being caused to the accused by the ploughing and he has no right of
private defence of property but can approach the public authorities, and complain about the wrongful act
of the complainant. 1955 A 1ILJ 264. .
(5) If a person allows, without reasonable cause, a few days to elapse and then opposes the
trespassers by force, it was held that he would not be justified in doing so as there would be. in such a
case, ample time to have recourse to the public authorities. A IR 1914 Cal 623.

Section 105.
105. Commencement and continuance of the right of private defence of
property.— The right of private defence of property commences when a reasonable
apprehension of danger to the property comniences.
The right of private defence of property against theft continues till the offender
has effected his retreat with the property or either the assistance of the public
authorities is obtained, or the property has been recovered.
The right of private defence of property against: robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful restraint,
or as long as the fear of instant death or of instant hurt or of instant personal restraint
continues. . .
The right of private defence of property against criminal trespass or mischief.
continues • as long as the offender continues in the commission of criminal trespass or
mischief. .
The right of private defence of property against house-breaking by night continues
as long as the house-trespass which has been begun by such house-breaking continues.
Cases Synopsis
1. Scope. criminal trespass or mischief.
2. Right of private defence of property against 6. Right of private defence of property against
theft. house-breaking by night.
3. Right of private defence of property against
1. Scope.—This section defines the commencement and continuance of the right of private defence
of property just as section 99 does in the case of defence of body. In both the cases the right commences
with the reasonable apprehension of danger. The Penal Code does not give any right of private defence
of property in regard to an offence under section 403 or 411 which has been committed. This section
applies to cases of theft only. The right of private defence of property against theft continues till the
offender has effected his retreat with the property. From a perusal of section 105. Penal Code, it is clear
that the duration of the right of private defence of property against theft continues (1) till the offender has
effected his retreat with property, or (2) the assistance of the public authorities is obtained, or (3) the
property has been recovered. The primary object of this provision of law appears to be that the owner of
stolen property may not be deprived of it when the same may be recovered by the owner by using force
against theft but this right of using force is subject to the aforementioned three conditions (1968 Cr Li
79).
Sèç. 105 . General Exceptions 225

(2) The right of private defence against the specified offences against property commences as soon
as a reasonable apprehension of danger to the property commences. It is not necessary that an offence or
an attempt to commit an offence should have been actually committed. 1972 Pat LIR 158.
(3) There is no right of private defence against a civil trespass. 1937 Mad W N 176 (The Code
confers a right Of private defence not as against mere trespass but as against crime.)
(4) There is no right of private defence in respect of offences under S. 403 or 411. A IR 1914
Lah 579.
(5) Right of private defence of body and that of property—Distinction between—Under section 105
of the Penal Code the right of private defence of property commences when a reasonable apprehension of
danger to the property begins. If the provisions of The two sections (i.e. section 97 and 105 Penal
Code) are considered together, it follows that the right of private defence of property commences when
an act which .is an offence of theft, robbery, mischief or criminal trespass is committed or an attempt to
commit such an act is made. It is worthwhile to compare the language of section 105 with that of
section 102 which deals with commencement and continuance of the right of private defence of person.
It provides that the right of private defence of the body commences as . soon as reasonable apprehension
of danger of the body arises from an attempt to threat or'cornmit the offence though the offence may not
have been committed. So under this latter section a mere threat of an attack on the person gives rise to
the right of private defence ofiperson. In the case of an attack on property, however, something more
than a mere threat is necessaiy.TA threat may amount to an attempt but it must be of such an imminent
nature that but for the intervention of someone it will result in the commission of the act itself. 16 DLR
700.. :•••.:.,•• .
(6) Right.ofrivate defence of property.—Cases to exist where the offender has effected retreat with
the property. The right of private defence of property against the offender continues till the offender has
effected his retreat with the property and once this has happened the right ceases to exit. Although the
third alternative in pam 2 of section 105 of the Penal Code provided that the right of private defence of
property continues until the property has been recovered, yet this third alternative cannot override and
render. nugatory the first alternative. Under section 105 of the Penal Code as soon as the offender has
effected retreat with the property no right of private defence of that property against theft subsists and the
clause "till the prOperty has been covered' is subject to the clause "till the offender has effected his
retreat with the property" 16 DLR (WP) 104. . . .
(7) Condition that the right continues till the property is recovered from the offender—
Interpretation Of—Accused reaching home with stolen property—Complainant had no right to forcibly.
take possession , of property in question. The contention was that section 105 Penal Code, also,.
envisages that, the right continues till the property is recovered from the possession of the thief and his
further contention is that the primary object of giving this right of private defence to the property is
that the Stolen property must be recovered from the illegal possession of the thief and therefore, even if
the thief has reached his home with the property and if the owner finds the thief with the stolen property
even in his house he has a right to snatch the property from the possession of the thief by using
necessary violence even if he had taken shelter in his own home because his home should not be treated
as a citadel for him. . It was held that the third condition that 'the right continues till the property is
recovered from the offender' is not independent of the first condition, namely, 'till the offender has
effected his retreat with the property'. If such a liberty is given to the owner so as to use violence even
after the offender has successfully effected his retreat for recovering the stolen property, then serious
disorders are likely to arise and therefore the law makers have put a restraint on his private defence to
recover the stolen property, from the offender till one of the conditions as mentioned above is
completed. There is no doubt that this view is likely to benefit the offenders in certain circumstances,
226 Penal Code See: 106

but this consideration cannot guide the Courts to interpret the statute differently from what it obviously
means. In the instant case, therefore, the complainant had no right to forcibly take possession of the
she-camel from the accused party after the accused had reached his home with the stolen property and if
the accused party by using force succeed in finding an escape with she-camel from their para, they
cannot be said to have committed any offence in the eye of law (Ref 1967 Orissa 46). 1968 CrLJ 79.
2. Right, of private defence of property against theft.—(l) The third condition that "the right
continues till the property is recovered from the offender" is not independent of the first condition.
namely, "till the offender has effected his retreat with the property". AIR 1968 Raj H.
(2) Where accused's property is removed by persons , having no bona fide right, and is recovered
from them, the right of private defence of property ceases after the recovery of the property but not
before. AIR 1933 Rang 340.
(3) A right of private defence of property is not available where the offender has been arrested and
the danger to the property has been averted. AIR 1951 Kutch 11(12).
3 Right of private defence of property against criminal trespass or mischief.—(l) Under the
first para of this section there arises a right of private defence of property as soon as a reasonable
apprehension of danger to the property commences. AIR 1973 All 85.
(2) Where certain..persons armed with hatchet and lathi forcibly took two carts loaded with
sugarcane through the field while transporting it to a public passage and when they had yet to cover a
short distanceto reach that passage, the owner of the field protested against the conduct of those
persons in damaging the standing crops on his field, it was held that the fact that they could not leave
the field without committing further trespass did not give them any right for insisting that they must
continue the criminal trespass and beat the owner to death. AIR 1961 SC 1541.
(3) A trespasser cannot be said to continue the trespass after he is physically disabled from getting
out. AIR 'J956 Sau 77.'
(4) A trespasser cannot be said to continue the , 'trespass after he has runaway. AIR 1961 All 38.
(5) Where one of several co-sharers in constructive possession ofjoint land commits the offence of
criminal trespass and mischief by digging a part of the land for appropriating it for his exclusive use
in spite of opposition by the other co-sharers who are also in constructive possession the opposing
co-sharers will have every right to prevent such an 'act of digging by the former co-sharer. AIR 1934 All
829.
4. Right of private defence of property against house-breaking by night.—(1) The duration
of the commission of house-breaking by night must be limited to the time during which criminal
trespass continues which forms an element of house-trespass which is itself essential to house-breaking
and cannot be extended so as to include any prior or subsequent time. 1882 Pun Re (Cr) (No; 2) p 2.
(2) The owner of a house'is justified in using a weapon against a house-breaker so long as he
remains on his premises but he is not justified in running 'after the thief and killing him with that
weapon in the open lawn after the house-trespass has ceased. (1868) 10 Suth W R(Cri) 9.

Section 106
106 Right of private defence against deadly assault when there is , .risk of
harm to innocent person.— If in the exercise of the right Of private, defence' against
an assault which reasonably causes the apprehens ion of death, the defender be so
situated that he cannot effectually exercise that right without. risk of harm to an
innocent person, his right of private defence extends to the running of that risk.
Sec. I 06 General Exceptions 227
Illustration,
A is attacked by a mob who attempt to murder him. He cannot effectually exercise
his right of private defence without firing on the mob, and he cannot fire without risk of
harming young children who are mingled with the mob. A commits no offence if by so
firing he harms any of the children.
Cases
1. Scope.—(1) The law of private defence is founded on two cardinal principles: (a) Everyone, has
the right to defend one's own body and property as also another's body and property. The law does
not require him to be cowardly; (b) This right cannot be used as a pretence for justifying aggression,
i.e. for causing harm to another person nor for inflicting more harm than is necessary to inflict for the
purpose of defence. Law allows resort to repel force forwarding off an injury but not for taking revenge.
The right of private defence is not available to one who resorts to retaliation for any past injury, but to
one who is suddenly confronted with the immediate necessity of averting an impending danger not of
his creation. Right of private defence is designed to serve social purpose. When enacting sections 96 to
106 of the Penal Code excepting from its penal provisions, certain classes of acts, done in good faith for
the purpose of repelling unlawful aggression, the Legislature clearly intended to arouse and encourage
the manly spirit of self-detence amongst the citizens when faced with grave danger. The law does not
require a law abiding citizen to behave like a coward when confronted with an immediate unlawful
aggression. There is nothing more degrading to human spirit than to run away in face of danger. The
right of private defence is thus designed to serve social purpose and deserves to be fostered within the
prescribed limit (1971 SCD 1183).
(2) Right of private defence of life—When not available—Whether the two shots fired by the
deceased were blank fires or were aimed at the assailants, the fact is that none of them actually hit—
Though the accused suggested that four of them received gun shot injuries they did not adduce any
evidence in support thereof—The PWS deposed that before the deceased fired the shots he was hit.at
his abdomen by appellant Budhai's Halanga—He was at once surrounded from behind by the
appellants who then subjected him to indiscriminate assaults leading to his death within an hour—The
informant and several other persons of his party were also assaulted with ramdaos and halangas—In
these facts, the right of private defence of life was not available since from the side of the deceased party
the appellants had no reasonable apprehension of death or grievous hurt. Tayeb A li and others Vs. The
State 9 BLD(A D) 110.
(3) The right of private defence of the body extends to the voluntary causing of death if the offence
which occasions the exercise of the right is an assault which may reasonably cause the apprehension of
either death or grievious hurt. 50 DLR (A D) 126
(4) The provisions relating to the law of private defence of person and property in this country
codified in Ss 96 to 106 are complete in themselves and the words used in the sections must be looked
to for finding the extent and limits of the right. AIR 1959 Pat 22.
(5) While Section . 100 of the Code extends the right of private defence of the body against an
assault, under the conditions mentioned therein to the voluntary causing of death of the assailant, this
section extends that right, -further, to running the risk of harm to an innocent person if that tight cannot
be effectually exercised without running that risk. (1974)1 KantL,J 130.
(6) The right under this section cannot be used as a pretence for causing harm to another person
nor for causing more harm than is necessary for the purpose of the defence. 1971 MPL.J 450.
(7) In this section the expression 'harm' can only mean physical injury. AIR 1966 SC 1773.
•.CHAPTERV
Of Abetment

Chapter introduction.— Chapter V relating ' to abetment applies to offences made.

punishable under newly added Sections 121A , 124A , 225A , 225B, 2944 and .304A See.
PC amending A ct 27 of 1870 (Section 13). as amended by A ct X l of 1891.

Section 107
107. Abetment of a thing.— A. person abets the doing of .a thing, who-'--
First.— Instigates any person to do that thing; or
Secondly.— Eñga9es with one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that
thing.
Ex planation person who, -by wilful misrepresentation, or by wilful.
concealment of a material fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be done, is said to instigate the
doing of that thing.
Illustration
A , a public officer, is authorized by a warrant from a Court of Justice to apprehend
Z B, knowing that fact and also that C is not Z wilfully represents to A that C is Z and
thereby intentionally causes A to apprehend C. Here, B abets. by instigation the
apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an
act, does anything in order to facilitate the commission of that act, and thereby
facilitates the commission thereof,, is said to aid the doing of that act.
Cases and Materials : Synopsis
1. Scope of the section. . . 8. A id by act.
2. Mens rea necessary. . 9. By illegal omission.
3. A betment by instigation..' . 10. Proof of abetment.
4 A betment by conspiracy. . 11. A ccessory after the fact.
S. Combined attack by several persons. . 12. Receiving unslwnped instrument.
6. Conspiracy by foreigner in foreign territory 13. Bribery cases.
to commit offence in Bangladesh. 14. Kidnapping cases.
7. A betment by aid— General, 15. Gambling cases.
Sec. 107 Of Abetment •229

16. Cases relating to enticement, abduction, 18. Procedure.

adultery, etc. 19. Attempt to abet and abetment of abetment.
17. Effect of acquittal of principal offender.
I. Scope of the section.-The-definition of'abetment' given here applies to all Acts now in force
in Bangladesh. Abetment is constituted: (a) by instigating a person to commit an offence ; or (b) by
engaging in a conspiracy to commit it ;. or (c) by intentionally aiding a person to commit it or
intentionally aids by any act or illegal commission the doing of that thing Crime may assume any of
the following shapes:-
(i) One person may persuade another to do an illegal act or aid in the commission of an. offence.
This is known as abetment: .
(ii) Two or more persons may agree to do an unlawful act or a lawful act by unlawful means. This
is known as conspiracy. It is not necessary that the abettor should concert the offence with the
person who commits it ; he may as well engage in the conspiracy in pursuance of which the
offence is committed.
(iii) Two or more persons may directly participate in the commission of an illegal act. The word
'instigate' and "aids the doing of an act" require a little explanation.
The former means to goad or urge forward or to provoke, incite or urge or encourage to do an act.
A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures or attempts to cause or.procure a thing to be done, is
said to instigate the doing of that thing. A person is said to aid the doing of an act who either prior to
or at the time of its commission does anything in order to facilitate the commission of that act, and
thereby facilitates the commission thereof. Abetment cannot refer to any act done after the commission
of the offence. "Instigation" to commit offence may be-done by letter or telephone or through a third
party. Mere presence without proof of any act or omission done to facilitate the offence or at least
without proof of a common intention is not an abetment (42 CrL.J 603). It is open to the prosecution
to bring a charge of abetment generally. The charge will amount to notice to the accused that they have
to meet a case of abetment in one or more of the different ways indicated in section 107, Penal Code
(AIR 1938 Cal 125). But a specific charge must be framed for abetment of an offence. A general charge
of instigating various persons to commit dacoity is bad. Separate acts of abetment must be distinctly
specified. There is no bar in law to convict a person of abetment without a distinct charge if the
circumstances bring the case under section 237 CrPC (47 CrLJ 968). It is however to be noted that the
accused can be convicted of abetment where only the principaloffence has been charged, if the same
facts support a charge for abetment as well as charge for the principal offence, but not if the addition of
a charge for abetment would introduce new facts which the accused had no opportunity to meet (47
CrLJ 1118). If the accused had notice of the facts, which constituted abetment, although the charge was
one for main offence and if there has been no prejudice to the accused by the omission to frame a
separate charge for abetment, he can be convicted for abetment even though the charge for the main
offence fails (PLD 1963 Dhaka 608). It is however to be noted that if the principal offence has not been
made out there can be no question of abetting the principal offence (PLD 1960 Dhaka 723).
(2) The offence of abetment—the gist of the offence is doing of a thing or instigation of doing a
thing or aiding of doing a thing. The offence of abetment is complete when the offence is committed
due to the abetment. Mofazzal Hossain Vs. The State, BSCD, Vol II, p 139.
230 Penal Code Sec. 107
(3) The law clearly provides that the punishment to be awarded to the abettor must not be higher
than that of the principal accused. A shrafuddin Sekandar (Major Rtd) and others V s. The State— 3
MLR (1998) (AD) 164.
(4) No charge of abetment against any accused can be framed without sufficient incriminating
materials on record. The State Vs. Khondaker Md. Moniruzzaman 1 MLR (1996) (AD) 369.
(5) The intentional aiding of the doing of a thing by omission constitutes abetment. A shraf A li
Vs. State (1957) 9 DLR 41.
(6) Abetment must be an act facilitating the commission of the offence, it must be some act done
either prior to or at the time of the commission of the offence, and it cannot refer to any act done after
the commission of the offence. A bdzil LaqfMridha Vs. Crown (1956) 8 DLR 238.
(7) Abetment of an offence is not a minor offence of the substantive offence within the meaning of
section 238 Cr.P.C. The substantive offence and its abetment are two distinct offences and each has got
its ingredients. The ingredients that must be proved for the abetment of an offence are quite different
from those required to establish the substantive offence. A charge for the substantive offence as such
gives no intimation of atrial to be held for abetment. Tainiza Khatoon Vs. State (1972) 24 DLR 57.
(8) The appellants Abul Lais and Cherag Mi's lands were contiguous to the land of Rajjab Au
(deceased). In a dispute over an 'all', between Abul Lais and Cherag Ali on the one side and Rajjab
Ali on the other side, Rajjab Ali was found accusing Abul Lais of having removed the 'all', and began
removing earth from his land and placing the same in Abul Lais's land with a view to restoring the
'au' to its original site. At this, Cherag All held Rajjab All's loin with both hands from behind (the
purpose being to prevent Rajjab Ali from encroaching upon Abul Lais's land by removing earth) and
Abu[ Lais who was in front, facing Rajjab AR suddenly dealt a blow on Rajjab Al's Chest with a pen
knife in his pocket. Rajjab Ali was then removed to his house where he died soon after. The Trial
Court convicted Abu] Lais under section 302 P.0 and Cherag Ali under section 302/109 P.0 and
sentenced both to transportation for life. In an appeal before the High Court it was Held: As there was
no evidence to suggest that Cherag Ali knew that Abul Lais had a knife in' his pocket and would cause
an injury of the deceased, there can be no abetment of the offence to bring Cherag Al's act within the
mischief of section 107 P.C. A bul Lais Vs. The State, (1970) 22 DLR 418.
(9) "Abetment" what it means—Anything done under duress or coercion does not constitute
abetment. State Vs. Makbuj Hossajn (1974) 26 DLR 419.
(10) The deceased was chased by persons armed with knives and when the deceased fell down, the
order to beat was given by Abdul Bepari who had been -convicted under sections 302/107 by the
Sessions Judge. It was contended on behalf of Abdul Bepari that he by giving an order to beat' cannot
be said to have abetted the murder of the deceased. Held: Order to beat had been passed when the
assailants were all armed with knives and Abdul Bepari must have known what the consequences of his
order would be. It cannot be urged on his behalf that when he gave the order to assault he did not
intend the murder of the deceased. Stare Vs. Bahar A li and others (1959) 11 DLR 258 = (1959) PLD
(Dac) 832).
(11) Merely because an ante-dated document is executed by a person the receiptent under the said
document cannot be as a matter of course convicted for abetment unless there be clear evidence in that
behalf—Of course the fact that a person is a recipient under a forged deed is a circumstance showing that
he is a party to the said offence but it is never conclusive—The Courts below could not appreciate the
Sec. 107 Of Abetment + 231
difference between substantive offence of forgery and abetment thereof will be clear from the findings and
order made by the trial court. The trial Court found.that accused persons committed an offence under Ss
467/109 but while passing the order convicted all of them U/s 467, PC. Evidently both were wrong
but the lower appellate Court and the High Court Division overlooked this apparent error and instead
of correcting the same they themselves followed the line of trial court. Joy Chandra Sarker & others
V s. The State, BSCD, Vol VI p. 30.
(12) This section defines "abetment" as comprising: (a) instigation to commit the offence; (b)
engaging in conspiracy to commit the offence; and (c) aiding the commission of an offence. AIR 1940
Born 126.
(13) Abetment necessarily means some active suggestion or support to the commission of the
offence. AIR 1921 Pat 286 .
(14) Abetment does not itself involve the actual' commission of the crime abetted. It is a crime
apart. AIR 1925 PC 1.
(15) On the death of the principal offender, possibility of proving the guilt seems bleak.
2. Mens rca necessary.—(1) If the person who lends his support does not know or has no reason
to believe that the act which he is aiding or supporting was in itself a criminal act it cannot be said that
he intentionally aids or facilitates the commission of an offence and that he is an abettor. A IR 1957
All 184.
(2) In order to convict a person of abetting the commission of a crime, it is not only necessary to
prove that he has taken part in those steps of the transaction which are innocent, but in some way or
other it is absolutely necessary to connect him with those steps of the transaction which are criminal.
AIR 1953 Madh B 155
(3) An accomplice is a guilty associate in crime or who sustains such a relation, to the criminal act
that he could be jointly indicted with the' principal. AIR 1936 Nag 245.
(4) Where money was obtained by. extortion by way of bribe, the person who gave the money
would not be an abettor of the offence of taking bribe. AIR 1969 SC 17
(5) Where A and B, soldiers, were practising at target shooting without due care in a place near a
public road, and B's shot killed C, the Court while convicting A and B for an offence under Section
304—A found it unnecessary to call in aid S. 34 or S. 107. AIR 1962 Born 243.
3. Abetment by instigation.—(l) The word "instigate" literally means to goad, urge forward,
provoke, incite, or encourage to do an act. A person is said to instigate another When he actively
suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the
form of express solicitation or of hints, insinuation or encouragement. To constitute instigation it is
not necessary that express words should be used to indicate what should be done by the person to
whom the directions are given. 1977 Cr1LINOC 96
(2) While there has to be a reasonable certainty in regard to the meaning of the words used in order
to decide whether there was incitement, it is not necessary in law to prove the actual words used. AIR
1957 All 177.
(3) The question whether the presence of the person concerned is such that it directly encourages
the offender is not a matter of presumption arising from his relationship to the offender. It depends upon
the evidence in each case. AIR 1960 Born 393.
232 Penal Code . Sec. 107

(4) It is not necessary in law for the prosecution to prove that the actual operative cause in the
mind of the person abetted was the instigation and nothing else, for it is humanly impossible for any
tribunal to decide exactly how much the instigation actually weighed in the mind of the person abetted.
A IR 1938
. Mad 996
(5) In the following cases the accused was held guilty of abetment by instigation:—
(a) Instigating raider or leader of raid, in which death is caused amounts to abetment of murder—
All who joined the raid or personally directed it held to be guilty of murder under S. 302/109.
A IR 1934 Cal 221. . ..
(b) Widow deciding to commit Sati ( suicide)—Members of funeral procession of her husband
applauding her resolve by shouting Sati Mata Ki Jai—Held kind of instigation to commit
Sati ( suicide). A IR .1958 Raj 169. . .
(c) Where a hut was set on fire by one of the members of the unlawful assembly in consequence of
the order given by the accused, the conviction of accused under Section 436 read with S. 109
was not illegal. A IR 1958 SC 813.
(6) In the following cases the accused was held not guilty of abetment:—
(a) Unlawful assembly consisting mostly Of servants and tenants—Master nowhere near scene of
occurrence—Mere fact that members were servants or tenants of master is not enough to make
master liable. AIR 1946 All 457.
(b) Presiding over meeting where revolutionary songs are sung. AIR 1932 Cal 549.
4. Abetment by conspiracy.—(l) The distinction between the offence of abetment by conspiracy
and the offence Of criminal conspiracy so far as an agreement to commit an offence is concerned is that
for abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place
in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of
criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. AIR 1962
SC 876.
(2) Where, a criminal conspiracy amounts to an abetment under Section 107, it is unnecessary to
invoke the provisions of Sections 120A and 120B, as the Code has made a specific provision for the
punishment of such a conspiracy. AIR 1960 Pat 459.
(3) It is not necessary that the abettor should concert the act with the person who actually commits
it. It is sufficient if he engages in the conspiracy in pursuance of which the act is done. A IR 1950,
All 412: '.
(4) A person constitutes himself an abettor by intervention of a third person without any direct
communication between himself and the person employed to do the thing. 'AIR 1946 Sind 1.
5. Combined attack by several persons.—(1) Where several persons combine to attack another
person each can be said to be abetting the conduct of the others within the meaning of this section. AIR
1936 All 437.
(2) Where two persons set out to accomplish a particular act and agree that if the necessity should
arise, they would resort to the use of fire-arms with which they provide themselves, and on the
necessity arising one of them indulges in shooting, the other must be treated as having abetted the
shooting, as this takes place in pursuance of the common intention which inspired the two persons.
A IR I9i9OudhI6O. ' . .
4 -
Sec. 107 Of Abetment 233

6. Conspiracy by foreigner in foreign territory to commit . offence in Bangladesh^ (])

Where A, a foreigner, conspired with B in foreign territory to instigate C in India to forge an entry in a
Khatand B, in pursuance of the conspiracy, handed over the Khata to C in India, it was held that the
abetment by conspiracy by A was complete , when the Khata was handed over to C, and that the
abetment was therefore made in India and the Court in India had jurisdiction to try A for the offence of
abetment of forgery. (1912) 13 CrILJ 426. . . .
7. Abetment by aid—GeneraL---(l) An essential ingredient of the offence of abetment by aid is
that the act or omission which, constitutes the aid must have been done intentionally. A IR 1-977
SC 666
(2) An essential ingredient of the offence of Abetment- by aid is that the aid must have been given
either.priorto or at the time of the commission of the offence abetted. A IR 1978 RajLW I..
(3) Aiding in the preparation for the commission of an offence does not amount to aiding in the
commission of the crime and hence will not amount to an abetment of the crime or even of an attempt
to commit the crime. A IR 1925 Oudh 158. '. .
(4) A, a Superintendent of Police, gives B four hundred-rupee notes and asked him to go to the
office of C. a private detective (who was suspected of attempting to commit robbery) to make it feasible
for C to rob B. It was held that A cannot be said to have aided the commission of the offence of
robbery, inasmuch as A had no communication with C whatever in matter. A IR 1936 Rang 242.
S. Aid by act.—(I) If a person joins another in the commission of a crime by which he is to
benefit and which it would not bepossible to commit but for his aid, he is guilty of the commission of
the crime and not merely of its abetment. A IR 1951 East Pun] 418.
(2) The presence of a person' of authority which aids the commission amounts to abetment. A IR
1950 Tray -Co 9. .
(3) However insignificant the aid may be, it would be abetment if it was given with the requisite
intention or knowledge. The test is not to determine whether the offence would or would not have been
committed if the aid had not been given, but whether the act was committed with the aid of the abettor
in question. A IR 1.966. Born 393.
(4) Knowledge that an offence is being or would be committed is necessary to constitute the offence
of abetment by aid. A IR 1956 Born 265.
(5) In the following cases the accused was held to have aided by an act the commission of an
offence:— , .. .
(a) A. purchased in Calcutta drigs from B, the manufacturers for 'sale at Nasik—Drugs of sub-
standard quality—B abetted A in commission of offence under S. 13(a), Drugs Act, A IR 1962
Born 21.
(b) Widow deciding to commit sati (= suicide)—Members of funeral procession shouting "Sati
Mata Ki jai" and taking her with bier to cremation ground—Members also preventing police
from interfering—Aiding widow o commit suicide. A IR 1958 Raj 169.
(c) Accused holding victim's hands to facilitate stabbing by another. A IR 1955 Tray Co 266
(d) One of the accused standing close with open knife when other accused committed rape was
- held guilty of abetment of rape by aid. A IR 1953 A jmer 12. -
(e) A posing as a big merchant .cheating B and gathering money from him—C a close
acquaintance' of A accompanied A to settle the transaction and allowed himself to pass as
Munim' of A, C was held guilty of abetment of cheating. A IR 1952 A jmer 60.
234 Penal Code Sec. 107

(f) Accused holding X and permitting B to stab X . AIR 1950 Kutch 5.

(g) Hodling victim in grib while another deals fatal blow. 41R 1950 Tray-Co 41.
- (6) In the following cases the accused was held not to have aided by act:
(a) Accused found guilty under Ss. 148 and 302—When accused 2 to 6 were found guilty
under Ss 302 and 34 they could not be, guilty under S. 302 read with Section 109. AIR
1956 TC 230.
• (b) Two accused catching deceased—Third accused having no axe with him at that moment
snatching it from one of the other accused and inflicting fatal blow on deceased—First two
accused cannot be held guilty of abetment of murder. AIR 1955 NUC (Say) 5754.
9. By illegal omission.—(l) The presenëe of a person of authority at the place of occurrence which
aids the commission of the offence without doing anything to prevent it will amount to abetment. AIR
1950 Tray-Co 9. •.
(2) A mere failure to warn does not amount to abetment. AIR 1955 HimPra 15. (Wife not warning
husband of paramour's plot to kill him.)
(3) A connivance does not amount.to abetment. AIR 1967 Pat 312.
(4) In the following cases the accused was held guilty of abetment:—
a) Civic guard accompanying police constable during his attempt to extort. AIR 1948 cal 47.
(b) Truck driver allowing unlicensed person to drive and sitting by his side. AIR 1947.Nag 113.
(c) Mere failure to prevent the commission of an offence is, not by itself an abetment, when there is
nothing to show that the accused instigated the commission of the offence, or helped in any
way to do it. AIR 1941 Cal 456.. -
(5) In the following cases the accused was held not guilty of abetment:—
(a) Mere omission does not amount to abetment—Servant put in charge of writing accounts-
Non-making of accounts is not abetment. (1954) ILR 33 Pat 901.'
(b) The mere omission to bring to the notice of the higher authorities offences committed by other
persons. AIR 1938 Ma4 9't. .
c) Volunteers at a meeting presided by A sounding bugle—Police asking bugler not to sound
bugle—A taking no steps to stop the bugler—No abetment. AIR 1933 Cal 36
• 10. Proof of abetment.—(1) A mere finding that the person accused of the substantive offence
could not have acted 'in the way he did, without the approval and connivance of the person accused of
abetment, is not sufficient to prove abetment. AIR 1921 Pat 304. .
(2) Where an accused is charged with abetment by instigation, there must be proof of the actual
words used by way of instigation. In the absence of such proof a conviction for abetment cannot be
sustained. ALfi 1936 Pat 608.
(3) Persons who are particeps criminis in respect of the actual crime charged whether as principals'
or as abettors when called as witnesses for the prosecution have been treated as falling within the
category of accomplice and their evidence requires corroboration. AIR 1968 PunJ 416.
• II. Accessory after the fact.—(l) If the offence has already been completed before anything was
done by the alleged abettor, any subsequent action which might many way help the main offender will
not be abetment within S. 107, AIR 1921' Pat 286,
Sec. 107 Of Abetment 235

(2) In the following cases it was held that there was no offence of abetment:—
(a) endorsing cheque fraudulently issued. 1956 MBLR (crV 444.
(b) Public servant's omission to inform superior of offence by fellow official. AIR 1938 Mad 996.
12. Receiving unstamped instrument.—.(l) Merely accepting or receiving an unstamped or
insufficiently stamped instrument is not an abetment of the execution of such instrument and, therefore
does not constitute an offence under this section read with Section 62(1)(b) of the Stamp Act, 189.
(1904) / OiLJ 874. . .
(2) A person paid a sum of money to his creditor who, on being asked for a receipt said that
he could not give a stamped receipt As he had no stamp and the person accepted the unstamped
receipt promising to affix a stamp himself. The person was prosecuted for abetment for abetment of
anffence under S. 61, Stamp Act. 1899. It was held that he was not guilty as he did not aid the
offence by any act on his part nor illegally omit to do anything which he was, bound by law to do.
(1885) ILR 8 All 18. .. .. ..
13. Bribery cases.—(I) After the introduction of S. 165A by the Criminal Law Amendment Act.
whether or not the offence of bribe-taking is committed by the public servant the offerer is guilty under
S. 165-A. A IR 1956 Manipur 9. .
(2) The fact that the public servant demanded the bribe does not affect the guilt of the giver. AIR
1952 Orissa 289.
(3) In the case of trap witness engaged for the purpose of decoying, a public official by offering
marked currency notes, the criminal intention 'of obtaining some .favour from the public servant is
wanting. AIR 1957 Ker 134. . ..
(4) Abetment by aid requires that the alleged act of aid must have been done with the intention of
aiding the commission of the offence. This principle applies also to cases of alleged acts of aid , in
taking bribe. A IR 1977 SC 666 . . .
14. Kidnapping cases.—(l) The offence is completed as soon as the minor or lunatic is taken out
of the guardianship of the guardian. AIR 1926 Paz 493.
(2) Any aid or help rendered to the kidnapper thereafter will not be an abetment of the offence. AIR
1953 Raj 127.
(3) Kidnapping on 15-4-52—Abetment alleged on 9-2-52—No proof of abetment on that date—
Charge bad. AIR 1955-Cal 100.
iS. Gambling cases.—(1) A obtained the lease of a house from the owner. He had no object at the
permitted-the house to be
time of letting it out, in his turn, to gambling parties. 'But subsequently he permitted
used by gambling parties, who created' a nuisance to the neighbours by their disorderly and noisy
behaviour amounting to an offence , under 'Section 290 of the Code. It was held that A was guilty of
abetment of the offence, though he was absent from the place on the date of the offence. (1891) . JLR 14
Mad 364. .' . . . ..
16. Cases relating to enticement, abduction, adultery, etc.—(1) Where a man has been
convicted of enticing away a married woman under Section 498, the woman herself cannot be convicted
of abetment of the offence. (1903) ILR 26 Mad 463.
17. Effect of acquittal of priflcipal offender.—(l) Wherean abettor and'principal are tried
together, and the principal is acquitted, it does not follow that the abettor also must be acquitted. AIR
1958 SC 813. '
236 Penal Code Sec. 108

(2) In cases where the abetment • consists of instigation or conspiracy, it is immaterial for the
conviction of the abettor whether the person instigated commits the offence or not. AIR 1967 SC 553..
(3) In cases where the abetment consists of instigation or conspiracy it is immaterial whether the
persons conspiring.together actually carry out the objects of the cànspiracy. AIR 1959 SC 673.
(4) Where the indictment charges that A, B and 'C combined, confederated, and agreed together to
do a certain thing and A and B are acquitted of the charge, it is inconsistent with the finding that there
could have been any combination, confederation or agreement between them,'ànd C alone cannot be
held guilty of the charge. AIR 1956 SC 33.
(5) Where the person charged with the substantive offence is acquitted on the ground that he had
not committed the offence no question of intenionally aiding by .any . act or omission the commission of
that offence arises. Therefore, whether the acquittal of the principal is right or wrong, the person alleged
to have abetted by aid cannot be convicted of abetment. AIR 1959 SC 673.
(6) As a general rule a' charge of abetment fails when the substantive offence is not established
against the principal but there may be exceptions. AIR 1970 SC 436
(7) It cannot be held in law that a person cannot ever be convicted of abetting a certain offence
when the person alleged to have committed that offence in consequence of the abetment has been
acquitted. The question of the abettor's guilt depends upon the nature of the act abetted and the manner
in which the abetment was made. AIR 1967 SC 553.
18. Procedure.—(l) If the accused had notice of the facts which constituted abetment and if there
had been no prejudice to the accused by the omission to frame a separate charge for abetment, he can be
convicted for abetment even though the charge for the main offence fails. AIR 1956 4ndh 31.
(2) Where the facts alleged in a complaint disclose an offence of abetment by conspiracy, for taking
cognizance of the said offence, no consent or sanction under S. 196, Criminal P. C., is necessary. AIR
1962 SC 876. . . ,.
(3) Where'an accused is charged for committing an offence and the facts disclosed in the allegatiqns
show that he is guilty of abetment of the offence, the Court can alter the charge to one of abetment if no
prejudice is caused to the accused thereby. The alteration can be done at any stage of the trial if the facts
disclosed during the trial show that the accused is guilty of abetment. AIR 1962 Born 21.
19. Attempt to abet and abetment of abetment.—(1) Assistance in the. preparation for the
commission of an offence which is ultimately not committed cannot amount to an abetment or attempt
to abet. A IR 1925 Oudh 158.
(2) Where A instigates B to offer a bribe to a public servant. A is guilty of an abetment of
abetment under Explanation 4 to S. 108. AIR 1934 Pesh 110.

Section 108
108. Abettor.— A person abets an offence, who abets either the commission of an
offence, or the commission of an act which would be an offence, if committed by a
person capable by law of committing an offence with the same intention or knowledge
as that of the abettor. .
Explanation 1—The abetment of the illegal omission of an act may amount to an
offence although the abettor may not himself be bound to do that act.
Sec. 108 Of Abetment 237

Explanation 2.— To constitute the offence of abetment it is not necessary that the
act abetted should be committed, or that the effect requisite to constitute the offence
should be caused.
Illustrations
(a) A instigates B to murder C B refuses to do so. A is guilty of abetting B to commit
murder.
(b) A instigates B to murder . D. B in pursuance of the instigation stabs D. 'D recovers
from the wound. A is guilty of instigating B to commit murder.
Explanation 3.— It is not necessary that the person abetted should be capable by
law of committing an offence; or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge.
Illustrations
(a) A , with a guilty intention, abets a child or a lunatic to commit an act which would
• be an offence, if committed by a person capable by law of committing an offence, and
having the same .inten?ion. as' A . Here A , whether the act be committed or not, is guilty of
abetting an offence. .
(b) A . with the intention of murdering Z, instigates B, a child under seven [?
Now 'nine'. See Ss. .82-83] years of age, to do an act which causes Zs death. . B, in
consequence of the abetment, does the act in the absence of A and thereby causes Zs
• death. Here, though B was not capable by law of committing an. offence, A is liable to be
punished in the same manner as if B had beeñ'capable by law of committing an offence,
and had committed murder, and he is therefore subject, to the punishment of death.
• (c) A instigates B to . set fire to a dwelling-house. B, in consequence of the
unsoundness of his mind, being incapable of knowing the nature of the act, or that he is
• doing what is wrong or contrary to law, sets fire . to the house in consequence of A 's
instigation. B has committed no offence, but A is guilty of abetting the offence of setting
fire to a dwelling-house, and is liable to the punishment providedfor that offence.
(d) A , intending to cause a theft to be committed, instigates B to take property
belonging to Z out of Zs possession. A induces B to believe that the property belongs to
A . B , takes the property out of Z's possession in good faith, believing it to be A 's properly.
B, acting under this misconception, does not take dishonestly, and therefore does not
commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B
had committed theft.
Explanation 4.— The abetment of an offence being an offence, the abetment of
such an abetment is also an offence.
Illustration
A instigates B to instigate C to murder Z B accordingly instigates C to murder Z and
C commits that offence in consequence of B's instigation. B is liable to be punished for
his offence with the punishment for murder , and as A instigated B to commit the offence.
A . is also liable to the same punishment.
238 Penal Code Sec. 108

Explanation 5.—It is not necessary to the commission of the offence of abetment

by conspiracy that the abettor should concert the offence with the person who
commits it. It is sufficient if he engages in the conspiracy in pursuance of which the.
offence is committed. -.ol
Illustration ., S •' ..

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the
poison. B then explains, the plan to C mentioning that a third person is to administer the
poison, but without mentioning A 's name. C agrees to procure the poison, and procures
and delivers it to B for the purpose of its being used in the manner explained. A
administers the poison ; Z dies in consequence. Here, though A and C have not conspired
together, yet C has been engaged in the. conspiracy in pursuance of which Z has , been
murdered. C has therefore committed the offence defined in this section and is liable to
the punishment for murder.
Cases and Materials Synopsis
1. Scope of the section. 5. Explanation 4.
2. No question of abrtment after offence Is -6. Explanation 5.
completed. 7. "Procedure.
3. Explanation 2. 8. Complaint.
4. Explanation 3.
1. Scope of the tinn.—( I) The offence of abetment is a substantive offence. Therefore, the fact
that the principal cannot be brought to trial does'.not prevent a charge of abetment against the abettor.
Even, the acquittal of the principal is no bar to conviction of the abettor. In order to constitute an
abetment intention is essential. Where it is alleged that .a person's motor car was used for an
abduction, unless there is some evidences that the motor car was so used with his knowledge or under
his orders, the mere fact that his motor car was used certainly does not bring him within the definition -
of abetment. Where, therefore, abduction-was never committed, section 109 can have no application.
- (2) Abettor—Principal accused acquitted of the offence—Whether abettor will also be acquitted of
the same offence depends upon the nature, of a particular case—Charge of abetting a known person or
unknown person. A bdus Shukur Vs. State (1964) 16 DLR (Dac.) 147.
(3) No hard and fast rule that when the, person who was charged with substantive offence is
acquitted the abettor must also be acquitted—That depends upon evidence. Shamak Vs. State (1965)
I7DLR 222.
(4) Right of private defence being available in the present case the fact that the man abetted caused
the death of a person will protect both the abettor and the man abetted'from penal consequence—If,
however, the man abetted kills the other man which exceeds his right of private defence of property, to
that extent, he is liable Of being found guilty. Zainal Abedin Vs. The State, (1970) 22 DLR 69.
(5) If there is no abetment at all as defined in S. 107, 1. e., by instigation, conspiracy or aid, there
is no question of any abetment of an offence. !LR (1956) JAil 10 (DB).
(6) There is no question of any abetment of offence where the act abetted is not an offence. 1968
CriLi 555 (A ll).
(7) It is not an offence to escape from unlawful custody and persons abetting the escape are not
- guilty of abetment of any offence. AIR 1914 Cal 272.
Sec. 108 Of Abetment 239

(8) Abetment is an offence made punishable by Spi. Court (I BLC 300). 45 DLR (AD) 48.
(9) An abettor in principle ought not to be awarded a higher punishment that the meted out to the
principal offender. (46 DLR 212. / BLC 300). 50 DLR (AD) 108:
2. No question of abetment after offence is completed.—(I) After the offence is completed, any
support. aid or help to the offender is not an abetment of the offence. (1898) 2 Cal WN 81.
(2) Where a forged receipt had been brought into existence and it was' intended by the parties that
it should be attested by X and X attested it subsequently, it was held that in view of the said intention.
the offence of forgery could not be said to be complete until it was so attested and that, therefore, X was
guilty of abetment. AIR 1942 Mçid 92.
3. Explanation 2.—(1) The offence of abetment • is complete when the alleged abettor has
instigated another or engaged with another in a conspiracy to commit the offence. It is, not necessary for
the offence of abetment that the act abetted must be committed. AIR 1967 SC 553.
(2) The acquittal of the principal is not necessarily a bar to the conviction of the abettor. AIR. 1924
Cal 257. . . .. .
- 4. Explanation 3.-. (I) It is also not necessary that the person abetted should have the same
guilty intention or knowledge as that of the abettor or any guilty intention or knowledge. (1971) 73
Born LR 245
(2) Where X haliig given his daughter M who was only aged 8 years in marriage to Y, again
gives her in marriage to Z during the lifetime of her first husband, it was held that he was guilty of
abetting an offence under S. 494 of the Code, even though M had not the knowledge and intelligence
• necessary t hable teflo commit an offence under S 494 of the Code (1902) 6 Cal W N 343
(3) The fact that the principal cannot be brought to trial does not prevent a charge of abetment
nst the abettor. AIR 1952 Cal 759
l (4) Where accused No I got poisoned from accused 2, her lover, and administered it to her
husband. to make him less quarrelsome towards her, but the poison itself was prepared by accused 2
and 3 knowing that it contained 'Dhatura poison' it was held that the act of accused No I amounted
to an offence under S 337 whereas that of Nos 2 and 3 amounted to an offence under S 307 read with
S 109 and . S. 328 read with S 109 respectively. AIR 1916 Born 98
(5) This explanation is not confined to abetment by instigation alone but applies also to abetment
by intentional aiding AIR 1933 A11,513.
(6) Where B demand bnbe and A gives the bribe only with a view to trap B A will not be
guilty, of abthts jIIè is ñomens rea on his part. AIR 1957 Ker 134.
(7) A person who bribes a public servant in order to avoid pecuniary Injury, personal molestation
or to have. his business done promptly and well is an accomplice. AIR 1950 Nag 1.
(8) The giver of a bribe would not be an abettor if he gave it in response to a demand accompanied
by threats. AIR 1969 SC 17, .
5. Explanation 4.—(I) An. abetment of an offence is an offence even if the abetment abetted is not
committed and is ineffective. AIR 1950 Mad 827.
(2) S approached K, the Bench Clerk of a Magistrate, to incite K to instigate the Magistrate to take
a bribe and acquit an accused person. K, after consulting the Magistrate and with a view to causing
detection, placed a Police Inspector behind a screen in his house, and took the money from S, when the
C

240 Penal Code Sec. 108A-109

Inspector seized the money and S was charged with offences under Ss. 161 and 109 of the Code. It was
held that it made no difference in the guilt of S as an abettor of an abetment of an offence, that K did not
commit the offence abetted namely the bribing of the Magistrate. AIR 1919 Cal 654.
6. Explanation 5.--(1) A person may constitute himself an abettor by the intervention of a third
person without any direct communication between himself and the person employed to do the thing..
A IR 1950 A ll 412;
7. Procedure.—(1) Section 198, Criminal P. C. , does not apply to a case of a charge for
abetment of an offence under S. 494 of the Code. A IR 192641/189. -
8. Complaint.—Not court shall take cognizance of any offence punishable under this section upon
complaint made by the order of Government (section 196, CrPC).

Section 108A
1 [108A. Abetment in 2 lBangladeshI of offences outside it.--A person abets an.
offence within the meaning of this Code who, in 2[Bangladesh], abets the commission
of any act without ond beyond 2 [Bangladesh] which would constitute an offence if
committed in 2[Bangladesh].
illustration
A , in 2[Bangladesh], instigates B, a foreigner in Goa, to commit a murder in Goa. A
is guilty of abetting murder]. . .
Cases
1. Scope of the sectioá.—( 1) A child marriage celebrated outside India not being an offence under
the Code (but under a special Act) its abetment in India is not an abetment within the meaning of this
section. A IR 1938 Nag 235.
(2) Where the act attributed to the accused does not constitute "abetment" as defined in S. 107,
this section will not apply. (1900) ILR 24 Born 287.
(3) Where a subject of aforeigñ territory is charged with abetting an offence commited in India and
the alleged abetment consists entirely of what the accused did or said at a place within foreign territory,
he cannot be tried in a Court in India for such abetment. AIR 1919 La/i 459.

Section 109
109. Punishment of abetment if the act abetted is committed in consequence
and where no express provision is made for its punishment.—Whoever abets any
offence shall, if the act abetted is committed in consequence of the abetment, and no
express provision is made by this Code for the punishment of such abetment, be
punished with the punishment provided for the offence.
Explanation.— A n act or offeice is said to be committed in consequence of
abetment, when it is committed in consequence of the instigation, or in pursuance of
the conspiracy, or with the aid which constitutes the abetment.

1. This section was added by the Indian Penal Code (Amendment) Act. 1898 (Act IV of 1898), s. 3.
2. The world "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973, Second Schedule (w. e. f. 26th
March, 1971). . ..
Sec. 109 Of Abetment 241

Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in
the exercise of Bs official functions. B accepts the bribe. A has abetted the offence
defined in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation, commits
that offence. A is guilty of abetting that offence and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A , in pursuance of the conspiracy, procures the
poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the
conspiracy, administers the poison to Z in A 's absence and thereby causes Zs death.
Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable
to the punishment for murder.
Cases and Materials: Synopsis
1. Scope. 12. "Be punishable with the punishment provided
2. This section and Section 114.- for the offence."
3. There must be an abetment. 13. Sanction if necessary in cases of abetment.
4. The abetment must be of an act which is an 14. Charge of abetment of offence-Caurt's duty.
offence. 15. A cquittal of principal offender-Liability for
S. The A ct abetted must be committed In abetment.
consequence of the abetment. 16. Conviction for abetment before apprehension
6. Master and servant. of principal offender.
7. There must be no other express provisions. 17. A lteration of conviction for principal offence
8. Distinction between Section 109 and Section to one of abetment.
34, Penal Code. 18. Sentence.
9. 'Any offence." 19. Practice.
10. Person who cannot commit substantive 20. Procedure-
offence if can be guilty of abetment. 21. Charge-Form of
11. Several persons charged with abetting an 22. Complaint.
offence by X -Some acquitted-Effect. 22. Complaint
1. Scope.-Section 109 has no application where the offence is never committed (35 CrLJ 52).
For the application of section 109, it is necessary that the act must be an offence either under the Penal
Code or under any special law. Muslim family Law Ordinance is one of the special laws. Active
abetment at the time of commission of an offence is covered by section 109. Section 114 applies where
a person abets the bffence sometime before it is committed and is subsequently present at its
commission (38 Cj-LJ 790). Where the abetment was committed at the time when offence was being.
committed the section applicable is section 109 and not 'section 114 (A IR 1948 A ll 168). Abetment
need not be by instigation. It may be by conspiracy, the proof of which is generally a matter of
inference (A IR 1944 J,h 380). Offences under sections 109 and 120B are distinct. Conspiracy to
commit an offence is itself an offence and a person can be separately charged with respect to such
conspiracy. There is no analogy between section 120B and section 109 Penal Code. There may be an
La
C" element of abetment in a conspiracy, but conspiracy is something more than an abetment (16 CrLJ
456). A charge of abetment may be tried either by the Court within whose jurisdiction the abetment or
242 Penal Codç Sec. 109
the main offence was committed (section 180 CrPC). There is no warrant for limiting the prosecution
to only one element of conspiracy, that is, abetment when the allegation is that what a person did was
something over and above that (1961 crLJ 302). The offence of kidnapping is complete the moment
the minor is taken from the keeping of his guardian. There can, therefore, be no abetment or taking after
the minor has been completely removed (17 CrLf 498). A married woman cannot abet her own
abduction under section 498 Penal Code. A person meeting dacoits before a dacôity ana bringing for
them food is guilty of abetment of dacoity (35 CrLf 863)
(2) There is no distinction between 'principal in the first degree' and 'principal in the second
degree'. Under section 111 of the Penal Code an abettor is liable for a different act if that was probable
consequence of the abetment. This is applicable to the accused guarantor. Islami Bank Bangladesh Ltd.
Vs. Md. Habib and others (Criminal). 55 DLR (A D) 19.
(3) If the principal offender is not punished under any of the sections, no question of inflicting
punishment for abetment of offence in, respect of those sections can arise. A lam (Md) & another Vs.
State (Criminal) 54DLR 298.
(4) Abetment is an offence under the Penal Code. A person may be charged for abetting an offence
nade punishable unde'rr a special act even though abetment may not have been mentioned as an offence
under the special law '. Tajul Islam Vs Gobinda Práshad Das and others (Criniinal) 54 bLR 436.
(5) Abatement is an offence under the Penal Code and a person may be charged for abetting an
offence pishabIe under a special law even though the word 'abetment' may not be mentioned as an
offence under the Special A ct. Hussain Mohammad Ershad, former President Vs. The State, 14 BLD
(AD) 178. . .
(6) Abetment of offence—Mere presence of the accused near the place of occurrence does not
constitute the offence of abetment. Intentional aiding and active complicity is the gist of the offence in
the absence of which the chargé of abetment must fail. Moslain Mollah Vs. State 44 DLR295.
(7) Common intention having been not proved against Beta], it is difficult to hold good the charge
of abetment upon him. Bela! Ahmed Vs. State 40 DLR 154.
(8) Non-consideration of a vita! element of law while convicting the accused has caused serious
prejudice resulting in failure of justice to the accused. Bela! Ahmed Vs. State 40 DLR 154.
(9) In order to constitute an abetment, intention is essential. Where the accused have no
knowledge of the fraud, they could not have intended the commission of an offence. Crown Vs. Matilal
Sen (1953) .5 DLR 66; .
(10) Identity of the accused not established—Abetment charge must fail. State Vs. Makbul Hossain
(1974) 26 DLR 419. .
(II) It is an offence by itself and unless it is specifically made punishable in a Special Act a person
cannot be called upon to answer a charge of abetment in the absence of any specific provisions in the
Speial Act itself merely by reference to the Penal Code—Section 6(5) of the Muslim Family Laws
Ordinance, .1961, indicated that the person who contravenes, the provisions of the Ordinance is alone
• liable for prosecution and none else. A bdul Halim Pattader and others Vs. M. Rahmat A li and another
/ BLD (HCD) 377.
(12) For sustaining a charge of abetment, some evidence of an overt act or omission necessary—
Mere, motive is not sufficient evidence of abetment. Muradq/j Vs. The Stale, (1970) 22 DLR .158.
(13) Petitioner, charged for and convicted of, the principal offences u/s 325 and 323 but the Trial
Court,and the appellate court found on evidence that he himself did not commit the offences, but
S
Sec. 109 Of Abetment 243
merely abetted it—As there was no charge for the abetment u/s 109, whether he could be convicted for
abetment—Whether his conviction for the principal offence was sustainable—Omission supplied by the
A ppellate Division at special leave stage. E,ar A ll Shaikh & ors. Vs. The Stated BSCD, Vol VI, p. 30.
(14) Justifiability of awarding of the maximum punishment of 10 years under second part of Sec.
304—Appellant was convicted under second part of Sec. 304 for giving order to the principal accused
to fire from his rifle in coisequences of which the offence was committed—Principal accused has not
preferred any appeal and his substantive sentence of 10 years was upheld by the High Court Division—
It is difficult to reopen the question of sentence as u/s. 109 PC—Both the principal offender and the
abettor are entitled to the same sentence—Since the appellant has served out the sentence, no useful
purpose will be served in entering into the question of sentence in the case. Md. Eshaque Tahshilder
Vs. The State, 43 DLR (A D) 203:
(15) When the principal accused is acquitted the-abettor need not necessarily be acquitted. Whether
the abetter can be convictor not in such cases depends on the circumstances of the particular case. ILR
(1974) 1 Punj 449.
(16) If the main offences under Ss. 161. 165A, 409, 420 of P. C. are not made out, the question of
abetment, conspiracy or attempt in relation to them does not arise because offences under Ss. 109,
120B and 511 go with the aforesaid offences. 1984 CriLJ 545.
(17) According as the offence abetted is bailable or not—Offences of murder and kidnapping are co-
extensive and there can be no conviction for both the offences. If abduction is followed by murder, no
charge can be framed under section 364 of the Penal. Code and the charge must be one under sections
302/109 or for murder pure and simple. Conduct of the accused—No evidence to suggest the intention
of the accused to kill the victim while taking him along with them—Facts,.evidence and circumstances
do not bring the case under sections 302/109 Penal Code. 42 DLR 118.
(18) Abduction or kidnapping of a girl below 16 years—Intention necessary to constitute the
offence. There is no overt act proved against accused Ananda in any conspiracy resulting in the
abduction of the victim girl by Sw .apan—ProsecutiOn failed to prove the charge of abetment against
A nanda. 41 DLR 533. . .
(19) Evidence on record does not justify the order of conviction under sections 302/109 and 148 of
the Penal Code, upheld by the High Court Division. PW4 admitted that he and the deceased were
accused in smuggling cases. The finding of the Additional Sessions Judge upon proper appreciation of
evidence of PWs 6, 87 10 including PW 4 casts a long shadow on the subsequent prosecution case. of
alleged killing of Jamshed. 40 DLR (A D) 38.. .. ..
(20) Abduction of the deceased followed by murder, proved-.Charge should be under section 302 if
the abductors were murderers; if not, the charge should be under. sections 302/109. In such a case no
scope for laying a charge under section 364. Supreme Court's judgments are binding, on all
Subordinate Courts including the High Court. 29 DLR (SC) 269
(21) Circumstantial evidence—Circumstances leading to the death of the victim cannot be brushed
aside to find the innocence of the appellants—No, other conclusion than the guilt of the accused
appellants can be drawn. 7 BCR (A D) 157.. . . . .. .
(22) Circumstantial evidence—Other evidence adduced does 'not make the Court believe and hold
that the appellants made insertion in the sale deeds as alleged—Consideration money by itself would
not show that the accused persons dishonestly inserted excess area of land in two documents—Appeal
allowed. 7 BCR (A D) 128. S
244 Penal Code See; 109

(23) The conviction of appellant Nos. 2-4 upon the evidence on record for the offence of murder
with the application of section 34 or 109 Penal Code is not sustainable in law. 40 DLR (AD) 147
(24) if at the trial the story as given against the illegal offender is omitted from the one given in
FIR it has always been viewed with great suspicion. FIR enables the court to see what was the
prosecution story at the initial stage and to check up the subsequent embellishment. There is no rule
of law that once a witness.has been discredited on one point, no credit is to be given to another, If
a natural witness is declared hostile, his evidence may be accepted if-corroborated. The evidence
of boatman PW 2 cannot be discarded. The story of taking five victims by a jeep upto school and the
victims did not raise any alarm seeking help cannot be accepted as true with easy mind. In fact,
the story suffers from inherent improbability. The prosecution case must be true and not merely may be
true. Between 'may be true' and 'must be true' there is inevitably a long distance to travel and
the distance must be covered by legal, reliable and unimpeachable evidence. Probability however
strong and suspicion however grave can never take place of proof. The trial Court in the instant case
failed to analyse the evidence on record leading to an erroneous decision occasioning failure of justice.
40 DLR 97. -
- (25) Murder and its abetment—Ingredients of—Mere taking away of the victim from his house
without any overt act animus in the form of any hostile attitude or initial intention to kill will not
justify conviction for such offences—The theory of 'last seen' must carry along with it high degree of -
probability excluding all other theoriós save and except the hypothesis of the accused. Criminal trial—
Theories of both guilt and innocence—In the face of two theories, one against the accused and the other
favouring them, the one that favours the accused must be accepted. 10 BLD 179.
(26) High Court Division's acceptance of the evidence of PWs. 1,2 and .4 just as they have
narrated a story is not correct without scrutinising at all upon a correct principle of assessment of
evidence in a criminal case whether the testimony of the witness were at all worthy of credence. The
alleged murder of Jamshed in the manner and at the time and place as stated by PW 4 Mobarak will
itself appear to be doubtful if some facts and circumstances are taken into consideration. The Additiçnal
Sessions Judge upon ' a good piece of appreciation of evidence completely disbelieved the witnesses PW
4, PW 6 and PW 8-10 and found that there was much scope to doubt about the prosecution story that
Musa was at all present on the river bank and that there was much scope to believe that Musa's name
was subsequently introduced. Not much credibility can be attached to the prosecution case after the
disaster it has met with in the hands of the Additional Sessions Judge. We. have -come to the
conclusion that the evidence on record does not justify the order of conviction under sections 302/109
and 148 Penal Code which has been upheld by the High Court Divisions. 8 8CR (AD) 17.
(27) Charge sheet having not been accompanied by sanction and the learned Special Judge having
not written for sanction as required under section 6(5) of Act No. 40 of 1958, the cognizance is not
valid. 7 BCR (AD) 189.
(28) Abduction of the deceased followed by murder, proved: charge should beunder section 302 if
the abductors were murderers; if not, the charge should be under sections 302/109. In such a case there
was no scope for laying a charge under section 364. Supreme Court's judgments are binding on all
Subordinate Courts including the High Court. 29 DLR (SC) 269.
• (29) When a party comes prepared to commit an offence and to commit a murder of somebody they
do not require further incentive in the shape of orders. Dispensation of justice—Law, not moral
- - conviction, applies. Evidence, assessment of—Caution to be exercised. 25 DLR 398.
Sec. 109 Of Abetment 245

(30) Husband contracted a second marriage during subsistence of his first. marriage without
permission of the Arbitration Council as required under section 6(5) of the Ordinance No VIII of 1961.
Held: The husband (along with those who intentionally aid in the performance,' solemnisation and
registration of such marriage) is liable to be prosecuted. It may, however, be observed that every such
case shall be decided on evidence as to whether there has been any abetment or not by persons
prosecuted under section 6(5) of the Ordinance read with section 109 of the Penal code. 23 DLR 118.
(31) Abetment for sustaining a charge of abetment, some evidence of an overt act or omission
necessary. Mere motive is not sufficient evidence of abetment. 22 DLR (WP) 158.
(32) Abducted person when found murdered trial should be under sections 302/109—The
prosecution came out with a story of abduction followed by murderand the murder was in fact proved
on post mortem examination, the appellants ought to have been placed on trial on a charge under
section 302 read with section 109 of the Penal Code for abetting the murder of deceased Latif regard
being had to the discovery of a relevant fact such as parts of a human head in consequence of
confessions made by the appellants. I BCR 13.
(33) In order to constitute an abetment of an offence under sections 406/109 Penal Code intention
is essential. A person having 'no knowledge of the fraud cannot have intended to aid the commission of
any offence. 5 DLR 331.
(34) Muslim Family Laws Ordinance—Accused contracting another marriage on 174-75 during
the subsistence of existing marriage—After dissolution of local bodies by President's Order 7 of
1972—on amendment in the definition of "Arbitration Council ""Chairman" and "Union Coucil"
having been made and no person having been appointed to discharge the function of Chairman under
the Ordinance, sections 6 and 7 of the Ordinance have been rendered nugatory—There was no
competent authority from whom the accused was required to make permission for the second marriage
and he cannot be convicted of an offence under section 6(5) of Muslim Family Laws Ordinance. The
provision of abetment has got no application with Muslim Family Laws Ordinance. I BLD 165.
(35) Special Act—Abetment—Abetment i's an offence by itself and unless it is specifically made
punishable in a special Act, a person cannot be called upon to answer a charge of abetment merely by
reference to Penal Code—The purpose of section 6(5) of Family Laws Ordinance, 1961 seems to be
that the person who contravenes the provision is only liable and nobody else. / BLD 377.
(36) Death sentence—Recognition—TI parade not held excluding the possibility of collusion.
Charge of abetment—statement of accused pointing out the house of deceased out of apprehension of
being by kidnappers all armed—Not sustainable—High Court arrived at the finding upon- due
consideration of evidence, facts and circumstances and there having been no contravention of any legal
principle no justification for interference with the order of acquittal. IBSCD 242.
(37) Evidence—Reasonable doubt—Assessment of Evidence. Accepting the prosecution cases, the
trial Court convicted and sentenced the petitioner under section 468/109 as also under section 419/109
which was affirmed by the High Court in the appeal. While examining the applicability of the principle
enunciated in the case of Safdar Ali Vs. The Crown reported in 5 DLR (FC) 107 on the question of
appreciation of evidence. The Appellate Division found that the High Court Division took note of all
the salient features of the present case including the circumstances which might lead to reasonable
doubt and applied its mind to all the important aspects of the case. I BSCD 249.
2; This section and Section 114.—(1) This section is a general provision applicable to all
abetments whether prior to or at the time Of the commission of the offence. Under this section the
accused need not be present at the time of the offence. AIR 1971 SC 885.
246 Penal Code Sec. 109

(2) Where the accused aids and abets the commission of a crime at the very time when the crime is
committed the abeimeht will come under this section. AIR 1938 Cal 625.
(3) The effect of Ss. 109 and 114 of the Code is to supersede all the English Law relating to
principles of the first and second degree and accessory before the act and there is no reason for saying
that a man 'must be absent in order to be an abettor under S. 109. A IR 1937 Pat 317.
(4) A person who instigates others to beat the deceased and they inflict several injuries on him
resulting in his death cannot escape responsibility for abetment of murder. AIR 1933 Lah 928.
3. There must be an abetment.—(l) The mere presence without more, during the commission of
an offence, is not sufficient for conviction under this section: AIR 1934 Rang 22.
(2) A conspiracy necessarily, involves a guilty intention and an act done in pursuance of a
conspiracy will be an abetment of the act. AIR 1947 Cal 162.
(3) Allottees of Government waste lands agreeing to pay price of trees standing thereon
Permission by Mamlatdar for cutting trees standing on those lands—Illegal cutting of excess trees on
allotted lands as also on the Government lands—Asst. Gram Sevak (accused No. 2) proved privy from
allotment to the illegal cutting of the excess trees—Accused held guilty under S. 167/109 and also
under S. 427/109, Penal Code. AIR 1973 SC 1388.
(4) A representing himself to be a merchant entering into bogus transaction with B and extracting
money—C accompanying A in the guise of his munim to settle transaction—C guilty of abetment of
cheating. AIR 1952 Ajmer 60.
(5) Agricultural assistant and a contractor were prosecuted for preparing false documents in order to
facilitate misappropriation of funds meant for contour bounding scheme. It was clearly established that a
substantial part of the contracted supply was not made. This finding was sufficient to warrant
conviction of the two accused under Prevention of Corruption Act and S. 109 P. C. for abetting the act.
AIR 1981 SC 721.
4. The abetment must be of an act which is an offence.—(1) Unless the act abetted would be
an offence if committed, the abetment is not punishable under this section. (1971) 2 SCJ 264.
(2) Where no particular person was found to have committed the offence which the accused could
be said to have abetted his conviction under S. 109 cannot be sustained. A IR 1939 Mad 976
5. The act abetted must be committed in consequence of the abetment.—(l) Unless the act
Abetted is actually committed, this section will not apply. AIR 1938 Mad 130.
(2) Where A instigated B to escape from lawful custody and B escaped in consequence of the
instigation, A was held guilty under S. 109. AIR 1961 Ker 331.
(3) Where A orders his men to beat B and B is beaten by the men as a consequence of the order. A
would be guilty of abetment of the offence. AIR 1976 SC 2588.
(4) Claim or work not executed—Verified and accepted—Payments made in consequence—Officers
who verified the claims wrongly were certainly guilty of abetting. AIR 1967 SC 752.
6. Master and servant.—(1) If the servants have committed an offence the master could not be
made liable without prdof that he has given his authorisation for the doing of the act. The master can
be made liable only if mens rea is proved. 1969 KerLJ2I5.
(2) Where the accused was nowhere near the scene of occurrence the mere facts that the unlawful
assembly consisted mostly of his servants or tenants and that its common object was to do something
Sec. 109 Of Abetment 247
which was in the interests of the accused, cannot lead to the conolusion that the accused must
necessarily have ordered or instigated the formation of this unlawful assembly or the commission of
this crime. 1983 CriLi NOC 134.
7.There must be no other express provisions.—(1) Where the accused abetted an offence which
was committed before an express provision for punishment of such abetment was inserted in the Code
and the trial was after the express provision was inserted in the Code, it was held that the accused
could not be punished under the newly inserted express provision but only under this section. AIR
1960 SC 409.
(2) There is no express provision for the punishment of abetment under S. 494 of the Code
consequently the abetment is punishable under S. 109 read with S. 494 of the Code. AIR 1952
Mad 193.
8. Distinction between Sections 109, 120B and Section 34, Penal Code.—(1) Section 34
embodies the principle ofjoint liability in the doing of a criminal act the essence of that liability being
the existence of a common intention. S. 109, on hte other hand, may be atteracted even if the abettor is
not present when the offence abeted is committed. Criminal conspiracy postulates an agreement
between two or more perbns to do or cause to be done an illegal act or an act which is not illegal, by
illegal means. It differs from other offences in that mere agreement is made an offence even if no step is
taken to carry out that agreement. AIR 1971 SC 885.
(2) A conviction under S. 109 can be sustained only if the part played by abettor as accessory to the
fact could be distinguished from the part played by the principal in the first degree. AIR 1924 Cal 257.
9. "Any offence".—(l) The words "any offence" in this section denote any offence punishable
under the Code or under any special local law. AIR 1952 Mad/i B 17.
(2) Where A instigates B to commit only an assault on C but B kills C. A cannot be convicted for
abetting murder. AIR 1972 SC 1764.
10. Person who cannot commit substantive offence, if can be guilty of abétment.—( 1)
Although an offence under the Suppression of Immoral Traffic Act could only be committed by a male,
and not by a female, a female could be guilty of abetment of such offence under Section 109 of the
Code. A IR 1932 Cal 457.

11.Several persons charged with abetting an offence by X—Some acquitted—Effect.—(l)
Where A and B are charged with abetment of an offence committed by C and B is acquitted for want of
evidence, the acquital does not affect the conviction of A if there is proof of his abetment. (1912) 13
CriLJ 542.
12. "Be punished with punishment provided for the offence".—(l) A person who is
punished as the principal for a certain offence cannot also be punished for abetment of the same offence.
A IR 1940 Cal 351.
(2) The words "punishment provided for the offence" means punishment provided for the offence
either under the Penal Code or by any special or local law. AIR 1929 Rang. 203.
13.Sanction, if necessary, in cases of abetment.—( I) Officer guilty of abetment of offence of
cheating—No sanction necessary. AIR 1967 SC 752.
(2) Prosecution of Tahsi(dar for certain .offences read with Ss. 109 and 12013, P.C.—Allegation of
preparation of false record of service of notice and inspection—Tahsildar acting in the discharge of his
248 Penal Code Sec. 109

official duties—Prosecution without sanction under Section 197 Criminal P.C.—Not permissible.
1984 Mah LR 247.
14. Charge of abetment of offence—Court's duty.—(l) Charges of abetment are easily made
against persons and are difficult to refute. Consequently, the evidence should be considered and
analysed and a conclusion arrived at before the accused can be convicted of abetment. AIR 1938 Pat 34.
(2) A conviction for abetment is not proper when the accused is not notified at any stage that he
would be tried for abetment and prejudice is caused to him thereby. AIR 1970 SC 436.
(3) Where the material facts were that A gave orders for attack on B and thereupon C and D caught
hold of B fast, while E and F beat B as a result of which he ultimately died, there should have been a
straight charge under sec. 304 against E and F and a charge under sec. 109 against A,C and D.
Rabbani Mondal Vs. Crown (1950) 2 DLR 73
15. Acquittal of principal offender—Liability for abetment.—(1) Where A was charged for
the offence of rape and B was charged for abetment of the offence and A was acquitted on the ground that
the prosecutrix might have had voluntary intercourse with A. B was also acquitted of the offence of
abetment. (1982) 1 BornCR 894.
16. Conviction for abetment before apprehension of principal offender.—(1) Abetment by
itself is a substantive offence and the abettor can be convicted even before the principa' is apprehended
and put on trial. 1969 KerLJ 215.
17. Alteration of conviction for principal offence to one of abetment.—(1) Charge and
conviction—Accused charged with main offence only-Omission to frame separate charge of
abetment—Accused having notice of facts constituting offence of abetment—No prejudice caused to
accused by.omission—Held, accused can be convicted for abetment even though charge for main offence
fails. 1984 CriLJ 426.
18. Sentence.—( I) In a case where two or more persons act in concert by virtue .oa common
intention and of a criminal conspiracy, their entire activities cannot, in the very nature of things, be
brought out in evidence. Obviously, such daring offences would necessarily have called for active
planning and co-operation of both these accused together and probably of others. Therefore no
distinction can be made between them even as regards sentence. AIR 1957 SC 381.
(2) Conviction of accused under Prevention of Corruption .Act and under S. 109. P.C. Accused
were given two years' imprisonment. Accused young and immature. The occurrence took place in
1963, Since then till 1980 the accused suffered an ordeal of criminal trial. Held, the ends of justice
would be met by reducing two years sentence to one year. AIR 1961 SC 721.
19. Practice.— Evidence— To substantiate a charge under section 109, Penal Code, it is necessary
to prove:
(1) Abetment.
(2) The act abetted was committed in consequence of the abetment.
(3) Intentional aid by some act or illegal omission.
It is irregular to convict and punish a person for abetment of theft and at the same time to convict
and punish him for receiving the stolen property.
20. Procedure.—(1) Cognizable, if offence abetted is cognizable and noncognizable if offence
abetted is noncognizablé—Warrant or summons as warrant or summons may issue for offence abetted—
Bailable or nonbailable as offence abetted is bailable or nonbailable—Compoundable or not as offence
abetted is compoundable or not—Triable by Court by which offence abetted is triable.
Sec. I 1 Of Abetment 249

(2) The accused No. 2 was charged for abetting the offence of criminal, trespass committed by
accused No. I by encouraging him to continue to remain in unauthorised occupation of the house from
which he was asked to quit. No notice to quit was served on them and there was no specific allegation
about the nature of the abetment said to have been committed by them. Subsequently the accused was
acquitted as the complaint against the abettor was barred by limitation. It was also held that against
abettor period of limitation starts from the date of alleged dispossession and not from date of service of
notice to vacate. 1980 41/Li 939.
1: Charge—Form of.—(l) Formal charge under Section 109 is not necessary when the facts
needed to constitute the offence are set out in the charge. The omission to mention S. 109 is not
matterial. 1974 Mad!..] (Cr1,) 471. -
(2) Form: The charge should run thus: .
1, (name and office of the Magistrat/ Judge, etc.) hereby charge you (name of the accused) a
follows:
That XY (if the person is not known say that an unknown person) on the—day of at—, committed
the offene of,—and that you at—, abetted the said XY (or person unknown) jn the commission of the -
said offence which was committed in consequence of your abetment and you have thereby committed
an offence punishable under section 109 and-----of the Penal Code, and within my cognizance (or within
the cognizance of the Court of Session.)
And I hereby direct that you be tried by the said Court ou te sqid r.4qrge.
When the abettor is charged with the person committing the offence, the charge should run thus:
Thaeyouon.'or'aboutthe—dayof-- at -.abettedthe'eomm-ission -ofthe offence of—by—which
was committed in consequence of your abetment and that you have thereby committed an offenèe
punishable under section 109 -and--of the Penal Code and within the cognizance of my COurt (or the
Court of Session).
And I hereby directihat you be triedby the said .Court .onth.e said charge
22. Complaint.—Under section .195(4) .-oftheCrPC a complaint in writing is necessary for the
prosecution of a person who abets any Of the offence referred to in sub-section (1) of section 195A of the
CrPC applies only to a prosecution for conspiracy punishable under section 1208 andnot for abetment
by conspiracy punishable under this section. (49 Cal 573).

Section 110
110. Punishment of abetment if person abetted does act With different
intention from that of abettor.— Whoever abets the commission of an offence shall,
if the person abetted does the act with a different intention or knowledge from that of
the abettor, be punished with the punishment provided for the offence which would
have been committed if the act had been done with the intention or knowledge of the
abettor and with no other.
Cases and Materials : Synopsis
1. Scope of the section. 3. Procedure.
2. Practice.' 4. Charge.
250 Penal Code . Sec. Ill
(
1. Scope of the section.—(1) This section applies where the abetted person does the very act
abetted but with a different intention from that of the abettor. If the act if done with the intention or
knowledge of the abetted person constitutes one offence, and if done with the intention or knowledge Of
the abettor, another offence, the abettor would be liable only for the latter offence AIR 1950 All 418.
(2) Where the abettor only intends that simple hurt to A should be caused' but the persons abetted
attacking A in such a way that their offence amounts to culpable homicide, the abettor will nevertheless
be liable only for simple hurt under Section 323/110 and not for culpable homicide under Section
304/110. A /R 1935 0udh473.
(3) Where the common intention of the member was to cause only grievous hurt, but one of them
committed murder it was held that the members other than the one who committed the murder would
be punishable only under Section 326 read with Section 149 and d n under Section 302 read with S.
149. A IR 1936 Pat 481.
2. Practicé.— Evidence— Prove: ( 1)that the accsed abetted the commission Ofthe offence.
(2) That the intentioi j ofthe accused (abettor)in the abetment of the commission of the offence.
(3) That the person abetted committed the,>ffece.
(4) That the intenticTh and knowledge of the person abetted in committing the offence was—which
is different from the intention and knowledge of the abettor in.abetting the offence.
3. Procedure.—Cognizable, if offence abetted is cognizable and noncognizable if offence abetted is
noncognizable—Warrant or summons as warrant or summon may issue for offence abetted—Bailable or
tonbaiIable as ,offence abetted is bailable or nonbai1able—Comoundabte or not as offence abetted is
compoundable or not-Triable by Court by which offence abetted is friable.
4. Charge.—The charge should run as follows:
l,(nameand office of the Magistrate, etc) hereby charge you (name of the accused) as follows:
That you, on or about—at—with the intention of—abetted in the commission of the offence of—.
punishable under section—Code and the said A however committed the said offence in pursuance of the
abetment but with ii different intention or knowledge from that of yours and that you have thereby
committed an offence punishable under section 109 of the Code read with section—Code and within
my cognizance and thereby direct that you be tried on the said charge.

Section iii.
111. Liability of abettor when. one act abetted .anddifferent . atdöne.— When
an act is abetted and a different act is done, the abettor is liable for the act done, in the
same manner and to the same extent as if he had directly abetted it:
Proviso.—Provided the act done was a probable consequence of the abetment,, and
was committed under the influence of the instigation, or with the..aid or in pursuance
of the conspiracy which constituted the abetment. .
Illustrations
(a) A instigates a child to put poison into the food of Z, and gives him poison for that
purpose. The child, in consequence of the instigation, by mistake puts the poison into the
I
food of Y . which is by the side of that of Z Here, the child was acting under the
Sec. Ii I Of Abetment 251

influence of A 's instigation, and the act done was under the circumstances a probable
consequence of the abetment, A is liable in the same manner and to the same extent as
he had instigated the child to put the poison into the food of Y
(b) A instigates B to burn Z's house, B sets fire to the house and at the same time
commits theft of properly there. A , though guilty of abetting the burning of the house, is
not guilty of abetting the theft , for the theft was a distinct act, and not a probable
consequence of the burning.
(c) .A instigates B and C to break into an inhabited house at midnight for the purpose
of robbery, and provides them with arms for that purpose. B and C. break into the house,
and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the
probable consequence of the abetment, A is liable to the punishment provided for
murder.
Cases and Materials Synopsis
1. Scope and applicability. . conspiracy".
2. "W hen an act is abetted". 5. Practice.
3. "Probable consequence ". 6. Procedure.
4. Under the influence...... pursuance of 7. Charge.
1. Scope and applicability.—(1) Section Iii, Penal Code lays down that when the act was a
probable consequence of the abetment and was committed under the influence of the instigation, or with
the aid or in pursuance of the conspiracy which constituted the abetment, then alone the abettor would
be liable for the act done. In order to hold a person guilty by application of section 111, the
prosecution should not only establish that the act committed was done at the instigation of that person
but also it was the probable consequence of the abetment. A IR 1962 Madhya Pradesh 91.
(2) The term 'abetment' has been defined in Section 107 of the Code. It includes not merely
instigation, which is the normal form of abetment but also conspiracy and aiding and these three forms
of abetment are dealt with in the proviso to this section. A IR 1940 Born 126.
(3) This section does not apply where the act abetted is not a criminal act. A IR 1931 Pat 52(54)
(4) Where an act is abetted but the person abetted does the act with the intention of causing greater
injury than what is intended by the abettor and the actual injury caused is not the probable consequence.
of the abetment this section does not apply. To such a case Section 110 applies and the abettor would
be liable only for what he himself intended. A IR 1935 Oudh 473.
(5) Right of the private defence—Offence committed as a result Of abetment—Right of private
defence being available in the present case the fact that the man abetted caused the death of a person
will protect both the abettor and the man abetted from penal consequences (Ref A IR 1936 A ll 437).
22 DLR69.
2. "When an act is abetted".—(I) The section does no more than declare the law according to
the common law of England under which the abetment of an act refers to the abetment of a criminal act.
Thus, peaceful picketing is not an offence but it becomes an offence if it is carried on by criminal
means. The moment the persons overstep the line between that which is lawful and that which is
unlawful action becomes a criminal offence. A IR 1931 Pal 52.
3 . "Probable consequence".—(l) To make the accused liable under the section the prosecution
must show not only that the assault on the complainant was a probable consequence of the conspiracy
252 Penal Code Sec. 112

to assault the complainant but also that it was done in pursuance of that conspiracy. AIR 1925

PC 305.
• (2) The crux of the problem in an enquiry is whether the abettor, as a reasonable man, at the time
of his instigation or intentionally aiding the principle, would have foreseen the probable consequence of
his abetment. A IR 1957 A ndhPra 23.
4. "Under the influence ...... pursuance of conspiracy".- .—(l) Where an act is abetted and the
abetment takes the form of instigation of an act and a different act is done, that different act must be a
probable consequence and committed under the influence of the instigation and where the abetment
takes the form of aiding or conspiracy the different act must be a probable consequence and also must be
done with the aid or in pursuance of the conspiracy. (1912) 13 CriLJ 305.
5. Practice.—Evidence—p rove: (1) That the accused abetted the commission of a particular act.
(2) That the act actually committed was done under the influence of such abetment,
(3) That the act done was a probable consequence of the abetment.
6. Procedure.—Cognizable, if offence abetted is cognizable and noncognizable if offence abetted is
noncognizable—Warrant or summons as warrant or summons may issue for offence abetted—Bailable
as offence abetted is bailable or not bailable—Compoundable or not as offence abetted is compoudable
or not—Triable by Court by which offence abetted is triable.
7. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about—the day—at—abetted A in the commission of the offence of—punishable
under section—etc., Penal Code and the said A however committed an offence namely which was
different from the offence abetted and you have thereby committed an offence punishable under section
111 read with section—of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 112
112. Abettor when liable to cumulative punishment for act abetted and for
act done.—If the act for which the abettor is liable under the last preceding section is
committed in addition to the act abetted, and constitutes a distinct offence, the abettor
is liable to punishment for each of the offences.
Illustration
A instigates B to resist by force a distress made by a public servant. B, in
consequence, resists that distress. In offering the resistance, B voluntarily causes grievous
hurt to the officer executing the distress. A s B has committed both the offence of resisting
the distress, and the offence of voluntarily causing grievous hurt, B is liable to
punishment for both these offences , and, if A knew that B was likely voluntarily to cause
grievous hurt in resisting the distress, A will also be liable to punishment for each of the
offences. . . .
Cases and Materials
1. Scope of the section.—(1) This section presupposes that the person abetted cámmits two acts
namely, the one abetted and also a different one and that the latter constitutes a distinct offence. In such
Sec. 113 Of Abetment 253

cases if the abettor can be held liable for latter act under section 111 then he is liable to punishment for
each of the offences under this section. AIR 1957 AndhPra 231.
2. Charge.—1, (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as
follows:
That you on, or about—at—abetted A in the commission of distinct offence to the offence abetted
punishable under section—constituting distinct offences and that you have committed an offence
punishable under section 112 of the Penal Code read with section—of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

Section 113
113. Liability of abettor for an effect caüsëd by the act abetted different from
that intended by the abettor.—When an act is abetted with the intention on the part
of the abettor of causing a particular effect, and an act, for which the abettor is liable
in consequence of the abetment, causes a different effect from that intended by the
abettor, the abettor , is liable for the effect caused, in the same manner and to the same
extent as if he had abetted.the act with the intention of causing that effect, provided he
knew that the act abetted was likely to cause that effect.
Illustration
A instigates B to cause grievous hurt to Z B, in consequence of the instigation, causes
grievous hurt to Z 2 dies in consequence. Here, if A knew that the grievous hurt abetted
was likely to cause death, A is liable to be punished with the punishment provided for
murder.
Materials
1. Scope of the section.-(I) This section should be read in conjunction with section III
(2) Sections 111, 112 and 113 make it abundantly clear that if a person abets another in the
commission of an offence and the principal goes further thereafter and does something more which has a
differçnt result from that intended by the abettor and makes the offence an aggravated one the abettor is
liable for the consequence of the act of his principal. The crux of the problem in an enquiry of this sort
is whether the abettor as reasonable man at the time of his instigation or intentionally aiding the
principal would have foreseen the probable consequence of his abetment. AIR 1957 AndhPra 231.
(3) Where the act of the person abetted is not the probable consequence of the act abetted or the
abettor has not the knowledge that his act was likely to cause.the effect caused he will not be liable for
the effect caused by the act of the person abetted. 1892 AIIWN 233
2 Practice —Evidence—Prove ( 1) That the accused abetted the commission of an offence
(2) That the act eventuaUy done was in pursuance of the abetment
(3) That the act done was a probable consequence
3 Procedure —Cognizabte if offence abetted is cognizable and noncognizable if offence abetted is
nonco gnizable-_Warrantor Summons as warrant or summons may issue for offence abetted—Bailable
as offence abetted is bailable or nonbailable—Compoundable or not as offence abetted is compoundable
or not--Triable by Court by which offence abetted is triable.
254 Penal Code Sec. 114

.4. Charge.—The charge should run as follows:,

I. (name and office of the Magistrate, etc.) hereby charge (name of accused) as follows:
That you, on or about—at--abetted A in the commission of the offence of—punishable under
section--of the Code with the intention to cause a particular effect and the said A however committed
the offence in consequence of the abetment causing a different effect from that intended'.by the, abettor and
thereby you have committed an offence punishable under section 113 of the Code read with section ---
the Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 114
114. Abettor present when offence is committed.— Whenever any person, who
if absent would be liable to be punished as an abettor, is present when the act or
offence for which he would be punishable in consequence of the abetment is
committed, he shall be deemed to have committed such acVor offence.
Cases and Materials. : Synopsis
1. Scope of the section. . S. . "Act or offence".
2. This section and Sections 34 and 749. 6. Practice.
3. This section and S. 148. 7. Procedure.
4. 1
Act abetted different from act committed— 8. Charge.
Abettor 'present.
1. Scope of the section.—This section is applicable only where the act at the doing of which ihe
abettor is: present would itself amount to an offence; Section 114 is not applicable to 'a case where the
abetment is made.at the time when the offence takes place and the abettor helps in its commission.
Active abetment at the time of committing theoffence is covered by section 109. Section 144 is only
brought into operation when circumstances amounting to abetment of a particular crime have first been
proved and then the presence of the accused at the commission of the crime is proved in addition.
When any person; who if absent would be liable to be punished as an abettor, is present when the act
abetted. is committed, he shall be deemed to have committed the offence. The mere presence as an
abettor of any person will not render him liable for the offence committed. Where one of the accused
stands guard with knife at the time when the offence of rape was committed by the other accused the
former is guilty under sections 376/114 (AIR 1953 Ajmeer 12). In order to bring, a case within section
114, Penal Code the abetment must be complete apart from the presence of abettor; in other words, the
act of abetment must have taken place at the time prior to the actual commission of the 'offence and it
is only when the abettor happens to be present at the time of the commission of the offence itself., that
the operation of section 114 would be attracted. As neither any community of intention nor any
abetment prior to their presence at the spot has been established on the record against the accused it has
to be found that they cannot be found guilty of the offence committed by calling in aid under section
114 of the Penal Code.
(2) This section applies to those cases only in which not only is the abettor present .at the time of
the commission of the offence abetted but the abetment is completed prior to and independently of his
presence. The real test to see whether or not S. III applies lies in words of the section "who if absent
would liable to be punished as an abettor". AIR 1955 Tray-Co 266.
Sec. 114 Of Abetment 255

(3) Where the abetment is completed prior to the commission of the offence and the abettor is also
present at the commission of the offence the abettor is deemed to have committed the offence himself.
A IR 1956 SC.177.
(4) In the absence of proof of any one of the two ingredients namely,---
(i) abetment prior to the commission of.the Qffence; and
(ii) the abettor's presence at such commission,
this section will not apply: A IR 1974 SC 45.
(5) Where.accused A, a mortgagee, abetted the execution in his favour of a forged sale-deed in
respect of the mortgaged property by another accused A. B was liable to be convicted under S. 467 read
with S.l 14. A IR 1981 SC 1417.
2. This section and Sections 34 and 149.—(1) Sections 34, 114 and 149 of the Code provide for
criminal liability viewed from different angles as regards actual participants, accessories and persons
actuated by a common object or a common intention. A IR 1956 SC 116.
(2) There is much difference in the scope and applicability of S. 34 and S. 149 though they have
some resemblance and are to some extent overlapping. Section 34 by itself does not create any offence,
whereas Section 149 does. A IR 1956 SC 116.
(3) This section like Section 34 does not create the offence but unlike Section 34 it does not
envisage active participation in the crime. A IR 1956 SC 116.
3. This section and Section 148.—(l) If A proved to have instigated B to join an unlawful
asemb1y, armed with a deadly weapon, and afterwards joined the unlawful assembly himself, he might
be punishable under Section 144 read with this section even though he was himself not armed with a
deadly weapon. (1901) CaIW N 250.
4. Act abetted different from act committed—Abettor present.—(1) Where A abets B to do act
which is a particular offence, and does another act which amounts to a different offence and which is
not the probable consequence of the abetment, A would not, if absent at the commission of the offence
by B, be liable for the offence committed by B. His presence at the commission of the offence by B
would not make any diffetence, and would not render him liable under this section for the offence
committed by B. (1912) 13 CriLi 715. -
5.-"Act or offence.—(1) The "actor offence" mentioned in this section is a substantive offence.
Section 398 of the Code does not relate to a substantive offence. It only regulates themeasure of
punishment when certain facts are found to exist in the commission of the substantive offence. A charge
under this section read with Section 398 is therefore not substantive. A IR 1928 Born 52.
6. Practice.— Evidence:— prove: (I) That the committing of the principal offence.
(2) That the accused was present whilst it was being committed..
(3) That the accused was an abettor of the offence (section 108) -
It is necessary to prove acts which would constitute abetment if the accused was absent and then to
show that the accused was present.
7. Procedtire.--(1) Cognizable if offence abetted is cognizable, and nond 'ognizable if offence abetted
is noncognizable .—Warrant or summons as warrant or summons may issue for offenëe abetted—
Bailable as offence abetted is bailable or nonbailable—Compoundable or not as offence abetted is
compoundable or not—Triable by Court by which offence abetted is triable.
256 Penal Code Sec.) 15

(2) A conviction for abetment can be made where the accused is charged only for a substantive
offence, if the accused is not prejudiced by the omission to frame a separate charge for abetment. The
same principle will apply to cases where a person is charged with committing a substantive Offence and
a conviction is given for the said offence by applying S. 114, if the accused is not prejudiced thereby,
there being sufficient material on the record to put him on notice that he might be convicted for the one
or the other offence. The same principle will also apply when the accused is charged with an offence
read with S. 114 and a conviction is given for committing the substantive offence. A IR 1953 SC 131.
(3) In generality of cases the omission to frame a charge is nt per se fatal. It cannot be accepted as
sound the very broad proposition that where there is no charge the conviction would be illegal,
prejudice or no prejudice. A IR 1956 SC 116.
8. Charge.—The charge should run as follows
I, (name and office of the Magistrate, etc.) do hereby charge you (name of the accused) as follows:
That on or about—at—you abetted A in committing an act or offence and you were present at the
time of the act or offence committed in pursuance of your abetment, you have committed an offence
punishable under section . 114 read with section—of the Code and within my cognizance.
I hereby direct that you be tried on the said charge.
The absence of charge is not fatal if there is no prejudice, the abettor can be convicted for th
substantive offence.

Section 115
115. Abetment of offence punishable with death or 3 [imprisonment] for life
if offence not committed.—Whoever abets the commission of an offence punishable
with death or 3 [imprisonment] for life, shall., if that offence be not committed in
consequence of the abetment, and no express provision is made by this code for the
punishment of such abetment, be punished with imprisonment, of either description
for a term which may extend to seven years, and shall also be liable to fine;
If act. causing harm be done in consequence.—and if any act for which the
abettor is liable in consequence of the abetment, and which causes hurt to any person,
is done, the abettor shall be liable to imprisonment of either description for a term
which may extend to fourteen years, and shall also be liable to fine.
Illustration
A instigates B to murder Z. The offence is not committed. If B had murdered Z. he
would have been subject to the punishment of death or 3 [imprisonment] for life.
Therefore A is liable to imprisonment for a term which may extend to seven years and
also to a fine; and, if any hurt be done to Z in consequence of the abetment, he will be
liable to imprisonment for a term which may extend to fourteen years, and to fine.
Cases and Materials
1. Scope of the section.—(l) When offence punishable with death or imprisonment for life is
abetted, different situation may arise:

Subs, by Ord. No XII of 1985. for "transportation".
3.
Sec. 116 Of Abetment 257

(i) Where the every offence abetted is committed in consequence the abetment;
(ii) Where the offence abetted is not committed;
(iii) Where the offence abetted is not committed but an act in the attempt to commit the offence
abetted, causes hurt to any person.
The first class of cases falls under Ss. 109 and 110 of the Code and not under this section. The
second class of cases falls under the first paragraph of this section. The third class of cases falls under
The second paragraph of this section. AIR 1931 Cal 757.
(2) Where B is charged with an offence punishable with death or imprisonment for life and A is
charged with abetment of such offence and B is acquitted. A cannot obviously be convicted under S.
109 of the Code inasmuch as the acquittal of B is equivalent to a finding that the offence is not
committed by B. But A will nevertheless be liable under this section for abetment which by itself is an
offence under this section. AIR 1967 SC 553.
• (3) It cannot be held that a person cannot ever be convicted of abetting a certain offence when the
person alleged to have committed that offence is acquitted......If a person instigates another or engages
with another in a conspiracy for the doing of the act which is an offence, he abets such an offence and
would be guilty of abetment under Section 115 or S. 116, Penal Code, even if the offence abetted is not
committed in consequence of the abetment. The offence of abetment is complete when the alleged
abettor has instigated another or engaged with another in a conspiracy to commit the offence. it is not
necessary for the offence of abetment that the act abetted must be committed. A IR 197 SC 553.
2. Practice.— Evidence:— Prove: (1) That the accused abetted the offence punishable with death or
imprisonment for life.
(2) That the offence committed was not committed in pursuance of the abetment.
(3) That there is no specific provision in the code for punishment of such abetment.
(4) That the abetment is for causing hurt to any person.
(5) That the hurt was caused in consequence.
3. Procedure.—Cognizable if offence abetted is cognizable and noncognizable if offence abetted is
noncognizable—Warrant or Summons as Warrant or summons may issue for offence abetted—Not
bailable Compoundable or not as offence abetted is compoundable or not—Triable byCourt by which
offence abetted is triable.
4. Charge.—The charge should run as follows
I, (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, On or about the—day of—at—, abetted the commission by one XY of an offence
punishable with death or imprisonment for life, 'which said offence was not committed in consequence
of the abetment, and thereby committed an offence punishable under section 115 of the Penal Code,
and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Arrest.—Police may arrest without warrant of arrest for the offence abetted.

Section 116
116. Abetment of offence punishable with imprisonment—If offence be not
committed.—Whoever abets n offence punishable with imprisonment shah, if that
258 Penal Code Sec. 116

offence be not committed in consequence of the abetment, and no express provision is

made by this Code for the punishment of such abetment, be punished with
imprisonment of any description provided for that offence, for a term which may
extend to one-fourth part of the longest term. provided for that offence, or with such
fine as is provided for that offence, or with both;
If abettor or person abetted be a public servant whose duty it is to prevent
offence.—and if the abettor or the person abetted is a public servant, whose duty it is
to prevent the commission of such offence, the abettor shall be punished with
imprisonment of any description provided for that offence, for a term which may
extend to one-half of the longest term provided for that offence, or with such fine as is
provided for the offence, or with both.
Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour jn
the exercise. of B's official functions.. B refuses. to accept the bribe. A is punishable under
this section.
(b) A instigates B to give false evidence. Here if B does not give false evidence, A has
nevertheless committed the offence defined in this section, and is punishableaccordingly.
(c) A , a police-officer whose duly it is. to prevent robbery, abets the commission of
robbery. Here though the robbery be not committed, A is liable to one-half of the longest
term of imprisonment provided for that offence, and also to fine.
(d) B abets the commission of a robbery by A , a police-officer whose duty it is to
prevent that offence. Here, though the robbery be not committed, B is liable to one-half
of the longest term of imprisonment provided for the offence of robbery, and also to fine.
Cases and Materials Synopsis
1. Scope and applicability. S. Punishment.
2. This section and Section 165A. 6. Practice.
3. "Abets an offence". 7. Procedure
4.. Abetment of an offence of bribery. 8. Charge.
1. Scope and applicability.—(1) It gives the abettor the benefit of reduced punishment because of
the failure of his attempt. AIR 1955 Born 61.
(2) Where an advocate of a High Court by writing letters to pleaders in the district asked them to
do an act which incontravention of S. 36 of the Legal Practitioners' Act (18 of 1879), it was remarked
by the High Court that the advocate could be convicted under S. 116 P.C. for abetment of an offence
u/s.. 36 of the Legal Practitioners' Act. (1865) ILR 17 All 498.
(3) Bribe—giver-Real point to see in regard to a charge under sec. 161/116 is not guilty intention
or mens rea of the public officer, but the mens rea of the bribe-giver. Kalipada Bawali Vs.. King
(1952) 4 DLR 543.
2. This section and Section 165A.—(I) This section.deals generally with the abetment of all
offences punishable with imprisonment while S. 165A deals specifically with the abetment of offence
under Ss. 161 and 165. It has thus the effect of limiting the applicability of S. 116 to offences other
than those falling under Ss. 161 and 165 with respect to the abetment of offences under Ss. 161 and
165. S. I MA is not a mere statement of the offence of abetment under'S. 116. AIR 1959 SC 8.

Sec. 116 Of Abetment 259

(2) Section 165A provides an enhanced punishment irrespective of the fact whether the offer of the
bribe was accepted or not. AIR 1959 SC 8.
3. "Abets an offencé".-{l)) The offence of abetment is complete when the alleged abettor has
instigated another or engaged with another to commit an offence. It is not necessary for the offence of
abetment that the act abetted must, be committed. AIR 1967 SC 353.
(2) The word "offence" in the section refers to a specific offence. The mere assembling of several
persons with the general intention of committing theft, and not for the purpose of committing any
specific theft, or theft of any specific property cannot be considered to an abetment of an offence of theft
punishable under this section read with S. 379 of the Code. 1879 Pun Re No. 18 P. '47(49) (FB).
4. Abetment of an offence of bribery.—(1) Illustration (a) to S. 116 is an example of an offence
of bribery under S. 161. (1895) ILR 17 All 493.
(2) The person offering a bribe would be guilty of abetment irrespective of the question whether the
public 'servant was in a position to do the favour or not. AIR 1953 SC 179.
(3) An offence of abetment under Section 116 becomes cognizable or noncognizable according to
the main offence abetted. By the Prevention of Corruption Act, the offence under S. 161 which was
originally noncognizablehas been made cognizable. Hence, an abetment of an offence of bribery under
S. .116 in respect of a public servant also becomes a cognizle offence. AIR 1956 Raj 37,.
5. Punishment.—(1) Where the offence of bribery is committed, the abettor of the offence is under
S. 109, punishable with the same punishment as that provided for the offence itself. Law does not make
any difference between the giver and the taker of the bribe in such cases. AIR 1945 All 207.
(2) The offence of offering a bribe must be severely punished. AIR 1957 Raj 1.
(3) If, there are serious defects in proof of the offence the accused will be given the benefit of doubt
and acquitted. AIR 1950 Ajmer 44.
(4) The second part of this section provides for enhanced 'punishment where tie abetment or the
person abetted is a public servant and it is his duty to prevent the commission of such offence. Where
it is not the duty of the public servant to prevent the offence, the first part of the section would apply
and a conviction under second part would be improper AIR 1948 All 17.
6. Practice.—Evidence--Prove: ( 1) That the offence abetted, though not committed in
consequence, is one punishable with imprisonment, or that the accused, or the person abetted, is a
public servant;
(2) That it was his duty to prevent the commission of such offence.
7. Procedure.—Cognizable, if offence abetted is cognizable and non-cognizable if offence abetted is
non-cognizable—Warrant or Summons as warrant of summons may issue for offence abetted—Not
baliable—Compoundable or not as Offence abetted is compoundable or not—Triable by Court by
which offence abetted is triable.
8. Charge.—The charge should run as follows:
I, (name and office the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at, abetted the commission by one XY of an offence of—
punishable with imprisonment, which said offence was not committed in consequence of the abetted,
and thereby committed an offence punishable under section 116 of the Penal -Code and with in my
cognizance (or the cognizance of the Court of Session). I - . - -
And I hereby direct that you be tried on the said charge. -
260 Penal Code Sec. 117

Section 117
117. Abetting commission of offence by the public or by more than ten
persons.—Whoever abets the commission of an offence by the public generally or by
any number or class of persons exceeding ten, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with
both.
Illustration
A affixes in a public place a placard instigating a sect consisting of more than ten
members to meet at a certain time and place, for the purpose of attacking the members of
an adverse sect, while engaged in a procession. A has committed the offence defined in
this section.
Cases and Materials : Synopsis
1. Scope of the section. laws.
2. "Abets the commission of an offence". 5. Practice.
3. This Section and S. 121. 6. Procedure.
4. Applicability of the section to special or local 7. charge.
1. Scope of the section.—( I) Though this section contemplates the abetment of the commission
of an offence by the public generally, or by any number or class of persons exceeding ten it does not
necessarily follow that the offence is to be committed by all the ten or more persons at one and the
same time or that there should be an unlawful assembly. Hence it does not necessarily involve an
offence under S. 143 of the Code. A IR 1941 Sind 186
(2) Exhorting the Sikhs to form jathas for the purpose of going to a certain place and collecting
funds for a committee which was declared as unlawful by the Government, is not an offence under, the
Criminal Law Amendment Act, but is an offence under this section as the accused instigated people to
become members of a jatha under the orders of the said committee which jatha would be an unlawful
association within the meaning of of the Criminal Law Amendment Act. AIR 1926 Lah 115.
2. "Abets the commission of an offence".—(l) A mere omission by a person to prevent an act
being done is not an abetment unless the omission constitutes an illegal omission i.e., an omission to
do a thing which it is the duty of the person to do. Thus where the president of a meeting does not
interrupt or prevent the singing of revolutionary songs, sung by a person at the meeting, the president
cannot be said to be guilty of abetment under this section unless there is anything to show that he
positively encouraged the singer or had previously agreed that such songs should be sung. AIR 1932
Cal 549. .
(2) Instigating railway workers in the event of a strike to lie down on the railway line is an offence
even though the strike is only a contingent matter. The illustration to the section shows that an
instigation to attack a procession which is going to be held is an offence under the section. Therefore, it
is immaterial whether the accused is urging an immediate strike and instigating the woikers to lie
across the line or is merely instigating their doing so in the event of a strike. AIR 1933 Mad 279.
(3) Where the commission of an offence is instigated by means of a leaflet, it would constitute an
abetment only if either the public has read the leaflet in question or the leaflets are exposed to the
public gaze. Where, therefore, leaflets inciting the public to violence were affixed at a public place at
See; 118 Of Abetment 261
dead of night but were removed by the police before the public could see or read them, it was held that
no offence under this section was committed. AIR 1932 Cal 760.
3. This section and Section 121.—Where the instigation to wage war against the Government is
of the public generally, the offence will fall both under this section and under S. 121. It cannot be
argued in such a'casè that because the offence falls under this section, the accused is liable to be
punished only under this section and not with the more drastic punishment under S. 121. (1910) 1/
CriLJ 264.
4. Applicability of the section to special or local laws..—(1) The one enactment has not the
effect of repealing the other but thç two co-exit without conflict. By virtue of S. 26 of the General
Clauses Act, 1897, however, the offender could not be punished twice for the same offence. The offence
under the Salt Act can, therefore, be punished under S. 117 of the Code. AIR 1931 All 23, 24.
(2) Section 117 is not superseded by S. 74.-of the Salt Act which refers to the direct abetment of
particular acts and an accused person who is guilty of having instigated more than ten persons to
commit an offence under the Salt Act is liable under S. 117 of the Code. The gravamen of.a charge
under S. 117 is the instigation to general lawlessness, not the particular offence of which the
commission is instigated. AIR 1932 Mad 371.
5. Practice.—Evidence—Prove: (I) Abetment of the offence in question by the accused.
(2) That such offence was to be committed by the public, or by more than ten persons.
6. Procedure.—(1) Cognizable if offence abetted is cognizable—Warrant, if in offence abetted
warrant can issue—Bailable according as the offence abetted is bailable or not—Compoundable if
offence abetted is compoundable—Triable by Court competent to try offence abetted. -
(2) Where the Court is dealing with a charge of abetment of a specific offence which offence is a
summons case, then the abetment is also a summons case. AIR 1931 Born 199.
(3) An offence under this section is compoundable if the offence abetted is compoundable. AIR
1941 Sind 186.
7. Charge.—(1) A charge under both Ss. 117 and 120B is not open to objection. Where one
person is arrested with revolutionary leaflets in one place and another person for distribution of the
same kind in a different place, there is no object to introduce a charge under S. 120B of the Code, to
justify a joint trial. It may or it may not be a duplication to have S. 117 as well as S. 120B, but there
can be no objection to charge under both Ss. 117 and 120B AIR 1933 Cal 603.
(2) Form,- The charge should run as follows:
I, (name and office of the Magistrate, etc.,) hereby charge you (name of the accused) as follows:
That you, on or about the—day--.-,at—, abetted the commission of an offence of—by numbering
more than ten persons, by (state the act done by the accused in instigation), and thereby committed an
offence punishable under section 117 of the Penal Code, and within my cognizance (or the cognizance.
of the Court of Session).
And I hereby direct that, you be tried on the said charge.

Section 118'
118. Concealing design to commit offence punishable with death or
4 [ impri
sonmentj for life.—Whoever intending to facilitate or knowing it to be likely
4. Subs, by Ord. No. XLI of 1985, for "transportation".
262 Penal Code Sec. 118

that he will thereby facilitate the commission of an offence punishable with death or
4[imprisonment] for life,
voluntarily conceals, by any act or illegal omission, the existence of a design to
commit such offence or makes any representation which he knows to be false
respecting such design,
If offence be committed: If offence be not committed.- '-shall, if that offence be
committed, be punished with imprisonment of eitlfer description for a term which
may extend to seven years, or if the offence be not committed, with imprisonment of
either description for a term which may extend to three years ; and in either case shall
also be liable to fine.
Illustration
A , knowing that dacoity is about to be committed at B, falsely informs the Magistrate
that a dacoity is about to be committed at C, a place in an opposite direction, and
thereby misleads the Magistrate with intent to facilitate the commission of the offence. The
dacohy is committed.i.at B in pursuance of the design. A is punishable under this section.
Cases and Materials
1. Scope of the section.—To attack the provisions of the section it must be shown that here was
an omission of an act which the acused was legally bound to perform and which facilitated the
commission of an offence. I Agra HCR 37.
(2) A person who is aware of the intention of the commission of a serious offence like murder and
does not lay information to the nearest Magistrate or the Police Station, is guilty of an offence. Such a
person is practically a consenting party to the crime and. an accomplice. AIR 1956 Hyd 99.
(3) Where it is not proved that accused's intention in omitting to report a plot, under S. 39,
Criminal Procedure Code was with a view to aiding the waging of war, the accused cannot be
convicted of the offence of abetment of waging war. (1913) 14 CriLJ 610.
2. Practice.— Evidence—Prove: ( I) The existence to the design of committing an offence.
(2) That such offence was one punishable with death or imprisonment for life.
(3) That the accused concealed the existence of such design a) by his act or illegal omission; or
(b) by his knowingly false representation.
(4) That he did so voluntarily.
(5) That he thereby intended to facilitate or knew that he would thereby facilitate the commission
of such offence.
(6) That the offence concealed has been committed (if the case falls under the first . clause).
3. Procedure.—Not bailable, if the concealment is of an offence punishable with death or
imprisonment for life and the offence is committed—Bailable, if the offence is not committed—in other
respect the procedure is the same as in the case of the offence abetted.
4. Charge.-The charge should run as follows:
I, (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—with the intention of facilitating, or with knowledge that
you will thereby facilitate the commission of the offence of—(specify the act) (or omit to do—specify
Sec. 119 Of Abetment 263

the omission) to conceal the existence of the design to commit the said offence, and thereby committed
an offence punishable under section 118 of the Penal Code, and within my cognizance (or the
cognizance of the Court of Session).
And I hereby direct that you be tried on the said charge.

Section 119
119. Public servant concealing design to commit. offence which it is his duty
to prevent.—Whoever, being a public servant intending to facilitate or knowing it to
be likely that he will thereby facilitate the commission of an offence which it is his
duty as such public servant to prevent,
voluntarily conceals, by any act or illegal omission, the existence of a design to
commit such offence, or makes any representation which he knows to be false
respecting, such design, -
If offence be committed—shall, if the offence be committed, be punished with
imprisonment of any description provided for the offence, for a term which may
extend to one-half of the longest term of such imprisonment or with such fine as is
provided for that offence, or with both;
If offence be punishable with death, etc.—or, if the offence, be punishable with
death or 3 [imprisonment] for life, [shall be punished] with imprisonment of either
description for a term which may extend to ten years;
If offence be not cómtflitted.—or, if the offence be not committed, shall be
punished with imprisonment of any description provided for the offence for a term
which may extend to one-fourth part of the longest term of such imprisonment, or
with such fine as is provided for the offence, or with-both.
Illustration
A , an officer of police, being legally bound to give information of all designs to
commit robbery which may come to his knowledge, and knowing that B designs to
commit robbery, omits to give such information, with intent to facilitate the commission
of that offence. Here, A has by an illegal omission concealed the existence of Bs design,
and is liable to punishment according to the provision of this section.
Cases and Materials
1. Scope of the section.—(I) In order to constitute an offence under this section the ingredients of
the offence are .
(I) there must exist a design to commit an offence;
(ii) the accused must be a public servant;
(iii) it must have been the duty of the accused as a public servant to prevent the commission of the
offence.
(iv) the accused must have concealed the existence of such a design by his act or illegal omission
or must have knowingly made a false representation respecting such design; and
(v) he must have done so voluntarily and must have intended to facilitate or must have known
that he would thereby facilitate the commission of the offence. (1957) 2 AndhWR 298.
264 Penal Code SOC. 120

(2) No person can be convicted to an offence without a charge, unless it is a case falling under. S.
238 or 286, Criminal P.C., Therefore, where the accused was charged under S. 409, Penal Code and
the facts constituting an offence under S. 119, Penal Code, were neither stated in the charge-sheet nor
was the accused, at any time, put on notice of the same, the charge under S. 409, being disproved
against him, he would be taken by surprise if he is convicted for an offence under S. 119 and a
conviction without a charge would be against law. Ss. 119 and 409 are in different Chapters of the
Code. The ingredients of the offences are not the same. A charge under S. 409, therefore, cannot cover
any of the ingredients excepting the ingredient of being a public servant which by itself is not offence.
Such a case is not one contemplated by either Section 221 or 222, Criminal P.C. (1957) 2 A ndhW R
298.
2. Practice.— Evidence---Prove: ( 1) The existence Of the design to commit an offence.
(2) That the accused was a.public servant.
(3) That it was the duty of the accused, as such public servant, to prevent the commission of that
offence.
(4) That the accused concealed the existence of such design—(a) by his act or illegal omission; or
(b) by his knowingly false representation.
(5) That the accused did so voluntarily.
(6) That the accused thereby intended to facilitate, or knew that he would thereby facilitate, the
commission of such offence.
(7) That the offence concealedhas been committed (if the case falls under the first cause).
3. Procedure.—Cognizable or compoundable according as the offence abetted is either cognizable
or compoundable—Bailable and triable by the Court by which the offence abetted is triable—Not
bailable if the offence is punishable with death or imprisonment for life—Bailable if the offence be not
committed.
4 Charge.—The charge should run as follows:
I, (name and offence of the Magistrate, etc.)hereby charge you (name of the accused) as follows:
That you, being public servant, to wit—, whose duty it was to prevent the commission of the
offence of—, with the intention of facilitating, or with the knowledge that you will thereby facilitate,
the commission of the offence of—did (specify the act) to conceal the existence of the design to commit
the said offence, and thereby committed an offence punishable under section 119 of the Penal Code, and
within my cognizance (or the cognizance of the Court of Session).
And I hereby direct that you be tried on the said charge.

Section 120
120. Concealing design to commit offence punishable with imprisonment.—
Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate
the commission of an offence punishable with imprisonment,
voluntarily conceals, by any act or illegal omission, the existence of a design to.
commit such offence or makes any representation which he knows to be false
respecting such design,
Sec. 120 Of Abetment 265

• If offence be committed If offence be not committed.—shall, if the offence be

committed, be punished with imprisonment of the description provided for the
offence, for a term which may extend to one-fourth, and if the offence be not
committed, to one-eighth, of the longest term of such imprisonment, or with such fine
as is provided for the offence, or with. both. .
Cases and Materials
1. Scope of the section.—(l) The offence under this section is bailable or not bailable according
as the offence (the commission of which is intended to be facilitated by the concealment of the design to
commit it) is bailable or not; but it is bailable if the offence be not committed. Otherwise the procedure
relating to an offence under this section is exactly the same as in the case of offence abetted. 1977 CriLJ
NOC 117.
2. Practice.— Evidence— Prove: ( 1) The existence of the design to commit an offence.
(2) That such offence was punishable with imprisonment.
(3) That the accused concealed the existence of such design. (a) by his act or illegal omission, or
(b) by his knowingly false representation.
(4) That he did so voluntarily.
(5) That he thereby intended to facilitate, or knew that he would thereby facilitate, the commission
of such offence. . .
'If the case falls under the first clause, prove: .
(6) That the offence concealed has been committed,
3,. Procedure.—Cognizable, if arrest for the offence abetted may be made without warrant but not
otherwise; rest, according to the procedure for the offence abetted—Bailable, according as the offence
abetted is bailable or not—Bailable if the offence be not committed—Triable by the court by:which the
offence abetted is triable.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you on or about the—day of—, at—with intention of facilitation or with knowledge that you
will thereby facilitate the commission of the offence of--(specify the act) or omitted to do—(specify the
omission) to conceal the existence of the design to commit the said offence and thereby committed an
offence punishable under section 120, Penal Code and within my cognizance (or cognizance of the
Court of Session). •
And I hereby direct that you be tried on the said charge.
[CHAPTER VA
Criminal Conspiracy

Chapter introduction.— The liability of an abettor of a crime is generally co-extensive

with the principal offender. W hat constitutes abetment has been comprehensively dealt
with in ChaJ?ter V of the Code. If one engages with one or more persons in any conspiracy
for the doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy and in order to the doing of the thing, abets the doing of the thing. Thus there
can abetment by conspiracy. A betment by conspiracy was in the Code from its
commencement. A t that time, criminal conspiracy by itself as a substantive offence was
not conceived. This chapter was irnroduOed in 1913 whereby criminal conspiracy as
defined in section 120A is punishable in the manner provided in section 120B.
So long as a crime generates in the mind, it is not punishable. Thoughts even
criminal in character often involuntary are not crimes. But when the thoughts take the
concrete shape of an agreement to do or caused to be done an illegal act or act which is
not illegal by illegal means then even if nothing further is done, the agreement is
designed as criminal conspiracy. However, the proviso to section 120A makes it clear that
a bare agreement of the aforementioned nature would not amount to an offence of
criminal conspiracy unless some act besides the agreement is done by one or more
parties to the agreement in pursuance thereof It is the next overt step which may
otherwise be of a preparatory nature such as buying arms to implement the criminal
conspiracy that makes it punishable. The act of purchasing arms pursuant to an
agreement to do an illegal act or an act which is not illegal by illegal means shall
constitute an offence. In the earlier days English Common Law frowned upon
combination of workers to achieve common object. Common Law looked upon
combination as criminal in character. Combination A cts gave it a statutory. backing. The
view then prevalent was conspiracy is committed by all who agree to commit a crime,
even if they make no move whatever to carry out their agreements. Society has moved far
away from those days.

Section 120A
120A. Definition of criminal conspiracy.— When two or more persons agree to
do, or cause to be done—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy:

I.
Ch. VA was inserted by the Indian Criminal Law Arndt. Act, 1913 (VIII of 1913), s.3.
I'.

Sec. 120A Criminal Conspiracy 267

Provided that, no agreement except an agreement to commit an offence shall

amount to a criminal conspiracy unless some act besides the agreement is done by one
or more parties to such agreement in pursuance thereof.
Explanation.— It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
Cases and Materials Synopsis
I. Scope of the section. 8. Explanation.
2. "When two or more persons agree". 9.. Explanation— "Object of such
3. A greement not unlawful when entered into agreement".
becoming illegal by subsequent legislation.. 10. Proof of conspiracy.
4. Persons joining conspiracy at a later stage. 11.. Conspiracy and abetment by
S. "To do, or cause to be done, an Illegal act, or an act conspIracy. -
which is not illegal by illegal means". 12. Conspiracy and common intention
6. Proviso—Conspiracy to commit offence—No overt (Section 43).
act is necessary. - 13. Conspiracy and unlawful assembly.
7. Proviso—Overt acts, evidentiary values,
1. Scope of the section—(1) Section 120A is the penal section. The agreement is the gist of the
offence. In order to constitute a single general conspiracy, there must be a common design and a
common intention of all to work in furtherance to the common design. Each conspirator plays his
separate part in one integrated and united effort to achieve common purpose. Each one is aware that he
has a part to play in a general conspiracy though he may not know all its secrets or the means by
which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some
may drop out and some may join at a later stage, but the conspiracy continues until it is broken up.
The conspiracy may develop in successive stages. There may be a general plan to accomplish the
common design by such means as may from time to time be found expedient. New techniques may be
invented and new means may be devised for advancement of the common plan. A general conspiracy
must be distinguished from a number of separate conspiracies having a similar general purpose. Where
different groups of person co-operate towards their separate ends without any privity with each other,
each combination constitutes a separate conspiracy (AIR 1970 SC 45). The essence of conspiracy is
that there should be an agreement between persons to do one or other of the acts described in the
section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct
of the parties. There is no difference between mode of proof of the offence of conspiracy or that of any
other offence; it can be established by direct evidence or by circumstantial evidence. But section 10 of
the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied,
the act done by one is admissible against the co-conspirators. (AIR 1965 (SC) 682.)
(2) Ingredients.— The ingredients of this offence of criminal conspiracy are
(a) That there must be an agreement between the persons who are alleged to conspire.
(b) That the agreement should be-
(i) for doing an illegal act, or
(ii) for doing by illegal means an act which may not itself be illegal.
(3) In section 120A, the gist of the offence is a bare engagement or association to break law even
though illegal act does not follow, white the gist of the offence under sec 34-is the commission of the
268 Penal Code - Sec. 120A

original act in furtherance of common intention of all the offenders and that only means that there must
be unity of criminal behabiour resulting in something for which an individual would be punishable if it
were done by himself alone. Md. Y aqub Vs. Crown (1955) 7 .DLR 75.
(4) Criminal conspiracy between husband and wife is not an offence under the English law and also
.where the English law has been extended. Laila ihina Miaji Vs. Queen (1958) 10 DLR 6
(5) In a case it has been held that when it is established that the Magistrate recording the
confession took due care to ascertain that the confession was made voluntarily, the fact that Magistrate
did not fill in Col 8 of the prescribed form does not render the confession inadmissible. State Vs
Lieutenant Colonel Syed Farook Rahman (Criminal) 53 DLR 287.
(6) If a charge is framed in respect of only falsification of accounts and on no other offence,
then under the provisions of sec. 196A of the Code of Criminal Procedure, no Court would
take cognizance of the offence of criminal conspiracy to commit an offence of falsification of accounts
unless the Government consented to the initiation of the proceedings. Tofail A hmed V s. Crown
(1951) 3 DLR 453.
(7) For "Difference between sec. 34 and 120A" see under sec. 34. A bdul Latf Vs. Crown (1956) 8
DLR 238.
(8) A criminal conspiracy as defined in this section is itself a substantive offence. A IR 1977
SC 2433.
(9) The offence of conspiracy is complete when two or more conspirators have agreed or cause to be
done an act which is itself an offence, in which case no overt act need be established. AIR 1970 SC 549.
2. "When two or more persons agree".—(l) The essence of the offence of criminal conspiracy as
defined in the section is that there must be an agreement between two or more persons to do one or
other of the acts described in the section. AIR 1965 SC 682.
(2) A genral conspiracy must be distinguished from a number of separate conspiracies having a
similar general purpose. Where different group of persons co-operate towards their separate ends without
any privity with each other, each combination constitutes a separate conspiracy. The common intention
of the conspirators then is to work for the furtherance of the common design of his group only. AIR
1970 SC 45.
(3) For an agreement, it is evident, there should be at least two persons. One person cannot
conspire or agree with himself. Thus, when a person is prosecuted for an offence of criminal conspiracy
along with some other persons, he alone cannot be convicted of the offence when all the co-accused are
acquitted of the charge. AIR 1956 SC 469.
(4) A person prosecuted for anoffence of criminal conspiracy cannot alone be convicted unless there
beproof that there were in the conspiracy persons, known or unknown, other than the co-accused who
were acquitted. A IR 1967 SC 1326
• (5) It is not essential that more than one person should be convicted of the offence of criminal
conspiracy. It is enough that the Court is in a position to find that two or more persons were actually
concerned in the conspiracy. AIR 1956 SC 469.
(6) Where the offences charged are such that they could have been perpetrated by different persons
acting in the same manner but independently a definite conclusion regarding the existence of a.
conspiracy cannot be drawn. A IR 1967 SC 1326
Sec. 120A Criminal Conspiracy 269
(7) It is not necessary that each member of the conspiracy must know all the details of the
conspiracy. A IR 1962 Sc 1821.
(8) It is not necessary that all the persons should agree to do a single illegal act. The conspiracy
may comprise the commission of a number of acts and the accused persons can be held guilty of the
offence conspiracy to do illegal acts though for individual offeiices all of them may not be liable. AIR
1961 SC 1762.,
(9) Though a mere agreement brings a conspiracy into existence it does not end there. The
conspiracy will persist so long as the persons entering into the conspiracy remain in agreement and are
.acting in accord in furtherance of the object for which they entered into an agreement. A IR 1970
SC 549.
(10) Where there is only one single conspiracy spread over a number of.years, formed with only
one object to cheat the members of the public, the fact that, in the course of years others joined the
conspiracy or that several incidents of cheating took place in pursuance of the conspiracy does not split
up the single conspiracy into several conspiracies. AIR 1957 SC 340.
(11) Where the conspiracy was a general conspiracy to keep in issuing import licences for motor
vehicle parts in the names of fictitious companies and to share the benefits arising out of the licences, it
was held that the mere fact that licences were issued in the names of eight different companies did not
establish the existence of eight different conspiracies, each with respect to the licences issued to one
particular fictitious company. AIR 1967 SC 450.
3. Agreement not unlawful when entered into becoming illegal by subsequent legislation.—
(I) Where an agreement to do certain acts was not illegal at the time it was entered into but became
illegal by the coming into force of the Foreign Exchange Regulation Act and the parties continue to act
subsequently to the Act in furtherance of the agreement, they would be guilty of criminal conspiracy.
AIR 1970 SC 549.
4. Persons joining conspiracy at a later stage.—(l) It is no doubt true that the offence of
criminal conspiracy is complete as soon as an agreement to commit an offence is made between the
conspirators. But S. 120B does not limit its operation to those who are parties to the agreement at the
moment of its formation but also applies to those who continue to be parties during the entire period
during which the conspiracy continues. AIR 1964 Born 133.
5. "To do, or cause to be done, an illegal act, or an act which is not illegal by illegal
means".—(l) It is immaterial whether the illegal act is the ultimate object of such agreement or is
merely incidental to that object. AIR 1937 Cal 99.
(2) Where the agreement is to commit an offence, it will amount to a criminal conspiracy,
irrespective of the fact that the means decided upon to carry out the object to the conspiracy are legal or
innocuous. AIR 1970 SC 549.
(3) Mere evidence of association is not sufficient to infer conspiracy. AIR 1935 Cal 580.
(4) Packages containing prohibited articles despatched from post office outside India—Consignors
residing in India—Consignors and consignees held not guilty of contravention of The Order.. AIR 1959
Par 207.
(5) Accused in pursuance of conspiracy .inciting police constables to desert their posts and
withhold their services and rise in mutiny—Charge of conspiracy to commit offence under S. 3. Police
(Incitement to Disaffection) Act, 1922—Accused held guilty. AIR 1951 Pat 60.
270 Penal Code Sec. 120A

6. Proviso—Conspiracy to commit offence—No overt act is necessary.—(l) Where the

conspiracy is to commit an offence, no overt act is necessary to constitute the conspiracy or criminal
conspiracy. It is immaterial that any of the acts agreed to be done in furtherance of the commission of
the offence do not by themselves amount to offence. A IR 1970 SC 549.
7. Proviso—overt acts, evidentiary value.—(l) When the agreement is to commit an offence, the
agreement itself becomes the offence and no overt act is necessary in such a case. Where, however, the
agreement is to do an illegal act which is not an offence or a legal act by illegal means. Some overt act
is necessary to bring the conspiracy within the purview of the criminal law. A IR 1962 SC 876.
8. Explanation.—(1) Under this section, in order that an agreement may constitute a criminal
conspiracy, it is necessary that an illegal act is agreed to be done and where the illegal act is not an
offence, some overt act is done in pursuance of the agreement. It is, however, not necessary that the
illegal act should itelf be the ultimate object of the conspiracy; it may be only incidental to that
ultimate object. The Explanation to the section is meant for this purpose. A IR 1933 A ll 690.
9.. Explanation—"Object of such agreemènt".—(l) "The object of the conspiracy" used in
Section 196, Criminal •P.C., would include a plurality of objects and not merely a single object, and
further no distinction can be made between the primary object and subsidiary object of a conspiracy.
A IR 1969 Punj 225.
10. Proof of conspiracy.—(l) A conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the same. The offence can only be proved largely from the inferences drawn
from acts or illegal omissions committed by the conspirators in pursuance of common design. A IR
1980 SC 439.
(2) Conspiracy can seldom be proved by means of direct evidence and has, almost invariably, to be
inferred from circumstantial evidence consisting generally of evidence as to the conduct of the parties on
certain occasions and in relation to certain matters. A IR 1965 SC 682.
(3) In order to prove a criminal conspiracy punishable under S. 120B, there must be direct or
circumstantial evidence to show that there was an agreement between two or more persons to commit
an offence. A conspiracy can be inferred even from circumstances giving rise to a conclusive or
irresistible inference of an agreement between two or more persons to commit an offence.. A IR 1980 SC
1382.
(4) The evidence must show a common concerted plan so as to exclude a reasonable possibility of
the acts of the conspirators having been done separately and connected only by coincidence. A IR 1979
SC 1266. .
(5) Section 10 of the Evidence Act, 1872, introduces the doctrine of agency in the matter of proof
of conspiracy and if the conditions laid down in that section are satisfied, evidence of an act done by
one conspirator is admissible against his co-conspirators. But the section will come into play only
when the Court is satisfied that there are reasonable grounds to believe that two or more persons have
conspired together to commit an offence or an actionable wrong. A IR 1974 SC 898.
(6) Once a reasonable ground to believe that two or more persons have conspired together to
commit an offence exists, anything said, done or written by one of the conspirators in reference to the
common intention, after such intention was entertained, will be relevant against the others not only for
the purpose of proving the existence of the conspiracy but also for proving that the other person was a
party to it. A IR 1974 SC 898. .
Sec. 120A Criminal Conspiracy. 271
(7) The expression "in reference to their common intention" is very comprehensive and wider in
scope than the words "in furtherance of common intention" in English Law and a statement or and act
of a consl4irator to be admissible against the other need not have been made or done in furtherance of
the common intention as required by the English Law. ILR (1956) Punj 499.
(8) Anything said done or writing by a co-conspiration after the conspiracy was formed will be
evidence against the other, whether it was said done or written before his entry into the conspiracy or
after he left it. A IR 1965 SC 682. .
(9) The thing said, done or written can only be used for the purpose of proving the existence of the
conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or to
show that he was not a party to the conspiracy. A IR 1965 SC 682.
(10) Where conspiracy, correspond with one another through photographs of letters instead of
originals, the photographs will be admissible in evidence under. S. 10, Evidence Act, to prove
participation in conspiracy. The Court is satisfied that there is no trick photography and that the.
photography is above suspicion. A IR 1968 SC 938.
(11) That a person was anxious to escape observation by others or even was doing his best to
conceal his whereabouts after the date of occurrence connected with the conspiracy is not sufficient to
infer complicity of the person in the conspiracy A IR 1930 Cal 647.
(12) After all, the evidence of a co-conspirator is only the evidence of an accomplice and it is an
established principle that the evidence of an accomplice may be presumed to be unworthy of credit
unless it is corroborated in material particulars. (1971) 2 SC CriLR 437.
(13) The corroboration of an approver's evidence need not be of a kind which proves the offence
against the accused. It is sufficient if it connects the accused with the crime. A specific instance of
cheating proved beyond cjoubt against any of the accused would furnish the best corroboration of the
offence of conspiracy to cheat; A IR 1957 SC 340.
(14) The rule of English Law as to the acquittal of an alleged conspiracy following from the
acquittal of other in a joint trial when the conspiracy is said to be only between the two is based on the
rule of repugnancy or contradiction on the face of the record. But in India in the absence of any statutory,
provision to that effect such a repugnancy is not by itself a sufficient ground for quashing a conviction.
A IR 1956 SC 469.
(15) In the absence of a distinct finding that the evidence led on behalf of the prosecution was
unreliable a person can be convicted on the same evidence of conspiracy when others have been given
the benefit of doubt and acquitted. A IR 1956 SC 469.
(16) Evidence of motive is not evidence of conspiracy. A IR 1937 Cal 756
(17) Charge of criminal conspiracy must be established beyond all reasonable doubts ,. A IR 1984
SC 226.
(18) Where in respect of serious defalcation of the properties of a co-operative society, entering into
conspiracy by the accused to cause defalcation was one of the charges and that charge failed, conviction
of the chairman of the Managing Committee of the society under on the basis of vicarious liability was
improper when he was not charged under S. 120B and there was no direct evidence connecting the
accused chairman, with the acts of commission and omission for which he was convicted. A IR 1984
SC 151.
272 Penal Code Sec. 120B

11. Conspiracy and abetment by conspiracy.-(1) The distinction between the offence of
abetment by conspiracy and the offence of criminal conspiracy, so far as an agreement to commit an
offence is concerned, is that whereas for abetment by conspiracy mere agreement is not enough and an
act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the
thing conspired to be done in the offence of criminal conspiracy, the agreement is enough. A IR 1962
SC 876.
(2) There may be an element of abetment in conspiracy but conspiracy is something more than an
abetment. A IR 1961 SC 1241.
12. Conspiracy and common intention (Section 34).-(1) Where conspiracy is disproved,
common intention cannot be inferred on the same evidence. A IR 1970 SC 648.
(2) Criminal conspiracy-It is separate offence and separate sentence can be passed for it-It is not
merely a principle of constructive criminal liability as is to be found under S. 34 or S. 149. 1981
A l/Li 991.
13. Conspiracy and unlawful assembly.-(1) The accused (five in-number) were found in a
temple in the middle of the night with house-breaking implements and guns in their possession. It was
held that they were guilty under Section 143, as they must have been there with a common object of an
unlawful kind. But the facts did not suffice to support a conviction under Section 120B. A IR 1938
Mad 726.

Section 120B
120B. Punishment of criminal conspiracy.-(1) Whoever is. a party to a
criminal conspiracy to commit an ofenäe punishable with death, 2 [imprisonment for
life] or rigorous imprisonment , for a term of two years or upwards, shall, where no
express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be punished With imprisonment of
either description for a term not exceeding six months, or with fine, or with both.
Cases and Materials : Synopsis
1. Scope of the section. 9. Conspiracy to commit several acts.
2. This section, S. 34, S. 107 and S. 109 10. Place of trial.
3. -"W hoever is a parry to a criminal 11. Sanction for prosecution.
conspiracy." 12. Proof of conspiracy.
4. Offence. 13. Punishment.
5. Procedural law. 14. Conviction under this section-Effect.
6. Framing of charge. 15. Practice.
7. Joinder of charges. 16. Procedure.
8. Persons charged under Section 120B-Some 17. Charge, form of
acquitted-Effect.

2.
Subs, by Ord. No: XLI of 1985, for "transportation".
• Sec. 120B Criminal'Conspiraoy

1. -Scope of the. section.—(l) Section 120B deals with the punishment for criminal conspiracy. It
is not that the. agreement as such is punishable but "being party to conspiracy" is punishable. The
emphasis is on the words "are parties". This section is worded in present tense and therefore cannot, be
exclusively read to mean whoever has been or had been party to criminal conspiracy shall be punished
as rftheot'tence was committed, in other words, it is intended to be treated as a continuing offence and
whoeveris a party to conspiracy . during -the period for which he is charged is liable under section 126B
Aconspiracy from its very nature is generally hatched up in secret. It therefore is extremely ram .that
direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quaters or. 1.om.
unerstrangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence.
Indeed, inmostcases proof of conspiracy is largely inferential though the inference must be founded on
solidiacts surrounding circumstances, and antecedent and subsequent conduct, among other factors,
constitutes relevant materials. .
• (2) If combined effect of all the proved facts taken together is conclusive in establishing.. guil t of
accused conviction would be justified even though anyone or more of those facts by itself is not
• decisive. AIR 1970 Sc 648.
(3) Criminal onsoiracy * i6 ipott gold by air in contravention of notification under S. 3l) of
• Foreign Exchange Regulation Act. 1947 is punishable under S. 120B. AIR 1970 45.sc
(4) Two or 3 persons accused of conspiracy were acquitted. The 3rd can be hell guilty of
conspiracy when the charge is that there were unknown persons in the conspiracy. Abdus Sobhan Vs.
• crth. (1955) 7 DLR 566.

(5) Where an offence is alleged to have been committed by two or more persons. the person
responsible for commission of the offenoe should be charged with the substantive offenee, while the
-person alleged to have abetted it by conspiracy should be charged with the offence of abetment under
-section 109 where the matter. has gone beyond the stage of mere conspiracy and specific offences are
alleged to have been committed. Mr. Shamsul !*.que Vs. The State, (1968) 20 DLR .540.
(6) It is rightly contended that joint trial of S and the public servants and subsequent acquittal of -
the public servants, and S's c9nviction under section 420 P.C. .had deprived S of the right of cross-
examining those public servants who would have been the natural witnesses for the prosecution. if S
alone tried in ordinary courts on the charge of cheating. Sayeed Hai V s. The State, (1968) 20 DLR
(WP) 20.
(7) Jobaida's jubilation might be the result of her moral support to the activities of her husband-
(leading to bloodshed and political change) but for that it cannot be said that she was in the conspiracy.
Jobaida Rashid Vs. State, represented by the Deputy Commissioner, Dhaka 49 DLR 373.
(8) Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the
occurrence of the previous night and the presence of the petitioner at Bangabhaban on .the following day
cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation
might be the result of moral support in the activities of her husband but for that it cannot be said that
she was in the conspiracy. Mrs. Jobaida Rashid Vs. The State, 17 BLD (HCD) 352.
2. This section, Section 34, Section 107 and Section 109.—(1) Criminal conspiracy differs from
other offences in that mere agreement is made an offence even if no step is taken to carry out that
agreement. Though there is close association of conspiracy with incitement and abetment the
substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy
as contemplated by Section 107. AIR 1971 SC. 885.
274 Penai•ôde•• ' Sec.. 120B

•()Offences ufconspiracy (S. 120H)ndabennent (S. 109)are quite distinct AIR 1970 Cal 110.
(3) Section 34 is applicable when some criminal act is done jointly in furtherance, of the common
intention of all while a conspiracy is merely an agreement to commit a crime. A IR 1969Cal 481.
(4) The distinction between the offence of abetment.under'the second clause of section 107 and that
of criminal conspiracy unler section 120A is this: in the former offence a mere combination of persons
or agreement between them is not enough. An act or illegal commission must take place in pursuance
of the conspiracy and in order to the doing of thing conspired for in the latter offence, ..the mere
agreement is enough, if the agreement is to commit an offence AIR I.962 (SC) 876
'(5) Offences under.see tin .109 and section 120B are ditinct. Conspiracy to commit an offence is
itself an offence and aperstin.can be sparate1y'tharged with .respect to such .a .conspiracy. There is no
analogy between section 120B and section1O9;Pena1 Code. There 'maybe...elernentof abetment in a
conspiracy but conspiracy is something more".than an abetment. Offence created by sections i09 and
12013, Penal Code are quite distinct andtheré is. no warrant .for-limiting . the..prosecution to only one
element of conspiracy, that is, abetment w1ienthe'allegatiOn is that what a person did was something
over and above that A IR 1961 (SQ 124].
3. "Whoever is a party to a. criinlnalconspiracy."—( 1) . A mere agreement is sufficient under
this section 'to constitute an .offence. A IR'lPZl SC 885. . .
(2) Although a conspiracy may be entered into in .á foreign 'country, yet if the accused persons
continued to be parties to the 'conspiracy: when theyere .subsequentI ..inLndia :..they.wou1d be..deemed
to have committed Th'e::offence..under this-section ..in. .india.soas•to 4sdicthon..to.'htdianCourts to
try them for the conspiracy. AIR 1964 Born 133. . ..
(3) Where a conspiracy was formed in South Africa by the accused persons to cheat persons by
dishonestly inducing them to deliver money..inthe 1hdian.cuffencybyusing'..forged documents and .the
acts of cheating where, committed in India, and it was argued that the .conspiracy.'was completed in
South Africa and that the Indian Courts could not try the ..accused -for the..consp.iracy, it .was..held.that
the conspiracy continued, and the accused continued tobe'parties.to ..the conspiracy and were guilty
under this section. AIR 1964 Rom 133. . .
*
4. 01fènce.—(1) Theoffences contemplated by this section .arenot confined tol offences under this
Code but Include offences'under special or local law. 1969 MadL W(Cri) '274;
(2) Allegations made in complaint not 'ontitutin anoffence.:of'bigamy : :punishabEo. undr S.
494—Proceedings for criminal conspiracyquasijcL1.981 CrILJ 577
5. Procedural law.—(1) Prevention of Corruption Act. Criminal Law Amendment Act—
Prosecution of ex-public servant and outsider—Jurisdiction of Special Court cannot be questioned.
(1974 Cr1LJ 92 Cal. Reversed.) A IR 1977 SC 1772.
(2) Offence under . S. 120B is made cogizable in respect of which the Police Officer may arrest
without warrant, if the arrest for the offence which is the object of the conspiracy may be without
warrant but not otherwise. (1971) 1 MadL,J 196. .
(3) Special Police Establishment will be within its powers to Investigate into offonces under S
12013, Penal Code read with any of the offences mentioned in. S. 23(1) of the Foreign Exchange
Regulation Act, 1947 and more so into the offence u/s 420, Penal Code. (1970) 2 MadLi 709.
(4) There is no repugnance between 5.21 of the Foreign Exchange Regulation At and S. 120B of
the Penal Code—There can be simultaneous prosecution. 1969 Mac/LW (Cr,) 274.
Sec. 120B Criminal Conspiracy 275

6 Fm ng. ofch2l'ge.—(l). The conspiracy to commit an offence is by itself distinct from the
offence : to commit which the conspiracy isentered intQ;:sueh an offence, if actually committed, would
be the subject-matter of a separate charge. A 1R.1967 SCi59Q:: ..
(2) The accused can be. charged with both the offences,. namely for conspiracy to commit an offence
and the offence to commit which conspiracy is entered into. AIR 7957 SC 381..
(3) The offence of conspiracy is an entirely. independent offence: and though other offences are
conspiracythe.liability. of the conspirators for the conspiracy cannot
disappear. AJR L9&-SC ... . .. .
(4)Conspcy. : tornmitaffènce.iiltSe1-fail offence. anda.person can be separately charged with
respect to. suckaconsacy;: There noanalogy between. Section . 120B and Section 109, Penal Code.
There may be :a ;:elementofabetment.ina . .conspiracy,.but.coflPiraCY is something more than
abetment Offences created-by Section 109 and Section 120B P C., are quite distinct and there is no
warrant for limiting-.the prosecutionuto only one element of conspiracy, that is abetment when the
allegation is that what .a-.perNondid.was something over afl4 aboV.e that.; A IR 1961 SC 1241.
(5) In a.chargef inai;ccthspiracy;to' commit art offence ,the same certainty is not requiredih
stating the object of the.cispiiac..á$ia charge.for the offence conspired to becommitted ..AIR 1956
SC 24.7.: ...

6 The
)1
.mnal coriracyneed..nota1leg or indicate any plan or design for carryinW1
outthe object ofthe ctmspnacy It is sufficient if the object is stated 1LR (1956) Punj 499
(7).Section 222, Criminal P.. C,, does: not require that the names of the conspirators should be
mentioned in the. .charge..thongh-it is -advisable togive those particulars also in order to give reasonable
notice to the accused that he has been charged with having conspired with specified persons as also
persons unnamedto commit a certain offence: A IR 1956 SC 469.
(8) In framing acharge for conspiracy the offences actually committed in pursuance of it. should not
be mentioned in the charge. But the mere iiention of .s.00 offénces will not vitiate the charge in the
absence of prejud.iciito;the accused. AIR 1963 SC 185,0. ..
(9) Order framing . a charge is an interlocutory order and no appeal lies therefrom A IR 1980,
SC 962. . .. . . /
(10) Accused charged for offences under .Ss. 262. 263, 467 471. 420 and 120B, P. .C.
Proceedmgs for offetes under Ss 467 471 and 12013 -quashed being not made out in complaint and
not because they were .overed by S. 195, Ci. P. C.–Order of High Court refusing to quash proceeding
in toto—Held, proper. A IR 1984 SC 1108.
7. Joinder of charges.—(1) Where th'.re is a conspiracy having a definite object in view and
several offences are committed in pursuance of such conspiracy, the several offences will generally form
part of the same within the meaning of Section 220. Criminal P. C. A IR 1963 SC 1850.
(2) Where specific offences are committed in pursuance of a conspiracy, all Persons who are parties
to the conspiracy and are also concerned in the specific offences thus committedcan be lawfully tried
jointly at the same trial. AIR 196b SC 661.
(3) Crimmnal,consp.iracy—Main object cheating by - personation—One co-accused not charged with
ultimate offence—Does .notvitiate charg . ud,erS...12QB..4IR 1977 SC 2433.
(4) The validity of joint tiial on charges for offences alleged to 'be parts of a conspiracy is to be
determined by the initial accusations levelled by the prosecution agair!.st the wh&e . body . f accused
persors and not on ther ultimate result of the trial. AIR 1960 SC 661. . -.
276 Penal-Code Sec.. 120B
- 5)Where an accused is -éharged with an offenceunderSectiOfl 161 Tead-with Section 120B.-viz..a
conspiracy-to give and receive illegal gratification with a motive to show favour to-the giver and the
evidence before the Court does not establish the motive the accused can nevertheless be -found guilty-of
.an offence under S. 165 read with S. 120B. A IR 1947 FC9.
1) Where A and B- were
8. Persons charged under Section 120B—Some acquitted—Effect.--4
charged under this section for conspiracy to commit an offence, and one of them A was acquitted. and it
is not the case of the prosecution, there were other unidentified persons also in the conspiracy, the
-charge against B -under this section must necessarily fail as .a conspiracy necessarily presupposes an
agreement between two -or more persons. A IR 7972 Sc 1502.
(2) A and B -acquitted--C the third accused-conspirator was-also acquitted. as the - vidence against
"him was held to be unreliable--He -was, however, convicted of another offence which was charged
against him alone. AIR 1979. SC 1280..
9. Conspiracy to commit several acts.—(l) There can be two separate conspiracies which are
closely related to each other and refer to two separate stages of the same matter involving two distin
Offences. A IR 1979 SC 1791 (Pr 11).- - ct
10 Place of trial—(l) The Court having jurisdiction to try the offnce of conspiracy has also
jurisdiction
* to try an offence constituted by the overt acts which are committed in pursuan - ce of the -
conspirac, y beyond its jurisdiction. A IR 1971 SC 885. .
II. Sanction for prosecution—( 1) Sanction of the Government is necessary under section 196A
CrPC before instituting proceedings, but no sanction is needed where the object of the conspiracy was
to commit cognizable offences punishable with. rigorous imprisonment for more than two years.
Section 12013 read with S. 161 no sanction under
(2) Where a public servant .is prosecuted under .
Section 197 of the Code of Criminal Procedure 1898 is necessary because the acceptance of illegal
gratification by a public servant cannot be said to be something done while acting or purporting to act
in the discharge of his official duty. A IR 154 SC 455.
(3) Where a charge-sheet filed by the Police before the Magistrate disclosed only the offence of -
forgery and impersonation, and made no reference to any criminal conspiracy, but the Magistrate, on a
perusal of the records, framed a charge also under Section 120B and committed the accused, it was held
that the Magistrate took cognizance of only the offences charged by the Police and not of Section 120B
and that therefore, the committal was not vitiated by the want of consent under Section 196A, Criminal
P. C. A IR 19 7 1 SC 2372.
(4) For a case of conspiracy under Section 120B to commit offences under the Sea Customs Act no
application by a person holding authorisation under S. 187A, Sea Customs Act, 1878 is necessary to
accord consent under S. 196A(2). A IR 1979 SC 1526.
n under S.
(5) Penal Code Ss. 120B. 419—Criminal conspiracy to cheat by personation—Sanctio
196A(2), Criminal P. C. not necessary. A IR 1977 SC 2433.
(6) S. 196(2), Criminal P. C. does not apply to a case of criminal conspiracy to suppress evidence
- of commission of offence or to screen offenders, from legal punishments. A IR 1980 A ndhPra 219.
12. Proof of conspiracy.—(l) Where A complains to .B the superior officer of C that C demanded
illegal gratification but B fails to take any action on such complaint B's inaction does , not indicate the
- existence of any conspiracy between B and C. A IR 1979 SC 705. -
sec. '1208 ' 'rhriinai Conspiracy 277
'(2'tha1..for'offencesunder.Ss.' I 61 i ' 120B,.Penal Code and .S. 5(2)edn of Corruption
Act-Head oFAnti-Corruptiôn Department is , toswear affidavit on behalf of State claiming
.privilegein cespect of documents : in 'question. 1975 Cr1LJ 1411.
• 13. Punishanent,—The . . words "where no
. express provision1s made in this Code for the
punishment. of such a conspiracy" refer entirely to the quantum of punishment to be inflicted in the
eventofcoiwiction 'under-this section'arrddonot; lay 'doww any limiation:against'achàrge Under this
section even .when .theaccused'has.áctually committed an offence in pursuance of the conspiracy. (1924,)
2MysLJ(PC) II.
(2)'The only case-where expissprov..ision ismade in the Code for the punishment of conspiracy is
Section 121A. 1972 CriLl 707 (SC).
(3)-Under':sub-se6tjon (J').:th.accused is liable to be punished in the. same manner. as if he had
abetted the offence mentioned. "The punishment depends upon whether the illegal act has or has not
been carried out. If th .e illegal act has been carried out the punishment wilIbe in accordance with
Section 109, that is.it. wij[: be the same as.for the offence itself. AIR 1957 SC 381.
(4) Where two pers&s:actedin.concert by virtue of a common intention and conspiracy their entire
activities cannot be brought..out in .,,y idence. Obviously daring offences such as offences .under.Sections
364 and 386 of.the Code would havenecessarilycalled for active planning and co-operation of both; It
isnot possible in such .acase to make a distinction between them as regards the sentence. A IR 1957
SC 381.
(5) Separate sentences for 'offence under S 167(81) Sea Customs Act and one'under S. 12013, Penal
Code—Not illegal. AIR 1970 SC 45.
(6) Accused chief person to carry out main work of conspiracy—Sentence cannot be reduced for the
period already undergone..AIR 1962 SC 1821.
(7) Accused, committing murders of officials-7-N6 evidence to show that they were under'..
domination of others—Capitajpunishment held proper. A IR 1935 Cal 513.
(8) Offence under. Section 126B of Penal Code r./w. S. 135 of Customs Act Offence jeopärdises
economy of country—Light vie of the offence—Not to be taken delay in trial notwithstanding. 41R.
1981 SC 1675.
14. Conviction under this section—Effect.--(l) A Conviction under this section read with
Section 109 or Section 121 has been held to be disqualification for election under the Village
Panchayats Act as an offence under those sections involved "moral delinquency" within the meaning of
Section 16(1) of the said Act. (1964)2 .MadLJ 426.
15.Pra6tice.—Evjdence prove: (1) That the accused agreed to do or caused to be done an act.
(2). That such act was illegal 'Or wa:done:by illegal means'; Where, the act itself is not illegal,
prove further— .. . .
(3) That some overt act done'by one of the accused in pursuance of the agreement.
16. Procedure, lf'the offence falls under clause (1) of para .15 above: Cognizable; if the offence
which is the object of the conspiracy is cognizable. but not otherwise—Warrant or Summons—as the
offence for which, conspiracy is entered into, bailable, otherwise not ' Not compoundable—Court br
which abetment of offence which is an object uf conspiracy is triable.
279 Penal Code Sec.. 120B

if,theOffeiicefàflSiJndêr:dause (2) of para 15 above--Not cognizable—Summons. Bailable—Not

cpounthble--Triable by any Magistrate. .
17.:Cbarge, form of.—The charge should urn as follows:
1. (name andofficeof.the Magistrate, etc.) hereby charge you (name of the accused) as follows:
Tharyou, on or about the—dayof—, at—, agreed with (r.ame of . the , co-conspirator)to do (or
caused to be done) an illegal act, to wit (or an act to wit—whIchis not illegal by illegal means to
wit)—and that you did some acts, to wit—besides the agreement in pursuance of the said agreement to
commit the offence of—punishable with death (or imprisonment, etc.) and thereby .commi tted.anoffence
punishable under section 120B of the Penal Code, .and;within my...cognizance(or the.cogrnzanceof the
Court of Session). And. 1. hereby direct that you be tried on the said charge.
I
'CHAPTER'VI
OtOfféncés.' against 'the I State

Chapter introductio,,.—This Chapter comprises twelve sections, the first three bf which
deal with preparation; conspiracy, and .the 'actual waging of war against the Government
of Bangladesh. Section 123 deals with abetment by criminal concealment, and in this
respect it is an ággravated.form of the. offence punishable. under Secs, 118 and 12.0.
Sections 125, 127 refer. to hostile acts directed against any A siatic pOwer in alliance or at
peace with the Government. of Bangladesh. The two. grôups.of'sectibnsare thus directed
to the securing of external and internal peace.- Section .1.24A :. is directed against sedition
which may be regarded as a precautionary section intended to avert internal commotion
and civil war. Sections 121, 123 and 124A . - are thus directed to the preservation, of the
Stare, Secs.- 125,. 12'7"to the preservation of allied foreign States and the remaining
sections have' thEsame 'object in view, though they are.: not' directly conductive to its
preservation There are thus four principal offences dealt with in this Chapter (i) waging
war against. the -d ernment.jSecs. -121., :::12.1A2.22,, :: 23,: (,,ii)—waging— war against an
A siatic 'ally .(Sèth 121-1 -2&.127), . (iii) -overawing-the Gevernment 'Seôs' 124, 124A ), (it)
permitting or .aiding.theescape.of a state prisoner or, a prisoner of war ('Secs.) 128, 129
and 130 . . . ... . . . . .

Section 121
:.121...Waging:orittempting. to . '.wage:war'.or béting waging of war:. against
Bang1adesh . ._Whoever: wages:waragainst 2[Bangladesh,or.. attempt& to wage
such war; or abets the waging of such.-war, shall be punished with death. or
3 [imprisonment] fo1.ife . -[thd.shali'also . blibie.:'to'fii]. . . .
5(Illuslrationj " -.
• .6[* *] A joins an insurrection against 2 fBanglades'hj A has committed the offence
defined in this section. .

I. The word 'Bangladesh' was substituted for the word "Pakistan" by Act VIII of 1973, Second Schedule (w.e.f. 26th
March, 1971.
2. The word 'Bangladesh' was substituted for the 'word "Pakistan" by Act VIII of 1973, Second Schedule (w.e.f. 26th
March, 1971.
3 Subs. by Ord. No. XLI of 1985, for "transportation".
4. Subsituted by the Indian, Penal. Code (Amendment) Act, 1921 (act XVI of 1921). . 2, for "and shall forfeit all his
property". .',:- ....'" 1 ^ , ' ' : '•
5. Subs, by A.O. '1961, Art 2 and Sch. for Illustrations" (ith effect from 23rd March, 1956).
6. The brackets and letter "W" were omitted, ibid (with effect from the 23rd March, 1956).
280 Penal Code Sec. 12:1

7[* * •* *

1.. Scope. 7. Co,npuisionas..defence.

2..- "W hoever". 8. Practices...
3. Wages war". 9. Procedure.
4. - Distinction between waging war and riot. 10..
5. "Abets the waging of.-war!". IL... Sanction;...
6. This section and S-.23S(4) Cr.P.0
1.. Scope of the section.—(l) This Chapter consists of 13 sections from 121 to .1:30 which is
directed to the securing of external and internal peace of the State The expression "waging war must
• be construed in its ordinary sense. An .act would fall underthis section if it comes to waging war in the
• manner usualin-wär añd.whät is 'known as Armoury.Raid.Where however-the accused does not have
plans. to use force or violence but otherwise preaches::.a'change : öf. gOvernment, ha.'icnot guilty of
waging.'war;So'. long as a man • ie-to inflame "feeling:to"excite 'astaté. ofmind, he is not guilty of
anything more than sedition Section 121 makes no dlstinc09n between abt vl.tçi has succeeded
and abetment which has failed. Section 44 of the CrPC requires that every. person aware of the
commission or the intention to commit an offence punishable under sections 121, 121A, 122 to 126
and 130 should in the absence' of a reasonable excuse report the , same to the police' or the nearest
Magistrate. The omission to so report was with a view to aiding the waging of war, the person shall be
guilty of the offence under section 121 (38 CrLf 715). -
(2) For conviction u/s. 121 it'must be proved that the accused-took steps to restrain by force of
an s .the -lawM.Government from reigning according to law—Fiery oraipry,. however inflammable,
does not attract sec 121 unless it is accompanied by some overt act. Oba:dullah Majumdar V s The
'-Stath (1982)34 DLR 404. -
(3) Thereis no evidence that apart from tiyingtoinflame feeling, the appellant incited anyone to
.suchactioii..thatit resulted in the.waging-of war againstthe Government of Bangladesh. appellant
was neither 'guilty.of waging war against-the Government of Bangiadesh':nor.of;abettingthe waging-of
- - such war against the said Government. Obaidui'Iah'Majumdar" Vs.' 'The Stare i1982) 34 DLR' 404.
(4) Conviction of the appellant ti/s. 121 of the Penal COderead with -Article -1l(a' and .paragraph '(a)
of Part I of the Schedule to P.O. No. 8 of 1972 cannot be upheld. Obaidullah Majumdar Vs. The State
(1982) 34 DLR 404.
(5) If a' particular article is charged as being seditious on the ground that it says more than as
appears on the face of it, it is the duty of the prosecution to show that it has, in fact, the guilty meaning
or intent attributed to it. Obaidullah Majurndar Vs. The State (1982) 34 DLR'404.
(6) It has not been established that the accused while referring to so-called ,Bangladesh really
attacked the Govt. of People's Republic of Bangladesh—All his attacks were directed, in fact, against
the Govt. of India. Obaidullah Majumdar Vs. The State (1982) 34 DLR 404.
(7) In order to support a conviction on charge under section 121 of the Penal Code it is not enough,
to show that the person charged used highly emotional and opinionated language against the
,Government in public speeches. There must also be some evidence, that the accused has , taken some

7.
Illustration (b) as amended by the Federal Laws (Revision and Declaration) Act, 1951 (Act XXVI of 1951), s. 4 and Ill
Sch. was omrnitted by AU. 1961. Art. 2 and Sch. (with effect from the 23rd March. 1956).
Sec. 121 .Of Offences, Against the State .. 281

steps to restrain by force of arms the lawful Government from reigning according to law. Majibur
Rahman Vs. State (1983) 35 DLR 35.
(8) The offences described in this section correspond to the offence of treason by levying war under
the English law. AIR 1946 Nag 173. -
(9) In enacting this section, it was not the intention of the framers of the Code to reproduce the
English law of treason in its entirety, that is to say, the statute law ' and also the interpretation placed
upon it by the case. (1910) 11 Cr1LJ 453 (458) (DB) (Cal).
(10) No specific number of persons is necessary to constitute an offence under the section. The
number concerned or the manner in which they are equipped or armed is not material. The true
criterion is. quo 'anima (with what mind) did the gathering assemble? The object of the gathering
must be to attain, by force.-orviolence an objeët.of a general public nature, thereby striking directly
against the Government authority. AIR 1931 Rang 235.
2. "Whoever."—The essence of the offence, under this section lies in the violation of the allegiance
which is owed to the sovereign power. i.e.., the Government and which is due. from all citizens
wherever they may be AIR 1931 Rang .235.
3. "Wages war".—(l) The expression "waging war" has neither been defined in the Code nor in
the General Clauses Act, 1897. It must be therefore understood in its ordinary dictionary meaning -of
"carrying on war". (1910) 11 CriLJ 453 (458) (DB) ('Cal).
(2) The expression 'waging war' has been held to be, a substitute for the expression "levying war"
used in the English Statutes relating to treason. AIR 1931 Rang 235.
(3) English authorities bearing on the interpretatn of the term "Levying war" are relevant in
construing the expression "wages war" in this section. AIR 1946 Nag 173.
(4) The phrase 'waging war' imports use of force and violence and hence. where a society is
formed with the object of putting an end to capitalism and private ownership and bring about a change
in the existing Government by peaceful means it cannot be said that it is guilty of waging war as it is
right of every citizen to entertain and propagate his political theories ard ideas and work for their
establishment without use of force and violence. A IR 1955TravCo 33 (37, 38) 1955 CriLJ
414(DB). . .
(5) A rebel in arms against Crown in unlawful possçssion of deadly weapons ,t be usedwhen
occasion demanded is guilty of waging war. AIR 1934 Cal 221.
(6) The words "wages war" occurring in Section 121 of the Penal Code and the words "waged
war" occurring in sub-clause (III) of clause (b) of Article 2 of P. 0. No. 8 of 1972 mean waging war in
the manner usual in a war—In order to support a conviction on a chargç under Section 121 of the Penal
Code it is not enough to show that the accused used highly emotional and opinionated language
against the Government in public speeches—There must be some evidence to show that the accused
took some steps to restrain by force of arms the lawful Government from reigning according to law.
Majibur Rabman V s. The State 3 BLD ('HCD) 158. -
4. Distinction between waging war and riot.—(1) Although the offence of waging war against
the Government and the offence of rioting may often very nearly run into each other the distinction
between them is clear. Where the rising or tumult is merely for the purpose of accomplishing some
J,. private purpose interesting only to those engaged in it and not for the purpose of resisting or calling in
question the authority of the Government or its prerogative then the tumult, however numerous or
282 Penal Code Sec. 121
outrageous the mob maybe, is only a riot. But wherever the rising or insurrection has for its object a
general purpose not confined to the peculiar interests of the persons concerned in it. but common to the
whole community and striking directly against the authority of the Government then it assumes the
character of treason, i.e., waging war. AIR 1955 Trav-Co.33.
5. "Abets the waging of war".—(l) While the general law makes a distinction between
successful and, unsuccessful abetments for the purpose of punishment, S. 121 does away with that
distinction and deals equally with the abettor whose instigation has led to a war and one whose
instigation has taken no effect whatsoever. AIR 1946 Nag 173.
(2) So long as a man only tries to inflame feelings or to,.excite a state of mind he is not guilty of
anything more than sedition. It is only when he definitely and clearly incites persons to action that he
is guilty off instigatiçrn and therefore of abetting the waging of war. AIR 192?Bom 284.
(3) There is a difference between men who plan and execute a raid and those who, swept along in
the maelstrom of eents and sudden frenzy, participate in an offence of that kind it was held that the
latter cannot be held liable under this gection. AIR 1946 Nag 173
(4) Where, in a village which was a hotbed of rebellion an influential man who was also the
president of an associatiUn which was formed for resisting payment of capitation taxes by way of a
rebellion, r ecr uited rebels and assisted them after battle with the tax authorities, it was held that he was
guilty of the offence of waging war. AIR 1937 Rang 118.
6. This section and Section 235(4) Criminal P.C.— .(l) The waging of war is essentially a
continuing offence in which several incidents, which may in themselves-be separate offences, may be
comprised. Hence, the striking off of the convictions for other offences cannot affect the conviction of the
accused under S. 121 ifthere is other evidence it establish it. AIR 1925 Mad 690.
7. Compulsion as defence.—(l) In view of the provisions of '.c. 94, compulsion is not a
defence in India to a charge under this section, though it does operate in mitigation of punishment in
most, though not in all, cases. A IR 1931 Rang 2235.
8. Practice.—Evjdence_prove . (I) That the accused waged war, or attempted to do so, or abetted
the same. .
(2) That such war was against the Government of Bangladesh.
9.. Procedure.—çl) The offence may be tried at the place conspiracy to wage war was entered into
or at the place where an act was done in pursuance of donspiracy by any of the conspirators, as such act
is the act of all conspirators. (1872) 17 SuthWR 15.
(2) , Not c ognizable—Warrant—Not bailable—Not compoundable—Triable by the Court of'
Sess
10. Charge.—( I) A charge for an offence under this section is not vitiated by the fact that it does
not set out the speeches alleged to be seditious. AIR 1925 Mad 106.
(2) The charge should run as follows:
L(name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, waged war (or attempted to wage war, or abetted the
wagingof war) against Government of Bangladesh, and thereby committed an offence punishable under
setho6.121 of the Penal Code, and within my cognizance.
A nd I hereby direct that you be tried on the said charge.
/
Sec. 121A Of Offences Against the State 283

11. Sanction.-Sanction of Government is necessary before prosecution could be instituted under

this section (section 196 CrPC).

Section 121A
8 [121A. Conspiracy to commit offences punishable by section 121.-Whoever
within or without 2 [Bangladesh] conspires to commit any of the offences punishable
by section 121, or to deprive '[Bangladesh of the sovereignty of her territories]
iO[* * ] or of any part thereof, or conspires to overawe, by means of criminal
force Or the show of criminal force, I '[the Government] .12[* * * *], shall be
punished with ' 3 [imprisonment for life], or with imprisonment of either description
which may extend to ten years, ' 4 [and shall also be liable to fine].
Explanation.-To constitute a conspiracy under this sectipn, it is not necessary
that any act or illegal omission shall take place in pprsüaicè thereof.]
Cases and Materials Synopsis
1. Scope. 8. Punishment.
2. "Conspiracy to commit offences under S. 9. Joint trial of other offences with offence under
121." this section.
3. Proof of conspiracy. 10. This section and S. 196, Criminal P.C.
4. "Conspiracy to overawe the Government' H. Practice.
5. "Criminal force or show of.criminalforce' 12. Procedure.
6. Section 120B and S. 121A compared. 13. Charge.
7. Charge.
1. Scope.-(1) The question whether the conspiracy would succeed in the near future or distant
future is immaterial for the application of this section. Section 121A embraces not merely a conspiracy
to raise a general insurrection but also a conspiracy to overawe the Government by the organisation of .a
serious riot or a large and tumultuous unlawful assembly. The word overawe' imports more than the
creation of an apprehension or alarm or even fear, it connotes the creation of a situation in which the
Government feel themselves compelled to choose between yielding to force or expose themselves and
the members of the public to a very serious danger: may be to the public property. Mere holding of
communist beliefs is not per se punishable.

8. Section 121A was inserted by the Indian Penal Code (Aniendement) Act. 1870 (Act XXVII of 1870). s. 4.
9. The original words "the Queen of the soverignsy of British Indian" have successively been amended by A.,O. 1949. Ati.s..
3(2) and 4. Ordinance XXI of 1960. s. 3 and 2nd Sch. (with effect from the 14th October, 1955). and AO. 1961, A rt.
2nd Sch. (with effect from the 23rd March. 1956). and Act VIII of 1973. Second Sch. (with effect from 26th March.
1971), to read as above.
10. The words f British Burma" were omitted by A.O. 1949, Sch.
II. The words "The Central Government or any Provincial Government" were first substituted for the words "the
(lovetniuent of India or any Local Government" and then the words "the Government" were substituted for the words
he Central Government or any Provincial Government" by the Bangladesh Laws (Revision. and Declaration) Act. 197
(Act. VIltof 1973), (with effect from 26th March, 1971).
12. The words "or the Government of Busmf were omitted by A.O. 1949, Sch.
13. Ssds. by Ord, No. XLI of 1985, for "transportation for life or any shoiter term".
14. These words were inserted by Act XVI of 1921.
284 Penal Code Sec. 121A

(2) Ingredients: The section deals with two kinds of conspiracies:

(i) Conspiring within or without Bangladesh (a) to commit any of the offences punishable by
section 121 or. (b) to deprive Bangladesh of the sovereignty of her territories or any part
thereof.
(ii) Conspiring to overawe by means of criminal force, or the show , of criminal force, the
Government.
(3) Truth of the allegation alleged to be seditious. can never epea .teasra'.:defence to-such an':
allegation. Truth of the seditious commentary becomes relevant to the proceedings in order that the
accused may succeed in securing a lighter sentence from the Court. Sardar A taullah Khan Vs. State
(1964) 16 DLR (W P) 149.
(4) The essence of the crime of sedition consists in the intention with which the language is used
and such intention has to be judged primarily by the language used. PLD 1954(Sind) 80.
(5) A person may no doubt lawfully express his opinion even in strong terms on public matter
however distasteful it might be to others, but this does not entitle him to do so in a language which is
calculated to endanger feelings of hatred or contempt or.to rouse passions to such an extent as to incite
listeners to rebellion, insurrection. etc. Intention is a state of mind and it can only be gathered from the
evidence of his overt acts and expressions. Where there are no deeds but only words the speaker's
intention must be gathered from a..plain reading of his words. He must be deemed to have meant what
he said unless the words are ambiguous and capable of bearing more than one meaning. The State V.S.
Sardar A taullah Khan Managal, (1967)19 DLR (SC) 186:
(6) Attempt to bring into hatred or contempt or excite disaffection towards the Government—Use
of vituperative and strong language not a sure test—Right of criticising the Govt. even in violent
language universally accepted. Masihur Rahman Vs. The State (1974) 26 DLR 87.
(7) The section obviously draws a distinction between the Sovereign for the time being of the
United Kingdom and the Government of India or the Local Government. It may therefore be conceded
in favour of the accused that any conspiracy to change the form of the Government of India or of any
Local Government even though it may amount to an offence under another section of the .Code would
not be an offence under Section 121A unless it is a conspiracy to overawe such Government by means
of criminal force or show of criminal force. AIR 1933 All 690.
(8) In view of the explanation a conspiracy itself is a crime and it is not necessary to establish any
illegal act or illegal omission as overt acts of the conspiracy. The illegal acts or omission, if
established, support the .case of the existence of the conspiracy itself, the offence being complete even
though two persons conspiring together go no fuither than the original agreement. AIR 1937 Cal 99.
2. "Conspiracy to corn offences under S. 121".—(l) The gist of a conspiracy lies in the
agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as
such a design rests in intention only, it is not indictable, but when two or more persons agree to carry
it into effect, the. very plot is an act in itseif.and the act of each of the parties, promise against promise,
actus contra actum capable of being enforced if lawful, punishable, if for a criminal object or for 'the use
of criminal means. (1910) II CriLJ 453 (Cal).
(2) Conspiracy in the present section is to be construed in. the light of the definition contained in
Section 120A.. The agreement in itself is therefore enough to constitute the offence under this section.
AIR 1933 All 690.
(3) 'Conspire' is nothing, agreement is the thing. (1911) 12 CriLJ 286.
Sec. 121A Of Offences Against the State 285

(4) The criminality of the conspiracy in this section is independent of the criminality of the overt
acts. (1912) 13 CrELJ 609.
(5) Where a conspirator A intended to leave the conspiracy and carried out his intention before the
other conspirators indulged in acts of war, it was held tiK.. A was only guilty of conspiracy under this
section and was acquitted of the offence under Section 121. (1913) 14 Cr1LJ'610.
(6) In order to constitute a conspiracy it is not necessary that its,. ppps.shqu ld be immediate.
The fact that the purpose was not immediate, if proved, would only be material in so far as it might
bring the matter within the saving operation of S. 95 of the Code. (1910) 11 CriL.J 453
3. Proof of conspiracy.—(1) Conspiracy is generally hatched in secrecy. It must, therefore, be
remembered that direct proof can scarcely be afforded of a conspiracy. In such a situation the prosecution
is not obliged to prove that the persons accused actually met and put their heads together and after a
formal consultation came to an express agreement to do evil. On the contrary, if the facts as proved are
such that the jury "as reasonable men can say there, was a common design and the prisoners were
acting in concert to do what is wrong, that is' evidence from which jury may suppose that a conspiracy
was actually formed". AIR 1929 Pat 145. .
(2) The overt acts may be properly looked at as evidence of the existence of a concerted intention:
indeed, conspiracy is usually closely bound up with overt acts, because in many cases, it is only by
means of overt acts that the existence of the conspiracy can be made out. (1912). 13 CriLJ 609.
(3) Once the agreement is proved by circumtances raising a presumption of common concerted
plan to carry out the unlawful design, not only those who have joined in the scheme from the first but
also those who came in at a later stage are equally guilty of the conspiracy. (1912) 13 CriLJ 609.
(4) Where it has been proved that the accused were members of the particular conspiracy charged, it
is not necessary to establish that the different organisations to which they belonged were connected
with one another. AIR 1937 Cal 99.
(5) Conspiracy to wage war would not imply the existence of a serious menace to the Constitution
or the stability of the constituted authority. To attach sinister significance to an association for play or
pastime such as music or gymnastic exercises and lathi-play of those who live in the same village or
attend the same school is dangerous especially where there is complete absence of secrecy. (1911) 12
Cr/Li 286.
(6) Where several persons are charged with the same conspiracy, it is a legal impossibility to find
some guilty of one conspiracy and some of another. Any member who is not guilty of the particular
conspiracy is entitled to be acquitted. (1911)12 CriLi 286
(7) With regard to the conviction of the accused under section 124A of the Penal Code read with
paragraph (a) of Part I of the Schedule to the President's Order No. 8 of 1972, in order to sustain a
conviction on this charge it is necessary for the prosecution to adduce evidence that the accused brought
into hatred or contempt, or excited or attempted to excite disaffection, towards the Government
established by law in Bangladesh. Majihur Rahman Vs. State (1983) 35 DLR 35.
(8) Where the charge is based upon a statement concerning measures taken or alleged to be taken
by the Government, it is irrelevant, for the purpose of establishing the charge whether the allegations of
fact made in such statement are true or otherwise. It is not relevant evenfor determination of sentence,
whether the allegations of fact are true or untrue, in a case where the prosecution does not make it a part
of its case that the statements were untrue. Evidence as to the truth of the measures which formed the
basis of criticism offered in the offending statement cannot be admitted in cases where he libels are
286 Penal Code Sec: 121A

alleged to be seditious. If the prosecution does not allege that the facts are incorrect they must be
accepted as correct and the Court should proceed to decide assuming that the facts çeferred to in the
speech are correct. The principle is that it can never be in the public interest that enquiry into the truth
of statements (subject-matter of a charge u/s. 124A) should be allowed in cases where the only queticn
for the Court to decide is whether the effect of the language used is such that it is calculated to crele a
feeling of revulsion towards the Government, so strong as to amount to hatred or contempt, or where
proves "disaffection." The State vs. Sardar A iauIlah Khan, (1967) 19 DLR (SC) 186.
(9) Evidence of truth of speech (or publication) which the subject matter of a charge for sedition.
under Sec. 124A of the Penal Code is not admissible at all either upon general principles or by reason
of anything contained in section 124A of'the Penal Code. Whether a.comment-is fair or not, or whether
it was made with The intention of bringing about a change is Governmental, policy or action by lawful
means, would depend upon the language used in the offending article or speech atd not upon the truth
or falsity of thefacts. commented upon. The State Vs. Sardar A taullah Khan Mangal. (1967) 19 DLR
(SC) 186.
4. "Conspiracy to overawe the G'ovërnment".—(I) The word 'overawe' clearly imports more
than the creation of apprehension or alarm or even perhaps fear. It connotes the creation of a situation in
which the members of the Government feel themselves compelled to choose between yielding to force
or exposing themselves or the members of the public to a very serious danger. It is not necessary that
the danger should be a danger of assassination or of bodily injury to themselves. The danger might well
be a danger to public property or to the safety of the members of the general public. AIR 1951 Pat 60. -
(2) The words "conspires to overawe by means of criminal force or the show of criminal force, the
Government" clearly embrace not only a conspiracy to raise a general insurrectiort but also a conspiracy
to overawe the Government by the organisation of a serious riot or a large and tumultuous unlawful
assembly. A IR 1951 Pat 60. - -
5. "Criminal force or show of criminal force".—Where a large number of havildars and police
constables conspired to withhold their services with the object of compelling the Government to ycd
to their demands and the conspirators seized the armoires and took possession of the arms and
ammunition but remained peacefully in the police lines and did nothing to intimidate the general body
of citizens, but tooksteps to ensure the uninterrupted working of the treasury, it could not be said that
there was any such show of criminal force as is contemplated by the section. AIR 1951 Pat 60. -
6. Section 120B and Section 121A compared.—As under Section 120A, so also under this
section, the conspiracy to commit an offence is a substantive offence by itself, 'though the offence
conspired to be committed may not be actually committed in pursuance of the conspiracy. AIR 1937
Cal 99.
7. Charge.—(l) Under Ss. 221 and 222, Criminal Procedure Code 1898 there is no duty on the
prosecution to mention in the charge the names of the fellow conspirators and the charge is not invalid
by reason of such omission. AIR 1933 All 498.
(2) If the names of the fellow conspirators are known they must be mentioned in the charge. (1911)
12 CriLi 286 (FB) (Cal).
(3) When the facts may sustain a charge under S. 121A and also under S. 12013, the prosecution
may rest content with proceeding under S. 120B only. It is not incumbent on the Government to
prosecute the accused under S. 12 IA. AIR 1934 Nag 71. -
Sec. 122 Of Offences Against the State 287

8. Punishment.—(I) In the case of political offences arising out of beliefs of the accused severe
sentences defeat their object as in practice such sentences confirm the offenders in their beliefs and create
other offenders, thus increasing the evil and danger to the public. AIR 1937 Cal 99,
(2) A distinction must be drawn between political offences of the nature of sedition or spread of
ideas of communism and socialism charged under this section and offences against the State and society
involving treason, armed r±ellion and murder, in connection with which the nameof policitics' is
used. All the conspirators. however. are not to be punished alike if the parts played by them largely
differ in character, but in the awarding of sentences the complicity of each of the individual accused
person and the part played by him as amember of the conspiracy in furtherance of its aims and objects
have to be carefully considered. AIR 1937 Cal 99.
9. Joint trial of other offences with offence under this section.—(l) Under clause (d) of S.
239, Criminal P.C., persons accused of different offences committed in the course of the same
transaction may be fried jointly. Hence offences under Ss. 121A (conspiracy to wage war), 122 and 123
which are committed in furtherance of the same transaction are triable jointly under Section 239 (d),
Criminal Procedure Code. (1912) 13 CriLJ 609
10. This section and S. 196, Criminal Procedure Code.—(l) The offence envisaged by this
section probably would, to"the lay mind, imply a political situation of the gravest character, and it is
p
no doubt, artly for this reason that the Legislature has prescribed that an offence of this description
shall not be' taken cognizance of except uponn. complaint made by order of, or under * sanction from the
authorities specified in Section 196, Criminal Procedure Code. ('1911)12 CriLi 286
(2) Sanction: No Court shall take cognizance of an offence under this section unless the prosecution
is instituted under the authority of Government (Section 196, CrPC).
11. Ftactice.—Evidence—Prove: (1) That the accused had entered into a conspiracy.
(2) That' the conspiracy was to commit an offence punishable under section 121 or t9 deprive
Bangladesh of the sovereignty of her territories or to overawe by means of criminal force or show of
criminal force the Government.
12.Procedure.—Not cognizable—Warrant—Not bailable—Not Compoundable--Triableby Court
of Session.
13. Charge.—The charge should run as follows:
I. (name and office'of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, conspired to wage war (or to abet' the waging of war)
against Bangladesh (or conspired to deprive Bangladesh of the sovereignty or of some part thereof, or
conspired to overawe, by means of criminal force or show of criminal force, the Government) and
thereby committed an offence punishable under section 121A of the Penal Code and within the
cognizance of the Court Session.
And I hereby direct that you be tried on the said charge.

Section 122
122. Collecting arms, etc. with intention of waging war against
15 [Bangladesh].—Whoever collects men, arms or ammunition or otherwise prepares

IS. The word "Bangladesh" was substituted for the word "Pakis" by the Bangladesh Laws (Revision and Declaration
Act. 1973 (Act VIII of 1973), Second Schedule (wef 26th March 1971).
288 - Penal code Sec. 123

to wage war with the intention of either waging or being prepared to wage war against
•.' 5 [Bangladesh], shall be punished with 16[imprisomnent] for life or imprisonment of
either description for aterm not exceeding ten years, 17 [and shall also be liable to fine].
Cas and Materials Synopsis
1. Scope of the section. 4. Charge.
2. Practice. 5. Sanction.
3. Procedure.
1. Scope of the section.—(l) Since the expression "wages war" occurring in S. 121 has to be
construed in its ordinary sense, the overt acts, envisaged by the present sectioR do not amount to
waging war but they are part of. and go to make up the offence under S. 121-A. That is' why the general
rule of procedure is that when a person is convicted for the offence of conspiracy to wage war under S.
12 1-A, he is not to be separately convicted, much less punished, for the actsunder this section if they
related to the conspiracy charged. (1910) 11 CriL.J 453.
(2) Where an accused declared that he was going to set up his throne in a particular city,
Mandalay (which was then part of British India) and started with a following of other persons, it was
held that it was an ac(of collecting men to wage war with the intention of waging war against the
Government of India. (1900-1902) 1 Low Bur Ru! 340. -
(3) Where an accused person was charged with abetment of dacoity and the charge was proved,
there could be no objection to convict him for the offence, though an intention to prepare for waging
war was disclosed in the course of trial, but no charge could be framed for want of sanction under S.
196, Criminal P. C. (1900) 2 BomLR 653. -
2. Practice.—Evidence—Prove: (1) That the accused collected men, arms, etc. -
(2) That he did collect men, arms, etc. with intent to wage war or was prepared to wage war. -
(3) That such war was against Bangladesh.
3. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Court
of Session.
4. Charge.—The charge should run as follows:
1. (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, collected men, arms and ammunition, or otherwise
prepared with the intention of waging war (or being prepared to wage war) against Bangladesh and
thereby committed an offence punishable under section 122 of the Penal Code and-within my
cognizance. -
And I hereby direct that you be tried on the said charge.
5. Sanction.—Sanction of Government is required for prosecution under this section (Section 196,
CrPC).

Section 123
123. Concealing with intent to facilitate design to wage war.—(l) Whoever,
by any act, or by any illegal omission, conceals the existence of adesign to wage war

16. Subs, by Ord. No.- XLI of 1985. for "transportation". -
17. Subs, by the Indian Penal code (Amendment) Act, 1921 (Act XVI of 1921). s. 2. for 'and shall forfeit all his property"
Sec. 123 Of Offences Against the State 289

against 15 [Bangladesh], intending by such concealment to facilitate, or knowing it to be

likely that such concealment will facilitate, the waging of such war, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable tofine.
Cases and Materials : Synopsis
1. Scope of the section. 4. Charge.
2. Practice. 5. Sanction.
3. Procedure
1. Scope of the section.—(]) A conspiracy to wage war (S. 121 A) will necessarily amount to a
design to wage war and the concealment of such conspiracy will fall under this section. (1912) 13
Cr/LI 609.
(2) It is not necessary under this section that persons designing by conspiracy to wage war and the
persons concealing such design must be different persons. The same persons may form aconspiracy to
wage war (S. 121A) and may also conceal the existence of such conspiracy intending thereby to
facilitate the waging of war. (1912) 13 criL.J 609.
(3) Even persons guilty under S. 121A (conspiracy to wage war) may be convicted under Ss. 122
and 123. Thus in the case of a conspiracy to wagewar (S. 12 IA) the conspirators may be liekt guilty
under this section also for concealing the existence of the conspiracy. (1892-96) 1 013R 148.
(4) A charge under this section can be joined with a chargeunder S. 121A. The .charge under S,
12 ]A is that of conspiracy to wage war or overawe the Government: In furtherance of that, conspiracy
the conspirators may collect arms or they may conceal the existence of their conspiracy from, the
authorities. All these acts, if done, will be part of one transaction and therefore may clearly be charged
jointly under S. 235 of the Criminal P.C. (1912) 13 Cr1LJ 609.
(5) Where the sanction is granted by the Government to lay a complaint under Ss. 121, 122 and
123, it is not open to an accused person to challenge the valid creation of the Government itself, when
it is a de facto Government of the State for years, as such challenge might undermine other functions ol
the Government including the appointment of Magistrates and Judges and their jurisdiction to commit
and try the offences. (1912) 13 CriLJ 609.
2. Practice.—Evidence—Prove: (1) That a design to wage war against the Government of
Bangladesh existed.
(2) That the accused knew of such design.
(3) That he concealed the same.
(4) That the concealment was intended to facilitate the design to wage war.
3. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Court
of Session, Chief Metropolitan Magistrate, District and Additional ,District Magistrate, MFC specially
empowered..
4. Charge.—The charge should run as follows: ' *
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you—Knowing that on or about the-----day of—, at—, certain persons had design to wage wai
against Bangladesh, concealed the existence of such design by (specify the act or illegal omission)
290 : Penal Code Sec. 123A-124

intending by such concealment to facilitate (or knowing it to be likely that such concealment would
facilitate) the waging of such war, and thereby committed an offence punishable under section 123 of the
Penal Code, and within my cognizance:
And I hereby direct that you be tried on the said charge.
5. Sanction.—Sanction of Government is necessary for prosecution under the section ('Section
196, CrPC). .
C

Section 123A
18' 1 123M Condemnation of the creation of the State and advocacy of
abolition of its sovereignty.--(1) Whoever, within or without 15 [Bangladesh], with
intent to influence, Or knowing it to be likely that he will influence, any person or-the
whole or any section of the public, in a manner likely to be prejudicial to the safety of
15 [Bang ladesh], or to endanger the sovereignty of 15 [Bangladesh] in respect of all or
any of the territories lying within its borders, shall by words, spoken or written, or by
signs or visible representation, condemn the creation of 15[Bangladesh] 19[in pursuance
of the Proclamation of Independence on the twenty-sixth day of March, 1971], or
advocate the curtailment or abolition of the sovereignty of ' 5 Bangladesh] in respect of
all, or any of the territories lying within its borders, whether by amalgamation with the
territories of neighbouring States or otherwise, shall be punished with rigorous
imprisonment which may extend to 'ten years, and shall be liable to fine;
(2) Notwithstanding anything. contained in any other law for the time being in
force; when any person is proceeded against under. this section, it shah i be lawful for
any Court before which he may be produced in the course of the investigation or trial,
to make such order as it may think fit in respect of his movements, of his association
or communication with other persons, and of his activities in regard to dissemination,
of news, propagation of opinions, until such time as the case is finally decided.
(3) Any Court which is a Court of appeal or of revision in relation to the Court
mentioned in sub-section (2) may also make an order under that sub-section].
Materials
1. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Court
of Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate, MFC
specially empowered.

'Section 124
124. Assaulting President, Government, etc. with intent to compel or
restrain the exercise of any lawful power.—Whoever, with the intention of

18. Section 123A was inserted by the Pakistan Penal Code (Amdt.) Act, 1950 (LXXI of 1950).
S. 2
19. The, words within square brackets were substituted for the words "by virtue of the partition of India which was effected
on the fifteenth day of August, 1947" byAct VIII of 1973, Second Sch. (w.ef. 26th March,,1971).
Sec. 124A Of Offences Against the State 291

inducing or compelling the 20[President] of 21 [Bangladesh], or 22 [the Government],

23[* *], 24[* * *], 25[* * ], to exercise or refrain from exercising in any
manner any of the lawful powers of the 20[President], or 26[the Government],
assaults, or wrongfully restrains, or attempts wrongfully to restrain, or overawes,
by means of criminal force or the show of criminal force, or attempts so to overawe,
27 [the President], 28[* *J,
shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
Materials
1. Practice.—Evidence—Prove: (I) That the person assaulted was the President of Bangladesh or
the Government.
(2) That the accused assaulted or attempted to assault. such person or wrongfully restrained or
attempted to restrain such person or that the accused used a criminal force or show of criminal force.
(3) That the accused did so with the intention of inducing or compelling such person to exercise or
refrain from exercising any of his lawful powers.
2. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or magistrate of the first class.
3. Charge.—The charge should run as follows:
I, (name and office of the Judge/Magistrate etc.) hereby charge you (name of the accused) as
follows;
That you, on or about the—day of—, at—, with the intention of inducing the President of
Bangladesh, to refrain from exercising a lawful power as such President, assaulted such President, and
thereby committed an offence punishable under section 124 of the Penal Code, and within my
cognizance.
And I hereby direct that you be tried on the said charge.
4. Sanction.—Sanctionof Government is necessary for prosecution under this section (Section
196. CrPC).

Section. 124A . ...

.29 [124A. Sedition.—Whoever by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or

20. Subs, by A.O. 1961, Art. 2. for "Governor-General" (with effect from the 23rd March 1956).
21. The word "Bangladesh" was substituted for the word "Pakistan" by the Bangladesh ,Laws (Revision and Declaration)
Act, 1973 (Act VIII of 1973), Second Schedule. (with effect from 26th March 1971)..
22. The words "the Government" were substituted for the words "the Governor Of any Province" by Act VIII of 1973,
Second Schedule. .
23. The words "or a Lieutenant-Governor" were repealed by A.O. 1937.' .
24. The words "or a Member of the Council of the Governor-General of India" were omitted by A.O. 1949,
25. The words "or of the Council of any Presidency" were repealed by A.O. 1937. .
26. These words were substituted for "Governor" ibid. . . .
27. Subs, by A.O. 1961, Art. 2 for "such Governor-General" (w.e.f. 23-3-1956).
28. The words "or Governor" were omitted by Act VIII of 1973. . . .
29; Substituted by the Indian Penal Code (Amendment) Act, 1898 (Act IV of 1898), s. 4, for the original section I24A, which.
was inserted by the Indian Penal Code (Amendment) Act. 1870 (Act XX VII of 1870), S. 5.
292 Penal Code Sec. 124A

contempt, or excites or attempts to excite disaffection towards, 30 [the Government

established by law, shall] be punished with 31 [imprisonment for life] to which fine
may be added, or with imprisonment which may extend to three years to which fine
may be added, or with fine.
Explanation 1.-The expression "disaffection" includes disloyalty and all feelings
of enmity.
Explanation 2.-Comments expressing disapprobation of the measures of the
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 3.-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.]
Cases and Materials : Synopsis
1. History of the sec/ion. •' 12. Evidence.
2. Scope of section. 13. Punishment
3. "Visible representation". 14. Commitment to Sessions and trial by Jury.
4. "Or othenvise' iS. Joint trial of Editor, Printer and publisher.
5. "Brings or attempts to bring into hatred or 16. Distinction between sedition and abetment .of
contempt". waging war.
6. 'Excites or attempts to excite disaffection. 17. Truth of matter or innocence of motive-No
7. "Disaffection defence.
8. intention. 18. Printer and publisher-Liability of
9. "Government established by law". 19. Practice.
10. Comments expressing disapprobation- 20. Procedure. .
Explanations 2 and 3. 21. Charge.
11. Constitutional validity of the section: 22. Sanction.
1. History of the section.-(l) The words "brings or attempts to bring into hatred or contempt"
were absent in the section as originally enacted. The word "disaffection" is not equivalent to
'disapprobation' but means 'dislike' or 'hatred'. (1897) ILR 20 A ll 55 (FR).
(2) The word ".disaffection" did 'not mean a mere negation of affection, but meant positive ill-will,
dislike, hatred and contempt. A IR 1916 Born 9.
2. Scope of section.-(1) The expression 'the Government established by law' has to be
distinguished from the persons fof the time being engaged in carrying on the administration.

30.' The original words "Her Majesty or the Government established by law in British India, shall" have successively been
amended by A.O. 1937, A.O. 1949, Sch., the Central Law (Statute Reform) Ordinance, 1960 (Ord. XXI of 1960), s. 3
and 2nd'Sch. (with effect from the 14th October. 1955) and A.O. 1961, Art. 2 and Sch. (with effect from the 23rd March
1956) to read as "the Central or Provincial Government established by law shall" and then the words "the Government"
were substituted for the words "the Central or Provincial Government" by Act VIII of 1973. Second Schedule., (w.e.f.
26th March 1971).
31. Subs, by Ord. No XLI of 1985, for "transportation for life or any shorter term".
Sec. 124A Of Offences Against the State 293

'Government established by law' is the visible symbol of the State. The very existence of the State
will be in jeopardy if the Government established by law is subverted. Hence the continued existence of
the Government established by law is an essential condition of the stability ofthe 'State'. That is why
'sedition' as the offence in S 124A has been characterised comes under ,Chapter VI relating to offences
against the State. AIR 1962 SC 955.
(2) The section is limited to activities which create or tend to create disorder.
AIR 1962 SC 955.
(3) The section must be interpreted in view of all the social, political and constitutional changes.
A IR 1976 A ndhPra37S.
(4) Sedition consists of exciting or attempting to excite others in certain bad feelings towards the
Government, A person may no doubt lawfully express his opinion even in strong terms on public
matter however distasteful it might be to others, but this does not entitle him to do so in a language
which is calculated to endanger feelings of hatred or contempt or to rouse passions to such an extent as
to incite listeners to rebellion, insurrection, etc. "Disaffection" is not defined in the Code. It includes
disloyalty and all feelings of enmity but dose not mean mere disapproval which may consist of severe
condemnation even though -perversely, unreasonably or unfairly expressed (ILR 19 Cal. 35). The
essence of the crime of sedition consists in the intention with which the language is used. The
intention of a speaker, writer or publisher, may be gatheredfrom the particular speech, article or letter
or words used. The requisite intention cannot be attributed to a person if he was not aware of the
contents of the seditious publication. It is not necessary that the acts or words complained of must
either incite to disorder or must be such as to satisfy reasonable men that their intention or tendency.
Mere existence of feeling of hatred if not punishable unless an attempt is made to excite such feelings in
others and the hatred and contempt must be hatred and contempt of the State, or the established
Government.
(5) Prosecution to establish by evidence that the accused brought the Government into hatred,
encouraging disaffection. With regard to the conviction of the accused under section 124A of the Penal
Code read with Paragraph (a) of part! of the.Schedule to the President's Order, in order to sustain a
conviction on this charge it is necessary for the prosecution to adduce evidence that the accused brought
into hatred or contempt or exited or attempted to excite disaffection towards the Government
established by law in Bangladesh. In the present case the prosecution has not adduced any evidence to
show that the accused in his speeches excited disaffection towards the Government of the People's
Republic of Bangladesh established by law. The accused had not directed his speeches against the
Government of the People's Republic of Bangladesh. He was urging his listeners to face Indian
aggression untidily and boldly, advising them to maintain the integrity of Pakistan and at times
eulogising the services of the Razakars. This evidence warrants the conviction of the accused on the
charge of collaboration but we do not think that these statements, wherein the Government of the
People's Republic of Bangladesh dose not figure at all, warrant the conviction of the accused under
section 124A of the Penal code. 35 DLR 35.
(6) The essence of the crimes of seditions. It consists in the intention with which the language is
used and such intention has to be judged primarily by the language used. PLD 1954 (Sind) 80.
(7) Attempt to bring into hatred or contempt or excite disaffection towards the Government—Use
of vituperative and strong language not a sure test—Right of criticising the Government even in violent
language universally accepted. In construing a speech or a writing to determine whether it contains
words which are seditious the Court has to consider the speech or writing "as a whole in fair, free and
294 Penal Code Sec. 124A

• liberal spirit", with reference to context and the circumstances and environments in which it was
spoken or written. Needless to say that circumstances and environments have changed since the
incorporation of section 124A in the Penal Code and they are changing fast. In modern times the State
is conceived as an instrument for the advancement of the well-being of the people and "Government" is
the vehicle through which the State carries its beneficial activities. If a Government for the time being
holding the reins fails to respond effectively to the needs and aspirations of the people, it must be
prepared for onslaughts by the people through their representatives. In the instant case, apart from the
use of rather strong words against the ex-President, who was a part of the Government, the speaker gave
vent to his feeling on some of the issues which lave repeatedly been raised by leaders of public though
imbued with the best of intentions. Some of them may appear to be unpalatable to some, but
unfortunately they are factually true. 26 DLR 87.
(8) If the prosecution does not say that what the accused said in his speech is untrue, the Court
must act on the view that what-was said in the speech is true. Evidence that the speech contained true
statement of facts—not admissible. If the prosecution does not allege that the facts are incorrect they
must be accepted as correct and the Court should proceed to decide assuming that the facts referred to in
the speech are correct. The principle is that it can never be in the public interest that enquiry into the
truth of statements (subject matter of a charge under section 124A) should be allowed in cases where
the only question for the Court to decide is whether the effect of the language used is such that it is
calculated to create a feeling of revulsion towards the Government, so strong as to amount to hatred or
contempt, or where it proves disaffection. It is of course not necessary that such feelings should have
actually been caused. Evidence as to the truth of a speech, the subject matter of a charge undef section
124A not admissible even on the ground that truth of such speech is a fact or for leniency of sentence of
punishment. Evidence as to the truth of a speech the subject matter of a charge for sedition under
section 124A of the Penal Codeis not admissible at all either upon general principles or by.reason of
anything contained in section 124A of the Penal Code. Whether a comment is fair or not, or whether it
was made with the intention of bringing about a change in Government policy or action by lawful
means, would depend upon the language used in the offending article or speech and not upon the truth
or falsity of the facts commented upon. Strong , criticism—Short of open incitement permissible—
incitement to violence not permissible. Intention can be gathered from the words used. A person may
no doubt lawfully express his opinion even in strong terms on public matter however distasteful it
might be to ethers, but this does not entitle him to do so in a language .which is calculated to endanger
feelings of hatred or contempt or to rouse passions to such an extent as to incite listeners to rebellion,
insurrection, etc. Intention is a state of mind and it can only be gathered from the evidence of his overt
acts and expressions. Where there are no deeds but only words the speaker's intention must be
gathered from a plain reading of his words. He must be deemed to have meant what he said unless the
words are ambiguous and capable of bearing more than one meaning (Ref: 16 DLR . 149 WP). 19 DLR
(SC) 185. . .
3. "Visible representation"..—The expression "visible representation" includes pictures or
dramatic performances in a dumb show where no words are spoken but where the feelings of the
audience are excited by the gestures and motions and dramatic actions of the performers. (1909) 9
CriLi 456.
4. "Or otberwise".—The words "or otherwise" should be given their natural meaning. They are
not to be restricted by the doctrine of ejusdem generis to the classes of cases covered by the words that
precede them. 1947 RangLR 82. '
See; 124A Of Offences Against the. State 295

5. "Brings or attempts to bring into hatred or contempt".—(1) The two expressions "brings
or attempts to-bring into hatred or contempt" and "excite disaffection" must be construed together. The
one really results from the other. AIR 1936 Cal 524.
(2) The hatred, contempt or disaffection towards the Government is usually created by words or
writings imputing to the Government base, dishonorable, corrupt or malicious motives' in the
discharge of its duties, or by writings or words unjustly accusing the Government of hostility or
indifference to the welfare of the people Or by abusing the Government or its officials. A IR 1937
All 295.
(3) The offence under this section partakes of the nature of libel against the Government established
by law. It is, therefore, the publication of the libel that constitutes the offence. (1897) ILR 22 Born 152.
6. "Excites or attempts to excite disaffection".—(l) Under this section, not only the creating of
hatred or contempt against the Government but also the exciting . of disaffection •against the
Government, is an offence. AIR 1976 AndhPra 375;
(2) The expression "disaffection" involves the intention, or tendency to create disorder. AIR 1962
SC 955.
(3) For illustrations of speeches or writings held to be seditious, see the undermentioned cases.
A IR 1919 PC 31; A IR 1950 Lah 183; A IR 1932 Cal 738.
(4) For illustrations of speeches or writings held to be not seditious, see the undermentioned cases.
1972 CriLJ 373; (1948) 52 Mys HR 265. .
7. "Disaffection".—The word "disaffection" is never used with.regard to individuals. It is only
with regard to the Government that this word is used. (1906) 4 CriL.J 1.
-8. Intention.--(I) An attempt to do a thing must necessarily involve intention, for a man cannot
be said to attempt to do that which he has absolutely no knowledge of doing and no intention to do.
Thus, an attempt to excite hatred, contempt or disaffection implies intention. A IR 1920 Cal 478.
(2) A writer or speaker generally avoids saying that his intention is to excite bad feelings towards
Government. If per chance he does that, then there is no difficulty in ascertaining the intention. It is
only in other cases that the question of ascertaining the intention arises. (1897) ILR 20 All 55.
(3) It is not open to the speaker or writer to contend that he did not intend his language to bear the
meaning which it naturally does bear. AIR 1930 All 401.
(4) In judging of the intention of the writer or publisher, you must look at the articles as a whole
giving due weight to every part. It would not be fair to judge of the intention by isolated passages or
casual expressions without reference to the context. AIR 1930 All 401.
9. "Government established by law".—(l) Section 17 of the Penal Code defines the word
'Government' as denoting "the person or persons 'authorised by law to administer executive
Government in Bangladesh or in part thereof'. This definition was assumed to be applicable to the
interpretation of the words "Government established by law" in this section and it was held that the
words of S. 17 referred to persons entrusted with the executive Government of the country, collectively
as a body, and not as individuals. AIR 1932 Cal 745. .
(2) Under the amended Section 17, the word 'Government' denotes the Government. But this
amendment only states what was already the law under the previous section as interpreted by judicial
decisions. AIR 1919 All 91.
296 Penal Code Sect 124A

(3) The expression "Government established by law" in this section still retains the same meaning
as before, as referring collectively to the persons entrusted by law with the exercise of executive
authority. A IR 1962 SC 955.
(4) Even where the target of the alleged sedition is the Council of Ministers there could be
"sedition" under this section. A IR 1962 SC 955.
(5) The Ministers were held to be officers subordinate to the Government and hence automatically
fulfilled the requirements of S. 17 of the Code as persons authorised under the law to exercise executive
power, and hence constituted "Government" within S. 49 of the Government of India Act, 1935. A IR
1939 Cal 529.
(6) The words 'Government established by law" mean the "existing political system as
distinguished from any particular set of administrators." A IR 1932 Cal 738.
(7) In many speeches of writings it may not be patent if feelings of hatred, contempt or disaffection
are excited against the Government established by. law or against some other institution or section of
the people. In other words, words exciting disaffection may not be directed against the Government in
explicit language but if they may hint at it by necessary implication, the offence of sedition is
committed. A IR 1933 €al 278.
10. Comments expressing disapprobation—Explanations 2 and 3.—(1) A map may criticise
or comment upon any measure or act of the Government, whether legislative or executive, and freely.
express his opinion upon it. He may express the strongest condemnation of such measures, and he may
do so severely, and even unreasonably, perversely and unfairly so long as he confines himself to that he
will be protected by the Explanation. But if he goes beyond that, and , whether, in the course of
comments upon measures or not, holds up the Government itself to the hatred or contempt of his
readers, then he.is guilty under the section, and the Explanation will not save him. A IR 1918 Mad
1210. .
(2) This Section will have to be construed in such a way as to preserve its validity under Articles
36-40 of the Constitution and so construed, this section will only apply when the impugned speech or
writing or other matter is detrimental to public order or the security of the state. A IR 1962 SC 955.
(3) There can be no doubt that the object of the Explanations is to allow perfect freed pm to
journalists, publicists, orators and public speakers to discuss the measures and administrative acts of
Government even in strong terms, so that the attention of the Government may be drawn to the
criticism and that it may be persuaded to remedy the grievanes of the public if found necessary. A IR
1932 Born 468.
(4) In a democratic country criticism of governmental measures and administrative action are to
some extent unavoidable ;, they are made for the purpose of enlisting popular support, and in
considering the effect of such criticism no serious notice ought to be taken of crude, blundering
attempts or rhetorical exaggerations by which nobody is likely to be impressed. Wi th the change of
times, the effect of criti'cism of governmental measures and administrative action also changes ; what
was damaging contempt or hatred of a bureaucratic Government is not so of a popular Government—a
Government which can neither afford to be hypersensitive, nor impervious to criticism. A IR 1942
FC 2225. . .
(5) 'Explanations 2 and 3 have a common clause viz., 'without exciting or attempting to excite
hatred, contempt or disaffection', and this clause lays down a condition precedent to the validity of the
Sec. 1244 Of Offences Against the State 297

comments envisaged by the Explanations as fair criticism. It was held that the ordinary meaning of the
word 'disaffection' in the main body of the section was not varied by the Explanation. No doubt the
word 'disaffection' had been judicially construed as including hatred, contempt, disloyalty or enmity.
(1897) ILR 20 All 55.
(6) The Explanations are added to remove any doubt as to the true meaning of the Legislature
they do not add or subtract from the section itself; words in the Rules ought to be interpreted as if they
had been explained in the same way. AIR 1942 FC 22.
• (7) An article containing a criticism of S. 93 Government, in spite of the extravagance of its
language, is attracted by one of the two Explanations because its professed aim is to obtain a change of
Government through the ballot box and not to incite people to disobedience of the laws of the
Government. AIR 1947 Nag 1. ..
11. Constitutional validity of the section.-4 I) This section will come into operation , only in
cases where the speech, writing or other activity of the accused which is the subject-matter of the
charge under this section was intended or has a tendency to prejudicially affect the security of the State,
public order and the like and hence, the section clearly came within the saving clause in Aricle 39(2) of
the Constitution and hence, the validity of the ection was not open to question under the
Constitution. A IR 1962 SC 955. .,
12. Evidence.—(1) Where the question is whether a particular speech made is seditious and a
verbatim report of the speech is not available for the purpose of ascertaining. its object, but only
excerpts have been taken by the reporter and the excerpts are correct and fairly represent the general drift
of the speech as tending to excite hatred or disaffection against the Government that is sufficient
evidence for conviction under this section. A IR 1937 A ll 466. •.
(2) Where a person has published a series of books or written a series of articles or delivered, a
series of speeches though only some of these are the subject-matter of the charge, the whole series must
be considered in order to determine whether the passages contained in the books or other matter which
are the subject of the charge are seditious.. This is on the principle recognised. in Illus. (e) to Section
14, Evidence Act, 1872. A IR 1925 A ll 195.
13. Punishment.—(1) The punishment prescribed by the section ranges from mere fine to
imprisonment for life. The section also envisages that fine may be imposed in addition to
imprisonment for life or imprisonment extending to three years. But in practice, it can only be in very
exceptional circumstances that it is suitable and appropriate to inflict a fine as well as a substantial term
of imprisonment. (1948) 52 Mys HCR 265. .. .
(2) The theory of punishment is not based upon retribution, but upon the protection .f the public,
the prevention of crime and the reformation of the offender, the punishment should be commensurate
with the gravity of the offence. What should be the measure of punishment depends upon the facts and
circumstances of each case. (1948) 52 Mys NCR 265. . •.•: . .
(3) The punishments under Sections 124A and 153A should be deterrent especially in a case of a
peculiarly mischievous conspiracy to poison the immature in of students and other impressionable
people (1910) 11 CriLi 583
(4) On the questiOnf sentence the position of printers of seditious document is probably worse
than that of the authors because the seditious acts of the author would be far less extensive in their
operation if it were not for the existence of peEsons able and willing to print and publish them. AIR
1931 Cal 349. ' .
298 Penal Code Sec. 124A
• 14. Commitment to Sessions and trial by Jury.—(l) An offence under this section is triable by
a Court of Session, Chief Presidency Magistrate or District Magistrate or Magistrate of the First Class
specially empowered by the Government in that behalf. The complaint for the offence has to be
presented before the Magistrate in the first instance and it appears that in view of the alternatives given
in the Schedule ftis for sucb MagistiVe to decide whether he shall try It himself or commit it to the
Court of Session. No doubt, that discretion must be exercised judicially. But this does not mean that
in every case the accused must. be committed to the Sessions so as to give him the benefit of a trial by
a Jury of his own countrymen. AIR 1932 Born 63.
15. Joint trial of Editor, Printer and Publisher.—(l) in cases of sedition, the printer and
publisher being concerned in the same transaction regarding publication of the seditious matter can be
tried jointly under Section 239(a) of Criminal P. C. AIR 1928 Born 139.
16. Distinction between sedition and abetment of waging war.—(l) So long as a man only
tries to inflame feelings or to excite a state of mind he is not guilty of anything more than sedition. It
is only when he definitely and clearly incites th action that he is guilty of instigating and therefore
abetting the waging of war. AIR 1922 Born 284.
17. Truth of matter or Innocence of motive—No defence.—<l) A plea of truth or innocence of
the motive may be a good defence to a charge for defamation, but is not a valid defence to a charge for
sedition under this section. AIR 1947 Nag 1.
18. Printer and publisher—Liability of.—(l) Mere authorship of a seditious leaflet which has
been published by others would be sufficient to constitute the offence. AIR 1928 Rang 276.
(2) A man is presumed to intend the natural and reasonable consequences of his own acts. It is on
this principle that the printer and publisher of an article is attributed the intention to excite hatred,
contempt or disaffection if the article is seditious. AIR 1931 Cal 349.
(3) Ane4fitor of a newspaper containing a seditious article of which another is an author is guilty of
the offence qnder this section, despite the fact that his paper was usually in favour of non-violence. A IR
1930 Lah875.
19. P ractjce.— Evidence__provc: (1) That the accused spoke or wrote the words, or made the
signs or represetutfons, or did some Other acts, in question.
(2) That he thereby brought * or attempted to bring into hatred or contempt; or excited or attempted
to excite disaffection.
(3) That such disaffection was towards the Government of Bangladesh.
20. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by the
Court of Session ; Chief Metropolitan Magistrate or District Magistrate or Magistrate of the first class
specially empowered.
21. Charge.—(l) The gist of the offence under this section is the bringing or attempting to bring
into hatred or contempt or the exciting or attempting to exc disaffection towards the Government
established by law. The offence may be committed by means of words, spoken or written or visible
representation where no words are used. (1909) 9 CriLJ 456 (Mad).
(2) Even if the words or their substance are or is not set out in the charge, it is an irregularity and
the conviction cannot be reversed unless the accused has been misled or there has been a failure of
justice. A IR 1931 La/i 186. .
Sec. 12.5 Of Offences Against the State 299

(3) The charge should run as follows:

I, (name and office of the Judge/Magistrate, etc.) hereby charge you (name of th accused) as
follows:
That you, on or about the—day of—, at—, by writing (or speaking) the words (menilon them) (or
by signs or by visible representation, or otherwise) brought (or attempted to bring) thto hatred or
contempt (or excited or attempted to excite disaffection towards) the Government establisked by law in
Bangladesh and thereby committed an offence punishable under section 124A ant! within my
cognizance (or the cognizance of the Court of Session).
And I hereby direct that you be tried on the said charge.
22. Sanction.—Sanction of the Government or some officer empowered by the Government is
necessary for prosecution under section 196, CrPC.

Section 125
125. Waging war against any Asiatic Power in ahance with Bangladesh.—
Whoever wages waragainst the Government of any Asiatic Power in alliance or at
peace with 32 [Bangladesh], or attempts to wage such war, or abets the waging of such
war, shall be punished with 33 [imprisonment] for life to which fine may be added, or
with imprisonment of either description for a term which may extend to seven years
to which fine may be added, or with fine.
Cases and Materials
1. Scope of the section.—(l) This section is based on international committee and a desire on the
part of the Government of Bangladesh to remain in friendly relationship with its neighbours.
(2) Accompanying a military expedition by a foreign power into the territory of a friChdly Asiatic
Power was an offence under this section. Such act on the part of the accused would amount lo abetment
of waging of war against a friendly Power. (1865) 3 SuthWR (Cr) 16.
(3) Where the accused. was found to have accompanied an expedition into the State df Manipore
which was then an Asiatic Power in alliance with the Queen, it was held that he was guihy under S.
125 of the Code. (1865) 3 SuthWR (Cr) . 16. . . . .. .
2. Practice.— Evidence—Prove: ( 1) That the Power in question is Asiatic and the alliance, or at
peace, with Bangladesh. . .
(2) That the accused waged war against the Government of such Power; or that the accused abetted
or attempted the same. . . . . . . .
3. Procedure.—Not cognizable—Warrant--Not bailable--Not compoundable—Triable by the
Court of Session. .....
4. Sanction—Sanction of the Government is necessary for prosecution (Section 196. CrPC)
S. Charge.—The charge would run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:

32. The word "Bangladesh" was substituted for the word "Pakistan" by Act. VIII of 1973. Second Sch., (w.c.f. 26th March.
1971). .
33. Subs, by Ord. No. XLI of 1985,for "transportation".
300 Penal Code 1.
Sec. 126-127

That you, on or about the—, day of—, at—, waged (or attempted to wage or abetted the waging of
war against the Government of—an Asiatic Power in alliance (or at peace) with Bangladesh and thereby
committed an offence punishable under section 125 of the Penal Code, and within my cognizance. -
And I hereby direct that you be tried on the said charge.

Section 126
126. Committing depredation on territories of Power at peace with
Bangladesh.—Whoever commits depredation, or makes preparations to commit
depredation, on the territories of any Power in alliance or at peace with
32 [Bangladesh], shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine and to forfeiture of
any property used or intended to be used in committing such depredation, or acquired
by such depredation.
Materials -
1. Scope.—Depredation is plunder and to be punishable under this section, it must be a raid by a
band of men in a foreign territory for plunder. The object of the raid is not to wage war but only to
plunder. This section deals with depredation on territories of Power at peace with Government of
Bangladesh.
2. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, committed (or made preparations to commit)
depredation on the territories of—, a Power in alliance (or at peace) with Bangladesh, and thereby
committed an offence punishable under section 126 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
4. Sanction—Sanction of Government or some officers empowered by the Government is
necessary for prosecution (section 196, CrPC).

Section 127
127. Receiving property taken by war or depredation mentioned in sections
125 and 126.—Whoever receives any property knowing the same to have been taken
in the commission of any of the offences mentioned in sections 125 and 126. shall be
punished with imprisonment . of either description for a.term which may extend to
seven years, and shalt also be liable to fine and to forfeiture of the property so
received.
Materials
1. Scope.—This section provides for punishment of person's who knowingly receive property
taken by war or depredation against an Asiatic Power in alliance. Such properties are usually sold at
low prices in great hurry and in secrecy.
Sec. 128 Of Offences Against the State 301

2. Practice.— Evidence— Prove: ( 1) That the property in question was obtained by waging war
against any Asiatic Power or by commission of depredation.
(2) That such war or depredation was punishable under section 125 Or 126.
(3) That the accused received such property.
(4) That when he so received such property, he knew that it had been obtained as mentioned in
(1).
3. Procedure.—Not cognizable—Warrant---Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, received (specify the property). knowing the same to
have been taken in waging war against—an Asiatic Power in alliance (or at peace) with Bangladesh or
knowing the same to have been taken in the commission of depredation on the territories of—, a Power
in alliance (or at peace) with Bangladesh and thereby committed an offence punishable under section
127 of the Penal Code, ana within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction—Not Sanction is necessary for prosecution under this section.

Section 128
128. Public servant voluntarily allowing prisoner of State or war to
escape.—Whoever, being a public servant and having the custody of any State
prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place
in which such prisoner is confined, shall be punished with 33[imprisonment] for life, or
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
Cases and Materials
1. Scope.—(1) A State prisoner is prisoner arrested and confined for reasons of State.
(2) The expression "State prisoner" would seem to indicate a foreigner kept in confinement on
political grounds or for political reasons and not in due course of law on conviction and sentence by a.
court of law for an offence against the law of the land. (1870) 6 BengLR 456
2. Practice.—Evidence----Prove: ( 1) That the accused was a public servant.
(2) That he had the persor. in question in his custody.
(3) That such a person was State prisoner or prisoner of war.
(4) That the prisoner escaped.
(5) That the accused allowed the prisoner to escape from the place where he was confined.
(6) That the accused did so voluntarily.
3. Procedüre.—Not cognizable—Warrant—Not bailable—Not conipoundable—Triable by Court
of Session. .
b2 Penal Code Sec. 129-130

4. Charge.—The charge should run as follows:

I, (name and office of the Judge) do hereby charge you (name of the accused) as follows:
That you, being a puM servant (mention die office) and as such having the cWtody Of—, a State
Hsoner (or prisoner of lar), on or about the—day of—, at—, voluntarily allowed such prisoner to
Ifiape from—, the place in which such prisoner was confined, and thereby committed an offence
6ishab1e under section 128 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 129
129. Public servant negligently suffering such prisoner to escape.—Whoever,
being a public servant and having the custody of any State prisoner or prisoner of war,
liegligently suffers such prisoner to escape from any place of confinement in which
such prisoner is confined, shall be punished with simple imprisonment for a term
which may extend to three years, and shall also be liable to fine.
.. Materials
1. Scope.—This section deals with the Government servant who has the custody of the prisoner
acting negligently in allowing the prisoner to escape.
2. Practice—Evidence—Prove: ( I) That the accused was public servant.
(2) That he had the person in question in his custody.
(3) That such person was a State prisoner or prisoner of war.
(4) That the accused suffered such prisoner to escape from the place of confinement.
(5) That the accused did so negligently.
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Sanction—Sanction of the Government or some officer empowered by the Government is
required for prosecution under this section.
5. Charge.—The charge should run as follows:
I. (name and office of the Magistrate etc.) hereby charge you (name of the acctsed) as follows:
That you, being a public servant (mention the office), and as such having the custody of—, a State
prisoner (or prisoner of war), on or about the—day of—, at—, negligently suffered such prisoner to
escape from any place of confinement in which such prisoner was confined, and thereby committed an
offence punishable under section 129 of the Penal Code, and within my cognizance.
And 1 Ifereby direct that you be tried on the said charge.

Section 130.
130. Aiding escape of, rescuing or harbouring such prisoner.—Whoever
knowingly aids or assists any State prisoner or prisoner of war in escaping from
lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or
conceals any such prisoner who has escaped from lawful custody, or offers or
Sec. 130 Of Offences Against the State 303

attempts to offer any resistance to the recapture of such 'prisoner, shall be punished
with 33(imprisonment) for life, or with imprisonment of either description for a term
which may emend tø ten years, and shall also be liable to fine. -
Explanallon.—A State prisoner or prisoner of war, who is permitted to be at large
on his parole within certain limits in 32 [Bangladesh], is said to escape from lawful
custody if he goes beyond the limits within which he is allowed to be at large.
Materials
1. Scope.—Knowingly aids or assists—The knowledge must be that the person assisted is a State
prisoner or a prisoner of war. To harbour a person is to give him shelter and protection.
2. Practfee.—Evidence--Prove: (1) That the person in question was a prisoner of State or of war.
(2) That such prisoner was at the time in lawful custody or that such prisoner had escaped froiq
lawful atody.
(3) That the accused knew that such person was in lawful custody as a prisoner of State or of war,
That he knew that such prisoner had escaped from the lawful custody.
(4) That he aided or assisted such prisoner in escaping. That he rescued such prisoner or attempted
to do'so. That he harboured or concealed such prisoner. That such prisoner was about to be recaptured
but the accused offered or attempted to offer resistance to such recapture.
3. Procedáre.—Not----cognizable--. warrant_Not bailable—Not compoundable—Triable by
Court of Session.
4. Charge.—.The charge should run as follows:

I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—. knowingly aided (or assisted, or offered to rescue, or'
attempted to rescue)—, a State prisoner (or prisoner of War), in escaping from lawful custody (
knowingly harboured or concealed)—, a State prisoner (or prisoner of war) who had escaped from lawful
custody or knowingly offered or attempted to offer resistance to the recapture of—a State prisoner (or
prisoner of war) committed an offence punishable under section 130 of the Penal Code, and within my
cognizance.
And I hereby direct that you be tried on the said charge.
CHAPTER VII
Of Offences relating to the Army, '[Navy and Air Force]

Chapter introduction.— The authors of the Code say: "A few words will explain the
necessity of having some provisions of the nature of those which are contained, in this
chapter. It is obvious that a person who, not being himself subject to military law, exhorts
or assists those who are subject to military law to commit gross breaches of discipline, is a
proper subject of punishment. But the general law respecting the abetting of offences will
not reach such a person; nor framed as it is, would it be desirable that it should, reach
him. It would not reach him, because the military delinquency which he has abetted is
not punishable by this Code and therefore is not, in our legal nomenclature, an offence.
Nor is it desirable Ihat the punishment of a person not military, who has abetted a breach
of military discipline, should be fixed according to the principles on which we have
proceeded in framing the law of abetment. W e have provided that the punishment of the
abettor of an offence shall be equal or proportional to the punishment of the person who
commits that offence; and this seems to us a sound principle when applied only to the
punishments provided by this Code. But the military penal law is, and must necessarily
be, far more severe than that under which the body of the people live. The severity of the
military penal law can be justified only by the reasons drawn from the peculiar habits
and duties of soldiers, and from the peculiar relation in which they stand to the
Government. The extension of such severity to persons not members of the military
profession appears to us altogether unwarrantable. If a person, not military, who abets a
breach of military discipline, should be made liable to a punishment regulated,
according to our general rules, by the punishment to which such a breach of discipline
renders a soldier liable, the whole symmetry of the penal law would be destroyed. He who
should induce a soldier to disobey any order of a commanding officer would be liable to
be punished more severely than a dacoit, a professional thug, an incendiary, a ravisher
or a kidnapper. W e have attempted in this chapter to provide, in a manner more
consistent with the general character of the Code, for the punishment of persons who, not
being military, abet military crimes."

Section 131
131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman
from his duty.—Whoever abets the committing of mutiny, by an officer, soldier.

1.
Substituted by the Repealing and Amendment Act. 1921 (Act X of 1927), s. 2 and Sch. I for "and Navy".
Sec. 131 Of Offences relating to the Army, Navy and Air Force 305

2 [sailoror airman], in the Army, 3 [Navy or Air Force] of 4 [Bangladesh], or attempts to

seduce any such officer, soldier, 2 [sailor or airman] from his allegiance or his duty.
shall be punished with 5 [imprisonment] for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
6 [Explanation. — In this section the words "officer", 7 ["soldier". 8 ["sailor"] and
"airman"] include any person subject to the 9 [ 10 [Army Act, 1952 or the Navy
Ordinance, 1961 or the Air Force Act, 1953], as the case may be].]
Cases and Materials
1. Scope.—(1) This Chapter consisting of sections 131 to 140 deal with abetment of breaches of
Military discipline and the harbouring of offenders against Military Law. This section supplements and
extends to civilians the penal provisions of Army Act, 1952, Naval Ordinance, 1961, or the Air Force
Act, 1953 relating to mutiny desertion. The word "Mutiny" has not been defined in the Code.
Abetting or attempting to seduce, the committing of mutiny by an officer, soldier, sailor or airman by a
person other than those subject to military discipline, is made an offence under this section.
(2) The undermentioned case has a bearing on the Incitement to Mutiny Act (37 Geo 3, C. 70)
which is an analogous law. (1912) 22 CoxCC 729.
(3) An allegation in a newspaper article that a person has been guilty of tampering with the loyalty
of the 'Punjab Sepoys' has been held to amount to an imputation that the person has attempted to
seduce the soldiers from their duty within the meaning of this section. (1910) ILR 37 Cal 760.
(4) Anewspaper published an article purporting to be a letter from a sympathiser of native soldiers
and addressed to.them. It was of a nature calculated to seduce soldiers of the Indian Army from their
allegiance and duty to His Majesty the King-Emperor. It was held that the act of publishing copies of
the letter addressed, to native soldiers and which were bound • to reach them was clearly an act
amounting to an attempt to'seduce' the soldiers within the meaning of this section. (1907) 6 CriLJ 411.
(5) The definition of the word 'soldier' given in the Indian Articles of War was expressly confined
. Lah 114.
to those articles and was very limited. AIR 1920
2. Practice..-"--Evidence--prove: ( 1) That the person abetted is an officer, etc. of the Bangladesh's
Army, Navy or Air Force. .
(2) That the accused abetted him to commit mutiny; or attempted to seduce him from allegiance.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of
Session.

2. - Subs. ibid. for "or sailor". .,
3. Subs. ibid, for "or Navy".
4. The word "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973, 2nd Sch., (w.e;f. 26th March.
1971).
5. .. Subs, by Ord. No. XLI of 1985. for "transportation".
6. Explanation was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870), s. 6.
7. Subs, by the Repealing and Amending Act, 1927 (Act X of 1927), s. 2 and Sch. I. for "and'soldier".
.8. Ins, by the Amending Act, 1934 (Act XXXV of 1934), s.2 and Sch.
9. Subs, by Act X of 1927.
10. The words within square brackets were substituted for the words "Army Act, the Indian Army Act, 191I,the Pakistan
Army Act, 1952. the Naval Discipline Actor that Act as modified by the Pakistan Navy (Discipline) Act 1934, the Air
Force Act or the Indian Air Force Act, 1932 or'the Pakistan Air Force Act, 1953" by Act . Vlll of 1973, Second Schedule.
306 Penal Code Sec. 132-133

• 4. Charge.—The charge should run as follows:

1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
• That you, on or about the—day of—, at—, abetted the commission of mutiny by—, an officer (or
soldier, or sailor, or airman) in the Army (or Navy or Air Force) of Bangladesh (or attempted to
seduce—an officer, or sailor, or airman in the Army, or Navy, or Air Force) of Bangladesh for his
allegiance or duty), and thereby committed an offence punishable under section 131 of the Penal Code
and within my cognizance.
And I hóreby, direct that you be tried on the said charge.

Section 132
• 132. Abetment of mutiny,. if mutiny is committed in consequence thereof.—
Whoever abets the committing of mutiny by an officer, soldier, 2 [sailor or airman], in
the Army, 3 [Navy or Air Force] of 4 [Bangladesh], shall, if mutiny be committed in
consequence of that abetment, be punished with death, or with 5 [imprisonment] for
life, or imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine
Materials
I Practice—Evtdence—Prove (I) The abetment of mutiny as in section 131
(2) That mutiny was committed in consequence of such abetment
2 Procedure —Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of
Session
3 Charge —The charge should run as follows
I, (name and office of the Judge) hereby charge you (name of the accused) as follows
That you on or about the—day of— at—, abetted the commission of mutiny by—an officer or
soldier or sailor or airman) in the Army, (Navy, or Air Force) of Bangladesh and mutiny was
committed inconsequence of that abetment and thereby committed an offence punishable under section
132 of the Penal Code, and within my cognizance
And I hereby direct that you be tried on the said charge

Section 133 .1
• 133. Abetment of assault by soldier, sailor Or airman on his superior officer,
when in execution of his office.—Whoever abets an assault by an officer, soldier,
2 [sailor or airman], in the Army, 3 [Navy or Air Force] of 4 [Bangladesh], on any
superior officer being in the execution of his office, shall be, punished with
imprisonment of either description for a term which may extend to three years, and
shall also be liable to fine
Materials
I. Scope.—The abetment of substantive offence of assault by any one other than a soldier, sailor or
airman is dealt with under this section.
2. Practice.—Evidencè—Prove: (1) That the accused was guilty of act of abetment.
(2) That the person abetted was an officer, etc. in Bangladesh's Army, Navy or Air Force.
Sec. 134-135 01 Offences relating to the Army, Navy and Air Force 307

(3) That the assault was to be on the superior officer of the person abetted.
(4) That such officer was at the time in the execution of his duty.
• . Procedure.—Cognizable--Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class. .
4. Charge—The charge should run as follows: . .. .
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you; on or about the—day of—, at—, abetted an assault by—an officer (or soldier, or sailor.
or airman) in the Army, (or Navy, or Air Force) of Bangladesh on—a superior officer being in the
execution of his office, and thereby committed an offence punishable under section .133 of the Penal
Code, and within my cognizance. . . . . .
And I hereby direct that you be tried on the said charge. ..

Section 134
134. Abetment of such assault if the assault is committed.—Whoever abéts an
assault by an officer, soldier, 2[sailor or airman], in the Army, 3 [Nävy, or Air Force], of
4[Bangladesh], on any superior officer being in the execution of his office, shall, if such.,
assault be committed in consequence of that abetment be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be
liable to fine.
Materials
1. Practice.—Evidence—Prove: ( 1) That the accused was guilty of acts of abetment;
(2) That the assault was committed.
(3) That it was committed in consequence of the abetment.
2. Procedure.—Cognizable---Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follàws:
That you, on or about the—day of—, at— abetted on assault which was committed by—an officer
(or soldier, or sailor, or airman) in the Army (or Navy or Air Force) of Bangladesh on —a superior
officer being in the execution of his office, and thereby committed an offence punishable under section
134 of the Penal code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 135 ... .. . .

135. Abetment of desertion of soldier, sailor or airman.—Whoever abets the
desertion of any officer, soldier, "[sailor or airman], .in the Army, 12 [Navy or Air
Force] of 13 [Bangladesh], shall be punished with imprisonment of either 'description
for a term which may extend to two years, or with fine, or with both.

11. Subs, by the Repealing and Anending Act. 1927 (Act X of 1927), s. 2 and Sch. 1, for "or sailor".
12. Subs ibid. for "or Navy". .
.13. The word "Bangladesh" the word "Pakistan" by Act VIII of 1973, Second Schedule, (w.e.f. 26th March, 1971).
308 Penal Code Sec. 136

Cases and Materials

1. Scope—(l) The offence under this section is abetment of desertion. Desertion implies the
abandoning of duty. The term is applied when a soldier, sailor or airman absents himself from duty
without leacve with no intention to return to duty.
(2) Where the accused helped a Regimental sepoy M and two other persons believing them to be
Regimental sepoys to desert the regiment, it was held that the accused was guilty under S. 135 read
with S. 108, Penal code, for abetting M to desert even though M never intended to desert and had
offered to do so only. to enter the accused. So also the endeavour by the accused to make the other two
persons desert, believing them to be sepoys, amounted to an attempt to make sepoys desert, and is
punishable under Section 135 read with S. 511, Penal Code. AIR 1917 Sind 28.
(3) The word "Soldier" in the section must be interpreted in the light.of the Explanation to
Section 131 of the Code. A IR 1920 Lah 114(1)
(4) The definition of "soldier" given in the Indian Articles of War is expressly confined to those
articles and is very limited. A IR 1920 Lah 114. . . .
(5) A regimental sepoy is a soldier within the meaning of this section. AIR 1917 Sind 28.
(6) Where an accused believes another to be a soldier and helps him to "desert" the accused will
be guilty of attempting to abet desertion by a soldier and will be liable to punishment under this
section read with Section 511, although as a fact such person is not a soldier at all. AIR 1917 Sind 28.
2. Practice.— Evidence— Prove: ( 1) That the person instigated was an officer, etc. in the Army,
Navy or Air force.
(2) That the accused instigated such person to desert.
3. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate. . . .
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, abetted that desertion of—, an officer (or soldier, or
sailor, or airman) in the (Army, or Navy, or Air Force) of Bangladesh, and thereby committed an
offence punishable under section 135 of the Penal Code, and Within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 136
136. Harbouring deserter.—Whoever, except as hereinafter excepted, knowing
or having reason to believe that an officer, soldier, "[sailor or airman], in the Army,
12 [Navy or Air Force] of 13 [Bangladesh}, has deserted, harbours such officer, soldier,
"[sailor or airman], shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Exception.— This provision does not extend to the case in which the harbour is
given by a wife to her husband.
Materials
1. Practice.— Evidence--Prove: ( 1) That the person in question was an officer, etc., in the Army,
Navy, or Air Force. .
(2) That such person had deserted.
Sec. 137 . Of Offences relating to the Army, Navy and Air Force 309
(3) That the accused harboured such person.
(4) That the accused when he so harboured knew or had reason to believe that such person was a
deserter,
(5) That the accused was not the wife of such person.
2. Procedure.— Cogn i zable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, knowing, or having reason to believe that—, an officer
(or soldier, or sailor, or airman) in the Army (or Navy, or Air Force) of Bangladesh had deserted,
harboured such officer (or soldier, or sailor or airman) and thereby committed an Offenëe punishable
under, section 136 of the Penl Code, and within my cognizance.
And 1. hereby direct that you be tried on the said charge.

Section 137
137. Deserter concealed on board merchant vessel through negligence of
master.—The master or person in charge of a merchant vessel, on board of which any
deserter from the Army, 12 [Navy. or Air Force] of 13 [Bangladesh] is concealed, shall,
though ignorant of such concealment, be liable to a penalty not exceeding five hundred
14 [taka] if he might have known of such concealment but for some neglect of his duty
as such master or person in charge, or but for some want of discipline on board of the
vessel.
Materials
I. Practice.— Evidence— Prove: ( I) That the person in question is a deserter from Bangladesh's
Army, Navy or Air Force.
(2) That such deserter was concealed in a merchant vessel,
(3) That the accused was, at the time of such concealment, the master or person in charge of such
vessel. .
(4) That the accused was guilty of neglect of duty, as such master or person in charge; or was
guilty of want of discipline on board.
(5) That such neglect of duty, or want of discipline, was the cause of such concealment.
2. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate. .. .
3. Charge.—The charge should run as follows: . -
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That—, a deserter from the Army, (or Navy, or Air force) of Bangladesh, had concealed himself on
or about the—day of—, at—, on board—a merchant vessel of which you are the master (or person in
charge) through your neglect of duty as such master (or person in charge) or through your want of
discipline on board the said vessel and that you have thereby committed an offence punishable under
Section 137 of the Penal Code, and within my cognizance.
And i hereby direct that you be tried on the said charge.

The word "taka" was substituted for the word "rupees", ibid.
310 Penal code Sec. 138-139

Section 138
138. Abetment of act of insubordination by soldier, sailor or airman.—
Whoever abets what he knows to be an act of insubordination by an officer,. soldier,
" [sailor or airman], in the Army, 12[Navy or Air Force] of 13 [Bangladesh], shall, if
such act of insubordination be committed in consequence of that abetment, be
punished with imprisonment of either description for a term which may extend to six
months, or with fine, or with both.
Materials
I. Practice.—Evidence—Prove: ( 1) That the act was one of insubordination.
(2) That the person guilty of such act was anofficer, etc., in the Army, Navy, or Air Force.
(3) That the accused abetted such officer in doing such act.
(4) That the accused at the time knew the same to be an act of insubordination.
(5) That such act of insubordination was committed in consequence of such abetment.
2. Procedure.—Cognizable—Warrant—Bailable — No t compoundable—Triable by any
Magistrate.
3. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, abetted what you knew to be an act of insubordination
by—, an officer (or soldier, or sailor or airman) in the Army (or Navy, or Air Force) of Bangladesh and
such act of insubordination was committed in consequence of the said abetment, and thereby
38
committed an offence punishable under section 1 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 138A
138A. Application of foregoing sections to . the Indian Marine Service.—Rep.
by the A mending A ct, 1934 (X X X V of1934),s. 2 and Sch.

Section 139
* *
139. Persons subject to certain Acts.—No person subject to the 15[*
*] 16[Ay Act, 1952,] the 17 [Navy Ordinance, 1961], the 18[* * * * 1 19[j.
Force Act, 1953,1 is subject to punishment under this Code for any of the offences
defined in this Chapter.
Materials
(1) The object of this section is to specify definitely that persons subject to military law will not
be dealt with under the Code for offences defined in this chapter.

15. The words "Army Act, the Indian Army Act, 1911. the Pakistan" were omitted, ibid.
16. Ins, by the Central Laws (Statute Reform) Ordinance. 1960 (XXI of 1960), s. 3 & 2nd Sch.. (w.e.f. 14th October, 1955).
17.. The words "Navy Ordinance, 1961" were substituted for the words "the Naval Discipline Act or that Act as modified by
the Pakistan Navy (Discipline) Act 1934", by Act VIII of 1973, 2ndsch.
18. The words "Air Force Act or the Indian Air Force Act, 1932 or the Pakistan" were omitted, ibid.
19. Ins, by the Central Laws (Statute Reform) Ordinance. 1960 (XXI of 1960), s. 3 & 2nd Sch., (with effect from the 14th
October, 1955).
Sec. 140 Of Offences relating to the Army, Navy and Air Force 311

Section 140
140. Wearing garb or carrying token used , by soldier, sailor Or airman.—
Whoever, not being a soldier, 20[sailor or airman] in the Military, 21 [Naval or Air]
service of 22[Bangladesh], wears any garb or carries any token resembling any garb or
token used by such a soldier, 20[sailor or airman] with the intention that it may . be
believed that he is such a soldier, 20 [sailor or airman], shall be punished with
imprisonment of either description for . a term which may extend to three months, or
with fine which may extend to five hundred 23[taka], or with both.
Materials
1. Practice.— Evidence— Prove: ( 1) That the accused wore the garb or carried the token in
question. . . . ..
(2) That such garb or'token resembled that used by soldiers or sailors or airmen.
(3) That the accused was not a soldier or sailor or airman.
(4) That the accused wore the garb or carried the token with the intention that it might be believed
that he was asoldiers, etc.
I Procedure —Cognizable—Summons----Bailable—Not compoundable—Triable by any
Magistrate. . . . . .
3. Charge.—The charge should run as follows: ..
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, not being a soldier or sailor or airman in the 'Military (or Naval or Air) Service of
Bangladesh, on or about the—day of—, at—, wore (specify the garb) or carried a token resembling
(specify it) (or used by such soldier or sailor or airman)] with the intention that it might be believed
an
that you were such a soldier (or sailor or airman), and thereby committed offence punishable under
section. 140 of the Penal Code, and within my cognizance..
And I hereby direct that you be tried on the said charge.

20. Ins, by the Repealing and Amending Act, 1927 (Act X of 1927), s. 2 and Sch. I.

21. Subs.,lbid, for "or Naval". . .
22. The word"Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973, Second Schedule, (with effect
from 26th March, 1971).
23. The word "taka" was substituted for the word "rupees", ibid. .
CHAPTER VIII
Of Offences against the Public Tranquillity

Chapter introduction.—This Chapter consisting of 21 sections deals with a class of

offences intermediate between offences against the State and those against the persons. Its
general underlying object may be gathered from its heading which is to preserve public
tranquillity. The arrangement of the sections here, as elsewhere in the Code, is again
haphazard and unscientific. But such offences in their most elementary form consists of
an affray. W here, however, there is a meeting of great numbers of people with such
circumstances of terror as cannot but endanger the public peace, the assembly is
designated an unlawful assembly.
- Sections 142-145, 150, 151, 157 and 158 deals with the liability of persons who are
members of an unlawful assembly. The use offorce converts an unlawful assembly into a
riot. In English law there is a distinction made between a riot and a rout, a rout being a
disturbance of the peace by persons assembled together, with an intention to do a thing
which, if executed, would make them rioters, and actually making movement towards the
execution thereof but not executing it. The Code recognizes no such distinction, and the
facts constituting a ' riot in England fall within the definition of a riot under 'the Code. A
new section, was added to this Chapter in 1898, and. its object is to prevent internecine,
racial or sectarian quarrels resulting in the disturbance of public peace. It is, however,,
more akin to the offence of sedition' as defined by Sir James Stephen, and its proper place
would appear to be after Sec. 124-A .
It is provided, by the Code of Criminal Procedure that every officer employed, in
connecting with the affairs of a village and every person residing in a village shall
forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest
police station, whichever is the nearer, any information which ,he may possess respecting
the commission of or intention to commit in or near such village, any non-bailable
offence or. any offence punishable under Secs. 143-145, 147 or 148 of the Code. A nd
the same duty is generally laid on the public without any restriction as to the locality. A
person is guilty of an offence who in any public place' or at any public meeting uses
threatening, abusive or insulting words or behaviour with intent to provoke a breach of
the peace or whereby breach of the peace is likely to be occasioned, and is liable, on
summary conviction, to imprisonment for a term not exceeding three months, or to fine
not exceeding Tk. 50, or to 'both.

Section 141
141 Unlawful assembly.—An assembly of five or more persons is designated an
unlawful assembly", if the common object of the persons composing that assembly
is-
Sec. 141 Of Offences against the Public , Tranquillity 313

First.— To overawe by criminal force, or show of criminal force, '[Goverrent or

Legislature], or any public servant in the exercise of the lawful power Of such public
H
servant ;or
Second. — To resist the execution of any law, or of any legal process; or
Third.— To commit any mischief or criminal trespass, or other offence ; or..
Fourth.— By means of criminal force, or show of criminal force, to any person to
take or obtain possession of any property, or to deprive any person of the enjoyment
of a right of way, or of the use of water or other incorporeal right of which he is j
possession or enjoyment, or to enforce any right or supposed right ; or
Fifth— By means of criminal force, or show of criminal force, to compel any
person to do what he is not legally bound to do, or to omit to. do what he is legally•
entitled to do. . . ' . .
Explanation.— A n assembly, which was not unlawful when: it assembled, may
subsequently become an unlawful assembly. .. . .. .
Cases and Materials Synopsis
1. Scope ofthe section. . . 17. Third clause—Mischief and criminal
2. "Assembly". : trespass.. .
3. "Five or more persons" 18. Third clause—. "Or other offence".
4 "Common object" - 19 Fourth clause—Forcibly obtaining
5. Sudden quarrel or "free flght' possession. •:

6. Same orsl,nilar object and common object. 20. Fourth clause— Deprive any person of the
enjoyment of a right of way, etc.
7. Common object and common intention. . . , ., .. ... .. . ... .
21. Fourth clause To enforce any right or
8. No pre-concert necessary.. . . . . .
supposed right, by means of criminal force or
9. All members must share, the common object. show of. criminal
.. .
fos'ce. . . .. . . .
10. The common abject must be Inunediate.
22. "Any right or supposed right"."
11. Presence in or near assembly.'. 23. Fifth clause—By means of criminal force or
12 Presence under duress show of ciiminalorge to compel any person
13. Exercising right of private defence. to do what he is not 1eàliy bouA d to do or
14.. Clause "First"— "To overawe the omit to do what he Is legally entitled to do.
Government, etc." '' . .' 24. Explanation. . '..
15 Second clause—"To resist execution of any 25. Presumptions and proof.
law ".. 26. Compoundabihty of offence.
16. Second clause—Execution of legal process. 27. Charge.
1

1. Scope of the sectiOn.—( I) Section 141 of the Penal Code defines an unlawful .assembly and in
its-five clauses are enumerated the, elements required iii order to make an assembly an unlawful
assembly. The requisites are that there -must be five or more persons, and their common object . should

I The words the Central or any Provincial Government or Legislature were first substitute&for the words"the
• . Legislative or Executive U. of I., or the Govt. of any Presidency, orany L,icutenant .Governor" by 8.0.., 1937 and then.
the word Government was subs for the words the Central or any Provincial Government by Act VIII of 1973
Second Sch. (w,e.f. 26th March, 1971).
314 Penal Code Sec; 141

be one of the objects mentioned in the five clauses if a person is already in possession of a property and
he gathe^s five or more persons to defend such possession, he would be doing so to maintain his
possession and, such action would not be illegal and this assembly would not be unlawful. But if he is
not in possession of property, but has got only right to acquire possession, and if he with five or more
persons go to the. property to acquire it by force, that would be unlawful; because that would be a case
of enforcing a right. There is a difference between "to maintain or defend a right" and "to enforce a
right cr a supposed right". What section 141, Penal Code prohibits is to enforce a right or a.suppösed
;ight and not maintaining or defending such, right. The common object of the unlawful assembly must
bean immediate one to be carried out. It has to be determined with reference to the subsequent
conduct of the assembly. If an unlawful assembly meet and arrange some plans to be carried out .in
future which may be executed individually not necessarily jointly that would not constitute an unlawful
assembly within the meaning of section 41 (A IR 1954 Pat 194).To bring a case within the mischief of
ci. (1-), it is necessary. to prove that the accused showed criminal force which could overawe and
intimidate his adversary and this must be judged objectively. If there is an assembly of five or more
men withthe common object of resisting by force or show of force the execution of process of law,
every one of them is guilty of being a member of an unlawful assembly. By virtue of section 40, Penal
Code the word "offence.' section 141 means the thing punishable under the special or local law if it
is punishable under such law with imprisonment for a term of six months or upwards. An assembly, to
defend a right may not be unlawful but it is dangerous to lay down a general proposition that such
assembly cannot be unlawful. This section would apply only where the common object of an unlawful
assembly isunlawful. Although there is a distinction between section 34 which deals with common
intention and. section 149 which deals with constructive liability based on common object, there may
not be much different between intention and object because if there is common intention to commit an
offence it must be assumed that the common object was to commit that Offence. Same object is not
necessarily a common object, it becomes so only when it is known to and shared by all persons
having it
(2) Village Courts Ordinance (Ordinance No LXI of 1976)—This Oidrnance came into force on
he 1st day of November, 1976 vide Notification No SRO 353-476 dated 2040-76 The provisions of
sectior 3, read with Schedule Part I criminal cases, show that sections 143 and 147 of the Penal Code
wad with the third or the fciurth clause of section 141 of the Code when the cOmmon object of the
unlawful assembly is to commit an offence under section 323 or 426 of that Code, and when not more
than ten persons are involved in the unlawful issembly, these cases are exclusively triable by the
Village Court and no normal Criminal Court has got any jurisdiction to try thesame except under the
provisions of section 15 of this Ordinance
(3) Ingredients —To constitute an unlawful assembly there must be
(1) The assemblage of five or more persons
(2) They must have a common object
(3) The said common object must be one of the objects enumerated in the section
(4)I{artal . isan unlawful assembly if criminal force is applied in its favour or to oppose it—While
a hartal is observed by an assembly of five or more persons and their associates without holding
processicn or picket it will not be an unlawful assembly but if any criminal force is applied to observe

sr :h hartal then the members of t1t unlawful assembly falling with4ithepurview of the fifth clause to
section 141 of Penal Cdewill-be liabl to be punished under S Penal .Code. 'Hence the
ni4if
Sec. 141 Of Offences against the Public Tranquillity 315
procession or other activities in support of applying force to observe härtalsháll be .utilawfiil assemblies
including opposition to such hartal. State Vs.. Md. Zillur Rahman and others cr!inina1) 4 BLC 241.
• () in a big crowd when charge of unlawful assembly is laid against themdistinctioñ, to be
observed when circumstances prove that only a part of the crowd could possibly become unlawful
assembly. Hamida Bänu Vs. 4shiq Hossain (7963) 15 DLR (SC) 65.
(6)Hartal being an unlawful assembly is an offence under section 141 punishable under section 143
of the Penal Code. The State Vs. Md. Zillur Rahman and others-4 MLR (1999) (HC) 181.
, (7) Where the common object of the assembly, whatever be their number, is not one or more of the
objects specified in the section, it will not constitute an unlawful assembly. AIR 196R All 130.
• (8) If the assembly is an 'unlawful assembly' as defined in the section the mere fact of being a
member thereof and sharing its common object-is an offence punishable under Section 143. AIR 1965
SC 202. . .
(9) No overt act in pursuance of the common object is necessary, nor need the object be carried
out. AIR 1965 SC 202. .
(10) If overt acts are committed in pursuance of the common object every member Of the assembly
will be constructively liable for such acts also where such acts constitute offences. AIR 1978 SC 191.
(II) Court must specify the common object of the unlawful assembly in the charge ---Merely,
saying the common object was nothing is not enough No mention of the object in the charge as
enumerated in section 14.1 of the Penal Code—Trial fails. 38 DLR 299.
(12) Unlawful assembly—Assuming the character of unlawful assembly at a subsequent stage. In a
big crowd when charge of unlawful assembly is laid against them—Distinction to be observed when
circumstances prove only a part of the crowd could possibly become unlawful assembly. An
explanation to section 141 of the Penal Code states that an assembly may become unlawful at some
stage after the time of assembly, but to establish such a develópmeñt, it would be necessary to prove a
circumstance applicable to all the persons assembled which . influenced them all in one direction,
namely, that of using criminal force or committing mischief, criminal trespass, or Other offences or of
testing the execution of law or legal process. 15 DL R S C 65.. .
(13) Fourth clause does not apply where force is applied by .a person in lawful possession. Section
141, fourth clause of the Penal Code has no application to a case where a person'-in lawful possession .of
any property uses force in order to maintain such possession, because such a party is not enforcing 'a
right within the meaning of clause (4) of the section, but preventing a wrong. A person has a right
within the meaning of clause (4) of the section, but preventing a wrong A.person has a right,ofprivate
defence of his property against criminal trespass, even though such trespass has not caused any , loss to
the property in question (Ref :A IR 1970 SC 27). 15.DLR 615.. .. . . . . ..
2. "Assernbly" ^ 7 (ly . Where two different mobs start form different localities, operate
independently and never mingle.together at any time or. place, the mere fact that they have the same.
intention will not make them one assembly. AIR 1927 Oudh 151. ..
(2) If an assembly, the common object of which is to beat A, splits itself into two parties for the
purpose of trapping the victim, the two parties cannot be said to cease to be one unlawful assembly;
A IR i950A l/4J8... • • •. . .. •.. . . .. •
(3) Where an unlawful assembly is engaged in beating a person. and another batch of persons joins
the assembly and begins to beat the same person, it may be inferred that the second batch joined the
Penal Code Sec. 141
316
first batch with the same object and the two groups together constituted only one unlawful assembly.
A IR 1955 NUC (Cal) 2931.
(4) When the doing of an act which is the object of an assembly is not an offence, Section 143 will
not apply as the assembly cannot be said to be unlawful. 1971 Cr!LJ 1477.
3. Five or more persons".—(l) The first essential to constitute an assembly, an "unlawful
assembly", is that it should consist of five or more persons. AIR 1963 SC 174.
(2) It is not necessary that the identity of all the members should be known or stated in the charge.
A IR 1960SC289.
(3) Cases where it is proved that an assembly consisted of more than five, persons but some of
them are not identified must be distinguished from cases where the Court is in doubt where other
persons were present at all, who, though not identified, would make up the number five or more. AIR
1978 SC 1647.
(4) If out of the six persons charged under Section 149 of the Penal Code along with other offences,
two persons are acquitted, the remaining four may not be convicted because the essential requirement of
an unlawful assembly might be lacking. A IR 1962 SCl2IL
(5) It is possible iii some cases for Judges to conclude that though five were unquestionable-there
the identity of one Or more is in doubt. In that case a conviction of the rest with the aid of Section 149
would be good. But if that is the conclusion it behoves a Court, particularly in a murder case, to say..
so With une rring certainty. AIR 1953 SC 364.
.4. "Common object".—(l) An. assembly of persons, however large it may be, is not an "unlawful
assembly" where the gathering is for a "lawful" purpose and this will be so even if some of the
members of the assembly resort to unlawful force or commit offences. AIR 1956 SC 513.
(2) One of the essential conditions necessary in order to render an assembly an 'unlawful
assembly' within the meaning of this section is that the members thereof should have one or more of
the common object enumerated in section. AIR 1956 SC 513.
(3) JpThb absence of a finding that the assembly was animated by a common object, within the
me1ng of the section it cannot be considered to be an unlawful assembly. AIR 1978 SC 1021.
5. Sudden quarrel or "free fight".—(l) Where a sudden quarrel arises as a result of abuse and
an unpremeditated fight takes, place, it cannot be said that there is any 'common object' operating on
the minds of the fighters and they cannot be said to constitute an unlawful assembly. A IR 1933 Lah
92.
(2) Ina 'free fight' there is no common object. 1972 RajLW 325 (Pr 23) (DB).
(3) In a free fight between two groups of persons, only persons found to have inflicted injuries can
be convicted for the injuries caused by them. There cannot be any question of constructive liability.
1981 nL.JNOC 133
6 Same or similar object and common object.—(1) All members of the assembly must share
the common object. A common object is not the something as a same or similar object. The same
object will become common object only when it is known to and shared by all the members having it.
A IR 1951 Nag 47(1) '47) :52 CriLJ8I3.
7. Common object and common intention.—(l) A common object is different from a common
intention in that the former does not require pre-concert and a common meeting of the minds at or
before the formation of the assembly. AIR 1956 SC 513.
Sec. 141 Of Offences against the Public Tranquillity 317
8. No pre-concert necessary.—(I) It is not necessary that there should be a pre-concert or
conspiracy at the outset or beginning of the assembly unlike in the case of common intention under
Section 34. A IR 1959 Sc 572.
(2) The common object may develop and come into existence at any stage during the progress of
the activities of the assembly. AIR 1956 SC 513.
(3) Members of an unlawful assembly may have a community of object up to a certain point,
beyond which they may differ in their objects and the knowledge possessed by each member of what is
likely to be committed in prosecution of their common object may vary not only according to the
information at his command but also according to the extent to which he shares the community of
object. AIR 1960 SC 725.
9. All members must share the common object.—(l) It is necessary that all the members must
share the common object. AIR 1956 SC 513...
(2) A group of persons A, B, C, D and L and another group of persons M, N, 0, P, Q assemble.
The common object of the first group is one and that of the second group is another of the objects
specified in the section. The two groups cannot constitute together a signal unlawful assembly, but
will constitute two different unlawful assemblies. (1910) 11 CriLJ3U (FB) (Mad).
(3) Where some persons in an assembly had the common object of committing as offence under
Section 188 of the Code and others had the object of abetting the commission of such offence, both the
objects constitute only a single common object. A IR 1925 Cal 903(905): 26 CriLJ 594 (DB) .
10. The common object must be immediate.—(I) The common object must be an immediate
one and not one to be carried out at some future time. AIR 1954 Pat 195.
11. Presence in or near assembly.—(1) The mere presence of persons in or near the unlawful
assembly is not sufficient to show that they are also members of the assembly. It must be proved that
they also shared the common object. AIR 1971 Sc 2381. .
(2) It is a question of fact in each case as to weather a person happens to be innocently present at
the place of the occurrence or was actually a member of the unlawful assembly. AIR 1971 SC 2381.
(3) It cannot be stated as a general proposition that a person present at the assembly cannot be said
to be.a member of the assembly unless some overt act is proved .against him. AIR 1965 SC 202.
12. Presence under duress.—(l)A person compelled under duress to join an assembly cannot be
said to share the common object of the assembly and cannot be considered to be a member of the
unlawful assembly. He would be protected by Section 94 of the Code. AIR 1957 All 184.
.13. Exercising under duress.--(I) An assembly exercising the right of private defence is doing a
lawful act, and is an uilawful assembly. AIR 1978 Sc 1021. . . .
(2) The right of prj,ate defence applies not only to the defence of one's own person or property, but
also to that of others Bit where the right of private defence is exceeded the assembly will become an
unlawful assembly. AIR 1956 SC 513
:(). If five or more exceed the original lawful object and each has the same unlawful intention in
mind and they act together and join in the beating, then they, in themselves, form an unlawful
assembly. AIR 1956 SC 513:
(4) Persons claiming possession of lands going with a party armed with deadly weapons to assert a
person's title against , the person in possession will constitute an unlawful assembly. The reason .is that
such persons cannot be said to be acting in defence. They must be treated, as being aggressors. and
318 Penal Code Sec. 141

trying to enforce a certain right and not defend such right. It can be easily seen that enforcing a right
and defending a right are quite different matters. AIR 1968 Sc 702.
14. Clause 'First'—"To overawe the Government, etc".—(l) The word 'overawe' connotes the
creation of a situation in which the members of the Government feel themselves compelled to choose
between yielding to force or. exposing themselves or members of the public to a ver' serious danger. It
is not necessary that the danger should be danger to the person; it well might be danger to public
property or the safety of the members of the general pUblic. AIR 1951 Pat 60.
(2)

The conspirators may be liable to be punished undr Section 121 for the graver offence Of
waging war, but that is no reason for saying that is not a riot. A IR 1928 Pat 115..
15. Second clause—"To resist execution of any law.—(I) Where an assembly which is already
an unlawful assembly is ordered to dispers&persons joining or continuing in the assembly with the
knowledge of the order to disperse are punishable under Section 145, which is an aggravated form of
the offence of being members of an unlawful assembly under S. 143. AIR 1923 Pat 1.
(i). The word 'to resist' connotes an overt act. AIR 1923 Pat 1.
16. Second clause Execution of legal process.—(1) An order prohibiting a procession
without obtaining licence is an execution of the law. It is alsO an execution Of a "legal process." AIR
1923 Pat L . . .. .
(2) The process must be a legal one ; otherwise, resistance to it will be lawful as being an exercise
of the right of private defence. AIR 1957 Orissa 130.
(3) The clause deals only with the common object to resist execution of a legal process. Actual
resistance is not necessary for a case to fall under this cause. If there is actual resistance it may amount
to an offence under S. 186. If, again, force is Used in resisting the process, the members Of the assembly
will be liable under Section 147 for rioting. AIR 1938 Pat 548.
17. Thirde1aue—Mischief and criminal trespass.—(1) Where the common object is to
commit mischief, the assembly is unlawful. AIR 1953 All 749.
(2) It is not necessary that object should have been carried out. Where, however, no mischief or
criminal trespass is actually:committed in pursuance of the common object, it will be very difficult to
prove the common object, which is a state of mind of the members forming the assembly. AIR 1955
Cal 515. • . ... . .
18. Third clause-"Or other offence.-(1) An assembly with the common object of wrongfully
confining aperson and humiliating him is within the third clause of the section. 1971 CriLJ 1222 (Pr
4)(A 11); . ..
(2) A common object of obstructirtg the police by threats in the discharge of their duties' will fall
under this clause. AIR .1924 All 231 .. .. .
(3) The common object of committing an offence under S. 188 falls under this clause. AIR 1929
Born 433. .. .
19. Fourth clause—Forcibly obtaining possession.—(1) Persons assembling with the object of
maintaining even by the use of force, their possession as against aggression is not an unlawful
Assembly. A IR 1942 Mad 58 (61) (DB).
(2) The conception of obtaining possession of property by force is akin to the conception
"enforcing a right" by the means ofcriminal force or show of criminal force, which is also mentioned in
Sec. 141 Of Offences against the Public Tranquillity 319
this clause as an object which will render an assembly of five or more persons "unlawful". A IR 1914
Sind 152.
20. Fourth clause—Deprive any person of the enjoyment of right of way, etc ^ -^(I) Where
though the right to the common use of a way has been reconised by theCivi Court, if an assernblybf
five or more persons use criminal force for enforcement of the right and not for deferding the right, they
would constitute an unlawful assembly , and .a right of self-defence cannot be claimed A IR , Punj 90.
(2) Where aCivil Court has declared the rights of parfies in rèspectbf right of ii Mvour'of the
accused and against the complaints, the accused cannot be said to have the coñtnidi object as described
in the fourth clause of S. 141 if they prevent the complainants from having ally access to the pathway.
AIR 1954 Assam 57. . .
21. Fourth clause—To enforce any right of supposed right, by means of Criminal torceOr
show of criminal force.--(I) "Force" is defined in S. 349 and criminal force is clefinedinS. 35o;AIR'
1916 Mad 1222.
(2) The assertion of right or supposed right within S. 141, foui-th clause 'can notconiprise'the
assertion of a right of private defence within the limitsprescribed by taw.A/R 1970 SC 27.
(3) In the maintenance of a right, force may be used in the exercise of the right of private defence,
subject to the limitation started in Ss 99 to 106 A IR 1950 FC 80
(4) The word 'enforce' connotes that the party trying to enforce a right is not in enjoyment of the
right. AIR 1968 SC 702. .
. ...... ••.,

(5) . Where.the common object of an assembly of five or more persons is to maintain a right, inthe,,
exercise of the right of private defence, even by the use of force if necessary the assembly cannot be held
to be an "unlawful ssembly". AIR 1950 FC 80.
22. "Any right or supposed right"—(I) Where a right exists in fact or is merely supposed to
exist, the essence of the fourth clause of this section is the use or show of criminal force to enforce that
right, AIR 1961 Mys 74
23. Fifth clause—By means of criminal force or show of criminal force to compel any
person to do what he is not legally , bound to do or to omit to do what he is legally entitled to
do —(1) If an assembly of five or more persons takes it decision to cbserve hartal by themselves and
their associates, then the decision does not come under the mischief of fifth clause of section 141 of the
Penal Code. This decision does not contemplate ho1diig of any possession or picket or any activity or.
activities to implement the decision.: But . if an assembly of five or more persons takes the decision to
observe hartal to be participated by the people at large so that thàir common object is to compel others
obviously by show Of criminal force to do what they are not legally bound to do, then the said
assembly must be an unlawful assembly according to fifth'clauseof section 141 of the Penal Code and
the members of that unlawful assembly are liable to be punished under section . 143. .of the Penal Code;
Consequently the processions or other activities in support of or to force such hartal shall he unlawful
assemblies. Similarly every assembly of five persons .or more to protest or to oppose hartal shall be an
unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according
to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State
Vs. Md. Zillur Ra/iman and ors., 19 BLD . (HCD) 303. .. .
(2) Where A is entitled to do a thing, an assembly of five or more persons, compelling him by
show of force to omit to do it, is an unlawful assembly. A IR 1916 Pat 176(177): 18 CriLJ i/O.
320 Penal Code Sec. 141

(3) It is not sufficient merely to prove that the common object of the accused's party was to
compel the complain anant by means of force to omit, for the time being, to do a certain act. The act
omitted must be one which the complainant was legally entitled to do; if it is not such an act C 5
cannot apply. A IR 1925 Oudh 425(426).: 26 CrILJ 513.
(4) The right to use a public highway is not a right which originates either in agreement or in
custom Every member of the public has a right to use it. Therefore, no person has a right to prevent a
procession from proceeding along a public highway and if five or more persons assemble in order to
prevent the procession by the use of force they will constitute an unlawful assembly. (1883) ILR 6 Mad.
203 (FB). A IR 1961 Mys 57. .
(5) The calling of a Magistrate or the Police for the purpose of preventing an act being done by the
opposite party cannot be said to be the use of force br criminal force or show of criminal force under this
section. A IR 1949411. 351. .. ' .. . . .
24 Explanation —(1) An assembly which was lawful , at the inception becomes unlawful the
moment one of them calls on others to assault a member of the other party and they in response to his
invitation start to chase the member of the other party. AIR 1954 SC 657. .
(2) The unlawfuliess of an assembly depends on its behaviour, purpose of which it meets, the
manner in which it expresses itself, and the means which are used by its members to consummate the
common object, though the actual, consummation of its , purpose is not essential and it may remain
ünexecutód. AIR 1960 Punj 271.
25. Presumptions and proof.---(l) Persons assembled for the purpose of resisting by way of self-
defence apprehended unlawful aggression by others cannot be called an unlawful assembly. AIR 1978
SC. 1021.
(2) Whether 'an unlawful assembly was formed and what exactly was the common object of the
assembly must be judged frOm the facts and circumstances of the of the case. A IR 1978 sc 1021.
(3) ' The object of the assembly at the particular time in question is largely a matter of inference
from the acts, the conduct of the members and the surrounding circumstances of the case. (1910) II
CrILJ3O.
26. Compoundability of offence.—(1) This section only defines an unlawful assembly. The
section does not create any offence. But Section 143 makes it an offence to be a member of an unlawful,
assembly. Section 144 makes it an ofence for any person who is armed with a deadly weapon, etc., to
be a member of an unlawful assembly. These offences are not compoundable. AIR 1941 Sind 186.
27. Charge.---(1) The mere fact that no definite finding was given as to the common object
charged, will not necessarily render the conviction bad, where the common object charged was not
objected to at the trial and the accused was not prejudiced. AIR 1929 Pat 206.
(2) Where the common objeci set out in the charge is itself a' separate substantive offence and the
evidence offered in proof of this substantive offence is also relied upon in establishing the common
object, an acquittal for the charge for the separate offence must necessarily entail the acquittal of the
charge under S. 143. A IR 1968 Orissa 160..
(3) Where the facts of the case were such ,that the accused could have been charged alternatively
'either under S. 302 read with S. 34 or with S. 302 read with S. 149, it was held that the conviction
under section 149 can be altered by the High Court in appeal to one under S. 302 read with S. 34, upon
the acquittal of the other accused persons. AIR 1952 SC 167. ' .'
Sec. 42 Of Offences against the Public Tranquillity 321-

Section 142
142. Being member of unlawful assembly.—Whoever, being aware of facts
which render any assembly an unlawful assembly, intentionally joins that assembly,
or continues in it, is said to be a member of an unlawful assembly.
Cases Synopsis
1. Scope of the section. 4. Person joining if should have the common
2. "Being aware of facts, which render any object of assembly.
assembly an unlawful assembly intentionally 5. Liability for offence committed by unlawful
joins. " assembly before a person joined, it.
3. "Or continues in it" 6. Presumption and proof.
I. Scope of the section.—Three positions can be visualised while determining whether a person
is a member of an unlawful assembly :--(i) A person may be one of those who come together and
assemble for an unlawful object; (ii) he may join an assembly after the assembly has been formed with
the knowledge of the facts that render it an unlawful assembly; (iii) he may join -an assembly in
ignorance of the facts that render it an unlawful assembly, but may continue in it after becoming aware
of such facts. In all the three cases he will be a member of an "unlawful assembly" and liable to be
dealt with as such under the Code. A IR 1923 Pat 1.
(2) The essential point in all the three cases is the awareness on the part of the accused of the facts.
which render the assembly an unlawful assembly. A IR 1969 A ll 130. .
(3) The mere presence of the accused at the scene of occurrence when the complainant was injured
does not prove their being members of an unlawful assembly. A IR 1953 Mys. 41.
(4) The proof of the fact that a person joining the assembly was aware of the facts which rendered
the assembly an unlawful assembly must normally relate to circumstances and acts giving rise to such
an inference which exist or are done prior to the prosecution of the common object. A IR 1968
Orissa 160.
2. "Being aware of facts, which render any assembly in unlawful assembly intentioii'ally
joins."—(l) The crucial question to determine is whether the assembly consisted of five or more
persons and whether the said persons entertained one or more of the common objects as specified in S.
141. While determining this question it becomes relevant to consider whether the assembly consisted
of some persons Who were merely passive witnesses and had joined the assembly as matter of idle
curiosity. The presence of such persons in an assembly of that kind will not show that they were
members of the unlawful assembly. A IR 1965 Sc 202.
(2) A person forced by threats to be in the assembly cannot be said to . 'join' the assembly and
cannotbe considered to be a member of the assembly. A IR 1957 A ll 184.
3. "Or continues in it". (1) The word "continues" merely means physical presence with the
•awareness and intention referred to in the section. A IR 1955 NUC (A ll) I6.
(2) Where a person is disabled during the course of the acts of the unlawful assembly, he may still
continue to be a member of the unlawful assembly if he shares the common objet subsequent to his
being made helpless; he can, however, disavow his share in the common object by clear expressions to
that effect unless he is so disabled as to be unable to express himself. In the latter case it can be
presumed that he had withdrawn himself from the unlawful assembly. A IR 1950 A ll 418.
322 Penal Code Sec. 143
4. Person joining if should have the common object of assembly.—(1) A person joining an
unlawful assembly cannot be said to be a member of that assembly if he does not share the common
object of the assembly though in most oases the awareness of facts and the intentional joining of the
assembly may give rise to a strong presumption that he shared the common object. A IR 1957 A ll 184.
5. Liability for offence committed by unlawful assembly before a person joined it.—(l) If a
person is not aware of the common object of the assembly and the offence in which he is involved does
not form part of the same transaction which had taken place before hejoined.the assembly, he cannot be
said to be a member of the assembly when the former transaction took place. (1910) 11 CriLJ 30.
6. Presumption and proof.—(l) Where there could be no doubt in the mind of any member of
the assembly collected by the leader of the unlawful assembly, that he was present for the purpose of
causing hurt to the members of the party attacked, it is not necessary to establish precisely what part
each took in the incident, every member of such unlawful assembly is liable for conviction under
Section 149 of the Code. A IR 1943 A ll 49.
(2) Where a particular person who was present among the rioters pleadsthat he was there with an
innocent intention, then the burden of proving that innocent intention lies upon him. A IR 1952
Mad 267.
(3) Once it is foud that a person was a member of an unlawful assembly at the time the
transaction began, the reasonable inference would be that he continued to be such members. A IR 1958
Pat 12.
(4) The mere fact that a person applied to be made a member of an association some months before
it was declared unlawful cannot be said to be proof of his membership after it had been declared
unlawful. Some overt act as member subsequent to such a declaration must be proved. A IR 1931
Lch°361. . .

Section 143
143. Punishment.—Whoever is a member of an unlawful assembly, shall be
punished with imprisonment of either description for a term which, may extend to six
m onths, or with fine, or with both.
Cases and Materials :'Synopsis
1. Scope of the section. 6. Offences under this section and also another
2. There should be an unlawful assembly, section—Separate convictions—Legality--
3. Accused must be a member . of such Principles.
assembly. 7. Judgement.
4. Exercise of the right of self-defence. 8. Sentence.
5. Charge under S. 143 and also another 9. Practice.
offence—A cquittal in respect of the other . 10. Procedure.
offence—Effect. 11. Charge.
I. Scope of the section.—(l) Death of the complainant does not put an end to the prosecution.
The trying Magistrate has discretion to allow the matter to be continued by a fit and prOper
complainant if such person is willing to do so. AIR 1926 Born I7çS'.
(2) Case involving Ss. 143, 324 & 326 PC—None of the parties were in actual possession of the
land but both were trying to establish their possession by force: or criminal force—None of them were
S.e. 143 Of Offences against the Public Tranquillity 323
entitled to protection of law but both are liable for committing the offence as members of two rival
unlawful assemblies in prosecution of the respective common object to take or obtain by criminal force
or to enforce their right or supposed right to property—In such cases the participants will be liable
individually of the respective acts—In view of the peculiar facts and circumstances of the case the
sentence of the appellant was reduced by the Appellate Division. BCR 1987 A D 71 = BSCD, Vol
VI, p30.
(3) There can be a conviction under sec. 143 on a charge framed under sec. 144 of the Penal Code
provided that the charge stated what was the common object of an unlawful assembly. Where nothing
was stated in the charge with regard to the common object of an unlawful assembly, the conviction
under Sec. 143 of the Penal Code could not be maintained. Osman A li V s. Obaidul Hoq (1957)
9DLR72.
(4) A and four others were convicted under sections 143, 447, 379 and 427 of the Penal Code and
separate sentences under sections 143, 379 and 427 of the said Code imposed on each of them. Held:
That separate sentences were legal. / PLR (Dac) 10.
(5) Neither of the parties in the case and counter-case are entitled to protection of law as none of
them were in actual possession in view of the peculiar facts and circumstances of the case the sentence
of the appellants should be reduced. 7 BCR 71 (AD). -
(6) Charge framed under section 144—if the charge states what the common object was, there can
be conviction under section 143 and not otherwise (Ref 1979 CrLf 72). 9 DLR 72.
(7) The very membership of an unlawful assembly is by itself an offence under this section. No
overt act by the assembly is necessary. AIR 1959 All 255.
(8) The court should direct its enquiry as to what would be the conditions necessary to constitute
an unlawful assembly in the particular case and should find whether these conditions have been
satisfied. (1910) 11 CriLf 348.
2. There should be an unlawful assenlbly.—(1). Two essential ingredients are necessary in
order to constitute an assembly an unlawful assembly, namely that the assembly should conit of five
or more persons, and that the common object of the persons composing the assembly should be one or
more of the objects enumerated in S. 141. AIR 1925 Rang 362.
(2) In considering whether an object of an assembly of five or more persons falls within the
categories enumerated in S.. 141, the words of the section should be construed as they are and where
they are clear, they should not be limited by the words used in the heading of the Chapter in which the
section occurs. AIR 1959 SC 960.
3. Accused must be a member of such assembly.—(1) Thus, where the accused had no other
business at the spot, asandy tract, where the unlawful assembly was gathered, except to assist, if
necessary, those who did the overt acts, it was held that the accused were guilty under this section. AIR
1915 Mad 1055.
(2) Before an accused can be convicted under this section there must be clear finding that he
participated in the common object of the assembly 1971 CriLJ 559 (Pr 5) (Goa) A IR 1956
Orissa 212.
4. Exercise of the right of self-defence.---(1) An assembly exercising the right of private defence
is not an unlawful assembly, but if it exceeds that right it will become anünláwful assembly: AIR 1927
Pat 27.
324 Penal Code Sec.. 143

5. Charge under S. 143 and also another 'offence—Acquittal in respect of the other
offence—Effect.----(l) Theoretically, there can be an unlawful assembly the common object , of which
is one of those specified in S. 141 without anything further being done in carrying out the common
object. Even though in such cases the common object is not achieved, technically a conviction under
S. 143 could be maintained. But then, there must be evidence on record of the unlawful assembly
having reached a consensus of purpose of achieving any of the various objects enumerated in S. 141,
Penal Code, apart from the overt acts in proof of the common objet constituting a separate offence of
which the accused have been charged and acquitted. A IR 1968 Orissa 160.
(2) Where the charge is that the accused, as a member of . an unlawful assembly, committed an
offence under S. 18 of the Code, and he was acquitted of the charge under S. 186 for want of complaint
of the public servant concerned under S. 195 of the Criminal Procedure..Code, it was held that the
accused could be convicted under this section. AIR 1960 Punj 356.
6. Offences under this section and also another section—Separate convictions—Legality-
Principles..—(1) Acquittal under S. 143 is no bar to conviction under Section 147 or S. 148. 1979
CriLJ 72. . . .
7. Judgement.—(1)On a charge under this section the judgment of the Court should contain as
one of the points for determination, a statement as to the existence of the elements constituting the
unlawful assembly in the particular case and the decision thereon bearing in mind the provisions of S.
141 of the Code. (1910)11 CriLi 348.
8. Sentence.—(l) The imprisonment that may be awarded in default of payment of the fine..
inflicted, cannot exceed, in view of S. 65 of the Code, one-fourth of the maximum punishment fixed for
the offence. AIR 1941 Pat 48.
(2) Where the charge against the accused is that they formed an unlawful assembly for committing
theft, and where there is no finding as to who received the property, the award of separate sentences
under both sections, viz., Ss. 143 and 379 is bad. A IR 1920 Pat 196.
9. Practice.—Evidence----Prove: (1) That the assembly in question consisted of five or more
persons.
(2) That the object of the persons so assembled (either at the time it became an assembly, or
during the time that it continued to be assembled) was any of the five objects mentioned in section 141.
(3) That such object was common to the persons assembled.
(4) That the accused joined, or continued in, , such assembly.
(5)That he did so intentionally.
(6) That he did- so being aware of the above facts.
It is not necessary to establish that the members actually met and conspired to do any of the acts
enumerated in section 141 in order to establish its intention. Such intention can be inferred from the
circumstances of the case. What the witnesses actually saw and heard as to what the mob ws doing
and saying all that is admissible and not their impressions and opinions.
10. Procedure.—(1) Where the real offence committed is one under S. 188, Penal Code, the
accused cannot be tried for a minor general offence under Sec. 143 without a proper complaint under S.
195. of Criminal P. C. In such a case conviction and sentence under Section 143 are without
jurisdiction. A IR 1948 Mad 474.
Sec. 144 . Of Offences against the Public Tranquillity 325

(2) Cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate and by

Village Court where less than ten persons are involved in the unlawful assembly read with third, fourth
clauses of section 141.
11. Charge.—(I) The common object should be clearly specified in the charge. But the omission
to do so will not vitiate the trial where the common object is specified in the complaint, and the
accused is not prejudiced by the omission. AIR 1926 Born 314.
(2) The charge should run as follows: .
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, were a member of an unlawful assembly, the common
object of which was (specify the object), and thereby committed an offence punishable under section
143 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 144
144. Joining unlawful assembly armed with deadly weapon.—Whoever, being..
armed with any deadly weapon, or with anything which, used as a weapon of
offence, is likely to cause death, is a member of an unlawful assembly, shall be
punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Cases and Materials
I. Scope of the section.—( 1) This section deals with an aggravated form of the offence under S.
141 1957 CriLJ 146.
(2) In order to constitute an offence under this section two ingredients must be established: first the
existence of an unlawful assembly with a common object and secondly that the accused was armed with
a weapon such as described in the section. 1957 CriLJ 146
(3) Where some members of an unlawful assembly with the common object of shooting a man
came to the assembly armed with deadly weapons, they committed the offence under this section in
prosecution of the common object of the unlawful assembly and therefore all the members of the
unlawful assembly would be guilty of an offence under this section read with Section 149 and so would
be liable to the enhanced punishment under this section. AIR 1930 Mad 857.
(4) The charge under section 144 of the Penal Code should state the common object of the
assembly. The omission to state the common object in the charge does not, however, vitiate a
conviction if there is evidence on record to show what the common object was all that can be gathered
from the evidence in the case. 20 DLR 428.
2. Practice.—Evidence—Prove: (I) That the accused joined or continued in an assembly.
(2) That the assembly in question consisted of five or more persons.
(3) That the object of the assembl was any of the objects mentioned in section 141.
(4) That such object was common to the persons assembled.
(5) That the accused intentionally joined the assembly being aware of the object of the assembly.
(6) That the accused was armed with a deadly weapon or with any weapon of offence which is
likely to cause death. .
326 Penal Code Sec. 145

3. Procedure.—Cognizable—Warrant----Bai lable—Not compoundable—Triable by any

Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being armed with a deadly weapon, to wit, (or armed
with something which was used as a weapon of offence, is likely to cause death, to wit) were a member
of an unlawful assembly, and thereby committed an offence punishable under section 144 of the Penal
Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 145
145. Joining or continuing in unlawful assembly, knowing it has been
commanded to disperse.—Whoever joins or continues in an unlawful assembly,
knowing that such unlawful assembly has been commanded in the manner prescribed
:.by law to disperse,' shall be punished. with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Cases and Materials
1. Scope of the section. 5. Practice.
2. "Unlawful assembly ". 6. Procedure.
3. "Commanded in the manner prescribed by 7. Charge.
• law". 8. Trial
4. Sentence.
1. Scope of the section.—(1) This section and section 151 are connected with each other so far
as the principle underlying both of them is concerned. Section 188 of the Penal Code provides for the
disobedience of any lawful order promulgated by a public servant. This section and section 151 deal
with special cases as the disobedience may cause serious breach of the peace. If there is no order to
disperse or the accused was not aware of it there can be no conviction under this section. AIR 1931
Mad 484.
(2) Command to disperse should be lawful. The essential ingredient of offence under sections 151
and 145 is that the accused is lawfully commanded to disperse after he joins or continues in an
assembly of five or more persons or in an unlawful assembly. Ifaperson was not lawfully commanded
to disperse he does not come within the mischief of section 151 or section 145. In the accusations in
these cases it was not stated that the officer commanded the petitioners to disperse. Offering resistance
is distinct from commanding to disperse. Thus the accusations, as they are, do not constitute an offence
under section 151 of the Penal Code. For the same reason they do not also constitute an offence under
section 145. 20 DLR 461.
(3) The essential elements of this section are:
(a) that there was an unlawful assembly;
(b) that the assembly was ordered to disperse, in the manner prescribed by law;
(c) that the accused joined or continued in the assembly, with knowledge of the order of dispersal.
AIR 1922 Lah 135. .
Sec. 145 Of Offences against the Public Tranquillity 327
• (4) An order duly promulgated, not to hold a public meeting or take out a procession or not to do
so without taking out a licence, is not the same as an "order to disperse", as the latter kind of order can
only come into existence after an unlawful assembly has been formed. But a procession taken out or
meeting held in violation of a lawful order prohibiting such procession or prohibiting such meeting
without obtaining'a licence, will be an unlawful assembly under S. 141(3) read with S. 188, and its
members will be liable for punishment under S. 143 or 144, as the case may be. A IR 1923 Pat 1.
(5) Where the order banning a meeting is not valid, a public meeting held in defiance of the order
does not constitute an unlawful assembly and hence, in such a case, the failure of the members to
disperse on being commanded to do so is not an offence under this section. AIR 1955 Manipur 41.
(4) Where the common object of an assembly of five or more persons is to resist an order of the
police to disperse, they will constitute an unlawful assembly under Section 141 (Cl. 2) and if they do
not disperse on being lawfully commanded to disperse they will become liable to the enhanced.
punishment under this section. AIR 1923 Pat 1. . .
2. "Unlawful assembly".—(l) An assembly which is lawful may become unlawful by reason of
its refusal to obey an order of dispersal. (1942) 43 CriLJ 871(874, 875) (DB) (Pat).
(2) A member of unlawful assembly is punishable Under S. 143 and not under this section. This
section applies only when an assembly which is already unlawful is subsequently ordered to be
dispersed. AIR 1951 Orissa 84. . .
3. "Commanded in the manner prescribed by law".—(I) Where the order of dispersal is not
lawful, not being authorised, this section will not apply. A IR 1951 Orissa 84. .
4. Sentence.--(I) Where a heavy sentence was imposed on an accused under this section, but he.
did not prefer any appeal from the sentence, it was held that the High Court would not entertain an
application for reduction of sentence at the instance of third party. AIR .1933 Cal 361
(2) Separate sentences under this section and other sections are legal; (1934) 12 MysLJ4I.
5. Practice.—Evidence—Prove: (I) That there was an assemblage of five or more persons.
(2) That the object of the assembly was to commit any one of.the offences enumerated in
section 141.
(3) That the accused shared the object of the assembly with at least four persons.
(4) That the accused intentionally joined the meeting:
(a) having knowledge and its objects ; and
(b) continued to be a member of that assembly after being fully aware of its objects.
(5) That such assembly was ordered to be dispersed:
(6) That such order to disperse was given in the manner prescribed by law.
(7) That the accused joined or continued to be a member of that unlawful assembly even after it
was ordered to disperse. • .
(8) That the accused did so knowing that he had been ordered to disperse.
6. Procedu compoundable—Triable by any
Magistrate. . .
7. Charge.—(1) The failure to specify the common object in a charge under this section would not
be fatal to the trial if it can be shown that there is ample evidence on the record to prove what the
common object of the assembly is. AIR 1931 Born 520.
328 Penal Code Sec 146

(2) The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, joined or continued in an unlawful assembly, knowing
that such assembly had been commanded in the manner prescribed by law to disperse, and thereby
committed an offence punishable under section 145 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.
8. Trial—Place of.—Magistrate's discretion in the matter of choice of the place of trial other than
the Court shall be announced by a formal order. A Magistrate can in his discretion hold trial at any
place other than the Court house but in that case, it is essential that he should pass a formal order
declaring the place where the trial would be held. Unless a formal order is passed declaring that the trial
would be held in any specified place, the accused persons are likely to be prejudiced in as much as, in
that case they are deprived of the opportunity of having recourse to higher authority for, redress if they
feel aggrieved by such order.

Section 1.46
146. Rioting. Whenever force or violence is used by an unlawful assembly, or
by any member thereof, in prosecution of the common object of such assembly, every
member of such assembly is guilty of the offence of rioting.
Cases and Materials Synopsis
1. Scope of the section. 9. In prosecution of the common object.
2. Distinction between "waging war" and 10. Section is subject to General Exceptions.
"committing a riot". 11. Presumption.
3. There must be an unlawful assembly. 12. Burden of proof—Appreciation of Evidence.
4. Common object. - 13 Court's duty.
5. Abetment of rioting. . 14. Procedure.
6. Person not present in the assembly. . is. charge.
7. Presence in assembly. 16. Offence of rioting not compoundable.
8. "Force" or "violence".
1. Scope of the section.—( 1) Ingredients:
(a) Five or more persons were assembled.
(b) They constituted an unlawful assembly.
.(c) The members of the unlawful assembly used force or violence.
(d) The accused was a member of that unlawful assembly.
(e) In prosecuting a common object, the unlawful assembly used force.
(2) This section applies where an overt act is done by the assembly or by any member thereof in
pursuance of the common object, and the overt act is done by the use of force or violence. It is not
necessary that any overt act must be done by the accused member of the assembly. 1970 Cr1LJ 1316
(3) In order that this section may. apply;
(a) there must be an unlawful assembly as defined in S. 141, and
Sec. 146 Of Offences against the Public Tranquillity 329

(b) force or violence must have been used by the unlawful assembly or by any member thereof in.
pursuance of the common object. (1972) 1 SCJ 561. ...
(4) Where an offence is committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, the case will be covered by S. 149. If in such a case the offence is one
which involves the use of force or violence, the members of the unlawful assembly will be guilty not
only of the offence of rioting under this section but also of the particular offence committed in the course
of the rioting. This principle will also apply where the act constituting the offence is done 3h the
exercise. of the right of private defence but the right is exceeded. A IR 1958 A ll 348.
2. Distinction between "waging war" and "committing a riot".—(l) Where there was
conspiracy to overthrow the Government, and the conspirators attacked and fought the Township
Officer's party who had come to arrest them. Held, that the attack constituted the act of waging war. It
was not riot. (1913) 14CriL,J 514. .
3. There must be an unlawful assembly.—(1) In a charge of rioting the first thing to consider
is whether there was an "unlawful assembly" and whether the accused was a member thereof. If there
• was no unlawful assembly no conviction for rioting under this section can be maintained. 1968
CrJLJ 1676. . ., . . .
(2) Where it is not proved that more than four, persons were inspired by a common object referred
to in S. 141 or where the assembly has no such common object as is enumerated in S.. 141 there can
be no unlawful assembly and no member of such assembly can be convicted of rioting.. It is not
however, necessary that the identity of all the five or more persons should be stated in the charge. If the
• Court comes to the conclusion that there were five or more persons with a common object but some of
them are not identified, the persons who are identified, though less than five in number, can be
convicted of rioting. A IR 1954 SC 457. •. .
4. Common object.—(1) Since the offence of rioting presupposes the existence of an unlawful
assembly and since an unlawful assembly presupposes the existence of a "common object" (as
enumerated in S. 141), the question of "common object" becomes an essential element of the offence of
rioting. A IR 1921 Cal 181. .. . . .
(2) There should be a clear charge and finding as to the common object of the assembly before a
conviction can be properly maintained for the offence of rioting. A IR 1957 Orissa 190.
5. Abetment of rioting.—( 1) Where the accused instigates the members of an unlawful assembly
to use force or violence for overcoming any resistance that may be offered, he will be guilty of abetment
of rioting. A IR 1953 Tray-Co 251. -
(2) Where the accused instigates the members of an.unlawful assembly to use force or violence for
overcoming any resistance that may be offered he may be guilty of the offence of rioting inasmuch as in
such a case, the abettor and the members of the unlawful assembly share , in the same common object.
A IR 1942 Pat 311. . ..
.6. Person not present in the assembly.—(1) Where an unlawful assembly consisted, of the
servants of X and its common object was to do something which was in the interest of X, but X was
not present at or anywhere near the scene of occurrence and there was no evidence that he abetted the
acts done, it was held that X could not be convicted of rioting or of the abetment thereof. 1974 WLN
(UC)26. . . . .
• .. 7. Presence in assembly.—(1) The mere presence of a person in the assembly cannot make him 'a
J. member of the assembly, unless it is proved that he shared the common object of the assembly. In the'
• abence of such proof he cannot be guilty of rioting. AIR 1979 SC 1265.
330 Penal Code Sec. 146

(2) If a member ofanunlawful assembly gets hurt and is disabled from going away from the place,
he may nevertheless be still a member of the assembly unless he expressly disavows his share in the
common object. A IR 1950 A ll 418 (419): 51 CriLJ 1133 (DB).
8. 'Force' or 'violence',—( 1) Thegraveness of the offence of rioting is the use of force or violence
by the unlawful assembly or by any member thereof. AIR 1963 Mad 310.
(2) Where two words are used 'force' or 'violence' in S. 146, Penal Code, each word will connote
a different and distinct concept. While 'force' is narrowed down by the definition under S. 350, Penal
• Code, to persons, the word 'violence' is comprehensive and is used to include violence to property
and other inanimate objects. AIR 1955 All 232.
(3) The words "whenever force or violence is used" as used to in this section show that the actual
use of force and not merely the show of force is necessary to constitute the offence of rioting under this
section. A IR 1927 Oudh 151.
(4) The word 'riot' is a term of art and that, contrary to popular belief, it may not involve noise or
disturbance of the neighbours though there must be force or violence. (1957) 1 All ER 577.
(5) Chasing persons who escape, or merely advancing to attack a person may amount to an assault
or preparation to use forte or violence but does not amount to the use of force or violence. AIR 1937
Pat 34.
(6) If parties assemble for a purpose which, if executed, would make them rioters, but they do
nothing and separate without executing their purpose into effect, there is no 'riot' though the assembly
may have been an unlawful assembly. AIR 1928 Mad 21.
=
9. In prosecution of the common object.—(1) Where the act involving the use of force or
violence constitutes any specific offence (e.g) hurt (S. 325), grievous hurt (Section 326), mischief (S.
425), etc., then, the members Of the assembly will be guilty not only of the offence of rioting under this
section but by virtue of S. 149, also of the specific offence committed by one or some of them. 1954
Madh .BLR (Cr1) 363.
(2) Where special offence under S. 325 or S. 326 or S. 425 etc. is not committed in prosecution of
the common object of the unlawful assembly but by a member of the unlawful assembly, in his
individual capacity, then, the other members will be guilty neither of rioting under this section nor of
the specific offence by virtue of Sec. 149, and it is only the particular member who commits the offence
that will be liable for it. AIR 1942 Lah 59.
10. Section is subject to General Exceptions.—(1) This section is subject to Chapter IV dealing
with General Exceptions from criminal liability. 1889 Pun Re No. 4 (Cr.) P. 7.
(2) An assembly exercising its right of private defence of person or property is not an unlawful
assembly and no member thereof can be convicted under this section. 1,978 UJ (SC) 924.
(3) Cases of resistance to illegal arrest, attachment, searches, proceedings for delivery of possession
of property, defence against attempts to cause hurt, etc. AIR 19715 SC 2423 ; ' 1978 CriLJ (NOC) 40;
1977 W LN 566; A IR 1960 Tripura 43; A IR 1957 Orissa 130; A IR 1955 NUC (Pat) 1869.
(4) The following cases are cases of party in possession resisting aggression : A IR 1950 FC 80;
A IR l95S Manipur 2I ;A IR 1953 A ll 327. •
(5) Where the exceptions do not apply, as where there is no right of private defence or the right is
exceeded, the assembly with the common object referred to in S. 141 will be an unlawful assembly and
Sec. 146 Of Offences against the Public Tranquillity 331

if force or violence is used in prosecution of such object the offence of rioting is established. AIR 1976
SC 2273.
(6) The following are cases of resistance to acts of public servants covered by S. 99 of the Code—
No right of private defence : (1962) (1) CrILJ 91. A IR 1960 A ll 453. A IR 1945 Nag 269. A IR 1940
Mad 18; A IR 1936 Pat 37.
(7) Disputes often arise between rival parties as to the possession of, or the right to, property. In
such cases it is necessary to see whether one or other of the parties is exercising the right of private
defence. The Court is bound to record a clear finding as to possession before the accused can be
convicted. AIR 1950 FC 80.
(8) A party enforcing a right of which he is not in enjoyment, cannot be said to act in self-defence
and an assembly in this case would be an unlawful assembly and the members would be guilty of
rioting. AIR 1968 SC 702.
11. Presumption.--(I) In the absence of evidence or reasons to the contrary, the common object
of a riotous mob is presumed to be that indicated by their conduct, and it is also presumed that they
entertained it from the beginning and throughout their proceedings. AIR 1923 Nag 100.
(2) Where the accflsed were charged under Ss. 147, 149, 399 and 402 but the offence of dacoity
was not proved to have been actually committed, it was held that from the presence of a large quantity
of arms and ammunitions in the possession of the accused, it could be safely presumed that such
possession was not consistent with the theory of a peaceful assembly and they could be convicted under
Ss. 147 and 148. AIR 1962 All 13.
12. Burden of proof—Appreciation of evidence.—(1) On the charge under S. 147 the burden is
on the prosecution to prove that the accused took part in a riot. AIR 1943 Mad 590.
(2) The first information reports to the police in riot cases are not safe guides to charge the persons
mentioned therein ; the reason is, that friends and relations of the real culprits are more often than not
promiscuously implicated. AIR 1931 Lah 465.
(3) Where there is a volume of evidence which is prima facie acceptable but which is sought to be
rebutted, it is the duty of the Court to apply its mind to the evidence and analyse it to find out whether
the prosecution has affirmatively and satisfactorily proved its case, making use of the defence evidence
for the purpose of testing whether the prosecution case is true. If there is any reasonable doubt as to the
guilt of the accused, and there is no moral certainty of such guilt, the accused should be given the
benefit of doubt. A/R 1958 Mad 127.
(4) The alleged common object of an assembly, which renders it unlawful must be established by
evidence. In the absence of a clear finding, as to how a fight originated, a conviction for rioting cannot
be maintained. AIR-1953 Mys 41.
(5) It is not permissible to base a conviction upon a hypothetical state of facts, which is quite
unsupported by evidence, which was never put forward by the prosecution and was never suggested to
the accused as being the case they had to meet. A IR 1955 NUC (Cal) 4845 (Pr 7).
(6) Where the prosecution alleges that the riot was the result of the threats and attempts of the
accused to prevent the servant of the complainant from working for his employer, the only way the
• prosecution can prove these threats is by the evidence of someone who heard them uttered. The
hearsay evidence of the complainant with regard to what the servant told him that the accused persons
said, is inadmissible unless . possibly it is impossible.to secure the attendance of the servant. AIR 1939
Pat 659. ••
332 Penal Code Sec 146

(7) Where the presence of all the accused at the time of the occurrence is fully proved by the
• evidence of the prosecution witnesses, it is not further necessary for the prosecution to pràve in a case
• of riot what each individual rioter was responsible for. AIR 1933 All 535 (537).
• (8) Where the presence of all the accused at the time of the occurrence is fUlly proved by the
evidence of the prosecution witnesses, then it is for the individual accused to prove that he was there
owing to no fault of his own and that he could not get out of the crowd. A IR 1928 Pat 115.
• (9) The absence of injuries on the person of the alleged rioters arrested shortly after the occurrence
is a point which in a case where the evidence is partisan, must operate as a ground for giving the
benefit of doubt as to participation. AIR 1952 Mad 267.
13. Court's duty.—(l) In cases of charges under S. 147, Penal Code, the Court should discuss
the evidence as against each of the accused and view the case of each accused separately. A IR 1956
SC 181.
14. Procedure.—(1) A case of rioting should not be tried summarily and when a grave offence is
committed, it should not be minimised in order to justij a summary trial. AIR 1929 All 349.
(2) The offences kinder Ss. 147 and 148 are not compoundable at all and therefore no acquittal
can be allowed by reason of a compromise in regard to the offences under these sections. But
if circumstance requires, the Court can discharge the accused in respect of the charge under S. 147. AIR
1925 Lah 464.
(3) In a conviction for rioting even where the plea of self-defence is raised for the first time in appeal
the appellate Court should examine the plea. AIR 1925 All 664.
(4) Where the accused are charged with theft and riot and the charges have reference to property
which forms the subject-matter of a civil suit already pending it is desirable in the , interests of fair
administration of justice that the criminal proceedings should be stayed till the disposal of the civil
suit. A IR 1917 Pat 621
15. Charge.---( 1) It is the usual form of charge in rioting case, where the common object of the
assembly was to use criminal force to some person, to state that the common object was to "assault" a
person or persons. It is immaterial whether the common object was to commit assault, simple hurt or
grievous hurt, and a charge stating that the common object was to "assault" a certain person or persons
would cover all those cases. AIR 1927 Pat 398.
,(2) Accused cannot be convicted under Ss. 147 and 148 where the charge against them is merely
under S. 395 unless the case is one to which S. 21, Criminal P.C. is applicable. AIR .1945 All 87.
(3) A charge for rioting based on a particular common object of the assembly will vitiate a
conviction based on another common object. AIR 1963 Cal 3.
(4) An offence under S. 147 has been made a substantive offence by the Penal Code and there is no
illegality in the accused being chargedpnder that section in addition to charges under Ss. 323 and 325.
A IR 1933 Oudh 95.
(5) Where a series of events constituted one and the same transaction, the Court is justified in
fraMing charges in respect of each of the offences committed by the accused in the course of one and the
same transaction under S. 220, Criminal P.C. A IR 1938 Pat 548.
(6) In the absence of a charge undei S. 147, P.C., it is only the persons who caused the injuries
that can be punished for their individual acts. AIR 1959 Andh Pra 102.
See. 147 1Of Offences against the Public Tranquillity 333
16. Offence of rioting not compoundable.—Offences under Ss. 147 and 148 are not
compoundable. But if circumstances require it the Court can discharge the accused of the charge of
rioting. 1978 A ll Cr1 C 108. -

Section 147
147. Punishment for rioting.—Whoever is guilty of rioting, shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
Cases and Materials : Synopsis
1. Scope oldie section. S. Separate sentences for rioting and hurt or
2.. Previous acquittal of some members of other offence.
unlawful assembly in respect of wrongful 6. Charge under Section 147 and also under
confinement—Whether bar to prosecution for other sections.
rioting. 7. Practice.
3. Sentence. . & Procedure
4. Jurisdiction. 9. Charge.
I. Scope of the section.—(1) This section must be read along with section 141. The basis of
the law as to rioting is the definition of an unlawful assembly. It is only the use of force that
distinguishes rioting form an unlawful assembly. Persons who act in the exercise of right of private -
defence cannot be convicted under this section (1953 CrLf 6). Section 141 indicates what objects are
deemed unlawful. If the common object of an assembly is not illegal, it is not rioting. If the common
object is not unlawful, then there can be no unlawful assembly and consequently no rioting. There can
be no right of private defence where the riot, is premeditated on both sides. Where both parties are
armed and prepared to fight, it is ' immaterial who is the first to attack, unless it is shown that a
particular party was acting within the legal limits of the right of private defence (25 CrLJ 983). To
sustain a conviction it is essential that person forming unlawful assembly should be animated by a
common object and in the absence of such a finding the conviction is not sustainable and on that
ground alone the conviction should be set aside (43 CrLJ 654). Mere followers in rioting deserve a
much more lenient sentence than leaders who mislead them into violent acts by emotional appeals,
slogans and cries (A IR 1952 Mad 267). In a charge of rioting where a number of men are accused the
Court should deal with the case of each of the accused separately and discuss the evidence against each
of the accused especially when the evidence against each of the accused is by no means equally strong
(16 CrL.J 809). Where the evidence of the prosecution is interested and where a considerable amount
of enmity exists between the factions, the Court must scrutinise the evidence very carefully (28
CrLf 685). ..
(2) Ingredients. There are two essentials which make every member of an unlawful assembly guilty
of rioting-
(i) Use of force or violence by an unlawful assembly or by any member thereof.
(ii) Such force or violence should have been used in prosecution of the common object of such
assembly. .
(iii) The Sessions Judge found the appellants guilty of charge under section 147 of the Penal Code
and granted interim bail pending filing of the appeal. In the facts of the case it will be
334 . Penal Code Sec. 147

less than charitable to attribute to the appellants that they were "fugitive from Law". Sentence
being in excess of one year, Sessions Judge was not competent to grant such bail. 40 DLR
(A D) 281.
(4) Mere assembly of five persons or more, is not an unlawful assembly—An assembly of five
persons or more is an unlawful assembly if it has as its common object any of the unlawful acts which
has been specifically described in section 141 of the Penal Code—When force or violence is used by an
unlawful assembly or any of its members then the offence of rioting is committed. When rioting is
committed by a member of an unlawful assembly being armed with deadly weapon he is liable to
higher punishment under section 148, Penal Code. Rioting is punishable under section 147 of the
Penal Code. Corroborative evidence (Medical Certificate) cannot be considered without the substantive
evidence unless the substantive evidence is dispensed with under section 51 OA of the Code of Criminal
Procedure. 7 BCR (A D) 6
(5) Disputed land—Order of injunction granted by the trial Court was set aside by. the lower
appellate Court—High Court Division stayed the said order—Appellants chased and attacked the
informants and their party who were ploughing the disputed land—Question of possession raised-
Non-consideration of-the effect of the stay order in determining the question of possession has caused
failure of justice—Appeals allowed but case sent back on remand to the High Court Division for
disposal of the Revision case in the light of the observations made. 7 BCI (A D) 162.
(6) One of the accused, was charged with many others, under sections 147 and 448 of the Penal
Ctde, with an additional charge under section 304 of the Code, but when he was examined under
section 342 CrPC he was not told that he was facing trial under section 304 in addition to common
charge under sections 147 and 448—As such, his conviction under section 304 is illegal when so
many persons were collectively charged some under section 304 and some under sections 147/448. It
appears that failure ofjustice has been occasioned by the omission. It is too late to direct retrial but the
conviction under sections 147/448 of the Penal Code is maintained (Ref 5 BCR 272 A D; 1979 CrLf
72); 37DLR (A D) 113. .
(7) If it is found that the accused were members of an unlawful assembly within the meaning of
section 147, Penal Code, the fact that some of them did not do any overt act will not exonerate them
from the charge of rioting. The learned Single Judge has observed that "though presence of six
respondents on the spot during the incident was established, .yet they could not be held guilty of any
offence as they did not do any overt act". This observation is wrong both factually and on point of law.
Two of them namely, Aman and Alimuddin, were seen by PWs 1, 4 and 7 catching hold of the guard
in order to prevent him from putting any obstruction to the act of looting and arson ; and as to legal
effect of their presence during the incident, since they were members of an unlawful assembly which
used force or violence in prosecution of the common 'object of that unlawful assembly, to wit, t
destroy a dwelling hut by fire—"rioting" was committed, an offence of which every member of the
unlawful assembly is guilty, even if he did not do any other act. Charge being one of rioting under
section 147, Penal Code—All who are members of the unlawful assembly are guilty of rioting but
individuals who did not commit mischief by fire, an offence punishable under section 436, cannot be
held guilty under that section by applying section 147 ('Ref 4 BLD 324 A D, 4 BCR 186 A D, I BSCD
210). 36 DLR (A D) 234.
(8) Acquittal—probabilities, relation between the petitioner and witnesses, delay of nine months in
lodging First Information Report and omission in the statements recorded by the police under section
Sec. 147 Of Offences against the Public Tranquillity . 335

161 CrPC. No. exception can be taken in law and fact doubting the evidence of such witnesses in
Court implicating the accused. I BSCD 240.
(9) Six persons formed unlawful assembly—Two discharged—Conviction of four others for
unlawful assembly valid in law. When the evidence has clearly established that 6 persons had formed.
the unlawful assembly it is immaterial whether all the 6 persons were charged for the offence or not and
it does not make any difference that only 4 persons have been charged with the offence under section
147 and two others have been discharged. So, in. the facts of the present case, the conviction of the 4
accused under section 147 of the Penal Code is legally sustainable (Ref 4 BLD 94). 35 D(.R 311.
(10) When the unlawful äsembly cannot become riotous. The accused cannot be said to be guilty
under section 147 of the Penal Code because when their common object of the entire assembly was the
commission of criminal trespass and were causing hurt or grievous hurt was a separate object of only
one of the members of the assembly and was committed by that single member in prosecution of that
object, then in could not render the unlawful assembly riotous. Conviction of several accused persons
on omnibus statements of the PW cannot be sustained (Ref 2 BLD 170). 34 DLR, 94.
(11) Consecutive sentences—Sentences for rioting and trespass whether sustainable—Although
accused persons could be convicted for 'both the offences, there ought to have been only one sentence for
any of the offences and even if there was two separate sentences they ought to have been made
concurrent—consecutive 'sentences cannot be upheld, Offence of assault—Finding as to individual
'accused imperative—Where there are a number of accused and the offence alleged is one of assault it is
imperative to record a finding as against individual accused—Conviction of the petitioners on the basis
of a lump finding is not sustainable in law. 5 BLD 65.
(12) Evidence goes to show that hired labourers cut paddy but there , is no evidence that they cut
paddy in furtherance of a common object—they are entitled to the benefit of doubt on charges under
sections 147 and 148 of the Penal Code. Criminal trial—when from the charge sheet it appears that the
persons whom therein are treated as accused—They should be treated as accused. Body of the man
murdered not found—dead body is nqt absolutely necessary. 33 DLR 104.'
(13) Separate sentences under sections 147 and 324 of the Penal Code not illegal. 24 DLR 207.
(14) Four convicted out of eleven (others acquitted) cannot form an unlawful assembly. Eleven
persons were on trial under section 147 of the Penal Code of whom four were found guilty under the
same charge and the rest were acquitted. There was no finding in the judgment that other seven persons
were also present with the common object of the unlawful assembly. Held: The four convicted persons
could not form an unlawful assembly and, therefore, their conviction under section 147 of the Penal
Code cannot be sustained. 16 DLR 185; 25 DLR 185.
(15) There may be a common intention formed on the spur of moment. 11 DLR (SC) 226
(16) Where the common object of the whole assembly is stated to be theft, and the common object
of some is stated to be theft and assault—conviction under section 147 and 148, PC is not legal. 9.
DLR 71..
(17) Separate sentences under section 147 .as well as under section 426 not legal—Conviction
under both the sections, valid. When common object alleged is causing mischief, conviction under
section 147 of the Penal Code automatically goes, if conviction under section 426 is set aside. 8
DLR 95.
(18) Alteration of a charge under section 147 to one under section 323—when not proper. If the,
common 'object of an unlawful assembly had been to beat the complainant and his party men and if the
336 Penal Code S Sec. 147

evidence establishes that the accused did so beat them, it might have been argued that the alteration of.
the conviction from section 147 to 323 of the Code was not illegal, because section 323 may then be
held to be covered by the common object of the assembly: but when the charge recites the common
object of the assembly as merely to steal away paddy seedlings, the 'alteration of the section from 147
to 323 of the Code was illegal and has prejudiced the accused. 3 DLR 144:
(19) Charge of rioting when defective—Where the charge stated that four persons were members of
an unlawful assembly, it is not a charge bad in law. But where the wording of the charge was to the
effect that four persons formed or constituted an unlawful assembly that would be a bad charge, as a
charge against four persons to the effect that they committed dacoity was bad in law. 2 DLR 241.
(20) Impossible common object—It is an impossible common object where the common object
stated in the charge framed under 'section 147 of the Penal Code in the commission of-culpable
homicide not amounting to murder. 2 DLR 73.
(21) Common object of the unlawful assembly—Conviction cannot be sustained if the common
object of the unlawful assembly set out in the charge fails. Held: When once the occurrence with regard
to plot A had come to an end, the common object which motivated the accused persons to surround K
on plot B was not to .take forcible :possession of plot A. The .common object of the assembly having
been erroneously given in the charge the conviction both under sections 147 and 302/149 of the Penal
Code could not be sustained. I DLR 137. .
(22) The accused persons were ultimately placed on trial before the learned Additional Sessions
Judge, Rajshahi and on consideration of evidence and facts and circumstances of the case he convicted
the appellants under sections 147/379 of the Penal Code and sentenced each of them to suffer RI for one
year under each count with direction that the sentences under both the sections are to run concurrently.
The trial Court further convicted co-accused Amiruddin, Asiruddin and Tamizuddin under sections
304/34 of the Penal Code and sentenced them to suffer RI for 7 years each and to pay a fine of Taka
2000.00, in default to suffer RI for one year more. In disposing of an appeal, the appellate Court is
required to examine the evidence before affirming or reversing the order of conviction passed by the trial
Court, which has not been done in this case. The trial Court in an elaborate judgment considered the
evidence of the parties and found that the complainant grew the paddy, was in possession and the
grown paddy.was forcibly taken away by the 'accused persons. Hence appeal was dismissed. 4 BCR
(A D)339.,
(23) Ingredients: Petitioners, members of unlawful assembly in prosecution of the common object,
used force by causing injuries to complainants—ingredients for the offence proved—no interference with
the order of the High Court Division. I BSCD 239.
(24) Taking away of paddy by the accused persons and causing injury to the deceased—Conviction
and sentence u/s 147/379, PC—Sentence of R.I. for one year under each count—Sentences under both
the sections to run concurrently—Criminal Appeal—High Court Division did not at all refer to the
evidence while affirming the order of conviction of the appellants and simply reduced the sentence of the
appellants observing that "with the modification in the sentence the appeal is dismissed on merit"—
Validity of the High Court's decision—In disposing of an appeal, the Appellate Court is required to
examine the evidenci before affirming or reversing the order of conviction passed by the trial Court
which has not been done in this case—Normally, the case should have been sent back to the Appellate
Court for disposal of the appeal in accordance with law, but in the instant case no useful purpose will
be served by doing that—The trial Court in an elaborate judgment considered the entire evidence and
Sec. 147 Of Offences against the Public Tranquillity 337

the facts and circumstances of the case—It believed the evidence of two eye witnesses of the occurrence
and another witness who came immediately after the occurrence and saw the accused persons running
away from the place of occurrence—The Trial court further found on consideration of the evidence that.
the complainant party was in possession of the land and they grew paddy which had been forcibly taken
away by the accused persons—In that view of the matter it cannot be said that the conviction is not
based on evidence—The facts established in the case have made out a clear case U/Ss. 147 & 379 PC
against the appellants—High Court Division has reduced the sentence substantially—In the facts and
circumstances of the case no useful purpose would be served by sending the case back to the High
Court Division. 5 BSCD 36
(25) The finding of fact is that the complainant grew the paddy and the accused persons by
forming an unlawful assembly stole away the paddy—The question of ownership is not relevant.
5 BSCD 36.
(26) Every member of the unlawful assembly i s equally guilty and liable to punishment. Baziur
Rahman How/cider @Jillu and 3 others Vs. The State 4. MLR (1999) (HC) 101.
(27) Where the common object of the entire assembly was the commission of criminal trespass and
where causing hurt was- .a separate object of only one of the members of the assembly then it could not
render the unlawful assembly riotous. A li A kbar Khan and others Vs. The State 2 BLD (HCD) 170.
(28) When two of the six accused are discharged whether the remaining four accused could be
charged and Oonvicted for rioting—It was mentioned in the charge framed that the accused persons
along with othIs formed an unlawful assembly for committing riot and it was also proved that six
persons including the four accused persons formed the unlawful assembly—Under such circumstances
the conviction of the four accused persons u'nder Section 147 of the Penal Code is legally sustainable.
Mozammel Haque and others Vs. The State 4 BLD (HCD) 94.
(29) Where there are a number of accused and the offence alleged is one of assault, it is imperative
to record a finding as against individual accused—Conviction on the basis of a , lump finding is not
sustainable in law. Badu Mia Vs. The State 5 BLD (HCD) 65.
(30) Sentences for rioting and criminal trespass whether sustainable—Although the accused
persons could be convicted for both the offences, there should have been only one sentence for any of
the offences—Even if there are two separate sentences they ought to have been made concurrent and not
consecutive—Consecutive sentences cannot be upheld. In the absence of any reliable witness it is
unsafe to rely on the uncorroborated testimony of a single witness for convictiiig the accused for the
offence of rioting. Dr. A bdul Jalil Chowdhuty and others Vs. The State 12 BLD (HCD) 467.
(31) Compelling someone to write resignation letters—Case involving this section. BCR 1986
(AD) 243.
(32) Al the acused persons assembled to attack the informant. Though only one accused Abdul
Khaleque attacked the informant, other accused are also guilty under section 147 because every member
of an unlawful assembly is guilty irrespective of whether he had any overt act or not. Baziur Rahmcin
Howlader alias Jillu and 3 others Vs. State, represented by the Deputy Commissioner 51 DLR 457.
2. Previous acquittal of some members of unlawful assembly: Respect of wrongful
confinement—Whether bar to prosecution for rioting.—(l) Where two. members of an unlawful
assembly of five or more police constables were, in a previous case charged with wrongful confinement
of X and Y and were acquitted, such acquittal was held not to be a bar under Section .403 of the••
338 Penal Code Sea. 147

Criminal P.C., to the prosecution of the members of the unjawful assembly for rioting, where the
charge was that the common object of the assembly was the wrongful confinement of A, B and others.
A IR 1921 Cal 181.
(2) An acquittal on the charge under the Police Act is equivalent to an acquittal under S. 147 of
the Code. A IR 1935 Rang 436.
3. Sentence.—(1) Where a large number of people armed with arms assembled at a place with the
intention of using force' against the complainant who, though feeling himself aggrieved, did not take the
law into his own hands but had recourse to the authorities and sought and obtained the assistance of
those in charge of the forces of law and order, it was held that the case did not call for an exercise of
leniency. AIR 1954 SC 657.
(2) 'Where in a violent countryside, a larger number of people collected together to resist a real or
fancied encroachment on their rights but so far controlled themselves that they committed no violence'
against any person, it was held that considerable leniency should be. shown in the matter of sentence.
A IR 1935 Pesh 65.
(3) Where the accused are charged under S. 147 and convicted, the Court would not be justified in
imposing a more sever6 punishment on one of the accused if there is nothing in the evidence to show
that he had assaultedanybody or had taken a prominent part in the occurrene. AIR 1952 Madh B 205.
(4) Considering the circumstances of the case and particularly six years period which had elapsed,
it was held that they should be released on probation, 1984 CriLR 96 (96) (Raj).
4. JurisdLtion.—(l) A subordinate Distriàt Council Court is not competent to try an offence
under S. 147, Penal Code, but the jurisdiction of the Assistant to Deputy Commissioner to do so is
saved. AIR 1970 Assam 130.
5. Separate sentences for rioting and hurt or other offence.—(1) Where proof of rioting 1s
complete, and where besides such proof there is also proof of the commission of hurt or grievous hurt,
separate convictions and sentences may be properly ordered. (1966) 2 Audh WR 475.
(2) Where the accused are found guilty for offence punishable under S. 147 and also under S. 307
read with S. 149, it is not desirable, in view of S. 71, to pass any separate sentence under S. 147
considering that the common object of the unlawful assembly, which happened to commit rioting, was
mainly to murder the deceased. 1981 JabLi 407.
6. Charge under S. 147 and also under other sections.—(1) Where the accused are charged
under Ss. 304 and 147 the Sessions Judge found them guilty under both sections but convicted
them only under S. 304, it was held that the High Court could convict them under S. 147 also and
that it could not be said , that the Sessions Judge in merely convicting under Section 304, acquitted
them by implication of the charge of Sec. 147. AIR 1933 All 565.
(2) Where it is not shown that the accused did any act which caused the death of the deceased, he
can only be convicted under S. 304 if it is shown that there was an unlawful assembly of five or more
persons, whose common object was to commit an offence under S. 304 and that the accused was one of
them. A IR 1921 Mad 687 (688)
(3) A conviction under S. 160 (affray) of the Code is.maintainable even though the accused were
charged only under the section. A IR 1927 Nag 163 (164): 28 CriLJ 189.
(4) A conviction for an abetment of assault on a charge under this section cannot stand. AIR 1922
Mad 110(11/): 23 CriLJ 206.
Sec. 147 Of Offences against the Public Tranquillity -339

(5) Conviction for offences outside the common object of rioting is not illegal if they constitute
one transaction. AIR 1928 Oudh 401.
(6) Where persons are charged with offences under Ss. 323 and . 147 and the offence u/s. 323 is
compounded and acquittal recorded it will not amount to an acquittal under S. 14 . 7. AIR 1970 All 235.
( 7 rWhere a charge was framed under Section 148 specifying the common object of the unlawful
assembly but all accused were acquitted of the offence of rioting under S. 147 or S. 148, they cannot be
convicted under Section 30.2 read with S. 149. 1983 CriL.J 1029.
7. Practice.—Evidence—Prove: (1) That five or more persons were assembled.
(2) That such assembly was unlawful when it was convened or subsequently became unlawful.
(3) That such object was the common object of those composing such assembly.
(4) That the accused, or any member of such unlawful assembly, used force or violence.
(5) That such force or violence was used in the prosecution of such common object.
8. Procedure.—(1) Once there is an acquittal of the a'ccused of the charge .under S. 148 by the trial
Court, the appe!late Court has no jurisdiction to alter the conviction to one under this section. AIR
1961 Orissa 29 (30): (1961) 1 CriLJ 132(2). [See also 1983 WLN (UC) 369(372) (DB) (Raj).]
(2) Where in a confused fight both sides indulged in stone throwing against each other and
consequently it was difficult to fasten the liability on a certain member of the accused.party for the
injury on the deceased, the accused party can be punished under this section alone for rioting. AIR 1954
Mad 15. .
(3) Where accused were found to be members of unlawful assembly and were armed with sticks and
stones, the accused, as they had caused injuries to the complainants, were held guilty under S. 147.
1984 Cr1LR (Mah) 70.
(4) Cognizable—Warrant---Bailable---Compoundable by the person against whom force used—.
Triable by any Magistrate and by Village Court where less than ten persons are involved in the
unlawful assembly read with third an . fourth clauses of section 141
9. Charge.—(1) Where the accused are charged under S. 147, a separate charge for abetment is
unnecessary and does not, in fact, arise. This section is sufficient, in its punitive scope, adequately to
punish such minor overt acts since in a rioting case the overt acts constitute evidence of participation in
the riot. AIR 1949 Mad 663. ..
(2) A charge for an offence of rioting need not include the words "lay force or by show of force" as
the word "rioting" itself involves the use of force. AIR 1936 Pat 627.
(3) Since the offence of rioting itself requires a specified common object as described in S. 141, the
charges under Ss. 455/149, 152/149 and 323/149 stating the common objëct,as.to commit rioting are
defective. AIR 1961 Orissa 29. . .
(4) Where an assembly of five or more persons was formed to exercise the right of private defence of
property and force was used in pursuance of this object, the members of such assembly cannot be.
charged or convicted under this section nor for any other offence read with S. 149or S. 34. 1973
CriL.J 811. . . . 7
(5) The charge should run as follows: . . .
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, were a member of an unlawful assembly, and, in
prosecution of the common object of such assembly, viz, in—committed the offence of rioting, and
340 Penal Code Sec. 148
thereby committed an offence punishable under section 147 of the Penal Code,-and within my
cognizance.
And I hereby direct that you be tried on the said charge.

Section 148
148. Rioting, armed with deadly weapon.—Whoever is guilty of rioting, being
armed with a deadly weapon or with anything which, used as a weapon of offence, is
likely to cause death, shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
Case and Materials : Synopsis
1. Scope of the section. 6. Sentence.
2. Accused must be guilty of rioting. 7. Practice.
3. "W hoever.. .being armed with." 8. 1 Procedure
4. "Deadly weapon ". 9. Charge.
S. Evidence.
1. Scope of the section.-The common object thust be common to at least five persons. A
common object of assaulting, even, established with regard to four persons cannot be used to justify a
conviction for rioting (48 CrLf 165). Before a conviction can be made under section 148, it must be
proved that the unlawful assembly had a common object. Where the assembly had a common object
and they came armed with deadly weapons with the common object of dealing with the complainant
party, and knowing that they were likely to be faced with armed resistance if they persisted in
prosecution of common object, this section would apply (1968 P CrLf 371 Lahore). But if the group
had acted on the spur of -the moment without there being any common object, section 148 does not
apply (17 DLR (SC) 186). Even in the case of a free fight resulting from an attack by the .accused, they
may be convicted of an offence under. sections 3261148 (48 Cr LJ 522 Lah). The offence punishable
under this section is an aggravated form of rioting under section 147. This section will be attracted
only when a rioter is armed with a deadly weapon or with a weapon of offence likely to cause death.
Failure to record either of conviction or acquittal on a charge under section 148 is fatal and cannot be
rectified later on. (AIR 1966 (SC) 302).
(2) Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding,
for such plea is to be establishd by the accused who takes it. A criminal proceeding is liable to be
quashed only if the facts alleged in the First Information Report or complaint petition, even if admitted,
do not constitute any criminal offence or the proceeding is barred by any provision of law. Where
disputed facts are involved evidence will be necessary to determine the issue. The appellants have
produced an order of temporary injunction against the complainant's party. This must be considered
along with other evidence during the trial. Their application for quashing the proceedings is found to
have been rightly refused by the High Court DivisiOn (Ref 7 BCR 462 AD). 42 DLR (AD) 62,
(3) If both parties are found to have committed offence u/s 148 PC—none of them to'be acquitted.
50 DLR 564. . .
(4) Member of unlawful assembly-Rioting committed in prosecution of their ,common object—
Accused Tayeb Ali assaulted PW 1—conviction of both the accused under section 148 of the Penal
Code and Tayeb Ali's conviction under section 324 of the Penal Code based on good evidence—But
ec. 148 Of Offences against the Public Tranquillity 341
heir conviction under sections 302/149 not sustainable as their participation in assault upon deceased
Bazlur Rahman doubtful (Ref 10 BCR 87 A D). 41 DLR (A D) 147.
(5) Accused charged under sections 148, 302/149 Penal Code but convicted under sections 302 of
the Penal Code—On the question whether such conviction is sustainable in law, Court held:
Conviction under sections 302/34 Penal Code is sustainable in law. 41 DLR 373.
(6) Evidence on record does not justify the order of conviction under sections 302/109 and 148 of
the Penal Code upheld by the High Court Division—The learned Judges did not at all consider the
evidence relating to the alleged abduction of Sohrab, Mahtab and Mobarak for which the appellants
were convicted also under sections 302/149 of the Penal Code. We have come to the conclusion that
the evidence on record does not justify the order of conviction under sections 302/109 and 148, Penal
Code (Ref 8 BCR 17 A D). 40 DLR (A D) 38.
(7) Court must specify the common object of the unlawful assembly in the charge—Merely saying
the common object was rioting not enough. No mention of the object in the charge, as enumerated in
section 141, PC—Trial fails. After acquittal under section 379 of the Penal Code charge under section
148 of the Penal Code must fail (Ref 4BLD 13), 38 DLR 299.
(8) In view of the discussion on . evidence in respect of rioting allegedly indulged in by accused
appellants 2-4 there being no slogan calling for action prompting the other accused to indulge in
rioting, and the lone contention raised by the appellant's lawyer the application of section 34 or 109
f?r linking the appellants 2-4 with the offence of murder cannot be justified. Appeal allowed in part but
the Conviction of appellant No. 1 under section 302 is maintained. 7 BCR (A D) 463.
(9) Prima facie case against the accused persons of the basis of examination of 7 witnesses through
a judicial enquiry by a Magistrate to whom the case was Sent by the SDM after examination of the
complainant. No exception can be taken to this. The observation by the High Court Division is
unwarranted. No interference is called for (Ref 7 BCR 150 A D) 7 BCR (A D) 168.
• (lO)A clear case of benefit of doubt emerged in favour of the accused—Dead bodies were not
proved—No disinterested witness examined. The High Court Division found that for non-examination
of any independent witness an adverse inference could be drawn against the prosecution. The High
Court Division furthd found that there was delay in lodging the FIR and defence witnesses were
independent and disinterested as those witnesses were residents around the alleged place of occurrence.
Practice and procedure—In a case of acquittal by the High Court there has always been aversion not to
.interfere with the findings of the Aigh , Court unless there has been something so irregular or outrageous
to shock the very basis of justice. There is no foundation for appellants' Advocate's submission to
make up for the lapse of the prosecution that the villagers who did not depose in court were not
sympathetic to the deceased as they were bad elements of the locality. Even the relations of the
deceased (PWs 3, 6 and 7) completely shipwrecked the prosecution. There is nothing perverse or
unreasonable in the impugned judgment of acquittal passed by the High Court Division. There is
direct positive and impregnable man of evidence that the accused persons along with others tied the
deceased Khijir with a rope, assaulted him and dragged him all the, way to the ditch after which his
whereabouts were known. The accused cannot be acquitted, straight acquittal caused gross miscarriage
of justice, the respondents are convicted under section 364 of the Penal Code (Ref 39 DLR 166 A D) 7
8CR (A P) 253.
(II) Common object of unlawful assembly—The Additional Sessions Judge did not give any
finding on the unlawful assembly and any common object of committing any particular offence—In the
342 Penal Code Sec. 148

absence of any proof or any finding of any common object none of the accused could be found guilty. 4
BLD 13. -
(12) Prosecution to prove what weapon each of the accused carried to avoid involvement of
innocent persons. There is no evidence that accused appellant Ali Akbar Khan was assisted by any of
the other accused appellants in the act of firing the gun-shot. Under such circumstances it was
incumbent on the prosecution to lead evidence as to which deadly weapons each of the accused was
carrying so that all chancei of roping ic innocent by-standers, spectators and uninvolved relations and
friends, of accused party is eliminated so that they may not be convicted for their mere presence at or
near the scene of the crime. 34 DLR. 94. .
(13) Specific charge under section 148 not made. An accused can nevertheless be convicted for
sharing a vicarious responsibility under section 149. It is however proper to add a charge under section
148. if a person is not charged under section 148 it does not mean that section 149 cannot be used.
When an offence such as murder is committed in prosecution of the common object of the unlawful
assembly knew to be likely to be committed, individual responsibility is replaced by vicarious
respànsibility and every person who is a member of the unlawful assembly, at the time of,committing
the offence becomes guilty. It is. not, therefore, obligatory to charge a person under section 148 when
charging him for an offence with the aid of section 149 because the ingredients of section 148 are
implied in a charge under section 149. There is also no legal bar to frame a charge under section 148
along with.a charge under sections 302/149. A charge under section 148 needs be framed if it is sought
to secure a conviction thereunder. It this case there has been aconviction also under section 148 and
sentence has also been imposed. In those circumstances convictions both under sections 148 and
302/149 are permissible in law (Ref 1 BSCD 249), 28 DLR (SC) 170.
(14) An object, like an intention, is generally to be gathered from the acts which the persons do
and the result that follows therefrom in the instant case, the charge under section 148 of the Penal Code
clearly mentioned the common object of the unlawful assembly to be the commission of murder and
the inference of such common object can legitimately be drawn from the circumstances and facts proved
by evidence, namely, that the accused persons, most of whom were armed with deadly weapons, were
lying in wait and that as Shamsul Huq and PW 2 were passing by, the accused persons surrounded
them and dealt severe injuries to them as a result of which Shamsul Huq died on the spot. Common
object under section 148 having been found to be killing, the common intention was also killing under
sections 302/34. The criminal act which constitutes the basis of the charge under section 148 of the
Penal Code is identical with that of the charge under sections 302/34 of the Penal Code. In other
words, the common object and the common intention in this case is one and the same. The evidence
and circumstances which led to. the finding that the common object of killing Shamsul Huq had been
proved, were sufficient for an inference of the existence of the common intention to kill him (Re): I
BSCD 240; 1 BCR 171) 27 DLR (SC) 22.
(15) Benefit of doubt, when extended—The mere fact that the accused were identified in a crowd
and were arrested froth the house where the occurrence had taken place is not sufficient to establish that
they also shared the common object of the unlawful assembly. It may be that they were silent
spectators who out of fright took shelter with others there. In the circumstances they should be given
the benefit of doubt and acquitted. 20 DLR (SC) 347.
(16) For a conviction under section 148. It must be found that each of the accused individually
carried a dangerous weapon. Under section 148 of the Penal Code it is the duty of the Court to find
Sec.. 148 Of Offences against the Public Tranquillity 343

• whether the accused individually carried any dangerous weapon within the meaning of that section. in
the absence of such a finding, the conviction Under section 148 of the Penal Code cannot be
maintained. The finding tlt the petitioners took away fish from the possession of the complainant
party, while forming an unlawful assembly carrying dangerous weapons with them with the common
objective of forcibly ousting the complainant from the land and taking away fish, it is ndt enough for a
conviction under section 148. The Court should have found that each of the individual accused carried
a dangerous weapon in his hand. 10 DLR54
(17) Where the common object of the whole assembly is stated to be theft, and assault—
conviction under sections 147 and 148 of the Penal Code is not legal. 9 DLR 71.
(18) Sections 380/379/148/147/448—Written complaint to SDM after six years of commission of
alleged offences—Complaint petition and statement on oath made by the complainant do not implicate
accused appellant. Inquiry officer's report states that a prima facie case is made out against accused
appetlant . and others—Cognizance taken by SDM—High Court Division refused to quash proceedings
.on ground that inquiry officer's report discloses a prima facie case—High Court Division's view held
incorrect—Continuance of such proceedings amounted to abuse of process of law. 1 BCR (SC) 68.
(19) 'Object' meaning aim, purpose and may be defined as anything whether concrete or abstract,
real or imaginary that fnay be perceived or apprehended by the mind. It . is, therefore, a mental
conception and no direct evidence upon the same can be available. An object, like, intention,, is
generally gathered from the acts which the persons do and the result that follows therefrom. The Charge
u/s 148, PC clearly mentions the common object of the unlawful assembly to be the commission of
murder and the inference of such common object can legitimately be drawn from the circumstances and
facts proved by evidence. 27 DLR (AD) 22.
(20)Gun-shot murder—Specific charge U/s 148 not made, nonetheless an accused can be convicted..
u/s 149. It is proper to add a charge u/s 148. 28 DLR (SC) 170.
• (21) The Criminal Act which constitutes the basis of the charge u/s 148 Of the Penal Code is
identical with that of the charge u/s 302/34 of the Penal Code: In other words, the common object and
the common intention in the case is one and the same. The evidences and circumstances which led to.
the finding that the common object of killing the victim had been proved, were sufficient for an
inference of the existence of the common intention to kill him. 27 DLR (AD) 22.
(22) Rioting—ingredients—Medical evidence to show that deadly weapons were used in
• committing Rioting—for a conviction under this section, no medical evidence is necessary simply
because actual use of a deadly weapon is not an ingredient of this offence which is committed when a
deadly weapon is simply carried. 4 BSCD 25.
(23) Mere plea of private defence cannot be a ground for quashing of proceeding—Criminal
Proceeding is liable to be quashed if the alleged facts in the FIR or complaint petition .do not
constitutes any offence or is barred by any specific law. 42 DLR (A D) 62 (1990) BLD (A D) 1.
(24) The finding that the petitioners took away fish from the possession of the complainant party,
while forming an unlawful assembly carrying dangerous weapons withthem with the common object of
forcibly ousting the complainant from the land and taking away fish, is not enough for a conviction
under section 148, P.C.. The court should.have found that each of the individual accused carried a
dangerous weapon in his hand. A bdul Hamid Molla Vs. State (1958) 10 DLR 518.
(25)The common object of the entire assembly was theft, and if assault was separate object of only
four of the members of the assembly and was committed by them in prosecution of that object, it could
not render the unlawful assembly riotous. A mir Hossain Vs. Crown (1957) 9 DLR 71.
344 Penal Code Sec. 148

(26) The mere fact that the accused were identified in a crowd and were arrested from the house
where the occurrence had taken place is not sufficient to establish that they also shared the common
object of the unlawful assembly. It may well be that they were silent spectators who out of fright took
shelter with others there. In the circumstances they should be given the benefit of doubt and acquitted.
Babar A li Vs. The State, (1968) 20 DLR (SC) 347.
(27) In the instant case, the charge under section 148 of the Penal Code clearly mentioned the
common object of the unlawful assembly to be the commission of murder and the inference of such
common object can legitimately be drawn from the circumstances and facts proved by evidence,
namely, that the accused persons, most of whom were armed with deadly weapons, were lying in wait
and that as Shamsul Huq & P. W. 2 were passing by, the accused persons surrounded them and dealt
severe injuries to them as a result of which Shamsul Huq died on the spot. A bdul Mann Munshi Vs.
Idris Pandit (1975) 27 DLR (A D) 22.
(28) Prosecution to prove what weapon each of the accused carried to avoid involvement of
innocent persons. A li A kbar Vs. The State (1982) 34 DLR 77.
(29) There is no evidence that accused appellant Ali Akbar Khan was assisted by any of the other
accused appellants in the act of firing the gun-shot. Under such circumstances it was incumbent on the
prosecution to lead evidence as to which deadly weapons each of the..accused was carrying so that all
chances of roping in innocent by-standers, spectators and uninvolved relations and frinds of accused
party is eliminated so that they may not be convicted for their mere presence t or near the scene of the
crime. Ali Akbqr Khan Vs. The State (1982) 34 DLR 94.
(30) The criminal act Which constitutes the basis of the charge under section 148 of the Penal Code
is identical with that of the charge under sections 302/34 of the Penal Code. In other words, the
common object and the common intention in this case is one and the same. The evidence and
circumstances which led to the finding that the common object of killing Shamsul Huq had been
proved, were sufficient for an inference of the existence of the common intention to kill him. A bdul
Matin Vs. Idris Pandit (1975) 27 DLR (A D) 22.
(31) Specific charge u/s. 148 not made: An accused can nevertheless be convicted for sharing a
vicarious responsibility u/s. 149. It is however proper to add a charge u/s. 148. Tozammel Hussain
Chowdhury Vs. State (1976) 28 DLR (SC) 170.
(32) After acquittal u/s. 379, charge u/s. 148 must fail. Ali Ahmed Vs. State (1986) 38 DLR 299.
(33) Error in recording conviction—The charge framed and findings Of the Court show the accused
to be guilty of rioting punishable under section 148. But the trial Court erroneously recorded
conviction under section 149, although this section 149 does not independently punish any offence.
The High Court Division attempted to correct it, but unnecessarily added section 149 to section 148.
This is a mere irregularity which does not touch the merit of the case as the charge specifically said
they were members of an unlawful assembly. The order of conviction needs be modified so as to record.
the conviction under. section 148. A bdus Samad Vs. State '44 DLR (AD) 233.
(34) Accused charged under section 149, Penal Code but convicted under section 302—On the
question whether such conviction is sustainable in law, Court held: Conviction under sections 302/34,
Penal Code is sustainable in lawi Md. Hossain Vs. State 41 DLR 373.
(35)L-AIteration of from section 302 to that of sections 302/34, Penal Code is permissible in
the facts and circumstances of the case. Md. Hossain Vs. State 41 DLR 373.
Sec. 148 Of Offences against the Public Tranquillity 345

(36) Members of unlawful assembly—Rioting committed in prosecution of their common object—

Accused Tayeb All assaulted PW 1—Conviction of both the accused under section 148, PC and Tayeb:
Al's conviction under section 324 PC based on good evidence—But their conviction under sections
302/149 not sustainable as their participation in assault upon deceased Baziur Rahman doubtful. Tayeb
All Vs. State 41 DLR (AD) 147.
(37) If both parties are found to have committed offence under section 148 of the Penal code none
of them is entitled to be acquitted on the ground that the other is the aggressor and in this respect law
spares none. Bachu Miah Vs. Samad Miah and others 50 DLR 564.
(38) Common object of an unlawful assembly—The Additional Sessions Judge did not record any
finding that the unlawful assembly had any common object for committing any particular offence—In
the absence of any proof or any finding of the common object none of the accused persons could be
found guilty under this sectibn. Md. Babu Mia and others Vs. The State 4 BLD (HCD) 13.
(39) Doubt as to the complicity of the accused has to be established in the light of the evidence on
record in the mind of the judge. That certain accused is given the benefit of doubt cannot be the ground
for claiming the same treatment by the other accused who stands on different footing. When charge
against the convict-petitIbner stands proved beyond all reasonable doubt he cannot claim acquittal on
benefit of doubt. 6 MLR (AD) 100.
(40) As the other 4 accused persons being armed with deadly weapons arrived at the scene of
occurrence just immediately after the other accused persons had committed the offence, subsequent
arrivers have not committed the offence of rioting. Madris Miah and others V s. State (Criminal)
2 BLC 249.
(41) In the instant case, the observation of the learned Judges "about the offence under section 148
of the Penal Code against the accused Tofazzal Hossain and Abul Kalam evidence before us is not
sufficient as the independent PWs 3 and 4 did not state that they assembled with deadly weapons" hits
at the very root of the prosecution story for giving benefit of doubt to the petitioner and thus, the
submissions merit no consideration. Moazzem Hossain Vs. State (Criminal) 6 BLC (A D) 122.
(42) Where a rioter is armed with a deadly weapon, the offence falls under this section and is an
aggravated form of the offence under Ss. 143, 146 and 147. 1984 Cr1LR (Mah) 70.
(43) The essential ingredients of an offence under this section are:
(i) the accused must be a rioter, that . is, he must be a member of an unlawful assembly which, or
a member of which, use force or violence in prosecution of the common object of the
assembly;
(ii) he must be armed with a deadly weapon or with anything which when used as a weapon of
offence, will cause death. 1979 CriLi 72(74) (Born).
(44) Where there was no satisfactory evidence to prove the formation of any unlawful assembly
with a common Object to commit crimes and the whole fight started suddenly on the spur of the
moment in :a heat of passion the accused though more than five in number could only be liable for the
individual acts committed by them and could not be convicted under Ss. 149, 148 or 147. A IR 1980
SC 573. . . .. . .. ....
(45) Unlawful assembly formed with common object to give beating to victim—One member
committing murder—Common object to commit murder not proved—Only accused committing
Lo murder held guilty under S. 302— .-Other members of the assembly held were guilty under Ss. 148,
323/149. 1981 criLi(NbQ 177. . . .. . . .. S
346 Penal Code Sec. 148

• (46) Charges for rioting, mischief by fire, trespass, etc.—Crowd assembled as consequence of
inaction of police in one criminal case—No intention to commit criminal trespass, arson, loot,
damage, proved—No presumption of common object—Offence of rioting not proved—Accused could
be held liable for their individual acts only. 1982 CriLJ 1998 (2002): 1982 A11CriR 314.
(47) All the essentials necessary to constitute an unlawful assembly must be present in cases
falling under this section, (1972) 2'SCJ 561.
2. Accused must be guilty of rioting.—(l) An assembly of persons using force for the purpose of
maintaining their rights is not an unlawful assembly at all. This section will not apply to the members
of such assembly while acting within the limits of the right of private defence. AIR 1976 SC 2423.
• (2) Appellants along with others came in a body being armed with deadly ,weapons—
Complainant's land trespassed—Conviction : of appellants under S. 148—Held, proper. 1982 Cr1LJ
(NOC) 5 (DB) (Gauhati).
(3) "Rioting".presupposes an unlawful assembly (S. 146) which, in its turn, requires as an
essential element that there must be at least five members of the alleged assembly (S. 141). Hence,
where in a charge under Sections 147, 148 and 149, three of the six accused are acquitted, the
remaining three accijsd cannot be convicted. AIR 1976 SC 2027.
3. "Whoever......being armed with".—(l) A, B, C, D, E are members of an unlawful assembly,
and force .is used in prosecution of the common object. They are all armed with deadly weapons and
hurt or grievous, hurt is caused by B to X in prosecution of the common object, they are all guilty
under this section. 973 MPLJ 721.
• (2) A, B, C, D, E are members of an unlawful assembly, and force is used in prosecution of the
common object. They are all armed With deadly weapons and hurt or grievous hurt is caused by B to
• X in prosecution of the common object, they are guilty under S. 323 or S. 326 read with S. 149 AIR
• 1942 Lah 40.
(3) Common object of accused only to commit assault with lathis and country-made pistol and not
to commit dàcoity but 2 of the accused while committing assault taking away victim's gun—Held:
since assault was not made with object of thieving the guns, act did not amount to dacoity or robbery
under Section 390 but accused could be held guilty under Ss. 323, 324, 149, 148. 1983 A11LJ 33.
(4) Post-'mortem examination report giving .probable cause of death as tuberculosis and heart
failure—No offence under S. 302 or S 304 proved—However, there was material on record to show
that accused assaulted accused—Conviction can be one under Ss. 147, 148, 149, 330, 341 or S. '325 if
not under Section 323 of the Code. (1982) 1 BomCR 928.
(5) Where the accused who were 16 in numbers armed with deadly weapons opened the attack
according to the prosecution, the fact that complainant party remained unhurt makes the prosecution
story false and hence conviction under S. 148 was set aside. 1981 CriLJ (NOC) 18 (PunJ).
4. "Deadly weapon".—(l) A deadly weapon is a thing designed to cause death, e.g., gun, bomb,
rifle, sword. (1947) 48 CriLJ 522. • •
(2) It is not necessary that a thing should be carried for the purpose of using it as a weapon of
offence. The test is not the purpose for which it is carried but, as seen above the nature of thing carried,
whether it may be used as a weapon. AIR 1968 Mad 310. -
(3) It is not necessary that the deadly weapon or anything which is used as weapon of offence likely
to cause death was actually used in rioting. It would suffice if it was merely displayed. 1982 CriL.J654.
Sec. 148 Of Offences against the Public Tranquillity 347

(4) A knife, hammer, crowbar and spade may all be used as weapons for causing death. AIR 1968
Mad 310.
(5) Where an accused is disarmed before he forms a member Of an unlawful assembly, he cannot
properly be convicted of an offence under this section. AIR 1937 Pat 603.
(6) Where the accused had formed the unlawful assembly and were armed with iron rods and.lathis
in prosecution of their common object, and assaulted certain persons ;'uch simultaneous attack by
lâthis and iron rods could impute knowledge to such assailants of death ofyictims. Hence conviction of
accused under S. 148 was proper. 1981 CrILJ (NOC) 34 (DB).
5. EvideiIce—(l) Exact facts uncertain—Benefit of doubt to be given to accused. 1978.
UJ(SC) 924.
(2) Conviction under S. 148 and S. 324 read with S. 149—Prosecution case consistent with
FIR—Witnesses testifying that accused were armed with spear and pharsas—Doctor opining that
injuries could be catised by sharp weapon—COnviction is proper. 1982 Al/Li (NOC) 90.
(3) Offence under S. 148—Prosecutrix knowing accused not only by race but also by name—
Accused not specifically incriminated in her F.LR.—Other evidence existed to show that accused were
fictitiously implicated—Accused entitled to acquittal. 1983 CriLJ 607.
(4) Witness categorically stating that the victim was dragged by the accused persons—Independent
witness supporting prosecution case that accused were members of unlawful assembly being armed.with
deadly weapons and shared common object of assaulting and breaking of houses etc., as stated by
witness—Evidence also_corroborated by other witnesses—Held, that the accused were guilty under
Sections 323 and 148. 1982 GnU (NOC) 94 (Orissa) (DB).
(5) Prosecution for offence under S. 148—Acqused armed with gun but did not use it for
committing murder as per prosecution story—Fact that accused had not used gun make the prosecution
story improbable—Had the common object of unlawful assembly ben to commit murder in all
probability accused would have made use of his most bffective weapon— i-Conviction set aside. (1983) 1
Crimes 411 (DB) (All).
(6) Prosecution for offence under S. 148—Pellet and bullet recovered from the body of the-deceased
persons not sent to Ballistic expert for examination and opinion—On the other hand prosecution
making effort to secure evidence of existence of weapons with accused which are a combination of a
shot-gun and a rifle—Prosecution story held unbelievable. 1983 Pak LD 117 (125) (SC).
(7) F.I.R. lodged after 24 hours—Delay not explained—Conflict between oral evidence and
medical evidence—Explanation given by the appellant-accused plausible—Benefit of doubt given to the
accused and acquitted. (1984) 1 Crimes 204 (209) (DB) (P & H).
(8) Injuries on the persons of appellants far larger in number than those on the injured P.Ws.-
P.Ws. and their companions held, by trial Court to be armed by sharp-edged weapons—State not
challenging the findings of trial Judge—Held, , in view of the findings of trial Court the convictions of
appellants under Ss. 148,307, 302/149 etc. could not be sustained. (1984) I Crimes 447 (450) (P&H).
(9) Accused appellants convicted under Sections 148/326/325/324/323/149—Held—In view, of
inherent improbabilities, serious infirmities; the interested and inimical nature of the evidence and other
circumstances, the prosecution had miserably failed to prove the case against the revision-petitioners
beyond reasonable doubt—Convictions of the accused set aside. (1984) 1 Crimes 478 (481).
348 Penal Code Sec. 148

(10) Charges under—Conviction with aid of S. 148—Counsel for State conceding that charge
under S. 148 related to murder subsequent to alleged abduction of deceased and did not relate to
abduction—Common object would not be available for sustaining conviction for abduction. AIR
1984 SC 911. . .
6. Sentence.—(1) The quantum of sentence, within the limits laid down by the law is a matter
within the judicial discretion of the Court to be adjusted according to the circumstances of each case,
including the gravity of the offence in the particular case, the depravity of the offender, his age and other
factors. 1979 CriLR (Born) 87.
(2) Where an unarmed man peacefully registering a protest in the very manner contemplated by law.
is attacked by an assembly of persons armed with deadly weapons, then, in the matter of sentence, no
leniency is called for. AIR 1954 SC 657. -
(3) In charges for offences under S. 148 and causing hurt and grievous hurt, it was held that there
• cannot be one conviction under this section and another conviction for the offence of causing hurt or
grievous hurt. ('1893) JLR 17 Born 260 '270) (FB).
(4) Conviction for riot—Accused only 17 years old at the time of occurrence—Benefit of Probation
of Offenders Act extended to such accused. 1982 A11LJ (NOC) 90.
7. Practice.—Evidence—Prove: (1) That five or more persons assembled.
(2) That the said assembly was an unlawful assembly within the meaning of section 141,
Penal Code. .
(3) That the accused was a member of that assembly.
(4) That force or violence was used by one or more of the members of that assembly.
(5) That it was used in prosecution of the common object.
(6) That the accused was armed with a deadly weapon or with a weapon of offence likely to
cause death.
.8. Procedure.—(1) Offence under S. 148—'-Cognizable—Bailable—Not compoundable—Offence
under S. 148 is tribal by the Magistrate of the first class. A IR 1948 Pat 58. -
(2) If any party to rioting does not raise the plea of private defense in the lower Court but raises it
in appeal for the first time, he is not disentitled to have the plea examined by the Court. 1969 Cr1LJ
80.
(3) Where a person was charged under Section 402, it was held that he could be convicted under
this section or S. 147. AIR 1962 All 13.
(4) Unlawful assembly—Murder—Specified charge framed under S. 148—Acquittal of accused
under that charge convicting them under S. 302/149—Conviction invalid—Once accused were
acquitted of offence of rioting under S. 148 it was no longer possible to convict them under S.
302/149. 1983 CriL.J 1029.
(5) When a number of persons were prosecuted for a number of offences which included offences
under Ss. 148, 147, P.C.-and the conviction of the accused on counts other than Ss. 147, 148 was set
aside by the first appellate Court which held the evidence unreliable, partisan and lacking in reliability
the High Court in appeal held that the lower appellate Court should have given benefit of doubt to the
accused for offences under Ss. 148, 147, P.C. also. 1979 MadLJ (C'ri) 692.
(6) Cogni zable—Warrant—Bailable—Compoundable by the person against whom force has been
used—Triable by Metropolitan Magistrate or Magistrate of the first class or second class.
Sec. 149 Of Offences against the Public Tranquillity 349
9. Charge.-(l) Discrepancy between common object of alleged unlawful assembly as stated in
the charge and as proved-Accused prejudiced in his defence-Accused acquitted. 1976 RajLW 385:
1977 CriLJ (NOC) 170.
(2) The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the-day of--, at-, were a member of an unlawful assembly, and did, in
prosecution of the common object of such assembly, viz, in-commit the offence of rioting with a
deadly weapon (or with something, which used as a weapon of offence, was likely to cause death) to
wit-, and thereby committed an offence punishable under section 148 of the Penal Code and within
my cognizance. -
And I hereby direct that you be tried on the said charge.

Section 149
149. Every member of unlawful assembly guilty of offence committed. in•
prosecution of common object.-If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly,-or such as
the members of that assembly knew to be likely to be committed in prosecution of
that object, every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.
Cases and Materials :.Synopsis
1. Scope of the section. 15. W hether conviction under this section can
2. Section creates an offence. only be for an offence of which the principle
3. This section and Section 34 offender has been convicted
4. This section and S. 148. 16. Separate conviction for separate offences.
5. This section and S. 396. 17. Charge under S. 149- Conviction under S. 34
6. "If an offence is co,nnutteiL" vice versa-Propriety.
7. Unlawful assembly. 18. Convictions for offences under other
8. Five or more persons necessary. enactments read with S. 149.
-
9. Common object. 19. Sentence.
10. "Free.fight." 20. Jurisdiction.
11. Right or private defence. 21. Burden of proof-Evidence.
12. "In. prosecution of the common object." 22. Practice.
• 23. Procedure.
13. "K new to be likely."
24. Charge.
14. Al. the time of committing that offence. -
1. Scope of the section ^ ( 1) Section 149 does not create a new offence. It is declamatory of the
vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common
object of that assembly or for such an offence as members of unlawful assembly knew to be likely to be
committed in prosecution of the object. For application of section .149 it is necessary (a) that one be a
member of unlawful assembly, (b) that in prosecution of common object of that assembly an offence
should be committed by a member of that unlawful assembly and (c) that the offence should be of such
350 Penal Code Sec. 149

a nature that members of that assembly knew the offence to be likely to be committed in prosecution of
their common object. If these three elements are satisfied then only a conviction under section 149 may
be sustained. It is essential to prove that the persons sought to be charged with an offence by the aid of
this section was a member of the unlawful assembly at the time the offence was committed and the
burden of proof lies on the prosecution. It is necessary to show among other things' that the offence
sought to be impugned has been committed by a member of the assembly either known or unknown.
When it is estaIlished that the number of offenders was five or more than five, the mere fact that some
of them could not be identified does not affect the application of this section (47 CrLf .909). Where
there is a spontaneous fight between two parties each individual is responsible for the injury inflicted
by him' and the probable consequences of the pursuit by his party of their common object. In such
circumstances the right of private defence does not arise. AIR 1956 (SC) 513, 17 DLR (SC) 186
(2) Ingredients: Commission of an offence by any member of an unlawful assembly. Such offence
must have been committed in prosecution of the common object of that assembly, or must be such as
the members of that-assembly knew to be like!, to be, committed.
(3) Accused charged under sections 148, 302/149 Penal Code but convicted under section 302---
On the question whether such Conviction is sustainable in law, Court Held: Conviction under sections
302/34 Penal Code is sustainable in law. In view of the. decisions cited above, it is clear that accused if
charged under sections 302/149 of the Penal Cede maybe convicted under sections 302/34 of the Penal
Code. The liability under these two distinct heads of offences are almost similar involving coicstructive
liability. It is to be noticed that under section 149 the elements of constructive liability coQsist of
common object and participation in the unlawful assembly whereas under section 34 the electn'ients are
common intention and participation in the crime. Common intention or object in both the sections are
common as well as joining the unlawful assembly and joining or participation in the crime are the
elements in both the sections constituting constructive liability. The line of demarcation in.these two
.sections in threadbare very thin and almost identical overlapping the distinctive features of these two
sections. Alteration. of charge from section 302 to that of sections 302/34 of the Penal Code in the facts
and circumstances of the present case, is permissible and accordingly alter the Conviction of accused
appellants Khurshed and Sujak from the charge under section 302 of the Penal Code to that under
sections 302/34 of the Penal Code as both of them are so found guilty of causing th, death of Sona Mia
(Ref.' I BCR 171) 41 DLR 373.
(4) Appellant Nos. 2-6 cannot be convicted under S. 326 of the Penal Code without framing any
charge under section 34 or 149 of the Penal Code and without leading any evidence as to their acting in
concert or in pursuance of any common object. The prosecution case is that it was Azit who threw the
bomb at the order of the Chairman, the charge under the said section was not framed by adding section
34 or 149 of the Penal Code and no evidence was led as.to acting in concert or in pursuance of any
common object. The appeal is allowed, the conviction and sentence is set aside. (Ref: - 7 BLD 248
A D). 40 DLR (A D) 218. . . .
(5) Murder-appellants convicted under section 302 read with section 149 of the Penal Code and
sentenced to transportation for life—Defence plea was that the incident took place when the victim.
opened fire upon the appellants causing injuries to four of them, that they exercised their right of.privath
defence of life and property and they filed a counter case against Baziur Rahman"s men—Trial Court
sentenced them as aforesaid. Accused did nothing to discharge the onus and their plea was rightly
rejected bythe Court below. 10 BCR (AD) 86.
Sec. 149 Of Offences against the Public Tranquillity 351

(6) Distinction between sections 34 and 149. Under section 34 in case of a criminal act in
furtherance of common intention by several persons, each shall be individually liable for the act which
he has committed—Under section 149 every member of the unlawful assembly is guilty of the offence
committed in prosecution of the common object. Under section 34 each of the accused must do some
act in furtherance of common intention. 38 DLR 17.
(7) Both sections 34 and 149 deal with liability for constructive criminal action. Distinct features
of these two sections—points on which both are similar and on which -they are different. Neither section
34 nor section 149 creates and punishes any substantive offence; but they are intended to deal with
liability for constructive criminality, that ii to say, liability for an offence not committed by the
person, charged. Section 34 applies in a case where criminal act is done by two or more persons in
furtherance of the common intention of all, whereas section 149 applies in case of members of an
unlawful assembly when a criminal act is committed by any member of the unlawful assembly in,
prosecution of the common object of the unlawful assembly. These two sections, both deal with
combinations of persons who became punishable as 'sharers in an offence'. They have a certain
resemblance and may to some extent overlap. Section 34 applies to a case in which several persons
both intend to do and at 'and in fact do that act; it does not apply to a case whereseveral persons
intend to do. an act but someone or more of them do an entirely different act; i.e., in such a case section
.1 49 may apply provided other requirements are fulfilled. Mere membership of an unlawful assembly
makes one liable under section 149; under section 34 there is participation in an act with common
intention. So, where common intention and common object are the one and same in a given case,, both
these may apply. 36 DLR (A D) 24.
(8) Charges under sections 147 and 148 read with section 149—Additional , charge should be
framed against each accused. It should be stated for the guidance of the trial Courts that in all cases
where charges are framed under sections 147, 148 for substantive offence read with section 149 of the
Penal Code, additional, separate charges should be framed against each individual accused for an offence
directly committed by him while being a member of such assembly and they should carefully take note
of the provisions of sections 221, 233 and 236 of the Code of Criminal Procedure. charge which causes
prejudice to the accused due to error or irregularity makes out a case for retrial. It is found in an appeal,
that there was an error or Omission of irregularity in the framing of a' charge against an accused causing
prejudice to the accused in his defence, that would merely be a ground for retrial of the accused after
framing a proper charge. Conviction of other accused under sections , '148, 324/149 and 326/149 of the
Penal Code, cannot be sustained merely on the basis of omnibus statements of the witnesses that they
and several others came armed with weapons like leja and a sarki: For coming to a definite finding
whether each of the accused persons were members of the unlawful assembly and did commit the offence.
of rioting in prosecution Of the aforesaid common object of the assembly, overt act of each accused and
weapon used by each accused have necessarily to be considered. 34 DLR 94 .
(9) Expression "in prosecution of the common object" explained—lngrdients that must be
established to bring the charge home under section 149. In a case of vicarious liability the law provides
that the offence must be committed in prosecution of the common object of thO assembly or the offence
committed must be 'such as the members of the assembly knew it likely to be so committed. The word
"knew" impOrts a sense of expectation founded.upon facts that an offence of a very particular kind
would be committed in prosecution of common object of the assembly, which is something more than
mere speculation. Further acts committed in prosecution of the common 'object must also be proved by
352 Penal. Code Sec. 149
some overt act, committed by others to that effect and in the absence of proved individual overt act the
charge of acting jointly shall also fail. To warrant a conviction vicariously by the application of section
149 these ingredients must be proved beyond all reasonable doubt and when they are wanting a person
cannot be visited with the consequences of the offence and with the vengeance of the law, vicariously by
the application of section of the Penal Code. Arms carried serves as indicatioit what kind of offence is
likely to be committed. A choice of arms by the members of an unlawful assembly is an important
factor to be taken into consideration to come to the finding of fact as to the types of opposition expected
and the type of possible injury to be inflicted by the members in case of opposition. 33 DLR 334.
(10). Conviction of a person under section 302 whether amounted to an acquittal of a charge under
sections 302/149. Held : conviction being under section 302, no question of acquittal under sections
302/149 arose. The trial Court having found the appellant guilty for the specific offence of murder under
section 302 of the Penal Code the alternative charge framed against the appellant needed no
consideration. It was also not necessary to record any finding with respect to that charge and as such
there was no question of acquittal or the appellant of the said charge. High court held the charge under
sections 302/149 proved and a charge on specific offence under section 302 not proved and altered
conviction under sectipn to one under sections 302/149: High Court competent to do it. (Ref: 1
BSCD 240). 28 DLR (SC) 170. - •. . -
-
(11) Difference between sections 34 and 149—Ingredients of section 34 must be fulfilled to justify
its application in the absence of which no conviction under section 34 valid. The common intention
may grow in the course of the event. A common intention or common object is a thing which cannot
always be proved, by direct evidence and it should be inferred from the surrounding facts and
circumstances of the case. Bur in a case of rioting, the facts and circumstances which constitute the
common object of the unlawful assembly may not by itself be always sufficient to attract the common
intention of the party. A common intention and common object would not be mixed up together., in
order to bring the case within , the mischief of section 34, it is essential that some additional
circumstances, beyond the materials necessary to prove rioting, should be brought on record to show
that there was a pre concert or mixing of minds to do a thing other than the thing for which the
common subject was formed. In the present case a party of twelve persons was initially actuated with
the common object to do a certain thing but if they ,are then alleged to have intended to do a different
thing, it is for the prosecution to bring those new circumstances on record to take the aid of section
34, Penal Code. There should be, some materials on record ,to justify the findings of common 'intention
and in the absence of any circumstances or evidence such common intention should be incapable of
, being tethered in a case. In some cases the possibility of developing common intention during the
course of the event cannot altogether be excluded but justify such an inference of common 'intention in
each case should be deduced from facts ài-d circumstances of the case. If .a charge is framed under section
302 with the aid of section 34 or 149 the conviction and sentence can be made under section 302 alone.
Where it is found that each of the accused is individually guilty of murder under section 302'
notwithstanding that the charge preferred against them in respect of the murder, is one of constructive
liability, i.e. under section, 302 read with section 34 or 149 of the Penal Code. If on evidence the
Court is satisfied that each on the accused appellants is individually liable for murder, it can convict
and sentence them straight under section 302 Penal Code (Re!: 6 DLR 22 W P). 25 DLR 232.'
(12) Common object was to abduct a girl—Accused were armed with deadly weapon—In course
of carrying out their common object one of the accused's fired a shot and killed a person. Held: All the
Sec. 149 Of Offences against the Public Tranquillity 353

accused guilty of capital charge under sections 302/149—Original common object of the accused was to
abduct a girl and in furtherance of this objet, they armed with deadly weapons, broke open the door of a
dwelling house and one of them fired a shot killing a woman (not the girl). The trial Judge acquitted
them of the capital charge under section 302/149, holding that the object of the unlawful assembly was
to abduct and not to kill anybody and that there was no evidence as to which particular person fired the
shot. The conviction and sentences were upheld by the High Court on appeal. In a petition for special
leave to appeal the Supreme Court held: The Courts below fell into an error in acquitting the accused
of the capital charge. Even if no reliable evidence was available as to which of the particular person
killed the woman yet all the accused charged were burdened with vicarious liability under section 14.9,
Penal Code notwithstanding that the original common object was to forcibly abduct the girl. The
accused being armed with deadly weapons the intention to use these arms in case of resistance was,
therefore manifest. The petitioners were therefore guilty of the offence under sections 302/149. Supreme
Court—Evidence—Re-examination of evidence when not allowed. Unless it is shown that the Court
below have in their appraisal of evidence contravened any new principle for ascertaining the guilt of an
accused person or disregarded any procedure applicable to criminal trial. Supreme Court will not
interfere in as much as no proper case is made out to justify re-examinatiwOf evidence by the Supreme
Court, 22 DLR (SC) 127. . .
• (13) Section 149 consists of two parts with respect of the common object of all, may be found
guilty but those who individually commit a lesser offence, they may individually be convicted of such
offence under the second part of section 149. It was contended that since the principal offenders had been
convicted under sections 302/34, Penal Code, neither they nor any of the others could be convicted
under sections 326/149, Penal Code. On a plain reading of sections 149, Penal Code it would appear
that it is in two parts and that an accused who is found to be a member of an unlawful assembly can be
convicted of a lesser offence if under the second part of that section it is clear that he was aware that
such a lesser offence was likely to becommitted in prosecution of the common object. Although some
members of the assembly may have travelled beyond that object and committed a graver offence-,-In
construing this section each case has to be judged upon its own facts, for, it has to be determined with
reference to the facts of each case what offence the members must have known to be likely to be
committed. If such offence is minor to the offence committed by the principal offenders there is no
reason why they should not be convicted accordingly. Again, if some members of the unlawful
assembly commit a more serious offence which was not the object of common assembly they can be
convicted for offnce of their individual acts in addition to punishment for offence done in pursuance of
the common object. If the common object of the unlawful assembly is to inflict no more than grievous
hurt but some of the members of the assembly deliberately went beyond the common object and killed
the victim, the killers would be liable for murder but the remaining members would be constructively
liable for inflicting grievous hurt. The wording of section 149, Penal Code when applied, as it must
be, to the case of each individual accused appears to be perfectly straight forward. Thus even the
principal offenders have in such a case who committed grievous hurt, the common object of the
assembly, and therefore, the other members can legitimately be held to have constructively committed
grievou hurt. Thus where the accused are members of an unlawful assembly which starts beating the
deceased and the assembly is armed with deadly weapons . but the accused are found not guilty of
murder then there is no reason why they cannot be held to be constructively liable for the lesser offence,
CD
of grievous hurt read with section 149, Penal Code, because, they must have in the circumstances of
the case, known that a grievous injury was likely to be caused (Ref- '12 DLR 808,1. 20'DLR (SC) 347.
354 Penal Code Sec. 149

(14) The intention in using a fire arm was clearly to cause death and, therefore, the two deaths that
have been caused can be rightly held to be the result of a joint attack by the four persons before us thus
attracting the application of section 34, Penal Code which employed, yet, it would have been similar
and in fact, not in any way in contravention of either fact or law, to hold that these four persons with
others who had not been identified beyond doubt, carried out the attack in which case the liability
would be extended to all of them under section 149, Penal Code. Cross examination—Purpose of cross
examination to find out truth—Confusing a witness by prolonged cross, deprecated. 9 DLR (SC) 216
(IS) Where a number Of accused participated in beating a man to death under circumstances which
amount to murder under sections 302/149 of the Penal Code, the conviction should be under some
lesser section than under section 302. Section 149 does not create a new offence but provides for
vicarious liability for offences committed by others in furtherance of the common object. Under this
section the liability of the other members expect those who assaulted the.,deceased for the offence
committed during the continuance of the occurrence rest upon they fact whether they knew beforehand
that the offence actually committed was likely to be committed, in prosecution of the common object.
Such knowledge may be reasonably, inferred from the nature of the assembly, arms or behaviour at or
before the sence of occurrence, 19 DLR 927.
(16) Provisions of JS. 149 not applicable to offence under S. 397—S. 397 applicable only to
accused actually armed with deadly weapons or causing or attempting to cause death or grievous
hurt—Mere fact that one of accused at the time of dacoity used deadly weapon or caused grievous
hurt—Does not render all accused equally liable on principle of constructive or joint liability. PLD
1966 Läh 643. .
(17) Charge under sections 302/149 but convicted under sections 304(1)/34. The question was
whether the accused could be convicted under sections 304(1)/34 of the Penal Code when the charge
against them was under section 302 read with section 149. Held Both section 34 and 149, Penal'
Code, deal with constructive liability and it is to be considered whether the accused who have been
convicted under sections 304( 1)/34 have been prejudiced in the absence of a charge under that section.
A slight variation in the facts established from the facts alleged in the charge and a conviôtion for an
offence on the facts established would not render it by itself bad in law in view of the provisions of
section, 236, read along with the illustrations as well as section 237 of CrPC [Ref.' 8 DLR (W P) 128.1
12 DLR 365. . ...
(18) If there is some element of doubt, can be validly framed for asubstantive offence read with
section. 149, Penal Code, in view of sections 236 and 237, CrPC and conviction and sentence can
legally be passed for the substantive offence. The precise evidence was that the two accused shot dead
two persons, one of the accused shooting and killing one person and the other accused shooting and
killing another person; on account of an allegation that there was third shot by another person which
hit none, the Court framed a charge against the two accused under section 302 read with section 149,
Penal Code. The Court, however, convicted each of the accused under section 302 and sentenced each
to death. The contention was raised that the two accused had been prejudiced by failure at the trial to
place them upon a charge of direct liability. Held It is true that specific charge under section 302,
Penal code might also have been framed against each of the accused individually, but by section 236,
CrPC the Court is expressly permitted to frame a charge in respect of any of the several offences which
might have been charged. By the application of section 237, CrPC a conviction can legally be
obtained, in a case of this kind of any offence which appears from the evidence to have been committed,
Se449 I Of Offences against the Public Tranquillity . 355

although it was not expressly charged. When, therefore, at conclusion of the trial, the learned Sessions
Judge was satisfied regarding the individual liability of each of the accused it was open to him to record
a conviction against each of them under section 302, Penal Code. Plea of provocation raised in the
Supreme Court for the first time—When can be upheld. A plea of provocation by wanton injury was
successfully raised before the Privy Council on behalf of the appellant who was convicted for murder,
on the ground that there was evidence to support a plea of provocation sufficient to reduce the crime to
manslaughter and the Privy Council upholding that plea reduced the crime to manslaughter. The
Supreme Court held that a plea of provocation by wanton injury cannot be available to a person other
than person provoked by the infliction, on his person, of injuries. 9 DLR . (SC) 1. .
(19) Common object—real factor. The relevant question is not whether the intention of the
assailants was to cause death of the members of the OP but whether their common object was to cause
such death or such a death was likely result of their action. It may be that the circumstances. of a
particular case did not prove that the assailants had the common intention to kill the two deceased but
in view of the fact tjiat the number of assistants being at least five, S. 149 of the Penal Code was
applicable and the relevant question was not whether the intention of assailants was to cause death of,
the members of the OP,-but whether their common object was to cause such death or such * death was so
likely a result that each member should have known that it was likely to be caused. 8 DLR .(W P) 128:.
(20) When a person is charged under sections 302/149 there is no necessary implication that he
himself committed the murder unless in the charge it is so alleged, that he is not, in fact called upon to
meet any such charge. It is immaterial whether he committed it or not, It does not profit him in the
least to prove that he himself did not commit. The foundation of a constructive charge Under section
149 is quite different from that of a direct charge. The primary basis of a constructive charge , under
section 149 is the existence and membership of an unlawful assembly and the commission of an offence::
by a member thereof in prosecution of the common object or such as the members knew it to be likely
to be committed in prosecution of such object. Joinder of charges under sections 302/149 and 201 is
permissible in cases coming under section 236 of the CrPC (Ref: 7 DLR 45 W P). 7 DLR. 572..
(21) Beating, common object of assembly—No intention to commit murder—Murder
committed—Only persons taking part in murder and not all members of unlawful assembly are liable—
The common object of the unlawful assembly was found to be only the giving of beating to certain
persons and the highest offence which members of such assembly knew to be likely to be committed
was grievous hurt. In the absence of evidence of any special intention or knowledge (apart from the
general object or knowledge attributable to all members of assembly) two of the members of such
assembly could not be convicted of murder under section 302 read with section 34, Penal Code. Unless
there be intention or knowledge of one of the kinds specified in section 299, Penal Code no conviction
for culpable homicide can be had. 5 DLR (FC) 44.
(22) Conviction under sections 302/149 and 147 cannot be sustained if the common Object of.the
unlawful assembly 'as set out in the charge fails. 1 DLR 137.
(23) The phrase 'in prosecution of the common object' in the two clauses have different shades of.
meaning and these words 'in prosecution of the common object' in the first clause must be strictly.
construed as equivalent to 'in order to attain the common object'. When that is the case every person,
who is engaged in prosecuting the same object, may well be held guilty of an offence which fulfils or
tends to fulfil the object which he is himself engaged in prosecuting. And an offence will fall within the
second clause if the members of the assembly, for any reason, knew beforehand that it was 'likely to be
356 Penal Code Sec. 149

committed in the prosecution of the common object, though not knit thereto by the nature of the object
itself. Janab A li Vs. State (1960) 12 DLR 808 = (1961) PLD (Dac.) 430.
(24) Application of section 149 is not dependent on the fact that at least five of the accused must
ultimately be convicted. Juma Vs. Crown (1955) 7 DLR (W P) 45.
(25) The common object of the accused was to abduct a woman, but as they, carried dangerous
weapons, like hatchets and spears, it may be safely presumed that they knew that in case of resistance
death of one or more of the inmates of the house was the likely result. Juma Vs. Crown (1955) 7 DLR
(WP) 45: PLD 1954 (Lah) 783.
(26) In view of the provisions of Ss. 236 and 237 of the CrPC, if there is some element of doubt,
a charge can be validly framed for a substantive offence read with S. 149, P.C., and conviction and
sentence can legally be passed for the substantive offence. MD. Anwar Vs. State 9 DLR (SC) 1.
(27) When a person is charged under S. 302/149, there is no necessary implication that he himself
committed the murder unless in the charge it is so alleged. Rahman Sardar Vs. Crown 7 DLR 572.
(28)The primary basis of a constructive charge under section 149 is the existence and membership
of an unlawful assembly and the commission of an offence by a member thereof in prosecution of the
common object or such as the members knew it to be likely to be committed in prosecution of such
object Rahman Sardar Vs. Crown (1955) 7 DLR 572
of
(29) Where six accused were charged under sections 302/149 P.C., two the accused having been
proved to have fired the two fatal shots which caused the death of two persons. Held: that conviction of
the two aforesaid accused for murder under section 302, P.C., direct was by virtue of sections 236 and
237, Criminal P.C. not illegal, although they were not directly charged under that section. There was
on the evidence, an element of doubt in regard to the precise offence—Whether under sec. 302 or
sections 302/149, P.C.—committed, which was sufficient to justify, within the terms of section 236
Criminal P.C., the framing of a charge under sections 302/149 P.C., and convicting the two accused
under section 302, P.C., on the basis of direct evidence of eye-witnesses. Md. A nwar Vs State (1957)
9 DLR (SC) 1=PLD 1956 (SC) 440.
(30) The common object of the unlawful assembly was found to be only the giving of beating to
certain persons and the highest offence which members of such assembly knew to be likely to be
committed was grievous hurt. In the absence of evidence of any special intention or knowledge (apart
from the general object of knowledge attributable to all members of assembly) two of the members of
such assembly could not be convicted of murder under section 302, P.C. read with section 34, P.C.
Unless there be intention or knowledge of one of the kinds specified in section 299, P.C. no convicted
for culpable homicide can be had. Fazàl Elahi Vs. Crown (1953) 5 DLR 44.
(31) If the common object of the unlawful assembly of which Fazal Dad and Jumma were two
members, was to cause death or death was known to be the likely result, all will be guilty of the
offence of murder in spite of the fact that some of them may not have taken part in the beating given to
the deceased. But as they carried dangerous weapons, like hatchet and spears, it may be safely
presumed that they knew that in case of resistance death of one or more of the inmates of the house was
likely result. Therefore, they were all punishable for the offence under sec. 149. Jumma Vs. Crown
(1955) 7 DLR (W P) (Lah) 45. PLD (1954) (Lah) 783.
• (32 Sections 34 and . 149 have some common features, but some difference between them is that
while section 34 may apply to a case where the culprits are five, more than five; or less than five;
Sec. 149 Of Offences against the Public Tranquillity 357
section 149 can apply only to a case in w'ich the culprits are five or more. Nawab V s. Cràn : (i954)
6DLR(W P)22. .
(33) Application of and distinction bétwëen secs. 34 and 149 (see under sec. 34 above). (1954) 6
DLR (W P) 22; (1956)8 DLR (W P) 128.
(34) Distinction—Offence known to be likely to follow—Section 34 not necessarily applicable.
PLD 0956,i(Lah) 157.
(35) Conviction under secs. 302/149 and 147 cannot be sustained if the common object of the
unlawful assembly as set out in the charge , fails. Hakim A ll Vs. crown (1949) 1 DLR 137.
(36) The relevant question is not whether the intention of the assailan)s was to cause death of the
members Of the opposite party, but whether their, common object was , 16 cause such death or such a
death was likely result of thóir action. Feroz Vs. State (1956) 8 DLR .(W P) 128.
(37) In the case where the number of assailants is five or more than five, section 149 of the P.C., is
attracted. This section has no concern with the common intention of the participants in the crime but
concerns itself mainly with their common object and provides that even if the offence committed by any
member of the unlawful assembly was not committed in furtherance of the common object of that
assembly, every one of the members of the unlawful assembly would be liable for the offence if the
result' was such as was known to be likely. Feroz Vs. State (1956) 8 DLR (W P) 128.
(38) Section 149 does not deal with a common intention but applies to an offence committedby
any member of an unlawful assembly in furtherance of the common object of the assembly. Section 149
will apply even if the common intention of the culprits was not to commit the offence committed if that
offence was committed in order to gain the common object of the unlawful assembly. Nawab Vs.
Crown (1954) 6 DLR (W P) 22.
(39) Member of an unlawful assembly—Whether he can be convicted when the principal offender
has not been convicted—Once the court finds that an offence has been committed by any member of an
unlawful assembly in prosecution of its common object, then whether the principal offender has been
convicted or not all other members may be constructively liable for conviction. A bdus Samad Vs. State
44 DLR (AD) 233.
(40)Applicability of the. provision under section 149—Even after acquittal of the five accused there
could be an unlawful assembly . if there was evidence that besides the accused on trial 'there were others
even though not stated as such in the charge or in the FIR. Raft qul Islam Vs. State 44 DLR (AD) 264.
(41) Offence committed in prosecution of common object—Section 149 Penal Cbde...by itself
creates no offence. It carries the liability of each member of an unlawful assembly for the act done in
prosecution of their common object. Tenu Miah and others Vs. State. 43 DLR 633.
(42)- Constructive liability—, The occurrence appears. to have taken place upon .. sudden quarrel and
in a th of rage deadly weapons were freely used. Both the parties appear to have suppressed material
facts. In such a situation a charge under section 149 is not maintainable. Mere presence of the accused
at the scene of the occurrence of murder is not sufficient to charge him with constructive liability.
State V. Giasuddjn 45 DLR 267.
(43) The two accused had no premeditation to kill the victim and as such the application of
section 149 for iagging them to face trial on murder charge appears to be illegal. State V s. Khalilur
Rahman 48 DLR 184.
358 Penal Code Sec. 149

(44) When a particular offence is committed by an individual member of the unlawful assembly,
which was neither done in prosecution of common object of the assembly nor other members of the
assembly knew that the offence would be committed, other members of the assembly cannot be held
liable for the offence. The word "likely", in the later part of S. 149 of the Code means some clear
evidence that an unlawful assembly had such a knowledge. In view of other offences committed, such
as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable
under section 149 of the Code when Appellant No. I Abdus Sattar alone stuck a Katra blow on the
right side of the chest of deceased which proved fatal and strictly speaking, S. 149 of the Penal Code is
not attracted in this case. There being overwhelming evidence of inflicting katra blow on deceased
Aminul Haq by Appellant No. 1, the appeal in respect of Appellant No. I Abdus Sattar is dismissed
and his conviction and sentence under S. 302/149 of the P. C. is altered to S. 302 of the Penal Code
and his sentence of imprisonment for life is maintained. A bdus Sattar and others Vs State 46 DLR
(AD) 239. .
(45) Common object—When can a member of an unlawful assembly be made vicariously liable for
an offence under Section 149 of the Penal Code. In .a case of vicarious liability, the law provides that
the offence must be committed • in prosecution of the common object of the assembly or the offence
committed must be such as the members of the assembly knew it likely to be committed—Further,
acts committed in prosecution of the common object must also be proved by some overt act committed
by others to that effect in the absence of any proved individual overt act the charge of acting jointly also
fails. A nil Krishna Somaddar and others Vs. The State 1 BID (HCD) 401.
(46) Common object—To warrant a convicted under Section 149 of the Penal Code it is
incumbent upon the prosecution to lead evidence as to which weapon each of the accused persons was
carrying—The case of each individual accused has to be examined so that mere spectators or friends and
relations of the accused party who had not joined the assembly and who were unaware of its motive
had not been branded as members of the unlawful assembly. A li A kbar Khan and others Vs. The State
2 BLD (HCD) 170:
(47) Section 149 of the Penal Code by itself does not create any offence at all—It carries the
liability of the members of an unlawful assembly for the act done in prosecution of the common
object—The specific object of the unlawful assembly when known to all, each and every member of
such an assembly is actuated or animated to achieve that object and in furtherance of the common
object the same is achieved. Section 149 of the Penal Code applies irrespective of the fact whether such
act was 'done by one or more members of the unlawful assembly and every member of such an assembly
shall be saddled with the constructive liability under this section. Tenu Miah and others Vs. The State
11 BLD (HCD) 196
• (48) For applying section 149 of the Penal Code againstan accused, three conditions must be
fulfilled : (a) the accused must have been a member of the unlawful at the time the offence was
committed ; (b) the offence must have been committed in prosecution of the common object, or (c) the
offence must be such as the members of the assembly knew likely to be committed in prosecution of
that object. Before applying section 149, the Court must have indubitable evidence that the members of
the unlawful assembly constituted the statutory number of five, though some of them might not have
been named, or identified, or brought to trial. Rafiqul Islam Vs ,. The State, 13 BLD (AD) 117.
(49) Common object is distinctly different from motive. Motive has nothing to do with common
object. Prosecution' is not bound to prove motive. Motive may be a matter based on consideration in a
See. 149 Of Offences against the Public Tranquillity . 359

case mainly based on circumstantial evidence. Settled law is that prosecution does not fail even if
motive is not proved where there is direct evidence. Bangladesh Vs. Gaishuddin and other, 4 MLR
(1999) (AD) 29.
(50) The section creates a distinct and separate offence in the sense it imposes vicarious or
constructive criminal liability of the members of an unlawful assembly for any offence committed by
any member of such assembly in prosecution of the common object. Munsur Fakir and others V s.
State (Criminal) 55 DLR 307.
(51) When the section provides for vicarious or constructive liability of'one for an offence
committed by another, the section requires strict construction. Munsur Fakir and others V s. State
(Criminal) .55 DLR 307. .
(52) When five or more persons being armed with deadly weapons and forming an unlawful
assembly encircled the deceased and variously assaulted him who as a result died, each and every such
accused is equally guilty Of the charge of murder u/s 302 committed in furtherance of their common
object as contemplated by section 149 of the Penal Code. Ishaque Peada (Mridha (Md.) Vs. The State.
6 MLR 296 .
(53) It is a general principle that a person is liable for what he himself does and not for what other
persons do; This section is an exception to the general rule, in that it makes a member of an unlawful
assembly vicariously liable under the circumstances mentioned in the section for an offence committed
by another member of the assembly. AIR 1979 SC 1761.
(54) Section 149 of the Penal Code is declaratory of the vicarious liability of the members of an
unlawful assembly for acts done in prosecution of the common object of that assembly,or for such
offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of
that object. AIR 1960 SC 725.
(55) In order that this section may. apply the accused must be a member of an unlawful assembly.;
AIR 1970 SC 2. . .
(56). order that this section may apply the members of the assembly must have known that such
In
offence was likely to be committed in prosecution of the common object of the assembly. A IR 1970
SC 27. . .
(57) Where the common object of the unlawful assembly was to give a good thrashing to the
deceased, and no more, and the fatal blow by one of the accused to the deceased was not given in the
prosecution of the common object of that assembly, the other accused persons-could be held variously
liable for the fatal blow given by one of the accused. AIR 1982 SC 1224.
(58 The vicarious liability of the members of the unlawful assembly will apply only when the
offence has been committed in prosecution of the common object of the unlawful assembly or the
members of the assembly must have known that such offence was likely to be committed in
prosecution of the common object of the assembly. AIR 1978 SC 191.
(59) There are two ways In which the liability of A, a member of an unlawful assembly, may arise
for an offence committed by B, another member of the assembly:
(i) where the offence committed by B is the direct object of the assembly or, as has been
expressed in some cases, "immediately" connected with the common object" of the assembly;
(ii) where the common object of the assembly is to commit a particular offence X but B commits
another offence y which is not the common object of the assembly. In this case, A will be
360 Penal Code Sec. 149

liable for the offence Y only if he knew that such offence was likely to be committed in the
course of the prosecution of the common object to commit the offence X . AIR 1960 SC 725.
(60) Section applies not only to offences committed in prosecution of the common object but also
to offences which the accused knew was likely to be committed. AIR 1961 SC 1541.
(61) Offence committed not in prosecution of common object, nor known to be likely to be
committed—Other members not liable. AIR 1974 SC 753.
(62) Common object not murder—But assembly prepared to go any length to achieve common
object—Murder committed —All are liable. 1970 SCD 168.
(63) Different members of the unlawful assembly may, under this section, be liable for different
offences committed by other members of the assembly during the prosecution of the common object
according to the knowledge they individually , had as to the likelihood of the commission of the crime.
AIR 1972 SC 209.
(64) A, B, C, D,'E, F are-members of an unlawful assembly with the common object of ousting X
from his property and in the course of the prosecution of the common object A commits grievous hurt
which D knows is likely to be committed and C commits mischief by fire which B knows is likely to
be committed. D will-be liable under S. 326 read with S. 149 and B will be liable under S. 436 read
S. 149. Both B, D and other members of the assembly would be liable, in addition, for the offence
which was the common object of the assembly and which was committed in prosecution of such
object. AIR 1960 SC 725.
2. Section creates an offence.—(l) This section constitutes in itself a substantive offence. AIR
1979 SC 1509.
3. This section and S. 34.—(1) There are substantial differences between Ss. 149 and 34
although to some extent they may overlap. AIR 1963 SC 174.
• (2) This section creates a substantive offence; S. 34 does not. A IR 1956 SC 116
(3) A common object is different from a common intention. The former does not require a pre
concert and a common meeting of the minds before The assembly is formed Section 34 does require a
• prior common meeting of minds to perpetrate a crime. AIR 1963 SC 174.
(4) Section 34 applies only where the accused participates in the criminal act. This section on the
other hand punishes a member of an unlawful assembly where another member commits an offence in
prosecution of the common object. A IR 1963 Sc 118.
(5) The distinction between 'common intention' under S. 34 and 'common object' under S. 149
is of vital importance. Under S. 34 it has to be established that there was the common intention before
the participation by the accused. AIR .1971 SC 1444.
4. This section and S. 148.—(1) This section deals with cases of vicarious liability, where S.
148 deals with direct liability. There is no scope for reading S. 148 along with this section. AIR 1955
Assam 105.
(2) Where an accused was charged with offences under Ss. 324, 148 read with this section and was
acquitted of the charge of rioting, it was held that the accused could not be convicted under S. 324 read
with this section. A IR 1966 Mys 5.
(3) When an accused is acquitted ott charges under Ss. 147/148, P.C. he cannot be convicted.
under S. 302 read with S. 149. 1983 CriLJ 1029.
Sec. 149 Of Offences against the Public Tranquillity 361

5. This section and S. 396.--(1) This section would not ordinarily apply to the offence under S.
396 but where the unlawful assembly had existed from the very outset before, the dacoity with murder
was committed, and then the common object developed into one for committing dacoity and it was in
the course of the riot that occurred that such offence was committed this section can be applied. A IR
1935 Oudh190.
(2) Common object of accused only to commit assault with lathis and country-made pistol and pot
to commit dacoity but 2 of the accused while committing assault taking away victims guns—Held:
since assault was not made with object of thieving the guns, act did not amount to dacoity or to
robbery under S. 390—Hence, accused could not be held guilty under S. 395 or 397 but could be held
guilty under Ss. 323/324/149/147 and 148. 1983 A l/Li 33.
(3) Where the common object of unlawful assembly was to commit dacoity at all costs including
use of firearms the murder caused while committing dacoity.could be said to constitute a separate
transaction. 1980 CriLi (NOC) 131.
6. "If an offene is committed".—(l) Two opposing parties A and B each consisting of more
than five persons indulged in stone-throwing and a member of party B was hit by a stone throw by a
member of party A and was killed. It was held that the accused member of party A cannot be convicted
under this section but only under S. 147. AIR 1954 Mad 15.
(2) In a case of riot with murder if an old man and two children who were also accused has not
shared the intention to "kill", they cannot be convicted for murder but would be ciahvicted for the
actual offence committed by them. 1980 Raj Cr1 C 18.
7. Unlawful assembly.—(1) The existence of an unlawful assembly is a nece 5 sal ingredientof
the offence under this section. Where the existence of such assembly is not proved or the accused is not
a member of the unlawful assembly at the time of the commission of the offence, he cannot be convicted
under this section. A IR 1978 SC 1021.
(2) Where the prosecution fails to show that there was an unlawful assembly, a charge under this
section must fail. A IR 1954 Mad 785.
(3) The mere presence of the accused in or near an unlawful assembly cannot form the basis of a
conviction under this section unless the accused is shown to have shared in the common object of the
assembly. A IR 1978 SC 1647.
8. Five or more persons necessary.—(1) An assembly of less than five members is not an
unl4wful assembly within the meaning of S. 141 and cannot therefore form the basis for a conviction
under S. 147 or under this section A IR 1976 SC 1084
If it is proved that there were five or more persons with the common object specified in S.
141,-it is not necessary that the identity of all the five or more persons should be proved. A IR 1975
SC 19/7.
(3) Where it is doubtfW if there were five or more persons at all in the assembly with the common
object, t can not be assuned that there was an unlawful assembly, and this section ,would have no
application A IR 1954 SC 648
(4) Where the accused were lying in wait at different places, splitting themselves in smaller
groups and they joined together at the place of incident without much appreciable interval of time and
attacked the deceased jointly and in succession, it could be said; that all the accused must have been
animated by common object and become members of unlawful assembly. A IR 1983 SC 179
362 Penal Code Sec. 149
9. Common object.—(1) In order to constitute an assembly an unlawful assembly there must be
common object such as is specified in S. 141. AIR 1979 Sc 1504.
(2) Where the Court convicts any person or persons of an offence with the aid of S. 149 a clear
finding regarding the common object of the assembly must be given and the evidence discussed must
show not only the nature of the common object but also that the object was unlawful. Before recording
a conviction under S. 149, the essential ingredient of S. 141 must be established. AIR 1981 SC 1219.
(3) In order to constitute an unlawful assembly there must be a common object such as is specified
in S. 141. The Court must find with certainty that there were at least 5 persons sharing the common
object. A IR 1972 Sc 254.
(4) No overt act by the members of the assembly is necessary to attract the applicability of this
section. A IR 1979 sc 1504.
(5) The original common object may be abandoned and a fresh common object developed in the
course of the activities of the assembly; and in such cases excepting those members of the assembly
who proved that they did not share in the common object and were not parties to the commission of
the offence the other members will be liable. AIR 1975 SC 274.
(6) The questions whether an assembly had a common object at a given time, or what the
common object was is a matter of inference from the facts and circumstances of each case. AIR 1979
SC 1116. -
(7) The question whether an assembly had a common object at a given time, or what the common
object was in a matter of inference from the facts and circumstances of each case, such as the weapons
with which they were armed. 1978 CriL] 428 (431) (SC).
(8) Where thereis no proof of the common object or that the offence was committed in prosecution
of the common object or that the accused shared in the common object this section cannot be applied.
AIR 1978 SC 1759.
10. "Free fight."—(l) There is no common object in a "free fight" and the accused in such a case
cannot be convicted by having recourse to S. 149. AIR 1976 SC 2423.
11.. Right of private defence._–(1) An assembly acting in the exercise of the right of private
defence is not an unlawful assembly. This section cannot be applied to a member of such assembly.
AIR 1954 Sc .695.
(2) Where the plea of self-defence is not established, or the assembly exceeds the right of private
defence, the assembly will be an unlawful assembly. AIR 1979 SC 1230.
(3) Where the accused were aggressors and armed with various weapons then even if they had
received injuries from the victims of their aggression could not claim right of private defence. AIR 1981
SC 1379.
(4) Admitted enmity between two factions—Injuries on both sides—Nature of injuries on
prosecution party and gunshot injuries on accused party suggesting that attack by accused party
followed firing of pistol though nothing could be determined with certainly—Injuries on prosecution
party inflicted after pistol was snatched resulting in death of one of them —Held, accused had exceeded
their right of private defence and were guilty under S. 326 nw S. 149 though charge under S. 302 nw
S. 149 was not proved. AIR 1980 SC 864. -
12. "In
prosecution of common object."—(l) This section makes a member of an unlawful
assembly liable for an offence committed by another member of the unlawful assembly in two ways :(a)
Sec. 149 Of Offences against the Public Tranquillity 363

when the offence is committed in prosecution of the common object in the sense that the commission
of the said offence is the common object of the assembly and (b) where an offence which is not the
common object of the assembly is committed in the course of the prosecution of the common object,
and which accused knew was likely to be committed. AIR 1978 SC 1525.
(2) There is a clear distinction between the two parts of the section. Though the same expression
"in prosecution of the common object" is used in .both parts, yet the expression in the first part means
that the offence is immediately connected with the common object and in the second part, it means that
the offence committed is not the common object, but is committed during the prosecution of the
common object. 1975 Cr1LJ 1350..
(3) Where all the accused happened to be present in the street per chance and they did not know
that the deceased and his son could come out of their house with kirpan and Gandasi in their hands, the
provisions of S. 149 did not apply as there could be no meeting of minds between the accused and the
common object of the assembly could not be held to murder the deceased. 1981 CurLJ (Cri) 156
13. "Knew to be likely.—(l) The expression "know" does not refer to a mere possibility that
might or might not actually materialise. 1970 SCD 1085.
(2) In every case, it would be a question of fact whether it was an offence which the members of the
assembly knew to be likely to be committed in prosecution of the common. object. AIR. 1974 SC..
1564.
(3)The existence of knowledge may be reasonably inferred from the nature of the assembly, arms
carried or behaviour of the members of the assembly at or before the scene of action. A IR 1977 SC
1756.
(4) If knowledge may not necessarily be attributed to the other members of the assembly then their-
liability for the offence committed during the occurrence does not arise. AIR 1954 SC 695.
(5) Where the member of the unlawful assembly commits murder of a peaceful intervener, who
suddenly appears on the spot on hearing noise, in the absence of any evidence to the contrary it could
not be presumed that the remaining members of intervener was likely to be caused in prosecution of
common object thereof. They could not, therefore, be convicted under S. 302 read with S. 149. 1981
CriLJ 196.
14. At the time of committing that offence.—(l) A member of an unlawful assembly who ceases
to be a member, as when he retires from the assembly or gets disabled and separates himself from the
assembly cannot be convicted under this section. AIR 1974 SC 1228.
(2) Murder committed by accused after dragging victim out of a house carrying him away to a
chowk—Accused, member of unlawful assembly till deceased was dragged out of the house—Accused
cannot be convicted for murder with aid of S. 149. AIR 1981 SC 1223.
(3) 'Where one set of accused was alleged to be far away from the place of incident and was not
alleged to have played any role in the incident leading to murder and, as such, was given benefit of
doubt as a matter of abundant caution it would not mean that the other set actively participating in the
incident would also be equally entitled to such benefit. 1983 A11LJ 232.
15. Whether convicted under this section can only be for an offence of which the principal
offender has been convicted.--(1) Where a member of an unlawful assembly is convicted of murder,
such conviction will necessarily imply a findi g that he has committed grievous hurt as such offence is
only a minor offence which necessarily forms pact and parcel of the offence of murder. Hence in such a
364 Penal Code Sec. 149

ca' eA although the principal offence who is a member of an unlawful assembly is convicted of murder
other persons who are members of the unlawful assembly at the time when the offence is committed can
be convicted of the offenceof causing grievous hurt. AIR 1960 SC 725,
(2) Where the common object of the unlawful assembly is to cause grievous hurt to the opposite
party, but one member commits murder the other members of the assembly who did not know that
murder was likely to be committed, would not be liable for the offence of murder, but they would
certainly be liable for an offence under S. 326 the commission of which was the common object of the
assembly and which is a minor offence in its relation to murder. AIR 1969 SC 689.
(3) A member of an unlawful assembly may be convicted for an offence committed by another
member of that assembly pursuant to a common object even though the particular person charge as the:
principal offender is acquitted on some ground including absence of sufficient evidence to prove the
guilt of the accused beyond reasonable doubt. AIR 1951 All 660.
16. Separate conviction for separate offences.--(l) A conviction for an offence and also for an
aggravated form of the same offence will not be legal. Therefore, by application of this section a person
cannot be convicted of an offence as well as the aggravated form of the offence but can be convicted
only for one oflence. AIR 1957 Punj 278.

(2) Whçre one offence committed is part of or an element of the other. offence, e.g., where the
common obect of the. unlawful assembly was assault, and assault was cornnitted and both Ss.. 323 &
147 applied t\vo separate convictions and sentences are not justified. I90I Pun Re No. 4, P. 9.
(3) An unlawful assemly was formed with the common object of beating the opposite party.
Intention to commit murder was not proved. Only such person who committed murder would be liable
for offence of murder. Others would be committed undcf S. 323 read with Sec. 149 P.C. 1981 CriL..J
(NOC) 177.
(4) Three accused armed with knives, one wit,h pistol and three others bare handed—Conviction of
all accused under Ss. 302/14R. and further conviction of armed accused under S. 148 and barehanded
accused under S. 147—Held pn facts that S. 149 was not attracted; 1983 CriLJ (NOC) 86
17. Charge under Sectiop 149—Conviction under Section 34 and vice versa—Property.-41)
There need not be a specific charge under S. 34 when a charge is framed for an offence under Sec. 149.
AIR 1961 SC 1787.
(2) Where the charge undr.S. 149 falls through as there is no "unlawful assembly "the accused
can nevertheless be convicted for a substantive offence with the aid of S. 34 where such offence is
proved to have been committed by a number of persons (inclusive of the accused in pursuance of their
common intention. AIR 1976 SC 2273. .
18. Convictions for offnces under other enactments read with S. 149.—(1) The word
'offence' under S. 149 meansonly an offence under the Penal Code and does not cover offences
committed under other enactments. AIR 1953 Bhopal 8.
19. Sentence.—(1) For ar offence. under S. 302 read with S. 149 no sentence less than rigorous
imprisonment for life can be irpposed. AIR 1977 SC 709.
(2) Where the accused ws only a member of the assembly which chased the deceased and there
was no overt act on his part, sentence of two years R. I. was imposed on him having regard to his age.
A IR 1980 SC 17/6 . . .
Sec. 149 Of Offences against the Public Tranquillity 365

(3) Conviction of accused under S. 302/149 altered to one under S. 326/149 by High Court in
respect of accused other than actual assailant—Accused releaed on bail by Supreme Court after accused
had already undergone sentence of about 2.5 years—Case pending in Supreme Court for about 6
years—Sentence reduced to period already undergone in respect of accused other than actual assailant.
AIR 1983 SC 166.
20. Jurisdiction.—(I) A special Judge constituted under the Public Security Act is not
competent to try a case under Sec. 149 of the Code. AIR 1957 Madh Bha 134.
21. Burden of proof—Evidenee.—When the prosecution has proved its case, then it would be
for the accused if he so wishes to give evidence to rebut the prosecution case. AIR 1972 SC 2544.
(2) Section 302 read with S. 149—Deceased shot dead by accused with gun at the exhortation of
other accused who were also armed—All accused convicted by Sessions Judge on testimony of eye-
witness—Acquittal by High Court in appeal—Sole ground on which testimony of eye-witness was
rejected by High Court found to be baseless by Supreme Court—Order of acquittal set aside. AIR 1983
SC 187.
(3) Where of the two accused charged under S. .304/149 accused No. I was found to have exceeded
his right of private defence and accused No. 2 was not shown to have assaulted the deceased, charge
under S. 149 fails—Conviction of Accused No. I altered from one under S. 304/149 to one under S.
323, Accused No. 2 acquitted. AIR 1979 SC 1259.
(4) Where.the evidence showed that no less than 12 injuries were caused to the deceased and at
least one of them was ov the vital part of the body and the weapons used were lethal weapons it was
held that the accused were rightly convicted for the offence under Section 302/149, P.C. AIR 1977 SC
2040.
• (5) As participation of the appellants in the offence was not proved beyond doubt they were entitled
to benefit of doubt and to be acquitted. AIR 1977 SC 672:
(6) Where it is doubtful whether some members of the assembly shared the common intention to
murder and where their participation in the murder was small, they should be convicted for small
offences and not murder. AIR 1975 SC 1808.
(7) Where the case agaitist some of the accused whose conviction was maintained by the High
Court was not at all distinguishable from the case of other co-accused whom the High Court had
acquitted, the Supreme Court on appeal against acquittal reversed the acquittal and convicted the
accused. AIR 1974 SC 2267.
22. Practice.—Evidence—Prove: (I) That there was an unlawful assembly.
(2) That the accused was a member of that unlawful assembly.
(3) That he had intentionally joined or continued in such unlawful assembly
(4) That an offence was committedby a member of such assembly.
(5)That such offence was committed (a) in prosecution of the common object of such assembly or
(b) such as the members of the assembly knew to be likely to be committed in prosecution of the
common abject.
23. Procedure.—(l) The procedure on trial for an offence under this section shall be the same for
that offence committed with the exception that the offence under this section is not compoundable.
1972 CriLi 666 . . .
366 Penal Code Sec. 149

(2) Where there was evidence to show that the accused who were more than five, and armed with
deàdly weapons, shared the common intention to inflict injuries on the deceased and the eye-witness,
they could not be enlarged on bail. 1982 CriLJ (NOC) 57 (Kant).
(3) Hoe breaking and assault by an unlawful assembly—Identify of persons who had done some
overt act or taken an active part in commission of offence—Possibility of some of persons being mere
spectators having nothing to do with the commission of offences could not be reasonably ruled out—
Only those names mentioned by the complainant and the victim should be adopted which found
corroboration from the evidence of at least one of eye-witnesses. (1983) 2 Crimes 116
(4) Cognizable or not-cognizàble according as arrest may be made without warrant—Warrant
or summons, according as a warrant or summons may issue for offence—Bailable or not
bailable according as offence is bailable or not—Triable by the Court by which the substantive
offence is triable.
24. Charge^-(]) The charge under this section should specify clearly alrthe necessary ingredients
of the offence and which render the accused liable, viz., that he was a member of an unlawful assembly
with a particular common object, that an offence was committed by another in prosecution of the
common object or that an offence was committed by another member of the unlawful assembly, which
offence the accused knew to be likely to be committed in prosecution of the common object. A IR 1978
SC 1759.
(2) A defect in the charge will render the conviction bad if it has caused prejudice to the accused,
but not if it has cause no prejudice. A IR 1961 SC 803.
(3) An offence under a particular provision of the law read with S. 149 is a distinct offence and
must be specifically charged. AIR 1978 SC 1759.
(4) When an accused is charged only with an offence under this section read with the section
dealing with a substantive offence conviction in such cases for substantive offence would be bad if the
accused has suffered prejudice. A IR 1955 SC 419.
(5) Where an accused is charged only with an offence under this section read the section dealing
with a substantive offence, a conviction in such cases for substantive offence would not be bad if he has
suffered no prejudice. A IR 1925 Mad 1.
(6) Where the charge is for a major offence, e.g., Section 302 read with this section, the conviction
for a minor offence read with this section e.g., Section 326 read with this section, is not illegal. A IR
1966 SC 302.
(7) The charge should run as follows:
I (name and office of the Magistrate/Judge etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, were a member of an unlawful assembly , and in
prosecution of the. common object of which viz, in—one of the members—caused (specify the offence)
to—, and you are thereby, under section 149 of the P. C. guilty of causing the said (offence) and offence
punishable under section—of the Penal Code, and within my cognizance (or within the cognizance of
the Court of Sessions).
And I hereby direct that you be tried by the said Court on the said charge.
Sec. 150 Of Offences against the Public Tranquillity 367

Section 150
150. Hiring, or conniving at hiring, of persons to join unlawful assenibly.-
Whoever hires, or engages, or employs, or promotes, or connives at the hiring,
engagement or employment of any person to join or become a member of any
unlawful assembly, shall be punishable as a member of such unlawful assembly, and
for any offence which may be committed by any such person as a member of such
unlawful assembly in pursuance of such hiring, engagement, or employment in the
same manner as if he had been a member of such unlawful assembly, or himself had
committed such offence.
Cases and Materials
1. Scope.—(1) This section creates a specific offence. While under section 149 a person must be a
member of an unlawful assembly, under section 150 he need not be a member but yet be guilty ofan
offence which may be committed by a member in the circumstances set out in the section (A IR
1955(SC) 724). The words "hires ,engages or employs" mean to procure for use for the services to be
rendered. The hiring must be complete and the hirer and hired must come to an agreement. The word
"promotes" shows active assistance, and the word "connives" shows closing one's eyes and passively
allows the hiring (A IR 1974 SC 1256)
(2) Section 150 creates a specific offence. Under the section a person, though not actually a member
of an unlawful assembly himself., may be held guilty of being a member of an unlawful assembly and
may also be held liable for an offence which may be committed by a member of the unlawful assembly
in the circumstances mentioned in the section. A IR 1956 SC 274.
(3) While this section contemplates a particular unlawful assembly comprising the persons hired
by-the accused. S. 157 is widçr and provides for an occurrence that may happen hereafter and make the
harbouring, etc. of persons who may be engaged (hereafter) as members of an unlawful assembly, an
offence (1902) ILR 29 Cal 214(217). .
(4) The offence of hiring a person to take part in a riot is a separate and distinct offence from the
riot itself and ordinarily the hiring and the riot would be separate transactions. But circumstances may
justify holding that the hiring and the riot were parts of the same transaction. A IR 1925 Cal 903.
(5) Where a person is charged with an offence under S. 304 read with S. 150 and the charge against
him is a definite one of having engaged a person to commit culpable homicide not amounting to
murder, and the jury holds that the person engaged did not commit the culpable homicide the person
charged with having engaged him cannot be convicted of constructive homicide under S. 150. A IR
1925 Cal .903 (904): 26 CriLi 594. .
2. Practice.—Evidence--Prove: (1) That the accused hired or engaged etc. theperson in question;
or that he promoted or connived at such hiring. etc. In the case of connivance it should also be proved
(a) that the accused was legally bound to prevent the hiring; (b) that .he was physically able to prevent
it; and (c) that he did not prevent it, or do all that lay in his power towards preventing it.
(2) That such hiring,. etc. was to join, or to become a member of an unlawful assembly.
3. Procedure.—Cognizable—Not compoundable—Bailable or not bailable according as the
offence committed is bailable or not bailable—Triable by the Court by which the offence committed
is triable. .
368 Penal Code Sec. 151

4. Charge.—The charge should run as follows:

1, (name and office of the Magist rate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—hired (or engaged or employed or promoted or connived
at the hiring or engagement or employment) of one X Y to join as (or become) a member of an unlawful
assembly, and that the said XY as a member of such unlawful assembly in pursuance of such hiring or
engagement or employment committed (specify the offence and the person), and that you have thereby
committed an office punishable under sections 150 and—of the Penal Code and within my cognizance
(or cognizance of the Court of Session).
And I hereby direct that you be tried on the said charge.

Section 151
151. Knowingly joining or conihuing in assembly of five or more persons
after it has been commanded to dispérse.—Whoever knowingly joins or continues
in any assembly, of five or more persons likely, to cause a disturbance of the public
peace, after such assembly has been lawfully commanded to, disperse, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine, .or with both.
Explanation.— If the assembly is an unlawful assembly within the meaning of
section 141, the 'offender will be punishable under section 145.
Cases and Materials
I. Scope.— (1) This section should be read along with sections 127, 128 and 129 . CrPC. The
offence under this section consists In thedisobedience to the mandate of the law, which has o rdàd the
asmbly to disperse Tie assefrbly 'under this section ,eed not be i UiIawfiY'assembly It must only
be an. assembly' likely to cause a disturbance of the public peace. Section 151 can be invoked only if
there is command to disperse. AIR 1978 (SC) 1015.
(2) No man can be convicted for doing a lawful act merely because he knows that his doing the act
may cause somebody else to do an unlawful act. (1882) 9 QBD 308.
(3) The disobedience by the members of lawful assembly of the order to disperse given by
appropriate authority by knowingly joining or contuwmg w such 4sseib1y after the order will be an
offence under this section 410:'1925 All 165
(4) Where the object of only three persons was to draw a crowd of fitly or sixty persons and their
action was such as was calculated to cause ' disturbance of the public pece, It was held that the
gathering constituted an assembly of,"five or more" persons within the meaning of S. 151 and a refusal
to disperse after being commanded to disperse rendered every member of the gathering liable to
conviction under the section. (1882) 7 Born. 42. .
(5) The section does not apply to cases in which the assembly was unlawful from its inception or
had become so before the command for dispersal was given. AIR 1934 Lah 243.
(6) An assembly which is not unlawful in its inception does not become "unlawful' within the.
meaning .of.S. 141 merely because ,itco.ntinu'es without dispersing'in defiance of the lawful order to
disperse. A IR 1922 Lah 135. . . .
Sec. 151 Of Offences against the Public Tranquillity 369

(7) Dictionaries can not be taken as final authorities on the meanings of words used in acts of the.
Legislature, "as the plainest words may be controlled by a reference to the context". A IR 1962 Sc 955...
(8) In order to sustain a charge under S. 151 it is not sufficient merely that, in the opinion of the
Magistrate or police officer who ordered the particular assembly to disperse, such assembly was likely
to cause a disturbance of public peace; it is necessary to establish by evidence to the satisfaction of the
ôourt that the assembly was in fact likely to cause such disturbance. A IR 1954 Mys 58.
(9) The section only penalises a disobedience to a lawful command for dispersal. A IR 1978
sc 1021. .
(10) The criminal courts have jurisdiction to determine the legality of the command ,though the
police officer's opinion is relevant and of great weight. A IR 1933 Nag 277(282).'34 CriLi 705.
(11) An order, the disobedience to which is made penal under s. 151 is an order to disperse and
not any other order. A IR 1978 SC 1021.
(12) Command to disperse should be lawful. The essential ingredients , of offences under section
151 and .145 is that the accused is lawfully commanded to disperse after he joins or continues in an
assembly of five or more persons or in an unlawful assembly. If a person was not lawfully commanded
to disperse he does not come within the mischief of section 151 or section 145. In the accusations in
these cases it was not stated that the officer commanded the petitioner to disperse. Offering resistance is
distinct from commanding to disperse. Thus the accusations, as they are, do not constitute an offence
under section 151 of the Penal Code. For the same reason they do not also constitute an office under
section 145. Trial—Place of, Magistrate's discretion in the matter of choice of the place of trial other
than the Court should be announced by a formal order. A Magistrate can in his discretion hold trial at
any place other than the Court house but in the case it is essential that he should pass a normal order
declaring the place where the trial would be held. Unless a formal order is passed declaring that the trial
would be held in any specified place, the accused persons are likely , to be prejudiced in as much as, in
that case they are deprived of the , opportunity of having recourse to higher authority for redress if they
feel aggrieved by such order. 20 DLR 461.
2.. Practice.—Evidence—Prove: (1) That there was an assembly of five or more persons:
(2) That such assembly was likely to cause disturbance to the public peace.
(3)That it was commanded to disperse. .
(4) That such command was lawfully made. ..
(5) That the accused joined the assembly or continued in such assembly after it was commanded to
disperse.
(6) That the accused knowingly joined the assembly.
3. ProceduIe._Cognizable—Summons—Bai lab le--NOt compoundable—Triable. by any
Magistrate. . .
4. Charge.—The charge should run as follows: . . . :. .
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:-
That you, on or about the—day of--, at—, joined (or continued in) an assembly of five or more
persons likely to cause a disturbance of the public peace, after knowing thatsuch assembly had been:
lawfully commanded to disperse.and thereby committed an offence punishable under section 151 of the *
Penal Code and within my cognizance.
And L hereby 'direct that you be tried on the said charge.
37.0 Penal Code Sec. 152

Section . 152
152. Assaulting or obstructing public servant when suppressing riot, etc.—
Whoever assaults, or threatens to assault, or obstructs, or attempts to obstruct, any
public servant in the discharge of his duty as such public servant, in .endeavouring to
disperse an unlawful assembly, or to suppress a riot or affray, or uses,., or threatens, or
attempts to use criminal, force to such public servant, shall be punished with
imprisonment of either description for a term which may. extend to three yeas, or with
fine, or with both. . .
Cases and Materials
1. Scope.—(1) This section may be read along with sections 21, 141, 146, 159, 350, 251 of the
Penal Code. This section deals with active opposition shown to public servant in-the discharge of his
duty of suppressing a riot or affray. The public servant in the exercise of his lawful duties is protected if
he acts in good faith under colour of his office.
(2) Section 186 also deals with an offence of obstructing a public servant in the discharge of his
public functions. But this section is specific section dealing with obstruction caused under particular
circumstances and hence in case coming under this section it is this section and not S. 186 that will
apply. (1939) 17 Mys LR 461.
(3 m) Where the common object of an assembly of five or more persons is to commit the offence
under this section, S. 141, third clause will apply and render the assembly an "unlawful assembly".
A IR 1924 A ll 233.
(4) Where the Magistrate. gave the benefit of doubt to the accused and discharged him under S.
.152. He had jurisdiction to frame acharge for the offence of affary which was disclosed by the evidence.
A IR 1933 Sind 173. .
2. Practice.—Evidence—Prove: (1) That an unlawful assembly was held.
(2) That an endeavour to disperse such assembly was made.
(3) That the person endeavouring to disperse was a public servant.
(4) That the said public servant was then acting in discharge of his official ' duties'.
(5) That the accused knew of it.
(6) That the accused assaulted or threatened to assault or obstructed such public servant while.
discharging his duties.
3. Procedure, compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class or second cliss.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:-
That you, on or about the—day 'of—, at—, assaulted (or threatened to assault or used or threatened
to use criminal force to)—, a public servant, in the discharge of his duty as such public servant in
endeavouring to disperse an unlawful assembly (or to suppress a riot Or affary) and thereby committed
an offence punishable under section 152 of the Penal Code and within my cognizance.
And -I hereby direct that you be tried on the said charge.
Sec. 153 Of Offences against the Public Tranquillity 371

Section 153
153. Wantonly giving provocation with intent to cause riot--If rioting be
committed : If not committed..—Whoever malignantly or wantonly by doing
anything which is illegal, gives provocation to any person intending or knowing it to
be likely that such provocation will cause the offence of rioting to be committed, shall,
if the offence of rioting be committed in consequence of such provocation, be
punished with imprisonment of either description for a term which may extend to one
year, or with fine, or with both ; and, if the offence of rioting be not committed, with
imprisonment of either description for a term which may extend to six months; or
with fine, or with both.
Cases and Materials
1. Scope.— (1) To make out a case under section 153 of the Penal Code it must not only be
established that a provocation was given by the act complained of, but it must also be shown that the
act was done malignantly or wantonly. A mere charge of provocation, however, is not sufficient to
justify a conviction under section 153 of the Penal Code If the riot was not committed the accused
would be liable under the first clause, if it was, then the offence would be punished under the second
clause. "Wanton" means recklessly. 'Malignantly' means maliciously, virulently inimical.
(2) In order to make out a case under this section, it is essential to establish:
(i) that the accused did an act which is illegal,
(ii) that by such act hd gave provocation to Others,
(iii) that he did so malignantly or wantonly, and
(iv) that he did so (a) intending that the provocation will cause the offence of rioting-to be
committed or (b) knowing it to be likely that such provocation will cause the offence of
rioting to be committed. A IR 1966 Orissa 192.
(3) The section is not ultra vires the Constitution. A IR 1971 Born 56
(4) A 'malignant act' means a wrongful act done intentionally without just cause or àxcuse. AIR
1962 Madh Pra 292.
(5) The word 'wantonly' means 'recklessly', 'thoughtlessly', without regard for right or
consequence. AIR 1952 Pat 138.
(6) The word 'illegal' is applicable to everything which is an offence or which is prohibited by
law or which furnishes ground for a civil action. This section cannot apply unless that act of the
accused causing provocation is illegal. (1903) ILR 26 Mad 554.
(7) Where the accused deliberately threw bricks at a temple hoping that the Hindus would believe
that the bricks came from a nearby Mahomedan quarter and that thereby the Hindus would be enraged
against the Mahomedans and there would be a riot between them but nobody was hurt by the act, it
was held that the throwing of a brick at a temple is not an offence and is not prohibited by law and that
thereforeJie act of the accused was not illegal. AIR 1928 All 745.
(8) The section applies to such provocative words or acts as do not amount directly to instigation
or abetment but which involve the doing of some illegal act, which infuriates the feelings of the people
who ultimately come to riot. The section implies instigation in the sense of causing a riot by an illegal
act, which originates the feelings of anger of a so far peaceful assembly. AIR 1933 Born 162.
.1'

372 - Penal Code •Sec. 153A

(9) The act of killing a cow by a Mahommedan not done in the presence of any Hindu would not
amount to giving provocation, though on subsequently hearing - of it the religious feelings of Hindus
would be very much hurt. A IR 1919 411 307.
(10) A mere chance of provocation is not sufficient to justify a conviction under this section. A IR
1966 Orissa 192.
2. Practice.—Evidence—Prove: (I) That the accused did an act which was illegal.
(2) That the illegal act was the cause of provocation.
(3) That he did it malignantly or wantonly.
(4) That such rioting was committed in consequence of such wanton provocation.
(5) That he did this intending or knowing it to be likely that such provocation may cause a riot to
be committed.
3. Procedure.—Cognizable—Warrant (if riot be committed), otherwise, Summons—Bailable-
Not compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows-
I, (name and office qf the Magistrate) hereby charge you (name of the accused) as follows:-
That you, on or about the—day of—, at—malignantly (or wantonly) by doing—which was
illegal, gave provocation to—intending (or knowing it to be likely) that such provocation would cause
the offence of rioting to be committed, and thereby committed an offence punishable under section 153
of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 153A
2 [153A. Promoting enmity between classes.—Whoever by words, either
spoken or written, or by sings or by visible representations, or otherwise promotes,
or attempts to promote, feelings of enmity or hatred between different classes of 3[the
citizens] of 4 [Bangladesh], shall be punished with imprisonment which may extend to
two years, or with fine, or with both.
Explanation. — It does not amount to an offence within the meaning of this section
to point out, without malicious intention and ' with an honest view to their removal,
matters which are producing, or have a tendency to produce, feelings of enmity or
hatred between different classes of [the citizens] of 4[Bangladesh].
• Cases and Materials : Synopsis
1. Scope and object of the section. 4. Promotes or attempts to promote feelings of
enmity or hatred.
2. Constitutional validity. 5. Forfeiture— Criminal Procedure Code,
3. "Mens real. Section 994 and this section.

2. This section was added by the Indian Penal Code Amendment Act, 1898 (Act IV of 1898), S. 5.
3. The words within square brackets were substituted" for the words "Her Majestry's subjects" by AD., 1961 (w.e.f. 23-3-
56).
4: The word "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973, Second Sch. (w.e.f. 26th March,
1971).
Sec. 153A Of Offences against the Public Tranquillity 373

6. Practice 9. Sanction
7. Procedure 10. Sentence
8. Charge 11. Revision
1. Scope and object of the section.—Section 153A of the Penal Code has been worded
generally to apply to all classes of citizens and not to classes to be distinguished on grounds of
religion, race, language, caste or community. This section applies where the hatred or enmity is created
between different classes of people of Bangladesh. If a book promotes feelings of enmity or hatred
between different people of the same class that would not come within the mischief of this section
(PLD 1961 Kar 129, 1961 PLR 818 FB). It must be recognized that in countries where there is
religious freedom certain latitude must of necessity be considered. In respect of the free expression of
religious opinions together with a certain measure of liberty to criticise the religious belief of others it
is contrary to all reason to imagine that liberty of citizen includes a licence to use abusive language (29
CrLJ 963). Where a book contains passages in it which might be construed to create some feeling of
disaffection against the rich and the wealthy, but it is not easy to hold that they have a direct effect of
actual promotion of ill-feeling or hatred, patticularl as the theme is a conflict between capitalism and
labour throughout the world and in all stages of history, the book cannot be said to contain
objectionable matter within the meaning of section 153A and the benefit of doubt should be given to
the accused (AIR. 1936 A ll 561). For conviction under section 53A there must clearly be an intention to
promote feelings of enmity and hatred between different classes of subjects (PLD 1962 Lah 850). In
order to ascertain the intention . of the accused the offending article or the pamphlet must be read as a
whole and the circumstances attending the publication must also be taken into account. Adverse
criticism however pungent misdirected or unjust, against a Ministry or a Government 'does not
properly fall within the purview of section 153A(AIR 1945 Sind 106). Explanation appended to section
is not the same as a proviso. Therefore explanation to section 153A cannot be used to enlarge, the
provisions of the substantive section any more than a proviso can be used to enlarge the provision to
which it is a proviso (A IR 1926 Cal 1133). The first and the most important ingredient in the
connotation of the term "class" is that the words used must point to a well—defined and readily
ascertainable group of subjects: In the second place some element of stability in the group would have
to be present before there can be an attempt to excite enmity against the group. Thirdly, the group
indicated must be sufficiently numerous and widespread to be designated a "class" (34 CrLf 231).
(2) Limits of religious controversy. The honest preaching of a creed, which a man sincerely
believes will lead to the salvation of humanity, being an effort worthy of emulation, the injury
attendant thereon may be ignored. But a limit must be drawn somewhere, and even a laudable effort
knows limits. It is the limit where controversy ends and malice begins, that is to say, where the speech
or writing does not further the ends of the controversy and says a thing which could be left unsaid
without injuring the controversy, or saying it, not exactly "with sweets", but with a little bitterness as
can be brought to the occasion. The law visits not the honest errors, but the malice of mankind. A
willful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse
appliea to a sacred subject, or by willful misreprsèntations or artful sophistry, calculated to mislead
the ignorant and unwary, is the criterion and test of guilt.. A malicious and mischievous intention, or
what is equivalent to such an intention, in law as well as morals a state of apathy and indifference as to
the interest of society, is the boundary between right and wrong. 7 DLR (FB) Lah 17.
• (3) The object of the section is to prevent various classes from coming in to conflict by mutual
abuse and recrimination and is intended to prevent, breaches of public tranquillity which might result
374 - Penal Code Sec. 153A

- from exciting feelings of enmity between different religious, racial or language groups or castes or
communities. A IR 1954 Pat 254..
(4) Where the articles published in the newspaper, promoted the feeling of enmity, hatred and ill-
will between two communities on grounds of community under the guise of political thesis or
historical truth; the conviction under S. 153A held was proper. AIR 1980 SC 763.
(5) Clause (a) must be construed as implying that the promotion of enmity and hatred between
different communities or groups must be such as to be prejudicial to public order; etc. AIR . 1962
SC 955.
(6) An offence under this section has been considered as an offence involving moral turpitude. AIR
1922 All 140.
(7) The offence under this section is distinct from and not a necessary ingredient of the offence of
attempting to excite disaffection against the Govt. established by law. But it is also possible that the
same article published in a newspaper cr.iminates its author under Section 124A and S. 153A. AIR
1925 Sind 59.
(8) It is not necessary for the application of this section that the hatred and enmity between the
classes must be reciprocal. It may be merely unilateral AIR 1927 Lah 594.
(9) It is not necessary for the application of this section that the hatred and enmity between the
classes must be reciprocal. Nor is it necessary to prove that, as a result of the objectionable matter,
hatred or enmity was in fact caused between the different classes. AIR 1971 Born 56.
(10) The section will apply only to cases were the words etc. of the accused can besaid to be
prejudicial to public order. Although Section 124A only makes the excitement of hatred.and contempt
against the Government established by law an offence and does not expressly refer to any tendency to
cause public disorders words importing the need for such tendency should be treated as necessarily
implied in the section and there would be no offence under the section unless the impugned words were
held..to have such tendency. AIR 1962 SC 955. .. .
2. Constitutional validity.—(l) This section is not ultra vires the ConstitUtion.in view of the
words "in the interest of public order" in articles 37,38 and 39 Of the Constitution. AIR 1971 Born 56.
3. Mens rea.- (I) Intention to promote hatred and enmity apart from what appears in the
writing itself, is not .a necessary ingredient of the offence. It is enough to show that the language of the
writing is of a nature calculated to promote feelings .of enmity or hatred, for, a person must be presumed
to intend the natural consequences of his acts. AIR 1971 Born 56.
4. "Promotes or attempts to promote feelings of enmity or hatred".—(l) A Hindu who
ridicules the Mohmmedan Prophet not out of any eccentricity but in prosecution of a propagand started
by a class of persons who are not Mohammedans, must be held to promote feelings of enmity and
hatred between Hindu and Mohammedans and is guilty under this section. AIR 1941 Oudh 310.
(2) Though a mere criticism of a religion or of a religious leader, whether dead or alive, may not
fall within the ambit of this section, .the writing of a scurrilous nature and foul attack on such a
religious leader would prima facie fall .un4er this section. AIR 1927 Lah 494.
(3) Adverse criticism, •however pungent, misdirected or unjustified against a Ministry or a,
Government (although such Ministry may have been formed on a communal basis) will not come
within the ambit of this section. A IR 1945 Sind I06(109; 46 Cr1LJ 674. '
Sec. 153A Of Offences against the Public Tranquillity 375

(4) Where an article only emphasised the danger of good feelings between the two communities
becoming strained due to delay in enforcing a .particular Act, it was held that no offence was committed
under this section. A IR 1965 Pat 393(397); 1965 (2) CriLJ 401.
(5) The impugned writing should be read as a whole in order to find out whether a publication
tends to promote hatred between different sections of the public. AIR 1971 Born 56.
(6) Rational criticism of religious tenders, couched in restrained language, is no offence either
under Section 153-A or under S. 295-A 1971 CriLJ 19773.
(7) The political party 'Telgu Desam' cannot be denied an election symbol by the Election
Commission on the ground that the use of the word 'Telgu Desam' arouses chauvinism and sectarian
tendencies and helps to propagate sessionist ideas. A IR 1983 A ndPra 96.
5. Forfeiture—Criminal Procedure Code, Section 99A and this section.—(l) Any newspaper,
book or document containing matter, the publication of which is punishable under this section is liable
to be forfeited to the Government in accordance with the provisions of S. 99A of the Criminal P.C. But
the scope of S. 99A, Criminal P.C. is wider than that of this section. AIR 1957 All 538.
(2) The scope of S. 153-A cannot be enlarged to an extent with a view to thwart histoly. An article
containing a. historical research cannot be allowed to be thwarted on a plea that the publication of such
a material would be hit by S. 153A, 1983. criLi 1446. . .
(3) Criminality under S. 153-A does not attach to the things said or done but to the manner in
which they are said or done. If the words written or spoken are couched in temperate, dignified and.
mild language, and do not have a tendency to insult the feelings or the deepest religious convictions of
any section of the people, penal consequences do not follow. AiR 1980 All 149. .
6. Practice.—Evidence—Prove: (I) That the accused promoted or attempted to promote feelings of
enmity or hatred between different classes of the citizens of Bangladesh.
(2) That he did so by Words, or by signs, or by visible representations or otherwise.
7. Practice.—Not cognizable—Warrant---Not bailable—Not compoundable—Triable by any
Magistrate.
8. Charge— (1) There is no misjoinder of the charges when an accused is charged with offences
under Ss.-124A and 153-A, Penal Code, in asingle trial. (1910) 11 C'riL.J 583.
(2) The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, by speaking (or writing) the words—(or by signs, or
by visible representations), viz.—promoted (or attempted to promote) feelings of enmity (or hatred)
between (specify the classes) the citizens of Bangladesh and thereby committed an offence punishable
under section 153-A of the Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.
9. Sanction.---(l) No court shall take cognizance of this offence unless upon complaint made by
order of, or under authority from, the Government or some officer empowered by the Government in
this behalf (Section 196 CrPC). Where sanction given by the Government under section 196 CrPC
related only to an offence under section 124-A, the accused cannot be convicted under section 153-A,
when it is found that he cannot be convicted under section 124A AIR . 1948 Nag 71.
376 Penal Code Sec. 153B

(2) A complaint made by order of, or under autl4rity from, the Government or some officer
empowered by the Government in this behalf is necessary before a Court can take cognizance of an
offence under this section. AIR 1962 Pal 2.
(3). The Magistrate can issue a warrant of arrest under Section 196(3) of the Criminal Procedure
Code to facilitate investigation by police officers in appropriate cases. AIR 1962 Pat 2.
10. Sentence.— (1) Evidence regarding the truth of the statements made by the accused would be
relevant on the question of sentence to be passed in the event of his conviction even if it may be
insufficient for the purposes of proving him to be innocent of intending to promote class hatred. AIR
1926 Lah 195.
- (2) Where the offences charged under Sections 124-A and 1 53A. were not very serious and the
accused appeared to be rather more of a silly young fool than a dangerous agitator, the Court held that a
lenient punishment would meet the ends of justice. (1940) 42 Pun LR 382.
11. Revision.— (1) If the court had wrongly applied Section 153-A to a speech, the order can be
revised by the Superior Court empowered to revise it. AIR 1932 La/i 559.

Section 153B
5 [ 153B. Inducing students, etc. to take part in political activity--Whoever by
words, either spoken or written, or by sings, or by visible representations, or
otherwise, induces or attempts to induce any student, or any class of students, or any
institution interested in or connected with students, to take part in any political
activity 6 [which disturbs or undermines, or is likely to disturb or undermine, the
public order] shall be punished with imprisonment which may extend to two years, or
with fine, or with both.]
6a[Explanation. _In this section "political •activity" includes activities like
processions, strikes, demostrations, and meetings arranged for a political purpose.]
Cases and Materials
1. Scope.—(1) Trial under this section is not possible. A new offence has been created by
this section but no consequential amendment was made in the CrPC even in the Law . Reforms
Ordinance, 1978 to provide a mode for its trial.. Under the circumstances no trial can be held under this
section.
(2) Offence under section 153B of the Penal Code which has been newly inserted by Ordinance No
LXX of 1962 and which deals with inducing students etc. to take part in political activity is non-
cognizable, non-bailable and non-compoundable. The Legislature wholly omitted to provide for
procedure governing investigation, prosecution and trial of an offence under section 153B of the Penal
Code. The High Court cannot lay 'down any such procedure. The primary and, sole duty of a Court of
law is to interpret and not to legislate. 16 DLR 690
2. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by any
Magistrate. .

5. Sections 153B was inserted by the Pakistan Penal Code (Second Amendement) Ordinance, 1962 (Ord. LXX of 1962),
s.2.
6. The words within square brackests were inserted by Act XX of 1964, s. 2.
6a. The Explanation was added by Ordinance No. LXXVI of 1962, S. 2.
Sec. 15 4. Of Offences against the Public Tranquillity . 377

Section 154
154. Owner or 'occupier of land on which an unlawful assembly is held.
Whenever any unlawful assembly or riot takes place, the owner or occupier of the
land upon which such unlawful assembly is held, or such riot is committed, and any
person having or claiming an interest in such land, shall be punishable with fine not
exceeding one thousand 7 [taka], if he, or his agent or manager, knowing that such
offence is being or has been commitied, or having reason to believe it is likely to be
committed, do not give the earliest notice thereof in his or their power to the principal
officer at the nearest police-station, and do not, in the case of his or their having
reason to believe that it was about to be committed, use all lawful means in his or their
power to prevent it and, in the event of its taking place, do not use all lawful means in
his or their power to disperse or suppress the riot or unlawful assembly.
Cases and Materials
I. Scope.—(l) This section may be read along with sections 141 and 146 of the Penal Code. This
section contemplates three different breaches of duty: (a) omission to give notice of a riot or unlawful
assembly, (b) abstention from preventing it, and (c) negligence to suppress it.
(2) The language of the section is clear that the basis of the liability is the omission to do the
things mentioned in the section, namely:
(i) Omission to give notice of the unlawful assembly or riot to the authorities when it takes
place; . .
(ii) Omission to prevent such assembly orriot, if it is likely to take place;
(iii) Omission to disperse or suppress the riot when it does take place. (1901) 5 CaIW N 771.
(3) Being a penal provision the section is to be strictly construed and the liability to punish-
ment for the neglect of a statutory obligation cannot be extended by inferential reasoning. (1901) 5
Ca1WN 771. .
(4) Very great caution is required before proceedings are started under this section. A IR 1924
Cal 1018.
(5) In order to convict a person of an offence under this section, the following facts must be
established: (i) that an unlawful assembly is held or riot has taken place on the land owned or occupied
by the accused or in which he claims an interest; (ii) that he or his agent, knowing that such an offence
is being or has been committed, or having reason to believe that it is likely to be committed does not
give the earliest notice thereof to the principal officer in. the nearest police station; (iii) that he or his
agent, having reason to believe that it was about to be committed does not use all lawful means in his
power to prevent it, and (iv) that he or his agent, in the event of its taking place, does not use all
lawful means iii his power to disperse or suppress the riot or.unlawful assembly. (1906)8 CriLJ27.
(6) Where the agent or the manager has the required knowledge or reason for belief, it is not
necessary that the owner should also have such knowledge or reason for belief. (1901)5 CaIWN 771.
(7) Where the agent or the manager has the required knowledge or reason for belief it is not
necessary to show that the owner or occupier was aware of the knowledge or the intention of the agent.
A IR 1924 Cal 1018. .. .
01
7. Subs, by Act VIII of 1973, s 3 and 2nd Sch,, for "rupees" (w.e.f. 26th March, 1971)
378 Penal Code Sec. 155

(8) A Police Officer has no power under this section, to issue a temporary injunction or any orders
restraining owners or occupiers of property from enjoying possession of the same. 1979 CriL] 175.
2. Practice.—Evidence—Prove: (1) That a riot took place.
(2) That the land upon which it was committed was owned or occupied by the accused, or that
accused had or claimed an interest in the land upon which it was committed.
(3) That the accused (or his agent or manager) knew that it was being, or had been, committed or
had reason to believe that such riot was likely to be committed.
(4) That the accused (or his agent or manager) omitted to give by the earliest notice in his power
to the principal officer at the nearest police station.
(5) That the accused (or his agent or manager) omitted to use all lawful means in his power to
prevent such riot, or to suppress it if it had taken place.
3. Procedure.—Not cognizable—Summons—Bailable-Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (Name and office of the Magistrate) hereby charge you (name Of the accused) as follows:
That you, (or your agent or manager) on or about the—day of—, at—, knowing (or having reason
to believe) that an assembly of five or more persons,the common object of which was to—was likely
to be (or was being or had been) held on certain land situated at—or which you are the owner (or
occupier) (in charge under section 155) or in which you have a claim or interest as in the land , and that
force or violence was likely to be (or was being or had been) used in the prosecution of the object of the
assembly, did not give the earliest notice thereof in your (or his) power to the principal officer at the
Police Station at—and did not use all lawful means in your (or his) power to prevent it (or disperse or
suppress the riot or unlawful assembly) and that thereby you committed an offence pun ishableunder
section 154, Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 155
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 in the subject of any dispute which gave rise to the riot, or who has accepted
or derived any benefit therefrom, such person shall be punishable with fine, if he or
his agent or manager, having reason 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.
Cases and Materials
I. Scope of the Section.— (1) Where two persons demand kabuliyats in respect of certain land
from tenants and there is no evidence to show that they demanded the same on their own behalf, it is
not proper to convict them under this section for claiming a false interest in land. AIR 1914 Cal 634.
Sec. 156 Of Offences against the Public Tranquillity 379

(2) A conviction under the section for a riot which occurred not in respect of the Khalyan itself but
with respect to the right to collect rent from the tenants is maintainable. AIR 1917 Pat 523.
(3) Knowledge on the part of the owner or occupier of land of the acts or intentions or the agent is
not an essential element of an offence under the section and he may be in entire igporance of the acts of
his agent or manager. AIR 1924 Cal 1018.
(4) In a case where the accused persons are charged under this section and some of them are also
charged for rioting which is the foundation of the former charge the trial for the offence under this
section ought to be postponed till the disposal of the rioting case. A IR 1920 Pat 700.
(5) The records of another case should not be looked into as evidence in a trial for the offence under
this section. A IR 1914 Cal 634.
2. Practice.—Evidence—Prove: (1) That the riot was committed.
(2) That it took place with respect to some land or that it arose out of some dispute.
• (3) That the accused was the owner or occupier of such land or claimed an interest therein or
claimed some interest in the subject of such dispute.
(4) That such riot was committed for the benefit or on behalf of the accused or that the accused
accepted or derived som&benefit therefrom.
(5) That the accused or his agent or manager had reason to believe,
(a) that such riot was likely to be committed, or
(b) that the unlawful assembly, which committed such riot, was likely to be held.
(6) That the accused, his agent, or manager did not respectively use all lawful means etc.
(a) to prevent such assembly or riot from taking pace, or
(b) for suppressing and dispersing the same.
(Note: No Conviction could be made unless it is shown that the accused had interest in the land.)
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by an
Magistrate.
4. Charge.— The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, (or your agent or manager) on or about the—day of— at—knowing that an assembly of
five or more persons, the common object of which was to—was likely to be held on certain land
situated at—of which you are the owner (or occupier) or in which you have a claim or interest as in the
land and that force or violence was likely to be used in the prosecution of the object of the assembly,
did not give the earliest notice thereof in your power to the principal officer at the police station at—
and did not use all lawful means in your power to prevent it (or disperse or suppress the riot or
unlawful assembly) and that thereby you committed an offence punishable under section 155 of the
Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 156
156. Liability of agent of owner or occupier for whose benefit riot is
committed.—Whenever a riot is committed for the benefit or on behalf of any person
380 Penal Code Sec. 157

who is the owner or occupier of any land respecting which such riot takes place, or
who claims any interest in such land or in the subject of any dispute which gave rise
to the riot, or who has accepted or derived any benefit therefrom,
the agent or manager of such person shall be punishable with fine, if such agent or
manager, having reason 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 use all lawful means in his power to prevent such riot or assembly from taking
place, and for suppressing and dispersing the same.
Cases and Materials
1. Scope.— (1) In order to sustain a convition under the section it must be proved:
(i) that the riot as defindd in this Code was committed;
(ii) that the riot which was committed was for the benefit of or on behalf of the person who is the
- owner or occupier of or the person claiming an interest in, the land respecting which such riot•
took place orwho claims an interest in the subject of dispute;
(iii) that the accused had reason to belive that such riot was likely to be committed or that the
unlawful assembly is likely to be held; -
(iv) that the accused did not use all lawful means in his power to prevent the riot or assembly
from taking place and to suppress and disperse the same. (1884) !LR 10 Cal 338.
(2) Where the evidence established a state of affairs from which a reasonable inference could be
drawn that the agent or the manager of the accused must have known that the riot was likely to take
place and that he did not take all proper steps for the purpose of preventing such riot the conviction
under this section would be proper. (1.900) 4 Cal WN 691.
2. Practice.—Evidence----Prcjve: (1) That a riot was committed.
(2) That the riot if committed, was committed for the benefit of the accused.
(3) That the accused had reason to believe that riot was likely to be committed.
3. Procedure.—Not cognizable—Bailable—Not compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused ) as follows:
That you (or your agent or manager) on or about the—day of—at—knowing (or having reason to
believe) and an assembly of five or more persons, the common object of which was to—was likely to
be held on certain land situated at—of which you are the owner (or occupier) or in which you have a
claim or interest as—in the land and that force or violence was likely to be used in the prosecution of
the object of the assembly did not give the earliest notice thereof in your power to the principal officer
at the Police Station at—and did not use all lawful means in your power to prevent it (or disperse or
suppress the riot or unlawful assembly) and that thereby you committed an offence punishable under
section 156 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 157
157. Harbouring persons hired for an unlawful assembly.—Whoever
harbours, receives or assembles in any house or premises in his occupation or charge,
Sec. 158 Of Offences against the Public Tranquillity 381

or under his control any persons, knowing that such persons have been hired, engaged
:or employed, or are about to be hired, engaged or employed, to join or become
members of an unlawful assembly, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine, or with both.
Cases and Materials
1. Scope.—(1) Section 157 is of wider application. It provides for an occurrence that may happen
and makes the harbouring, receiving, or assembling of persons, who are likely to be engaged in any
unlawful assembly, an offence. There again, the law contemplates the imminence of an unlawful
assembly and the proof of facts which in law would go to constitute an unlawful assembly. (1902) ILR
29 Cal 214.
(2) Where the accused as charged-for havinj harboured certain persons who were alleged to have
formed an unlawful assembly in the past for the commission of an offence the accused cannot be
convicted under this section. A IR 1931 Cal 712.
(3) To support a conviction under this section it must be shown that for the purpose of an unlawful
assembly the persons were hired or engaged or employed. A IR 1931 Mad 440.
(4) Volunteers engaged for preparing salt cannot be said to have been hired or engaged or employed
by their leader for purposes of forming an unlawful assembly. A IR 1931 Mad 440.
2. Practice.—Evidence—Prove: (1) That the house or premises in question was or were in the
occupation or charge of, or under the control of, the accused.
(2) That the accused harboured, received, or assembled therein the persons in question.
(3) That such persons had been hired, engaged, or employed, or were about to become so, to join
or become members of an unlawful assembly.
(4) That, when the accused did as in (2) above, he knew that such persons had been so hired, etc.
for that purpose.
3. Procedure.---Cognjzable__-summons_Baj1ab1_Not compoundable—Triable by any
Magistrate.
4. Charge.— The charge should run as follows:-
I, (name aid office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—harboured, received or assembled in any premises in your
occupation or charge or control and the persons named knowing that such persons were hired, engaged
or employed or about to be hired or engaged or employed to become members of an unlawful assembly
and thereby committed an offence punishable under section 157 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

Section 158
158. Being hired to take part in an unlawful assembly or riot.—Whoever is
engaged or hired, or offers or attempts to be hired or engaged, to do or assist it doing
any of the acts specified in section 141, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine, or with both;
382 Penal Code Sec. 159-160

Or to go armed.—And whoever, being so engaged or hired as aforesaid; goes

armed, or engages or offers to go -armed, with any deadly weapon or with anything
which used as a weapon of offence is likely to cause death, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Cases and Materials
1. Scope.—(1) Even in the absence of an unlawful assembly in existence or in contemplation the
offence under this section can be committed whereas the offence under Ss. 150 and 157 can only be
committed in view, of an unlawful assembly in existence or in contemplation. (1902) ILR 29 Cal 214.
2. Practice.—Evidence- . –Prove: (1) That the engagement or hiring of the accused, or the offer Or
attempt by the accused to become so -
(2) That the object of such engagement or hiring was to do or assist in doing, an act which would
make an assembly an unlawful one (section 141).
Prove also (for the first part of the section) where the accused went or offered to go armed with a
deadly weapon.
3, Procedure.—Cognizable– Summons (if the case comes under the first clause) warrant (if it falls
in the second)—Bailable—Not compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby change you (name of the accused) as follows:
That you , on or about the—day of—, at—, engaged or hired (or offered or attempted to be -hired
or engaged ) to do or assist in doing( here specify the act which amounts to an offence under section
141) and went armed ( or offered to go armed) with a deadly weapon ( or with which used as a weapon
of offence) was likely to cause death and thereby committed an offence under section 158 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 159
159. Affray.—When two or more persons, by fighting in a public place, disturb
the public peace, they are said to "commit an affray. - -
Cases and Materials
1. For cases and materials on section 159, see under section 160.

Section 160
- 160. Punishment for committing affray.—Whoever commits an affray, shall be
punished with imprisonment of either description for a term which may extend to one
month, or with fine which may extend to one hundred 8[taka], or with both. -
8.
The word "tak-a" was substituted for the word "rupees" by Act VIII of 1973, Second Schedule (w.e,f 26th march,
1971
Sec. 160 Of Offences against the Public Tranquillity 383

Cases and Materials Synopsis

1. Scope. 8. Practice and procedure: Cases.
2. Affray. 9. Conviction under Section 160— W hen bars
3. Fight. second trial.
4. Public place. 10. Sentence,
5. Disturb the public peace, 11. Practice.
6. Affray and rioting. 12. Procedure.
7. Affray and right of private defence. 13. Charge.
1. Scope.—The word "fight" connotes a bilateral act in which two parties participate and it will
not amount to anaffray, when the party who is assaulted submits to the assault without resistance. To
constitute an affray there must be a fight. Fightingconnotes.necessarily a.context or struggle for
mastery between two or more persons against one another. A struggle or a, context necessarily implies
that there are two sides each of which is trying to obtain the mastery, so that unless there is some
violence offered or threatened against one another there could be no fight but only a mere assault or
beating. There must be a definite disturbance of public peace due to the fight in the public to make the
offence an affray.
2. Affray.—(1) To constitute an affray as defined in Section 159 there must be (i) a fighting. (ii)
between two or more persons, (iii) in a public place, and (iv) consequent disturbance of the public
peace. I Weir 71.
(2) Where there is no finding as to who was the second person concerned in the fight, there can be
no charge for an offence of affray under this section. AIR 1933 Mad 813.
(3) The offence of affray being a joint offence, each person concerned in it taking part in the fight,
the Court must be satisfied that each one of the accused took an active physical part in the process of
fighting before convicting him of the offence. 1983 CriLJ(NOC) 97.
3. Fight.— (1) A fight is an essential element in any affray and necessarily connotes a context or
struggle for mastery between two or more persons against one another in which each of the two sides is
trying to obtain mastery over the other. 1962(l) CriLl 339.
(2) Where one person attacks and the other retaliates, it is legally correct to say that the two
persons are fighting. AIR 1931 All 8.
(3) Where, one hearing the cries of help from the accused, twenty-persons rushed to the spot but
none of them attacked the complainant nor did the complainant do anything to bring the matter to the
pitch of fight, it was held that there was no affray within the meaning of S. 159. AIR 1952 All 788.
(4) An answering war cry or an active nonviolent resistance by one party to the violence used by
the other party, is sufficient to constitute as 'fight'. AIR 1950 Mad 408.
4. Public place.— (1) A place which is dedicated in the use of the public or to which the public
can go as of right is, of course, a public place. A IR 1951 Orissa 51.
(2) The question whether a place is a public place or not does not necessarily depend on the right
of the public as such to go to the place. The places where the public are actually in the habit of going
m.ust also be deemed to be apublic place for the purpose of the offence of affray. AIR 1937 Mad 286.
(3) A place may be a public place even though it is the private property of an individual. Where a
place is owned privately and there is no dedication to the public the question whether it is a public
384 Penal Code Sec.. 160

s 'actually made of it by the public. (1904)

place depends upon the character of the place itself and the use
/ CriLJ 349.
(4) Where there is evidence that the owner has taken action against the trespassers and ejected
them, the place cannot be said to be a public place even though the public might have occasionally
used it without any interference. (1905)2 CriL.J 46.
(5) A private well used by the public is a public place. A IR 1916 Nag 15.
(6) A small open space, not closed by gates adjoining a Hindu temple and forming part of its
compound was held to be a place of public resort for the purposes of the Town Nuisance Act, 1889,
though other religionists were excluded from its precincts. It was observed that it was not necessary
that every member of the public should have a right of access to a place in order to make it a place of
public resort. A IR 1917 Mad 124.
(7) The finding that the scene of occurrence is public place must be distant and clear. Where there
is a doubt about the same, Conviction under this section would not be justified. 1974 MadLW (Cri)6.
5. 'Disturb the public peace'.— (1) The 'ord affray' is derived from the French 'affrayer'
meaning that which affrights or puts in fear or terrifies. A IR 1931 A ll 8.
(2) For a charge under S. 160, it is a matter of importance to ascertain how the public peace was
disturbed. There must be an indication of a definite disturbance of the public peace due to fight in a
public place. A IR 1933 Mad 843.
(3) Where the evidence only shows that the people gathered on the public road and caused
inconvenience to the public, the offence of 'affray' is not made out, as 'disturbance of the peace' and
'causing inconvenience to the public' are different notions. 1962(l) CriLJ 330.
(4) Where a fight took place in an open field in which about 25 persos.took part in throwing
stones and a crowd of about 150 to 300 was present at the spot, the very presence of a large, number of
public at the time of the disturbance which lasted at least for a quarter of an hour, showed that the
members of the public must have been alarmed by reason of the fight and that there was sufficient
breaking of the public peace within the meaning of S. 159. A IR 1937 Mad 286.
6. Affray and rioting.—(1) Although an assembly of persons may not be found guilty of
rioting ( the case not being covered by s.146), the member of the assembly may be guilty of
committing an 'affray' under this section. 1957 MPLJ 111.
(2) Where two factions engage in a , fight and injuries are caused to persons on both side but it is
not proved who actually caused the injuries and there is no proof of common intention, the accused
cannot be convicted under Section 323 on the presumption that some persons must have caused the
injuries. The proper conviction would be under S. 169. A IR 1921 A ll 261.
7. Affray and right of private defence.—(l) Section 168 is controlled by Section 96, P.C.
which provides that nothing is an offence which is done in exercise Of the right of private defence. A
party charged with committing an affray can plead that he exercised that right of private defence and if
he establishes it he cannot be guilty of the offence under this section 1933 Mad W N 721.
(2) Two persons, A and B, met and after abuse came to blows. Each one struck the other down.
Others also participated in the quarrel. B died of the injuries. There was no evidence that A alone was
the assailant of B. It was held that A could be convicted only under S. 160 and not under Part II ofS.
304 here was nothing to choose between the fighters. (1912) 13 CriLJ 718 (Lah).
Sec. 160 Of Offences against the Public Tranquillity 385
8 Practice and procedure: Cases.—(l) Where an accused is charged with causing grievous hut,
he cannot be convicted of an offence of affray under this section without framing a fresh charge against
him. A IR 1933 Mad 843.
(2) Where an accused is being tried for an offence under this section, he cannot be convicted for an
offence under S. 290 of the Code as the ingredients of the latter offence differ from those of an affray of
which he was charged. AIR 1959 Mad 513.
9. Conviction under S. 160—When bars second trial.—(1) The test for determining the
legality of the trial of a person more than once is whether the offence for which he is being tried
subsequently is distinct from the offence for which he was previously tried. As the offence of causing
hurt is distinct from that of affray, the trial and conviction of the accused under S. 160 of the Code is
no bar to.a subsequent trial under S. 323 on a complaint filed by one of the parties to the affray. AIR
1955 Mys 138.
10. Sentence.—(1) Where an accused is charged with an .offence under S. 160, the maximum
sentence under which is an imprisonment of one month or a fine of Rs. 100, it is not necessary to fix
the amount of bail bond at Rs. 1,000 or even Rs. 500. A IR 1960 Punj 572.
11. Practice.—Evidence—Prove: (1) That the accused and another person or other persons were
fighting.
(2) That such fight was in a public place.
(3) That the fight disturbed the public peace.
(Note: A conviction under this section on a prosecution initiated by the police, would be no bar to
a subsequent trial under section 323 on a complaint laid by the party injured.)
12. Pr9cedure.— Not cognizable—Simmons—Bailable—Not comoundable—Triable by any
Magistrate/Village Court.
13. Charge.—The charge should run as follows: .
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—by--fighting with each other (or with—) in a public place
disturbed the public peace and thereby committed an offence punishable under section 160 of the Penal
Code and within my cognizance. -
And [hereby direct that you be tried on the said charge..

01
CFIAPTERIX
Of Offences by or relating to Public Servants

Chapter Introduction.— A s this Chapter is intended to reach offences which are

committed by public servants, and are of such a description that they can be committed
by public servants alone, so the next Chapter X deals with the 1,contempt of the lawful
authority of public servants in its various forms which can only be committed by members
of the public in relation to such public servants. A s this Chapter is intended to ensure
probity among public servants, the next Chapter creates certain obligations on the part of
the public to assist public servants in the discharge of their duty. It must not be
understood that this Chapter is an exhaustive Code for public servants, since the State can
make rules for the conduct of its own servants, though it cannot regulate the morality of
the public at large, beyond, that implied in the enactment of this Code. Misconduct and
abuse of their power by persons other than public servants have to be left to be otherwise
dealt with by the penal visitation of a Criminal Code.
Those offences which are common between pubic servants and other members of the
community, are left to the general provisions of the Code. If a public servant embezzles
public money, he is left to the ordinary law of criminal breach of trust. If he falsely
pretends to have disbursed money for the public, and by this deception induces the
Government to allow it in his accounts, he is left to the ordinary law of cheating. If he
produces forged vouchers to back his statement, he is left to the ordinary law offorgery.
There is no reason to punish these offences severally when the Government • suffers by
them than when private people suffer, since the security of Government lies in the purity
of its administration without which it would lose both revenue and prestige.
This Chapter does not provide punishments for all kinds of misconduct of public
servants, and this the authors of the Code were not unaware of They also admitted that
the punishments enacted in the Chapter are not properly proportioned, either to the evil
which the abuse of power produces, or to the depravity of a man who, having been
entrusted with power for the public benefit; employs that power to gratify his own cupidity
or revenge. But the penalty of an offence committed by a public functionary in the
exercise of his public functions has been fixed on the supposition that it will often be only
a part, and a small part of the penalty which he will suffer. It is in the power of the
government to punish him for many acts which the law has not made punishable. "It is in
the power of the Government to add to any sentence pronounced by the courts, another
sentence which will often be even more terrible ". Such a sentence may consist of
degradation or dismissal, the infliction of which must be left to the executive government
which may be trusted to suppress and punish corruption and oppression.
Sec. 161 Of Offences byor relating to Public Servants 387

This Chapter makes the receiving of a bribe an offence while another punishes the
giver as an abettor. The authors did not, however, consider this course advisable, being
of opinion that, in many cases, the receiver is the tempter and the giver has no option. In
other words, bribes in this country partake of the nature of extortion. But the Legislature
has followed the normal law, and has made both the giver and the receiver criminally
liable. Besides the normal cases of bribes, public servants are prohibited from using their
office to benefit themselves in more indirect ways. The authors of-the Code instanced two
such cases viz, a deposit made with a private banker who pays the heavy rate of interest,
and a house taken on low rent and furnished with costly furniture. Illegal grat/Ication
may take other forms, which may be penalized by the promulgation of rules for the
conduct of public servants as mentioned in Sec. 166 Cases not covered by that section
would, the authors hoped, be dealt with bythe executive Government.

Section 161
161.. Public servant taking gratification other than legal remuneration in
respect of an official act.—Whoever, being, or expecting to be, a public servant,
accepts or obtains, or agrees to accept, or attempts to obtain from any person, for
himself or for any other person, any gratification whatever, other -than legal
remuneration, as a motive or reward for doing or forbearing to do any official act, or
for showing or for bearing to show, in the exercise of his official functions, favour or
disfavour to any person, or for rendering, or attempting to render, any service r
disservice to any person, '[with the Government or Legislature], or with any public
servant, as such, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
Explanations. - "Expecting to be a public servant".— If a person not expecting to
be in office obtains a gratification by deceiving others into a belief that he is about to
be in office, and that he will then serve them, he may be guilty of cheating, but he is
not guilty of the offence defined in this section. -
"Gratification". —The word "gratification" is not restricted to pecuniary
gratifications, or to gratifications estimable in money.
"Legal remuneration ". — The words "legal remuneration" are not restricted to
remuneration which a pubic servant can lawfully demand, but include, all remuneration
which he is permitted by the 2 [authority by which he is employed], to accept.
"A motive or reward for doing".— A person who receives a gratification as a
motive for doing what he"does not intend to do, or as a reward for doing what he has
not done, comes withiii these words. .. . .

I.. The words "with the Central or any provincial Government or Legislature" were first substituted for the words "with the
Lesgislative or Executive G. of I., or with the Govt. of any Presidency, or with any Lieutenant-Governor" and than the
word "Government" was substituted for the words "Central or any Provincial Government" by Act VIII of 1973 Second
Schedule (w.e.f. 16th March 1971).
2. Substituted by the Criminal Law Amendment Act, 1953 (Act XXXVII or 1953);s. 2 for "Government, which serves".
388 Penal Code Sec. 161

Illustrations
(a) A , a Munsf obtains from Z a banker, a situation in Z's bank for A 's brother, as a
reward to A for deciding a cause in favour of Z. A has committed the offence defined in
this section.
(b) A , holding the office of 3 [Consul at the court of a 4 [foreign] Power, accepts a lakh
of 5 ftakaj from the Minister of that Power. .11 does not appear that 4 accepted this sum as
a motive or reward for doing or forbearing to do any particular official act, or for
rendering or attempting to render any particular service to that Power with the
6[Government of Bangladesh]. But it does appear that A accepted the sum as a motive or
reward 'for generally showing favour in the exercise of his official functions to that Power:
A has committed the offence defined in this section.
(c) A , a public servant, induces Z erroneously to believe that A 's influence with the
Government has obtained a title for Z and thus induces Z to give A money as a reward for
this service. A has committed the offence defined in this section.
Cases and Materials : Synopsis
1. Scope. 10. Abetment of offence under this section.
2. Public servant. 11. Cognizance of an investigation into cases.
3. "A ccepts or obtains or agrees to accept or 12. Sanction to prosecute.
attempts to obtain". 13. Evidence and proof
4. "Or for any other person ' 14. Trap witness.
5. Gratification other than legal remuneration. 15. Punishment.
6. "As a motive or reward" 16. Practice
7. Official act. 17. Procedure
8. "W ith any public servant, as such" 18. Charge
9. Capacity and intention to do the act not 19. A ppeal and revision.
necessary.
1. Scope.—(l) This section should be read along with section 21 of the Penal Code and Criminal
Law Amendment Act (XL of 1958). Act XL of 1958 is a special Act and excludes the operation of the
corresponding provisions of the Code of Criminal Procedure including Law Reforms Ordinance, 1978
by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure"
(PLD 1956 FC 152). Act XL of 1958 is a procedural law. The Schedule appended to Act XL of 1958
(section 5) shows sections 161 to 166, 168, 217, 218, 403, 409, 417 to 420, 465 to 468, 471 to 477A
of the Penal Code and as attempts, abutments, and conspiracies in relation thereto or connected
therewith when committed by any public servant as such or by any person acting jointly with or
abetting or attempting to abet or acting in conspiracy with any public servant as such are offences
punishable under the Prevention of Corruption Act, 1947 exclusively triable by the Special Judge
appointed under Act XL of 1958. The Schedule appended to CrPC Schedule 11 column 5 and 8 as

3. Substitution by A.O., 1961 Aft. 2 and Sch., for "Resident" (with effect from the23rd March, 1956).
4. Subs, ibid., for "subsidiary" (with effect from the 23rd March, 1956).
5. The word "Taka" was substituted for the word "Rupees" by Act VIII of 1973 (with effect from the 26th March, 1971)..
6. The original words "Britissh Government" have seccessively been amended by A.O., 1961 (w.e.f. 23-3 . 56) and Act
VIII of 1973 (w.e.f. 26-3.71) to read as above.
Sec. 161 Of Offences by or relating to Public Servants 3
regards those sections aforesaid are not applicable. The Criminal Law Amendment Act of 1958 was
enforced to provide for more speedy trial and more effective punishment of certain offences as mentioned
in the Schedule of the said Act.. It supplements the provisions of the Prevention of Corruption Act,
1947. According to the provisions of Act XL of 1958 and Act II of 1947, the procedure for trial is
under chapter XX, CrPC when an accused appears or is brought before the Special Judge the substance
of accusation shall be stated to him and he shall be asked if he has any cause to show why he should
not be convicted. A conviction without taking of any evidence and purporting to be based on a plea of
guilt cannot be sustained (PLD 1960 Dhaka 213). When the accused was not given an opportunity to
explain admission, his Conviction was set aside (PLD 1952 FC 1). If the Court does not find the
accused guilty he must record an order of acquittal. Na order of discharge can be passed. All the
offences triable, under Act XL of 1958 and Act 11 of 1947 are non-bailable. The jurisdiction of the
Magistrate to grant bail extends till the Special Judge takes cognizance of the case. The Special Judge
has . no jurisdiction to call upon the accused to furnish security for the appearance before the Magistrate
(PLD 1965 Kar 362). With the general degeneration of public morals nowadays, the procedure relating
to the trial of offences under Act XL of 1958 and act 11 of 1947 have been materially changed. The
subject of bribery and corruption is very side. So the law relating to the offences of bribery and
corruption should be made more stringent and punishment awardable should be much heavier. The
words "bribe" and "gratification" are not defined in the Code. The explanation to section 161. of the
Penal Code extends the sense of the word "gratification" which was not restricted to pecuniary gain
only, or to gratification estimable in money. The word is used in its wider sense connoting anything -
which affords satisfaction, gratification or pleasure to the taste, appetite of the mind, the satisfaction of
one's desire whether of mind or of the body beiflg gratified. Thus, the granting of a certain distinction
for himself or to someone in whom the object is interested or carnal intercourse with someone, would
equally be bribery. Money is a . great source of affording pleasure, since it implies power over thighs,
which give pleasure. Thus, bribery or illegal gratification is benefit or reward given to incline one to
act contrary to the rules of honesty or integrity, and to influence one in his behaviour in office. In a
, word, the main requirement under this section is the receipt of illegal gratification by a public servant
as a motive or reward for the abuse of official position by the receiving of the bribe by himself showing
favour or by getting the favour done by some other public servant at his instance (AIR 1956 (SC) 476).
(2) No reliable evidence—to support the prosecution case—Conviction can still be based on
circumstantial evidence—Conviction cannot be upheld as there is no direct evidence—No evidence to
prove the demand—No circumstantial evidence so compelling in nature to reach no other conclusion
than the guilt of the accused. Accused entitled to acquittal. Separate punishment is legal under section
161, Penal Code and under section 5(2) of Prevention of Corruption Act as the offence under those two
sections are distinct and different. 10 BCR 56.
(3) Bribe was taken from police constable for expediting the passing of arrear bill and prosecution
case established beyond reasonable doubt on the contention that non-examination of some other persons
who were present in the room where the bribe money was said to have been demanded and accepted the
conviction could not be sustained. Held—the mere fact that some other persons were present in the
room where the occurrence took place does not vitiate the conviction as it does not appear as to which
other persons who have not been examined actually saw the occurrence. 1 BSCD 341.
(4) Illegal gra tification—prosecution failed to prove taking of bribe by the accused—Magistrate
developing illicit connection and found in compromising position with a woman who was a party in
criminal cases pending before him. The Act of taking money as bribe and the 'attempt to take illegal
390 Penal Code Sec. 161

gratification in kind are two distinct offences having no nexus between them. No separate charge for the
latter framed. As regards the first set of facts Court below found the accused not guilty. As regards the
second set of facts of the conduct of Magistrate, no such narration in the FIR. That in return for either
the satisfaction of his sexual lust by the informant's wife of enjoyment of her company, the accused.will
show favour to them in cases pending in his Court—No second trial or retrial presumption can be
rebutted from the evidence and circumstances of the case. In the absence of aicy arrangement or
understanding or any inducement given by the accused (Magistrate) that he would show favour in the
cases pending in his Court in return for either the satisfaction of his sexual lust by Harunnessa or the
enjoyment of his company. By no stretch of imagination can it be said that the attempt of the accused
to have illicit act on the informant's wife was in return for showing favour to them in the cases pending
in the Court of the accused (Magistrate). The conduct of the accused in developing unusual intimacy
with Delwar Hosain (informant) and his visit to his house to outrage the modesty of his wife was not
made the subject matter of offence under section 161 of the Penal Code. The act of taking. money as
bribe and the attempt to take illegal gratification in kind are two distinct offences having no nexus
between them. No useful purpose would be served by sending the case back for the retrial simply on
account of the fact that the accused respondent was found in a compromising position with a woman
who was party in two criminal cases pending before the Magistrate. The presumption. from this fact can
be rebutted from the evidence and circumstances of the case. 1 BSCD 241.
(5) The mere fact of recovery of tainted money from the possession of the accused does not prove
charge of bribery under section 161, Penal Code. Before it can be said that the money was offered as a
motive or reward for any of the.purposes mentioned in section 161, Penal Code. A connection must be
established between the performance of the official act and the demand or payment of money. It is
improper on the part of the prosecution to remove the original statement of the defence witness recorded
under section 161 of the Code and replace it with one which is said to be a copy of the original one. 22
DLR 195.
(6) Investigation about the offence of receipt of bribe money does not commence when the demand
for bribe was made. Statement by an accused person in a trap case under Anti-Corruption Act to a
Magistrate or a police officer is admissible in evidence and not being one in the course of investigation
is not as such hit by sections 164 or 364, CrPC The question before the Supreme court which fell for
decision were when does investigation commence in a case under Anti-Corruption law— Whether the
statement made by an accused person to a Magistrate conducting the trap after the raid and recorded by
him without observing the formalities of section 164, CrPC.is admissible in evidence— Held: If the
accused person makes .a statement in presence of a police officer or a Magistrate before the case is
registered in presence of a police officer or a Magistrate before the case is registered and investigation
commences they will be competent witnesses to the commission of the offence and the statement made
by the accused in their presence will notwithstanding the provisions of section 164, CrPC be
admissible in evidence. Statement of the Government servant recorded at the tim .e of recovery of the
bribe money from him by a Magistrate will not attract the provisions of section 164, CrPC. The trap
evidence was invoked in the sub-continent for a very long time and no one challenged its legality.
There is a well-known adage that a Judge must wear all the laws of the country on the sleeve of his
robe. 21 DLR(SC) 182.
(7) It is not essential to prove demand of illegal gratification. Conscious acceptance is to be
proved. There is no authority for the proposition that making demand for illegal gratification is an
essential ingredient of the offence under section 161 of the Penal Code. Conscious acceptance of any
Sec. 161 Of Offences by or relating to Public Servants 391

such gratification makes a public servant liable to punishment under section 161 of the Code. It is the
duty of the prosecution to prove that there was conscious acceptance of the money by the accused. It
has not been held that in the case of Anwar Ali Mia vs. State the proof of demand of illegal gratification
is a condition precedent to the conviction under the said section. It cannot be said that there can be no
conviction under section 161 where demand of illegal gratification has not been proved. 20 DLR 587.
(8) Discovery of currency not form the person of the accused does not necessarily prove that it was
given as abribe. What happened in this case as this: The accused who was a Head Master of a school
as said to have demanded a certain amount of money for admission of a student in his school. The
complainant agreed to pay Rs. 5 and before he actually paid the amount informed the Anti-Corruption
Department and after that paid the accused a five-rupee currency note with its number recorded by the
Anti-corruption officer beforehand. The accused put the money in his pocket and soon after that the
Anti-Corruption Officers approached him and on search found the note in his pocket. Held: In these
circumstances the offence under section 161, Penal Code cannot be said to have been .proved against the
accused. What has been proved is that a five-rupee currency note, the number of which was entered in a
separate paper, was fond in the upper chest pocket of the shirt of the accused and the District Anti-
Corruption officer and other officers of the trap party placed the accused under arrest; This fact does not
and cannot lead to the conclttsion that the five rupee currency note was given by Dayem Chowdhury to
the accused as illegal gratification. 20 DLR 407.
(9) Offence is committed when demand for bribe is made. The offence under section 161, Penal
Code or for that matter that of criminal misconduct under the Prevention of Corruption Act, 1947 is
'committed the moment a demand for bribe is made by a public servant. In a trap case confession of the
accused before a Magistrate supervising the trap is a judicial confession and such confession must be
recorded under sections 164 and 364 failure of which renders it inadmissible. "Investigation" when
deemed to begin agreement to receive bribe, and actual receipt of the bribe are two offences—
Investigation begins at different moments. Trap—Statement of accused made before Magistrate
conducting trap operations. Where and when not admissible at trial. 20 DLR(W P) 48.
(10) Bribe for past favour equally an offence, offence is complete if the bribe-giver is led to believe
that the act would go against him if he does not give bribe. The bribe or illegal atification may well
be a bribe even if it is paid as a reward for favour shown in the past. Whether the act to be done in
consideration of a reward amounts to a favour or not or an official act or not is not very relevant, if the
person giving the bribe is led to believe that the act would go against him if he did not give the bribe.
13 DLR 270.
(11) Offences under section 161 of the Penal Code and under section 5 of the Prevention
of .Corruption Act, 1947 are distinct and dissimilar offences. More than three offences cannorbe
combined in one trial, either under section 234 or 235 or 239 of the Code of Criminal Preëdure.
12 DLR 100.
(12) Under section 161 of the Penal Code and the corresponding section of the Prevention of
Corruption Act, 1947, attempts to obtain any graificatiori is as much an offence under those sections as
actual acceptance or receipt of a bribe. Where the accused attempted to receive bribe and in order to get
it he put pressure on the complainant and his attempt would have succeeded but for certain;
circumstances. Held: The offence of attempt under section 161, Penal Code was complete. (Ref 10
DL 43 W P Karachi). 11 DLR (SC) 103.
392 Penal Code Sec. 161.

(13) Impression of the bribe-giver that the officer is in position to show official favour is the real
test in charge under section 161. On a charge under section 161, Penal code the real point is not
whether the particular public servant was at the particular time in a position to render the official's
service sought but whether the accused person-wa g under the impression that he was in a position to
show favour in the exercise of his official functions. 9 DLR 67.
(14) Trivial amount alleged was paid as gratification—Court may decline to presume it as such. It
was contended on behalf of the prosecution that, since the accused admitted the acceptance of Rs 6
though denied it was on account of illegal gratification; it was immaterial whether the prosecution had
succeeded in establishing that it was paid by way of illegal gratification or not. Held: where the amount
of the alleged gratification was only Rs. 3 the amount was such a trivial one thatit was hardly to have
been accepted by the accused as illegal gratification. 8 DLR 562.
(15) Conviction both under section 161, Penal Code and under .section 5(2) of Act II of 1947 valid
but sentence can be awarded only under either of the two. Under section 26 of the General Clauses Act,
the accused could have been charged under either or both of the enactments but could not be punished
more than once for the same offence. (Ref .7 DLR 302). 8 DLR (SC) 145.
(16) Real point to see in regard to a charge under sections 161/116 is not the guilty intention or
mens rea of the public officer, but the mens rea of the bribe-giver. In regard to a charge under section
161 read with section 116 of the Penal Code the real point to see is not whether the public servant was
in a position to render the official services sought but whether the accused person was under the
impression that the public servant was ina position to show favour in the exercise of his official.
function. That is the material test. It is mens rea of the man who offers the bribe rather than the men's
reá of the person who takes the bribe that is material. It is true that it has been held that the bribe must
be taken by the bribe-taker in order to do something within the exercise of his official functions, but
that is a necessary ingredient in cases which come under section 116 alone. 4 DLR 543.
(17) There is no authority for the proposition that making demand for illegal gratification is an
essential ingredient of the offence under section 161, Penal Code. In order to prove this offence it is the
duty of the prosecution to prove that there was conscious acceptance of the bribery money by the
accused. AKM Mukhlesur Rahman Vs. State 45 DLR 626.
(18) When factum of recovery has, not been proved by independent and disinterested witnesses, it
would be unsafe to find the guilt of the accused under section . 1,61, Penal Code. 4KM Muklesur
Rahman Vs. State 45 DLR 626.
(19) The act for which the illegal gratification is to be paid or received as already over before the
commission of the alleged offence and in such circumstances it will be most unsafe to hold a person
guilty. A KM Msukhlesur Rahan Vs. State 45 DLR 626.
(20) Bribe was taken from police constable for expediting the passing of a arrear bill—prosecution
case established beyond reasonable doubt—on the contention that non-examination of some other
person who were present in the room where the bribe money was said to have demanded and accepted
the conviction could not be sustained. Held: the mere fact that some other persons were present in the
room where the occurrence took place does not vitiate the conviction as it does not appear as to which
other persons who have not been examined actually saw the occurrence. 1 BSCD 241.
(21) In the absence of any arrangement or understanding or any inducement given by the accused
(Magistrate) that he would show favour in the cases pending in his court in return for either the
See. 161 Of Offences by or relating to Public Servants 393

satisfaction of his sexual lust by Harun Nessa or the enjoyment of his .company by no stretch.pf
imagination can it be said that the attempt ofthe accused to have illicit act on the informant's wife was
in return for shown favour to them in the cases pending in the Court of accused (Magistrate). The
conduct of the accused in developing unusual intimacy with Deiwar Hossain (informant) and his visit
to his house to outrage the modesty of his wife was not made the subject matter of offence under sec.
161 of the Penal Code. The act of taking money as bribe and the attempt to take illegal gratification in
kind are two distinct offences having no nexus between them—No useful purpose would be sered by
sending the case back for retrial simply on account of the fact that the accused respondent was found in
a compromising position.with a woman who was a party in two criminal cases pending before the
Magistrate. The presumption from this fact can be rebutted from the evidence and circumstances of the
case. IBSCD 241.
(22) Before anoffence is held to fall under this section the following requirements have to be
satisfied: ..
(i) the accused at the time of the offence was, or expected to be, a public servant;
(ii) that he accepted or obtained or agreed to accept, or attempted to obtain from some person a
gratification; V

(iii) that such gratification was not a legal remuneration due to him; and
(iv) that he accepted the gratification in quetion as a motive or reward for— ..
.
(a) doing or forbearing to do an official act; or ..
(b) showing or forbearing to show favour or disfavour to someone, in the exercise of his official
functions; or V

(c) rendering or attempting to render any service or disservice to someone, with the
Government or Parliament or the Legislature of any State. or with any public servant. AIR
1969 SC 12. . . .. .
(23). This section deals with three categories of cases:-
(i) Acceptances of gratification other than legal remuneration as a motive or reward .for doing or
forbearing to do any official act; . . . . .
(ii) Acceptance of gratification other than legal remuneration for showing or forbearing to show,
in the exercise of his official functions, favour or disfavour;
(iii) Acceptances of gratification other than legal remuneration for rendering or attempting to
render any service or disservice to any person with the Government or Parliament or with any
Legislature or local authority, Corporation or Government Company or with any public
servant, as such. 1949 A l/Li 326; 26 CriLJ 1367. . . .
(24) The Prevention of Corruption Act may be said to be an aggravated form of the offences under
this section and S. 165, and clauses (a) and (b) apply to cases of habitual bribe-taking by public
servants.. AIR 1957 SC 458. . V
V

(25). If a man obtains a pecuniary advantage by the abuse of his position he will be guilty under
the Prevention of Corruption Act Ss. 161, 162 and 163 refer to a motive or reward for doing or for
forbearing to do something, showing favour or disfavoür to any person or for inducing such conduct by
the exercise of personal influence. It is not necessary for an offence under Cl. (d) to prove all this. It i
.enough if by abusing his position as a public servant a man obtains for, himself any pecuniary
advantage, entirely irrespective of motive or reward for showing favour or disfavour. AIR 1956 SC. 476.
394 Penal Code I
Sec.. 161
(26) Case under Prevention of Corruption Act—Marked currency notes recovered from pocket of
shirt which accused was wearing—Accused must show how he came into possession of notes. A IR
1973 SC 910.
(27) The Prevention of Corruption Act and S.161 of the Code. A IR 1970 Sc 356.
2. Public, Servant.—(1) This section will apply to a public servant who is on leave, as he cannot
be said to have ceased to be a Public servant. Such leave counts as duty and so long as a person is on
duty he must be deemed to be a public servant. A IR 1948 Mad 63.
(2) Under S. 137 of the Railways Act (1890) a servant of the Railways is a public servant for the
purposes of offences under Chap. 9 of this Code and this section occurs in Chapter 9. A IR 1959 SC 847.
(3) Minister is a public servant and the necessary consequence is that the sanction under
Prevention of Corruption Act. Sanction is a must for his persecution. ILR (1983) Born 2098.,
(4) M.L.A. was not and is not a "public servant" within S. 21. A IR 1984 SC 684.
(5) Servant of Road Transport Corporation not apublic servant within the meaning of S.21, P.C.
A IR 1964 SC 492.
(6) The definition of "public servant" governs all provisions of Prevention of Corruption Act. A IR
1979 SC 358.
(7) Assistant Civil Engineer employed by Cooperative Society is not an officer of the society
within the Cooperative Societies Act, but a mere employee. He is therefore, not a public servant u/s.
161 read with S.21, P.C. 1981 Cr1LJ 1718.
(8) Where a Civil Court purported to act under its inherent powers, and appointed a
Commissioner on the application of defendant for seizing the account books of the plaintiff, it was held
that the Commissioner so appointed was not a public 'servant and an offer of a bribe to him did not fail
under S. 165A of the Code. A IR 1961 SC 218.
(9) A Minister is an "officer subordinate to the President" through whom the President exercises
his executive powers. A IR 1945 PC 156.
3. Accepts or obtains or agrees to accept or attempts to obtain".—(l) The words "obtains or
attempts to obtain" include threat and extortion. A IR 1956 SC 476.
(2) To ask for a bribe is an attempt to obtain one and a bribe may be asked for as effectively in
implicit as in explicit terms. A IR 1958 Madh Pra 157.
(3) Since an allurement was given by the Food Inspector that he would not take sample of milk
vendor which is a part of his official duty if the latter made to him monthly payment, the Food
Inspector will come within the clutches of the offence under S. 161. 1980 A ll CriR 430.
(4)It is not essential that the payment of illegal gratification should be made into the hands of the
public servant in order to attract the operation of this section. It may be made into the hands of a
person designated by him. 1979 Cri LR(SC) 122.
• (5) Where B was alleged to have obtained illegal gratification from N through R and R was held
not to have asked N for any gratification on behalf of B, the case against B under S. 161 must necessary
fail. A IR 1972 SC 1502.
4. "Or for any other person".—(l) This section requires proof that a public servant has obtained
as a.motive or reward or official conduct, an illegal gratification for himself or for another person. That
other person may or may not be an official and therefore may be wholly unconnected with the official
Sec. 161 Of Offences by or relating to Public Servants . 395

conduct. But the conduct which is contemplated as the consideration for the bribe must be that of the
official obtaining it. This is clear from the phrase "in the exercise of his official functions". (1907)5
CriLJ 309;
5.Gratification other than legal remuneration.-(I) The second explanation added to this
section states that the word 'gratification' is not restricted to pecuniary gratification or gratification
estimable in money. The word is not defined in this Code and must be held to have been used in its
primary sense of anything which gives satisfaction to the recipient. AIR 1959 Born 543.
(2) The expression 'legal remuneration.' is not restricted to remuneration which a public servant
caniawfully demand, but includes all remunerations which he is permitted by the Government, Which
he serves, to accept. A IR 1966 Gui 293.
6. "As a motive or reward".—(I) The phrase 'as a motive or reward for' means 'on thç
understanding that the bribe is given in consideration of some official act or conduct on the part of the
public servant. A IR 1977 SC 666.
(2) In law, the incapacity of the Government servant to show any favour or render any service in
connection with his official duties does not necessarily take the case out of the purview of this section.
Nevertheless, it is an impoiiant factor bearing on the question as to whether the accused had taken the
gratification as a motive or reward for doing or forbearing to do any official act for showing - any favour
or disfavour in exercise of his official functions A IR 1977 SC 666.
(3) In order to establish an offence under this section, it is necessary to prove that the public
servant accepted or obtained or agreed to accept or attempted to obtain illegal gratification as a motive
or reward for doing or for forbearing to do an official act or for showing any favour or disfavour to any
person or for rendering any service or disservice to any person with a public servant as such. A IR 1969
SC 176.
(4) The question that requires consideration is, with what motive, or as reward for what act, was
the sum paid as illegal gratification by the complainant and accepted by. the accused. AIR 1954 SC 637.
(5) The PreventiOn of Corruption Act introduces an exception to the general rule as to burden of
proof in criminal cases and shifts the onus on to the accused who has to prove that it was not as a
motive or reward that the gratification was obtained. A IR 1964 SC 575.
(6) If it is shown that the accused has received the stated amount and that the said amount is not
legal remuneration, then the condition prescribed by the Act is satisfied. A IR 1963 SC 1292.
(7) The presumption under the said Act differs from the presumption under Section 114 of the
Evidence Act. Whereas under the Evidence Act, Section 114, it is open to the court to draw or not to
draw a presumption as to the existence of a fact from the proof of another fact and it is not obligatory
upon the Court to draw such presumption, under the Prevention of Corruption Act, where illegal
gratification is proved to have been received by an accused, the Court is bound to draw the
presumption that the accused received the gratification as a motive or reward such as is mentioned in
this section, and the Court has no choice in the matter. A IR 1964 SC 575.
(8) The words "unless the contrary is proved" occurring in the Prevention of Corruption Act
make it clear that the presumption has to be rebutted by proof and not by bare explanation which may
be merely plausible. A IR 1968 SC 1292.
(9) Amount of bribe found in the bag belonging to the accused—Presumption of knowledge on
part of the accused about the amount being kept for illegal gratification arises—Presumption is
396 Penal Code Sec. L61

however, refutable--On facts held, that the accused had successfully rebutted the same. (1982)2 Born
CR98..
(10) This section is not confined to payments made for services to be retendered later by the public
servant. It applies also to cases where services have been already rendered. The payment whether paid
before or after the doing of the official act, would constitute bribe. 1977 CriLJ 700.
(11) Where the accused demanded money as gratification forgetting a favourable order passed on
the review petition of the applicant and received it he would be guilty of an offence under the
Prevention of Corruption Act and also under S. 161. P.C. notwithstanding the fact that the gratification.
was paid subsequent to the passing of the order on review application when the applicant had no
knowledge of it. 1982CriL.J272.
7. Official act.—(1) The gist of an offence under this section is.the taking by a public servant of
gratification other than legal remuneration for doing an official act. 1979 CriLJ 1460.
(2) A public servant acceptihg or obtaining illegal gratification need not actually have the power or
be in a position to perform the act or to show favour or disfavour. A IR 1977 Sc 666..
(3) From the last explanation to this section, it is clear that it is not necessary, in order to
constitute an offence under this section, that the act for doing which the illegal gratification is given
should actually be performed. It is sufficient if a representation is made that it has been done or that it
will be performed a public servant who obtains a bribe by making such representation will be guilty, of
an offene under this section, even if he had or has no intention to perform and has not performed or
does not actually perform that act. A IR 1947 FC 9.
(4) This section does, not provide that the official act must be an act, which it is obligatory upon
the public servant to do. It is enough if the act is done or intended to be done in his official capacity as
distinguished from his purely private capacity, it is not necessary that the public servant should be
obliged to do the act. But the act or omission for which gratification is obtained, must be in
connection with the official functions of the public servant. A IR 1967 Born 1. .

(5) The gratifidation obtained may be "speed money", that is it may be money accepted for doing
an official act more quickly. A IR 1974 SC 989.
(6) To give a contract or rates higher than the prevailing rates will result in extra payment by
Government but it does not per se constitute offence under Section 161 unless it is shown that the
public servant has received any gratification as a motive or reward for showing favour to the accused
firm. 1984 CriLJ 545.
(7) "Official act" within the meaning of the section includes both bona fide and màla fide acts.,
Bribe taker receiving money by holding out threat of mala fide act, comes within the mischief of
section 161. Where bribe obtained through threats—Bribe giver an "abettor" in spite of the fact that
bribe was paid under threats. Section 165B provides only special exemption in favour of such abettor
absolving him of liability. 16 DLR (SC) 484.
(8) Bribe offered to a public servant constitutes the offence irrespective of the question whether he
himself is in a position to do the official act or not. The "functus officio" doctrine no longer seems to
be accepted doctrine. The fact that the public servant is functus officio when money is offered to him as
bribe, would not by itself be sufficient to negative the, offence under section 161 of the Penal Code, the
gist of the offence being that extra legal gratification is obtained as a motive or.rewàrd for doing official
acts. The nature of the act must, of course, be official and not attributable purely to the private, capacity
Sec. 161 Of Offences by or relating to Public Servants 397

of the bribe-taker. Section 161 of the Penal Code is not limited to official acts only but applies even if a
public servant is requested to render any ervice with another public servant and that it is not necessary
that the public servant must in fact, be in a position to do the official act. To constitute an offence
under section 161 of the Penal Code, it is sufficient that there is an offer of bribes to a public .serva 'nt . in
the belief that he has an authority or power in the exercise of his official function to show the offeree
desired favour although the public servant has in reality no such power. 13 DLR 219.
8. "With any public servant, as such".—(l) This section is not confined to cases in which the
gratification is obtained for doing as official act. It also applies to a public servant who accepts any
gratification other than legal remuneration as a motive or reward for rendering or attempting to render
any service to any one with another public servant as such. AIR 1959 SC 847.
• (2) The words 'as such' appearing in this section connote that the service rendered must be
connected with the discharge of the official duties of the public servant. AIR 1967 All 321.
(3) The words "public servant as such" occurring in the latter part of the section is a category
distinct from the "institutional" categories mentioned in this part of the section. Hence where the
charge is that the accused had taken (or asked for) the bribe for using his good offices with the "Food
Corporation", it is not necessary to specify the "particular officer" of the Corporation who was to do the
job in question. Hence the charge or complaint cannot fail on the ground that such o'fficial.was not
"specified". ILR (1978) 1 Punj 239.
(4) Vaccinãtdi accepting illegal gratification for being given to Sanitary and Food Inspector is
guilty of offences under this section as well as under the Prevention of Corruption Act. 1981 AI1L.J
1153.
9. Capacity and intention to do the act not necessary.—(l) When a public servant is charged
under this section, it is not necessary for the Court to consider whether the accused had the capacity to
do this actor intended to do the act. 1973 CriLi 703.
(2) Mere incapacity of the Government servant to show any favour or to render any service cannot
by itself be a ground for acquittal. 1981 AIILJ 1166;
(3) Accused incapable of conferring any benefit upon the person concerned as contemplated byS.
161.—Court will not be justified in raising an inference from mere fact of acceptance of money by
accused. 1982 CriLR (Mah) 312.

10. Abetment of offence under this section.—(l) If the intention or object with which
gratification other than legal remuneration is offered to a public servant, is to induce him to perform an
official actor show favour in the exercise of his official functions or render any service with any public
servant, an offence punishable under this section read with S. 116 ante would be complete even if the
official act, function or service is not done even if the statement of offer is not accompanied. AIR 1959
All 707.
(2) If the act abetted is committed in consequence of the abetment the offence would fall under this
section read with S. 109 ante. AIR 1960 $C 409.
(3) A personwho is coerced by threat of pecuniary loss or harm cannot be said to be an accomplice
of the bribe-taker. AIR 1971 Tripura 26.
(4) If the money is being paid by accused even to a public servant for doing or forbearing to do an
official act which he himself has no power to do and he does not accept the money, the offence cannot
be made out under Section 161 . read with S. 11^6 P.C. 1980 A ll Cri R 252.
398 . Penal Code Sec. 161

• 11. Cognizance of and investigation into cases.—(l) An offence under this section was non-
cognizable. AIR 1928 Lah. 840.
(2) The fact that the power to investigate or arrest without warrant has been circumscribed by a
condition cannot lead to the conclusion that such offence is "non-cognizable". AIR 1962 Born 263:
(3) The object of the restriction is to safeguard public servants from harassment at the hands of
subordinate police officers. The Magistrate in giving permission has to be satisfied on the material
placed before him that the superior officer is unable to conduct the investigation owing to
administrative in.onvenience or analogous reasons and, therefore, an officer of a lower rank should be,
allowed to make the investigation. 1968 GriLl 256.
(4) Where a Deputy Superintendent of Police entrusts the investigation of an offence to an Inspector
of Police, the investigation would be illegal and if the fact is brought to the notice of the Court before
taking cognizance of the case, it is the duty of the Court to rectify the matter by directing a fresh
investigation. A IR 1967 Pat 416. . .
(5) A permission to investigate covers the entire investigation and enables the officer concerned not
only to lay a trap but also to hold further investigation. A IR 1968 SC 1292(1295): 1966 CriLi 1484.
(6) When in the detailed report by the Investigating officer there, was no mention that the legal.
formalities were duly observed when bribe amount .as recovered from the accused, then an inference
can be drawn that such formalities were not observed. 1981 CriL 1691.
(7) The officers in anti-corruption department must seriously try to secure independent and
respectable witnesses so that evidence with regards to the raid inspires confidence. Further it is
desirable to mark the currency notes used in the trap witlY phenolphthalein powder so that the
acceptance of the same by the accused can be proved by chemical. tests rather than by oral evidence. AIR
1976 SC 91. .
(8) Where the accused was arrested while taking bribe but the arresting officer did not try to secure
the presence of independent witnesses at-the time of the arrest, it was held that the conviction of the
accused under Section 161 was illegal. 1981 All LI 1203.
(9) It is necessary for the investigating agency to preserve the solution used for the experiment as
regards detection of Phenolphthalein powder on the person of the, accused or on his clothes or on
anything he has touched. Omission to do so can be used to raise an inference against the prosecution
depending on facts and circumstances of each case. AIR 1980 Guj 1.
12. Sanction to prosecute.—(1) Before the Prevention of Corruption Act it was held that no
sanction under Section 197 of the Criminal P.C. (5 of 1898) was necessary for a prosecution for an
offence under this section, the reason being that a public servant in taking a bribe cannot be said to be
acting or purporting to act in the discharge of his official duty. AIR 1952 Orissa 220.
- (2) Act II of 1947 provides that no Court shall take cognizance of an offence punishable -under this
section or under the Act, alleged to have been committed by a public servant except with the previous
sanction of the Government concerned or the authority competent to remove the publIc servant from
office. Where such sanction is not obtained, .the Court is not entitled to take cognizance of the offence
and the trial without such sanction would be invalid. AIR 1962 SC 1573.
(3) Accused holding more than one public offices—Prosecution for misusing or abusing one
office—Sanction of authority competent to remove accused from office allegedly misused or abused
along is necessary and not of all competent authorities. A IR 1984 sc 684..
Sec. 161 Of Offences by or relating to Public Servants 399

(4) Offences under this section and the Prevention of Corruption Act being cognizable ., sanction for
prosecution under S. 196A. Criminal P.C. (5 of 1898) is not necessary. A IR 1973 SC 2204.
(5) If there is a proper sanction, immaterial mistakes in the order will not affect its validity. AIR
1954 SC 637.
(6) Where the accused was charged under S. 120B and Ss. 161, 162 163 and sanction was
obtained only in respect of the offence under Section 161 but not under Sections 162 and 16 . 3. It was
held that the conviction udder Ss. 120B and 161 can,still be maintained. A IR 1970 Delhi 102.
(7) Where the order giving requisite sanction to prosecute an accused under the Prevention of
Corruption Act was made by the deputy Secretary on behalf of the Government in exercise of the power
conferred on him under the rules delegating such power to him, the order cannot be questioned.. AIR
1961 SC 1762.
(8) As to who can give sanction under Section 197 of the Criminal P.C. 1970 AIIWR (I-Ic.) 57.
(9). No sanction—Trial is vitiated—Sanitary Inspectors appointed as Food Inspectors—Municipal
Commissioner or Municipal Health Officer can sanction prosecution. (1969) 2 MadLJ 379.
(10) Where sanctioniqg authority admitted that he was only an officiating Class I officer whereas
all other persons having the same official designation were all confirmed officers, it was held doubtful if
the sanctioning authority was .really competent to sanction the prosecution. 1981 CriL.J 1691,
(11) For trial under section 161, Penal Code—Accused convicted under the Prevention of
Corruption Act—Sanction, held not. defective—Section 161, Penal Code not impliedly repealed by the
Prevention of Corruption Act—General Clauses Act (X of 1897) section 26. Sanction for prosecution of
the accused who was a public servant was granted under section 161 of the Penal Code but in trial the
accused was charged and convicted, not under section 161 of the Penal Code but under section 5 of the
Prevention of Corruption Act. It was therefore contended that there being no sanction ' for prosecution
under Prevention of Corruption Act, the trial was without jurisdiction. Held: section 161 of the Penal
Code applies to two kinds of persons, firstly, to those who are public servants and secondly, to those
who are expecting to become public servants: while the Prevention of Corruption Act applies if the
person taking illegal gratification is public servant and not merely a person who is expecting to be.
This means that if a public servant is guilty of an offencd mentioned in section 161 of the Penal Code,
he is at the same time guilty of an offence mentioned in the Prevention of Corruption Act. Therefore,
non-mention of the Prevention of Corruption. Act in the sanction could not pievent the accused being.
convicted under the Prevention of Corruption Act, 1947. Even if the sanctioning Authority when
granting the sanction had merely mentioned the facts without specifying the provision of law, which
was applicable to those facts, the sanction would not have suffered from any fatal defect. There is no
valid reason why mentioning section 161 of Penal Code in the sanction prevented the conviction of the
accused under section 5 of the Prevention of Corruption Act, 1947 when the ingredients of the two
offences were identical, Section 26 of the General Clauses Act (X of 1897) militates against the rule of
implied repeal. Section 161, Penal Code has not been impliedly repealed by section 5 of the
Prevention of Corruption Act. 6 DLR (WP Lah)68.
(12) Sanction valid when it is endorsed by the competent sanctioning authoiity. 21 DLR (Sç)342.
(13) According to the provision of section 6(5) of Act XL of 1958, previous sanction of the
Government shall be required for the prosecution of a public servant and shall be accorded b the
Government in the Public Division vide Notification No. SRO 298 Law/87 dated 19-12-87 (sanction
400 Penal Code Sec. 161
for prosecution) Rules 1987. Where the sanctioning authority is himself the complainant a separate
order of sanction is not necessary for prosecuting the accused. 1968 P CrLf 316.
(14) Sanction to prosecute a Government servant before a charge-sheet is submitted is a
precondition. Sanction can be obtained after submission of charge-sheet but before the trial commences.
32 DLR(SC)100.
(15) No sanction for prosecution necessary if the public servant concerned ceased tobe a public
servant when the Court takes cognizance of the offence. Criminal trial—The contention relating td the
competency of the. police officer who investigated the case against the petitioner was not raised either
before the trial. Court. or before the High Court and since this contention touches upon a question of fact
namely, whether the 10 had obtained permission from a Magistrate of the first class to investigate it is
liable to be rejected as the factual position is not known. 27 DLR (SC) 35.
13. Evidence and proof.—(l) What constitutes bribery is a question of law whether on the
evidence the act alleged to constitute the crime has been committed is a question of fact. 1977
CrILJ 925.
(2) Criminal trial—Corroboration—Bribe-giver's evidence—Not on the same footing , as that of an
accomplice. Necessity tf proving the case beyond reasonable doubt—bribe giver believing that official
act would go against him if he does not pay—offence established. The rule of the Court which requires
• corroboration of the evidence of an accomplice as against such accused, if it applies to all, applies with
very little force to a case in which the accused is charged with extorting a bribe from other persons. The
objections which usually arise to the evidence of an accomplice dO not really apply where the alleged
accomplice, that is the person who pays the bribe, is not a willing participant in the offence, but is
really a victim of that offence. In cases of this kind, a slight corroboration may be sufficient to induce
• the Court to rely upon his evidence. A charge under section 161 of the Penal Code is one which is
easily and may often be lightly made but is in the very nature of things difficult to establish, as direct
evidence must in most cases be meager and of a tainted nature. These considerations cannot however be
suffered to relieve the prosecutiOn Of any.part of the burden which rests upon it to establish the charge
beyound reasonable doubt. If after every thing that can legitimately be considered has been given its
due weight room still exists for taking the view that however strong the suspicion raised against the
accused, every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal.
It is sufficient to constitute an offence under section 161, Penal Code if the person giving the bribe is
led to believe that the official act would go against him if he did not give the bribe. 7 DLR 457.
(3) Evidence regarding the offence (bribe taking) rests on the testimony of the bribe giver alone—
Evidence to be scanned carefully—Factors which court must assess to draw inference of guilt. Where a
case mainly rests on the bribe giver's evidence it should be scanned with much caution and the Court
must be satisfied that he is a witness of truth specially when no other person was present at the time
when he paid the alleged illegal gratification. The value of such testimony would, therefore, depend on
diverse factors such as the nature of his evidence, to what extent and in what manner he is interested,
the probability and improbability of his story and how he has fared in the cross-examination, etc. In
other words, the Court must consider whether facts and circumstances render it probable that his story
is true and it is reasonably safe to act upon it. Bribe giver under compulsion—Criminal intent not
attributable—hence bribe—giver not an abettor. Where the bribe-giver is not a willing party to the
giving of the bribe he had not the necessary criminal intent to be treated as an abettor or accomplice, in
other words, he cannot be regarded as a particeps criminis in respect of the cime. 15 DLR (SC)7.
Sec. 161 Of Offences by or relating to Public Servants 401'

(4) If the accused immediately after his confrontation gives an explanation which appears reasonable
and not inconsistent with the defence case then he is entitled to benefit.of doubt. Courts should be very
cautious and scrutinising in examining prosecution case under sections 161 and 165A, Penal Code for
it is very easy to implicate a person in such a case on false allegation. Allegation of offence punishable
under sections 161 and 165A are to be scrutinised with reference to an official act. In the absence of an,
official act conviction under section 161 and 165A cannot be sustained. Burden of proving guilty
intention lies upon the prosecution. Expression "burden of proof' used in section 105, Evidence Act
explained. Principle in criminal cases is that onus of proving everything essential to the establishment
of the charge against the accused lies upon the prosecution and that onus never changes and it Is well
known that this principle follows from the cardinal proposition that the accused is presumed to be
innosent until his guilt is established by the prosecution beyond any shadow of doubt. 24 DLR 230.
(2) It is somewhat difficult to establish a charge under this section, as direct evidence, in most
• cases, will be meager and of a tainted nature. But this cannot be allowed to relieve the prosecution of
any part of the burden which rests upon it to establish the charge beyond reasonable doubt If after
everything that can legitimately be considered has been given due weight, room exists for taking the
• view that possibility of innocence has not been excluded, however strong the suspicion may be the
accused is entitled to acquital. A IR 1979 SC 1537. .
(3) Where in prosecution of the accused (Asst. Jailor) for accepting bribe from his ex-warden in
order to reinstate him. the explanation offered by the accused to the effect that he had not received the
money as bribe but had received the same as repayment of the amount borrowed by the ex-warden from,
him, stood sufficiently prohabilised froin the evidence on record the special judge was not justified in
rejecting the explanation. (1984) i crimes 300(MP).
(4) No presumption that acceptance of gratification was made as motive or reward will arise if the
prosecution fails to prove the acceptance or if the valuables may have been planted or foisted on the
accused by deception or trick. A IR 1970 Delhi 95.
(5) Where the prosecution failed to prove the demand and payment of the bribe to the accused, the
entire prosecution story would be unacceptable. 1981 CriLi 142. .
(6) Where the acceptance of bribe by accused and its recovery was proved by direct and
circumstantial evidence by the presence of the accused at the house of the complainant at the appointed
time and his arrest there and the recovery of painted currency note form the ground, the accused guilty
of offence under s 161. 1984 criLJNoC 104 ('BD). .. . . . ..
(7) Where demand and the acceptance of the bribe was proved and currency notes given were
recovered form accused, death of the complainant prior to the commencement of the trial will not affect
the case. A IR 1982 SC 1511. .
(8) Concurrent finding of trial court and High Court regarding the guilt of the accused for an offence
under S. 161. P.C. arrived at on due appreciation of the evidence adduced in the case. Supreme Court
refused to interfere. A IR 1974 SC 1828.
(9) Conviction for bribery on uncorroborated testimony of a witness when can be had, stated.
(1971) 2 SC Cr1 R 42. ' . . .. .
(10) Conviction of accused under S. 161 on uncorroborated statement of the complainant when
circumstantial and documentary evidence supported the defence version, set aside. A IR 1970 SC 450.
(11) Prevention of Corruption Act raises a presumption that accused accepted money as a motive
or reward such as is mentioned in S. 161. The presumption is to be rebutted by proof and not merely
by a plausible explanation. 1974 PunLi (Cri) 114. .
402 . Penal Code Sec. 161

(12) A person who, gives a bribe is an accomplice of the person who receives it and according to
:-
well-settled principles it is unsafe to base a conviction On his testimony without independent
rrboration. AIR 1979 SC 1191.
(L1)Whëre a person has given Rs. 90/- to the accused to get his work done and on his demanding
fllrther amount ofRs. 150/- agreed to pay Rs. 50/-more and was in fact paid when .a trap was laid, held
in circumstances that his solitary testimony could be relied on and his conduct corroborated his
ttimóny. 1986A11 CriR.302.
(14) Where on information that a bribe has been demanded or solicited a trap is laid to catch the
public servant making the denand, the witnesses participating in the trap are not accomplices since
they have, not the necessary criminal intention. But they are partisan or interested witnesses and their
evidence must be tested in the usual way which may vary from case, to case. AIR 1973 SC 498.
-'(15) Eviene:of the person regading demand of bribe before the trap was laid is such that
indipendentcorpOration is notnecessary;'1983 CrILJ 1338. . . .. .
(16) Where a public servant did not demand a bribe but was only suspected to be in the habit of
tákin'gbribes and a trap was laid to see whether he 'would,accept the bribe, it was held that the trap was
an illegal one, that the persons taking part in the trap would be accomplices and that their evidence
W601A have to be corrobd'rated AIR 1956 SC 643
.(l.7),Panch Witnesses who are taken by the police along with 'them during' a trap are not per se
interested witnesses; they are independent . witnesses and their evidence requires no corroboration before
acceptance. AIR 1954 SC 322.
! 8) To sustain conviction against: an accused under Section 161 and the Prevention of Corruption
Act it. is not sufficient for the prosecution to prove the trap incident alone but the prosecution
should prove all the vital parts of the persecution story on which the trap incident , depends. 1981
(7rL..NOC 63.
(19) Statements of prosecution witnesses contradictory to their earlier statements—No evidence as
tq any scientific test having been, applied to prove accuser's having handled the 'currency notes—
infirmities in prosecution evidence— ccused held entitled to acquittal AIR 1977 SC 674
...P)-Yital. part-of prosecution 'case disbelieved by High Court—Order or conviction passed by trial
Court held could not-be affirmed. AIR I076SC 1489. ..
- -.4 li)s4iccusi p.oieofflcer—Proecutidñ witnesses proved to be primps and facing trial under
idGirls Act-1t could not be said that prosecution
witnesses had no motive to falsely implicate the accused. AIR 1976 SC 294.
(2129 Whre a trap is lid for a public servant it is desirable that the marked currency notes which
ar tid ftr tiTe purpose of trap are treated with phenolphthalem powder so that the handling of such
marked currency notes by the public servant can be detected by chemical process ad, the Court does
not haTh' depend on oral -evidence 'vhich is some of a dubious character for the purpose of
deciding the fate of the public servant. 41R 19.76 SC 91.
(23) The p revts ttemeotS f 1he pnchas- which are to be found in the pre trap and post-Irap
p.anchanarnas in corruption case do not all within the . phrase "statement mad .e.to the police officer"i as
contempatec1 by $ 162 Lr. P.C. Therefore sliCh oanchanamas cannot come within the ban of that
section. 1975 C'riLJ 517 :- . ... ., .
Sec. 161 Of Offences by or relating to Public Servants 403

(24) Where the evidence about the recovery of the currency notes which wasthe bribe amount was
discrepant accused held was entitled to the benefit of doubt. 1983 Raj LW 369(3 74).
(25) Raiding party though present making no allegation as the passing of the bribe amount to
accused—Accused must be given benefit of doubt. 1981 CriLi 691.
14. Trap witnesses.—(I) Illegal gratification—Trap Case—Independent corroboration dft rap
witnesses—Magistrate accompanying a trap party, whether an independent witness---Appellarit was
nabbed when he accepted marked notes as bribe. Because of the tough requirement of proof beyond
reasonable doubt the laying of trap is the only method for detecting crimes like bribery . whichare
committed in covert manner—Such a method is. not prohibited—For laying a trap the Investigating
Officer cannot be said to be thereby instigating commission of the offence. Principles of accomp!ice
evidence cannot be extended to the evidence of trap witnesses, because the latter cannot be termed as
accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There of be
cases where the Court will look for independent corroboration. Equally there may be cases where the
Court may accept evidence of trap witnesses. No evidence to show that the witnesses were Jnimical or
friendly towards the accused-Appellant or that they had any illmotive to implicate him falsely. No
interference is called for. 43 •DLR (AD) 1.
(2) Trap case—Evidence of witnesses in trap case—utmost care needed to ensure dependability
and trustworthiness of such witnesses in respect of their deposition. Presence of independent witnesses
warrants truth and reliability of the case and shields the police against charge of over zealousnes.s,in
their conduct of the case. Demand of bribe may circumstantially corroborate if the prosecution canprove
beyond reasonable doubt that the marked notes were given to the accused as bribe and that these 'were
recovered from the accused immediately after the bribe was given and that independent witnesses
observed the same. Although this part of the prosecution story (namely, giving of the bribe money to
the accused and its receipt by the accused as also its recovery from him) which is obvidiisly the most
vital part, has been stated and corroborated mutually by the police witnesses and the . decOy'w'itness. the
law requires, as matter of prudence and caution, that this part of the story should be corroborated in
material particulars by disinterested and independent witnesses, the reason being that the members of a
police trap party and the decoy witness, however public spirited and well intentioned'theyhiay be, are
I
expected to be united in at least one common desire, namely, the desire to see that the t trap is: 'not an
exercise in futility and that it does not end in a fiasco. In other words, even if they are not inimically
disposed towards the accused, they do not want to see their precious effort to bewqst .ed, they Will as a
team, stick to their story of acceptance of bribe, and recovery of marked note. .Evidëice of,
of the trap party is, therefore, tainted in nature. Even if it is not possible soqietime. to have:
any independent person to witness the demand and the acceptance of the bribe, at. least the..e..niustbe
unimpeachable disinterested evidence regarding recovery of the bribe money from..the possession .,f the
accused immediately after the occurrence. It has, therefore, become the practice with th.officesofAti
Corruption Department and the police to take a few disinterested persons along with thexnto.witness
the acceptance of bribe and recovery of bribe money in a trap case. Indeed: if the presence, of.
disinterested independent witnesses is not made an essential requirement o'f'such ventures every public
servant exposes himself to an uncorroborated trap case set up solely by the police officials ' with.th...he!p
of decoy witnesses. The existence of independent witnesses is also a protection to the police officials
and the decoy witnesses themsehè, as these the convenient'a1e , aticn of
actingmalafide orwith vengeance, vindicti''thess and over éaloi sn'és.'A e'i'a1tdw&t '(keJ 35 OLR
257)37DL .R :278.. :. ' ....,: ,•;. :'. . ,, ''' .
Penal Code Sec. 161
404

(3) Laying trap is not prohibited in investigation. 1969 Mad LW (Cr1) 90.
(4) In a proper case the Court may look for independent corroboration before convicting the accused
persons. AIR 1973 SC 498.
(5) Where in a trap case the Judge magnified every minor detail or omission to falsify or throw
even a shadow of doubt on the prosecution evidence this would show how much the Judge was
prejudiced against the prosecution. AIR 1984 SC 63.
(6) Non-official witness having associated in post with investigation officer—Cannot be deemed to
be -.4h independent witness. 1981 CrILJ 1691.
(7) Evidence of police officers and other trap witnesses if found to be trustworthy conviction under
S. 161 can be based on it. 1981. (UP) CriLR 262 (411).
(8) Accused can be convicted merely on the evidence of the police officer who arranged the raid if
his testimony is found to be reliable and without any infirmity. 1981 A11LJ 1166.
15. Punishment.—(1) A corrupt public servant is a menace to society. Corruption in the case of
public servants will impede the proper functioning of a Government and therefore, where an offence
under this section is proved against him a deterrent punishment must be meted out to him. 1958
RajLW 596.
(2) The question of sentence must in each case depended upon a variety of considerations and is a
matter primarily in the discretion of the Court which passes a sentence. 1979 Cri LR (SC) 182.
(3) Where a public servant is charged under this section and also under the Prevention of
Corruption Act, separate sentences under the two sections are illegal, since there is only one act which
constitutes an offence under two enactments. 1979 UJ(SC) 276.
(4) An offence under of the Prevention of Côrrujtion Act is an aggravated form of an offence under
this section and, therefore, when the charge under the same mentions several instances of bribe-taking
and only one of them is proved, thecoiiv.ietion of the accused under this section is legal. AIR 1957 SC
458.
(5) In the case of a trial under this section the Supreme Court would not ordinarily interfere with
the quantum of punishment given by the courts below, since corruptioii by a public servant is a serious -
matter and the Court would not look upon it with leniency. AIR 1960 SC 961. -
(6) Where the accused had undergone mental agony and harassment fora long period of 11 years of
trial and during these periods, the accused though 42 years and belonging to the weaker section of the
society was studying for law degree for becoming a lawyer, there couIdbe special reasons for awarding
lesser sentence (3 months) than the minimum of one year. The minimum sentence of one year if
awarded would disrupt his studies and destroy his future career would be another special reason for
awarding the lesser sentence. 1982 CriLi 2044.
16. Practice.—Evidence—Prove: (1) That the accused at the time of the offence was or expected to
be a public servant.
(2)That he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a
0

gratification.
(3) That such gratification was not a legal remuneration due to him.
(4) That he so accepted, etc. such gratification, as a motive or reward, for (a) doing or forbearing to
do an official act, or (b) showing, or forbearing to show favour or disfavour to some one in the exercise
Sec. 161 Of Offences by or relating to Public Servants 405

of his official functions or (c) rendering or attempting to render, any service or disservice to some one,
with the Government or Legislature, or with any public servant.
17. Procedure.—(I) Cognizable—Summons—Not bailable—Not compoundable—Triable
exclusively by the Special Judge.
(2) A violation of the mandatory provisions of the Prevention of Corruption Act is not a mere
irregularity but an illegality which will vitiate the trial. AIR 1955 NUC (All) 3590.
(3) It is not obligatory on the part of the Court trying a case under this section to inform the,
accused that he can appear as a witness for himself. AIR 1954 All 204.
(4) Complaint against public servants charging them for taking illegal gratification, forgery
and cheating—Cognizance by magistrate is barred under the Criminal Law Amendment Act. 1981
Cr1LJ 635. .
(5) When two special judges are appointed for the same area a trial by any one of them cannot be
set' aside if no objection was raised about jurisdiction and where no prejudice was .caused to the
accused. 1983 CriLi M.
(6) A police constable- charged under Section 161 for taking bribe can be tried jointly with his
fellow clerk charged under S. 218 for making false entries in the general station diary to conceal his
offence as the two charges are interconnected. 1982 All Li 681.
(7) Where the prosecution had failed to prove the charges. against two of the main accused out of
five accused persons, who were alleged to be the germane of the offence then the prosecution against rest
of the accused must fail in view of acquittal of the two main accused persons. 1984 Bihar Li 116 (Pat).
(8) Removing a person from service on being convicted under S. 161 will be without jurisdiction
when an appeal from the conviction was pending 1982 W LN (UC) 1415 (Raj).
18. Charge.—(l) If a publid servant attempts to obtain a bribe and succeeds in obtaining it,
technically, he commits two offences. But for meeting out justice it is unnecessary to charge him with
the offence of having made an attempt to obtain a bribe, since the offence is merged into the bigger
offence of obtaining the gratification. AIR 1956 Born 287.
(2) Where the charge against the accused under that part of this section which refers to accepting of
gratification other than legal remuneration for rendering service or disservice with any public servant,
the charge should specify the other public servant who is to be approached for rendering service or
disservice. AIR 1964 SC 492.
(3) The non-specifying of the public servant in the charge would not vitiate the trial; it would only
amount to a defect in the charge which can be cured under S. 465 of the Criminal P.C. unless such
error or omission has occasioned failure ofjustice. AIR 1964 SC 492.
(4) Where besides the omission to indicate the other public servant in the charge, there is nothing
in the complaint, in the charge sheet submitted by the polite and in the evidence to show who was the
other public servant with whom service or disservice would be rendered by the accused, one o 1f the
main ingredients of the offence under this section must be taken as not proved and the accused will be
entitled to an 'acquittal. AIR 1959 SC 847.
(5) Where in a complaint allegations of taking illegal gratification, forgery and cheating are made
against a public servant but Section 161 is not specifically mentioned, it was held that S. 161 is still
applicable as the essential allegations of fact for applying Section 161 were made out. 1981 CriLJ 635.
406 Penal Code Sec. 162

(6) The charge should run as follows

I, (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, being a public servant in the department, directly accepted from (state the name of the
giver (or received) form another), namely a gratification other than legal remuneration as a motive or
reward forbearing to do official act to show favour (or disfavour) and thereby you have committed an
offence punishable under section 161 of the Penal Code and within my cognizance.
And 1 hereby direct that you be tried on .the said charge.
19. Appeal and Revision.—An appeal from the judgment of a Special Judge shall lie to the
High Court having appellate jurisdiction in the territorial limits in whidh the offence is tried by the
Special Judge and the same Court shall also have powers of revision. Notwithstanding the provision of
section 417 and 417A, CrPC in any case tried by a Special Judge who has passed an order of acquittal
the Government may direct the public prosecutor to present an appeal to such Court as aforesaid. The
aforesaid Court shall have authority to transfer any case form the Court of a Special Judge to the Court
of another Special Judge. No prosecution under corruption case against any person either generally or in
respect of any one or more of the offences for which he is being tried shall be withdrawn except under
the orders in writing of the Government. . .

Section 162
162.. Taking gratification, in order, by corrupt or illegal means, to influence
public servant.—Whoever accepts or obtains, or agrees to accept, or attempts to
obtain, from a n y person, for himself or for any other person, any gratification
whatever as a motive or reward for inducing, by corrupt or illegal means, any public
servant to do or to forbear to do any official act, or in the exercise of the official
functions of such public servant to show favour or disfavour to any person, or to
render or attempt to render any service or disservice to any person .1 [with the
Government or Legislature, or with any public servant, as such, shall be punished
with imprisonment of either description for a term which may' extend to three years,
or with fine, or with both.
Cases and Materials
I. Scope.—(1) Section 162 refers to a motive or reward for doing or forbearing to do something
showing favour or disfavour to any person, or for inducing such conduct by exercise or personal
influence. A conviction under this section cannot be sustained without a finding that the money was
accepted or obtained by the accused as a motive or reward for tampering with a public officer. This
section deals with the offence of a private individual taking a bribe to influence a public servant by
corrupt and illegal means. . . . .
(2) An aggravated form of the offences under this section and S. 161 is enacted in the Prevention of
Corruption Act (l 1 of 1947). A IR 1957 SC 458.
(3) The two offences under Ss. 161 and 162 on the one hand and the Prevention of Corruption Act
on the other co-exist and the one will not be considered as overlapping the other. A course of conduct
can be proved when a person is arraigned under the Act but such a course is iihposstbteto be 'let in
evidence when an offnccunderHSs :1 6 1aildl62is beingenjuired iñtdotVié .A IR'J957SC d58..
Sec. 162 Of Offences by or relating to Public Servants 407

(4) The word "obtains" does not necessarily mean getting the bribe by threat or coercion. It will
include the acceptance of a voluntary offer. AIR 1956 SC 476.
(5) The fact that a trap was laid for the detection of bribery is not a ground for passing ajenient
sentence. AIR 1956 SC 476 (479): 1956 CriLJ 837.
(6).Where a charge was for offences under Ss. 120B, 161, 162 and 163, but sanction was obtained
only in respect of offences under Ss. 120B and 161 but not in respect of offences under Ss. 120B and
162 and 163 it has been held that a conviction under Sections 120B and 161 can still be maintained.
AIR 1970 Delhi 102. .
(7) Where the gravamen of the offence of which the accused is charged is S. 420, Penal Code and
the accused stands acquitted due to compromise of offence under Section 420 no case can then be made
under S. 162 with which he was charged under S. 420. 1979 Raj LW 99(102):
(8) Cognizance of offences 1der Ss.162, 1 .63 and 164 and conspiracies to commit them—Can
only be taken by Special Judgeun der S. 7 of Criminal Law Amendment Act of 1952—Metropolitan
Magistrate has no.jurisdiction to take cognizance thereof. 1980 ChandLR (Cri) (Delhi) 119,
• (9) Commission of offences undçr Ss. 162, 420—Necessary facts to be proved—Demand of
gratification, payment of the same to accused and recovery of same are relevant and must be proved.
• J98O Raj CriC28. . . . . .
(10) Taking gratification—It is necessary in order , to substantiate an offence under section 162 to
show that the money that was accepted was intended for the purpose of being paid by way of,
gratification as a motive or reward for inducing by corrupt or illegal means a public servant but it is not
necessary that the gratification must have been intended to be paid to the person who accepted the
money. It is sufficient if_th 'person accepting the money knows that the object for which the money is
to be used is for the purpose of paying it by way of a gratification as a motive or reward for inducinga
public servant. Osimuddin Sarker Vs. State (1961) 13 DLR 197: (1961) PLD ('Dac.) 79.
2. Practice.—Evidence—Prove: (1) That the accused accepted or obtained, or agreed to accept, or
attempted to obtain, from someone for himself or for someone else, a gratification. (2) That he accepted,
etc., the same as a motive Or reward to induce, by corrupt or illegal means, apublic servant (a) to do or
forbear to do an official act or (b) to show, in the exercise of his official functions favour or disfavour to
some person ;or (c) to render, or attempt to render, any service or disservice to some pfson, with the
Government etc. or with any public servant as such.
3. Procedure.—Cognizable—Suinmons—Not bailable—Not compoundable—Triable exclusively
by the Special Judge. . . •. .
4. Charge.—The charge should run as follows:
I, (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, accepted (or obtained or agreed to accept or attempted
to obtain) from—for yourself or for any other person a gratification namely, from—as a motive or
reward for inducing by corrupt or illegal means—a public servant, to wit,—to do an Official act to
wit--dr to shofavout:'disfavurto any erOn—with the legislative (or executive) Government of
Bangladesh and thereby committed an offence under section 162 of the Penal Code and within my
cognizance.
And I hereby direct.that you be tried. by me,on.the said. charge
Sanction.—Sanction under section 6(5) of Act XL of.L958is.necessai' for prosecution by
Public Division of the President's Secretarial videNotification No SRO .298LawJ87 dated , 19-.12-87.
408 . Penal Code Sec 163

Section 163
.163. Taking gratification, for exercise of personal influence with public
servant.—Whoever accepts or obtains, or agrees to accept or attempts to obtain, from
any person, for himself or for any other person, any gratification whatever,, as a
motive or reward for inducing, by the exercise of personal influence, any public
servant to do or to forbear to do any official act, or in the exercise of the official
functions of such public servant to show favour or disfavour to any person, or to
render or attempt to render any service or disservice to any person, '[with the
Government or Legislature], or with any public servant, as such, shall be punished
with simple imprisonment for a term which may, extend to one year, or with fine, or
with :both. . . .
Illustration . .
A n advocate who receives a fee for 'arguing a case before a Judge, a person who
receives pay for arranging .and correcting ,a memorial addressed to Government, setting
forth the services, and claims of the memorialist, a paid agent for a condemned criminal,
who lays before the Government statements tending' to show that the condemnation was
unjust,— are not within this section, inasmuch as they do not exercise - or profess to
exercise personal influence.
Cases and Materials .
1. Scope.—(1) A punishment of the accused, a police constable, departmentally does not absolve
him from liability to prosecution and punishment under this section. AIR .1915 Lah 350.
(2) Cognizance of offence under Ss; 162, 163 and 164, P.C. and conspiracies to commit them—
Metropolitan .Magistrate has no jurisdiction to take cognizance thereof. 1980 ChandLR (CrQ
(Delhi) 119.
(3) Section 124 of the Government of India Act, 1935 created an offence of misdemeanor and
provided for a punishment, therefore it is not possible to infer therefrom an implied repeal of S. .163,
P.C. The ingredients of offence under S. 224 of 1915 Act are different from those of S. 163, P.C. 1981
CriLJ 1754.
(4) Charge. under Section 120B, 161, 162 and 163—Sanction only in respect of offences under
Sections 120B and 161 and not in respect of offences under Section' 120B and Section 162 and 163—
Conviction for offences under Sections 120B and 160 can still be maintained. AIR 1970 Delhi 102.
2. Practice.—Evidence--Prove: (1) That the accused accepted or obtained or agreed to accept or
attenpted to obtain a gratification.
.(2) That the motive or reward for accepting the same for inducing by the exercise of personal
influence on any public servant to do or forbear to do an official act.
3. Procedure.--Cognizable—Summons—Not bailable—Not compoundable—Triable exclusively
by the Special Judge.
4. Charge.—The charge should run as follows:
I (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, accepted or obtained or agreed to accept or attempted
to obtain a gratification from—as a motive or reward for inducing by the exercise of personal
Sec. 164 1 Of Offences by or relating to Public Servants 409
influence—a public servant to do or forbear to do an official act namely—or to show some favour or
disfavour to any person namely—or to render or attempt to render any service or disfavour to any
person—in the Legislative or executive Government, etc. and thereby committed an offerce punishable
under section 163 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction.—Sanction--Under section 6(5) of Act XL of 1958 is necessary for prosecution.

Section 164,,
164. Punishment for abetment by public servant of offences defined in
section 162 or 163.—Whoever, being a public servant, in respect of whOm either of
the offences defined in the last two preceding sections is committed, abets the offence,
shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
Illustration
A is a public servant. B, A 's wife, receives a present as a motive for soliciting A to give
an office to a particular person. A abets her doing so. B is punishable with imprisonment
for a term not exceeding one year, or with fine, or with both. A is punishable with
imprisonment for a term which may extend to three years, or with fine, or with both.
Cases and Materials
1. Scope.-.--(l) Cognizance under Ss. 162, 163 and 164, P.C. of offences and conspiracies to
comm it them—Can only be taken by Special Judge—Metropolitan Magistrate has no jurisdiction to
take cognizance thereof. 1980 ChandLR (Cri) Delhi) 119.
(2) It is implicit in the offences under Sections 161, 164 and 165, P.C. and the Prevention of
Corruption Act that the public servant has misused or abused the powers of office held by him as
public servant. AIR 1984 SC 684.
2. Practice.—Evidence--Prove: (1) That the - accused was a public servant.
(2) That as such he abetted an offence punishable under section 162 or this section. Establish
abetment under section 107.
(3) That an offence under section 162 or this section was committed.
3. Procedure.—Cognizable—summons—Not bailable—Not compoundable—Triable exclusively
by the Special Judge.
4. Charge.—The charge should run as follows:
I (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being a public servant in the—Department, abetted the
commission of the offence punishable under section 162 (or section 163) by—and thereby committed
an offence punishable under section 164 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried , on the said charge.
5. Sanction.—Sanctjon under section 6(5) of Act XL of 1958 is necessary for prosecution.
410 Penal Code Sec. 165

Section 165
165. Public servant obtaining valuable thing, without consideration, from
person concerned in proceeding or business transacted by such public
servant.--Whoever, being a publie servant, accepts or obtains, or agrees to accept or
attempts to obtain, for himself or for any other person, any valuable thing without
consideration, or for a consideration which he knows to be inadequate,
from any person whom he knows to have been, or to be, or to be likely to be,
concerned in any proceeding or business transacted or about to be transacted by such
public servant, or having any connection With the official functions of himself or of
any public servant to whom he is subordinate,
or from any person whom he knows lo be interested in or téláed to the person so
concerned,
shall be punished with 7[imprisonment of either description for a term which may
extend to three years], or with fine, or with both.
Illustrations
(a) A , a Collector, hires a house of Z, who has a settlement case pending.before him.
It is agreed that A shall pay fifty 8 [taka] a month, the house being such that, if the
bargain were made in good faith, A would be required to pay two hundred 8[taka] a
month. A has obtained a valuable thing from Z without adequate consideration.
(b) A , a Judge, buys of Z, who has a cause pending in A 's Court, Government
Promissory Notes at acliscount, when they are selling in the market at a premium. A has
obtained a valuable thing from Z without adequate consideration.
(c) Z's brother is apprehended and taken before A , a Magistrate, on a charge of
perjury. A sells to Z shares in a bank at a premium, when they are selling in the market at
a discount. Z pays A for the shares accordingly. The money so obtained by A is a
valuable thing obtained by him without adequate consideration.
Cases and Materials : Synopsis
I. Scope of the section. subordinate".
2. Burden of proof and evidence. 7. Practice.
3. "Whom he knows. etc". 8. Procedure.
4. From a person concerned, etc ". 9. Charge.
5. "Valuable thing". 10. Sanction.
6. "Or of any public servant to whom he is
1. Scope of the section.—(I) One of the elements to be proved to constitute an offence under this
section is that the acceptance was without consideration or with consideration which the accused knew
to be inadequate. It cannot be said that it must first be proved that the acceptance of the valuable thing
was a gratification other than legal remuneration before the presumption under Corruption Act can be

7. Subs, by the Criminal Law Arndt. Act. 1953 (XXXVII of 1953), s, 2 for "simple imprisonment for a term which may
extend to two years".
8. Subs, by Act VIII of 1973, s. 3 and 2ndSch., for "rupees".
Sec. 165 Of Offences by or relating to Public Servants 411

drawn so as to throw the burden on the accused. The rule of the, Court which requires corroboration of
the evidence of an accomplice as against each accused if it applies at all applies with very little force to
'a case in which the accused is charged with extorting a bribe from other . persons. Ir.1 cases of this kind
where payment of bribe has not been voluntary, very slight corroboration would be sufficient to make
the evidence of such persons admissible against the receiver of the bribe (49 CrLJ 529). A Criminal
Court is Legally competent to record a conviction under sections 120B/165 when the charge is in
respect of an offence under section IO2B read with section 161 (AIR 1947 FC 9);
(2) This section deals with the offence of taking bribes by public servants. Where a public servant
habitually takes bribes he may be dealt with under the Prevention of Corruption Act. Individual acts of
taking bribe will continue to be governed by-this section. AIR 1957 SC 458.
(3) The section has been so worded as to cover cases of corruption which do not come within Ss.
161,162 or 163. AIR 1961 SC 550.
(4) It is implicit in the offences under Sections 161,164 and 165, P.C. and the Prevention of
Corruption Act that the public servant has misused or abused the powers of office held by him as
public servant. AIR 1984 SC. 684.
2. Burden of proof and evidence.—(1) The presumption under the Prevention of Corruption
Act arises only on proof that the accused public servant accepted or obtained or agreed to accept or.
obtain a valuable thing and the extent of the presumption is that such receipt or obtaining of the
valuable thing was without consideration or for an antiquated consideration. It still . is on the
prosecution to-prove the other ingredients of the section, namely the fact that a thing was received by
the public servant and that the other ingredients are satisfied. AIR 1960 'S C 548.
(2) The presumption raised by the Prevention of Corruption Act, is a presumption of law which a
Court .is bound to draw where once it is proved that the public servant accused received or obtained a
valuable thing in the circumstances mentioned in this section. AIR 1958 SC 61.
(3) Suspicion, however strong, is not enough to convict an accused in absence of satisfactory
evidence. AIR 1979 SC 1537.
(4) When important witnesses were not examined, the case is one with grave infirmities and
cannot end in conviction. 1979 Cri LR (SC) 1.
(5) Hasty action in passing of the bills of a contractor and opening Of a new account in the bank for
withdrawal of money which were for different causes and capable of different interpretations was held not
a corroborating evidence of taking bribe by the officer passing the bills. 1984 Cr1LJ 878 (Pat).
(6) Trap laid for discovery of crime—Proof required in offences falling under sections 161 and 165
of the Penal Code. Presumption under section 4 of Act 11 of 1947—In a case of this nature the
prosecution is required to prove their case strictly according to the principle laid down in the Evidence
Act in spite of the provision of section 4 of the Prevention of Corruption Act, It of 1947. The
prosecution would be liable to prove the motive of reward under section 161 of the Penal Code, or
absence or inadequacy of consideration under section 165 of the Penal Code because such motive of
reward or such absence or inadequacy of consideration is a part of the very offence under section 161 or
165 of the Penal Code respectively. But now by reason of Section 4, Prevention of Corruption Act
1947, that presumption will be made against the accused the moment the prosecution proves that the
accused accepted, or agreed to accept or obtain or attempted to obtain any gratification or valuable thing.
Proof that the accused agreed to accept bribe is always on the prosecution. 27 DLR 268.
412 Penal Code Sec; 1-65
V
3. "Whom he knows, etc.".—(l) One of the essential ingredients of the offence under this section
is that the person from whom the accused accepted etc., the valuable thing was known to the accused to
have been, or to be, or to be likely to be concerned in a proceeding or business transacted or about to
be transacted by himself or which had a connection with the official functions of himself or of a public
servant to whom he was subordinate or from a person known to the accused to be interested in or
related to the person so concerned. AIR 1947 FC 9.
.4. "From a person concerned, etc.".—(l) The words "a person concerned, etc." must mean a
third party. A subordinate of an officer cannot be considered as a person concerned in any business
transaction of the officer. AIR 1968 Mad 117 (135): 1968 CrELJ 493 (DB).

5. "Valuable thing"..—(l) The word "gratification" used in S. 161 and the words "valuable
thing" in this section are not mutually exclusive- in their connotations and may apply to bOth sections.
AIR 1959 Born 543.
6. "Or of any public servant to whom he is subordinate".—(l) The word "subordinate" has
been used without any qualification, and therefore the accused need not be a subordinate in respect of
those very functions with which the business or transaction referred to in the section is concerned. AIR
1963' SC 550.
(2) Where an appeal against the rejection of an application for export licence was pending before the
Joint Chief Controller of Imports and Exports and a gratification in respect of that matter was acceded
by an Assistant Controller of Imports who was only an administrative subordinate of that officer it was
held that he was guilty under this section even if he had no function to discharge in connection with
the appeal before the Joint Chief Controller of Imports and Exports. AIR 1963 SC 550.
7. Practice.—Evidence—Prove: (1) That the accused is a public servant.
(2) That he has accepted or obtained or has agreed to accept or has attempted to obtain for
himself or fOr someone else, a valuable thing.
(3) That he gave' no consideration for it or gave a consideration which he knew to be inadequate.
(4) That the person from whom the accused accepted, etc. the same, was known to the accused to
have been, or was or was likely to be, concerned in a proceeding or business transacted or about to be
transacted by himself or which had a connection with the official functions of himself, or of a public
servant to whom, the accused was subordinate or from a person known to the accused to be interested
in, or related to the person so concerned.
8.. Procedure.—(1) An offence under this section being cognizable, the question of sanction for
prosecution under Section 196A, Criminal P. C. (5 of 1898) does not arise. AIR 1973 SC 2204,
(2) A police officer who is a complainant cannot investigate into the matter. (1984) / Recent
CriRep 437 (P & H).
(3) Cognizable—Summons—Not bailable—Not compoundable—Triable exclusively by the
Special Judge..
9. Charge.—(l) Where a public servant received gratification partly on one day and pdrtty on
another day and was charged under Ss. 161 and 165 it was held that the offence was a continuous one
and that a separate conviction under Section 165 could not be maintained. (1901) 5 CaIW N 332 (PB).
(2) Where in a charge under Sections 161 and. I 20B a case was proved under Sec. 165 and the
accused was not prejudiced by the non-framing of a charge, under Section 165 it was held that he could
be convicted under S. 165. AIR 1947 Cal 162.
Sec. 165A Of Offences by or relating to Public Servants 413
(3)Sanction to prosecute under Ss. 161 and 165—Facts on which proposed prosecution is based
must be put before sanctioning authority—Condition satisfied—Sanction held was valid. (1957) 29
CuILT3I (DB);
(4) The charge should run as follows:
1; (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being a public servant in the—Department, accepted
(or obtained etc.) for yourself (or for a valuable thing viz,—without consideration) (or for consideration
which you knew to be inadequate) from—whom you knew to have been concerned in a proceeding (or
business transacted by you) viz,—(whom you knew to be interested in, or related to, the person so
concerned) and thereby. committed an offence punishable under section 165 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge.
10. Sanction.—Sanction under section 6(5) of Act XL of 1958 is necessary for prosecution.

-. Section 165A
9 [165A. Punishment for abetment ofôffences defined in sections 161 and
165.—Whoever abets any offence punishable under section 161 or section 165 shall,
whether the offence abetted is or is not committed in consequence of the abetment, be
punished With the punishment provided for the offence.]
Cases and Materials : Synopsis
I. Scope of the Section. 9. Abetment of offence under this section.
2. "Whoever abets". 10. Charge.
3. Mens tea. 11. Procedure.
4. The bribe innst be to a public servant. 12. A ccused is a competent witness on his own
S. A cquittal of principal offender—Effect. behalf.
6. Offence is cognizable. - 3. Practice.
7. Sanction to prosecute. 14. Proof.
8. Who may try offence under this section. 15. Sentence.
1. Scope of the section.—(1) Illustration (a) to section 116, Penal Code makes 'it clear that the
offer of the bribe would amount to an abetment under section 116, Penal Code and would necessarily
constitute an offence under section 165A. In a trial for the offence of offering a bribe to a public servant
the relevant question is the state of mind of the accused when he offers a bribe, it has nothing to do
with the question whether the public servant-is or is not in a position to do or not to do the act, for the
doing whereof the amount is offered to him.
(2) Courts should be very cautious and scrutinising in examining prosecution case under sections
161 and 165A, Penal Code for it is very easy to implicate a person in such a case on false all
Allegations of offence punishable under sections 161 and 165A are to be scrutinised with reference to an
official act. In the absence of an official act conviction under section 161 and 165A cannot be sustained.
24 DLR 230.

9. Section 165A was inserted by the Criminal Law Amdt. Act, 1953 (XXXVII of 1953).
414 Penal Code Sec. 165A

(3) Bribe giving does not cease to be an offence merely because some sort of inducement to pay can
be said to have proceeded from the police to whom the offer was made. Cases of this nature require
careful examination of fact to arrive at a proper conclusion. The appellant Saeed Ahmed was convicted
for paying a sum of money to two police officers OH and C in order to make a favourable report in
respect of an enquiry which was being conducted against him. A trap was laid to witness the passing of
money from the appellant to the police officer which was accordingly witnessed and the amount was
recovered from the appellant. The defence was that payment was made to ward off an intended arrest of
the appellant which the appellant apprehended from the attitude of the two police officers and this
attitude was purposely adopted by the police officers in order to create a fear in the mind of the
appellant and so, the appellant pleaded, the payment was a sort of extortion exercised by the police and
as such, it was not a case of pure bribe giving. Held: The case is clearly of the "agent provocateur"
type in which the police officers were themselves the agents. Their evidence would not be accepted at
its face value, but required for more careful scrutiny. Held: further Saeed Ahmed acted throughout on
his responsibility. If there was' inducement, it was by Saeed Ahmed to the police officer to "be kind"
and take the money. Things were arranged so by the police officers that Saeed Ahmed thought he could
make the payment without being observed. That does not amount to inducement, and the change in
the law made in 1962 is without effect on the case. But there can be no doubt that the final action of the
accused was influenced by the equivocal attitude displayed by the police officer C when he told Saeed
Ahmed that he was free to pay the bribe to the police officer Gil. If the latter would accept it his proper
duty was to want Saeed to .do no such things, and Saeed being aware of this, could not but have felt
that althougl' both GH and C had individually refused to accept the bribe from him, he was now bound
to pay the promised amount if he valued his safety. The situation was one of his own making through
his having come forward with the offer, but a word in the opposite sense from C would have left him
free to pursue the matter or not as he chose. As a result of what C said, he was no longer entirely , free
and that is a factor which should be given weight in relation to the punishment he deserves. It has been
necessary to re-extnine the entire evidence and circumstances at considerable length in this judgment
before coming to conclusions owing to the very exceptional nature of the case. The Special Judge's
acceptance of the story given by two PWs is based on. a failure to appreciate that the conduct of the
police officers was designed to be an invitation to Saeéd Ahmed to commit a crime, and 'consequently
had the "appearance" of complicity in that crime. 16DLR (SC) 484.
(4) This section was introduced in the Code by Act 46 of 1952. Before such introduction cases of
abetment of offences under Ss. 161 and '165 were held governed by Ss. 109 and 116 read with Ss. 161
and 165. AIR 1948 Nag 245. .
• (5) Section 165A has made the abetment of offences under Sections 161 and 165, a substantive
offence and is an 'express provision of law' 'within the meaning of Ss. 109 and 116. AIR 1956 SC 8.
(6) A prosecution for an abetment of offences under Ss. 161 and 165 can be made only under this
section and not under Ss. 161 and 165 read with Section 109 or with Section 116 as the case may be.
A IR 1956 Manipur 9. .
(7) There is no such offence as Ss. 161/109 or Sections 161/116 existing after the introduction of
this section. AIR 1956 SC 8.
(8) The offence in law of Ss. 161/109 is precisely the same as that of S. 165A at least so far as the
abetment of an offence actually committed is concerned......the punishment both under Ss. 161/109
and S. 165A is the same. In fact, if S. 165A is ' to be regarded as a freshly created offence it did nothing
Of Offences by or relating to Public Servants 415
See: 165A
more than provide expressly what was already provided by the Code by the two other sections. The
change was in respect of offences not committed that is to say S. 161 read with S.. 116: AIR 1960,5C 409.
2. "Whoever abets".—( 1) Even the mere fact that the accused asked the public servant to take
something from him and make an order in his favour was held sufficient to constitute abetment even
though no money was placed before the public servant. AIR 1979 SC 1191.
(2) Offering bribe—Offence is made out when public servant is offered bribe for acting in favour of
bribe giver. It is not material whether that servant was in a position to do fa vour or not. 1982 CriLJ
(NOC) 113.
3. Mens rea.—(1) In a trial for the offence of offering a bribe to a public servant the relevant
question is the state of mind of the accused when he offered the bribe. It has nothing to do with the
question whether the public servant to whom the bribe was offerçd was or was not in a position to do
or not to do the act for which the bribe was offered. AIR 1967 Orissa 31.
4. The bribe must be to a public servant.—(1) A commissioner appointed without jurisdiction
by a Civil Court to seize certain account books of the plaintiff is not a 'public servant' and an offer of a
bribe to him would not be within this section. AIR 1961 SC 218.
• 5. Acquittal of principal offender—Effect.—(I) Where the abetment is by instigation or
conspiracy, the acquittal of the principal offender does not necessarily result in the acquittal of the
abettor, but in cases of abetment by aid i.e., by facilitating the commission of the offence, where the
principal offender is acquitted of the offence on the ground that he did not commit the offence no
question of aiding the commission of the offence would arise and there can be no conviction for
abetment of the offence. AIR 1959 SC 673.
6.Offence is cognizable.—(l) Where cognizance of an offence under Section 165APenal Code, is
taken and the trial has proceeded to termination, the invalidity of the investigation, by reason of failure•
to obtain permission to investigate it under the Prevention of Corruption Act, will not vitiate the result
unless miscarriage of justice has been caused thereby. AIR 1958 Manipur 17.
(2) An offence under this section is cognizable and there is no question of its being cognizable if
investigated by a Deputy Superintendent of Police and non-cognizance when investigated by an
Inspector of Police. AIR 1973 SC 2204.
7. Sanction to prosecute.—(1) Where cognizance of the offence under Section 165A has already
been taken and the case has proceeded to termination, the invalidity of the precedent investigation
cannot vitiate the result unless it has caused miscarriage of justice. 1973 CriLJ 806 (Raj).
(2) Where the charge against the accused is under section 165A
. . no previous sanction for
prosecution is necessary.
8. Who may try offence, under this section.—(1) A Special Judge to whom a case under
Sections 161/1.16 had been distributed, took cognizance of the case after the enactment of Section
165A, and convicted the accused under S. 165A, which offence he was not authorised to try. It was
held that the Court had no jurisdiction to try the case and the conviction was bad. AIR 1953 SC 8.
(2) Offence exclusively triable by Special Judge—Magistrate is not deprived of his power to take
cognizance of an offence, under 5. 190, Cr. P.C.—Power of Magistrate to take cognizance of an offence,
under S. 190, Cr. P. C. has not been taken away by Cr. Law Amendment Act. A IR 1967 Pat 416
9. Abetment of offence under this section.—(1) In view of Explanation 4 to S. 108 there can be
an abetment of the offence under this section which is itself an abetment of an offence under Sections
161 and 165. AIR 1954 Punj 228.
416 Penal Co4 Sec. I5A
10. Charge.—(l) Where A was charged for an offence of abetment under this section and the High
Court in appeal changed the conviction to one under S. 161/116 on the ground that Section 165A had
not come into existence at the time of the offence, and maintained the sentence as given by trial Court,
it was held that the error in the charge did not prejudice the accused in the trial and that the High
Court's order was neither without jurisdiction nor illegal on that ground. AIR 1960 SC 409.
(2) The charge should run as follows:
I, (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, abetted who was a public servant in the commission of
an offence under section 161 or section 165 of the Penal Code and thereby committed an offence
punishable under section 165A of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
11. Procedure.—(l) The offence contemplated by Sec. 165A, P.C. is by its very nature a serious
one and every care must be taken that the same is properly and thoroughly investigated. 1976 CriLJ
1281 (Born).
(2) Tue Sub-Inspector of Police is not authorised under the Prevention of Corruption Act to
investigate an offenceunishabIe under S. 165A without the order of a Magistrate of the First Class as
the case may be or make any arrest therefor without a warrant. 1982 MadLW (Cr1) 112.
(3) Cognizable—Summons—Not bailable—Not compoundable—Triable exclusively by the
Special Judge.
12. Accused is a competent witness on his own behalf.—(1) By virtue of the Prevention of
Corruption Act,, the accused in a trial for an offence under this section is a competent witness on his
own behalf. AIR 1957 SC 458. .
(2) The Court is not bound to inform the accused that he is competent witness on his own behalf
and the failure to do so will not render the conviction bad. AIR 1954 All 204.
13. Practice.—Evidence—Prove; (1) That the accused abetted the offence.
(2) That the offence abetted was under section 161 or 165 of the Penal Code.
14. Proof.—(1) It is not necessary for the prosecution to prove the reasons which impelled the
accused to pay to bribe. AIR 1961 Tripura 8.
(2) Trap and decoy witnesses are interested witnesses, their evidence should be received with
caution and the probability of the truth of the defence explanation cannot be ruled out in every case.
(1967) 33 CuILT 649.
(3). Trap and decoy witnesses cannot be regarded as accomplices and a conviction based on their
uncorroborated evidence will not necessarily be illegal. AIR 1955 NUC (Him Pra) 1295.
(4) Conviction of Sanitary and Food Inspector under Ss. 161, 165A—Accepting of illegal
gratification in lieu of not taking sample of any edible article sold by hotel owner alleged—Hotel owner
being an accomplice his testimony held could not be relied on without corroboration. 1981 Al/Li
1153.
(5) Where important persons who played a vital role in a case were not produced or examined in
Court there would be no justification for conviction. 1979 Cr1LR (SC) 1.
(6) Benefit of doubt—Entire Prosecution Case resting solely on testimony of police witnesses—
Reasonable doubt as to accused's guilt—Accused acquitted. AIR 1976 SC 985:'
Sec. 165B Of Offences by or relating to Public Servants . 417.

(7) Hostile witness—Cross-eXamination under Section 154—Value of his evidence—Prosecution

under S. 165, Penal Code—Conviction upon such evidence not barred. A IR 1976 Sc 202.
(8) The fact, that two or more persons conspired together to do an unlawful act may be collected
from collateral circumstances when offences are committed under Ss. 165A and 1200. The direct
evidence ' will be seldom forthcoming and it is therefore necessary to look at the circumstances to see
whether a conspiracy actually existed which is largely inferential. 1980 Cr1LJ NOC 140.
15. Sentence.—(1) Offence of offering bribe must, in general, be severely punished. AIR 1954 All
223.
(2) It is the gravity of the offence and not smallness or largeness of the amount offerred that must
guide the Court in awarding sentence. AIR 1954 Tray -Co 492. ,.
(3) Fact that bribe was offered to avoid harassment is no consideration for further reduction of
sentence of imprisonment below six months. A IR 1973 sc 2751.
(4) Attempt to corrupt responsible public servant—Sentence of 6 months' imprisonment and a fine
of Rs. 1,000 held was not severe. A IR 1960 SC 756
(5) Public servant indulging in anti-social acts should be dealt with deterrence—Prosecution for
offence pending since 1971—Accused lost his job—Held that ends of justice would be met if instead of
imposing substantive trm of imprisonment accused is sentenced to fine. 1980 CriLJ NOC.140 (All).

Section 165B
10 [165B. Certain abettors excepted.—A person shall be deemed not to abet an
offence punishable under section 161 or section 165 if he is induced, compelled,
coerced, or intimidated to offer or give any such gratification as is referred to jn section
161 for any of the purposes mentioned herein, or any valuable thing without
consideration, or for an inadequate consideration, to any such public servant as is
referred to ii section 165.
Cases
1. Scope.—(1) Bribe-g iver' s offer of money to some extent influenced by the equivocal attitude of
the police— Police action condemned. SaeedA hmedVs. State (1964) 16 DLR (SC) 4.84.
(2) Offence of bribe-giving committed before enactment of section 165B exempting bribe-giving
under inducement or threats from operations of section 165A—Will not be affected by provision of
section 165B. "Deemed" in section 165B does not mean that Court is thereby directed to "convict" or
"not convict". Substantive and procedural matters—Whether an act is or is not an offence is a matter of,
substantive law. Saeed Ahmed Vs. State (1964) 16 DLR (SC) 484.
(3) Bribe giver's offer of money to some extent influenced by the equivocal attitude ol 'police—
'police action condemned. Where bribe obtained through threats—Bribe giver and "abetto —In spite
of the fact that bribe was paid under threats—Section 165B provides only a specialexemption in favour
of such abettor absolving him of liability. Offence of "misconduct" by public servants—offence may be
abetted by a bribe-giver. Offence of bribe giving committed before enactment of s€:tion 165B
exempting bribe giving under inducement or threats from operation of section 165A will br affected by
U,
10. Section 165B was inserted by the Pakistan Penal Code (Arndt.).Ordiance. 1962 (L!X of 1962).
418 . Penal Code Sec. 166

provisions of section 165B. "Deemed" in section 165B does not mean that Court is thereby directed to
"convict or not convict"—Substantive and procedural matters—whether an act is or is not an offence is
a matter of substantive law. 16 DLR (SC) 484.

Section 166
166. Public servant disobeying law with intent to cause injury to any
person.—Whoever, being a public servant, knowingly disobeys any direction of the
law as to the way in which he is to conduct himself as such public servant, intending
to cause, or knowing it to be likely that he will, by such disobedience, cause, injury to
any person, shall be punished with simple imprisonment for a term which may extend
to one year, or with fine,, or with both.
Illustration
A , being an officer directed by law to take property in execution, in order to satisfy a
decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that direction
of law with the knowledge that he is likely thereby to cause injury to Z A has committed
the offence defined in this section.
Cases and Materials
1. Scope.. _(l) There must be an express direction of law to satisfy the requirements of section
166: a disobedience of an order is not sufficient even through that order may be one given under a
provision of law. The accused ought to be informed by a charge and otherwise of the particular
direction of the law as to the way in which he is to conduct himself as a public servant; which he is
alleged to have disobeyed. An offence under this section does, not fall under section 195, CrPC, as
such, Sessions Judge is not competent to file acomplaint. PLD 1963 (Kar) 624.
(2) The essential ingredients to be proved for a conviction under this section are:
(a) that the accused is a public servant;
(b) that there are directions of law as to the way in which he should conduct himself as such
public servant;
(c) that he disobeyed such directions
(d) that he so disobeyed them intending thereby to cause or knowing it. to be likely that he may
thereby cause injury to any person. 1979 MPLJ 682.
(3) An advocate is not a public servant and he cannot commit an offence under Section 136, P.C.
1982 UP Cri R 296.
(4) The disobedience may be by an act or an omission to do an act. A IR 1962 Bomn 198.
(5) A witness cannot take a circuitous route in returning home and is not protected by S. 135.
Civil ProcedurE Code if he takes a circuitous route and the officer of the Court arresting him while he
was returning by a circuitous route commits no offence under S. 166. AIR. 1924 A ll 676
(6) In cases such as those under this section and under S. 342 the - complaint should be made as
early as possible. A delay in such cases may be almost fatal to the prosecution. A IR 1952 V indPra 57
(7) Section 197 of the Criminal Procedure Code will apply to complaints against public servants
under this section, for disobedience (by acts or omission) of any direction of the law as to the way in
Sec. 167 Of Offences by or relating to Public Servants 419

which they should conduct themselves as such public servants, and a prosecution without such
sanction is not sustainable. AIR 1962 Born 198.
(8) Complaint under Ss. 166 and 1 . 67, P.C. without obtaining sanction—Magistrate examining
complainant and his witness—Sanction obtained—Magistrate ordering production of witness :on
adjourned date under S. 204, Cr. P.C. without complying with S. 200.. Cr. 'P.C. again—Held: non-
compliance with S. 200, Cr. P.C. again was not an illegality and the Magistrate could proceed further.
(1983) 1 Crimes 8.66 (Delhi). .
• (9) Neither Rule 7 of the Administrative Tribunal Rules read with Order XXI, Rule 32 of the Code
of Civil Procedure nor the power of the Administrative Appellate Tribunal to punish for contempt is
sufficient or effective to get the orders of the Administrative Tribunal Executed within a reasonable time
and hence the processes for the execution of the orders of the Administrative Tribunal are not sufficient
so as to hold that these writ petitions are not maintaiflable. The respondents have committed an offence
punishable under section 166 of the Penal Code. Accordingly, the petitioners individually are directed
to file an application to the Administrative Tribunal for making a complaint under section. 166 of the
Penal Code against the officer or officers who failed to implement the Tribunal's order or orders in
question and forwarding the same to a Magistrate having jurisdiction to try the offence. Abdul Maleque
Miah (Md) and seven others . V s Secretarty Ministry of Establishment & others (Spi. Original) S
BLC 695.
2. Practice.— Evidence— Prove: ( I) That the accused was a public servant.
(2) The he conducted himself in the particular manner charged.
(3) That such conduct was in the exercise of his public duties as such servant.
(4) That such conduct was in disobedience to a direction of law. . ..
(5) That when the accused disobeyed such direction of law, he did so knowingly.
(6) That when the accused was guilty of such disobedience, he thereby intended or knew that he
was likely thereby to cause an injury. . . . .. . . .
3. Procedure._Cognizable—Warrant —NOt bailable—Not compoundable—Triable exclusively
by .the Special Judge. . .. .
4. Charge.—The charge should run as follows:
1, (name and office of the Special Judge)hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, did (or omitted to do as the case may be), such
conduct being contrary to the provisions of Act—section—, and known by you to be prejudicial to—
and thereby committed an offence punishable under section 166 of'the Penal .Code and within my
cognizance.
And I hereby direct that you be tried on the said charge. .
5. .Sanction.—(I) No Court can take cognizance of an offence under this section without the
previous sanction as contemplated under Act XL of 1958. . ...
(2) In the absence of previous sanction by the appropriate Government,, the accused could not be
prosecuted for an offence under this section. Anwar Md. Vs. Rashiduzzaman. (1959) II D L I? ( WP) 77.

Section 167
167. Public servant framing an incorrect document with intent to cause
injury.—Whoever, being a public servant and being, as such public servant,' charged
420 Penal Code .. Sec. 167

with the preparation or translation of any document, frames or translates that

do.iiment in a manner which he knows or believes to be incorrect, intending thereby to
cause, or knowing jtto be likely that he may thereby cause, injury to any person, shall
be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both. . .
Case and Materials Synopsis
1. Scope of the section. of any document'
2. This section and Section 193. 8. Practice.
3. This section and Sections 466 and 467. 9. Procedure.
4. Intention or knowledge. 10. Charge.
5. "Preparation" and "frame" 11. Sanction.
6. Preparing false copies. 12. Sentence.
7. "Charged with the preparation or translation
1. Scope of the section.—This section is analogous to section 218 of the Penal Code. The
distinction between Ss. 167 and 193 is that while S. 167 relates to an incorrect preparation of a public
record, section 193 would apply when the record relateá to a judicial proceeding. AIR 1945 Mad 9.
(2) Without proving that the accused was entrusted with the preparation of the document—
conviction not legal. In order to sustain a conviction under section 167, the prosecution must at least
show that it was the general or, at any rate, the special duty of the accused to prepare or translate the
document with reference to which the offence under the section is alleged to have been committed.
Unless the prosecution led some evidence to show that the accused was entrusted with the preparation
of-the document his conviction under section 167 is not legally maintainable. 10 DLR 354.
(3) This section is aimed against a public servant in charge of the preparation or translation of
documents who frames or translates such documents incorrectly intending thereby to cause or knowing
it to be likely that he may thereby cause injury to any person. Where a public servant is charged with
such preparation or translation, he is so charged in public interest. AIR 1926 All 719.
(4) In order that an accused may be convicted under this section the following essentials must be
established:-
(i) that he was a public servant,
(ii) that he was charged with the preparation or translation of a document,
(iii) thathe framed or translated it incorrectly, .
(iv) that his intention in so doing was to cause or that he knew that, his doing so was likely to
cause injury to any person. 1980 BiharLJ 493.
2. This section and S. 193.—(1) While this section applies to publicd servants, S. 193 applies
to all persons. A public servant, charged with the preparation of a document fabricating that document
may come within, both the sections. Thus an Arnin making a fr)se return on an execution process in
the.course ofjdicial proceedings may be guilty under both sections. AIR 1945 Mad 9.
3. This section and Ss. 466 and 467.—(I) Offences under this section and S. 466 are not of the
same kind. 1882 10 Cal LR 421 (DB). .
(2) An offence under S. 467/471 may include an offence under this section where the ingredients
necessary under this section are also satisfied. AIR 1926.Oudh 615.
Sec 167 Of Offences by or relating to Public Servants 421

4. Intention or knowledge.—(1) For a conviction under this section it must be proved that the
accused had, in doing the act of framing or translating the document incorrectly, a clear intention to
harm, or had knowledge that his act was likely to harm some person. A IR 1966J& K 96.
(2) An act intended or known to be likely to cause injury to the Government will be covered by
this section. (1971) 2 SC Cr! R 318.
(3) An intention to cause injury can be proved by evidence of the subsequent conduct of the author.
AIR 1973 SC 1338.
5. "Preparation" and "frame".—(l) The two words 'preparation' and 'frame' obviously cannot
mean the same thing. It is a cardinal rule of interpretation of statutes that where two distinct words are
used in the same section, they do not mean identically the same thing. AIR 1929 All 33.
(2) The following are illustrations of the framing of documents by public servants for purposes of
this section:— .
(a) Making of a false report. AIR 1930 Lah 92.
(b) Making a false entry by the station house officer in his diary. (/911)12 CriLi 502 (Mad).
(c) Investigating Police Officer incorrectly entering statements of witnesses examined by him
under S. 161. Criminal P.C. (1897-1901) 1 Upp Bur Ru! 29.
(d) Insertion by a Patwari of a new page in a revenue record falsely showing certain persons as
sharers. AIR 1965 Raj 9. .
(e) Preparation of false electoral roll. AIR 1941 Pat 539.
(3) Where a public servant's duty is only to 7naintain a correct record but is not entrusted with
preparation or making entries in the record, he cannot be held liable for preparing a false record. 1982
All Cr1 R 264.
6. Preparing false copies.—(1) Preparation of a false copy will be "framing" of an incorrect
document within the meaningof this section. AIR /926 All 719.
(2) Where coal was despatched contrary to rules but under written instruction of superior officer and
the accused dispatcher prepared forwarding notes and railway receipts it was held that the accused could
not be attributed a criminal design in his mind. He was therefore held not guilty under Section 167,
P.C. 1984 BiharLJ 116 (Pat).
7. "Charged with the preparation or translation of any document".—(I) The words t'charged
with the preparation or translation of any document" in this section shows that there must be legal duty
imposed on the public servant to prepare the document. Where there is no such duty the signing by the
public servant of a document prepared by another is not an offence under this section. (1969) 71 Born
LR669.
(2) The section should be construed liberally. When a Head Clerk, in addition ta his ordinary
duty, is specially appointed to prepare the Electoral Rolls, he is a public servant charged with the
preparation of Electoral Rolls: AIR 1941 Pat 539.
(3) The section is attracted when a public servant is charged with a duty of preparation of a
document and he frames an incorrect document. Reasons recorded by the Minister for giving the
directions to the Oil Corporation could not be classified as preparation of an incorrect document. 23
Delhi L T 499.
8. Practice.— Evidence— p rove: (I) That the accused was a public servant.
422 Penal Code Sec. 168

(2) That he had the charge of the preparation or translation of the document.
(3) That he had such charge in his capacity of a public servant.
(4) That he framed or translated it in an incorrect manner.
(5) That he knew that he was incorrectly framing or translating the same.
(6) That he did as above, with intent or with knowledge that it was likely that he would thereby
cause injury.
9. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
10.Charge.--The charge should run a g follows:
.1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being a public servant to wit—and being, as such
public serQant charged with the preparation (or translation) of the document relating to—, framed (or
translated) that document in a manner which you knew to be incorrect, intending thereby to cause
injury to—and that you thereby committed an offence punishable under section 167 of the Penal Code
and within my cognizance.
And I hereby direct that you be tried on the said charge.
11.Sanction.—Sanction of Government is necessary under section 197. CrPC before prosecution
is launched.
12.Sentence.—(l) An official, however humble, who deliberately tampers with official records and
issue false copies, whatever his motive, deserves severe punishment, not merely.for his own conduct,
but as a deterrent to .others who may be tempted to follow his example. A IR 1926 A ll 719.

Section 168
168. Public servant unlawfully engaging in trade.—Whoever, being a public
servant and being legally bound as such public servant not to engage in trade, engages
in trade, shall be punished with simple imprisonment for a term which may extend to
one year, or with fine, or with both.
Cases and Materials
1. Scope.—(1) This section shows that the Legislature wants to punish those who have divided
loyalty in official work on the part of the Government servants and to restrict their time and devotion to
the official duties, barring them from other occupations as long as they remain in Government service,.
(2) The object of prohibiting public servants from - engaging themselves in trade is to put a check
on every kind of jobbery and every fraudulent and improper use of office by public servants: (1911) 12
CriLi 281 (Nag).
(3) The section requires three elements to constitute the offence under this section:
(i) that the offender is a public servant,
(ii) that as such he is legally bound not to engage in trade, and
(iii) that he engaged in trade. (1974) 15 GujLR 293.
(4) The word is one of very general application and must always be considered with the context
with Hch it is used and in its wide sense the word is used "to cover every kind of trade, business,
profe t or occupation". A IR 1951 Born 233.
Sec. 169 Of Offences by or relating to Public Servants 423

(5) Clerk of Circle Board renting his house to the Board falls within the section. A IR 1939
Rang 69.
(6) Engagement of accused, a Government employee, as Railway Service Apprentice—Does not
amount to engaging in 'trade' within the contemplation of S. 168. A IR 1980 SC 1167(1168).
(7) No sanction under S. 197, Cr. P.C. is necessary for taking cognizance of offence under S..168.
AIR 1932 Nag 133.
(8) Prosecution underS 168, P.C., read with. District Boards Act need not be started on a
complaint of the Board or of some person authorised by the Board. AIR 1933 All 543.
(9) Where the case is one of gross abuse of an official position by a public servant extending over a
fairly long time, a deterrent punishment is called for. AIR 1951 Born 233.
I
2. Practice.— Evidence--Prove: ( 1) That the accused was a public servant.
(2) That he, as such, was legally bound not to engage in trade.
(3) That he had engaged in trade.
3. Procedure.—Cognizable—Summons—Not bailable—Not compoundable—Triable exclusively
by the Special Judge.
4. Charge..—The charge should run as follows:
I. (name and office of the Special Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being a public servant, to wit—, and being as such
public servant, legally bound not to eugage in trade, did engage in trade, and thereby committed an
offence punishable under section 168 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction.—Sanction for prosecution of public servant is necessary.

Section 169
169. Public servant unlawfully buying or bidding for property.—Whoever,
being a public servant and being legally bound as such public servant not to purchase
or bid for certain property, purchases or bids for that property, either in his own
name or in the name of another, or jointly, or in shares with others, shall be punished
with simple imprisonment for a term which may extend to two years, or with fine, or
with both ; and the property, if purchased, shall, be confiscated.
Cases and Materials'
1. Scope.---(1) A public servant who purchases, or bids for property 'in contravention of provisions
which prohibit him from doing so will be guilty of an offence under this section. AIR 1925 Oudh 565,
(2) When it is alleged that the public servant purchased property in the name of another person, it
is for the prosecution to prove the said act. AIR 1938 All 513.
(3) A member of a District Board appointed to sell impounded cattle is a public servant within the
meaning of this section. AIR 1926 Oudh 565.
2. Practice.— Evidence---Prove: ( 1) That the accused was a public servant.
(2) That he as such was legally bound not to purchase or bid for-the property in question.
424 Penal Code - Sec. 170

(3) That he did purchase or bid for that property either in his own name or in the name of another
or jointly or in shares with others;
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day of—, at—, being a public servant, employed in department and
being legally bound as such public servant, not to purchase (or bid for) certain property, viz—
purchased (or bid for that property) in your name or in the name of—or jointly or in shares with—and
thereby committed an offence punishable under section 169 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction.—Sanction—under section 197, CrPC is necessary before a prosecution is launched
under this section.

Section 170
170. Personating a public servant.—Whoever pretends to hold any particular
office as a public servant, knowing that he does not hold such office or falsely
personates any other person holding such office, and in such assumed character does
or attempts to do any act under colour of such office, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Cases and Materials : Synopsis
1. Scope of the section. distinct offences.
2. "Pretends to hold any particular office ". 8. Joint trial for offences under Ss. 170 and 175.
3. "Public servant' 9. Charge for offence under this section and also
4. "Knowing". other offences— Sentence.
5. "Under colour of such office' 10. Practice.
6. "Does an act" IL Procedure.
7. 'Several acts each constituting an offence done 12. Charge;
by the person personating another— W hether.
1. Scope of the section.—(1) The second part of section 170 of the Penal Code relates to false
personation and not fraudulent personation. Any act done or attempted to be done under the false
personation is enough. 12 DLR 823.
(2) It is necessary that the accused should have, in the assumed character, done or attempted to do
an act under colour of such office. A IR 1967 Cal 602
(3) In a charge for an offence under this section, the prosecution must prove-
(i) that the accused pretended to hold a particular office or falsely personated any other person
holding such office;
(ii) that when he pretended to hold a particular office, he did so knowing that he did not hold such
office, or that where he personated any other person such personation was false ; and
Sec. 170 Of Offences by or relating to Public Servants 425
(iii) that in such assumed character he did or attempted to do an act under colour of such office.
AIR 1967 Cal 602.
(4) The offence under S. 416 is of a general character, and applies to a person who pretends to be
someone else. This section lays a specific offence dealing with persons who pretend to hold the office,of"
a public servant or who falsely personate a public servant. A IR 1958 Madh Pra230,
2. "Pretends to hold any particular office".—(l) It is true that in order to prove the case within
the four corners of S. 170, it is not necessary for the prosecution to prove that the office which the
offender pretended to hold existed or not. Nevertheless the law requires that to punish a person Sunder
Section 170 the office which the . offender is said to have pretended to hold was a specific office. 1980
(UP) Cri LR 190.
(2) The words "any particular office" mean "any specified office". AIR 1953 All 549 (549).
3. "Public servant".—(l) A petition-writer is not a public servant and a personation of a petition
writer is not within this section. (1897-1901) 1 Upp Pur Rul 265.
4. "Knowing".—(l) Although ignorance of law does not excuse a person who does an act which
is an offence irrespective of any guilty knowledge, yet where to constitute an offence it must be shown
that the accused had a particular knowledge, the offence is not committed by one who acts without that
knowledge and it is immaterial whether the absence of knowledge proceeded from ignorance of law or
ignorance of fact. (1976) I W eir 74 (DB).
(2). This is one of those sections of the Penal Code in which a dishonest intention has not been
made an essential element of an tnce. A1PJ951 All 481.
5. "Under colour of such office".—(l) The words "under colour of such office" are not limited
to such act as might legally be done by a real holder of such office. (1904) 1 CriLi 913 (A ll).
(2) The phrase 'under colour of office' "points to acts which could not have been done without
assuming the official authority or responsibility and would not connote acts of a ministerial or
mechanical character which might be done without requiring the justification of office in the person
doing them". (1907) 5 CriLJ 211 (Born)
(3) The act done under the assumed office must have a relation to the duties pertaining to duties
that office. AIR 1967 Cal 602.
(4) Where a person pretended to be a C.I.D. officer and obtained the services of certain persons who
were bound to render it to such officers, it was held that the accused acted under the colour of his office.
AIR 1941 Nag 321
6. "Does an act".—(l) A promise is not 'act'. A promise by a person pretending to be a C.I.D.
officer that he will appoint a person as a constable is not an 'act'. AIR 1943 Pat 378.
• . 7. Several acts each constituting an offthce done by the person personating another- .—
Whether distinct offences.—(l) It cannot be said that in doing the various acts successively, the
person personating is successively, committing distinct offences. AIR 1951 All 481.
8. Joint trial for offences under Ss. 170 and 175.—(1) A joint trial for offences under Ss. 170
and 175 is illegal and is contrary to the provisions of Ss. 232 and 235 of the Cr. P.C. (5 of 1898). AIR
1933Mad 434. • . .
9. Charge for offence under this section and also other offences—Sentence.—(1) Where an
accused person is convicted under S. 171 of wearing a garb of a police constable and under S. 170 of
426 Penal Code Sec. 171.

personating, by means of such garb,a police constable and, in such assumed character . of ordering a
person to be kept in custody it was held that.a single sentence only ought to be passed on him. 1895
Rat Un Cr C 405 (DB).
10. Practice.— Evidence— Prove: ( 1) That the accused personated some public servant or that he
pretended to hold the office of a public servant.
(2) That he was not a public servant or that he did not hold such office.
(3) That he acted falsely in such personation or that he knew that he did not hold such office.
(4) That he when assuming such character did or attempted to do something under colour of such
office..
11. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate. .
12. Charge—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—,at—, pretended to hold the office of—as a public servant (or
falsely personalted—holding such office) and in such assumed character did (or attempted to do) under
colour of such office and thereby committed anoffence punishable under section 170 of the Penal Code
and within my cognizance. .
And I hereby direct that you be tried on the said charge.

Section 171.
171. Wearing garb or carrying token used by public servant with fraudulent
intent.—Whoever, not belonging to a certain class of public servants, wears any garb
or carries any token resembling any garb or token used by that class of public
servants, with the intention that it may be believed, or with the knowledge that it is
likely to be believed, that he belongs to that class of public servants, shall be punished
with imprisonment of either description, for a term which may extend to three
months, or with fine which may extend to two hundred 8 [taka], or with both.
Cases and Materials
1. Scope.—( I) Merely wearing the garb of a particular class of public servants or carrying a token
used by such class of public servants is enough to constitute the offence if it is done with the intent of
being taken to be such public servant. (1835) 7 C and P 784.
(2) In order to constitute an offence under this section, the accused must wear the garb resembling
that worn by the class of public servants whom he wants to imitate. Merely carrying that garb under
his arm is not enough. Thus, where the accused is found carrying a police jacket under his arm, he
cannot be coivicted under this section, though he may have done so with the intent that he should be
taken to be a Police Constable. (J904) .1 c'riLJ 554 (UppBur).
(3) Where (1) the accused wears the garb of a certain class of public servants with the intent that he
should be taken to be such public servant and (2) also does something under colour of his assumed
office, the first part of his offence will by itself fall under this section, but both the parts will together
-. constitute the offence defined in S. 170. Hence, S. 71 (Paragraph 3) will apply to such a case and the
Sec. 171 Of Offences by or relating to Public Servants 427

accused cannot be sentenced to a more severe -punishment than can be imposed under S. 170, the
offence under which is the graver of the two offences. 1888 Rat Un Cri C 405.
(4) Where the accused impersonates a public servant by wearing his garb, etc., and commits
extortion, he will be liable to punishment both for false personation and also for extortion (S. 383).
1887 AIIWN 274. - -
2. Practice.— Evidence— Prove: ( 1) That the accused wore the garb or carried the token in
question; -
(2) That such garb or token resembles that of a public servant.
(3) That the accused did not belong to the class of public servants who use such garb or token.
(4) That he did as in (1) with the intention, or with knowledge that it was likely that it might be
believed he was such public servant. -
3. Procedure.—Cognizable----Summons—Bailable—Not compoundable—Triable by any
Magistrate—Summary trial.
4. Charge.—The charge should run as follows: - -
I-, (name and office ofihe Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, not belonging to class of public servants wore the garb
of such a class of public servants namely—(or carried token—namely which is used by—class of public
servants) with the intention that it may be believed (or with the knowledge that it is likely to be
believed) that youbelong to that class of public servants and thereby committed an offence punishable
under section 171 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
'[CHAPTER IXA
Of Offences relating to Elections

Chapter introduction.— This chapter was introduced in the Code by the Elections
Offences and Inquiries A ct (X X X IX of 1920) to give effect to the recommendations of the
Joint Select Committee appointed to report on the Government of India A ct, 1919. In
their Report they observed: "The Committee are themselves firmly convinced that a
complete and stringent Corrupt Practices A ct should be brought into operation before the
first election for the Legislative Councils. There is no such A ct at present in
existence...... ". A ct X X X IX of 1920 was, therefore, enacted to provide for the punishment
of ma/practices in connection with elections, and to make further provision for the
conduct of inquiries in regard to disputed elections to legislative bodies constituted under
the Government of jndia A ct. This A ct was repealed by the National and Provincial
A ssemblies (Elections) A ct, 1964 A ct No. V II of 1964). A gain, the latter was repealed by
the National and Provincial A ssemblies , (Elections) Ordinance, 1970 'Ordinànce No. X III
of 1970). Finally, this Ordinance has now been repealed by the Representation of the
People Order, 1972 (P.O. No. 155 of 1972). W e may see, in this connection, the
Representation of the People Order, and the rules made thereunder. A ny person may fall
within the offences of bribery, 'undue influence, personation at election within the
provisions in this chapter or for false statement or illegal payments in connection with
any election or failure to keep election accounts. A IR 1975 SC 2219;

Section 171A
171A. "Candidate"—"Electoral right" defined.—For the purposes of this
Chapter,—
(a) "candidate" means a person who has been nominated as a candidate at any
election and includes a person who, when an election is in contemplation,
holds himself out as a prospective candidate 'thereat; provided that he is
subsequently nominated as a candidate at such election;
(b) "electoral right" means the right of a person to stand or not to stand as, or to
withdraw from being, a candidate, or to vote or refrain from voting at an
election.
- . Cases
I. Scope.—(1) Chapter IX-A containing Ss. 171-A to 171-I was inserted into the Code by Act 39
of 1920 and deals with offences relating to elections. Apart from these provisions, which are of a general

I.
Chapter IXA was inserted by the Elections Offences and Inquiries Act, 1920 (XXXIX of 1920), S. 2.
Sec. 171 B Of Offences, relating to Election 429

nature there may be provisions in special Acts, like Municipalities Acts, etc., which may contain
provisions as to offences committed in connection with elections under those Acts. A IR 1929 Mad 910
(2) (912). .
(2) The definition of 'candidate' is wide enough to include even a person holding himself out as a
prospective candidate when the election is in contemplation subject to the condition that he is
subsequently nominated as a candidate. A candidate who has withdrawn his candidature would be
included within the definition of 'candidate'. A IR 1964 Punj 209. (DB).
(3) When a question arises whether a person has become a candidate at a given point of time, what
has to be seen is whether he had clearly and unambiguously declared his intention to stand as a
candidate so that it could be said of him that he held himself out as a prospective candidate. A IR 1955
SC 775.
(4) Mere forming of an intention to stand for election is not sufficient unless that intention is
communicated to the outside world by declaration or conduct. A IR 1955 SC 775.
(5) The determining factor is the decision of the candidate, not acts of other persons or bodies
adopting him as their candidate. A IR 1955 SC 775.
(6) The right of a Government servant to nominate or second a candidate for election is not taken
away by the Representation of the People Act. A IR 1954 SC 202. -
(7) The right to nominate .a candidate is not an 'electoral right' within the meaning of this. section.
A IR 1970 SC 2097.
(8) The term 'election' is very wide and may be taken to embrace the whole procedure whereby an
elected member is returned whether or not it is necessary to take a poll. A IR 1952 sc 64.
(9) The stage of rejection or acceptance of a nomination paper is included in the term 'election'.
A IR 1952 SC 64.
(10) If there is an election petition the stages till the decision of the election . tribunal may also be
included in the term 'election'. A IR 1952 Born 277 (DB);
(II) The right to vote or stand as a candidate for election is not a common law right nor a
fundamental right under the Constitution but is a creature of a statute and subject to the limitations
imposed by it. A IR 1952 SC 64.

Section 171B
171B. Bribery.—(1) Whoever-
(i) gives a gratification to any person with the object of inducing him or any other
person to exercise any electoral right or of rewarding any person for having
exercised any such right or
(ii) accepts either for himself or for any other person any gratification as a reward
for exercising any such right or for inducing or attempting to induce any other
person to exercise any such right;
commits the offence of bribery:. .
Provided that adeclaration of public policy or a promise of public action shall not
be an offence under this section.
430 Penal Code Sec. 171B

(2).A person who offers, or agrees to give, or offers or attempts to procure, a

gratificatyi shall be deemed to give - a gratification.
(3) Aperson who obtains or agrees to accept or attempts to obtain a gratification
shall be deemed to accept a gratification, and a person who accepts a gratification as a
motive for doing what he does not intend to do, or as a reward for doing what he has
not done, shall be deemed to have accepted the gratification as a reward.
Cases and Materials
I. Scope.—(1) Section 171B defines the offences of bribery at an election. Bribery is defined
primarily as the giving or acceptance of a gratification either as a motive or as a reward to any person
either to induce him to stand or not to stand or to withdraw from being, a candidate or to vote or
refrain from voting at an election. It also includes offers or agreements to give or offer and attempts to
procure a gratification for any purpose. This section may be readalong with section 161 of the Penal
Code for the purposeof explanation of gratification. Charitable gifts at the time of election may, in
conceivable cases,ambunt to corrupt practice or bribery, provided motive behind the charity was
corrupt. Charitable giftsmay be merely a spacious and subtle form of bribery but bonafide charity has
always been allowed. If a candidate for election gives a promise of obtaining personal advantage to.
voters, he commits the corrupt practice of bribery. The accusation of bribery is in the nature of a
criminal charge, and the same kind of evidence is required to prove such a charge in proceedings arising
Out of an election petition as is necessary in a criminal prosecution.
(2) Before the amendment of Section 123 by Act LVIII of 1958 which inserted clause (B) in sub-
section (I) of Section 123, an acceptance of a gift made to a candidate with the intention of inducing
him to drop out of the election contest did not amount to bribery. AIR 1958 SC 857.
(3) Where a candidate dissuades the rival candidate from standing at the election and offers him
money for withdrawal of candidature, his conduct comes within this section. AIR 1938 Cal 274.
(4)The offence of bribery under S. 171-B, being a criminal offence, clear and unequivocal proof is
required and the Court must be satisfied beyond all reasonable doubt that the offence is proved. AIR
1967 A ndhPra 155.
(5) The Court must seek for independent corroboration, on material points, of the evidence of an
accomplice and should not rely on the sole testimony of an accomplice. A IR 1968 Punj 416
(6) Where the validity Of an election is challenged on the ground of "corrupt practice" in the form
of "bribery" the Court is not at liberty to weigh the importance of an act of bribery nor canit allow any
excuse,- whatever the circumstances may be and even a single act of bribery by or with the knowledge
and consent of the candidate or his agents, however insignificant that may be, is sufficient to invalidate
the election. A IR 1961 MadhPra 127 (DB).
(7) Where a person gives some land to a voter by an unregistered deed of sale, for refraining from
voting, the deed, though unregistered is admissible in evidence for the collateral purpose of considering
whether offence of "bribery" was committed. AIR 1957 AndhPra 845.
(8) Whether a gift or promise of such a gift made for a public purpose does or does not amount.to
bribery depends upon the facts and the circumstances of each case. AIR 1968 Punj 416.
(9) For finding out whether a particular promise or act amounts to gratification, two tests have to
be satisfied: first, that the gratification must be something which is calculated to satisfy a person's aim
Sec. 171C Of Offences relating to Election 431

object or desire and secondly, such gratification must be of some value though it need not be
something estimable in terms of money. AIR 1968 Punj 416.
(10) It is not necessary that the gratification offered should be of value only to the person to whom
it is offered and not to anybody else. AIR 1968 Punj 416.
(II) Whether the object in giving gratification was achieved or not is immaterial. The motive of
the briber and not the effect on the bribed is the test. AIR 1942 Rang 52.
(12) Where the object of candidate distributing sweets to school-children was at the most, to
make himself popular in his constituency, it was held that it could not amount to bribery. A IR 1961
All 356 (DB).
•(13) Promise during election period of gun licences to people who vote for a certain candidate does
not amount to bribery—Bargaining for votes, what amounts to. A IR 1976 SC 27 (Pr12).
(14) A person who gives gratification to a voter for refraining from voting at an election commits
the offence of "bribery" under this section. AIR 1957 AndhPra 845.
(15) Where a candidate dissuades the rival candidate from standing and offers money to him for
withdrawing his candidature his conduct comes within the definition of "bribery". AIR 1938 Cal 274.

Section 171C
171C. Undue influence at elections.—(1) Whoever voluntarily interferes or
attempts to interfere with the free exercise of any electoral right commits the offence
of undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-section (1),
whoever—
(a) threatens any candidate or voter, or any person in whom a candidate or voter
is interested, with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or any
person in whom he is interested will become or will be rendered an object of
divine displeasure or of spiritual censure, .
shall be deemed to interfere with the free exercise of the electoral right of such
candidate or voter, within the meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action, or the mere.
exercise of a legal right without intent to interfereewith an electoral right, shall not be
deemed to be interference within the meaning of this section.
Cases and Materials Synopsis
1. Scope of the section. 3. Subsection (2)
2. Undue influence-W hat constitutes. 4. Sub-section (3)
1. Scope of the section.— (1) A friendly advice or an influence arisingfrom gratitude or esteem is
not undue influence unless thereby the functioning of a free mind is destroyed (A IR 1959 Orissa 188).
In order to constitute undue influence, a threat must be serious and deliberately uttered with the
intention of carrying it into effect. A religious leader has a right to exercise his influence in favour of a
particular candidate by voting for him and by canvassing votes of others for him..
432 Penal Code Sec. 171C

(2) The postponement of the date for election affecting the right of a candidate to fight the election
amounts to an "interference" with the election process. ILR (1970) 20 Raj 382.
2. Undue influence—What constitutes.—(l) What is material under the law is not the actual
effect produced but the doing of such acts as are calculated to interfere with the free exercise of any
electoral right. A IR 1959 SC 855.
(2) Decisions of the English Courts, based on the words of the English . statute, which are not
strictly in pari materia with the words of the Indian Statute, cannot, therefore, be used as precedents. in
this country. A IR 1959 SC 855.
(3) The words "undue influence" are used in contradistinction to proper- influence which may be
secured through affection bestowed or from kindness displayed. A IR 1961 Punj 383.
(4) The expression "undue influence" as defined in Representation of the People Act has the same
meaning as it has in S. 171-C of Penal Code. A IR 1982 NOC 70 (Gauhat).
(5) A friendly advice or an influence arising from gratitude or esteem is not undue influence unless
thereby the functioning of a free mind is destroyed. A IR 1961 Punj 383 (386) (DB).
(6) An influence which exists from attachment or respect or which results from arguments or
appeals to the reasons ind judgment is not "undue". A IR 1961 Punj 383 (386) (DB).
(7) Though the definition of "undue influence" contained in S. 171C is wide in terms it cannot
take in mere canvassing in .favour of a candidate at an election. A IR 1968 SC 904.
(8) Inducements to vote by wrongly imputing statements to leaders cannot be said to amount to
interference with the free exercise of the right of voting. AIR 1959 All -264.
- (9) Whether a statement is a statement .of fact or mere expression of an opinion depends on the facts
of each case and has to be judged with reference to the circumstances in which it is made and if in
writing the context in which it appears. A IR 1967 SC 808.
(10) Where a candidate seated in an easy-chair was remarking, as the voters were proceeding, that
gosha women need not vote and that the better thing for them would be to remain at home and that his
own wife remained at home, it was held that he was not guilty under S. 171-C. A IR 1934 Mad 27.
(11) Where the District Election Officer issued a circular that gosha. lady-voters would have to
unveil themselves in the polling booths if their identity was challenged by the candidates or their -
agents and in accordance with that circular, a candidate insisted on each purda voter unveiling herself in
accordance with the circular, it was held that the candidate was not guilty of any offence under Section
171C.A IR 1934 Mad 27.
(12) Where the complainant, a- candidate for election was prevented from coming out of his house•
and going to the voters by his rival candidate and the latter's supporters were picketing the formers
house, it was held that the accused, the rival candidate was not guilty of an offence under this section.
A IR 1926 Láh 297.
(13) If a political party is criticised on the ground that it has a communal outlook, that its policy
is to suppress the members of another community and that people should not vote for c'ommunal
organisations because the essential policy of that orgánisation is to further the ends of a particular
community at the cost of themembers of the other community, the appeal in such a. case also would be -
to the members of a-community but it would not be on the ground of religion or community but on
the ground of the wrong policy of the particular organisation and hence it will not be an offence under -.
this section. A IR 1959 A ll 264. -
Sec. 1 7 1D . Of Offences relating to Election 433

(14) It is doubtful whether a mere assertion that the voters would be kafirs if they vote for a non-
Muslim candidate would amount to the exercise of undue influence. A IR 1959 A ll 264:
(15)A religious leader merely using his great influence in favour of a particular candidate by voting
for him and by canvassing votes of others for him will not be guilty of the offence under this section.
A IR 1959 SC 855.
(16)It is doubtful whether an agreement between different candidates to secure votes for one another
on the ground of caste or religion, will amount to an offence under this section. A IR 1959 A ll 264.
(17)There can be undue influence even as the elector goesthrough the mental process of weighing
the merits and demerits of candidates and makes his choice and that the distribution of a pamphlet by
post or otherwise, imputing immorality etc. to a candidate would constitute undue influence within.
this section. A IR 1970 sc 2097.
3. Sub-section (2).—(1) The definition of "undue inf1uence' in sub-section (1) is wide in its
terms. Sub-section (2) is merely illustrative and cannot cut down the generality ofthe provisions in
Section 171-C (.1). A IR 1968 SC 904. .
(2) A religioui leader has a right to exercise his influence in favour of any particular candidate by
voting for himand by canvassing votes of others for him but where a religious leader practically leaves
no free choice to the electors, not only by issuing in writing a hukam or farman, but also by his
speeches, to the effect that they must, vote for a particular candidate implying that disobedience of his
mandate would carry divine displeasure or spiritual censure, his conduct will come within sub-sec. (2)
(b). A IR 1959 SC 855. .
(3) A representation by a candidate that he was a representative of Lord Jagannath and that persons
not voting for him would be sinning against God and also be committing sacrilege against dharma,
would constitute an offence under this section. A IR 1964 Orissa 1.
(4) The words "without prejudice to the generality of the provisions of sub-s. (1)" are not intended
to cut down the generality of the meaning of the preceding provision. A IR 1970 SC 2097.
4. Sub-section (3).—(1) The criticism of the policy of a political party on the ground that it has a
communal outlook does not amount to "interference" . A IR 1959 A ll 264.,
(2) The allegations that the house of a Mautavi was searched by the Congress Government and that
Urdu "our mother tongue" was being suppressed do not amount to appeal to the members of the
Muslim community alone. The latter allegation is only a criticism as to the language policy and
hence, not punishable under this section. A IR 1959 A ll 264.'
(3) Telling people not to vote and making false representations to them that voting would lead to
increase of taxes and toconfiscation of voters' properties is not an Offence under S. 171-C. , AIR 1922
Mad 337. .
(4) A Minister has a right to ask the public to support the candidates belonging to the Minister's
party an&therefore such canvassing does not amount to undue influence. A IR 1968 SC 904.
(5) Canvassing for votes is not a part of the "electoral right", as defined in S. 171A (b) and hence,
interference with such canvassing is not an offence under this section. A IR 1926 Lah 297.

Section 171D
171D. Personation at elections.—Whoever at an election applies for a voting
paper or votes in the name of any other person, whether living or dead, or in a
434 Penal Code Sec. 171 D

fictitious name, or who having voted once at such election applies at the same election
for a voting paper in his own name, and whoever abets, procures or attempts to
procure the voting by any person in any such way, commits the offence of
personation at an election.
Cases :'Synopsis
1. Scope of the section. 6. , Abetment.
2. Mens rea. 7. "Procures or attempts to procure, the voting by
3. "Applies for a voting paper". any person".
4. Personatiön at election. 8. Burden of proof.
5. Double voting.
I • Scope of the section.—(I) The essence of the offence of personation is the offender pretending
tobe other than what he really is. AIR 1956 Andhra 65.
(2) The mere fact that in a Bar Council Election. A, a voter, hands over his voting paper along
with his declaration form to-B, a candidate at such election, and the latter marks the voting paper, there
is no personation of A by B so as to attract the applicability of this section. AIR 1956 Andhra 65.
2. Mens rea.- ..--( I) Mens rea is a constituent part of the offence under the section and the accused
cannot be convicted unless he is proved to have had a guilty mind. AIR 1.959 Orissa 97.
(2) The intention of the accused is to be judged from the circumstances of the case and in the light
of the common sense. A IR 1956 MadhB 241.
• (3) When a person goes to a polling station and applies for a voting paper under a false name
corrupt motive is implied in this very act. AIR 1965 Guj 83.
(4) The circumstances that it was the first election on the basis of adult franchise and that the
percentage of literacy in the country in which the election was 'held was low cannot be altogether
ignored in deciding the question whether the accused had a guilty mind. AIR 1956 MadhB 241.'
3. "Applies for a voting paper".—(l) When the accused is charged with personation at An
election the first element to be proved is that he had applied for a voting paper at the election in
question. When a person goes for votirrg, his name and the fact that he has not already voted are
checked by the first Polling Officer. The person must be held to have applied for a voting paper. at this
stage though the actual issue of ballot paper is done by the third Pollingfficer. A IR 1965Guj 83.
4. Personation at election.—(l) The section is wide enough to cover the case of a man who
knowing that he has no vote and tiat another person bearing the same name as himself has a vote
applies for a voting paper in the name of that person. AIR 1937 Sind 21.
(2) In a municipal electoral roll, Mohammad Din son of Faqir Mohammad was recorded as a
person entitled to vote. The accused Mohammad Din whose father's name was admittedly Abdullah
asked for a voting paper in the name of Mohammad Din son of a Faqir Mohammad and when
questioned, asserted more than once that his father's name was-Faqir Mohammad. It was held that the
accused was guilty of personation. AIR 1929 La/i 52.
(3) Where a voter at a Bar Council election hands over to a candidate his voting paper along with
his declaration form, permitting the candidate to mark the votes as he thinks fit, and the candidate
makes marks on the voting paper, the candidate does not commit the offence of personation. AIR 1956
A ndhra 65.
Sec. 171 E Of Offences relating to Election 435

5. Double voting.—(1) The section inter alia provides that if a person having voted once at an
election applies at the same election for a voting paper in his own name he commits the offence of
personation at an election. Thus double voting is an Offence under the section. AIR 1924 Mad 487.
6. Abetment.—(I) if a voter is not present at the polling station and the candidate recklessly
identifies the voter without ascertaining his identity he is guilty of abetment of personation at election.
AIR 1928 All 150.
7. "Procures or attempts to procure the voting by any person".—(l) One H induced one F to
personate B, but when F took the voting paper of B to the presiding officer the thing was detected and
F could not vote as B. H was prosecuted and convicted for inducing F to personate B. It was
contended that as F was not successful in voting as B there was no offence of personation and hence, H
could not be convicted; It was held that the offence of personation was complete though F could not
vote as B and hence, the conviction was proper. 122 ER 628.
8. Burden of proof.—(l). The section mentions various elements which separately go to
constitute the offence of personation at an election. Before a person can be convicted of the offence the
prosecution must prove the facts which bring the accused within the particular provisions of the
section. AIR 1937 Sind 21.

Section 171E
171E. Punishment for bribery.—Whoever commits the offence of bribery shall
be punished with imprisonment of either description for a. term which may.extend to
one year, or with fine, or with both:
Provided that bribery by treating shall be punished with fine only.
• Explanation.— "Treating" means that form of bribery where the gratification
consists in food, drink, entertainment, or provision.
Cases and Materials
1. Scope.—(1) A case, where one accused is charged with having received abribe and the other
with having abetted in election. AIR 1922 Mad 62
2. Practice.—Evidence—Prove: Where the accused is the giver of the bribe:
(1)That he gave gratification to a particular person.
(2) That he did so with the object of(a) inducing him or any other person to exercise any electoral
right or (b) rewarding any person for having exercised any such right.
Prove: Where the accused is the acceptor of the bribe:
(1)That he accepted either for himself or for any other person a gratification.
(2)That he did so as a reward;
(a)for exercising any electoral right, or
(b)for inducing or attempting to induce any other person to exercise any such right.
3. Procedure.—Not cognizable—Summons--Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
436 . Penal Code Sec. 171F

I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day of—, at—, gave a gratification to wit to AB with the object of
inducing him or CD to exercise any electoral. right (or rewarding any person for having exercised any
such right) and thereby committed an offence punishable under section ITIE of the Penal Code and
within my cognizance. .. .
And I hereby direct that you be tried on the said charge..
or
That you accepted for yourself (or for AB—) a gratification, to wit—as a reward for exercising your
or his election right or (for inducing or attempting to induce CD to exercise his electoral right).
5. Sanction—Previous sanction is necessary for prosecution under section 196 CrPC. 23
CrLf 148. . . .

Section 171F
• 171F. Punishment for undue influence or personation at an election.—
Whoever commits the offence of undue influence or personation at an election shall be
punished with imprisonment of either description for a term which may extend to one
year, or with fine, or with both.
Cases and Materials
I. Scope --(I) Section 171C defines undue influence and S. 171D defines personation at elections.
This section prescribes the punishment for those offences. A IR 1959 Orissa 97.
(2) The offender is liable to be punished under this section with imprisonment of either description
for a term which may extend to one year or with fine or with both. Butit has been held that the offence
of personation at elections is a most serious one and ordinarily should be punished with rigorous
imprisonment and not with fine only. A IR 1928 All 150.
(3) The fact that the accused who has abetted the offence of personation is a man of some education
and position and member of the Legislative Council cannot be urged in his favour as an argument for
the infliction of a lessor sentence. These considerations rather cut the other way and the offence must be
treated as one of special gravity in such a case. A IR 1928 A ll 150.
(4) The offence of false preparation of signature sheet at an election being specifically provided for
by S. 171-D read w-ith this Section, it is not open to the Court to try the offender under S. 465. A IR
1925 A ll 230.
2. Practice.— Evidence— Prove: ( 1) That the accused voluntarily interfered or attempted to interfere
, with free exercise of any election right; or
(2) That the accused threatened any candidate or voter or any person in whom a candidate or voter
is interested, with injury of any kind; or
(3) That the accused induced or attempted to induce a candidate or voter to believe that he or any
person in whom he is interested will become or will be rendered an object of divine displeasure or of
spiritual censure. . •
In the case of personation at an election, prove:
(I) That the accused at an election applied for a voting paper or voted in the name of any other
person whether living or--dead or in a fictitious name; or
Sec. 1710 Of Offences relating to Election 437

(2) That the accused having voted once at an election applied at the same election for a voting
paper in his own name; or
(3)That the accused abetted, procured or attempted to procure the voting by any person in any on
of the above ways. .. .
3. Procedure.—Not cognizable—Summons—Bailable-----Not compoundable—Triable by any
Magistrate.
4 Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, voluntarily interfered (or attempted to interfere) with
the free exercise of an electorate right to wit—threatened AB a candidate (or voter in whom CD a
candidate or voter, is interested with injury to wit—or induced or attempted to induce a candidate or
voter) at an election to wit—to believe that he or any person in whom he is interested to wit—will
become an object of divine displeasure (or spiritual censure) and thereby committed an offence
punishable under section 171F of the Penal Code and within my cognizance. Or
That you, on or about thd—day of—, at—, at the election to wit applied for a voting paper (or
voted) in the name of any other person namely,—who is living or dead (or in a fictitious name having
voted once at the said election applied at the same election for a voting paper in your name) or (abetted
or procured or attempted, to procure the voting as aforesaid in para I of section 171D) and thereby
committed an offence punishable under section 171F of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction.—Previous sanction is necessary for prosecution under section 196, CrPC.

Section 1716
171G. False statement in connection with an election.—Whoever with intent
to affect the result of an election makes or publishes any statement purporting to be a
statement of faèt which is false and which he either knows or believes to be false or
does not believe to be true, in relation to the personal character or conduct of any
candidate shall be punished with fine.
Cases and Materials Synopsis
1. Scope of the section. 5. This section and S. 171 C
2. Statement of fact.
6. Practice.
3. "In relation to the personal character or 7. . Procedure.
conduct of any candidate ". . 8. charge.
4. Section 171-G and S. 499. 9. Sanction.
Scope of the section.--(I) Under this section the points required to be proved are:
(a) that an election was impending;
(b) that the accused made or published a statement;
(c) that it purported to be a statement of fact;
(d) that it referred to the personal conduct or character of a candidate;
(e) that the accused made or published it with intent to prejudice the election of the candidate.:
and
438 Penal Code Sec. luG

(i that it was false to his knowledge or belief or he had no reasonable ground for believing it to
be true. AIR 1958 Mad 240.
(2) A case may be covered both by this section and S. 171-C. It is the degree of gravity of the
allegation which will be the determining factor in deciding whether it falls under S. 171-C or this
section. AIR 1970 SC 2097.
2. Statement of fact.—( I) A statement of fact is one of the falsity of which prima facie proof is
possible. A IR 1958 Mad 240.
(2) A distinction must be made between criticism and allegation of fact. AIR 1958 Mad 240.
(3) Where during an election the accused published a document in which there were only one or
two statements which could properly be described as statements of fact but the bulk was taken up with
general imputations of misconduct unaccompanied by any charges of particular acts of misconduct, it
was held that the accused could not be held guilty under this section. A IR 1932 Mad 511;
(4) Where the important statements in question were that because the candidate committed fraud in
respect of money in the fund office he was removed by the department and that the candidate had
removed from the list of voters names of those who did not vote for him in the previous election, it
was held that the first of the above statements might be construed as a statement of fact but the other
statement was only a general imputation of misconduct unaccompanied by any charge of particular acts
not amounting to a statement , of fact within the meaning of this section. AIR 1936 Mad 316.
(5) Publication by one of the candidates against the other of a statement that the latter was a leper,
knowing it to be untrue with the mala fide intention of injuring his reputation and humiliating him
before the public was held not to amount to an offence under this section. AIR 1940 Mad 230.
3. "In relation to the personal character or conduct of any candidate".—(l) The offence
defined in this section is the making of a false statement in relation to the personal character or conduct
of a candidate at the election. It does not apply to defmatory statements made about persons who are
not candidates. AIR 1936 Mad 316.
4. Section 171-6 and S. 499.—(1) Although offences under this section and under S. 499have
elements in common they have also elements which differ; It cannot be said that this section is a
species of the more general offence of defamation or that it is carved out of S. 499. Thus, prosecution
under this section is not obligatory when the offence is also under S. 500. AIR 1958 Mad 240.
(2) Offences under S. 171-G and S. 499 are separate and distinct. The main distinction is that
under S. I71-G allegations must be false whereas under S. 499 even if the allegations are true, a
complaint for defamation will lie unless the accused comes under any of the exceptions. In such a case
the Court can proceed with the prosecution under S. 500 without any sanction.. AIR 1970 Mad 509.
5. This section and S. 171C.—(]) It is the degree of gravity of the allegation which will be the
determining factor in deciding whether it falls under S. 171C or S. 171G. If the allegation, though false
and relating to a candidate's personal character or conduct made with the intent to affect the result of an
election does not amount to interference or attempt at such interference, the offence would be the lesser
one. If, on the other hand, it amounts to interference or an attempt to interfere, it would be the graver
offence under S. 171F read with S. 171C. AIR 1970 SC 2097.
6. Practice.—Evidence--Prove: (I) That the accused made or published any statement in relation
to the personal character or conduct of a candidate.
(2) That such statement was false and the accused either knew or believed it to be false or did not
believe it to be true.
Sec. 17! H Of Offences relating to Election 439

(3) That the accused made or .published such statement with intent to affect the result of an
election.
7. Procedure.—(1) No prosecution could be initiated for an offence under this section without the
complaint of the Government as provided in Section 196 of the Cr. P.C. AIR 1958 Mad 240.
(2) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
8. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused.) as follows:
That you, on or about the—day of—, at—, with intent to affect the.result of the election to wit—
made (or published) a statement in relation to the personal character (or conduct) of a candidate, to
wit—which statement is false and which you knew to be false (or which you did not believe to be true)
and thereby committed an offence punishable under section 171 G of the Penal Code.
And I hereby direct that you be tried on the said charge.
9. Sanction.—Previous sanction is necessary for prosecution under section 196 CrPC.

Section 171H
171H. Illegal payments in connection with an election.—Whoever without
the general or special authority in writing of a candidate incurs or authorise g expenses
on account of the holding of any public meeting, or upon any advertisement, circular
or publication, or in any other way whatsoever for the' purpose of promoting or
procuring the election of such candidate, shall be punished with fine which may extend
to five hundred 2[ta]
Provided that if any person having incurred any such expenses not exceeding the
amount of ten 2 [taka] without authority obtains within, ten days from the date on
which such expenses were incurred the approval in writing of the candidate, he shall
be deemed to have incurred such expenses with the authority of the candidate.
Materials
1. Practiee.—Evidence—P rove: (1) That the accused incurred or authorised expenses on account of
the holding of any public meeting or upon any advertisement, circular or publication or in any other
way.
(2) That he did so for the purpose of promoting or procuring the election of a candidate.
(3) That he incurred or authorised the said expenses without the general or special authority in
writing of the candidate. -
2. Procedure.—Not cogn izable—Summons—Bailable—Not coiipoundable—Triable by any
Magistrate.
3. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused).as follows:
That you without the genera! (or special) authority in writing of—incurred (or authorised) expenses
on account of the holding of a public meeting at—(or upon any advertisement, circular or publication.

2.
SLIbS. by Act VIII of 1973, s. 3 & 2nd Sch. (w.e.f. 26th March. 1971) for "rupees"
440 Penal Code Sec. 1711

Exhibit—or in any other way whatsoever) for the purpose of promoting (or procuring) the election of—
and thereby committed an offence punishable under section j l7lH of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.
4. Sanction.—Previous sanction is necessary for prosecution under section 196, CrPC.

/ Section 1711
1711. Failure to keep election accounts.—Whoever, being required by any law
for the time being in force or any rule having the force of law to keep accounts of
expenses incurred at or in connection with an election, fails to keep such accounts
shall be punished with fine which may extend to five hundred 2[taka].
Materials
1. Practice.—Evidence--P rove: (1) That the accused was requied by any law for the time being in
force or any rule having . the force of law to keep account of expenses incurred at or in connection with
an election.
(2) That he failed to keep such accounts..
.2. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
3. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
• That you being required by law for the time being in force to wit—(or by any rule having the force
of law to wit—) to keep accounts of expenses incurred at (or in connection with) the election to wit—
failed to keep such accounts and thereby committed an offence punishable under section 1711 of the
Penal Code and within my cognizance. .
And I hereby direct that you be tried on the charge.
4. Sanction.—Sanction is necessary for prosecution under section 196, CrPC.
CHAPTER X.
Of Contempts of the Lawful Authority of Public Servants

Chapter introduction.— One great division of the people subject to the penal
provisions of the Code, is between the public and the public servants. A s a necessary part
of the administrative machinery of a country, the latter possesses certain exceptional
rights and privileges. A s persons possessing often great power they are necessarily subject
to special penalties against its abuse. A s such, the last chapter dealt with the
delinquencies ; this chapter relates to their rights against the public. This chapter which
consists of 19 sections denounces all disobedience to the lajvful authority of public
servants. A s such, it codifies the various pre-existing regulations on the subjeci and it lays
down in one place all' contempts whether they relate to the lawful authority of the Courts
of Justice, or of Officers of the Revenue, or of the Police. ..
These three classes of public servants do not necessarily require the same protective
provisions, but, as the authors remarked, in view of the combination of the three functions
frequently in the same person in this country and "while the division of labour between
the different departments of the public service is so imperfect it would be idle to make nice
distinction between those departments in the Penal Code ". .
The chapter deals with contempt in its various forms, but its underlying. principles are
that, in order to subject a person to the penal visitation of its provisions, the order must
be legal and its disobedience intentional. These two elements are common to all offences
described in this chapter. There are others which form the special prerequisites of one or
more of them, but these will have to be considered under the section to which they relate.
Of course, the penalties provided in this chapter do not exclude the imposition of
other penalties, If the circumstances of the case so warrant. Indeed, the offences here
• described are really those acts done in contempt of the lawful authority of public . servants
which, but for the special provision here made, would not be otherwise .punishable. They
do not, of course, affect other coercive powers possessed by public servants to compel
obedience to their orders, whether by arrest or proclamation, attachment or sale of
properly, or otherwise: . •
In Chapter X Secs. 172 to 190 of the Penal Code deal with the offences constituting
"contempts of the lawful authority of public servants ". .A Magistrate could be .covered by
the definition of a public servant given by Sec. 12 of the Penal Code. But, the sections
given in Chapter X of the Penal Code relate to particular kinds of contempts of the lawful
• authority of public servants, and, none of these cover the kind of acts which were
committed by the appellants with the object of stifling a prosecution..
'442 :
Penal code Sec. 172

Section 172
172Absconding to avoid service of summons or other proceeding.—Whoever
absconds in order to avoid being served with a summons, notice or order proceeding
rqm any public servant legally competent, as such public servant, to issue such
qumthcns, notice or order, shall be punished with simple imprisonment for a term
which may extend to one month, orwith fine which may extend to five hundred
'[taka], or with both;
or; if the summons or 'notice or order is to attend in person or by agent, or to
produce a document in.a Court of Justice, with simple imprisonment for a term which
may extend to six months, or with fine which may extend to one thousand '[taka], or
with both.
Cases and Materials
l.Scope.—(1)The essential of this section is that a summons, notice or order had been issued
and that the accused knew or had reason to believe that ithad been issued. Moreover, the summons,
notice or order must be lawful which can be legally served on the accused. Warrant of arrest is not a
summons, notice or or&r and the order is addressed to the officer and not to the person whose presence
is required. Therefore, an absconder from a warrant cannot be convicted under section 172 (30 CrLJ
203).
(2) This section makes absconding of a person in order to evade being served with a summons,
notice or order an offence. The object of the section is to punish an offender for the contempt. which his
conduct indicates, of the authority whose process he disregards. (1882) ILR 4 Mad 393.
(3) Where a Police Officer arrested the complainant and his witnesses with the object of stifling
prosecution for an offence, it was held that the police officer was guilty of contempt of Court, under the
said Act, the case being.one not falling under any of the Ss. 172 to 190 of the Code. AIR 1972 SC 905.
(4) The word 'abscond' means to hide oneself. The term is not to be understood as necessarily
implying that a person leaves the place where he is. If a person conceals himself he is said to abscond
even if he does not change l-s place. Nor does the term apply only to commencement of the
concealment, If a person having concealed himself before a process is issued continues to do so after it
is issued he absconds. (1882) ILR 4 Mad 393.
(5) The expression "in order to avoid being served" implies that the absconder knows or at least
has reason to believe that the process has been issued. If the accused has no knowledge of the fact that
the process has been issued, he cannot he held guilty under this section. (1882) ILR 4 Mad 393.
(6) The burden lies on the prosecution to prove knowledge of the fact that the process had been
issued and not on the accused to disprove it. ('1882) !LR 4 Mad 393 "398) (DB).
(7) This section does not apply to non-appearance of a person served with a summons or notice.
To such a case S. 174 applies. AIR 1953 All 200.
(8) A refusal to accept a summons or notice is not an offence under tl1is section. (1924) 1 Oudh
14'N 159.

Substituted by Act Vii Of 193, S. 3 and 2nd Sch. for 'rupees' (we. f. 26-3-1971).
Sec. 173 Of Contempts of the Lawful Authority of. Public Servants 443
(9) The provisions of this section do not cover the absconding of a person for the purpose of
evading execution of a warrant of arrest. AIR 1928 All 232.
(10) An accused evading a warrant of arrest, however, would be committing a contempt of Court
and can be punished by the High Court under the Contempt of Courts Act. A IR 1940 A ll 386
(11) Where the Magistrate passed an order "Let an order be issued under S. 552, Criminal P. C., 5
of 1898, to the Police to produce the woman, b.fore me in Court on Monday next (19th . August 1935)
togethr with the police report. Inform parties also", it was held that the order was not one which could
be considered to be intended:'o be served and which the party could be said- to have evaded by
absconding. AIR 1936 Al! 354. .. ..
2. Practice.—Evidence—Prove: (1) That the-process in question was summons, notice or order.
(2) That the same was issued by a public servant. . .
(3) That such public servant was legally competent as such to issue it.
(4) That such process was issued in order to be served on the accused.
(5) That the accused absconded in order to avoid being served with such process.
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate, Summary trial. . ..
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—absconded in order to avoid being served with a
summons (or notice or order) proceeding from (name of public servant and state his office) and thereby
committed an offence punishable under section 172 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge..
5 Complaint.—Complaint in writing of the public servant concerned or of some other public
servant to whom he is subordinate is required (section 195, CrPC).

Section 173
173. Preventing service of summons or other proceeding, or preventing
publication thereof.—Whoever in any manner intentionally prevents the serving on
himself, or on any other person, of any summons, notice or order proceeding from any
public servant legally competent, as such public servant, to issue such summons,
notice or order, ..
or intentionally prevents the lawful affixing to any place of any such summons,
notice or order, . . .
or intentionally removes any such summons, notice or order, from any place to
which it is lawfully affixed, .
or intentionally prevents the lawful making of any proclamation, under the
authority of any public servant legally competent, as such public servant, to direct
such proclamation to be made,
444 Penal code Sec. 173

shall be punished with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred '[taka], or with both;
or, if the summons, notice, order or proclamation is to attend in person or by
agent, or to produce a document in a Court of Justice, with simple imprisonment for a
term which may extend to six months, or with fine which may extend to one thousand
t [taka], or with both. .
Cases and Materials
1. Scope.-(1) A refusal to accept a summons, notice or order or to sign a receipt for it does not
amount to intentionally preventing service within the meaning of this section, as a tender itself is a
sufficient service. A IR 1926 A ll 304.
(2) In the case of service by tender, the tender must be a real tender of a document which is
understood by the person to be served and he must have voluntarily waived actual delivery and
indicated in some way that a tender was sufficient. A IR 1928 A ll 118.
(3) Preventing personal service must be, in each case, a question of fact. A IR 1928 A ll 118.
(4) A man who gels away from the serving officer with the obvious intentionof not allowing him
to hold any communication with him at all and shuts himself in his house is intentionally preventing
service either by tender or by delivery. A IR 1928 A ll 118.
(5) Where the accused persons when they were offered appointment certificates (appointment as
special constables) belts and batons, refused to receive them and refused to serve as special constables it
was held that such refusal was not an offence under this section. (1906) 3 Cri Li 169 "Cal).
• 2. Practice.—Evidence--Prove: (1) That the process in question was a summons, notice or order
or a direction for a proclamation.
(2) That the same was issued or made by a public servant legally competent to issue such process;
or that such public servant ws legally competent to direct such proclamation to be made, the same
being lawful, and under his authority.
(3) That such summons, notice or order, was issued to be served either upon the accused, or upon
someone else or that such summons, notice or order, had been, or was to be lawfully affixed to some
place, or that such proclamation was about to be made.
(4) That the accused prevented such service of the summons, notice or order, or that he prevented
the affixing thereof.
(5)sThat the accused did as above intentionally.
For the second clause of the section, prove further—
(6) That the process or proclamation required the attendance of the accused (either in person or by
• agent) or the production bf a document.
(7) That such process or proclamation was to attend .or to produce the document in a Coi . irt of
Justice.
2. Procedure.—Not cognizable—Summons--Bái lable—Not compoundable—Triable by any
Magistrate. .
3. Complaint.—Complaint in-writing of the public servant concerned, or of some other public
servant to whom he is subordinate is required under section 195, CrPC.
Sec. 174 Of Contempts of the Lawful Authority of Public Servants 445

Section 174
174. Non-attendance in obedience to an order from public servant.—
Whoever, being legally bound to attend in person.or'.by an agent at a certain place and'
time in obedience to a summons notice; order or proclamation proceeding from any
public servant legally competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from the place
where he is bound to attend before the time at which it is lawful for him to depart,
'shall be punished with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred '[taka], or, with both;.
or, if the summons, notice, order or proclamation is to attend in person or by agent
in a Court of Justice, with simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand l [taka], or with both.
Illustrations
(a) A , being legdlly bound to appear before the 2 [Supreme Court of Bangladesh] in
obedience to a subpoena issuing from that Court, intentionally omits to appear.. A has
committed the offence defined in this section.
(b) A , being legally bound to appear before a Zila Judge, as a witness in obedience
to a summons issued by that Zila Judge, intentionally omits to appear. A has committed
the offence defined in this section. .
Cases and Materials Synopsis
1. Scope of the section 7. "Legally competent......to issue the same".
2. "Legally bound to attend......in obedience to 8. "intentionally omits to attend".
a summons" etc. 9. "Departs from the place......before the time".
3. Appearance by agent. 10 Punishment.
4. "AL a certain place and time".
11. Practice.
5. "Summons, notice, order or proclamation". 12. Procedure.
6.. "Proceeding from any public servant".
13. Complaint

I. Scope of the section.—:(l) Non-attendance is punishable when order passed is legal and issued
legally. Under section 174 of the Penal Code non-attendance in obedience to an order from public;
servant is punishable only , when the said order was a legal order and was issued by a public servant
legally competent to issue the same.
(2) This section may be read with section 485A, CrPC. The offence contemplated by section 174
is an intentional omission to attend at a place or time at which the accused is bound to attend.
Summons should be very clear and specific as to the title of the Court, the place at which day, and the
time of thday when the attendance of the party summoned is required. An offence under this section
cannot be tried by a Magistrate in whose Court the accused has failed to appear. The prohibition is
absolute and the consent or otherwise of the accused is immaterial (35 Cr Li 1166):

2.
The words within square brackets were substituted for the words "High Court of East Pakistan" by the Bangladesh Laws
(Revision and Declaration) Act, 1973, 2nd Sch. (w. e. f. the 26th march, 1971).
446 Penal code . Sec. .174

(3) This section prescribes punishment for any person who being legally bound to attend at a
certain place and time in obedience to a summons, notice, order or proclamation issued by a legally
competent public servant inTtentionally Qmit ,s to attend at the place or time. A IR 1926 A ll 474.
2 "Legally bound to attend......in obedience to a summons" etc.—(1) In order to sustain a
conviction under this section it must be shown that the person was legally bound to attend in
obedience to a summons etc. For this it is necessary to prove that the person had notice to appear at a
certain time and place and the summons was brought to his knowledge. A IR 1955 NUC (Him
Pra) 4301.
(2) , Before there can be a conviction under this section there must be service on the accused
according to law and under a legal summons. A IR 1920 A ll 304.
(3) Where in a proceeding under S. 107, Criminal P.C., the Magistrate passed an order addressed
to the Sub-Inspector of Police requiring him to inform the party of the alteration of the date originally
fixed for hearing it was held that the accused committed no offence by not appearing on the altered date.
(1890) A ll W N I. .
(4) In order to makéa person punishable under this section it must also be shown that his personal
appearance was necessary or required. (1920) 2 Lah LI 539.
(5) Where a Gram Panchayat issued a notice to the accused directing him to show cause why
action should not be taken against liim for breach of rules framed under Panchavat Act for some
contruction; it was held that the notice did not in any way require the attendance of the accused before
the Gram Panchayat. 1962 MPLJ (Notes) 331 (DB.
(6) In a land acquisition case the District Judge issued notice to the .party to appear on the date
fixed in person, warning him that if he did not so 'appear the case would be heard ex parte; The accused
appeared by a pleader. It was held that the matter before the Court was one in which personal
attendance was not usually enforced without special reason. The party was really in the position of a
party to a suit and liable at the most to suffer the conequences of non-attendance by a party. (1911)12
Cri LJ'432 (A ll).
(7) There can be no legal obligation to obey an order unless the same is issued by a competent
authority. 1887 Pun Re (Cr) No. 14 (DB).
3. Appearance by agent.—(l) Where in a summons case, the Magistrate issued summons for the
attendance of the accused on the day fixed for trial and appearance was made on behalf of the accused by
his mukhtar who requested the Magistrate under Section 205, Criminal P.C., to dispense with the
personal attendance of the accused, it was held that the Magistrate should have told the mukhtar that he
required the personal attendance of the accused on some fixed day or otherwise he would issue warrant
of arrest. That the accused did not personally attend should not have been regarded as an offence under
this section. (1900) 5 Cal W N 131.
4. "At a certain place and time".—(l) It is essential in order to sustain a conviction under this
section that the accused person should have been left in no doubt both as to the place and time at
which his attendance is required. A IR 1948 A ll 137.
(2) 'A summons which requires a person to attend at a particular police station on a particular date
"between the hours of 3 and 5 in the afternoon" or "at such time as may be convenient between the
hours of 8 and .12 in the morning" would be such a summons as would render the person to whom it is
addressed liable to prosecution if he fails to obey it. A IR 1948 A ll 137.
Sec. 174 Of Contempts of the Lawful Authority of Public Servants 447

(3) A subpoena issued to a person which does not require him to attend at a certain place but calls
on him to attend either at a named than a or wherever the inspecting officer might happen to be is not .a
legal subpoena failure to comply with which can be punished under this section. AIR 1926 All 474.
5. "Summons, notice, order or proclamation".—(l) The words "summons, nptice, order or
proclamation" used in this section are different forms of directions for compliance and they do not
partake of the character of directions as such if they are not addressed to the persons whose attendance is
required but are addressed to a third person to produce them. AIR 1954 Kutch 25.
(2) The word 'citation' as used in Section 147 of the Land Revenue Act has not the full force of a
summons. It is rather in the nature of an invitation to appear than an order to attend. AIR 1930 All 265.
(3) A proclamation under Section 82, Criminal P.C. issued on 13 June 1950 and ordering the
accused to appear "within 30 days from today" and published on 29th June 1950 is legally defective
and the accused disobeying such defective proclamation cannot be prosecuted under this section. AIR
1955 Punj 18.
6. "Proceeding from any public servant".—(I) The summons, notice, order or proclamation,
must proceed from a public servant. A receivei appointed, under Section 56 of the Land Registration
Act (Bengal Act VII ofJ 876) is not a public servant. (1901) 6 Cal WN 141 (DB,).
7. "Legally competent ...... to issue the same".—(l) In order to sustain a conviction -under this
section it must be shown that the summons issued was by a . public servant legally competent, as such
public servant, to issue the same. AIR 1914 All 519.
(2) As S. 160, Criminal P.C., does not authorise the investigating police officer.to require the
attendance ofaperson who is not 'being within the limits of his own police station of any adjoining
police station' failure of such person to 'attend in such a case would not amount to an offence under this
section. 1975 Cr1 LJ 620. . .
(3) An order given to a subordinate police officer to produce a person before the S. I. of Police
investigating a criminal case is not an order contemplated by S. 160, Cr. P.C., and the failure of the
person to attend before the Sub-Inspector cannot be punished under this section. AIR 1954 Kutch 25.
(4) Section 160, Criminal P.C., cannot be invoked or any investigation or inquiry, by the police in
respect of a proceeding under S. 145 of that .Code. In the absence of such powers the person required to
attend can ignore the summons and cannot be prosecuted under this section. AIR 1968 Mad 225.
(5) Where a person was accused under the Prevention of Adulteration Act but the summons was
not applied for within 30 days from the date upon which the order of consent referred to in S. 12 was
made or giyeC, it was held that he . could not be prosecuted under this section for disobeying the
summons. AIR 1929 All 157. . .
(6) The Colledtor cannot take any proceeding or make any investigation in connection with a
partition case until the expiry of the period of appal against a partition proceeding. Therefore, until the
expiry of the period of appeal there is no suit or other business before the Collector within the meaning
of S. 193 of the Land Revenue Act for the investigation of which the attendance of a person is necessary
and the Collector is not legally competent under S. 193 of the Act to issue a summons to the person.
A IR 1916 A ll 96 . .
(7) Where in an application for an action to be taken under S. 107, Criminal P.C., the Sub-
Divisional Magistrate directed the Tahsildar to make inquiry into the matter and the latter issued a
summons to the accused to appear on a form provided for cases under S. 193 of the Land Revenue Act
448 Penal code Sec. 174

it was held that there was no summons issued according to law against the accused and his conviction
under this section was illegal. AIR 1920 All 304.
(8) Where a Tahsildar issued summons to some persons to explain, as to why they refused to
serve as coollies, it was held that the Tahsildar had no authority to issue such summons. (1904) /
CriLJ 497.
(9) As to illustrations of cases where it was held that the authority was not competent. 1975
Cri Li 620.
8. "Intentionally omits to attend".-41) In order to sustain conviction under this.section it must
be shown that the accused intentionally omitted to attend in pursuance of a summons issued by a
public servant. AIR 1914 All 519.
(2) Question whether omission to attend was intentional is one of fact. AIR 1954 Kutch 25,
(3) If the summons, etc., is served on the accused at a time when there is no sufficient margin left
for him to appear before the authority at the required time there cannot be intentional omission to
attend. AIR 1928 All 680.
(4) If a person is prevented from attending Court on a particular day or at the particular time fixed
on account of illness which incapacitates him from leaving, his place or on account of his being
summoned to attend at another place by another authority whom he cannot disobey his non-attendance
cannot be said to be intentional. (1960) 26 CutLT 571.
(5) Station master summoned to give evidence—Not attending court on stipulated date being
detained under express order of his superior and also due to non-availability of reliever—Station master
promptly informing Court on the date of hearing the reason of his non-attendance held there was no
wilful disobedience of the summons. AIR 1923 Lah 163.
(6) Where the accused, who was a barrister, and who was summoned to appear on a certain date to
answer a charge under the Motor Vehicles Act, did not appear but another barrister appeared on his
behalf and stated that as the accused was appearing as counsel in a case before the High Court he could
not attend and prayed for an adjournment and it appeared that the summons was served on the accused
at 5 P.M. just on a day previous to that on which he was required to appear and there was no time to
make other arrangement, it was held that the accused had no intention to disobey the summons. AIR
1924 Rang 35.
(7) A solicitor was served with a notice by a Commissioner to attend before him to give evidence
and to produce a letter written by him to his client. The solicitor being under a mistaken notion that
his attendance was required only for the production of the letter and not for evidence for other purpOses
wrote a letter to the commissioner saying that he could not produce the letter the same being a
privileged one. It was held that as the solicitor was not unwilling to appear but .was under a mistake
that his presence was required only for the production of the document his prosecution under his
section was not justified. AIR 1918 Cal 240.
(8) Where the accused instead of appearing as required by the summons, makes his attendance
subject to queries to the public servant concerned it must be held that the omission is intentional. AIR
1954 Kutch 25.
9. "Departs from the place......before the time".—(l) Where a party is required to attend a
Court the summons, besides clearly and specifically mentioning the title of the Court, the place where
and the day and the time of the day when the attendance is required, should also state that the party is
Sec. 175 Of Contempts of the Lawful Authority of Public Servants 449

not to leave the Court without leave and if the case is adjourned, he should not leave without
ascertaining the date of the adjournment. (1883) !LR S A ll 7.
(2) Where a person is summoned to answer a criminal charge at a certain time on a certain day in
the Court of the Magistrate he is bound to wait for a reasonable time in the Court after such time. He
staying only for 2 or 3 minutes after the time mentioned is no compliance with the order of the
Magistrate. (1886) !LR 10 Born 93.
10. Punishment.—( 1) Where the summons etc. is for attendance before a public servant other than
a Court of Justice, the award of 20 day's imprisonment in default of payment of fine is illegal in view
of S. 65. (1870-71) 6 MadHCR 44.
11. .Practice.—Evidence-----Prove: (1)That the obligation to attend was in obedience to a
summons, etc.
(2) That such summons, etc. was issued by a public servant legally competent, as such, to issue
the same.
(3) That the accused became thereby legally bound to attend, in person or by agent at a certain
place and time.
(4) That he omitted to attend at such place or time or that he departed from the place before the
time at which it was lawful for him to depart.
(5) That he did as above intentionally.
To bring the case within the second clause it must be further proved:.
(6) That the summons or nbtice was to attend in person or by agent in a Court of Justice.
12. Procedure.—(l) Where a simple notice was sent to the accused charged under S. 174 and
when he came and asked to be excused the Magistrate sentenced him to Rs. 5, it was held that the
procedure was illegal. A /R 1961 .J&K 54.. .
(2) Before convicting a person under S. 174 the Court must hold an enquiry to see whether an
offence under the section was really committed. The accused should be given an opportunity of
explaining his absence. (1908)7 Cr1 Li 226.
(3) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
13. Complaint.—Complaint in writing of the public servant , concerned or of some other public
'servant to whom he is subordinate is necessary under section 195, CrPC.

Section 175 ... .

175. Omission to produce document to public, servant by person legally
bound to produce it.—Whoever, being legally bound to produce oi deliver up any
document to any public, servant, as such, intentionally omits so to produce pr deliver
up the same, shall be punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five hundred '[taka], .or with
both; . . ,.
or, if the document is to be produced or delivered up to a court of Justice, with
simple imprisonment for a term which may extend to six months, or with fine which
may extend to one thousand '[taka], or with both
450 Penal code Sec. 175
•
.. Illustration
A,being legally bound to produce a document before a Zila Court, intentionally
omits to produce the same. A has committed the offence defined in this section.
Cases and Materials
1. Scope.—(l) To sustain a conviction under section 175, it must be shown that the person
required to produce a document was in possession of it. It is necessary that the accused should be
legally bound to produce the document in question. Where there is no such duty cast on the accused he
cannot be convicted under section 175. Thus, if a party to a suit fails to comply with an order for
production or inspection of documents he can be dealt with only under CPC and is not punishable
under section 175 Penal Code (11 CrLf .386). The prosecution must prove that the accused was in
possession of the document required to be produced when it is doubtful which of the two accused had
the document. They cannot be convicted. When any such offence as is described in this section is
committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the
offender to be detained in custody and at any time before the rising of the Court on the same day may,
if it thinks fit, take cognizance of the offence and sentence the offender to a fine not exceeding two
hundred taka and in default of payment to simple imprisonment for a term which may extend to one
month unless such fine be sooner paid (section 480. CrPC).
(2) Document required to be filed on 27-4-1986 have been filed long after that date by which time
cognizance of the alleged offence has been takefl on 28-8-86 Held: Prima fade offence has already been
committed by the petitioner. 42 DLR 151.
(3) Court directed a complaint to be lodged—Section 175 not applicable till the complaint was
filed. The dictum that section 175 of the Penal Code has no application in the case of person who is on
his trial as an accused is not applicable when an order for filing a complaint was passed but actually till
then no complaint had been made. The accused could not be convicted under section 175 for his
omission to produce the document (12 CW N 1016). 13 DLR 146.
'
(4) The section applies to any person who is legally bound to produce' a document. Thus, it
applies to a witness who has been summoned to produce a document in connection with a suit. (1888)
ILR 12 Born 63 (64) (DB).
(5) In order to convict an accused under this section it must be proved that the document was in
his possession, and that he could have produced it if he had tried to do so. A IR 1918 Pat 590.
(6) Even in the absence of any such summons or order, specifically requiring the production or
delivery of any document, the offence under this section may be committed provided there • is, in the
circumstances of case, a legal obligation to produce or deliver the document to a public' servant. 1968
CriLi 417 (Mad).
(7) The production of a document in Court under compulsion of a summons to produce it is not
the "use" of such document within the meaning of S. 471. Hence, where a person produces in Court a
forged document under such compulsion, it cannot beheld that he "uses" such document within the
meaning of S. 471 and so, cannot be convicted under that section of the offence of using as genuine a
forged document. (1912) 13 CriLi 46 (47) (DB) (Mad).
(8) Offence under Railway Property (Unlawful Possession) -Act—Enquiry—Persons summoned to
produce documents and to give statement—Filing of false documents or disobeying , of summons on
their part—They are liable to'be prosecuted u/ss. 174, 175, 179, 180, .193. 1983 CriLi 1432 (A P).
Sec. 176 Of Contempts of the Lawful Authority of Public Servants 451

(9) Proceeding under Cooperative Societies Act—Disobedience of order of inquiry officer—Sub-
Inspector of Police treating complaint against accused (President of Society) under S. 175, P.C. as
F.I.R. and seeking permission to investigate offence under S. 155, Cr.P.C.—Accused filing objection
thereon—Magistrate entertaining it acts without jurisdiction. 1983 CriL.J (NOC) 94 (Mad).
2. Practice.—Evidence—Prove: (1) That it was a public servant or a Court of Justice against
whom the offence was committed.
(2) That the accused was legally bound to produce or deliver up the document in question to such
public servant or Court of Justice.
(3) That the accused omitted to produce or deliver up the document.
(4) That the accused did so intentionally?
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by the
Court in which the offence is committed, subject to the provisions of Chapter XXXV of the CrPC or if
not committed in a Court triable by Metropolitan Magistrate or Magistrate of the first or second class.
.4. Complaint.—Complaint in writing of the public servant concerned or of some other public
servant to whom he is subordinate, is required under section 195, CrPC. A Magistrate before whom an
offence under this section'is committed is precluded from trying the accused under this section.

Section 176
176.. Omission to give notice or information to public servant by person
legally bound to give it.—Whoever, being legally bound to give any notice or to
furnish information on any subject to any public servant, as such, intentionally omits
to give such notice or to furnish such information in the manner and at the time
required by law, shall be punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five hundred '[taka], or with
both;
or, if the notice or information required to be given respects the commission of an
offence, or is required for the purpose of preventing the commission of an offence, or
in order to the apprehension of an offender, with simple imprisonment for a term
which may extend to six months, or with fine which may extend to one thousand.
'[taka], or with both;
3 [or of the notice or information required to be given is required by an order passed
under sub-section (1) of section 565 of the Code of Criminal Procedure, 1898 (Act of
1898), with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand '[taka], or with both].
Cases and Materials Synopsis
I. Scope of the section. 5. Practice.
2. "Legally bound to give any notice or to 6. Procedure.
furnish information". , 7. Charge.
3. Public servant. 8. Complaint.
4. "Intentionally omits".

3. Added by the Criminal Law Amendment Act, 1939 (Act XXII of 1939).
452 Penal code Sec. 176

1. Scope of the secUe.w'—(1) Before a person can be punished under this section the prosecution -
must prove that (a)..the accused person was legally bound to give any notice or furnish certain
infoimatión to a.pubiicservant,.and (b) he intentionally omitted to do so. AIR .1954 HimPra 67.
(.2) Sëctio44,*P, castsa duty on every.person and section 45, CrPC imposes a 4uty on some
W101fre0ergon. to give information regarding certain specified offence to the authority: This section
applies to person upon whom an obligation is imposed by law to furnish information to a public
servant and the penalty which i's provided is intended to apply to parties who commit an intentional
breach of this obligation.
2. "Ldgally bound to give any notice or to furnish information".—(I) The word "offence" in
S. 43 will only include an offence under the Code and not an offence under a special or local law.
Herire, where the omission to give certain infoimation is only punishable under a special or local law,
such omission will not be an "offence" within the meaning of S. 43 and hence will not be "illegal"
within the meaning of that section. AIR 1945 PC 147.
(2) Bcfq re..a. person can be punished under this section the prosecution must prove that the accused
was legallyJ,md to give any notice or furnish information on a subject to a public servant. AIR 1954
HimPra 67.
(3) The accused were charged under S. 302 and S. 201 of the Penal Code and were also charged
under S. 176 of P.C. for having intentionally omitted to give information of murder subsequently,
alleged to have been committed by them. It was held that the alleged offenders themselves could not be
under any legal obligation to give information of their own offence. ILR (1976) 2 Cal 1334.
(4) The making of a sttment to the investigator in an examination on oath under S. 33 (4) of the
Insurance Act, 1938, does not amount to the "furnishing of information" within the meaning Qf this
section and hence, the failure to state a certain fact to the Investigator in such examination is not an
offence wider this section. AIR 1962 SC 1821.
(5) Under S. 40, Criminal P. C., certain persons are required to communicate forthwith to the
nearest Magistrate or to the Officer in charge of the nearest police station in respect of matters
mentioned in Cis. (a) to (f) of subsec. (1) of the section and-the failure to comply with the provisions of
the section is punishable under this section. AIR 1958 All 660. . .
(6) Section 176 of the Penal Code does not compel a person to make a statement to the person
making an investigation under S. 33 (3)-of the Insurance Act that he misappropriated the money of the
insurance company. AIR 1962 SC 1821. .
(7) Section 8(1) of the Explosives Act imposes an obligation on the occupier of a place to give
notice of the accident to the Chief Inspector of Explosives and to the Officer in charge of the nearest
police station. It has been held that the 'occupier' may include an owner if he is in actual possession of
a factory, but where a manager is appointed and put in charge of the factory, the owner cannot be
regarded as being in occupation. (1935) 18 Nag Li 235.
(8) Under S. 46 of the Land Revenue Act (3 of 1901) a person is bound to give correct information
about the rents which he was realising from the tenants on the requisition of the Quanungo or Patwari
or any officer engaged in compiling the official register. As the Zamindar is not bound to give the
information without being asked his failure to furnish information that he had collected more than the
recorded rent from the tenants or had raised the rent to the Quanungo or Patwari does not amount to an
offence under this section. AIR 1927A1/ 111. . . -
Sec. I 76 Of Contempts of the Lawful Authority of Public Servants 453

(9) Under Section 234 of the Land Revenue Act, the person who actually receives the rent from the
tenants, whether Zamindar himself or his agent, and who is called upon by the Patwari to furnish him
with particulars for the preparation of the siyaha is legally bound to furnish the information and if he
refuses to do so, he will be.guilty of an offence under this section. AIR 1941 Oudh 525.
(10) Accused who held a licence to sell millmade cloth at his shop and was bound; under the
conditions of his licence, to disclose places where he had stocked cloth, other than those stated in the
licence, omitted to mention, in the list which he was asked to submit, such places. It was held that he
was guilty under this section. AIR 1952 Tripura 18.
(11) Under Ss. 3 and 4 of the Mussalman Wakf Act the Muttawali is required to furnish certain
particulars relating to the Wakf property and failure to furnish the information is an offence under S. 10
of the Act. But it is not an offence under this section. AIR 1945 PC 147.
3. Public servant.—(1) The failure of a person examined by the Chartered Accountant who has
been appointed as an investigator under S. 33(3) of the Insurance Act (1938) to furnish any information
required by the Investigator cannot be an offence under this section as the Chartered Accountant is not a
public servant. AIR 1962 SC 1821.
4. "Intentionally omits".—(l) Before a person can be punished under this section the prosecution
must prove that the person legally bound to give any notice or furnish any informationtó a public
servant has intentionally omitted to do so. A IR 1954 Him Pra 67.
(2) Where there is no evidence that the person legally bound to give information had knowledge
about the matter and intentionally omitted to give the information, he cannot be held guilty under this
section. 1961 BLJR 35.
(3) Where the public servant is already in possession of the information required a person cannot
be convicted of an intentional omission under this section because he fails to perform an entirely
superfluous act in furnishing him with the information over again. AIR 1933 La/i 515.
(4) Where the statement of the mother of the accused to the police under S. 164, Cr.P.C. was that
her son at 10 P.M. on the day of occurrence went to his bed room and bolted the door from inside and
early next morning he came out and ran away, that she saw her daughter-in-law lying dead in the bed
room, it was held that there was nothing in her statement that she was aware or even suspicious about
the commission of the offence of murder of her daughter-in-law or to show that she was guilty of an
offence under S. 176, P.C. 1984 Cr1LJ 753.
5. Practice.—Evidence--Prove: (1) That the accused knew of the circumstances or had information
in question. -
(2) That he was legally bound to give notice thereof, or to furnish such information.
(3) That such notice should have been given or such information furnished to a pubiic.servant.
(4) That he omitted to give such notice or furnish such information as required by law.
(5) That he omitted to do so intentionally.
For the second clause of the section, prove further—
(6) That such notice or information had reference to the commission of the offence, or was--required
to prevent the commission of an offence, or in order to apprehend an offender.
6. Procedure.—(1) Offence under Ss. 176, 109, Penal Code requires sanction which is not
necessary for a prosecution for an offence under S. 189. If the accused in the lower Court is not called
454 Penal code Sec. 177

upon to answer a charge of an offence under Sections 179, 109, Penal Code the appellate Court is not
justified in appeal to alter the conviction to one under those sections. AIR 1923 La/i 260,
(2) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
7. Cbarge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accusçd) as follows:
That you on or about—at—being legally bound to give notice or to furnish information on to a
public servant intentionally omitted to give such notice or to furnish such information which you were
legally bound to give or furnish as to commission (or prevention) of an offence (or apprehension of the
- offender) and thereby committed an offence punishable under section 176 of the Penal Code.
And I hereby direct that you be tried on the said charge.
S. Complaint.—Complaint in writing of the public servant concerned or of some other public
servant to whom he is subordinate is -required under section 195, CrPC.

Section 177
177. Furnishing false information.—Whoever being legally bound to furnish
information on any subject to any public servant, as such, furnishes, as true,
itfrmation on the subject which he knows or has reason to believe to be false, shall
be punished with simple imprisonment for a term which may extend to six months, or
- with fine which may extend to one thousand '[taka], or with both;
- or, if the information which he is legally bound to give respects the commission of
an offence, or .is required for the purpose of preventing the commission of an offence,
or in order to the apprehension of an offender, with imprisonment of either
descition for a term which may extend to two years, or with fine, or with both.
Illustrations
(q, a landholder, knowing of the commission of a murder within the limits of his
estate, willfully misinforms the Magistrate of the District that the death has occurred by
accident in consequence of the bite of a snake. A is guilty of the offence defined in this
section.
(b) A , a village watchman, knowing that a considerable body of strangers has passed
through his village' in order to commit a dacoily in the house of Z a wealthy merchant
residing in a neighbouring place, and being bound, under 4[any law for the time being in
force], to give early and punctual information of the above fact to the office of the-.
nearest police station, willfully misinforms the police office that a body of suspicious
characters passed through the village with a view to commit dacoity in a certain distant
place in a different direction. Here A is guilty of the, offence defined in the - latter part of
this section. - -

4. - The words within square brackets were substituted for the words, figures-and commas "clause 5. secetion VII.
Regulation III, 1821. of the Bengal Code". ibid.
Sec. 177 Of Contempts of the Lawful Authority of Public Servants 455

section 176 and in this section the word "offence" includes any
5 [Explanation..— In
act committed at any place out of 6 [Bangladesh], which, if committed in
6 [Bangladesh], would be punishable under any of the following sections namely 302,
304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458,
459, and 460 ; and the word "offender" includes any person who is alleged to have
been guilty of any such act]
'Cases and Materials : Synopsis
1. Scope of the section. 6. Practice.
2. "Legally, bound to furnish Information ". 7. Procedure.
3. Furnishing false information. 8. Charge.
4. "Offence "—Meaning of 9. Complaint.
S. Punishment.
I. Scope of the section.—There aretwo parts in this section (i) Information on any subject, (ii)
Information (a) about an offence committed, (b) for preventing an offence not yet committed, and (c) for
arresting an offender. ..
(2) This section lays down two ingredients for its applicability. In the first place a person must be
legally bound to furnish information on a particular subject to a public servant and secondly he must
furnish informatiOn on that subject as true, which he knows or has reason to believe to be false. AIR
1950 Ajmer 19. .,.i• , . .
(3) Statements made by a person in course of examination by Chartered Accountant appointed
'under S. 33 Of the Insurance Act, 1938, to investigate into the affairs of Insurance Company do not
amount to "Information" which such person is "legally bound" to . furnish within the meaning of S.
176. AIR 1962.SC 1821.
2. "Legally bound to furnish information".—(l) The expression "legally bound" has to be
construed with reference to the definition in S. 43 of the code. AIR 1934 Born 202.
(2) The expression "any subject" Occurring in this section refers to matters about which a person is
legally bound to give information under some law. AIR 1936 All 788.
(3) Section 21, Registration Act, only lays down that a non-testamentary document relating to
immovable property should contain a description of the property in sufficient detail. It does not impose
any obligation on the executant; and the executant cannot be held legally bound to furnish information
within the meaning of this section. AIR 1950 Ajmer 19.
(4) When a person who had not been served with a notice under Sec. 22(2) of the Income-tax Act
(1922) filed a false return voluntarily, he could not be convicted under this section because he could not
be said to have been legally bound to furnish the information. AIR 1934 Lah 626.
(5) Where it was alleged that the accused induced the Revenue SurveyOr to enter his name in the
revenue papers in the place of his father, reporting falsely that the father had died, it was held that the
facts alleged did not amount to an offence under this section as the father being still alive, there was no
information which the accused was legally bound to give. AIR 1914 LowBur 30(30): 15 Cr1LJ 603.

5. Explanation was inserted by the Indian Criminal Law Amendment Act, 1894 (Act III of 1894)s.5.
6.. The word "Bangladesh" was substiuted for the word 'Pakistan" by Act. VIII of 1973 (wet'. 26 March 1971).
456 Penal code Sec. 177

(6) Under the rule framed under S. 7 of the Police Act (1861) a police recruit is legally bound to
enlist under his own name and if he gives a false name he is liable to he punished under this section.
(1874) Oudh SC No, 11 p. 11.
(7) The accused who was a resident of Farukhabad district and who applied for recruitment to the
police force stated in his application that he was not a resident of that district as there was a rule
prohibiting recruitment of residents to the police force of that district. It was held that the accused who
had made the prevaricatory statement in order to facilitate his recruitment had not committed an offence
contemplated by this section. (1884) 6 All 97.
3. Furnishing false Inform atlon.---.(I) Where the untrue statement in a verification made under
S. 52 of Income-tax Act, 1922 was deliberately false or not believed to be true it was an offence under
this section ; and subsequent rectification would not make it any the less an offence though it might be
considered as an extenuating circumstance in awarding sentence. (1937) 20 NagLJ2I4.
(2) Even if it be taken that under S. 21 of the Registration Act the executant of a non-testamentary
document is legally bound to furnish true information, regarding the property; where the description of
the property given by an executant is according to the entry in revenue records, the wrong description
cannot bà said to be given with the knowledge or belief that it is false and no offence under this section
is committed. AIR 1950 Ajmer 19(2).
(3) Where the object of submitting a wrong return under Road Cess and Public Works Act was to
create evidence for success in a civil suit filed by the person subsequently to establish that the
statements in the return were true it cannot be said that he knew or had reason to believe the statements
in the return to be false. (1910) 11 CrILJ11 (DB) (Cal).
(4) Where the accused deliberately kept out of the income-tax return certain assessable income.he
was held guilty under this section. AIR 1933 Rang 292.
(5) A minor cannot be accused of any fraud if his parents who admitted him into the school
disclosed some age which could help the minor in pursuing his studies. (1982) 1 CivLJ'539.
4. "Offence"—Meaning of..—.(l) The words "preventing the commission of an offence" in the
second paragraph mean preventing the commission of some particular offence and not preventing the
commission of offences generally. (1908) 8 CHLI 425
5. Punishment.—(1) Where a person made an untrue statement in a verification under Income-tax
Act and committed an offence under this section it was held that the subsequent rectification of the
statement did not make it any the less an offence but would be considered as an extenuating
circumstance in awarding sentence. AIR 1929 All 919.
(2) Where the accused, a lawyer, deliberately kept out of the income-tax return certain assessable
income and instead of being ready and willing to put matters right persisted in maintaining the false
defence and it appeared that if he had included this income also in his return the income-tax which he
would have to pay would have been raised by Rs. 3,000 it was held that a mere fine of Rs. 1,000 was
quite insufficient and the High Court awarded an additional sentence of one month's simple
imprisonment. AIR 1933 Rang 292.
6. Practice,—Evidence---Prove: (!) That the accused was legally bound to furnish the information
in question to public servant, . . . . . . ...
(2) That he did furnish certain information in pursuance of such obJigation
Sec. 178 Of Contempts of the Lawful Authority of Public Servants 457
(3) That the information so furnished was . false.
(4) That he furnished it as true although he knew, or had reason to believe it, to be false.
7. Procedure.—Not cognizance—Summons—Bailable—Not compoundable—Triable by
Magistrate.
8. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being legally bound to furnish information , on any
subject, to wit furnished information which you—, knew (or had reason to believe) to be false (and the
information which you were bound to give was in respect of commission (or prevention) of an offence
(or apprehension of an offender) and thereby committed an offence punishable under section 177 of the
Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
9. Complaint—Complaint in writing of the public servant concerned or of some other public
servant to whom he is subordinate is required under section 195, CrPC.

Section 178
178. Refusing oath or affirmation when duly required by 'public sèrvaát, to
make it.—Whoever refuses to bind himself by an oath 7[or affirmation] to state the
truth, when required so to bind himself by a public servant legally competent to
require that he shall so bind himself, shall be punished with simple imprisonment for a
term which may extend to six months, or with fine which may extend to one thóüsand
'[taka], or with both.
Cases and Materials
1. Sco'pe.—(l) A person refusing to give true information to a public servant will be liable under
this section. The evidence of a witness cannot be taken unless he binds himself by an oath or solemn
affirmation to state, the truth-. The refusal to take oath is , a contempt of the Court and the witness may at
once be death with under section 480 of the CrPC.
(2). In a civil case the witness is entitled to represent to the Court that he has not been paid his
expenses properly and on that ground to refuse to give evidence. It is no offence to refuse to give
evidence in the first instance on the ground of insufficient payment of the expenses before the Court;
decides whether the payment is sufficient. (1908) 7CrIL/ 208.
(3) An accused becomes a competent witness as soon as his request for his examination as a
defence witness is , accepted by the Court and after that heis in- the same position as any other witness.
Where the accused examines himself in chief on his own request his refusal to take oath and to come to
witness-box for cross-examination amounts to an offence under this section. A IR 1965 Pat 331
(4)A person to whom a notice is issued under S. 8B, Commission of Inquiry Act, 1952, has the
option not to produce any defence but that is something quite distinct from declining by a person to
take oath and give evidence when called upon by any authority competent to do so specially when he
• is present before that authority. JLR (1981) / Delhi 715.

7 . Ins, by the Oaths Act. 1873 (Act X of 1873, S. 15. ' "-
458 .. Penalcode Sec. 179
2. Practice— Evidence— Prove: ( 1) That the accused was required by a public servant to bind
himself by an oath or affirmation to state the truth.
(2) That such public servant was legally competent to require that the accused shall so
bind himself.
(3) That the accused so bind himself as required.

:3• compoundable—._Tajlable by the

Court in which the offence is committed, subject to the provisions of Chapter XXXV of the Cr.PC or if
notcommitted in a court, a Metropolitan Magistrate or Magistrate of the First or second class.
4. Complaint.—Complaint in writing of the public servant concerned, or. of some other public
servant to whom he is subordinate is required under section 195, CrPC.

Section 179
179. Refusing to answer public servant authorised to question.—Whoever,
being legally bound to state the truth on any subject to any public servant, refuses to
answer any question demanded of him touching that subject by such public servant, in
the exercise of the legal powers of such public servant, shall be punished with simple
imprisonment for a term which may extend to six months, or with fine which may
extend to one thousand '[taka] or with both.
Cases and Materials : Synopsis
1. Scope of the section. 6. A ccused as witness.
2. "Legally hound to state the truth on any 7. Practice.
subject." 8. Procedure.
3. Refusal to answer. 9. Charge.
4. Mens rea.
10. Complaint.
5. Public servant.- .
1. Scope of the section.—(I) Refusal to answer questions in Court is punishable u nder this
section. If the questions are themselves meaningless, then the witness has no other alternative but,
• keeping in mind the dignity of the Court, which he is bound to maintain both morally and legally, to
keep quite and respectfully refuse to answer them. A complainant, is not a witness punishable for
refusing to answer (36 CrLf 446).
(2) The ingredients of S. 179 are: (a) the demanding authority must be a public servant; (b)the
demand must be to state the truth on a subject in the exercise of legal powers. AIR 1978 SC 1025.
(3) An offence under this section is quite distinct from one under S. 178. The latter section
provides punishment for refusal to take oath or make affirmation when duly required by a public servant
to do so. (1908) 7 C'riLJ. 95.
2. "Legally bound to state the truth on any subject."—(l) The term "legally bound" is to be
.
taken in the sense explained in S. 43; Taken in that sense, where there is no question of the omission
to answer being "prohibited by any law" or giving rise to a cause for q civil suit, it must be shown
that such omission is an offence. (1899) 4 Mys CCR 245.

(2) The word "offence" in this context refers to a thing made punishable under the Code and hot
under any special or local law. AIR 1945 PC 147.
Sec. IN Of Contempts of the Lawful Authority of Public Servants 459
(3) The words "shall be bound to answer all the questions" in S. .161(2) of the Criminal P.C..
1898, do not constitute an express provision of law requiring a person examined under the section to
state the truth; and hence, a refusal to answer questions put by a police officer making an investigation
is not punishable under this section. (1881). ILR 7 Cal 121.
(4) The committing Magistrate had a discretion to examine the complainant as a witness under S.
219 of the Criminal P.C. (5 of 1898) and if the complainant refused to answer questions he could be
punished under this section. AIR 1935 All 267.
(5) After taking oath awitness is subject to the rules of the Court and cannot refuse to answer
questions put to him on the ground that his expert fees have not been paid. (1909) 10 CriLJ 257
(Mys)..
(6)Under S. 14 of the Oaths Act a witness is bound to speak the truth on the subject on which he
is asked to give his evidence. In this respect no distinction can be made between the opinion of an
expert witness and statement of an external fact. If the opinion of the witness is asked he is' bound to
give his true opinion and if he refuses no give the opinion he can be made to suffer the penalty under
this section. (1908)10 CriL.J 257.
(7)0 ftence under Rairway Property (Unlawful Possession) Act—Enquiry—Persons summoned to
1
produce documents and to give statement—Filing of false documents or disobeying of summons on
their part—They shall be deemed to have committed offences in judicial proceedings and liable tO,be
prosecuted under Ss. 174,175, 179, 180 and 193 P.C. 1983 cr/LI 1432 (Andh Pra).
(8) A person to whom a notice ii issued under S. 813 1 Commission of Inquiry Act. 1952, has the
option not to produce any defence but that is something quite distinct from declining by a person to..
take oath and give evidence when called upon by any authority competent to do so specially when1e
is present before that authority. ILR (1981)Delhi 715.
3 Refusal to answer —(1) When a witness though persistently asked by the Court to give
certain lnfbrmation persists in giving indirect answers this amounts to refusal to answer qOestions
within the meaning of this section. AIR' 1925 All 239.
(2) Where the witness replies to a question asked by the Court that he does not remember, it is
not a refusal to answer. AIR 1926 Lah 240.
(3) Where a witness was asked as to what was the result of a certain case and the witness first said
that he did not know but after recollection said that the case was dismissed it was held that the witness
gave perfectly rational answers and could not be considered to have refused to answer the question. AIR
1934 All 136.
(4) Where the accused said he was confused and did not understand the questions put to him it
was held that he. had not intentionally committed an offence under this section. AIR 1.962 cal 195.
Mens ra.—.( 1) Section 179 has a component of mens rea, and where there ii no wilful refusal
but only unwitting omission or innocent warding off, the offence not made out AIR 1978 SC 1025
5 Public servant —(1) The person to be penalised under this section must be legally botind to
state the truth to a public servant A person who is apointed to be a public prosecutor under s 24
Criminal P C, is an officer in the service of the Government and is remunerated by fees for the
performance of tleduty and therefore, isa public servant for the purpose of the case in
which he is
appointed as a public pfosecutor. AIR 1962 Cal 195.
460 . Penal code Sec.. 180

6. Aêcused as witness.—(1) Section 313(2), Criminal P.C. provides that no oath shall be
administered to the accused person when he is examined under sub-section (1) of the section and sub
section (3) provides that the accused. cannot render himself liable to punishament by refusing to answer
questions put to him in his examination under sub-section (1) or by giving false answers. A IR 1924
Mad 540. .
(2) An accused becomes a competent witness as soon as his request for his examination as defence
witness is accepted by the Court and after that he is in the same position as any other witness; he
cannot be excused from being cross-examined or from answering questions on any relevant matter on
the ground that the answer may incriminate him. A IR 1965 Pat 331.
7. Practice—Evidence—Prove: (l)That the accused was legally bound to state the truth to a
public servant on the subject in question.
(2) That such public servant questioned him touching such subject.
(3) That such public servant was exercising his legal powers in putting such questions
(4) That the accused refused to answer such question.
8. Procedure.—Not cognizbIe—Summons—!Bailable—Not compoundable—Triable by the
Court in which the offence is committed, subject to the provisions of Chapter XXXV of the CrPC or if
not committed in a Court, a Metropolitan Magistrate, or Magistrate of the first or second class.
9. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about—, at—, being legally bound to state the truth on the subject namely—to a
public servant refused to answer questions demanded of you touching that subject by such public
servant in the exercise of legal powers, committed an offence punishable under section 179, Penal Code
and within my cognizance.
And I hereby direct that you be tried on the said charge.
10. Complaint.—Complaint in writing of the public servant concerned or of some other public
servant to -whom he is subordinate is required under section 195, CrPC.

Section 180
180. Refusing to sign statement.—Whoever refuses to sign any statement made
by him, when required to sign that statement by a public servant legally competent to
require that he shall sign that statement, shall be punished with simple imprisonment
for a term which may extend to three months, or with fine which may extend to five
hundred '[taka], or with both.
Cases and Materials
I. Scope.—An accused is bound to sign under section 364(2), CrPC a record of his examination
under section 342, CrPC and he may be punished under this section for refusal to do so.
(2) Accused refusing to sign record of his examination under Section 342 CrPC, whether commits
an offence under Section 180, Penal Code. Held: An essential ingredient for offence under Section . ] 80,
Penal Code is that the public servant concerned should legally be competent require a person to sign a
particular statement; It is therefore obvious that if there is no compulsion on securing the signature of
Sec.. 181 Of Contempts of the Lawful Authority of Public Servants 461

the accused on his statement his refusal to do so cannot make him guilty under section 180.
PLD 167 Kar 75.
(3) Offence under Railway Property (Unlawful Possession) Act—Enquiry—Persons summoned to
produce documents and to give statement tiling of false documents or disobeying of summons on their
part—They are liable to be prosecuted under Ss. 174, 175, 179, 180 and 193. P.C. 1993 CriLJ 1432
(4) An inquest report is not a statement within the meaning of this section and a refusal by a
person examined at the inquest to sign it is not an offence. (1910) 11 CriLl 500 (Mad).
(5) Where there is a refusal to sign a receipt for a summons, there is no scope for applying this
section as there is no statement made by the person on whom the summons is sought to be served.
(1893) !LR 20 Cal 358 (359) (DB).
(6) It is only when a person refused to- sign a statement which a public servant is legally
.mpowered.to require him to sign that he renders himself liable to punished under this section. (1906)
4 Cr1L./ 205 (Low Bur).
(7) There is no obligation upon witnesses in civil cases to sign their depositions and they ar not
liable to prosecution for refusal to sign them. (1912) 13 criL.J 713 (713) (La/i)
(8) The accused commits no offence , . under this section by refusing to sign , record of his
examination by the Magistrate because the procedure indicated by S. 281(5). CriminálP.C. involves
the Magistrate offering the recod for the accused's signature but it does not empower him to require the
signature. (1906) 4 Cril! 26 '(Low Bu'.
(9) The Court is legally competent to require the accused to sign the record and the refusal
amounts to offence under this section. AIR 1935 All 652. .
2. !rtice.—Evidence--Prove: (I) That the accused made the statement.
(2) That he was required to sign such statement by a public servant
(3) That such public servant was legally competent to require him so to sign it
(4) That the accused refusd to sign that statement
3 Procedure —Not cognlzabIç—Summons—Bailable—Not to b y the
Court in which the offence Is committed, subject to the provisions of Chapter XXXV or if not
committed in a Court, by a Metropolitan Magistrate, or Magistrate of the first or second class;
4. Complaint.—Complaint in writing of the public servant concerned or o'f some other public
servant to whom he is subordinate is required under section 195, CrPC. An,inquest report is not a
statement within the meaning of section 180 of the Penal Code and refusal to sign it is not an offence.

.Section 181
181 False statement on oath, or affirmation to public servant or person
authorised to administer an oath or affirmafion.—Whoevèr, being legally bound
by an oath 7 [or. affirmation] to state the truth On any subject to any public servant or
other, person authorised by law to administer such oath 7[or affirmation], , makes, to
such public servant or other person as afore'aid, touching that subject, any statement
which is false, and which he either knows or believes to be false or does not believe to
be true, shall be punished with imprisonment of either description, for a term which
may extend to three years, and shall also be liable to fine.
462 Penal code Sec. 181

Cases and Materials

1. Scope.—(1) This section to cases in which the false statement on Oath is made to any public
servant in proceeding other than judicial. A deliberate intention to deceive is necessary. A person
making a false return of service of summons or making a falsestatement in an affidavit sworn before a
Magistrate is not guilty of an offence under this section.
(2) The provisions of S. 313 (2) and (3), Criminal P.C., do not preclude the accused from making
an affidavit in support of an application under S. 407, Criminal P.C. and there is no bar to his being
prosecuted for making a false statement in such affidavit. AIR 1925 Lah 312.
(3)Section 4 of the Oaths Act enumerates the Courts and persons who are authorised to administer
oaths and affirmations. A Magistrate before whom an affidavit is sworn does not come under S. 4 of the
Act. Consequently a person making a false statement in such affidavits is not guilty of an offence under
this. section. AIR 1939 657.
(4). Where the Collector to whom an application for refund under S. 51, Stamp Act (I of 1870) had
been made, made it over to a Deputy Collector for enquiry it was held that the Collector alone was
empowered by law to hold the enquiry and to administer oath to persons, whose oral or written
statement he required and he could not delegate his authority to the Deputy Collector. Hence the latter
was, not entitled to put pe10i ns updn their oaths and no charge under this section or S. 193 lb reference
to their statements before him could be sustained. (1883) ILR 5 All 17.
(5) A Court conducting an enquiry respecting the conduct of a legal practitioner under the Legal
Practitioners Act is not competent to take a statement on solemn affirmation form himirid hence he
does not render himself amenable to a charge of making a false statement under S. 181 or giving false
evidence under S. 193. (1883) ILR 6 Mad 252.
(6) A lie is more than a mere untruth It is untruth spoken with a deliberate intention to deceive
Thus a person may, in good faith 'make a statement whi'th, in fact, is incorrect. AIR 1933 Sind 412..
(7) Making a statement which is found to be false made without any knowledge whatever in the
subject one way or the other still amounts to an' Offence of giving false evidence as the maker could not
have believed what he depOsed to be true. (1865) 2 Suth WR ' 47 (Cr).
2. Practice.— Evjcjence— Prove; (1) That the accused took the oath, or made the affirmations in
question.
(2) That the same was legally binding upon him
(3) That such oath or affirmation was administered by a public servant or by a person authorised
by law to administer the same.
(4) That the accused whilst so bound made the statement in question to such person.
(5) That such statement, was made touching the subject on which he was thereby bound to state
the truth.
(6) That what he so stated was false.
(7) That he then knew that his statement was false, or had reason to believe it was false or did not
believe it was true.
3. Procedure.—Not cognizable—Warrant—Bai lab le--Nàt compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4. Charge.—The charge should run as follows:
Sec. 182 Of Contempts of the' Lavfiul Authority of Public Servants 463

1, (name and office, of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—., at—, being legally bound by an oath to state the truth on a
certain subject, to wit, to a public servant (or person authorised by law to administer such oath) did
make to such public, servant (or person as aforesaid) touching that subject, a statement, which you
knew (or believed) to be false, to wit and thereby committed an offence punishable under section 181 of
the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Complaint.—Complaint in writing of the public servant concerned or of some other public
servant to whom he is subordinate is necessary under 195, CrPC. .

Section 182
81182. False information with intent to cause public servant to usehis lawful
power to the injury of another person.— Whoever gives to any 'public servant any
information which he knows or believes to be false, intending thereby to cause, or
knowing it to be likely that he will thereby cause, such public servant—
(a) to do or omit anything which such public servant ought not to do or omit if the
true state of facts respecting which such information is given were known by
him, or .
(b) to use the lawful power of such public servant to the injury or annoyance of
any. , person,, . .. .
shall be punished with imprisonment of either description for a term which may
extend to six months,. or with fine which may extend to one thousand '[tak], or with
both. . . . ..,.....
Illustrations . .. . .
(a) A informs a Magistrate that Z a police officer, subordinate to such Magistrate has
been guilty of neglect of duty or misconduct knowing such information to be false and
knowing it to be likely that the information will cause the Magistrate to dismiss Z A has
committed the offence defined in this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret place,
knowing such information. "to be false, and knowing that it is likely , that the consequence
of the information will be a search of Z 's premises, attended with annoyance to Z A has
committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and rob bed.in the
neighbourhood of a .particular village. He does not mention the name of any person as
one of his assailants, but knows it to be likely that in consequence of this information the
police will make esquiries and institute searches in the village to the annoyance of the
villagers or some of them. A has committed an offence under this section]

Substituted by the Indian Criminal Law Amendment Act, 1895 (Act 'I[I of 1895), s. I. for the original section 182.

464 Penal code'
Se... 182

Cases and Materials Synopsis

1.. Scope of the section. 10. Whether informant should be given
2. "Whoever Elves to any public servant any Oj,pOrtUflhty to prove his case.
information. - 11. Evidence.
3.' "Which he knows or believes to be false." 12. Punishment.
4. "Intending thereby to cause...... such public 13. Form of charge.
servant. 14. Procedure.
5. Clause (a). 15. Complaint by public servant concerned.
6. Clause (b). 16. Limitation—Starting point
7. Position of accused person. . 17. Practice.
8. This section and Sections 211. :18. Complaint
9. This section and Section 500. .. .
1. Scope of tbe..sectioii.—(1) This section would be inapplicable unkss it is established that the
accused gives to public servant any information which he knows or believes to be false The scope of
section 182 is restricted to those cases where an accused person gives information which he either
knows or believes to be false; this apparently means that the prosecution must affirmatively establish
that the accused had either positive knowledge or-he positively. believed the information given by him.
to be false The language of this section, inter alia, requires as an essential ingredient thereof that the
false information must have been given with the intention to cause or knowing it to be likely that will
cause, a public servant in the exercise of his. duties; as such (a) to do or omit anything which he, .ought
not to do if the true facts were known to him, or (.b) to use his lawful power to the injury, or annoyance
ç
of the person (1 CrLf 576). Conviction of a person under section 182 for a statement made by him in
his examination on oath oriñ the course of an appliction for transfer ofhis case pending in .another
Court is bad in law. Such statement is not iformation given to a public officer within the meaning of
section 182 (11 CrLf 537). Statement by a prisoner for the purpose of their defence are not information
given to a public servant (12 Mad 451). The fact that an information is shown to be false does not cast
upon the party who is charged with an offence under section 182, the burden of showing that when. he
made it he. delivered it to be true. The prosecution must make out that the only reasonable inference
was that he must have known or believed it to be false (29 CrLf 753).. The words "public servant" in
section 182 sufficiently cover a police officer (AIR 1935 Sind 94). Therefore, if any person gives the first
information statement to the police even though not voluntarily which is recorded under section 154,
CrPC and if it ultimately turns out to be false it would amount to giving false information and the
offender would be punishable under section 211, Penal Code and not under section 182. Where the
officer in charge of a police station after the usual investigation following an information submitted a
report to the. Magistrate to the effect that the case was false, an order by the Magistrate directing
prosecution of the complainant under section 182 is wholly without jurisdiction (52 CrLJ 394).
Sections 182 and 211, Penal Code in reality differ fundamentally as regards the ingredients of the
offence concerned. Section 182 is primarily intended for case of false information which do not
ordinarily involve a particular allegation or charge against a specified and defined person. Section 211
covers case where there is a definite information which is against a particular person (26 CrLf 934).
The gist of the offence under section 182 is the giving of information so as to cause a public servant to
act upon it and the offence is completed when the information reaches the public servant. A case unt1r
this section has to be tried at the place where the public servant received the information (AIR 1932
Sec. 182 Of Contempts of the Lawful Authority of Public Servants 465

Mad 427). In a case where the information given to a public servant is contained in a letter posted at
one place and delivered at another the offence is committed partly in one local area and partly in another..
The Court at the place where the letter is written and posted has jurisdiction to try the case. Even if that
Court be supposed to have nojurisdiction, section 531,CrPC will cover the case (AIR 1936A11 105).
There is a difference between section 182 and section 177. The difference is that in section 182 the false
information is given with a particular intent. No person can be prosecuted under section 177, unless he
is legally bound to give information. No such restriction is imposed in section 182.
(2) The ingredients of the offence are:--_(i) The giving of false information, (ii) to a public servant,
(iii) which the informant knew or believed to be false, and (iv) which he gives in order to influence the
public servant to behave in a way in which he ought not to behave if the true state of facts were known
to him. AIR 1959 All. 71. . ..
(3) The offence under this section is complete as soon as a person moves the public servant for
action and the fact that the public servant did not, take any action is not material. A IR 1962 SC 1206.
(4) An offence under this section whether falling under clause (a) or clause (b) involves moral
turpitude, so as to disqualify the person convicted of such offence, for any office for which the relevant
law says that conviction for offence involving moral turpitude is a disqualificatiàn.. A/R 1959 All 71.
(5) Refusal to take cognizance of an offence under section 182 P.C. for absence of complaint by
public servant concerned does not amount to acquittal. An acquittal would mean an acquittal on
facts which creates a bar for further trial under section 403, Cr.P.C. What the Additional. Sessions
Judge said in respect of section 182, P.C. is only this that in the absence of a complaint he was not
prepared to take cognizance. The refusal to take cognizance is not bar for further trial and does not
operate as an acquittal of a charge. Rana Md. A fzal Khan Vs. State(1962) 14 DLR (SC) 235 = (1962)
PLD (SC) 397. . .. . . . .
(6) Prosecution not illegal though the charge before the police is taken to the Court later on. A
prosecution under section .182 cannot be regarded as illegal even though the charge made before the
police may have been taken to Court subsequeinly, where the possibility of a conflict with the accused.
or opinion of the Court concerned ceases to exist. 3 PLD (Lah) 405.
(7) Onus on the prosecution to. prove positively that the information given by the accused was false
to his knowledge or his belief. It is necessary for the prosecution to prove by means of positive
evidence that the accused had knowledge or belief to the effect that the information given, by him was
false. The onus, therefore, is undoubtedly on the prosecution to prove that the information was false to
the knowledge or belief of the person who gave information. It will, therefore, appear that . the
prosecution has to prove that the accused positively knew or believed the information to be false. It
would not suffice to prove that the information was given on insufficient foundation. The Court has
accepted the opinion expressed by the two witnesses;P.W. 2, , the Assistant administrator stated: "It
transpired that the allegations made by the accused in his petitions are also absolutely, false and
malicious. I .made a report to the Administrator of Wakf that the allegation brought by accused in his
petition against -Mutwallies were false and malicious." Held: It will appear that the two witnesses.
informed that the accused knew that these allegations were false because he failed to substantiate them.
This does not bring the Offence home to the accused on a 'charge under section 182. The distinction
between the false and malicious prosecution and complaint under section 182 in which it has to be
found as a fact that the information given was false to the knowledge of the accused or was believed by
Al him to be so,,has not been considered by the Magistrate. Nurul Kabir V s. A dministrator of W aqfs
(1967) 19 DLR ' 460. ..
466 . Penal code Sec. 182

• (8) Refusal to take cognizance of an offence under section 182 of the Penal Code for absence of
complaint by the public servant concerned does not amount to acquittal. An acquittal would mean an
acquittal on facts which creates a bar for further trial under section 403 CrPC. What the Additional
Sessions Judge said in respect of section 182 is only this, that in the absence of a complaint he was not
prepared to take cognizance. The refusal to take cognizance is no bar for further trial and does not
operate as an acquittal of a charge. It is open to the public servant concerned to file complaints on
which proceedings can.be taken de novo. Legal right—What the expression legal rightconnotes is
defined in jurisprudence as an interest recognized and prot ected by a rule of right. It is any interest,
respect for which is a duty and disregard of which is a wrong. Unless and until the effect of the
certificate was that in consequence somebody would be legally obliged to do something or to refrain
form doing something it could not be said that the certificate (in the present case) carried with it any
legal right. Whether the certificate in question.was not a "Pr operty" within the meaning of section 415
of the Penal Code—"property" does not depend upon its possessing a money or market value and still
may have a value for its owner. 14 DLR (SC) 235. . .
(9) A person who is directed to show cause why complaint under section 182 should not be filed
is entitled to lead evidence. A complaint can be lodged only after the Magistrate "came to a prima
facie" conclusion that the information given was deliberately false. Complaint under section 182 of the
Penal Code can only be filed by the Magistrate after himself making up his mind and not on the
direction of another authority. (Rej3 PLD 405 Lah). 12 DLR (W P) 78.
2. "Whoever gives to any public servant any information".—(l) The word 'gives' in this
section cannot be given the restricted meaning of the word 'volunteers' and an informant knowingly
giving false information to a public servant on being questioned is punishable under this section. A IR
1959 A ll 378.
(2) Information given by way of answers to question put.to the informant in an investigation
or enquiry under the law would not proprly fall under the category of information given. A IR 1962
SC 1821. . .. .
(3) The information which is penalised under this section is an information which is intended to
cause or known to be likely to cause the public servant concerned to take action. Where information
has already been given and the law set in motion further statements in the course of investigation
would not be information falling under this section. A IR 1970 GuI 218;
(4) Where in a proceeding for issue of a certificate for age of a certain girl the accused produced
another girl, it was held that the offence under this section was committed as •there was
misrepresentation as to the identity of the girl. A IR 1951 Sau 8.
(5) A person who is a mere writer of an anonymous application which is made by an other person
cannot be guilty of the false statements made in such application. The reason is that in such a case the
necessary intention required to constitute the offence cannot be held to exist. A IR 1956 Born 265.
(6) Section 195(1)(a) Criminal P.C., provides that no Court shall take cognizance of any offence
punishable, inter alia, under this section except on the complaint in writing of the public servant
concerned or some other public servant to whom he is subordinate. 1974 BLJR 35 (40).
(.7) The word 'concerned' means concerned in the offence Thus in the case of an offence under this
section the complaint that is necessary is that of the public servant to whom the false information was
given and not that of the public servant sought to be injured by such information. A IR'1961 A ll 352.
Sec. 182 Of Contempts of the Lawful Authority of Public Servants 467
(8) The public servant concerned would mean a public servant to whom a false information is
given with the intention or knowledge that such public servant will do something in his official
capacity as a public servant. If the information is given with the intention that the public servant will
do something which has no connection with his office as a public servant, this section and
consequently, S. 195, Criminal P.C., will have no application. A IR 1950 Cal 97.
(9) Where the false information is given to the Deputy Inspector-General of Police, he would be the
'public' servant concerned and not the station to whom the complaint is sent for investigation. AIR
1952 Raj 142.
(10) Where a first information report of robbery was lodged before a sub-Inspector of Railway
Police but the investigation was made by an Assistant Sub-Inspector of an police station who as a
result of that investigation made a complaint for prosecution of the informant under this section, it was
held that the latter could not file the complaint as the false information was given to the Sub-Inspector
of Railway Police. AIR 1947 Pat 64.
(11) A false report was lodged at police station B by a person that his pocket had been picked at
the ailway station at B. The report was forwarded by the Station Officer of B for investigation to.the
Station Office G.R.P. at H, the offence having occurred in the railway. It was held that it was the
Station Officer of B and not of H who could make a complaint under this section. A IR 1952 A ll 436
(12) Where a petition containing false information made to the Chief Minister is sent for inquiry to
the Sub-Division Magistrate and that information is again repeated in the inquiry made by the later, the
latter will be the public servant concerned. AIR 1959 All 378.
(13) Where a false complaint is lodged at one police station and the complaint is sent for
investigation to the police station in whose jurisdiction an offence was alleged to have been committed,
the officer to whom the complaint is made and not the one to whom it is sent for investigation is the
public servant to whom the information must be said to have been given. 1966 AIILJ 980.
3. "Which he knows or believes to be false".—(l)A necessary ingredient of an offence under
this section is that the information which the accused gave must have been known or believed by hint
to be false. (1971) 1 . Mad Li 497. .
(2) An allegation which is found not proved is not necessarily false and false to the knowledge of
the maker. 1955 CriLJ 171 (Madh'B.)
(3) The fact that an information is shown to be false does not cast, upon the accused the burden of
showing that when he gave it, he believed it to be true. The prosecution must make out that the only
reasonable inference was that he must ha'e known or believed it to be false. The prosecution must
prove a positive knowledge or belief of the falsity of the information. AIR 1920 Cal 994.
(4) It is not sufficient to find for a conviction under this section that the accused has given
information which he had reason to believe to be false or which he did not believe to be. true. (1961) 63
Pun LR 566
(5) Unlike S. 191, the scope of this section is restricted in that whereas S. 191 also makes it an
offence on the part of the accused person to make a statement which he does not believe to be true, this
section does make it so and under this section it must be proved positively that the accused' knew the
information to be false or that he believed it to be false. (1961) 63 Pun] LR 566
4. "Intending thereby to cause......such public servant."— .(l) It is an essential ingredient of an
offence under this section thatthe person giving the false information to the public servant should
468 Penal code Sec. 182

intend to cause or should know it to be likely that the information given by him to the public servant
• will cause either of the two consequences, that is, it will cause the public servant to do or omit
• something which such public servant ought not to do or omit if the true state of facts were known to
him or it will cause him to use his lawful powers to the injury or annoyance of any person. A IR 1966
Raj 101.
(2) The guilt of the accused lies in his intention or knowledge and the fact that the, public servant
• did not, in fact, do or omit to do anything or did not use his lawful powers in consequence is not a
deciding factor. A IR 1959 A ll 71.
(3) The offence is complete as soon as the accused moves the public servant for action: A IR 1962
SC 1206.
(4) If the information is given to a public servant with the intention, that the public servant would
do something which has no connection with his office as a public servant, this section will not apply.
A IR 1950 Cal 97.
5. Clause (a).—(l) clause (a) can be read independently of clause (b) without importing into it
the words "to the injury or annoyance of any person." (1895) ILR Cal 31.
• (2) 'Where the accused falsely informs a Magistrate that a big fire is raging in some place in order
to make the Magistrate to send the necessary force to put out the fire, the accused will be guilty, under
clause (a) of this section even though the accused may have no intention that any one should be injured
or annoyed. A IR 1959 A ll 71.
(3) The object of the provision is that public servants ought not be unnecessarily distracted from
their duties. A IR 1959 A ll 71.
(4) . A, the accused, falsely informs the Magistrate that the tenant of A's house has absconded after
locking the house and that the house has to be opened for crying Out certain badly needed repairs. A
requests the Magistrate to have the lock broken open so that the house can be repaired. The Magistrate.
direct . the police to look into the matter and do the needful. The police report that the information
given by A is false. A is then prosecuted under this section for giving false information to the
Magistrate. It was held that A commits no offence in such cases , inasmuch as the Magistrate will have
no jurisdiction to interfere in such cases even if the information given by A were true. A IR 1918 A ll 85.
(5) Where a report of loss of cattle was made with the object of driverting the attention Of the Sub-
Inspector of Police from charge against the accused and the report induced the Sub-Inspector to register
a case of suspected cattle theft and make an investigation which he ought not to have made if he had
known the report to be false, it was held that the accused had committeed an offence under this section.
A IR 1943 A ll 96 . .
(6) A candidate for an election to a Town Area Committee, seeing that he was losing the election,
made a false application to the Sub Divisioin Officer and the Station-House Officer that the supporters
of the rival candidate were going about-in the village armed with lathis and weapons and were holding
out threats to the voters not to vote for the applicatnt. It was held the applicant had committed an
offence under this section. A IR 1952 A ll 178. . .
(7) Where in a proceeding for issue of a certificate .regarding the age of a girl the accused pr,oducèd
another girl, it was held that the accused had committed an offence under this section, there being
misrepresentation as to the identity of the girl. A IR 1.951 Sau 8.
(4) A driver of motor-car was driving without licence. When the Superintendent of Police asked for
his name, he gave a false' and fictitious name. It was held that though the effect of the wrong
Sec. 182 Of Contempts of the Lawful Authority of Public Servants
1 469

information was merely to obstruct the prosecution of the real offender yet, the intention of the
informant being to cause the police officer to take steps for the prosecution of a person who did not
exist and to omit to take steps against himself, the false information came with in the mischief of clause
(a). A IR 1929 Pat 4.
(9) A person making a statement in his petition of appeal or revision cannot be held to, have
committed an offence under this section simply because his claim is not substantiated, even assuming
that the false statement was made with the object of inducing and that it did induce the Court to send
for the record of the case, as in such a case it cannot be said that the Court was thereby induced to do
• what it ought not to have done if it had known the true facts. A IR 1928 Pat 574.
6. Clause (b).—(1) When false report is made to the police the question in deciding as to whether
it amounts to an offence under this section is nor whether the report is one of a cognizable offence but
whether it is of such a nature as might be supposed to lead the police to make use of their lawful
powers to the injury or annoyance of any person. A IR 1943 A ll 96
(2) Even where a person makes a complaint to the police of a non-cognizable offence and it is found
to be false, he can be convicted under this section. A IR 1943 A ll 96
(3) A fasle report of a non-cognizable offence made to a police officer without expecting any action
on his part cannot form the ground of conviction under this section. A IR 1920.411 196
(4) Where a false report was made to the police, merely to the effect that a certain property was
missing the report not being one of an offence, cognizable or non-cognizable, did not by itself call for
any action on the, part of the police officer to whom the information was given, and hence, no offence
was committed under this section. A IR 1932 Pat 170.
(5) Where the accused who had sold his horse to another, made a false report to the police that his
horse had been stolen, it was held that he must have known that his information. would lead the police
to use their powers to the injury or annoyance of others in whose possession the horse might be found,
and hence, the accused was guilty under this section. A IR 1922 A ll 272.
(6) Where false report of a burglary was made to the police with the object of suppressing certain
documents by pleading that they had been stolen, no offence was committed under this section
inasmuch as it was not the objcet or intention of the accused that the police should use their powers to
cause injury or annoyance to any other porson. A IR 1959 A ll 545.
(7) A District Judge has lawful power which he can use to the injury or annoyance of a Subordinate
Judge because under S. 24, Civil P.C. and S. 22(2) of the Bengal, Agra and Assam Civil Courts Act
(12 of 1887) the District Judge has power to transfer suits and appeals pending on the file of a
Subordinate Judge to some other competent Court and the exercise of such a power by the District.
Judge on receipt of information about corruption on the part of a Subordinate Judge would manifestly
'be to the annoyance,, if not also to the injury, of the subordinate judge. A IR 1938 Pat 83.
(8) Where a person while resigning his office submitted a petition to the Collection containing
false allegations against the other servants without any intention that the Collector should use his
lawful powers to the injury or annoyance of the those others, it was held that he could not be held
guilty under this section. A IR 1918.411 265.
(9) The accused petitioned the Magistrate that a certain person was collecting men to cause him
some injury and .asked for an inquiry by the police. It was held that the accused could be prosecuted
under this section as the false information given by him was intended to cause the Magistrate to use his
lawful powers to the injury or annoyance of another. A IR 1919 Pat 321.
470 Penal code Sec. 182
7. Position of accused person.-.-(1) Statements made by an accused person for the purpose of his
defence cannot be held to be "information given" i to a public servant within the meaning of this
section. (1870) 2 NW PHCR 128.
(2) Where in a criminal case, the accused makes an application to the superior Court for transfer of
his case from the court in which his case is pending and in such application he makes false averments
against the trying Magistrate, the accused does not thereby commit any offence under this section.
(1910) . 11 CriLi 537.
(3) Where .the accused in his petition of appeal falsely stated that the trying Magistrate had
declined to summon witness cited for the defence, it was held that the information in the petition
appeal was not intended to injure the trying Magistrate but Only to secure his acquittal and he could
not be prosecuted under this section. (1889) ILR 12 Mad 45/.
8. This Section and S. 211 ^ (1) There is a clear distinction between an Offence under S. 182 and
one under S. 211. An offence under S. 182 is committed when an information false to the knowledge or
belief of the accused is given to a public servant but under S. 211 the accused should have instituted or
caused to be instituted against another some criminal proceedings through a definite accusation and not
by a mere expression of a suspicion. A IR 1949 La/i 28.
(2) An offence constituted by a false complaint against unknown persons is not oneunder S. 211
but is one under S. 182. A IR 1941 Cal 288.
(3) It is sufficient, in a case under S. 211, for the prosecution to establish that there was no just or
lawful ground for the action taken by the accused and that the accused knew this. But to bring a case
within S. 182, it is necessary for the prosecution to prove not merely absence of reasonable or probable
cause for giving the false information but a positive knowledge or belief of the falsity of the information
given. Section 182 does not necessarily impose upon -the informant criminal liability for mire want of
caution before giving the information. There must be positive and conscious falsehood established. AIR
1925 Sind 184.
(4) The offence ofgiving false information to the police falls under S. 182, there being no charge or
criminal proceeding within the meaning of S. 211 in such a case. A IR 1930 Oudh 414.
(5) The offence u/s. 211 includes an offence under S. 182 and action can be taken under either of
the sections but in cases of more serious nature it is desirable to proceed u/s. 211. A IR 1952 Raj 142.
(6) Where the accused first lodges a first information with the police and follows it up with a
complaint containing the same information before a Magistrate, the informant cannot be prosecuted for
an offence under S. 182 unless the complaint made to the Magistrate is found to be false and the
Magistrate files a complaint in writing about an offence under S. 211. A IR 1969 SC 355.
• 9. This Section and S. 500.—(1) The offences under S. 182 and S.500 are quite different. The
offence under S. 182 is committed against the person to whom false information is given; in the case of
offence under S. 500 it is committed against the person about whom the defamatory statement is made.
The charges under the two sections have to be prosecuted under the authority of different persons who
are injured by their commission. A IR 1.953 SC 293. .
(2) Where false information of a defamatory character is given to the police against a certain person
two distinct offences are committed, one under S. 182 against the police and the other, under S. 500
against the person against whom the information is given. In such cases the aggrieved party can prose-
cute for defamation even though the police have not laid a complaint under S. 182. A IR 1953 SC 293.
Sec. 182 Of Contempts of the Lawful Authority of Public Servants
471
10. Whether informant should be given opportunity to prove his case,—(1) Where a 'narazi'
petition against the report of police has been actually dismissed by the Magistrate under Section 203,
Criminal P.C., it is finished and done with, and there is nothing further to prevent the trial under
Section 182, P.C. AIR 1939 Cal 340.
(2) Where a person when called upon to show cause why he should not be prosecuted under
Section 182, P.C., challenges the police report and reiterates the charges made before the police, it is
clearly a complaint and the case under Section 182, P.C., cannot be proceeded with until that person's
complaint has been dealt with in accordince with law. AIR 1939 Cal 271.
(3) Petition of complaint against conduct of police to District Magistrate—Order 'file' passed on
complaint—Subsequent prosecution of petitioner under section 182—Held: petitioner could claim that
sanction of District Magistrate was necessary for prosecution—Proceedings, held, should be quashed.
AIR 1937 Sind 209.
(4) Where on the police reporting to be false and information filed against Certain persons by the
accused, a warrant was issued against him under Section 182, Penal Code and on receipt of the warrant
the accused filed a naraji petitioner against the police report—Held that the Court ought to have
enquired into the naraji petition first before the accused was tried under S. 182. AIR 1933 Cal 614.
(5) Although where the accused filed a naraji petition in a case under Section 182, it is a better
procedure to give the accused an opportunity of proving the truth of his case before the Magistrate
enquires into case; if the accused is convicted without giving him such opportunity, the trial cannot be
said to be illegal. AIR 1933 Cal 532.
(6) Where on a police report that the case of the complainant was false, he filed a narazi petition
objecting to the police report—Held that process cannot be issued against him drider Section 182
without enquiring into and disposing of the complainant's narazi petition. AIR 1932 Cal 550.
11. Evidence.—(l) Where in a prosecution under this section for having made a false report to the
police the only evidence was the opinion of the investigation officer that the report was false it 'as held
that such opinion was not legal evidence and no conviction could be sustained on such opinion. AIR
1935 All 981.
(2) In a prosecution under this section, the evidence must show that the very statement which the
prosecution alleges to have been made by the accused was made by him. This is purely a matter of
evidence; Where the statement which the accused was proved to have made was different from the one
attributed to him by the prosecution, nor did the proved statement convey the meaning of the statement
attributed to him, it was held that the point was not proved. AIR 1956 Born 265.
(3) As in every criminal case the ingredients of the offence under this section also should be proved
by the prosecution and the burden is not on the accused to prove that the information given by him
7
was not false or was not false to his knowledge and belief. (1971) Mad Li 497.
(4) Prosecution under S. 182—Trial protracting for more than 10 years and despite opportunities
no witness was produced by prosecution—Accused need not undergo further trial and must be
acquitted. 1983 WLN (UC) 172 (DB) (Raj).
12. Punishment_.( 1) Where the lower Court had awarded a sentence of three months 'rigorous
imprisonment, the High Court maintaining the conviction in revision did not think it proper after a
lapse of about 4
years form the event to send the accused to jail for the short period of three months but
awarded a fine of Rs. 300 in lieu thereof. AIR 1959 All 378.
472 . ' Penal code Sec. 182

(2) Where the accused who was a mere servant and had given false information against his master
and was out of employment at the time of his conviction, the fine of Rs. 200 was reduced to Rs. 100.
A IR 1957 Cal 382.
13. Form of charge.—(1) Self-contradictory statement by accused—Charge in alternative form for
offence under S. 182 or in alternative for offence -under S. 193—Charge held to be bad in law. (1886)
!LR 10 Born 124 (DB).
(2) The charge of giving false information should mention the name of public servant to whom
false information is given and also the names of those persons to whom the accused is alleged to have
intended to cause injury and annoyance. (1865) 2 Suth WR (Letters) 7.
(3) The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, gave to—(name of the public servant), a public servant
the following information namely—intending thereby to cause (or knowing it to be likely that you
would thereby cause) such public servant to do (or omit) something namely—which such public
servant ought not to do if the true state of facts were known to him, or omit to do something if the true
state of facts were knóvn to him (or the lawful power of such public servant to injury or annoy) and
thereby committed an offence punishable under section 182 of the Penal Code, and within my
cognizance.
And I thereby direct that you be tried on the said charge.
14. Procedure.—(1) An offence punishable under S. 182 is not one of the offences either
mentioned in ci, (b) orcl. (c) of sub-s. (1) of S. 195, Cr P.C. Therefore while acting within the scope
of S. 476, Criminal Procedure Code,' 1898 a complaint for an offence cannot be made. 1974 CriLJ
1451 (Delhi).
(2) Not Cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
15. Complaint by public servant concerned.—(1) The absence of a complaint as prescribed by
S. 195 of the Criminal Procedure Code is a fatal defect and cannot be cured under S. 465 of the
Criminal Procedure Code. AIR 1960 SC 576.
(2) Police could not prosecute the informant for -false information or . false charge while the
informant's complaint to Magistrate on the same facts as disclosed in the report to police was pending
as that would circumvent provision of S. ' 195 (1),(b), Criminal P.C. if offence under S. 182 is covered
by offence under S.211. AIR 1969 SC 355.
(3) Superintendent in charge of C. T. Office—Whoever happens to occupy that post at the time of
filing the complaint is the public-servant concerned and can file complaint. A IR 1969A ndhPra 41.
(4) Complaint giving false information addressed to the Senior Superintendent of Police—Officer
subordinate in rank to him competent to initiate prosecution under Sec. 182 (1983) 1 ChandLR.
(5) F.I.R. lodged with police—Complainant during the course of trial resiling from what he had
stated in the F.l.R.—Accused acquitted—Complaint for offence u/s.- 182 by police and not by
additional Sessions Judge was competent. 1981 Jab Li 122 (MP). - --
- (6) Final report submitted by POlice Station officer indicating no action against 'M' in respect, of
an offence under S. 182. Mere fact that another officer had taken -charge of the police station washardly a
ground for change of opinion while initiating proceedings u/s. 182 against 'M' without any fresh
materials of evidence that has come to the knowledge of the officer concerned. 1982 W LN (tIC) 354.
Sec. 183 Of Contempts of the Lawful Authority of Public Servants 473'

(7) When a final report is accepted by the court it was not necessary that complaint should be filed
by Court under S. 182. The S. H. Officer could file the complaint for the offence. 1983, Cr1LJNOC.56.
16. Limitation—Starting point^ { 1) In accordance with the provision of S. 46991' the Criminal
Procedure Code the.limitation in such a case would start to run from the date when,, the investigation
• comes to an end and offence complained of is found to be false and not from the date of the false
complaint or of the giving of the false information. (1977) 4 Cr1LT 124.
17. Practice.—Evidence--Prove: ( 1) That the person to whom the information was given was a
public servant. . . •,,•
(2) That the accused gave the information in question to that public servant
(3) That such information, was false..
(4) That the accused knew or believed such information to be false when given it. ..
(5) That the accused intended thereby to cause, or knew that it was likely that he would thereby
cause such public servant to do or omit anything which public • servant ought not to do or omit if the
true , state of facts were known to him or that he intended thereby to cause or knew that it was likely
that he would thereby cause such public servant to use his lawful powers to the injury or annoyn,nce of
any person, .' - . . ' , , '. . ," • ,'
18. Cornplaint .—Complaint in, writing of the public servant concerned, or..some other public
servant to whom he is subordinate, is necessary under section 195,CrPC. A-complaint under section
18,2 should be made to competent Court..

Section 183
183. Resistance to the taking of property by the lawful authority of a public'
servant.— Whoever offers any resistance to the taking of any property by . the lawful.
authority of any public servant, knowing or having reason to believe that he is such
public servant shall be punished with imprisonment of either description for a term
which may extend to six months, orwith- fine which may extend tobne thousand
'[taká], or with both.
Cases and Materials : Synopsis
1. Scope of the section. ' ' . , is such public servant."
2 Resistance to taking of property by lawful 6 Punishment
authority of public servant. 7. Pr oced ur e.. .
3 'Property. 8 Practice
4 Resistance, what constitutes 9 Charge
S. "K nowing or having reason to believe that he io. Complaint.' . . .
I Scope of the section.—No preliminary enquiry under section 476, Cr P Code necessary in
respect of an offence failing under section 183 Penal Code as such a matter is covered by section
195(1 )(a) Cr P Code in which case complaint can be made straight without preliminary enquiry. For
obstructing service of process for attachment in execution of a decree, a preliminary enquiry was held
under section 475 Cr P C and thereafter the Court holding the preliminary enquiry directs a complaint
ersons- Per Asir J- the matter is one wh1ch falls , i-index
to be made for prosecution of the offending persons.
section 183 of the Penal Code, the complaint as made cannot be said to be proper complaint within the
474 Penal code Sec. 183

meaning of clauses (b) and (C) of section 195 (1) read with section 476, Cr. P. C. In the interest of

justice it is, however, necessary to examine the peon's report and consider other circumstances and
thereafter, if necessary, the Court may exercise its discretion in terms of section 195 (1) (a) of the Cr. P.
C., and consequently the High Court sent the case back to be dealt with in accordance with law. Per S.
Ahmed, J.—Under section 195 (1) (a), Cr. P. C. the Judge acts in its administrative capacity rather
than as a court in his judicial function when he considers whether a complaint should be filed or not.
Md. Fayzul.Haq Vs. A kbar Haji (1963) 15 DLR 108.
(2) Dafadar and choukidar are public servants for a limited purpose. No charge will lie under sec.
183 or 186, P. Code, for resisting a dafadar or a choukidar in the execution of a writ of attachment.
Laknath Sarker Vs. Crown (1955) 7 DLR 344.
2. Resistance to taking of property by lawful authority of public servant.—(1) This section
punishes resistance to the taking of property by the lawful authority of a public servant. This implies
two factors: (a) there must be a lawful warrant which authorises the taking of the property; (b) the
person who executes the warrant must be clothed with lawful authority under the warrant. AIR 1916
Pat 272.
(2) The process is to be signed by an officer of the Court authorised to sign the process. Where a
warrant of attachmenrof property was signed by the Peshkar of an Assistant Collector, it was held that
the Peshkar not being an officer authorised to sign such warrants, the accused committed no offence by
removing the property before attachment. AIR 1920 All 51.
(3) A warrant of attachment which does not specify the date on or before which it is to be executed
is invalid, and resistance to such illegal execution is no offence. AIR 1916 Pal 272.
(4) The Civil Court passed an order directing the Nazir to remove the encroachment on a certain
immovable property and to deliver the property to a certain party. No date was fixed for the delivery of
the property. It was nevertheless held that the writ was valid and resistance to delivery of property
under the writ was an offence under this section. 1969 CriU 85 (Orissa).
(5) Where the warrant of attachment was addressed to the Nazir who delegated its execution to the
peon by endorsement of his name, it was held that the Nazir had authority to delegate execution of the
warrant to the peon and obstruction to attachment of property by the peon was punishable. AIR 1920
Pat 805.
(6) A process issued to a bailiff cannot be executed by a Nazir. AIR 1916 Pat 272.
(7) Where property not belonging to the judgment-debtor is attached, resistance by the real owner
to the distriant is no offence. 1932 MadWN 247 (248).
(8) Where at the time of the execution of a decree passed against some of the partners in their
individual capacities, the fact that the property sought to be attached belongs to a partnership business
in which some other persons are also partners is brought to4he notice of the officer executing the
decree, it is his duty to stay his hands and report the matter to the Court for further orders. This
important question whether it was a partnership property or not cannot be left for decision for a
Criminal Court in which the persons alleged to have Obstructed the officer executing the decree are
prosecuted for an offence under this section. 1963 BUR 375.
(9) Where the fact was brought to the notice of the Nazir seeking to execute the decree against the
partnership property but on the Nazir's starting attachment the accused snatched away articles attached
by the Nazir it was held that the conduct of the accused did not amount to resistance within the
meaning of the section. 1963 BUR 375.
Of Contempts of the Lawful Authority of Public Servants 475

(10) Where the prosecution failed to establish that the jurisdiction of the District Local Board to
impose tax extended to goods on board the ship before the goods were landed, it was held that
conviction under this section for resistance by the tàndel of the ship to the Nakedar who had gone on
board the ship and seized goods for non-payment of octroi could not be sustained. AIR 1936 Born 376
(Il) Section 256, Municipal Act deals with powers of entry and inspection as contained in S. 255
and prevents an obstruction to entry, inspection or search. Where the Tax Collector and the municipal
servants were not obstructed while entering the shop and preparing the attachment list but it was only
when the movables were taken into custody that the accused removed the attached articles, it was held
that the offence did not come under Section 256 read with S. 297 of the Act but came under this
section; 1961 (2) Cr/LI 564 (Tripura). . .
(12) If the prosecution fails to prove thaton the date on which attachment was effected the
necessary 15 days had elapsed after the service of the notice (required by the law) and the bill, the
taking ofthe property cannot be said to be lawful authority as provided by S. 109 of Municial Act and
therefore, an offence under this section has to be treated as not proved. (I 961)CriU .564 (Tripura.)
(13) Where an Amin through inexperience or negligence failed to notice that the duration of his
warrant had expired but proceeding to attach honestly believing that he was entitled to do so, it was
held that the accused was guilty under S. 326 for causing grievous hurt by sword. AIR 1933 All 620.
(14) Where a survey empowered to survey an estate under S. 17(a) of the Survey and Boundary
Marks Act (1897) put up boundary marks bona fide on land that he was not authorised to survey and
was engaged in taking measurements on what he thought was the estate land and the accused told him
not to measure and removed the marks already set up, it was held that the accused was guilty under S..
434. AIR 1917 Mad 889.
3. "Property".—(l) The word "property" in this section will include also immovable property
and resistance to delivery of such property under the orders of the COurt will be an offence under this
section. 1969 CriLJ 85 (Orissa)
4. Resistance, what constitute.---(1) A mere oral statement by a person claiming to be the owner
of certain property attached by a bailiff in execution of a decree that he would not allow the bailiff to
take hold of the property unless he entered it as his property does not amount to a resistance within the
meaning of this section. (1891) ILR 15 Born 546
(2) An article in possession of the accused was, during their absence, seized by the head constable
who had come to investigate a case of theft and was kept loaded in a bandy for being taken. The
accused, when they knew this, came and standing before the bandy and raising their hands said that the
bandy should not be driven as they objected to the articles being taken. The action of the accused did
not amount to re gistance within the meaning of this section. A IR 1944 Mad 45
(3) Where certain property is entrusted to a firm of sale and subsequently the management of the
owner's estate is handed over to the Court of Wards, a refusal by the firm to deliver the property until
their general account is settled does not amount to resistance to the taking of property by the lawful
authority of apublic servant in view of S. 171 of the Contract Act. AIR 1926 Oudh 202.
(4) Where there was no resistance to the entry of the attaching officers in the shop and their
preparation of the attachment lists, but after the articles were seized and taken into custody, the accused
removed the attached articles it was held that there was "resistance to the taking of property" within the
meaning of this section. 1961 (2) CriLJ 564 (Tripura).
476 Penal code Sec. 184

5. "Knowing or having reason to believe that he is such public servant".—( l ) "Public

servant' is defined in S 21 A Union Karnam has been held to be a public servant within meaning of
clause (10) of S 21, his duty being to levy a rate for the secular common purpose of the group of
villages constituting the Union, 1 Weir 128.
6. Punishment.—(l) Where the resistance to attachment was not accompanied by any violence
and was much exaggerated by th prosecution it was held that the accused should be awarded a
nominal punishment. (1913,) 14 CriL.J 239 (Mad),
(2) Certain, propertie 's forcibly recovered from Koravers (a 'criminal' tribe) by police on reasonable
suspicion of their being stolen property—The Koravers regaining, by force the articles taken from
them—Circumstances indicating that the accused were not entirely to blame for the incident—Police
also to blame—Held, deterrent sentence not called for; (1887) 10MySLR No. 292 (DB).
7. Procedure.—(1) This is one of the sections referred to in S. 195 of the Criminal P.C.Hence
the accused cannot be prosecuted for an offence under this section in the absence of a complaint from the
public servant concerned or from some public servant to whom the former is subordinate. (1903) 7
CaIW N423. ..
(2) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
8. Practice.— Evidence— Prove: ( 1) That the person resisted was a public servant;,
(2) That the property was . being taken by his authority.
(3) That such authority to'takëlthe.property was lawful.
(4) That the accused offered resistance to such taking.
(5) That the accused at the time knew that he was a public servant who authorised such taking.
9. Charge.—The charge, should run as follows: .
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:.
That you, on or about the—day of—, at—, (name: of the public servant) obstructed (or offered
resistance) or.assaulted or voluntarily caused hurt to the taking of property who had lawful authority to
such taking of property knowing or having reason to believe that such public servant had such lawful
authority, and thereby committed an offence punishable under section 183, Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.
10. Complaint.—Complaint in writing of the publiôservant concerned or of some other public
servant to whom he is subordinate is required under section 195, CrPC.

Section 184
14. Obstructing sale of property offered for sale by authority of public
servant.—Whoe.ver interrtionally obstructs any sale of property offered for sale by
the lawful, authority, of any public servant, as such, shall be punished' with
imprisonment of either description for a term which may extend to one month, or with
fine which may extend to five 'hundred" [taka], or with both.
Sec. 185 Of Contempts of the Lawful Authority of Public Servants . 477

Cases and Materials

I. Scope.—(1) The obstruction may be. by direct orindirect means. The direct method would be
to apply physical force. The indirect method may be such as to create a false alarm for which intending
purchasers hesitate to bid, for the property. To justif' conviction under section 184 the lawful authority
of the public servant offering the property for sale must be proved by the prosecution. The resistance
offered would not be physical resistance. Even abusing, of bidders at auction sale which made it
necessary to postpone the sale was held sufficient for conviction of the accused under this section. A IR
1938 Nag 529, . .. .

' (2) For an offence under this section there must be an intentional obstruction to a sale of property
held under the lawful authority of a public servant. Mere posting up of placards asserting a title to the
land, warning the intending bidders not to go in for it cannot be regarded ' as obstruction within the
meaning of the section. (1905) 2 CHU 44 (Lah).
(3) "Obstruction" under the section need not be physical. For instance a concerted plan at a public
auction to prevent the auction being carried out by raising shouts or causing disturbance which
prevents the bid begin heard and necessitates the closing of the auction amounts to obstruction within
the meaning of the sectioii. AIR 1938 Nag 529
(4) An execution of a sale deed of a property ordered to be sold in execution of a decree of Revenue
Court does not amount to obstruction to the execution sale when no effect whatever is produced on the
sale by the execution of the document. 1883 AIIWR 197.
(5) A sale on the' adjourned date was not a sale by lawful authority and obstruction to such a sale
did not amount to an offence under this section. (1905) 2 CriL.J 90.
2. Practice.—Evidence—Prove: ( 1) That the property was offered for sale.
(2) That such sale was by the authority of a public servant.
(3) That such authority was lawful.
(4) That the accused obstructed such sale.
(5) That he did so intentionally.
3.' Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:...
I, ( name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, intentionally obstructed (name of the public servant) a
public servant lawfully authorised to sell property described namely—and thereby committed an offence
punishable under section 184, Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Complaint.—Complaint in writing of the public servant concerned, or of some other public
servant to whom he is subordinate is required under 195, CrPC.

Section 185
185. Illegal purchase or bid for property offered for sale by authority of
public servant.—Whoever, at any sale of property held by the lawful authority of a
478 Penal Code Sec. 185

servant, as such, purchases or bids for any property on account of any person,
whether himself or any other, whom he knows to be under a legal incapacity to
purchase that property at that sale,. or bids for such property not intending to
perform the obligations under which he lays himself by such bidding, shall be
punished with imprisonment of either description for a term which may extend to one
month, Or with fine which may extend to two hundred l [ka], or with both.
Cases and Materials
1. Sc.ope.—{I) This section makes it penal to bid at a public sale for property on accàunt of a
party who is under a legal incapacity to purchase it, or to bid for it not intending to complete the
purchase, or as it is expressed to perform the obligations under which the bidder lays himself by such
bidding.
(2) A person can show his contempt by bidding for the lease of a ferry put up for public auction by
a Magistrate, as he can by bidding for any corporal property, not intending to perform the obligation
under which he lays himself by such bidding. It is his intention at the time. of bidding and not the
nature of the thing to be"sold which constitutes the offence. (1865) 3SuthWR Cr 33.
(3) A person who bids at a sale, held by a Collector, of the right, to sell drugs in a certain area,
without the intention to perform the obligation under which he lays himself at the time of bidding is
guilty under this section. A IR 1915 A ll 93.
(4) A bona fide bidder at an auction sale un able to deposit earnest money due to circumstances
beyond his control prosecuted under S. 185. AIR 1934 Oudh 186
2. Practice.—Evidence—Prove: (1) That there was a holding of the sale.
(2) That such holding of the sale was by authority of a public servant.
(3) That such authority was lawful.
(4) That accused bid for, or purchased such property, either for himself or for some other person.
(5) That the person for whom he bid or purchased (whether for himself or someone else) was under
a legal incapacity to purchase at the sale in question.
(6) That the accused then knew of such incapacity.
It will also be sufficient to prove (1), (2) and (3) as above, and further—
(7) That the accused bid for such property.
(8) That, when bidding, he intended not to perfornf the obligations under which bidding placed
him.
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day of—, at—, purchased or bid for the property—held by a public
servant namely—having lawful authority (without any intention to perform the obligation consequent
to such bidding) or (that the accused bid or purchased on behalf of a person who was under a legal
incapacity to purchase at the sale or auction ) and thereby committed an offence punishable under
section 185 of the Penal Code and within any cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 186 Of Contempts of the Lawful Authority of Public Servants 479

5. Complaint.--Complaint in writing of the public servant concerned, or of some other public

servant to whom he is subordinate is required under section 195, CrPC.

Section 186
186. Obstructing public servant in discharge of public functions.—Whoever
voluntarily obstructs any public servant in the discharge of his public functions, shall
be punished with imprisonment of either description for a term which may extend to
three months, or with fine which may extend to five hundred '[taka], or with both.
Cases and Materials Synopsis
1. Scope of the section. 9. Good faith.-
2. Claim of right. 10. Complaint.

3. "in the discharge of his public functions." 11. Offence under Section 186 and other
offences.
4. Obstruction to process of the Cowl.
12. Burden of proof.
5. Public servant.
13. Punishment.
6. Obstruction, what constitutes.
14. Practice. -
7. "Voluntarily."
15 Procedure.
8. Nature of,mensrea. 16. Charge.
1. Scope of the section.—(l) This is a general section and is applicable in every case where a
public servant is obstructed in the discharge of his functions. Where the public servant is a judicial
officer the procedure laid down in section480, CrPC may be followed. The obstruction which is
punishable by this section may be by an act voluntarily done or omitted in order to hinder the public
servant in executing his duty. Obstruction means active opposition such as by the use of physical force
or by threats. A mere passive resistance, that is,-by objection or refusal without threat or violence etc.
does not amount to obstruction. To constitute an offence under this section it must be proved that the
obstruction was given to a public servant, voluntarily, while engaged in doing a legal duty. "Public
functions" contemplated by this section mean legal or legitimately authorised public functions and are.
not intended to cover any act, that a public functionary may choose to take upon himself to perform (25
Cr11.1 721). Public servant means public servant as defined in section 21 of the Penal Code... --
(2) Obstruction to a public servant must be when he is discharging a public function. Under
section 174 of the Penal Code non-attendance in obedience to an order from public servant is
punishable only when the said order was legal order and was issued by a public servant legally,,
competent to issue the 'same. Section 186 of the Penal Code which deals with the obstruction: of a
public servant in the discharge of his public duties, shows that the obstruction must be voluntary
the said obstruction must be in toleration to a public servant who was discharging his public functions.
Criminal Trial—A citizen can.be deprived of his liberty strictly according to law. High-handcdness on
the part of the Government official is severely condemned. 30 DLR 29.
(3) The word "obstruction" in section 186 connotes physical obstruction. Section 186 Penal Code
clearly contemplates the commission of some overt act of obstruction and is not intended to render,
penal merely passive conduct. The word "obstruction" means "physical obstruction" i.e. actual
resistance or obstacle put in the way of a public servant. 9 DLR 77.
480 . Penal Code Sec. 186

(4) Public functions mean legal and legitimately authorised public functions. Where obstruction is
caused to acts which are not in due discharge of public functions, no offence committed. .8 DLR 452.
(5) Allegation of giving instruction over telephone cannot be the basis of .proceeding against the
petitioner under section 186 of the Penal Code. The identity. of caller cannot be proved and as such
continuation of the proceeding shall be,. abuse of the process of the Court. Major General Rèt
Mahmudulffasan V s. State (Criminal) 52 DLR 612. . .
(6) S. 152 deals with the offence of assaulting or obstructing a public servant when suppressing a
riot, etc. In case falling under S. 152, therefore, the general provisions of this section (under which the
punishment is relatively much milder) will not apply. (1894) 17 MysLR No. 461 P. 708.
2. Claim of right.—(1) . A claim of right is no defence to a prosecution for obstruction of a public
servant in the discharge of his public duties under this section. (1881) 4 MysLR No. 352.
3. "In the discharge of his public functions".—(l) In order to sustain a conviction under this
section the prosecution must show that the public servant who is obstructed was acting in the
discharge of his public function. AIR 1952 Pat 85.
(2) The function should be in fact and in law public functions. AIR. 1940 Sind 42.
(3) Public functions mean legal or legitimately .authorised public functions and do not cover every
act undertaken to be performed by public functionary. AIR 1925 Lah 139.
(4) Mere bona fide belief of the public servant that he is acting inthe discharge of his duties is not
sufficient to attract this section unless the public servant was in fact so acting. AIR 1925 Lah 139.
(5) Where the accused is charged with obstructing or resisting a public servant in the execution of
a warrant of attachment, the Court should look at the warrant of attachment and see whether the officer
was doing something which was not contained in the warrant, which would have.jUstified reasonable
resistance , to its execution. AIR 1932 Pat 276.
(6) A public servant need not actually show to the accused the written, authority under which .he
acts but he must have it in his possession ready to be shown. AIR 1918 Oudh 162.
(7) The accused persons who were no parties to a suit in which a public right of way was claimed
did not allow the Munsif in whose Court the suit was pending to pass through their private property
for the purpose of making a local inspection in connection with the suit. It was held that the accused
did not, commit any offence under this section. AIR 1917 Cal 180.
(8) An order requiring the defendant to furnish accounts is not an injunction within the meaning of
0. 21, R. 32, Civil P.C.Hence, the disobedience of such order is not contempt of Court for which a
person can be sent to 'prison. The arrest of the person who has failed to comply with the order to
furnish accounts will, therefore, be illegal and resistance to such arrest will not be an offence under this
section. A IR '1918 Pat 451. .' .. . .
(9) Order 21, R. 46 of the Civil P.C. provides for the mode in which movable property not in the
possession of the judgment-debtor may be attached. The mode provided is by serving a prohibitory
order on the person in possession, not to hand over the property to the judgment-debtor. The rule does
not authorise the sealing up of the premises in which the property may be kept. Hence, obstruction to
such sealing up is not an offence under this section. AIR 1932 Pat 279.
(10) Even though a receiver appointed under 0. 40, Civil P.C., is a public servant (see Section
21, Cl, fourth), under ' 0. .40 R. 1(2), the Court has' no power to deprive a third person of the
Sec. 186 Of Contempts of the Lawful Authority of Public Servants 481

possession of any property when no. party to the suit has a present right to do so. In such a case the
resistance to the receiver's possession is no offence. A IR 1939 Sind 333.
(11) Where the police try to arrest a person without warrant in a case in which the police have no
power to do so, resistance or obstruction to such arrest will not be an offence either under this section
or under the more specific S. 224. Similarly, escape from. custody after .a person is so arrested will not
be an offence under S. 224. A IR 1936 Pat 249.
(12) Where the General Manager of a sugar factory obstructed the Special Officer in charge of
rationing who had gone to the factory to search for and remove sugar in pursuance of an order of the
Government under S. 3 of the Essential Supplies (Temporary Powers) Act, it was held that the seizure
of the sugarr must be regarded as duly authorised and lawful and the Manager by obstructing its removal
committed an offence under this section. A IR 1 951 SC 201.
(13) Under S. 38 of the District Boards Act it is the duty of the attaching officer to weigh goods
actually and not to give only approximate weight. If the owner prevents the officer from removing the
articles unless actual. weight.is given, he is not guilty under this section. A IR 1941 A ll 344.
(14) A toll contractor is a public servant under S. 21 read with S. 11 of the Toll on Roads and
Bridges (Act III of 185) and an obstruction to him in collecting toll is punishable under this section.
A IR 1935 Born 24. .
(15) Where a Range Forest Officer has .no jurisdiction whatsoever to seize timber under S. 82 of
the Forest Act, the obstruction offered to him is not punishable under this section. A IR 1927 Born 483.
(16) Though under S. 285 of the MUnicipalities Act a person authorised by the Commissioners of
the Municipality may enter any shop and inspect and examine articles of food, he is not authorised to
seize the article even if in his opinion it is unfit for human consumption. Hence, the shopkeeper who
objects to the seizure cannot be convicted under this section. A IR 1935 Pat 73.
(17) Where a certain property is entrusted to a firm for sale and subsequently the management of
the owner's property is handed over to Court of Wards, the refusal by the firm to deliver, the property
to the Court of Wards until their general account is settled does not amount to obstruction to a public
servant in the discharge of his public functions, in view of the provisions of Sec. 171 of the Contract
Act. A IR 1926 Oudh 202.
(18) Taxation Officer has no right under provisions of Sales Tax Act to insist on production of
account books after refua1 by dealer to produce—His act is illegal and his presence at shop after refusal
is as treapasser.—Hence, even if he was pushed out of shop, dealer or persons assisting him cannot be
said to have committed offences under S. 186 and S. 353. A IR 1965 Punj 264.
4. Obstruction to process of Court.—(1) To "obstruct" under this section is to do an act which
makes it more difficult for a public servant to carry out his duties. (1958) / Ma!ayan Li 57.
(2) Where a process-server is obstructed in the execution of a decree, the person obstructing is
guilty under this section. A IR 1915 Lah 456
(3) Where a.warrant is in order and the officer executing it does not gobeyond fulfillment of the
instructions given to him in the warrant, the resistance o him is an offence punishable under this
section. A IR 1937 Pat 633. . . .
(4) Obstruction to the execution of an illegal warrant is not an offence under this section. A IR 1936
Pat 37. . . .
482 Penal Code Sec. 186

(5) A warrant under 0. 21, R. 24, Civil P.C., must state the date on or before which it is to be
executed. A warrant which does not specify such date is illegal and resistance to such warrant is not an
offence. AIR 1916 Pat 272.
• (6) The execution of the warrant after the expiry of the date mentioned in the warrant is illegal and.
its obstruction is an offence under this section. AIR 1927 Oudh 91.
(7) A warrant of attachment which is not sealed with the seal of the Court as required by 0.. 21, R.
24, Civil P.C., is illegal and resistance to attachment under such warrant is not an offence. AIR 1939
Rang 320.
(8) The Nazir of a Court has no lawful authority to execute a warrant defected to the bailiff of the
Court. A IR 1916 Pat 272.
(9) Where a warrant is signed by the sheristadar 'by order', such a case is differentfrom one where
it is simply signed by the sharistadar and resistance to the execution of the warrant in the forñier case is
punishable under this section. A IR 1923 Cal 584..
(10) The Nazir has authority to delegate the execution of the warrant to the peon and obstruction to
the execution is punishable under this section. A IR 1920 Pat 805;
(11) A warrant cannot be held to be without jurisdiction for a mere failure to record reasons under
0. 21, R. 22(2), Civil P.C., for issuing process at once without waiting of a notice under 0. 21, R..
22(1) and resistance to such warrant is an offence under this section. AIR 1936 Pat 37.
(12) Resistance to a warrant for delivery of actual possession when the prayer was only for
symbolical possession by a person who is not a party to the decree and is not bound by it is not
punishable under this section. AIR 1925 Mad 613.
(13) If a warrant is directed to a place beyond the jurisdiction of the Court, the person obstructing
the execution of such warrant cannot be held guilty under this section. AIR 1924 Cal 501.
(1,4) A decree for restitution of conjugal rights directed the wife to return to her husband within a
certain period. The wife not having obeyed the decree, a warrant was issued against her. The wife was
guilty, under this section for obstruction to the execution of the warrant. AIR 1919 Cal 914.
(15) Where a warrant issued by Assessor Panch under S. 27 of the said Act doe g not authorised
any one to execute it, the warrant is devoid of legal force and by resisting its execution the accused
- commits no offence under this section. AIR 1941 Pat 161.
(16) Where on the date on which. the peon was assaulted in the execution of the warrant, there was
no proceeding under the Bengal Agricultural Debtors Act, the Judge cannot refrain from taking action
under this section merely because subsequently the judgment-debtor has taken proceeding under the
Act with the result that the debt in connection with which the warrant was issued becomes non-
existent. A IR 1942 Cal 434.
5. Public servant.—(1) In order to be "public servant" within the 'meaning of that section, it is
not essential that a person should be in the employ of the Government. 1960 AIILJ 357.
(2) A Toll Contrator as well as his servant acting under Tolls or Roads and Bridges Act in a
"public servant". AIR 1935 Born 24.
(3) 'A Local Board Road Sirkar who merely supervises road-work is not a public servant within the
meaning ofS. 21, Cl. I0.(1907)6CrILJ39J.
(4) A clerk in cess collection department of a District Municipality under the' District
Municipalities Act is a public servant within S. 21, Cl. 10 and this section. (1908, 8 Cr1LJ 269.
Sec. 186 Of Contempts of the Lawful Authority of Public Servants 483

(5) A Commissioner appointed by a Court to divide the properties by metes and bounds as a
• result of a preliminary decree for partition is public servant within S. 21. A IR 1951 Mad 773.
6. Obstruction, what constitutes.—(1) The word 'obstruction' does not necessarily mean
physical obstruction; and it is sufficient if there is either a show of force or threat or any act having the
effect of preventing the public servant form carrying out his duty. 1971 MahLJ 812.
(2) There can be no doubt that physical obstruction will be "obstruction" within the meaning of
this section. A IR 1936 Nag 86
(3) Where the accused placed a bicycle in the way of a police constable so as to prevent him form
dealing with an offending cartman the accused was held guilty of an offence under this section, A IR
1936 Nag 86
(4) In order to prevent the search and the seizure of the stock of sugar in the factory the manager of
a sugar factory had locked all the gate of the factory except the main entrance, had placed on the road
leading to the factory a huge truck on jacks with all the four wheels removed in such a way as to block
the road leading to the godown, had kept heaps of coal firewood and tins• on the door leading to the
godown making it impossible for any vehicular traffic to reach the godown door and had also caused
some of the rails and fish-plates of the railway siding leading to the godown to be removed. It was held
that the obstructions found were sufficient to bring the case under this section. A IR 1950 Pat 436
(5) The shutting of the door by the wife, in the officer's face who was about to enter her house to
seize the movable in execution of decree passed against her husband amounted to obstructing him in
the performance of his duty. A IR 1942 Mad 552,
(6) Where the accused ran away and did not submit to lawful arrest by the public servant, it was
• held that there was not obstruction within the meaning of this section. A IR 1955 A ll 104.
• (7) The word "Voluntarily" in the section connotes some overt act and that mere passive conduct
will not be an offence under the section. A IR 1925 Lah 139.
(8) Mere withholding or refusal or assistance to a public servant does not constitute "obstruction"
within the meaning of this section. A IR 1924 Lah 238.
(9) When a member of a village panchayat on being asked by the Sub-Division Officer to sit with a
member' of a depressed class refused to do so and his fellow Panchas not to do so, it was held that
though the S. D. 0. was hampered in the performance of his duty the conduct of the member did not
amount to voluntary "obstruction" within the meaning of this section. A IR 1925 A ll 401.
(10) When a person states to a peon who wants to effect delivery of possession of a house to the
decree-holder that he had rented the house from certain person and would vacate it only if he asks him
to do so, makes such endorsement on the writ and there is neither threat nor violence on the part of
such person and the peon returns without doing anything further, there is no obstruction within the
meaning of this section. A IR 1950 Pat 544.
(11) The refusal of a patwari to allow the kanungo to go through his books and check them has
been held to bean act of insubordination and not a criminal act punishable under this section. A IR
1925 A ll 409. •
(12) The section does not contemplate constructive obstruction to ajudicial officer in the discharge
of his judicial functions even when they are of quasi-executive character or even when the proceedings
before him are in execution. Thus where a Nazir is obstructed in the execution of a decree passed by a
Judge, the Judge cannot be said to be constructively obstructed. A IR 1936 Pat 74.
484 Penal Code Sec. 186

(13) The obstruction offered to a person acting under the orders of a public servant while fixing the
boundaries under the Land Revenue Code has been held to be equal to an obstruction to the public
servani himself. A IR 1029 Born 385.
(14) For removing an encroachment, a public servant can employ an agent for the manual task and
if the agent is obstructed in what he is legitimately required to do by the public servant, then there is
an obstruction offered to the public servant himself because., what he is doing by the hand of the agent
is really, in the eye of law, something he is actually doing himself. A IR 1928 Born 135.
7. "Voluntarily".—(l) The word "voluntarily" in the section connotes that the accused does
some overt act and that mere passive conduct as, for instance, not opening the door of his house for the
police officer to enter, will not be "obstruction" within the meaning of the section. A IR 1925 Lah 139.
.8. Nature of mens rea.—(1) Under English law 'wilfully' obstructing a police officer in execution
of his duty has been made punishable under S. 5 1(3) of the Police Act; 1964. There in order to prove
'willful' obstruction it is not enough that there is an intention merely to do something which happens
to result in some. obstruction to the police, but in addition it will have to be proved that this intention
also encompassed in itself some sort of hostility towards the police. (1976) 3 W LR 753.
9. Good faith.—(1) Good faith on the part of the public servant would render the accused's act an
offence though the public servant was acting illegally. A IR 1938 Mad 649.
(2) A bona fide belief of the public servant that he is acting in the discharge of his duties is not
sufficient to make obstruction or resistance to him amount to an offence within the meaning of this
section. A IR 1934 Mad .664;
10. Compliant—(l) A complaint by a public servant obstructed is necessary for the prosecution
for an offence under this section (S. 195(l)(a) of the Code of Criminal Procedure, 1898). But when a
person is charged with offences under this section and under S. 504 infra (Insult) the fact that no
complaint has been made under S. 195(l)(a) of the Criminal P.C. does not render the prosecution
under S. 504 illegal. 1969 CriL J 1459.'.
(2) A complaint for an offence under S. 1.86 filed by the Munsif for obstructing the . Amin in
executing the decree passed by the Munsif is maintainable. 1982 CniL.J (NOC) 44 (A ll).
(3) Obstruction of D.I. in a case diary cannot be treated as petition of complaint. It is wrong for a
Magistrate to take cognizance of an offence under this section on the opinion of D 1 1984 BiharUJ
..', ...
132.
(4) Complaint in writing of the public servant concerned or of some other servant to whom he is
subordinate is required under section 195, CrPC. It should satisfy the provision of law (29 Cr/LI 64.
11. Offence under S. 186 and other offences.—(l) Being a member of an unlawful assembly
and resisting the process of law are two separate offences though they may have been committed in the
course of the same transaction. Hence, if an unlawful assembly offers actual resistance to a public
servant in the discharge of his official functions it commits, beside the offence under S. 143 or 147 a
separate offence under this section. A IR 1960 Pun] 356.
(2) This section and S. 353 relate to two distinct offences. This section is applicable to a case
where the accused voluntarily obstructs a public servant in the discharge ofhis public functions but
under S. 353 the ingredient of assault or use of criminal force while the public servant is doing his duty
as such is necessary. A IR 1966 SC 1775.
Sec. 187 Of Contnipts of the Lawful Authority of Public Servants 485

(3) Where the accused who was being arrested by a Police Sub-Inspector caught hold of the neck of
the P.S.I. and had a scuffle with him, it was held that the offence alleged against the accused was
within the framework of S. 353 P.C. and not under S. 186. 1971 MadLJ 812.
• (4) If a person obstructs a public servant in the discharge of his public function, viz., in execution
of a warrant of delivery of possession, he commits two offences, one under this Section and another, an
offence of contempt of Court. AIR 1957 Born 10.
12. Burden of proof.—(I) In a charge for resistance or obstruction to the execution of a warrant
or other process, it is for the prosecution to prove that the proceeding was in order and according to
law. It is not for the accused to prove that the process or the mode of its execution was not legal.
(1902) ILR 25 Mad 729.
(2) To convict a person under S. 186 it is necessary for the prosecution to prove that obstruction
has been caused to a public servant in discharge of his public functions. (1974)3 6LT66I. (Puni).
13. Punishment.—(1) The defence of the process of law is serious offence as it hampers the
administration of justice: If the offence is allowed to be committed, with impurity the prestige of the
Court will be lost. Hence, the sentence should not be lenient: A IR 1938 Pat 548.
14. Practice.— Evidence— Prove: ( I.) That the person obstructed is a public servant.
(2) That at the time of obstruction he was discharging his public functions.
(3) That the accused obstructed him in the same.
(4) That he did so voluntarily"
15. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
16. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day Of–, at—, voluntarily obstructed a public servant in the discharge
of his public functions and thereby committed an offence punishable under section 186, Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 187
187. Omission to assist public servant when bound by law to give
assistance.—Whoever, being bounded by law to. render or furnish assistance to any
public servant in the execution of his public duty, intentionally omits to give such
assistance, shall be punished with simple imprisonment for a term which may extend
to one month, or with fine which may extend to two hundred '[taka], or with both;
and if such assistance be demanded of him by a public servant legally competent
to make such demand for the purposes of executing any process lawfully issued by a
Court of Justice, or of preventing the commission of an offence, or of suppressing a
riot, or affray, or of apprehending a person charged with or guilty of an offence, or of
having escaped from lawful custody, shall' be punished with simple imprisonment for
486 Penal Code Sec. 187

a term which may extend to six months, or with fine which may extend to five
hundred '[taka], or with both.
Cases and Materials
1.. Scope and applicability of the section.—(1) Person bound to furnish information to public
servants are punished under sections 176 and 177. Persons bound to assist pubic servants come within
the purview of this section. In all these cases a breach of legal obligation on the part of the accused is
necessary. If a person required to attend a search fails to do so without reasonable excuse he will be
guilty under this section. The assistance which a private person • is bound to render to a public servant
in the execution of his duty must be something definite and, specific. Sections 42, 77 and 128 of the
CrPC deal with the assistance which a person is bound to render to a public servant.
(2) Where a person when arrested by a police officer lay down on the ground and refused to move,
it was held that as he lay 'down in order to secure his eventual escape from being taken to the thana and
the assistance of the accused was demanded by the police officer to prevent the escape, the refusal of the
accused to render aid made him liable for conviction under this section. AIR 1932 All 506
(3) Disobedience' ol'an order to join the police in a search to trace out the whereabouts of a person
with 'a view to arrest the person if the search proved successful is not an offence under this section. AIR
1920 All 265.
4) 'Before the introduction of the sub-section (5) of S. 103 Cr. P. C. in 1923 it was held that a
refusal of a search witness to sign the list of things seized in the course of search is not a refusal to
render 'assistance' within the meaning of this section. (1913) ILR 26 Mad 419.
(5) The failure to attend and witness a search in obedience to a requisition under S. 103, Cr. P.C.,
is afailure to render 'assistance' within the meaning of this section. AIR 1920 Mad 286,
(6) The words "attend and witness a search" in sub-sectiop (5) of S. 103, Criminal P.C., will not
include signing the search list and a refusal to sign such list will, therefore, not be an offence under this
section. A IR 1938 Pat 403.
(7) A refusal to sign the search list does not amount to a refusal to render assistance to a public
servant within the meaning of this section. AIR 1938 Pat 403.
(8) Even assuming that a refusal to sign the search list is an offence under S. 103(5), Criminal
P.C., read with this section, such refusal would be an offence only when there is a written order on the
witness to attend and witness the search. A IR 1938 Pat 405. -
(9) If the witnesses attend and witness the search on a verbal request of the officer concerned but
refuse to sign the search list, they are guilty of an offence under this section. AIR 1938 Pat 403.
2. Practice.— Evidence— Prove: ( 1) That the person requiring assistance is a public servant.
(2) That he was then in the execution of his duties.
(3) That the accused was 'legally bound to render or furnish assistance to him.
(4) That the accused omitted to give assistance.
(5) That he did so intentionally.
3. Procedure.—No cognizable—Summpns—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
1, (name and office of the 'Magistrate) hereby charge you (name of the accused) as follows:
Sec. 188 Of Contempts of the Lawful Authority of Public Servants 487

That you on or about the—day of—, at—, being bound by law to render or furnish assistance to a
public servant in the discharge of his public duty (intentionally, omitted to give such assistance) and
when such assistance was demanded from you by such public servant for executing any process lawfully
issued by a Court of justice or of preventing commissioner of any offence or suppressing a riot or affray
or of apprehending a person charged with or guilty of an offence or of having escape from lawful custody
intentionally omitted to give such assistance to such public servant and thereby committed an offence
punishable under section 187 of the Penal-Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Complaint.—Complaint in writing of the public servant concerned, or of some other public
servant to whom he is subordinate, is required under section 195, CrPC. 1.
11 -
-

Section 188
188. Disobedience to order duly promulgate4 by public servant.—Whoever,
knowing that, by an order promulgated by a public servant lawfully empowered to
promulgate such order, he is directed to abstain from a certain act, or to take certain
order with certain property in his possession or under his management, disobeys such
direction, - -
- shall, if such disobedience causes or tends to cause obstruction, anoyance or
injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed,
be punished with simple imprisnoment for a term which may extend to one month, or
with fine which may extend to two hundred '[taka], or with both;
and if such desobedience causes or tends to cause danger to human life, health or
safety, or causes or tends to cause a riot • or affray, shall be punished with
imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand '[taka], or with both.
Explanation. —It is not necessary that the offender should intend to produce harm,
or contemplate his disobedience as likely to produce harm. It is sufficient that he
knows of the order which he disobeys, and that his disobeyance produces, or is likely
to produce, harm. -
Illustration
A n order is promugated by a public servant lawfully empowered to promulgate such
order, directing that a religious procession shall not pass down a certain street. A
knowingly disobeys the order, and thereby causes danger of riot. A has committed-the
offence defined in this section.
Cases and Materials : Synopsis
1. Scope of the section. 5. Knowledge of order.
2. "Order promulgated by a public servant." 6. Direction to abstain or to take certain order.
3. Order of Civil Court, etc. 7. Disobedience, what constitutes.
4. "Lawfully empowered to promulgate such 8. "Cause or tends to cause......
order". 9. Orders under Section 144, Criminal P.C.
488 Penal Code Sec. 188

10. Orders under Section 145, Criminal P.C. 15. Punishment.

11. Orders under Section 146, Criminal P.C. 16. Procedure.
12. Orders under Section 147, Criminal P. C. 17. Refusal to prosecute not appealable.
13. Orders under-Chap. X , criminal P.C. 18. Practice.
14. Order for production or inspection of 19. Charge.
documents. 20. Complaint.
1. Scope of the section.—(l) One of the essential ingredients of section 188 is that the order said
to have been disobeyed must have been issued by a public servant lawfully empowered to promulgate
the order. The word "promulgation" is not used in any narrow or technical sense in section 188. The
word "promulgate" connotes two ideas (a) making known of an ordr, and (b) the means by which the
order is made known must be by something done openly and in public. Private information will not be
promulgation. For proceeding under section 188 it is necessary to establish first that there were lawful
order which the accused has disobeyed. .
(2) The ingredients of the offence under section 188, PC are (I) that the prosecution must show
that there was an order promulgated, (2) that it was promulgated by a public servant, (3) that such
public servant was lawfully empowered to promulgate the same, (4) that such order directed the
accused to abstain form a certain act or to take certain order, etc. and (5) that the accused knew of such
direction to him. Criminal trial—Concurrent finding of facts—In a criminal revision, it is not open to
an accused to challenge a concurrent finding of fact of the Courts below particularly when there is some
evidence to support the said finding. It cognizance is taken by Magistrate not competent to take
cognizance, it is merely an irregularity curable under section 529, CrPC. The question whether in the
circumstance of the case the violation of second prohibitory order promulgated just after the expiry of
the first prohibitory order though not proper is not always a nullity and therefore disregard of the
second prohibitory order is punishable under section 188.12 DLR 838.
(3) Imminent danger of breach of peace. When order under section 144, CrPC has spent its force,
whether proceedings under section 188 of the Penal Code' for disobedience of order can be quashed.
Section 144 cannot remain in force indefinitely and when the order has spent its force the proceeding
under section 188 of the Penal Code for disobedience of the order can be quashed. 5 DLR 76.
(4) Violation of order passed under section 144, CrPC by District Magistrate. Proceeding under
section 188 of the Penal Code cannot be initiated on compliant of a police-officer. Section 144 of the
CrPC and section 188 of the Penal Code, read along with section 195(1)(a), CrPC make it abundantly
clear that the expression "Public servant concerned" within the meaning of section 195(l)(a). CrPC
refers to the public servant whose order restraining from a particular act has been violated. Where,
therefore, a person had been charged of violating an order passed by District Magistrate under section
144, CrPC but he was prosecuted and convicted under 'section 188 of the Penal Code on complaint
initiated by a police officer, it was held that the cviction was rendered illegal for non-compliance of
the mandatory provision of section 195(1)(a). CrPC under which the complaint should have been
instituted eitherby the District magistrate or by some officer to whom he was subordinate. PLD 1967
Pesh. 307.
(5) Since the second order is made some time after the expiry of the first order in ignorance of the
fact that such an order had previously been made, the order would not be an order which the Magistrate
was not lawfully empoweredo promulgate and the violation of such an order, even though it is not a
Sec. 188 Of Contempts of the Lawful Authority of Public Servants 489

strictly proper order, would still be sufficient to justify a prosecution :.ider section 188. A zhar Khan
Vs. State (1960) 12 DLR 838: 1961 PLD (Dac) 484.
(6) Esseiitial ingredient of the offence—An essential ingredient of an offence under , section 188 is
that the disobedience must cause or tend to cause obstruction, annoyance or injury, or risk of
obstructionj annoyance or injury, to any person lawfully employed. Crown Vs. Muhammad 4/1(1954)
6DLR 396 . .
• (7) Where there is no finding by the trying Magistrate. that the disobedience of the accused persons
• actually did cause any obsti3iction, annoyance or injury, the conviction under section 188 of the Penal.
Code is illegal. crown. Vs. Muhammad A ll (1954) 6 DLR 396 .
(8) It was obligatory on the part of the learned Magistrate to make a written complaint which was
the nature of the order made. by him alleged to have disobeyed by accused and the manner of violation.
in order to form an opinion that accused persons have committed an offence punishable under section
188 of the Penal Code. A bdul A hád ® Md. A bdul A had Vs. The State, 20 BLD ('HcD) 372.
(9) The learned Magistrate suo motu initiated a proceeding under section 188 of the Penal Code
• and took cognizance of the offence violating the provision of section 1.95((I)(a) of the Code of Criminal
Procedure (Criminal) 5 LC 598
(10) The ingredients of the section are as f011Ows:. ....
(i) There must be an order promulgated by a public servant,
(ii) The public servant must have been lawfully empowered to promulgate such order,
(iii) A person having knowledge of such Order and directed by such order (a) to abstain from a
certain act, or (b) to .talce certain order with certain property in his possession or under his
management must have disobeyed such direction. ., .
(iv) Such disobedience must cause or tend to cause (a) obstruction, annoyance, or injury or risk, of
it to any person lawfully employed, or (b) danger to human life, health or safety, or (c) a riot
or affray.. 1975 C,,LJ 1784
(11) Where an order was issued to a land-holder of a village under the relevant law to nominate
some person to act as village watchman—the former watchman having either died or been dismissed—
held that non-compliance with the order was not an offence under this section (1881) 7 CA R 575
(12) Section 144 of the Criminal Procedure Code (1898) is not ultra vires Art 37 of the Bd
Constitution It follows that the prosecution of the offender under this section for violation of the order
under S 144, Criminal P.C., cannot be questioned as being unconstitutional A IR 1961 SC 884
(13) This section is not ultra vires Art 47 of the Bd. Constitution A IR 1968 A ll 100
1 (14) The accused cannot be convicted if hp was ignorant of order alleged to have been disobeyed by
him But the burden will be on the accused to prove such ignorance (1900) 5 Mys CCR No 156
2. "Order. promulgated by a public servant.—(1) The expression 'public, servant' includes a
person holding the office of the public servant for the time being and also a successor in offiáe of that
public servant. '1982 çriLJ 1473..
(2) The word "promulgated' connotes two ideas (1) making known of an order, and (ii) that the
• means by which the order is made known' must be by something done openly and in public. But the
law does not prescribe any particular mode in which an order is made known openly and publicly. It
may be by beat of drum or by publication in Gazette or by reading out the order openly in public. 1975
Cr1LJI784. .. '. , '. ' .' •• • . , , , ' • .
.
490 . Penal Code Sec. 188

• (3) An order duly pronounced in open Court must .be deemed tobe duty promulgated so far as the
parties to the case are concerned. 1959 A l/Li 163. •.. :
(4) The duty of the Magistrate under Section 133 of Criminal. PL. to. order the removal 'of.a public
nuisance is a public duty. Failure to comply with such an order is ishAble under S. 188. AIR 1980
SC 1622. . .. . . . •. ...
(5) Private information will not be "promulgation". A IR 1968 Cal 523.
(6) Where there is no order prohibiting a certain kind of act, the doing of such act will not be an
offence under this section. A IR '1968 Goa 14.
(7) A Regulation made under the Epidemic Diseases Act (1897) is treated as an "order" within the
meaning of this section and its disobedience is made punishable as an offence under this section. A IR
1963 Orissa 216 . .
(8) Rule 2 of the Rules sanctioned by the Government under the Epidemic Diseases Act, 1897,
contained the proviso that "the prohibition mentioned in this rule must not be issued until segregation
quarters have been erected outside the town 'or. village." No such quarters were erected outside the
village iniquestion. The plague authority advised the accused, in whose house a case of plague had
taken place, to go and live in another house of his in the same village. it was held that it was a mere
piece of advice or recommendation rather than a'positive order not to leave the village and the accused
committed no offence under this section by leaving the village. (1899) 1 BomLR 51.
(9) A notice under the Local Boards Act (5 of 18840 is a mere preliminary to the action to be
taken by .the President himself and not by the party under S.. 100.. It is. therefore merely a notice and not
An order of the kind contemplated by this section. (1897) . ILR 20 Mad.
3. Orders of Civil Courts, etc.—<I) The Orders contemplated by this section are orders made by
L public functionaries , in the public interests. ILR' (1971,) 1 Cal 23..
(2) The-section will not apply to orders made in a civil suit betweçn parties. 1959 A ll LI 163.
(3) The section will not apply to other orders of ciyil nature. Thus, where a Rent Suit Officer made
a prohibitory order under the Tenancy Act for appeasment and divisionOfthë crop in respect of a plot,
held that the order being of a civil nature, and not for maintenance of public peace and tratiquillity, the
accused could not be punished under this section for its disobedience. (1959,) 25 Cutl.T 264.
(4) On the landlord putting into execution an eviction order the tenant filed a civil suit for a
declaration that the order was illegal and obtained an ad interim injunction restraining the landlord
from executing the order of eviction It was held that the tenant having obtained an Injunction from the
Civil Court was fiuJ ' entitled to rely upon it and refuse to vacate the house so long as it subsisted and
could not be prosecuted - under this section for disobeying the order of eviction. A IR 1952 Pat 356
(5) During proceedings under the Guardians and Wards Act the District Judge issued an order
prohibiting the guardian from celebrating the marriages of the minors. It was, held that 'the section had
no application to the disobedience of the order. A IR 1915 Born 22. .
(6) The order under S. 219 of the Land Revenue Act is not in anyway, analogous to the decree of a
Civil Court; it is an order by public servant specially empowercu by law and the person disobeying it
is liable to be punished under this section. A IR 1922 Nag 209.
('7) The primary purpose of the orders under S. 69 of the 'Bengal Tenancy Act, although it is a
civil proceedings being the prevention of a breach of the peace, disobdience of an order under s. 69(3)
of the Act can be punished under S. 188, Pepal Code. A IR 1921 Cal 260.
Sec. 188 Of Contempts of the Lawful Authority of Public Servants 491
4. "Lawfully empowered to promulgate such order.—(1) Wherein a proceeding in which a
person was prosecuted for disobedience of an order.ünder S. 144 of•the Criminal P.C., the validity of
the section was questioned on the ground of its being violative of the provisions of Art , 47.ofthe Bd.
Constitution it was held that the section was valid A IR 1961 SC 884
(2) It is for the prosecution to prove •the order and its legal -validity and not for the accused to prove
the absence of such valid order. (1913) 14 CrILJ 620 (Mad).
(3) .1t is not sufficint toshow that the public servant was justified indirectinga certain thing,tobe
done or not to be done. It must be shown that he was legally empowered to order its commission or
omission. AIR 1925 All 165. .. . .. . .
(4) Even if the prosecution establishes that the order was promulgated by a public servant lawfully
empowered to promulgate such order, the accused can plea in his defence that the order, though made
within jurisdiction was utterly wrong or improper on the merits. AIR 1956 Cal 102.
(5) The Court trying a case under this section has only to see whether .the order disobeyed was of
the particular kind mentioned in this section and whether it was promulgated by at public servant
lawfully empowered to do so, and that the Court has no jurisdiction to "superimpose its own view on
the property of the order. A IR 1949 Cal 677,. . . • .. .
(6) Proceedings under the Legal Practitioners Act are quasi-criminal and a person disobeying an
order passed by the District Judge under S. 36 (4) .of the Act excluding a person from the precincts of a
Court by reason of inclusion of his name in the list of touts is liable to be punished under this section
A IR 1960Nag158. . .: .. . H ..: :.• .

(7) Where a person reffiseti to get himself inoculated against cholera on the ground that he has
taken preventive homeopathic medicine, he contravenes the provisions of paragraph 7 and 8 of the
Regulations made under the Epidemic Diseases. Act ;( 1897) and hence,-.he is guilty . under this section.
A IR 1963 Orissa 216 ...: ..,
(8) An order forbidding persons to enter railway quarters except for purposes of traveling is illegal
as the public has a right to goto the railway premises for many purposes other than traveling and
conviction under this section has to be set aside. (1913) 14 CrLf 122.
(9) The act of the accused prsons in taking of the bride and bridegroom in palanquins along the
public road or, highway is legal and a Police Inspector is not empowered under the law to issue an
order directing them to get down and walk along the road. 41R 1936 All 534. . . .. -
(10) A Sub-Inspector of Government Railway Police who was conducting an investigation into the
suspected theft of, certain logs of wood lying on trucks at a certain railway station issued an order to the
Station Master directing him to detain the logs It was held that the order was irregular. The sub-
Inspector could have, in such a . case, availed himself of the provisions of S. 102, Criminal P.C., to
seize the logs in question AIR 1914 Oudh 230
5 Knowledge of order —(1) For a conviction under this section it must be established that the
order of the public servant has been brought to the actual knowledge of the person sought to be affected
by it. AIR 1960 Assam 109. ..... .. . . . ..
(2) It is the duty of the prosecution to prove , by positive evidence that the accused had knowledge
of the order with the disobedience of which he is charged 1975 CriL.J 178
(3) The proof of general notification promulgating the order does not satisfy , the requirements of the
section. A IR 1955 NUC (Manipur) 1836
492 Penal Code Sec. 188

(4) The Magistrate, in determining the question. of knowledge • of the order, should take into
consideration the facts and the circumstances of the case including the one that the°person lived at a
place where the order was duly promulgated. AIR 1955 NUC ('Manipur) 1836.
(5) Where the accused.had actual knowledge of the order by reason of the. fact that he acknowledged
service of the order on him, the failure to leave duplicate copy with him does not affect the validity of
the proceedings under this section. AIR 1949 Cal 677.
6. Direction to abstain or to take certain order.—(1) The section does not make punishable any
act as such; but it is the disobedience of the order prohibiting the act (or directing the accused to take
certain order with a certain property) that has the effect of attaching to it the penalty of the .section AIR
1968 All 100. . . . .. ...
(2) To be justified in directing a certain act to be done or not to be done is one thing and to be
legally empowered to order its commission or omission. with the consequence of the .disobedience
being punishable under this section is quite another thing. AIR 1925 All 165.
(3) A notice under the Local Boards Act is a preliminary to the action to be taken by the President
himself and not by the party himself. It is, .therefore, merely a notice and not an order of the kind
contemplated by this s(ction. (1897) ILR 20 Mad 1. ..
(4) Where a Sub-Collector, Who was entrusted with the duty of seeing that water for irrigation was
properly distributed, ordered the accused to fill up the new channel and restore the old one because the
new channel made more water available to the accused and less. to the lower lands, it was held that the
Sub-Collector had no authority as a revenue authority to promulgate such order and consequently the
accused could be not convicted under this section for disobedience of the order I Weir 141
(5) A notice was issued that under S 10 of Act of 1882 no tenant would be liable to pay any cess
on account of the wages or fees of patwaris after 30th June 1882 In spite ofthe notice one K collector
the patwari cess. It was held that c6ñi61i under this section could not stand as
there was no order as contemplated by this section., 1883 Oudh SC No 65
to
(6) Where by an order the lice wore.-direc.ted attach the land in dispute but there was. no
direction upon the accused of any kind, the'accused cannot be convicted under this 'section for
disobedience of the direction to the police. AIR 1960 Assam. 109.
7. Disobedience, what constitutes.—(1) To sustain a conviction under the section it must be
shown that the accused has knowingly disobeyed an Order promulgated by a public servant. AIR 1933
Sind 93.
(2) The disobedience contemplated is that type of disobedience which affects the very purpose for
which such an order was promulgated 1972 Cr:L.J 1156 (Ays)
(3) Where an order promulgated under S. 30 of the Police Act, prohibited the convening or
collecting any assembly or directing or promoting any procession in the regulated area without
obtaining licence, it was held that merely joining the procession did not amount to contravention of
the order and no offence was, committed thereby. 1960 NagL.J (Notes) 114.
(4) . Where a person refused to get himself inoculated against cholera on the ground that he had
taken preventive homoeopathic medicine it was held that he contravened the provision of paras 7 and 8
of the Regulations made underthe Epidemic Diseases Act and hence;. was guilty under this section,
inasmuch as the provisions of the Regulations made disobedience an Offence punishable under this
section. A IR 1953 Orissa 216.
Sec. 188 Of Conternpts of the Lawful Authority of Public Servants 493
(5) An order under the Tenancy. Act suspending or remitting arrears of rent does not prohibit the
land-holder from receiving the same if tendered or attempted to be realised by lawful means. Therefore a
land-holder endeavoring to collect suspended arrears by process of distraint is not guilty under this
section. AIR 1915 All 372.
(6) The Cantonment Magistrate ordered the accused to provide a duly constituted agent resident
within such cantonment (as required by the Rules) on the supposition that the accused was a non-
resident owner of a house situate within the cantonment. It was held that in the absence of proof that
the accused- ws the oWner of the house he could not be convicted under this Section. 1982 All WN 52.
(7) Where the disobedience is by anotbèr person there is no burden on the accused to prove that
the disobedience was without his consent. AIR 1933 Sind 93.
(8) Where the accused is charged with disobedience of a notice by the Municipal Chairman
directing him to remove a latrine stated to have been newly constructed'and the accused pleads that the
latrine was in existence since a long time and there was no newly construction, there is no legal basis
for convicting the accused undermis section for disobedience of the order without a finding on the plea
of the accused. 1993 M adW N 223.-.
8. "Cause or tends totause. ..... ".—(1) Mere disobedience of an order lawfully promulgated by a
public servant is not sufficient to warrant a conviction under this section. To sustain the conviction it
must further be shown by the prosecution that the disobedience caused or tended to cause one or other
of the consequences specified in the second and third paragraphs of the section. 1974 BLIR 561 (563).
(2) It is not necessary that actual annoyance etc. is caused. It is sufficient even if it is shown that
the infringement, has a tendency to cause annoyance etc. A IR 1964 Pat 526
(3) It is not necessary that the accused should intend toproduce the harm it is, sufficient that he
knows of the order and that his disobedience thereof produces or is likely to produce harm AIR 1934
Oudh 162.
(4) The likely consequence of the breach of order have to be proved affirmative, and the gap
cannot be filled up by a resort to judicial notice AIR 1950 Nag 12.
• (5) The Magistrate should come to the conclusion form the actual facts whether there was a certain
tendency specified in the section and should not argue from the general to the particular and hold that
the conduct such as that of the accused must tend to cause an affray. .AIR 1932 Cal 868.
(6) The tendencies described in the second and third paragraphs of the section have, however, to be
inferred from the proved facts and circumstances of each case and are not capable of direct proof. AIR
l957 Orissa 2/4.
(7) In order to establish that annoyance was the result of the disobedience of the order there must
be some proximity between . the conduct of the accused and the annoyance. The annoyance has to be
proved as a fact; mere mental annoyance of the authorities concerned is not sufficient under the section.
AIR l96O Assam 2O . .. .
(8) The Collector by a disobedience of his orders under the Buildings (Lease and Rent Control)
Act and the Sub-Inspector of Police lawfully employed in operations under the Act must be said to be
annoyed and can file a complaiin under this section. AIR 1950
. Mad 599.
(9) The. Government is not a person and, therefore, Where the disobedienceis alleged to cause
injury to the Government the ingredients of the section cannot be said to have been satisfied. AIR 1949
Cal 677. V
494 . Penal Code . Sec. 188

(10) 'Government' is a 'person' within the meaning Of the definition in S. 11 ante. AIR 1914 Low
Bur 23. .' . . . :. .. .. . .

(11)There must be some definite evidence to justify the Court in classifying the offénces under one
group or another of the cases with which the section deals. They cannot be classified in the graver
category, that is third paragraph, merely upon the general consideration that now-a-days if a person is
arrested it may lead to a riot or affray. AIR 1931 Cal 122.
9. Orders under S. 144 Criminal P.C.—(1) A person disobeying an order under S. 144, new
Criminal P.C. is liable to be punished under this section. AIR 1967 A11579. .
(2) By virtue of S. 487(1) of the Criminal P. C.., a Magistrate whose order under S. 144 of the Cr.
P. C. has been disobeyed cannot himself take cognizance Of the offence under this section. He can only
file a complaint under Section 195 (1) (a) of the Cr. P. C. AIR 1939 Mad 496.
(3) The Court trying an accused person for disobedienceof an order under S. 144, Criminal P.C.,,
has to take the order as a good and valid order unless it is it shown that the order was a nullity. It is
not to. superimpose its own views on the property of the order. AIR 1949 Cal 677. .
(4) Where the order is one not warranted by S. 144, Cr.P.C. or the requirements of the section are
not duly complied with, .a prosecution under this section cannot stand. AIR 1955 Manipur 41.
(5) No.order under S. 144, Criminal Procedure Code can remain in force for more than two months
from the making thereof, (unless the duration of the order has, been extended by .the Government under.
clause (4) of the section) and no prosecution can be made where the alleged disobedience has taken
place after the expiry of the order. AIR 1960 All 397.
(6) A mere in'e;...I!r.ty in the method of promulgation of the order under S 144, Cr PC will not
in itself make it ultra vires so as to prevent the conviction of any person disobeying it, if he had
knowfedge of its contents A IR 1949 Cal 677
(7) The legality of the order is liable to be questioned' in proceeding under this section. A IR I61
SC 884.
(8) The accused should be proved to have disobeyed the order at a time during the continuance of
the order. AIR 1920 All 223. . . .• . . . .
9) Orders under S. 144 of the Criminal P.C. are intended to be only of temporary character,
normally to be in force only for a period of two months from the making of the . order unless extended
by order of the Government under clause' (6) of the section. AIR 1920 All 223.'
(10) Where a 'person is prosecuted, .for disobedience of an Order under S. 144, Criminal P.C.,
during its continuance, the fact that the order had ceased to be in operation at the time of his trial is no
ground for his acquittal. AIR 1940 Born 195. .
(11) it is not necessary-that the evidence should establish that the disobedience led to' or caused a
breach of the peace. It would be sufficient if there is evidence to shOw that the disobedience resulted in
the likelihood of a riot or affray or annoyance to any individual. A IR 1964 Pat 526
(12) It has to be established that the annoyance, etc., was the result of the disobedienCe of the order
by the accused and therefore there 'must be some proximity between the conduct of the accused andthe
annoyance etc In the absence of some such conduct the section cannot apply merely because of the
mental annoyance caused to the authorities concerned by the breach of the order. AIR 1960 Assam 20.
(13) For the purpose of deciding as to what part of the penal provision of this section applies to a
breach of an order under. Section 144, Criminal P.C.the Court can look only to the order under S. 144
Criminal P.C. A IR 1942 Oudh 39. . . '
Sec. 188 . . Of Contempts of the Lawful Authority of Public Servants . .495

(14) Parties are entitled to resist the execution of an order which is ultra vites and no offence Would
be constituted by such resistance provided the limits of the right Of private defenceare not exceeded
by disobedience of such-order. AIR 1921 Pat 415. . ...
10. Orders under Section 145, Criminal P.C.--(I) A breach of 6 order under Section 145,
Criminal P.C., is punishable under this section. AIR 1967.Al1 579.
(2) In case of disobedience of an order under S. 145, Criminal P.C. by any person, it would be
inappropriate to proceed against him for contempt of Court instead of prosecuting him for an offence
under this section. AIR 1958 Cal 474. . . . . .
(3) There must be a legal order under this section. If the order is illegal there can be no convKion
under this section. AIR 1960 Assam 109. . . '.
(4) The essentials as mentioned in paragraphs 2 and 3 of this section applies even to cases of
breaches of order under Criminal P.C., S. 145 also. But in such cases where forcible possession is
taken by the accused from the person in whose favour the order under S. 145 has been passed, the
accused's act of disobedience must be held by itself to cause annoyance to the person in whose favour
the order has been passed. AIR 1951 All 828. . ..
(5) Where the final t)rder under Sec. 145, Criminal P.C., was served on the accused after he had
cut and removed the crop from the land, he could not be held to have disobeyed the order within the
meaning of this section. AIR .1942 Mad 275, .. ... . . .
11. Order under Section 146, Criminal P.C..—(1) In order to attract S. 188, PeCal Code the
accused must have been directed to abstain from certain acts or to take certain order with propert' in his
possession or under his management. By an order, under , S. 146, Criminal P.C., the Court orders the
custodian to keep the property in , dispute in his charge and possession till -further,orders from a
competent Court. But the oider.is .not, directed against the ..parties themselves .. Hence even if, a party
encroaches upon the attached land no offence under this section is committed. AIR 1961 Assam 94.
(2) The wall which was under attachment under S. 146, Criminal PC., was in a , dilapidated
condition There was a marriage of a girl in the family of one of the parties and on account of this
marnage ceremony the wall was repaired without the permission of the Court It was held that
assuming that there was an order preventing the parties fromgoing upon the land, the act Qf repair did
not cause or tend to cause obstruction etc., within the meaning of this Section. A IR 1,960 Pat 125..,
12. Orders under Section 1 ,47, Criminal P.C.—(1) The accused started constructing a wall to
enclose a threshing floor on a plot belonging to him The Magistrate finding that the public had a right
of user by a path over that plot and also that the structure interfered with the flow of Basti water
through the ground restrained the accused by an order under S. 147(2) of the Criminal Procedure Code
(5 of 1898) from interfering with that right of user. The accused thereupon stopped proceeding with the
'construction. He did not however demolish the nstruction. It was held that as the Magistrate had no
power to order demolition of the wall, the accused could not be held guilty of any disobedience of the
order of the Magistrate inasmuch as he did nothing to cause further obstruction; AIR 1938 Nag 297.
(2) In proceedings under S. 147, Cr. P. C. the Magistrate has no power to issue an interim
order and hence for violation of such an Order action under S. 188, P. C. cannot be instituted. 1981
A/iL.! 783..
13. Orders under Chapter X, Criminal P.C.—(I) Where a Magistrate lawfully makes a
conditional order under S. 133, Criminal P.C., and the same is served or notified as prescribed by
496 Penal Code Sec. 188.

Section 134, Criminal P. C., the person against whom the order is made is bound to do one of the
things specified in S. 135, Cr. P. C. If he fails to do so a conclusive presumption arises under S. 136,
Criminal P.C., that the conditional order was correctly made and accordingly such order is to be made
absolute. He also becomes liable to the penalty prescribed in S. 188, Penal Code. 1891 AI1WN 169.
(2) No notice under S. 141, Criminal P.C., is necessary to be given to the person not complying
with S. 135, Criminal P. C., before he is prosecuted therefor. (1908)8 CriLJ 151 (Mad).
3) Where the order under S 133, Criminal 'P.'C., is made absolute on the failure to comply with
S-135, Criminal P. C., a disobedience of such order is clearly within S. 188, Penal Code. In such a
case, however, it is necessary that under S. 141, Criminal P.C. a notice should be given to the person
that in case of non-compliance with the order within a time fixed by the Court, he will be liable to the
penalty under S. 188, Penal Code. (1908) 8 CriLi 151. . .
(4) In order to attract the penalty prescribed by S. 188, Penal Code, the order passed under S. 133.
Criminal P.C. should be a legal order. ]fit is not a legal order its contravention cannot be punished
under S 188, Penal Code. A IR 1915 cai 741.
(5) The question as to the validity of an order passed under S 133 Criminal P.C., cannot be
.raised in a trial for an offence under S. 188, Penal Code for, disobedience of the order. A IR 1934
C'al 242.
14. Order for productiOn or inspection of doéuments.—(1) 'A disobediencean Of Order for
production or inspection of documents can now be dealt with only in the manner prescribed by Q. 11. -
R. 2. 1. Civil Procedure Code, and is not punishable under the Penal Code: (1910) 'CriLJ 386 (La/i).
15. Punfshment.—(1) The section contains' two scales of punishment. The punishment is made
to vary with the anticipated consequences of the disobediencO. A IR 1933 Born 1.
(2) The Legislature has recognised that the anticipated result of the disobedience would also be a
circumstance in mitigation or aggravatioC of offence. AIR 1933 Born1!.
(3) Where a person refused to get himself inoculated against cholera on the ground that he taken
preventive homoeopathic medicine, it was held that be contravened the provisions ofparas. 7ind 8 of
the Regulations made under the Epidemic Diseases Act and hence was guilty under, this section But
the offence was'of a purely technical ' nature and hence a token punishment would be sufficient. AIR 1963
Orissa'.216.
(4) In determining the offence the Court has to see whether the disobedience has caused or tended .
to cause the effects specified in the second paragraph of whether it has caused or tended to cause the
effects described in the thirJ 'paragraph. Thus, from' the fact that Government had issued certain
notification on the ground that a riot or affray was appreheOded it cannot be said that the offence
committed by the disobedience must necessarily be punished under the third paragraph and not under
the second paragraph. A IR 1923 A ll 606.
(5) A penalty harsher than the one provided by S. 188 and not provided by any other-law cannot
be threatened with by an Executive Instruction for the disobedience to an order duly promulgated by a
public servant such as a curfew order issued under . S. 144, Criminal P.C. 1975 CriLi 661.
16. Procedure.—.{1) No Court shall take cognizance of the offence punishable under S. 188, Penal
Code, except upon the compliant in writing of -the public servant concerned or some other public
servant to whom he is administratively subordinate. 1979 A ll CriR 454. ,
Sc.. 1 88 Of Contempts of the Lawful Authority of Public Servants 497

(2) In proceedings under S. 1$8 the cothpIajnant is the public servant whose order is violated.
Consequently a party at whose instance the proceedings in which the order alleged to have been
violated was passed, came to be instituted cannot file, a revision against an order , dropping proceedings
uderS.l88. (1984) 88.CaIW N249. . . . ..
a
(3) Where persons carry out the State goods contrary to orders of the Ruler and customs penalty,
is recovered from them at the outpost, that cannot dispense with the prosecution under this section..for
the offence which they have committed by their act. A IR 1950 Kutch 62.
(4) Violation of prohibitory order . under Section 144 or 145. Criminal P.C.—Magistrate may
prefer complaint under S. 188, Penal Code but he cannot take cognizance, himself. A IR 1970 Pat 102.
((5) Not cognizable_Summ'ons—Bailable--NOt compoundable—Triable by any Magistrate.
17. Refusal to prosecute not appealable.—(1) According to S. 195(l)(a), Criminal P.C..,
cognizance of an offence punishable under S. 188, P.C. can be taken by a. Magistrate only
complaint in writing of the concerned public servant or some other public servant to whom .he i.
subordinate. The, concerned- servant on an application made to him or , is not
competent to riake an enquiry under Section 340, Cr. P. L. in respect of anS' alleged offence under S.
188, P.C., nor his refusI to make a complaint is appealable under S. 341. Cr. P. C. A IR A l/LI
•(2) No appeal lies against the refusal of a publiC servant to file a complaint ('40 Cr/LI 58).
18. Practice —Evidence—PrOve: (1) That there was the promulgation of the order.
(2) That it was promulgated by a public servant.
(3) That such public servant was lawfully empowered to promulgate the same.
(4) That such order directed the accused to abstain from a certain act or to take certain Order etc.,
(5) That the accused knew of such direction to him. . .. .
(6) That he disobeyed such direction.'
(7) That such disobedience caused or tended to cause, obstruction, annoyance or injury, or risk of
the same to a person lawfully employed or that such disobedience caused, or tended to cause, a riot or
anaffiay. .. . . . . . .
19. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of, at,, knowing that by a certain order, to wit—promulgated by a
public servant, lawfully empowered to promulgate such order, to wit—were, directed to abstain from
(specially the act) or to take certain order, to wit—with certain property, to wit in your possession or
under your management disobeyed such direction, and thereby committed an offence punishable under
section 188 of the Penal Code and within my cognizance. .. . . . ..•
And I hereby direct that you be tried on the charge. .
20. Complaint.—A complaint under section 188 for disobedience of the order of the Court can be
made by a Magistrate and not by a police officer or by the opposite party. Where the Magistrate to
whom',the complaint was : made by the opposite party proceeded on it he acted entirely without
jurisdiction (PLD 1963 Lah 269) Complaint in writing of the public servant concerned or of some
• other public servant t& whom he is subordinate is required under section 195, CrPC.
498 Penal Code Sec. 189

Section 189
189. Threat of injury to public servañt.—Whoeverholds out any threat of
injury to any public servant, or to any person in whom he believes that public servant
to be interested, for the purpose of inducing that public servant to do any act, or to
forbear or delay to do any act, connected with the exercise of the public functions of
such public servant, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Cases and Materials
1. Scope.—(1) ' According to the provisions of this section threat of.inju'ry should have been held
out for the purposes of inducing a public servant to do any act or to forbear or delay the doing of an act.
'Thus the mere fact that the accused abused a rocess server will not constitute an offence under section
189.06 crLf 477.. The object underlying section 189 is to 'protect a Government servant from a real
fear of injury. Separate conviction under sections 186 and 189 are bad when the accused is found to
have refused-to follow the Court peon when arrested under civil warrant and threatened to use violence
(A IR . 1925 Pat
183). For the -meaning of word "injury" section 44 and "Public servant" section 21
may be read.
(2) Specific injury, implied or direct, must bepresent in words, of threat offered by the accused.
1952.PLD (BaO 19.
(3) Section 189 deals with menaces which would have a tendency to induce the public servant to
alter his action because of some possible injury to himself or to someone in whom the accused believes
he has an interest. A IR W 16 Mad 408; . . . ...
(4) A mere threat to.bring a legal complaint either before a Court or before the superior of the
public servant does not amount to a threat of illegal harm and so does not amount to a threat of injury
within the meaning of this section. A IR 1928 Lah 139.
(5) A threat of assault will amount to an offence under this section if the other requirements of the
section are satisfied. AIR 1927 Oudh 296
(6) It is of the essence of an offence under this section that the threat of injury should have been
held out for the purpose of inducing a public servant to do a,act or to forbear or delay thedoing of an
act. A mere threat uttered is an exhibition of bad temper or in the course of an altercation which has not
this effect will not amount to an offence under this section. 'AIR 1936A11 171.
(7) Where the accused when arrested under a civil warrant refused to follow the Court peon and
threatened to use violence and the peon being frightened went away without executing the warrant it
washejd"that the facts amounted to an offence under this section. AIR 1925 Pat 183.
(8) Members of a political party demanding the release of their co-workers threatened the police
officers with injury. They are guilty under S. 189. 1982 CriLJ379.
(9) Two police constables went at night to the house of.
a dagi'who was Under surveillancó under.
the Bengal Police Regulations and called him out from a public' street. The accused who was the
brother of the dagi came out with a lathi and enquired the purpose of their coming. When, they
explained their purpose the accused threatened that he would break their heads with a lathi if they came
again to look for his brother. Thereupon the constables went away without making any further trouble.
It was held that the constables were discharging their public functions and the accused was guilty
under this section. 'AIR 1931 Cal 443.
Sec. 190 Of Contempts of the Lawful Authority of Public Servants 499
(10) A process-server has no right to enter into a house without obtaining the permissionof the
owner. If in such a case the owner abuses the process-server this will noL.constitute an offence under
this section. AIR 19.16Mad 408.
(11) A Village Chaukidar'is not an officer of the Government and is not therefore a public servant
within the meaning of S. 21 (Eighth) and this section. Hence, a threat held out to him for the purpose.
of inducing him to refrain from reporting to the police the death of a boy by drowning will not attract
this section. AIR 1923 Lah 260.
(12) An offence under S. 176 is of a different nature from the offence under this section and is
constituted by an entirely different set of facts. AIR 1923 Lah 260. .
(13) This section can be distinguished from S. 353 in that. in S. 353 there is an actual assault
while under this section there is only a threat of such assault (where the charge is one Of threat of injury
by assault). AIR 1927 Oudh 286.
(14) Members of a political party entered the police station and demanded the release of their co-
worker from the jail and threatened the police officers with injury. Held that their act was an act of mis-
guided, over-enthusiastic, ill advised outburst so while amending the sentence a lenient view should be
taken. 1982 CriLJ3I9.
(15) Offence under S. 189 is non-cognizable. As such an accused charged under S. 189 cannot be
arrested under S. 151 of Criminal P. C. 1988 CriLJ('NQC) 235.
2. Practice.—Evidence—Prove: (1) That the accused held out the threat.
(2) That such threat was of injury.
(3) That person threatened was a public servant or some person in whom the accused believed such
public servant, was interested. . . .
(4) That the purpose for which such threat was held out was to induce such public servant todo or
to forbear or delay to do any act, connected with the exercise of his public functions.
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable--Tri'able by any
Magistrate. .
4. Charge.—The Charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, held out a threat of injury to a public servant to—[in
whom you believed that a public servant, to wit—interested] for the purpose of inducing that public
servant to do an act, to wit—[or to forbear or delay to do—connected with the exercise of the public
functions of such public servant and thereby committed an offence punishable under section 189 of the
Penal Code and within my cognizance. ..
And I hereby direct that you be tried on the charge.
S. Corn plaint.—No Court can take cognizance of an offence under this section except on a written
complaint of the public servant concerned or an officer to whom such public servant is subordinate.

Section 190
190. Threat of injury to induce person to refrain from applying for
protection to public servant.—Whoever holds out any threat of injury to any
500 - Penal C64 Sec. 190

person for the purpose of inducing that person to refrain, Or desist forth making a legal.
application for protection against any injury to any public servant 1eal1yempowered,
as such, to give such protection, or to caus such protection to be given, shall be
punished with imprisonment of either description for a term which may extend to one
year, or with fine, or with, both.
Cases and Materials -
1. Scope.—(l) The object of this section is to prevent persons from terrorising others with a view
to deter them from seeking the protection of public servants against any injury. A threat for institution
of a civil suit for a declaration of right against a person who is objecting to.that right cannot be said to
be an injury within the meaning of section 190. For the meaning of the Wbrd'threat" section 189 and
for "injury" section 144 and for "public servant" section 21 , may be read.
(2) A threat of institution of a civil suit for a declaration of right against a person who is objecting
to that right cannot be said to be a threat of injury within the meaning of the section. A IR 1926 A ll
-277.
(3) This section wjll only apply where the object of the alleged threat is to deter'tie complainant
from applying to the authorities for pràtection. (1885) ILR 8 Mad 140.
2. Practice.—Evidence—Prove: (1) That the accused held Out the threat.
(2) That such threat was of an injury.
(3) That the purpose for .which such threat was held out was to. induce the person threatened to
refrain or desist from making a legal application for protection against some injury.
(4) That the person to whom such legal application was about to be made was a public servant.
(5) That such public servant was legally empowered, as such, to give the protection, or to cause
the same to be given. -
3. Procedure.—Not cognizable-.--Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Complaint.—No Court can take cognizance of an offence under this section except on a written
complaint from a public servant duly empowered.

II
CHAPThR XI
H Of False Evidence and Offénces Against Public Justice

Chapter intrbduciiOn.--This Chapter relates to giving . or falsifying false evidence

(sections 191 to 200) and offences against public justice (sections 201 to 299).
In sect.io.tts 191 to 200 there are three pPincipal heads under which offences relating
to false evidence are classified, namely: -
(A ) (ii) Giving false evidence or using false or fabricated evidence. Section 191.
(ii) Fabrication offalse evidence: Section 192 .
(iii) Issuing or making a certificate. or declaration in which there is a false
statement: Sections 196 to 200.
.() (i) Causing' disappearance of evidence such as intentional omission to give
• . information, giving false information and diswaction of documentary evidence:
(Sections 201, 204). . . .
• (ii) False Personation: (Sections 205 'and 229)
(iii) A buse of process of court: (Sections 206 to 210)
(iv) False charge of an offence: Section 211
(v) Screening and harbouring of offenders: Sections 201, 212, 213, 215,. 216 and
216A . . . ..
(vi) Offences against the justice by public servant: Sections 217, 223 and 225 A .
(vii) Resisting the law: Sections. 220 225, 225B . . .
(viii) V iolation of condition of punishment: Section 227
(ix) Contempt of court. Section • 228 .
(x) Personation of Juror or assessor; Section 229
In a charge under these sections except under section 197 ?f the false evidence were
given at a trial or in the course of a judicial proceeding the charge should show not only
giving false evidence but the particular Stage at which the evidence was given. The proper
way to prove that the judicial proceeding took place is to produce the record thereof The
Code does not define what is meant by "a stage of a judicial proceeding' but the
Criminal Procedure Code gives it (See section 4). In order to make an enquiry a judicial
proceeding it must be one in which the object is to determine ajural relationship between
one person and another or a group of persons or between him and the public. Generally
further the matter in which the false evidence is given must be within the jurisdiction of
the person before whom it was sworn. It must be shown that the accused was bound by
the oath or affirmation to state the truth or that he was bound to make a declaration
upon any matter.
502 Penal Code Sec. 191

Section 191
1 .91.. Giving false evidence.—Whoever, being legally bound by an oath or by an
express provision of law to state the truth, or being bound by law to make a
declaration upon any subject, makes any statement which is false, and which .he. either
knows or believes to be false or does not believe to be true, is said to give false
evidence.
Explanation 1.— A statement is within the meaning of this section, whether it is
made verbally or otherwise.
Explanation 2.— A false statement as to the belief of the person attesting is within
the meaning of this section, and a person may be guilty of giving false evidence by
stating that he believes a thing which he does not believe, as well as by stating that he
knows a thing which he does not know. .
Illustrations
(a) A , in suppdrt of a just claim which B has against Z for one thousand 'flakaJ
falsely swears on a trnal that he heard Z admit the justice of B's claim, A has given false
evidence.
(b) A , being bound by an oath to state the truth, states that he believes a certain
signature to be the handwriting of Z when he does not believe it to be the handwriting of
Z. Here A states that which he knows to be false, and therefore gives false evidence;
(C) A , knowing the general character of Z's handwriting, states that he believes a
certain signature to be the handwriting of Z, A in good faith believing it to be so. Here
A 's statement is merely as to his belief and is true as to his belief and, therefore,
although the signature may not be the handwriting of Z, A has not given false evidence.
(d) A , being bound by an oath to state the truth, states that he lOiows that Z was at a
particular place on a particular day, not knowing anything upon the subject. A gives
false evidence, whether Z was at that place on the day named or not. -
(e) A , an interpreter or translator, gives or certifies as a true interpretation or
translation of a statement or document which he is bound, by. Oath to interpret, or
translate truly, that which is not and which he does not believe to be a true interpretation
or translation. A has given false evidence. . .
Cases and materials : Synopsis
1. Scope of the section. . 9. . Proceeding not authorised by law.
2. Bound by oat!, to state the truth. . 10. Contradictory statements.
3 Bound by express provision of law to stare the 11.. Pleadings.
truth. .: . 12. Affidavits,
4 Proceeding must be sanctioned by law. 13 False evidence given in Court—Section 479A
5. "Makes any statement which is Ise ". Criminal P.C.
6. Statement must be intentionally false. 14. Deposition—Reading over to witness.
7. ' Statements under S. 164, Criminal P.C. 15. Materiality of the false statement.
8. False statements by accused persons. 16. Proof.

I.
Substituted by Act No. VIII of 1973, Sch. w.e.f. 26-3-197.1, for rupees".
Sec. 191 Of False Evidence and Offences Against Public Justice .503

17. Procedure. 21. Civil action in respect of false evidence.

18. Expediency of proceeding for false evidence. 22. False evidence or false complaint in foreign
19. Abetment of perjury. - Court.
20. Other illustrative cases.
1. Scope of the section.—An oath or solemn affirmation is not a sine qua non to-the , offence of
giving false evidence. The offence may be committed although the person giving evidence has neither
been sworn nor affirmed. By section 14 of the Oaths Act, every person giving evidence on any subject
before any Court is bound to state the truth. The idea of the oath, namely that the, person swearing
renounce the mercy and implicates the vengeance of Allah if he does not speak the truth, the idea of
binding the conscience of the witnesses which still prevails in our . country The words of this section
are very general and do not contain any limitation that the statement made shall have any bearing upon
the matter in issue. It is sufficient to bring a case within this section if the false evidence is
intentionally given. No doubt there must be a corrupt intention at the timéthéfalse statement is made.
(2) As affidavit filed by the complainant, against a fact admitted in complaint itself must be
considered to be false. It has been held that to file a false affidavit with the object of securing admission
of an appeal, which is barred by time on the representation that the copying department has not yet:
supplied the copy, is a very grave and serious matter and the person who does so commits a serious
wrong to the court and to the society as awhok (A IR 1963 Punjab '185). Where anhccused sworn an
affidavit all the paragraphs of which he certified on•his"persOnal knowledge and belief''without any
specification it was held that it was open to the accused to contend that the mischievous paragraphs
were based on belief and therefrom he was not guilty of an offence under section 191 (A IR 1947 A ll
235). The provisions of section 342 CrPC that no oath shall be administered to the accused has
reference only to the statement made .by.hirn in answer to question put by the Court in-accordance with
• sub-section (I) of that section. It does not preclude him from making an affidavit in. support of an
application for transfer under. section 526,1 CrPC and therefore there is no. bar to prosecute him under
section 193 to make a false statement. Where . the. basis for the prosecution is very flimsy., and there is
no reasonable probability of conviction the prosecution of witness for forgery is not judicially
expedient (A IR 1946 Nag 38)
(3) The burden is on the prosection to prove that the statement made by the witness in his
deposition in the Court was false as defined in section 191. The mere fact that the witness before the
Court, made statement contrary to those which he had made earlier to the police during investigation,
in the absence of anything.to show that those earlier statements were true and must be true will not in
any way shift the burden of proof from the prosecution to the accused.
• (4) The offence under this section involves three ingredients:
(a) A person must be legally bound (a)by an oath or any express provision of law, to state the
truth or (b) to make a declaration upon any subject.
(b) He must make a false statement.
(c) He must know or believe it to be false or must not believe it to be true.
(d) In order to make a statement "false. evidence" within the meaning of this section, the
following ingredients must be established: ...
(I) The person making the statement must be bound by an oath or an express provision of
law to state the truth, or must be bound by law to make a declaration.
• 504 Pepal Code I. Sec.. 19.1

(ii) He must have made a statement wjch,is fals9. -

(iii) He must have Xnown or believed that the statement is false, or niji not have belieed the
statement to bA true. A I 1954 A s,am 259..
(5) A convicted person cannot assert a claim for damages against a police officer or any other
witness for giving perjured testimony at his trial. (1983) 75 Law Ed 96.
2. Bound by oath to state the truth.--(1) Every person who before any Court of Justice or before
any Tribunal competent to'administer an oath Makes a false statement on Oath is guilty under S.l93
1979 MadLW (Cr0 165..
(2) Once it is proved that the Court or Tribunal was authorised to administer the oath it will be
presumed that the proper procedure was followed and that the witness made the statement on oath or
affirmation. AIR 1921 Born 3.
• (3) Evidence given under a special oath is conclusive only as against the person offering to be
bound by it But that will not affect the liability to be prosecuted under this secpon if the evidence so
given is false AIR 1924 Born 511
(4) In perjury cases it is hotever, desirable that the due administration of oath to the accused
person is proved like any other fact AIR 1919 All 167
3. Bound by express provision of law to state the truth.-41) A false statement. by.a witness is
punishable under S. 193 of the Code even though such evidence was not given on oath or on solemn
affirmation. (1904) 1 CriL.] 1004. •. .• ;
• 4. Proceeding mutt be sanctioned by law.--(1) it is necessary that theproceeding in which the
false statement is made is one authorised and sanctioned by law. Where the proceedingis one which is
without jurisdiction and not sanctioned bylaw, any false statement made therein isnot an offence. A R
1954 Assam 259.
(2) Where Amin made false return in execution proceedings the proceeding was one authorised by
law and that the person making the false statement had committed an offence.AIR 1945 Mad 9.
5. "Makes any statement which is false". (1) To establish the offence of giving false evidence
• direct proof of the falsity of the statement on which the perjury is assigned is essential. (1926)27
C'riL./ 330 ('Lah): I

• (2) There must be absolute certainty about the falsity of the statement. A IR 1924 Pot 276
(3) A witness perjures himself not only when he does not state the truth but also when he states
something which is not the whole truth. (1963) 7 FacLR 30 (410.
(4) Suppression of circumstances is not perjury when the fact stated is true. AIR 1916 Sind 70.
(5) It is not sufficient to show that the statement is incredible. It must be shown that it is
impossible that the statement made could be true. AIR 1942 Nag 80.
(6) A person cannot be punished for being merely 'rash and careless of facts alleged by him to be
true AIR 1944 Sind 155.
(7) A person qannot be punished for having acted without due .care and attention. A IR 1933
PC 124. .
• (8) Hearsay evidence cannot be the subject of a prosecution for perjury. AIR 1936 Lah 828.
(9) A panch cannot be convicted of perjury merely because his evidence differs from that of the
police officer. (1966) 7 GujLR439.. •
Sec. 191 Of False Evidence and Offences Against Public Justice 505

(10)A statement which is inconsistent with a previous statement of the accused on a matter which
is not one of pure fact but involves a' question of law will not amount to perjury. (1904) I CriLJ 390
(Born).
6. Statement must be intentionally false.—(1) In order to sustain an indictment for perjury the
prosecution must establish three things: (a) that the statement was false, (b) that it was known or
believed by the accused to be false or not believed to be true, and (c) that such statement was made
intentionally. A IR 1954 Orissa 193.
(2) There can be no offence if the false statement was made without an intention to make it. AIR
1940 Rang 148.
(3) If the statement is proved to be false, it may be presumed that the accused intentionally gave
false evidence. AIR 1929 Nag 193.
(4) While the intention must be clear, it is unnecessary that it should be a corrupt intention. AIR
1924 Pat 381, . .
7. Statements under S. 164, Criminal P.C.—(l) A Magistrate, when taking down statements
under S. 164, Criminal P.C., is acting in the discharge of a duty imposed on. him by law and is
consequently authorised under Ss. 4 and 5 of the Oaths Act to administer an oath to the person
examined by him. (1906).3 CriLJ 370 (Mad).
(2) Statements made under S. 164 would be covered by the 2nd para. of s: 193. AIR 1, 935 All 341.
(3) An accused person making a false ' confession under S. 164, Criminal P.C. cannot be said to
have given 'false evidence. AIR 1959 AndhPra 567.
(4) False statement under S. 161, Criminal P.C. 'made by illiterate person under threat by police—.
No offence. AIR 1949 Mad 502: .
8. False statements by accused persons.—(1) A false statement made by an accused person,
whether in his statement under Section 342 or under S. 161 , or S. 164 of the Criminal Procedure Code,
could be the subject-matter of a charge of giving false evidence. 1959 C'riL.J 1279 (Andh Pra).
(2) The immunity granted to accused person from prosecution for giving false evidence continues
so long as he is an accused person, whether the case against him is pending in the trial Court or in
appeal or where he seeks to file an application in revision. (1.839) ILR 12 Mad 451.
(3) Under S. 132 of the Evidence Act ,a witness cannot refuse to answer any relevant question in
any Civil or Criminal proceeding on the ground that it will incriminate him. If he gives a false answer
he will be guilty of perjury. (1866-68) 3 Mad HC App 29.
9. Proceeding not authorised by law.—(1) In order that a person may be convicted of giving
false evidence, the false statement must have been made either in a judicial proceeding or other
proceeding authorised by law. (1885) 8 MysLR No. 353 p. 571. ...
(2) Where the proceeding itself is one which is not sanctioned by the law any false statement made
by a person therein will not render him liable for perjury. (1913) 14 CriLJ 56 (A ll).
(3) The accused could not be convicted"for perjury on the ground that the proceeding was
unauthorised. AIR 1944 Cal 283.
10. Contradictory statements.—(1) Where a witness has made two contradictory statements a
charge may be framed alternatively under S. 221 Criminal P.C., and he may be convicted of
intentionally giving false evidence although it cannot be proved which of these contradictory statements
is false. (1874) 21 SuthWR 72. .
506 Penal Code Sec. 191

(2) Where a witness has made two contradictory statements, a charge may be framed alternatively
u/s. 221, Criminal P.C. and he may be convicted of intentionally giving false evidence but in such a
case, the two statements must be so wholly irreconcilable that.one of them must necessarily be false.
A IR 1969 Mys 114.
(3) Without an alternative charge accused cannot be convicted on the basis of contradictory
statements without proof of the falsity of the particular statement for which he is charged. A IR 1954
A ll 424.
(4) The mere fact that a witness has made contradictory statements does not necessarily show that
he is guilty of perjury; for there are cases where a person might very honestly swear to a particular fact
from the best of his recollection and belief and from other circumstances at a subsequent time be
convinced that he was wrong and swear to the reverse without meaning to swear falsely either time.
A -fR 1928 Lah 125
(5) In order to constitute an offence under S. 193, the false evidence must be given intentionally
and knowing that the statement is false. A witness is entitled to alocus penitentiae and an opportunity
to correct himself. A IR 1924 A ll 83.
(6) When the witness corrects himself immediately and in the same deposition he is not guilty of
perjury. His attention must be drawn to the earlier statement so that he might reconcile the two
statements. He must be allowed to correct innocent mistakes as otherwise the object of cross-
examination will be frustrated. A IR 1929 Nag 279.
(7) If the witness corrects himself immediately, a prosecution for perjury will not lie, for the
essence of the offence of perjury is an intentionto give false evidence and thus mislead and deceive the
Court. A IR 1929 Nag 279. - -
(8) When the accused retracts his false statements only-when he discovers that his fraud had been
detected such late retraction does not disprove an intention to depose falsely. The real test is whether
the witness voluntarily corrected himself due to the realisation of his error or to a genuine feeling of
remorse before his perjury was exposed. A IR 1937 Sind 116 -
11. Pleadings.—Section 191 contemplates declarations which a person is bound by law to make.
The most familiar instances of such declarations are plaints and pleadings in suits. A person being
under a legal obligation to verify facts in plaints and pleadings is liable to be punishedunder S. 191 if
he verifies falsely. (1977) 81 CaIW N 797. -
(2) Where a person falsely Verifies a plaint he will be liable for perjury. A IR 1917 Cal 269. -
(3) Where a person falsely verifies a written statement he will be liable for perjury. A IR 1930 A ll -
490. -
(4) Where the law does not require a person to verify a statement but all the same he verifies it
unnecessarily, it will not render him- liable to punishment. A IR 1943 Nag 17.
- (5) A, one of the joint decree holders, applied for execution. Against the column "name of the
decree-holder" he did not mention the names of the other decree-holders. The application was verified
by A. It was held that it cannot be said that the verification was false, as the applicant was not bound
to mention the names of all the decree-holders. A IR 1970 Ker 15. -
12. Affidavits.—(l) The word 'evidence' in S. 191 is not confined to oral evidence only. A IR
/ 955 NUC (Cal) 2906.
Sec. 191 Of False Evidence and Offences Against Public Justice 507

(2) An affidavit is 'evidence' within the meaning of S. 191 and a person swearing to a false
affidavit is guilty of perjury. AIR 1930 Oudh 62..
(3) The definition of the offence of giving false evidence applies to the affidavits. AIR 1967 SC 68.
(4)The making of a false affidavit would be an offence even if it was not necessary for the deponent
to have made the affidavit. AIR 1959 SC 843,
(5) Even an accused person, if he files a false affidavit in support of an application for revision or for
a transfer of his case from one Magistrate to another is within the section for the provision in S. 313(2),
Criminal P.C., that no oath shall be administered to an accused person has reference only to the
statement made by him in answer to questions put by the Court in accordance with S. 313(l). 441R
1927 Sind 128.
(6) Where the affidavit is based on information, or on personal knowledge and belief the deponent
cannot be convicted unless it can be shown that he knew that it was incorrect and that he deliberately
made the statements knowing them to, be false. AIR 1955 All 608.
13. False evidence given in Court—Sect] 479A, Criminal P.C.—(1) Section 479A of the
Criminal P.0 provides that where a witness intentionally gave false evidence in Court, the Court
could, at the time of the judgment or of the final order disposing of the proceeding, record a finding to
that effect after giving the witness an opportunity. of.being heard and make a complaint as provided in
that section. Where no finding was given as required by the section, the ingredients of perjury were not
satisfied and the complaint was bad. 1970 Cr1LJ 1046 (Cal).
(2) Complaint under S. 479A could be ordered only at the time of final judgment or order and not
before and only if, after considering the whole evidence and circumstances, it was expedient in the
interest of justice and for the eradication of perjury. AIR 1971 J and K 129.
14. Deposition—Riading over to witness.—(1) In order to sustain a charge of perjury the
statement must be proved to have been made by the accused on oath administered before his deposition
was taken by the Court. A IR 1955 NUC (Cal) 2906 .
(2) In a prosecution for perjury the only evidence that is admissible under S. 91 of the Evidence
Act is the statement made on oath. AIR 1918 Pat 448.
(3) The recital in a judgment of a statement made by a witness is not the same thing as a record of
the deposition of the witness. AIR 1920 Pat 171.
(4) Even if the fact be true that the deposition was not read over under S. 360, Criminal P.C. that
would only amount to a curable irregularity and in the absence of prejudice which m'ust be disclosed in
an affidavit which shows exactly where the record departs from what the witness actually said, there is
no point in the objection. Therefore, before prejudice can be substantiated on this score, it must be
disclosed by affidavit exactly where the inaccuracy lies. AIR 1952 SC 214.
(5) Where a certificate by the Court is endorsed on the deposition that the deposition was read over
to the witness and that the witness admitted it to be correct, the Court in a subsequent trial for perjury
is bound to accept the certificate to be correct under S. 80 of the Evidence Act until it is prOved to be
untrue. The burden is on the person seeking to displace the statutory presOmption. AIR 1952 SC 214.
15. Materiality of the false statement.—(1) The materiality of the subject-matter of the false
statement is a necessary factor in the offence of perjury. (1867) 10 Cox CC 564.
(2) It is unnecessary to allege or prove that the accused swore falsely to that which was material to
the result of the proceedings. (1956) 21 CutLT 176. .
508 Penal Code Sec. 191

(3) S. 192 makes materiality an essential part of the offence of fabricating false evidence. AIR 1949
Nag 303. -
(4) The question of materiality is a relevant consideration in deciding whether a prosecution
should be launched at all. AIR 1946 Nag 38.
(5) Question of materiality is a relevant consideration in fixing the sentence. (1938) 42 Cal WIV 31.
16. Proof.-.-(1) In order to convict a person of the offence of perjury it must be shown that the
statement said to be false could not but be false. It is not sufficient to show that the probabilities are
that the statement was false. (1906) 4 CriLJ 227 (Cal).
(2) The prosecution must not only prove the falsity of the statement beyond all reasonable doubt
but also show that the accused knew or believed that it was false or did not believe it to be true. AIR
1919 Lah 158.
(3) The falsity of the statement cannot be presumed. (1965) 1 AndhWR 465.
(4) The falsity of the statement cannot be presumed even if there is a presumption of law against
the truth of accused's statement under a statutory provision, e.g., S. 118 of the Negotiable Instruments
Act, as to the passing of.çonsidération for a promissory note. AIR 1920 All 242.
(5) The circumstantial evidence will be sufficient for a conviction but in such a case where the
evidence consists of that of a single person, the Rule as to corroboration may well serve as a safeguard.
A IR 1944 Sind 155.
(6) It will be unsafe to convict a person of perjury merely because there is some oral evidence
showing that his statement is false. 1966 CriLJ 474 (Guj).
(7) It will be unsafe to convict a person of perjury merely on the basis of the opinion of
handwriting experts. AIR 1924 Rang 17.
17. Procedure.—(l) Under S. 195(l)(b) of the Criminal P.C. the filing of a complaint by a proper
person is a condition necessary to the taking of cognisànce of an offence punishable under S. 193,
otherwise the Court will have no jurisdiction to enquire into the case at all. AIR 1942 Mad 326.
(2) The complaint must not be a general one. It ought to specify the statement which is alleged to
be false. 1936 MadWN 464.
(3) The charge must be specific and must set Out the specific answer which is alleged to be false.
A IR 1924 Cal 104.
(4) Where there are several false statements in the same deposition, it was held that each false
statement is a distinct offence and must be separately charged. AIR 1928 All 706
18. Expediency of proceeding for false evidence.—(l) Though it is true that every act of
perjury is, in strict law, an offence, it does not follow that on that account, every perjurer should be
charged. AIR 1978 SC 1753.
(2) Under S. 340 of the Criminal P.C. only when a Civil, Revenije or Criminal Court is of
opinion that it is expedient in the interests of justice that an enquiry should b made into such an
offence, that a complaint should be made. AIR 1924 Nag 35.
(3) Where .the accused gave two inconsistent statements before the l.-T. authorities regarding the
ownership of some articles and the Magistrate discharged the accused without framing charge it was
held that the Magistrate was not entitled to assume that in face of the second statement, the accused
would come out with a plea that he purchased the articles subsequent to the date of raid. The
Sec. 192 Of False Evidence and Offences Against Public Justice 509

Magistrate was duty bound to frame a charge against accused under S. 191, read with S. 193. (1983) 2
BomCR 707.
(4) Where the accused non-petitioner tried to mislead the High Court and tried to obtain an order
in his favour by making a false statement in the writ petition and filing a false affidavit in support of the
writ petition it is expedient in the interest of justice that an enquiry should be made into the offence
punshable under S. 193 oi'the P.C. 1983 RajLW 153.
(5) The mere fact that the evidence of the witness resulted in-an acquittal of anaccused or that it
contained contradictions or that the witness made three different statements at three different stages of
the proceedings, does not necessarily mean that the witness should be prosecuted. A IR 19360udh 373.
19. Abetment of perjury.—(1) The evidence adduced, however, must give notice to the accused
of all the facts which constituted the abetment. A IR 1944 Nag 192.
(2) In a charge for abetment of an offence under S. 193 the abettOr should be proved not only to
have intended that the statement should be made but also intended that it should be made falsely. 1893
Rat Un CrC 632.
20. Other illustrative .cases.—(1) In the following cases the accused was held guilty of the offence
of giving false evidence. A IR 1929 A 11374.
21. Civil action in respect of false evidence.—(1) The giving of false evidence no matter how
malicious and mala fide it may be, furnishes no right to sue in a Civil Court, the only remedy being a
prosecution for perjury. (1909) 2 BomLR 244.
22. False evidence or false complaint in foreign Court.—(1) There is no provision in the Code
which constitutes it an offence to lodge a false complaint or give false evidence in a foreign Court. A IR
1924 Born 51.

Section 192
192. Fabricating false evidence.—Whoever causes any circumstance to exist or
makes any false entry in any book or record, or makes any document containing a
false statement, intending that such circumstance, false entry or false statement may
appear in evidence in a judicial proceeding, or in a proceeding taken by law before a
public servant as such, or before an arbitrator, and that such circumstance, false entry
or false statement, so appearing in evidence, may cause any person who in such
proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion
touching any point material to the result of such proceeding, is said "to fabricate false
evidence".
Illustrations
("a) A puts jewels into a box belonging to Z, with the intention that they may be found
in that box, and that this circumstance may cause Z to be convicted of theft. A has
fabricated false evidence.
(b) A makes afalse entry in his shop-book for the purpose of using it as corroborative
evidence, in a Court of Justice. A has fabricated false evidence.
(c) A , with the intention of causing Z to be convicted of a criminal conspiracy, writes
a letter in imitation of Zs handwriting, purporting to be addressed to an accomplice in
510 Penal Code Sec. 192

such criminal conspiracy, and puts the letter in a place which he knows that the officers of
the Police are likely to search. A has fabricated false evidence.
Cases and Materials Synopsis
I. General. 6. Judicial proceedings, etc.
2. "Causes any circumstance to exist' 7. "Erroneous opinion".
3. Making false entry in a book or record or 8. "Touching any point material to the result of
making of a document con faming false such proceedings".
statement. 9. Fabrication of evidence for self-protection.
4. Intention that the fabricated evidence may io. Offence not compoundable.
appear in evidence. 11. Complaint.
5. Abetment of offence under this section.
1. General.—(1) Knowledge of the falsehood of the statement or document is a necessary
ingredient of the offence amounts to the "causing of a circumstance to exist" within section 192 (28
CrLf 950). An accused can only .be guilty under section 192 if he had the intention of fabricating
evidence in order thatjt should appear in evidence in a judicial proceeding or in a proceeding taken by
law before a public servant as such, or an arbitrator. A judicial proceeding is nothing more or less than
a step taken by the Court in course of administration ofjustice in connection with pending case. For
the purpose of section 192 no judicial proceeding need be pending at the time of fabrication. A person
is guilty of fabricating false evidence when he makes a false entry in a document intending that it shall
appear in evidence and mislead the Judge or Magistrate. The mere fact that the entry is not legally
admissible in evidence cannot affect his guilt.
(2) The offence defined in this section contains the following ingredients:
(a) Causing any circumstance to exist or making (a) any false entry in a book or record, or (b) a
document containing a false statement.
(b) That such circumstance, false entry or false statement must have been intended to appear in
evidence in (i) a judicial proceeding, or (ii) a proceeding taken by law before a public servant
or arbitrator.
(c) That such circumstance, false entry or false statement so appearing in evidence, might cause
any person, who in such proceeding, is to form an opinion upon the evidence, to entertain an
erroneous opinion.
(d) That formation of opinion should be touching any point material to the result of such
proceeding.
(3) Fabrication of false evidence is complete as soon as the fabrication is made. Under section 192
the offence of fabricating false evidence is complete as soon as the fabrication is made intending that it
may be used as evidence in judicial proceeding. It is immaterial that the judicial proceeding had not
been commenced or that no actual use has been made of the evidence fabricated. fanendra Nat/i Biswas
Vs. Mokbul Hossain Sikder (1959) 11 DLR 359, (1960) PLD (Dac) 19.
(4) Fabrication of false evidence. Prosecution must prove not only fabrication of false evidence but
must further prove that it was to use it in any judicial proceeding. Mere likelihood of doing so in future
is not enough. Nurul Hoq Vs. State (1958) 10 DLR 129.
(5) Before an act can be said to come within the scope of this section it is essential to establish:
Sec. 192 Of False Evidence and Offences Against Public Justice 5 11

Firstly,—
(a) that the accused caused any circumstance to exist, or
(b) made any false entry in a book or record, or
(c) made a document containing a false statement;
Secondly, that the accused intended that such circumstance, false entry or false statement may
appear in evidence:
(a) in a judicial proceeding, or
(b) in a proceeding taken by law before a public servant, or
(c) before an arbitrator;
Thirdly, that the accused intended also that such act may cause any person who, in such
proceeding, is to form an opinion upon the evidence, to entertain an erroneous opinion; and
Fourthly, that such erroneous opinion was one touching any point material to the result of such
proceeding. A IR 1937 Cal 42.
(2) Swearing to a false affidavit amounts to fabricating false evidence. A IR 1970 Ker 15.
(3) In contrast with this section, S. 218 which also deals with the preparation of a false record is
concerned with the preparation of such record by a public servant. Further, the false record under S. 218
is prepared for the purpose of saving a person from punishment or a property from forfeiture. A IR 1968
SC 19.
2. "Causes any circumstance to exist".—(l) A caused stolen property to be concealed in the
field of one S intending that it might be found there, that the circumstance might appear in a judicial
proceeding and that this circumstance might lead the Court to believe that Swasconnected with the
theft. It was further proved that A voluntarily assisted in concealing or disposing of the property which
he knew to be stolen. It was held that A was guilty under this section. (1875-77) ILR I A ll 379.
(2) A who had borrowed money from B wrote to B that hé would be sending money to B in a
registered cover. He subsequently actually sent a registered and insured cover which did not contain
any currency notes but Khilafat bonds having no money value. It was held that if A had thereby
intended to create evidence to bolster up a defence of payment, if .a suit was filed against him by B he
would be guilty of fabricating false evidence. A IR 1924 A ll 205.
(3) A owed B a certain amount. He sent to B a registered and insured letter purporting to contain
currency notes but, really containing waste paper, and in the suit which B filed for recovery of the debt
A applied to Court to admit the postal acknowledgment of the insured cover, in evidence. It was held
that A was guilty under this section. A IR 1927 Mad 199...
(4) A requested the Magistrate trying a case against A's brother B to arrange for an identification of
B by prosecution witnesses. The Court assented to this request and A produced before the Court a
number of persons. One of them was a person who was made to personate B. The result was that the
witnesses failed to identify him. Held that A had committed an offence defined in this section. (1907)
5 CriLJ 285 (286) (A ll).
(5) The turtoring of a man to give false evidence amounts to the causing of a circumstance to exist
within the meaning of this section. A IR 1927 A ll 721.
3. Making false entry in a book or record or making of a document containing false
statement.—(l) The forging of an endorsement on a promissory •note for the purpose of saving
limitation would be a fabrication of false evidence. A IR 1933 Mad 413.
512 Penal Code Sec. 192

(2) Fabricating a false diploma to support one's claim to be a qualified criminologist will be an
offence under this section when the fabrication is made with the object of using it when necessary, in
Court while giving evidence as an expert witness. AIR 1966 SC 523.
(3) It is not necessary for the commission of the offence of fabricating false document that the
document should contain in express terms the false statement. It is sufficient if the document contains
false recitals which imply such a false statement. (1906) 3 CriLJ 196 (198) (DB) (Cal).
(4) An entry or a statement making a material omission may amount to fabrication of false
evidence. A IR 1965 Mad 100 (101) . (1965) . l CriL.J311, A 1937 Cal 42(44): 38 Cr1LJ 700 (DB).
(5) The making of a false affidavit may fall within this section as well as section 191. 1973 CriLJ
1284.
4. Intention that the fabricated evidence may appear in evidence.—(1) The mere making of a
false document is not fabrication of evidence under this section. There must, at .the time of making it,
be an intention that it should appear in evidence. (1947) 48 CriLJ 632.
• (2) Proximity to a judicial proceeding pending or likely to èome into existence is a test by which
the applicability of the section is to be determined. 1970 AI1CnIR 263.
• (3) An attestation of a false document without knowing that it was a false document is not an
offence under this section. AIR 1919 All 316.
(4) The attestation of the service of summons on a wrong person is not an offence unless the
accused was aware that the service was being effected on a wrong person. AIR 1919 Pat 528.
(5) Where an identifier swore a false affidavit intended to be used in a judicial proceeding although
no affidavit was required from the identifier it was held that the offence under this section had been
committed. A IR 1928 Pat 161.
(6) The word 'evidence' in this section is not the same as the evidence defined in S. 3 of the
Evidence Act and confined to something adduced before ajudiciàl or quasi judicial authority but will
include evidence before any person including a public servant. 1960 KerL.J 1307.
• (7) The fabrication of a document which is inadmissible in evidence is not an offence under this
section. A IR 1919 Cal 430.
(8) A question of law whether to enter a false record in a police diary can be said to be fabricating
evidence at all, especially as cjauses 162 and 172 Criminal P. C. appear to negative the admissibility
of the entry as evidence save for the purpose of contradicting a witness whose statement is recorded in
writing, or of contradicting the police officer himself, was left open. AIR 1933 PC 124.
(9) It is the intention that creates the offence under this section and the mere fact that a document
wou!dbe ultimately inadmissible in evidence does not necessarily take it out of the mischief of S. 193
of the Code. AIR 1940 Cal 449.
5. Abetment of offence under this section.—(1) Where A fabricates evidence by making a false
document and B attests it. B may be guilty of abetment of the offence. If, in addition B knows that the
document is intended to be used for the purpose for which it was made, he would be guilty also under
S. 193 of the Code of fabricating false evidence. AIR 1942 Mad 92.
• (2) It is not necessary, in order to constitute the attestation, an abetment of the offence of fabricating
false evidence,that the document should require to be attested provided the person who brought the
false document into existence intended that it should be attested and that the accused should be one of
the attestors. AIR 1942 Mad 92.
Sec. 192 Of False Evidence and Offences Against Public Justice 513

6. Judicial proceedings, etc.—The words "judicial proceedings" can be interpreted as '.nothing

more or less than a step taken by the Court in the course of administration ofjustice in connection with
a case pending". (1864-65) 2 MadHCR 43. -
(2) It is not essential for the purpose of this section that there should be any judicial proceeding
pending at the time of the fabrication; It is enough that there is a reasonable prospect of such a
proceeding having regard to the circumstances of the case and that the document is intended to be used
in such a proceeding. A IR 1926 Cal 224; CriLJ 49 (DB); A IR 1921 Cal 226(227)(DVB).
(3) The mere idea in the mind of anybody that some document might at some .future date be used
in some judicial proceeding vould not be sufficient to bring him within the ambit of this section.
(1936) 40 CaIW N 313.
(4) An enquiry under S. 476 of Criminal P.C., 1898 has been held to be a judicial proceeding.
(1909) 9 Cr1LJ 41 (Mad).
(5) A Third Class Magistrate's recording of statement under S. 164, Criminal P.C., when the
Magistrate had no authority to carry on the preliminary enquiry is not a stage of judicial proceeding.
AIR 1921 Born 3.
(6) Proceedings initiated by an application for execution, of a decree have been held to be judicial
proceedings for purposes of S. 476 Criminal P.C., and S. 193 of the Code. AIR 1945 Mad 9.
(7) Proceedings before Debt Settlement Board are not judicial proceedings. A IR 1940 Cal 286
(8) When a Magistrate, after dismissing the complaint of the complainant called the two doctors
who had given injury, reports with reference to the same man, and recorded their statement and decided
to order the filing of a complaint against one of the doctors under S. 193 of the Code, it was held that
the recording of the statement after the dismissal of the complaint is not a judicial proceeding. 1966
AIIWR (HC) 761..
(9) Where it appeared to the District Magistrate from police papers that the accused had persuaded
one X to make 'a false statement during the investigation, it was held that the statement had not been
made in any judicial proceeding. AIR 1915 All 388.
• (10) A person made a statement before the District Magistrate against a particular police officer but
expressly stated that heis not making a complaint. But the District Magistrate administered oath to
him whereupon he repeated the statement which was found to be false. The trial Court convicted that
person under S. 193 for giving false evidence in. a judicial proceeding. In appeal it was held that the
statement made before the Magistrate was not in his judicial capacity but only as the headof the police
and hence, no offence xnder S. 193 has been committed. (1913) 14 CriLJ56 (A ll).
(11) Where the re-hearing of the suit (at the instance of a party set ex-parte. but against whom the
suit was dismissed) itself was ultra vires and illegal, a false, statement made therein was held not to
be so made in the course of a judicial proceeding within the meaning of this section. (1911) 12
Cr1LJ 373. . . . . .
(12) This section is not restricted to judicial proceedings only but applies to proceedings other
than judicial. 1960 KerL.J 1307.
(13) Where a person relies on false statements in his account books in an enquiry before the
Income-tax Officer he is guilty of an offence punishable under S. 193. (1937) 20 NagLJ 214.
(14) The bringing about of fraudulent and false entries in electoral rolls was held to be punishable
under S. 193. A IR 1934 Cal 838;
CD
7. "Erroneous opinion".—(l) Where a• person altered the date of the bond in order to bring it
within the period allowed by the law for registration, it was held that it was clear that the intention of
514 Penal Code Sec. 192
the person in altering the date was to cause the registering officer to entertain an erroneous opinion
touching a point material to the result of the registration proceedings and that hence the act constituted
the offence of fabrication of false evidence. (1881) ILR 6 Cal 482.
(2) The offence is not made out when the fabricated evidence does not lead to the forming of an
erroneous opinion, but rather to a correct opinion. AIR 1918 All 326
(3) Where the accused was not aware that the statement in a document attested by him was false,
he cannot be held to intend that the statement should lead to the formation of an erroneous opinion by
the person before whom the document is produced as evidence, and hence, he cannot be held in such a
case to have committed the offence of fabrication . of false evidence. AIR 1919 All 316
8. "Touching any point material to the result of such proceedings".—(I) The fabricated false
evidence must be such as to lead the judge or other public servant or arbitrator to entertain an erroneous
opinion touching a point which is material to the result of the proceeding. If it merely causes the
formation of an erroneous opinion on a point which is immaterial to the result of the proceeding, this
section will not apply. AIR 1956 Pat 154.
(2) Where a fabricated evidence is with reference to a point which is not relevant to the question on
which an opinion is to be formed, it cannot be said to be material to the result of the proceeding and is
not within this section.. In this respect this section differs from S. 191 which does not require that the
false evidence given should be material to the result of the proceeding. AIR 1949 Nag 303.
(3) Where the judge or public servant or arbitrator has no authority or jurisdiction to form an
opinion on a particular mater, the fabrication of evidence which may lead to an erroneous opinion by
such person on such matter cannot be said to be material to the result of the proceeding before him and
is not within this section. 1960 KerLJ 1307.
9. Fabrication of evidence for self-protection.—(1) If A, after having stabbed Z, in order to
escape detection disposes of Z's body in such a manner as is likely to lead a jury to think the death
accidental, the Court cannot punish A as the fabricator of false evidence. AIR 1935 Cal 304.
(2) An accused person cannot escape the penalty under S. 193 for fabricating false evidence, merely
on the .ground that he is an accused person. AIR 1934 All 1017.
(3) While the mere intention to divert suspicion and conceal one's guilt need not necessarily
amount to fabrication of evidence which may appear in a proceeding such as is referred to in the section
a fabrication, with intent that it may appear in such a proceedingwill fall within this section although
there may also .be object of screening himself from detection. AIR 1914 All 337.
(4) Where thetaccused placed the wet clothes of a woman on the river bank with the intention that
the investigating officer should form an opinion that the woman was drowned, it was held that the
accused was guilty under S. 193 of fabricating false evidence. ,41R 1928 Born 130.
10. Offence not compoundable.—(l) The offence of fabricating false evidence under S. 193 is
not a matter of private dispute and is not compoundable. Where a Magistrate making a preliminary
inquiry into a charge of fabricating false evidence tried to get the dispute amicably settled, it was held
that the Magistrate was misdirected in doing so. A IR 1936 Sind 146
11. Complaint.—(1) The procedure for giving complaints is laid down in Ss. 340 and 344 of the
Criminal P.C. 1965 C'riLJ 834.
(2) A proceeding before an Income Tax Officer is a proceeding in a Court within the meaning of S.
195(l)(b) of the Criminal P.C. and a complaint by the income Tax Officer is necessary before taking
cognizance of an offence under S. 193. AIR 1964 SC 1154.
Sec. 193 Of False Evidence and Offences Against Public Justice 5B

(3) Prosecution for perjury should be sanctioned by Courts only in those cases where it appears to
be deliberate and conscious and the conviction is reasonably probable or likely. (1975) 41 CuLT 841.

Section 193
193. Punishment for false evidence.—Whoever intentionally gives false
evidence in any stage of a judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial proceeding, shall be punished with
imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall
be punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine.
Explanation 1.—A trial before a Court-martial 2[* "] is a judicial
proceeding.
Explanation 2. —An investigation directed by law preliminary to a proceeding
before a Court of Justice, is a stage of a judicial proceeding, though that investigation
may not take place before a Court of Justice.
Illustration
A , in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought
to be committed for trial, makes on oath a statement which he knows to be false.. A s this
enquiry is a stage of a judicial proceeding, A has given false evidence.
Explanation 3.— A n investigation directed by a Court of Justice according to law,
and conducted .under the authority of a Court of Justice, is a stage of a judicial
proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A ., in an enquiry before an officer deputed by a Court of Justice to ascertain on the
spot the boundaries of land, makes on oath a statement which he knows to be false. A s
this enquiry is a stage of a judicial proceeding, A has given false evidence.
Cases and Materials : Synopsis
1. Scope. 8. Complaint.
2. "Intentionally .". 9. Charge.
3.. Giving false evidence. 10. Proof and conviction.
4. Fabricating false evidence. . 11. Sentence.
5. Materiality of the evidence. . 12. Appeal and revision.
6. "In any stage of a judicial proceeding" 13. Procedure.
7. "In any other case "—Second para. 14. Practice.

2. The words "or before a Military Court of Reaquest" were repealed by the Cantonments Act, 1889 (Xli( of 1889), act
XIII of 1889 was repealed by the Cantonments Act, 1910 (XV of 1910) which in turn has been repealed by the
Cantonments.Act, 19240. .
516 Penal Code Sec. 193
1. Scope.—(1) Prosecution should be instituted after due consideration on the part of the Court
before whom the false evidence was given. The Court is bound to satisfy itself that there is at least a
prima fade case and that there is a reasonable prospect of a successful termination of the prosecution and
that a prosecution is necessary in the interest of justice (12 CrLJ 446). The statement must be
intentionally false in order to justify a prosecution (3 CrLJ45). Para I of this section applies to false
evidence given in judicial proceedings whereas para 2 applies to perjury generally. "Intention" forms
the most essential ingredient of the offence of perjury under the section. Whether a person can be said to
have intentionally given a false evidence within the meaning of section 193, Penal Code is a pure
question of fact (A IR 1948 Sind 76). "Intention" may be proved either directly from the existence of
certain facts and circumstances or it may be inferred from statement (PLD 1957 Pesh 142). Where the
intention to make a false statement is not proved, the accused cannot be convicted under this section
and in such a case, no sanction for prosecution should be given. In order to convict a person under
section 193 of the Penal Code the prosecution must not only prove that the accused fabricated false
evidence but it must also prove that in fabricating those documents he intended that the documents
may be used in any stage of judicial proceeding (10 DLR 129).
(2) Where a person denied having made a particular statement to a police officer in whose dairy it
was found, it could not be said that the person had any intention of its being used as evidence in any
stage of judicial proceeding under section 162, CrPC. It could be used only fOr contradicting the police
officer and therefore prosecution for perjury was not sustainable (7 CrLJ 3).
(3) Where the Court orders an applicant to prove his allegations by affidavit and in consequence he
swears an affidavit and files it before the Court he is bound under section .14, Oaths Act to state the
truth in it and by failing to do so he commits the offence under section 193. Where an identifier swore
a false affidavit intended to be used in a judicial proceeding although no affidavit was required from the
identifier, it was held that the offence of fabricating false evidence committed within the meaning Of
section 193 (29 CrLJ 111). A statement not made on oath cannot be made the subject matter of
prosecution under this section (AIR 1 916, Sind 34). A prosecution ought not to be ordered unless the
statements are absolutely irreconcilable with each other (1929 Cal 390). An accused person cannot be
charged either with giving or fabricating false evidence with the sole objects of diverting suspicion from
himself and concealing his guilt in regard to a crime with which he is charged.
(4) The Tribunal shall have the same powers as vested in a Civil Court for the purpose of inquiry
and every enquiry as such shall be deemed to be judicial proceeding within the meaning of sections
193 and 228 of the Penal Code—A tribunal shall be deemed to be a Civil Court for the purpose of
sections 480 and 482, CrPC. Tribunal manner of acceptance of the case On a matter in which amicable
settlement was reached between the parties out of their free will and without prejudice to any one. In
our view after effecting the compromise there was nothing for adjudication in the case. 42 DLR 201.
(5) Allegation stated in the complaint petition that the appellants filed a Civil Suit being OS No.
112/82 and obtained an ex parte decree from the court of Sub-Judge, Rangpur to the effect that a deed of
gift executed on 21-6-80 by the respondent's late husband was forged, collusive and void as it was
obtained by giving false evidence making false statement and false personation. The alleged offences
have been committed in relation to a proceeding in the Civil Court and no court is competent to take
cognizance of an offence mentioned in clause (b) of section 195, CrPC except on a written complaint by
the Court concerned. The refusal of the High Court Division to quash the proceeding in question is not
justified. 7 BCR (AD) 94.
Sec. 193 Of False Evidence and Offences Against Public Justice 517
(6) The petition of complaint discloses no offence under the various sections of the Penal Code of
which cognizance has been taken. Cognizance has been taken against the accused petitioner under
sections 193/207 of the Penal Code. Allegation by the complainant that accused has no subsisting
interest in the property in question thus raises a question of civil dispute, not a criminal issue.
Criminal courts are not to be utilised for adjudication of civil disputes. Court strongly disapproves
resort to criminal proceeding for harassing a person with motive of settling civil disputes. Questions of
fact are to be tried on evidence by the trial Court. 39 DLR 214.
(7) It must be proved that false evidence was given intentionally. Conviction cannot be sustained
without a clear finding as to that, "Intention" forms the most essential ingredient of an offence of
perjury under S. 193, Penal Code. For a conviction under this section it is not enough that a certain
statement made by a witness should be false, but it also must be proved positively that false statement
was made "intentionally". "Intention" may be proved either directly from the existence of certain facts
and circumstances, or it may be deduced from the existence of certain facts and circumstances, or may
be deduced from the contradictory statements. For the conviction of an accused person on a charge of
perjury a clear and distinct finding must be given, that he "intentionally" made a false statement, and
in the absence of such a finding, the conviction cannot be sustained. 10 DLR (WP) 5.
(8) Fabrication of false evidence—prosecution must prove not ottly fabrication of false evidence but
must further prove that it was to use it in any judicial proceeding. Mere likelihood of doing so in future
is not enough. 10 DLR 129.
(9) If a court finds that any wi.tness committed an offence under section 193, the court is to proceed
in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence
under section 193 is included in section 195(1)(b) of the Code. Idris Miah (Md.) V s. State 50.
DLR 629.
(10) The commission of offence under sections 193/212 of the Penal Code do not depend upon the
acquittal or conviction of the original accused person for whom the false evidence was given or sought
to be screened from punishment and hence the submissionof the learned Advocate for the petitioner
that the •learned Special Judge ought to have waited till conclusion of the trial or that the original
accused persons were found guilty and were convicted in spite of the deposition of the petitioner and as
such the proceeding against them are premature, have got no substance. Masudur Rahtnan (Md.) Vs.
State (Criminal) 5 BLC 286
(11) Offence under sections 193 & 467 are offences of the same kind. A bdus Sobhan Vs. Crown
(1955) 7 DLR 566.
(12) Accused filled 2 insured covers insured for Rs. 1200-0-0 with blank sheets and attempted to
despatch them through the post office—Attempt failed—Contents discovered by the post office.
Offences under sections 193/511 not made out. 1954 PLD (Dac) 483.
(13) The first paragraph of this section prescribes the punishment for intentionally giving false
evidence in a judicial proceeding or fabricating false evidence for the purpose of its being used in a
judicial proceeding. The second paragraph of the section prescribes the punishment for intentionally
giving false evidence or fabricating false evidence, in any case, other than a judicial proceeding. AIR
1958 Mad 69.
(14) Statement of oath falsely supporting a prosecution case against an accused person more
appropriately amounts to an offence under Ss. 193 and 195'and not under S. 211. AIR 1973 SC 2190.
518 Penal Code Sec. 193

(15) "Fabricating false evidence for the purpose of being used in a judicial proceeding" would
include not only a judicial proceeding in existence when the offence is committed but also such judicial
proceedings as are foreseen. (1907) 6 CriL,J 162.
(16) Where the proceedings under S. 193 of P.C. were pending in the Court since 9 years and were
still at initial stage, it was held, that it was imperative to quash these proceedings for securing ends of
justice. (1984) 1 ChandLR (Cr1) 248.
(17) In U. S. A., the Fifth Amendment privilege grants a right to a witness to refuse to answer
self-incriminating questions and to remain silent that does not meanthat she is endowed with a licence
to commit perjury. 1978 CriLi 161.
(18) A convicted person cannot assert a claim for damages against a police officer or any other
witness for giving perjured testimony at his trial. /1983) 75 LEd 96. (USSCR).
2. "Intentionally".—(l) Intention is an essential ingredient of the offence under this section. 1966
A IIW R (NC) 76]
(2) False evidence may be said to be given intentionally if the person giving it does so advisedly,
knowing it to be false, and with the intention of deceiving the Court and of leading it to suppose that
that which he states is true. (1977) 81 CaIW N 797.
(3) The intention can only be gathered from the surrounding circumstances. A IR 1940 cal 449.
(4) Where the accused were charged for fabricating a document purporting to be a kabuliyát,
executed by them in favour of the complainant and the document contained a false recital to the effect
that the landlord (complainant) had agreed to accept the document and to grant a Iese of the lands, to
•which it related, to the accused, it was held that the offence under this section was established and that
the question whether it was the intention of the accused to use the document in a judicial proceeding
was one of inference. A IR 1921 Cal 224.
(5) Where the accused, having failed to obtain a certain woman in marriage, executed a document
purporting to convey certain lands to the woman by way of dower and described her therein as his wife
and it was .found that the object of the accused was only to secure the person of the woman, which he
could do only by judicial proceedings, it was held that his intention wasto use the document in such
proceedings and that he was therefore guilty of-an offence under this section. A IR 1921 Cal 226
(6) The accused executed a sale-deed in favour of his wife, and before the registration thereof
executed a mortgage of the same property in favour of F. F made enquiries in the registration office and
being satisfied that there was no encumbrance got the mortgage deed registered. The sale-deed was
subsequently registered and F coming to know of this gave a complaint against the accused for
cheating. In that case the mortgage deed was produced by F. There was no endorsement Of discharge on
it at that time. But at the time of the trial it was found that the mortgage deed had an endorsement of
discharge. The accused was therefore charged for fabricating false evidence and forgery and he was held
to be guilty. A IR 1914 A ll 337. -
(7) Where an affidavit prepared and read out was signed by the accused while he was drunk and he
was subsequently charged for perjury, it was held that there was no intention to give false evidence.
A IR 1940 Rang 148. ---
(8) Discrepancies in evidence due to confusion of mind or failure of memory cannot be regarded as
false evidence given intentionally. A IR 1918 Cal 106 -
(9) A person signing a report without reading it cannot be said to know that the report was false
and cannot bepunished for an offence under this section. AIR 1919 All 316.
Sec. 193 Of False Evidence and Offences Against Public Justice 519

(10) Statement capable of a reasonable construction which would negative the intention of giving
a false statement cannot be said to be an intentional giving of false evidence. AIR 1924 Pat 381.
(11) Accused making allegation as per bond, of oral partition in plaint in former suit—Accused
stating on oath in later suit that there was no partition. Allegation of oral partition found not necessary
for getting decree in former suit—Further the allegation was found to be recklessly made—Held, the
statement was not intentionally false. AIR 1954 Orissa 193.
3. Giving false evidénce.—(l) A false affidavit attested by a person who .had no legal authority to
administer oaths is not an offence under this section. (1972) 74 PunLR 521 (DB).
4. Fabricating false evidence.—(l) Where during pendency of proceeding for assessment of
compensation under Land Reforms Act, the accused persons who were employees of the Land Reforms
Office submitted false and collusive reports and made interpolations in collectible demands and altered
Touzi number for facilitating false payment to land owner, that will amount to fabricating false
evidence, more so when ad interim payment of compensation in excess was actually made to the land
owner. 1975 CriLJ 1939.
(2) A document is false if among other things it bears a false time or place of making or if it
purports to be made by A on behalf of some one who did not make it nor did he authorise its making
at a particular time--On facts pro-notes used in income-tax assessment proceedings were held
fabricated. (1983) 15 Tax Law Rev 344 (MP).
• 5. Materiality of the evidence.—(1) In order to constitute the offence of giving false evidence
under this section, it is not necessary that the false statement should be material to the case. (1955) 21
CuiL T 176.
6. "In any stage of a judicial proceeding".—(l) In a prosecution for an offence under the first
paragraph of this section, it must be proved that the accused gave false evidence in a stage of a judicial
proceeding. (1870) 13 SuthWR (Cr) 56.
• (2) To punish one under this section, it has to be proved that one had intentionally given false
evidence in any stage of the judicial proceedings. Whatever is stated either during investigation or in
the first information report does not constitute substantive evidence and such a statement could not be
made the foundation of judging the correctness or the falsity of the deposition made by a witness during
the course of trial, which are judicial proceedings. 1981 JabLJ 122 (MP).
(3) The following proceedings have been held to be judicial proceedings for the purposes of this
section:
.
(a) Proceedings before the Income-tax Officer under the Income-tax Act, 1922. AIR 1964 SC 1154.
(b) Under the Income-tax Act, any proceeding before the income-tax authority is a judicial
proceeding for the.purposes of Ss. 193 and 228 of this Code. 1975 MadLJ(Cir) 263.
(c) Mutation proceedings. AIR 1966 All 124. -
(d) Enquiry by Magistrate before making an order u/s. 144, Cr. P. C. (1896) ILR 19 Mad 18.
(e) Proceedings under S. 83. T. P. Act. A IR 1947 Pat 37.
( Bailiff's affirmation before a Judge regarding service of summons. (1897)2 Mad HCR 43.
(g) Official Assignee examining the insolvent under the Insolvency Act. AIR 1958 Mad 69.
(Ii) Enquiry by an Officer of the Railway Protection Force under Section 9, Railway Property
(Unlawful Possession) Act, 1970 All Cr1 R 437..
520 .• Penal Code Sec. 193

(i) Proceedings before Rent Controller under the Rent Restriction Act. AIR 1971 Punj 150.
(j) If false evidence in the form of affidavit filed by the accused was given before Rent Control
Officer, a civil court for the purpose of S. 193, P.C. that being a judicial proceeding S.
195(1)(b)(i) would be attracted. A complaint by the court is a pre-condition for taking
cognizance of such offence by any criminal court. AIR 1982 SC 1238.
(k) Proceedings before the compensation officer under Chapters V and VI of the Land Reforms
A ct, 1950. 1975 CriLi 1939.
(4) Deputy Commissioner acting under the Schools (Security of Service) Act, does not sit on a
Court and he will not be competent to file a complaint under S. 193. (1975)2 CriLT4O9(Punj).
(5) Application filed by respondent claiming tenancy on basis of fabricated lease deed dismissed by
land tribunal formed under Land Reforms Act . —Cornplaint filed against respondent by alleged executor
of lease deed for offences u/ss. 193, 409, and 423 of P. C.—Maintainable—Complaint as contemplated
by sub-sec. (1) of S. 195 by Tribunal, not necessary. 1980 KerLT 913.
7. "In any other case" Second para.—(I) The following cases may serve to illustrate the
scope of the words "in any other case":
(a) A purchased stamp papers for a conveyance which fell through. He wanted to apply to the
Collector for refund of the stamp duty and took the advice of B. B gave the advice that the application
should have been made within two months and as that period was over, A might alter the date of the
stamp paper. A altered the date. This was unnecessary as the time for applying was six months and not
two and the application was made within that period. It was held that A was guilty of an offence falling
under the second para of this section and B was liable for abetment of the same offence. AIR 1918 Cal
61.
(b) A public servant, in charge as such of certain documents lost them. He was asked to produce
them and being unable to do so fabricated and produced similar documents with the intention of
screening himself from punishment. It was held that he was guilty of an offence under this section.
(1883) ILR 5 A ll 553.
(c) An officer conducting a sale under the Civil P. C. is bound by law to return the warrant of sale
certifying the manner in which the warrant of sale has been executed. If he in a false declaration in
his return of the warrant, he is guilty under the second para of this section. I Weir 155.
(d) Where the accused was charged with having given false evidence before a third class
Magistrate under Sec. 164, Ctiminal P. C., he might be convicted, if the offence is proved under the
second para of this section. (1900) ILR 22 All 115.
(2) Issuing a copy containing something in addition towhat was in the original as a true copy—
Offence under S. 193 was held to have been committed. 1971 Ra1LW 392.
8. Complaint.—(1) Under S. 195, Criminal P. C., no Court shall take cognizance of any offence
punishable under this section when such offence is alleged to have been committed in, or in relation
, to
any proceeding in any Court except on a complaint in writing of such Court or of some other Court to
which such Court is subordinate. AIR 1968 SC 1921.
(2) A private complaint is incompetent. AIR 1968 SC 19.
(3) Complaint of a Court is not necessary, if the offence is not alleged to have béen committed in
or in relation to any proceeding of any Court. AIR 1959 All 14.
Sec. 193 Of False Evidence and Offences. Against Public Justice 521

(4) The procedure for making the complaint is provided for in S. 340, Criminal P. C. Whether a
preliminary enquiry under S. 340, Criminal P C. is necessary, is in the discretion of the Court and
depends upon the facts and circumstances of each case A IR 1955 A ll 105.
(5) A complaint should not be ordered to be filed unless the Court is of the opinion that it is
expedient in the interests of justice that an enquiry should be made into an offence falling under this
section. A IR 1963 Orissa 179.
(6) The proceedings under S. 340, Criminal P. C., should not be taken until the case in which the
false evidence was given or for use in which the false evidence was fabricated has been finally decided.
A IR 1969 SC 355.
(7) As regards the prosecution of any person, appearing before a Court as a witness, for giving false
evidence or for fabricating false evidence S. 479A, Criminal P C. (5 of 1898) engrafted an exception to
S. 476 of that Code. In such a case subs, (6) of Section 479A excluded the. applicability of 'Sections
476 to 479 of that Code and provided a special procedure. A IR 1967 SC 68,
(8) The application of S. 479A was confined to a person appearing as a witness before the Court.
To a person who merely filed a false affidavit or false statement Section 479A would not apply: A IR
1967A 11420. .
(9) Where the facts stated in a private complaint amount to an offence under this section, it is not
open to the complainant to evade the provisions of S. 195, Criminal P. C. and to say that he would
cQnfine. his case to a lesser offence for which no complaint by Court is necessary. A IR 1966 SC 523.
(10) When a person in the course of his evidence defames a third party and the said statement is
false, the party affected may file a complaint for defamation without the necessity of a complaint by
Court. A IR 1951 Mad 34.. ,..
(11) Accused abetting offence of forgery—Forged document not put in evidence against him in
redemption suit against him—Section 193 not attracted—Complaint by Court as envisaged by S.
195(1)(b), Cr.P.C.—Not necessary for prosecuting him under S. 467, read with S. 114. A IR 1981 SC
1417.. ..
(12) 1. T. Return with claim for exemption—Assesses alleged to have made false affidavit in
respect of his claim—Complaint by 1.T.O.—No preliminary enquiry by I.R.O.—Opportunity of
hearing not given to assessee—Action of I.T.O. held, violative of principles of natural justice and
complaint was bad in law even if false affidavit attracts Ss. 193, 196, P.C. 1983 TaxLR 1449.
(13) Complaint in writing of the Court before which the offence is committed, or of some other
Court to which such Court is subordinate, is required under section 195, CrPC.
9. Charge.—(1) In a prosecution for perjury under this section it is essential that the charge
should set out the exact words alleged to be false as definitely and specifically as possible. (1894) 17
MysLR No. 548 p. 756 . . .
(2) The object is to give notice not only to the accused, but also to the trying Court Of specific
offences against the accused. A IR 1918 Pat 448. .
(3) The charge should also contain the word "intentionally" before the words "give false
evidence": (1862)2 SuthW R Letter I. .
(4) Where several persons are accused of giving false evidence in a judicial proceeding, each of
them ought to be separately charged and tried. A IR 1923 Lah 89. .
522 Penal Code Sec. 193
(5) Where in the course of evidence, a witness makes several false statements on different subjects,
each of such false statements constitutes a separate offence. AIR 1928 All 706
(6) The failure to state in the charge actual words alleged to be false evidence is an irregularity
curable under S. 465, Criminal P. C. AIR 1923 Nag 39.
(7) The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, being summons as a witness in—being a judicial
proceeding then pending before the—and being bound to state the truth intentionally gave false
evidence (state here the false statement which statement you either knew or believed to be false or did
not believe to be true), and thereby committed an offence punishable under section 193 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
10. Proof and conviction.—(1) In a case under this section the prosecution must prove beyond
all easonab1e doubt that the statement made by the accused is false. AIR 1934 Pat 133.
(2) The prosecution must show conclusively that the statement is false. A IR 1936 Pesh 106
(3) Last words usedmust be proved. No evidence which does not profess to give the exact words.
can be a safe foundation for a conviction. (1875) 23 Suth WR (Cr) 28.
(4) Where a charge for perjury is based upon two contradictory statements every possible
presumption in favour of their reconciliation should be made. AIR 1914 Sind 115.
(5) According to S. 134 of the Evidence Act even the evidence of a single witness is sufficient for
• convicting a person of perjury. AIR 1931 All 362.
• (6) In a prosecution for perjury where the alleged false evidence has been taken down in a
deposition, a certified copy of the same must be filed and proved. Oral evidence or the substance of the
deposition is not admissible. under S. 91 of the Evidence Act. AIR 1918 Pat 448. -
(7) An accused charged under this section can be convicted of the abetment of the offence if so
found. AIR 1944 Nag 192.
(8) In the following cases the charge was under one section and the offence as proved was found to
fall under another section. AIR 1962 All 156.
(9) Complaint against partners of the firm for filing false income-tax returns and statements
of accounts on the ground that the transactions mentioned in Bahi which was subsequently recovered
in a raid froni:the firm were not mentioned in their return—No seizure memo of Bahi was
prepared—Allegedrecovery of Bahi and contents of that Bahi were not duly proved by leading any
legal evidence—Held, charges under S. 277 I.T. Act and S. 193. P.C. were not proved. (1983) 139
ITR 681.
II. Sentence.—(I) A deliberate false statement made in a Court which tends to endanger the life
and property of othersor to defeat and impede the progress of justice is not an offence which should be
lightly passed over, and a deterrent sentence ought to be given. AIR 1940 Nag 410.
(2) In such a case of an offence falling under S. 191 and this section, while the materiality of the
subject-matter of the statement is not an essential ingredient of the offence, it may have a bearing upon
the sentence to be passed. AIR 1949 Nag 303.
(3) This section provides for imprisonment and fine and therefore a sentence of imprisonment with
the alternative of flue is not in accordance with this section. 1933 Mad W N896.
Sec. 193 Of False Evidence and Offences Against Public Justice 523

(4). Submission of false statements and verification by assessee—Assessment of income by

accepting revised return—Lapse of 14 years since the date of offences—Imposition of penalty meanwhile
by department—Sentence of imprisonment for offence punishable under S. 277 I.T. Act—Not
necessary----However in circumstances sentence of fine imposed for offence under S. 193, P.C. enhanced.
1982TaxLR57(59): 1981 TINJ 245 (Mad).
(5) A benefit of the Probation of Offenders Act cannot be given to a person who is above 18 years
of age and is convicted for offence under S. 193 of the Penal Code. Sentence of 3 months R. I and fine
of Rs. 500.00 was awarded. (1983) 15 Tax Law Rev 418.
12. Appeal and revision.—(1) Where an accused appealed against a conviction under this section
and in appeal raised the point that the prosecution had failed to prove the intention requisite for the
conviction, the appellate Court after hearing the arguments on the issue took further evidence and found
that the requisite intention was proved, it was held that the appellate Court could do so. (1947) 48
CriLi 632 (Cal).
(2) No appeal lies against an order for prosecution made in respect of perjury committed in an
administrative inquiry. AIR 1929 All 936
(3) The High Court can interfere under Section 482, Criminal P.C. if the complaint suffers from
some legal defect. 1977 CriLJ 1632.
• 13. Procedure...—(1) Where an offence falls under this section and not S. 471,. procedure under
Section 479A of Criminal P. C. must be followed and not the procedure under Section 476 and 476A.
1971 CriLi 1574.
(2) Where any Court decides in accordance with S. 340, Criminal P.C., to have a preliminary
enquiry into any offence under S. 193, Penal Code it is highly desirable and indeed very necessary that
the portions of the witness's statement in regard to which the acdused has, in the opinion of the Court,
perjured himself should be specifically set Out in Or form annexure to the notice, issued to the accused
so that he is in a position to furnish an adequate and proper reply in regard thereto and be able to meet
the charge.,AIR 1978 SC 1753.
(3) Not cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate, Magistrate of the first class. For giving br fabricating false evidence in any other case—
Triable by Metropolitan Magistrate, Magistrate 1st class or second class.
14. Practice.—Evidence—Prove: (1) That the accused was legally bound to state the truth, either
by an oath or by an express provision of law, or that the accused made the declaration in question.
(2) That he made such statement or declaration whilst so bound.
(3) That such statement, or declaration, was made in a stage of a judicial proceeding:
(4) That the statement or declaration is false,
(5) That the accused when making such statement or declaration, knew it to be false, or believed it
to be false, or did not believe it to be true.
(6) That he made such false statement intentionally
Prove the following points for fabricating false evidence:
(1) That the accused (a) caused a certain circumstance to exist, or (b) made the false entry, or (c)
made the document to contain false statement.
(2) That he did as in (1) intending that such circumstance, entry , or statement should appear in
evidence (a) in a judicial proceeding, or (b) in a proceeding taken by law, before a public servant, or (c)
in a proceeding taken by law, before a public servant, or (d) in a proceeding before an arbitrator;
524 Penal Code Sec. 194

(3) That the person conducting the judicial or other proceeding had to form an opinion upon the
evidence in which such false evidence appears.
(4) That the accused intended that person to entertain an erroneous opinion upon the evidence.
(5) That such erroneous opinion touched a point material to the result of such proceeding.
If the case falls under the second part of the section it is not necesary to prove (a) in (2).

Section .194
194. Giving or fabricating false evidence with intent to procure conviction of
capital offence.—Whoever gives Or fabricates false evidence, intending thereby to
cause, or knowing it to be likely that he will thereby cause, any person to be convicted
of an offence which is capital 3 [by any law for the time being in force], shall be
punished with 4 [imprisonment] for life, or with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine;
If innocent person be thereby convicted and executed.-and if an innocent
person be convicted arid executedin consequence of such false evidence, the person
who gives such false evidence shall be punished either with death or , the punishment
hereinbefore described.
Cases and Materials : Synopsis
1. Scope. 6. Së,itence.
2. Gives or fabricates false evidence. 7. Sanction and complaint for prosecution.
3. Suborning witness to give false evidence. 8. Prosecution of approver under this section-
4. "Intending thereby to cause, or knowing it to . Tune for.
be likely that he will thereby cause any person 9. Procedure.
to be convicted", 10. Practice.
5. "Offence which is capital by the law in 11. Charge.
Bangladesh ".
12. Complaint.
1. Scope.—(1) The offence under this section is iin aggravated form of offence for giving or
fabricating false evidence made punishable under section 193. The accused can be punished under this
section.only when his intention and knowledge is proved. Where witnesses in their statements in the
inquiry stage implicated the accused as murderer and at the trial exonerated them and declared that the
previous statements were given under police pressure. But from the evidence it appeared that their first
could well be true. It was held that the ingredients of section 194 were not satisfied because the
Statements implicating the accused could not be said to be definitely false (PLD 1963 Karachi 624).
2. Gives or fabricates false evidence.—(1) A police officer who forces a person to make a false
statement to be recorded by a Magistrate under S. 164, Criminal P. C. may be held to fabricate "false
evidence" and may be guilty inter alia of an offence under this section. But the sanction of the
Government under S. 197 will be necessary for the prosecution of the police official under this section.
AIR 1967A11 519.

3. The words "by this Code" have Successively been amended by Act XXVII of 1870, 7, Act IX of 1890,
S. S. 149, and
A.O., 1949, Sch. to read as above.
4. Subs, b'Ord. No. XLI of 1985, for "transportation".
Sec. 194 Of False Evidence and Offences Against Public Justice 525
(2) A false statement to a Head Constable in an inquiry under S. 174 of the Criminal P. C. would
not fall within this section. AIR 1922 Lah 133.
(3) Where false evidence had been given in an inquiry before the committing Magistrate and the
deponent was convicted under S 194 of the Code the conviction under S. 194 was confirmed on the
ground that the accused had repeated the false evidence at the trial also. 1886 Pun Re No, 32, 76.
p.
(4) The accused gave evidence against one A in the committing Magistrate's Court but retracted it
at the trial before the Sessions Court. It was held that the accused could only be convicted in the
alternative under S. 193 and not under S. 194. (1895) 18 Mys LR No. 220, 948.
p.
3. Suborning witness to give false evidence.—(1) Where a person produced before the Court a
witness whom he had tutored to give false evidence with a view to cause the conviction of a person for
murder, it was held that he was guilty under this seôtion. AIR 1927 All 721.
4. "Intending thereby to cause, or knowing it to be likely that he will thereby cause any
person to be convicted".—(I) The word 'knowing' connotes actual knowledge. It imports certainty
and not merely a probability. It is not the same thing as belief as can be seen from the fact that the
Code uses the words "knowledge or belief' in a number of sections. It is also different from intention
which connotes a purpose oi'design. AIR 1928 Pat 169.
(2) Where a witness falsely deposed in the Sessions Court trying a murder case that one D had
committed the murder, it was held, that the deponent did not know that D was likely to be charged for
the offence of murder and that this section did not apply. (1869) 3 BengLR 35.
5. "Offence which is capital by the law in Bangladesh".—(l) Instigation of another to file a
complaint against certain persons under S. 307 of the Penal Code does not fall under this section. 1979
MadL W (Cri) 165.
6. Sentence.—(1) Accused contradicting himself on minor points in his evidence before the
Committing Magistrate and in the Sessions Court—Sentence of three years reduced to one of nine
months. (1895) 18 MysLR No. 220, page 948.
(2) Where an accused found guilty under S. 194 pleaded for lenient punishment on the ground that
when he was under a mental strain he was meek to make the false statement, it was held that he could
not be exonerated from his crime nor could the gravity of his offence be any lesser even if he was really
coached to tell lies in court. His motive for giving false evidence could not but be wicked and
malicious in wanting to influence the judge and getting K convicted for murder. Accused was given a
deterrent punishment for 10 years. (1981)2 MalayanLi 354.
7. Sanction and complaint for prosecution.—(1) The question (of sanction) may arise at any
stage of the proceeding. The complainant may not disclose that the act constituting the offence was
done or purported to be done in the discharge of official duty; but facts subsequently coming to light on
a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish
the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage
to stage. The necessity may reveal itself in the course of the progress of the case. AIR 1956 SC 44.
(2) Complaint for offences under Ss. 323, 330, 342, 194, 195 and 196 Penal Code, made against
police officer for having kept complainants in police station and having assaulted them to coerce them
to make statement under S. 164—Complaint entertained statements of complainants and their
witnesses recor ded—Whether sanction under Section 197 is necessary or not may have to be
determined from stage to stage and may be clear only in the course of progress of case—Complaint may
526 Penal Code Sec; 194

not disclose need for sanction but subsequent facts may establish its, necessity—Hence it cannot be said
that sanction under S. 197 is required before taking cognizance and that hence Magistrate had no
jurisdiction to entertain complaint without a formal sanction. A IR 1967 A ll 519.
(3) In cases where the offence punishable under S. 194 is alleged to have been committed in or in
relation to any proceedings actually pending in any Court or in any proceeding which has already been
taken in any Court, no prosecution can be initiated against any person except by a complaint filed by
that Court. (1977) 4 Cr1LT 249 (Pun]).
8. Prosecution of approver under this section—Time for.—(1) It is the intention of the law
that an approver cannot be prosecuted under this section until the original case has been fully heard and
determined. (1900) ILR 27 Cal 137.
9. Procedure.—(1) Where a person is charged in the alternative under S. 193 or S. 194, he cannot
be tried by the Magistrate. The offence under S. 194 being triable only by a Court of Session the
Magistrate can have no jurisdiction over the case but ought to commit the case to the sessions. (1885)
8MysLRNo. 354p. 572;
(2) Where a complaint was made against a person for an offence under S. 194 and the court ordered
an enquiry under S. 340 of Criminal P. C. and the accused requested for calling the case diaries from
the record, the Court held that they had a bearing for the purpose of preliminary enquiry under S. 340,
Criminal P. C. and the court ought not to shut him out when the accused wanted to aid the court in
determining the question before it. 1982 CriLI (NOC) 155.
(3)Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Sessions.
10. Practice.—Evidence—Prove: (1) That the accused caused certain circumstances to exist or
made the false entry or made the document containing a false statement.
(2) That he did so intending that such circumstance, entry or statement should appear in the
evidence in a .judicial proceeding pending or prospective, or in a proceeding taken by law before a
public servant or in a proceeding before an arbitrator.
(3) That the person conducting the proceeding had to form an opinion upon the evidence in which
such false evidence appeared.
(4)That the accused intended that person to entertain an erroneous opinion upon that evidence.
(5) That such erroneous opinion touched a point material to the result of such proceeding.
(6) That the accused when giving or fabricating false evidence intended thereby to cause or knew
that it was likely that he would thereby cause the person in question to be convicted of the capital
offence.
For the second clause, prove furthe:
(1)That capital punishment was given effect, and
(2) That the person executed was an innocent person.
II. Charge.—The charge should run as follows:
1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, in the course of the trial of—before—, gave false
evidence (or fabricated false evidence) intending thereby to cause (or knowing it to be likely that you
will thereby cause)—to be convicted of the offence of—which by the law of Bangladesh is capital and
Sec. 195 Of False Evidence and Offences Against Public Justice
1 527

thereby committed an offence punishable under section 194 of the Penal Cpde.and within my
cognizance. S

And I hereby direct that you be tried on the said charge.
12. Corn plaint.----A complaint in writing of the Court before which the offence is committed or of
some other Court to which such Court is subordinate is required under section 95, CrPC.

Section 195
• 195. Giving or fabricating false evidence with intent to procure conviction of
offence punishable with 5 [imprisonment for life] , or imprisonment.—Whoever
gives, or fabricates false evidence intending thereby to cause, or knowing it to be likely
that he will thereby cause, any person to be convicted of an offence which 3 [by any
law for the time being in force] is not capital,. but punishable with 5 [imprisonment for
life], or imprisonment for a term of seven years or upwards, shall be punished as a
person convicted of that offence would be liable to be punished.
Illustration
A gives false evidence before a Court of Justice, intending thereby to cause Z to be
convicted of a dacoily. The punishment of dacoity is 5[imprisonment for life], or rigorous
imprisonment for a term which may extend to ten years, with or without fine. A , therefore,
is liable to 6[such imprisonment for life], or imprisonment, with or without fine.
Cases and Materials
1. Scope.—(l) This.section deals with cases where the intention is to procure conviction for an
offence which is neither capital nor punishable with imprisonment for less than seven years. "Offence"
means anything punishable under the Penal Code or any special or local laws.
(2) Offence under this section, like S. 194 is an aggravated form of the offence under S. 193 and
applies to the giving or fabricating of false evidence by a person intending thereby to cause or knowing
it , to be likely that he will thereby cause a person to be convicted of a non-capital offence which is
punishable only with imprisonment for life or for 7 years or upwards. A IR 1966 A ll 66.
(3) Statement on oath falsely supporting the prosecution case against an accused person more
appropriately amounts to an offence under Ss. 193 and 195 and not under S. 211. A IR 1973 SC 2190.
(4) Where there is no giving of false evidence within S. 191 or fabrication of false evidence under
S. 192 this section cannot apply. A IR 1915 A ll 388.
(5) Where A persuaded B to make a false statement before a police officer, it was assumed without
any discussion of the point that A's act will not constitute "fabricating false evidence" and it was held
consequently that A could not be proceeded against under this section. A IR 1915 A ll 388.
(6) Where a police officer in contravention of departmental rules, took photographs of under-trial
prisoners, it was held that no inference could be drawn from the said fact alone that the police officer.
intended to use it for fabricating false evidence. A IR 1916 A ll 141.

5. Subs. /bid.. Fo r "transportation for life'.
6. Subs. ibid. for"such transportation".
528 Penal Code Sec. 196

(7) Section 195(1)(b), Criminal P. C., enacts inter alia that a prosecution for an offence under S.
195 of the Code requires a complaint by the Court if the offence is committed in or in relation to any
proceeding in that Court. AIR 1968 SC 1422.
(8) When the procedure to be followed was that provided in S. 479A of the Code a complaint
following the procedure laid down in S. 476 of that Code was barred under clause (6) of S. 479A. AIR
1968 SC 1422.
(9) The prosecution for perjury should be sanctioned by Courts only in those cases where the
perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.
Prosecution should be ordered when it is considered expedient in the interests of justice to punish the
delinquent and not merely because there is some inaccuracy in the statement whichmay be innocent or
immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the
Court should be satisfied that there is reasonable foundation for the charge. AIR 1971 SC 1367.
(10) Taking cognizance of offence under section 188 of Penal Code—Magistrate empowered under
section 1 90(l)(a) is competent to take cognizance of the offence under section 188 of the Penal Code
upon enquiry report submitted by police of violation of order passed by the same Magistrate under
section 144, Cr.P.& without sending any written complaint to himself as required under section
195(1), Cr.P.C. A nwar Hossain Vs. Jamal Hossain-1 MLR (1996) (HC) 93.
2. Practice.—Evidence— p roveL (1) That the accused gave or fabricated false evidence.
(2) That the accused'.s intention in giving such false or fabricated evidence was to cause any person
to be convicted of an offence which is not capital but punishable with imprisonment for life or
imprisonment for a term of seven years or upwards.
3. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Court
of Sessions. - - - -

4. Charge.—The charge should run as follows:

1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at---, have given or fabricated false evidence intending
thereby to cause (or knowing it to be likely to cause) a person to be convicted of an offence which is
not capital but punishable with imprisonment for life or with imprisonment for a term of seven years or
upwards and thereby committed an offence punishable under section 195 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried on the said charge.
5. Corn plaint.—A complaint in writing of the Court before which the offence is committed, or of
some other Court to which it is subordinate, is required under section 195, CrPC.

Section 196
196. Using evidence known to be false.—Whoever corruptly uses or attempts
to use as true or genuine evidence any evidence which he knows to be false or
fabricated, shall be punished in the same manner as if he gave or fabricated false- -
evidence.
Sec. 196 1 Of False Evidence and Offences Against Public Justice 529

Cases and Materials : Synopsis

1. Scope. 6. Punishment
2. "Whoever". 7. Difference between this section and Section
3.. "Corruptly". 471.
4. Uses or attempts to use as true or genuine 8. Complaint by Court— Necessity of
evidence, any evidence which is false or 9. Procedure for giving complaint.
fabricated. 10. Procedure.
5. K nowledge of evidence being fals.e or Ii. Charge.
fabricated. . . 12. Practice.
I. Scope.—(.1) This section deals with the.corrupt use of false or fabricated evidence and has to be
read with sections 191 and 192 which define.the offence. More productions of a copy in answer to a
Court summons is not an offence (13 CrLf 46)
•(2) Service of show cause notice on the person sought to be proceeded against before making a
complaint regarding commission of offences under sections 196 and.471, Penal Code is not mandatory.
Non-service of such notice does no$ vitiate the proceeding—Making of complaint regarding
commission of offencs under sections 196 and 471, Penal Code—In finding that a complaint should
be filed, the Court is not required to.decide the merit of the case. A complaint may be lodged if it
appears that a prima facie case has been made out relating to the commission of the offence (Ref I
BSCD 241) 23 DLR 145. .
• (3) The appellant and others as plaintiffs instituted a money suit against the Respondent Nos. I
and 2. In the suit, a receipt was filed on behalf of the plaintiffs which purported to contain an admission
of the defendants about the claim of the plaintiffs in the suit. The genuineness of the receipt was
challenged by the defendants and an application was filed on their behalf for the prosecution of the
plaintiffs u/s 476, Cr.P.C. On hearing both the parties the trial Court held that a prima facie case was
made out against the appellant and others under Ss. 196 and 471 of thePenal Code and that it was
expedient in the interest of justice that an enquiry should be made against them for the offences under
the aforesaid section. The Trial Court accordingly made a complaint against the present appellant
tJ/Ss. 196 and 471 of the Penal Code. An appeal was filed against, the order of the Trial Court which
were dismissed. in-revision, the High Court dismissed the case against the appellant and some other
but accepted it in respect of some of the petitioners dn-the ground that their names in the plaint were
not signed by themselves but by S, one of the plaintiffs, who was their constituted attorney. Held:—(i)
the High Court's view that the plaintiffs who were not active litigants butacted through others could
not be held liable for Criminal Offence as it cannot be said that they also participated in filing the
receipt which 4ppeared ,to be prima fade forged one, was substantially, correct. (ii) High Court was
justified in setting aside the order u/s 476 so far as the plaintiffs were concerned. (iii) The position of
the appellant stands on the same footing as he did not personally sign the plaint but it was signed by
his constituted attorney. In that view of the matter the appellant cannot be said to be an active litigant
and cannot therefore be prima facie deemed to be associated with the filing of forged receipt. 3 BSCR
74; / BSCD24. • • -.
(4) A certain witness was summoned at the instance of the accused to appear before the Court to
produce a certain almanac said to be in his possession in order to . prove by means of certain entries
therein the date of death of a certain person. The witness appeared but neither produced nor was asked
to produce in Court the almanac said to be in his possession. Hence, there was no material before the
530 Penal Code Sec. 196
Court to judge whether the alleged false entries in the almanac really existed at all. It was, therefore,
held that the accused could not be held to have used or attempted to use false or fabricated evidence.
A IR 1937Pat 467.
(5) A mere attempt to get a false medical certificate which is refused does .not'amount to an attempt
to use false or fabricated evidence, as such tvidence . is not in existence at the time of the alleged offence.
A IR 1917 Mad 686
(6) This section may be compared with Section 471 infra which deals with the offence of using of
forged document as genuine. There may be cases falling under both the sections in which case the
accused should be charged only under S. 471 which is a specific provision, and not under this section.
(1926) 44 CalL] 113.
2. "Whoever".-_-(J) The word "whoever" will include even an accused person using false
evidence for the purposeof his defence. ILR (1949) 2 Cal 440.
(2) A person conducting a case on behalf of a party can be guilty of an offence under this section.
(1882) ILR 4A11 293 (295).
(3) This section applies to the corrupt use of false or fabricated evidence not only by a party to a
proceeding but also by iwitness in such proceeding. But the section does not apply to the corrupt use
of false or fabricated evidence by a Court. AIR 1966 SC 523.
3. "Corruptly".--(I) The word "corruptly" is not used in the sense of 'dishonestly' or
'fraudulently' as defined in the Code. AIR 1966 SC 523.
(2) The word "corruptly" does not connote a motive necessarily connected with bribery or the
passing of money as an inducement to use the fabricated evidence and procure a false conviction. AIR
1914 La/i 433.
(3) The word "corrupt" does not necessarily include an element of bribe-taking. It is used in a
much larger sense as denoting conduct which is morally unsound or debased. AIR 1966 SC 523.
(4) Where a Judge corruptly used the false evidence of a witness as true, knowing it to be false
cannot be said to commit an offence under this section although he may be liable to be pénalised under
S. 219, Penal Code. A IR 1938 Pat 83.
(5) The word "corruptly" is used in Ss. 196, 198,200, 219 and 220 to denote that those
whose duty it is to submit evidence for consideration of the judicial and other functionaries on behalf of
clients do not incur the penalties for using the evidence unless they use the evidence corruptly. AIR
1914 Lah 433.
(6) The accused in a criminal case, was charged with the commission of an assault ma village (A).
The accused raised a plea of alibi and contended that at the particular time, he was in another village
(B). In order to prove his plea of alibi he examined as his witness the patil of the village (B) and also
produced a cattle-pound receipt. It was held that the patil had acted under a corrupt motive when he
gave evidence of the alibi on behalf of the accused and that this amounted to a 'corrupt' use of false
evidence by the accused. AIR 1922 Born 99.

.4. Uses or attempts to use as true or genuine evidence, any evidence Which is false or
fabricated.—_(l) If a person is directed by the order of a Court to produce a certain document
containing a false entry and, in pursuance of that order, he produces it and is further required to swear to
Sec. 196 Of False Evidence and Offences Against Public Justice 531
its authenticity, he does so involuntarily, i.e., against his own will and cannot be said to 'corruptly'
use the false or fabricated evidence as true or genuine evidence. AIR 1925 Rang 191.
(2) Where in a suit against him by the creditor, the debtor filed a postal acknowledgment of the
creditor which he had obtained in respect of an insured and registered cover , containing a waste paper
and applied to the Court for admitting it in evidence to prove the discharge of the debt, it was held that
he was guilty, under this section, of attempting to use fabricated, false evidence as genuine, though he
did not succeed in getting the evidence accepted. AIR 1927 Mad 199.
(3) A filed a complaint against B under S. 323 of the Code. In substance, the complaint was not
false but it was bolstered up by false evidence namely by production of a beater with red stains which
were alleged to be blood-stains but were found not to be blood-strains at all. Held that he was guilty
under this section and not under S. 211: (1908)7 CriLJ 196 (Cal).
(4) A, an income-tax assessee, relied on his false account books in an enquiry before the Income-
tax Officer in order to show that his return of income was true—It was held that A was guilty of using
or atteni'pting to use the accounts as true or genuine evidence and was, therefore, liable under this
section. (1937) 20 NagLJ 214.
5. Knowledge of evidence being false or fabricated.—(1) The prisoner's knowledge of the false
character of evidence has to be established. Such knowledge must be present at the time of the user; it
will not suffice if the accused came to know of the false character of the evidence sometime after he used
it as true evidence. AIR 1925 Mad 609.
(2) Where a landlord filed a suit for recovery of rent, and he filed a copy of the Jamabandi record
which was proved to be fabricated evidence; it was held that he used it with knowledge of its false
character, because the alterations in the copy were all in favour of the landlord. It was further held that
the copy of Jamabandi was fabricated evidence as the alterations therein were all material alterations
changing the identity of the tenant, the amount.of rent and the period of tenancy. 1887 AIIWN 285.
(3) Where in a suit f0lt arrears of rent. A, conducting the defence of the tenant, produced three rent
receipts in which the amounts were altered and called evidence in support of.these receipts, it was held
that he used the receipts knowing them to be false and was. consequently guilty under this section.
(1882) ILR 4 All 293. .
6. Punishment.—(1) The language of this section is similar to that used in S. 471 of the code
and the same interpretation is applicable to this section. A person giving or fabricating false evidence
and also using it can therefore be liable only under Ss. 193, 194 or 195, as the case may be and not
under this section. AIR 1926 Nag 137.
(2) An offence .under this section calls for a deterrent punishment as it is a serious offence
and difficult of detection. But a lenient view also may be taken in certain circumstances. A IR 1926
Born 555. . .
7. Difference between this section and section 471.—(1) The broad distinction between offences
under the two groups is this, Section 465 deals with the offence of forgery by the making of a false
document and S. 471 with the offence of using forged docurpent dishonestly or fraudulently.. Section
193 deals with the giving or fabricating of false evidence and S. 196 with corruptly using evidence
known to be false. The gist of the offences in the first group is the making of a false document and the
gist of the offences in the second group is the procuring of false circumstances or the making of a
document, containing a false statement so that ajüdicial officer may form a wrong opinion in a judicial
532 Penal Code Sec. 196

proceeding on the faith of the false evidence. Another important difference is that whereas S. 471
requires a user to be either fraudulent, dishonest or both. S. 196 is satisfied if the user is corrupt. AIR
1966 SC 523.
(2) Where a false diploma is used by a person examined as an expert witness in a criminal case, in
order to support his claim to be duly qualified as a criminologist, his offence falls under this section
and not under S. 471 and he cannot be prosecuted under this section without the complaint of the
concerned Court under S. 195(1 )(b). AIR 1966 SC 523.
8. Complaint by Court—Necessity of--(]) No complaint is necessary for prosecution of offences
under Ss. 193 and 196 if committed during police investigation. 1975 Ker LT 596
(2) Where an offence under this section is committed in the course of a proceeding in Court, the
offence cannot be taken cognizance of in the absence of a complaint by the Court. AIR 1966 SC 523.
(3) It is not permissible for the prosecution to drop a serious charge and select one which does not
require the procedure under S. 195 of the Criminal P. C. and, thus, evade the provisions of that
section. A IR 1953 SC 293.
(4) Where the Income-tax Officer, on the basis of a false affidavit filed before him, filed a complaint
against the deponent W j 60U giving an opportunity of being heard, it was held that a false affidavit may
be covered by Ss. 192/196, P. C., and the action of the Income-tax . Officer was violative of the
principles of natural justice and the complaint was bad in law even if the affidavit attracted Ss. 195 and
196, P.C. 1983 TaxLR 1449.
(5) A complaint in writing of the Court before which the offence is committed or of some other
Court to which it is subordinate is required under section 195; CrPC. An order under section 476 of
the CrPC directing a prosecution for offences under sections 193 and 196 of the Penal Code amounts to
a complaint under section 200, CrPC and the Court before making order must hold an inquiry and
must itself specify by its order (i) the witness to prove the complaint, (ii) the false evidence complained
against and (iii) where the person complained against knew that evidence which he was using as
genuine was false. .
9. Procedure for giving complaint.--(I) Where an offence under this section is committed in or -
in relation to any proceeding in any Court, it can be taken cognizance of by a Court only on a
complaint made to it as required by S. 195(I)(b) of the Criminal P. C. The procedure to be followed
for giving the complaint under S. ' 195(1)(b) of the Criminal P. C. is that provided for in S. 340,
Criminal P. C. and not S. 344 which applies only to the offence of giving or fabricating false evidence
and not to the offence of using such evidence. AIR 1967 All 420. .
(2) A preliminary inquiry is not necessary in every case before a complaint.is made under the
section, and may be dispensed with if the Court thinks fit to. do so. (1893) 16 MysLR No. 348.
10. Procedure.—(1) A complaint u/s. 196, P.C. by an Income-tax Officer and assessment proce-
edings before the Income-tax Authorities, held, could go on simultaneously. 1981 MadLJ (Cr1) 217.
(2) Not cognizable—WarrantBailable or not (according as the offence of giving such evidence is
bailable or not)—Not compoundable—Triable by Metropolitan Magistrate or Magistrate of the
first class. .
11. Charge.—(l) Using and 'attempting to use' false evidence etc., are two, distinct and separate
offences, and should under S. 241, Cr. P.C. have to be charged in separate heads of the charge. As the
offences charged are not punishable under S. 193 without the application of S. 196, both sections
should have been entered in the charge. (I865) 2 SuthW R Letter 9.
Sec. 197 Of False Evidence and Offences Against Public Justice 533

(2) The charge should run as follows:

I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, corruptly used evidence to wit—which you knew to be
false (or fabricated) and as such punishable under section 193 (or section 194 or section 195) of the
Penal Code and thereby committed an offence punishable under section 196 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge.
12. Practice.—Evidence---Prove: (1) That the piece of evidence in question is false or fabricated.
(2) That the accused used or attempted to use such false or fabricated piece of evidence.
(3) That he used or attempted to use such evidence as true or genuine evidence.
(4) That when the accused used such evidence or attempted to do so he knew it to be false or
fabricated.
(5 That when the accused so used, or attempted to do so he acted corruptly.

Section 197
197. Issuing or signing false 'certificate.—Whoever issues or signs any
certificate required by law to be given or signed, or relating to any fact of which such
certificate is by law admissible in evidence, knowing or believing that such certificate
is false in any material point, shall be punished in the same manner as if he gave false
evidence.
Cases and Materials
1. Scope.—(l) This section may be read with sections 509A and 510 and 510A, CrPC. These
sections are new and are in the nature of exceptions (Ref 7 BCR 94 A D). Section 197 contemplates.
that the certificate should by some provision of law be admissible in evidence as such certificate
without further proof. Where the accused who was a copyist framed an incorrect copy of a document by
joining the name of a person in the copy whose name was not in the original. This document was
presented afterwards by the person applying for the copy in a suit against the person whose name had
been added in the copy, it was held that the accused had committed the offence under this section as he
had issued a false certificate (18 CrLf 978). The certificate contemplated by section 197 which is
required by law to be given or signed for the purpose of being used in evidence in the course of
administration of justice.
(2) The essential ingredients of the offence under this section are:
(i) that the certificate must be one which is required by law to be given or signed or which
relates to a fact of which such certificate is by law admissible in evidence;
(ii) that the certificate is false;
(iii) that the person issuing or signing such certificate knows or believes , it to be false. (1965) 3
LawRep 284. ..... .
(3) A person can be said to sign a document only when there is physical contact between that
person and signature or mark put on the document. AIR 1950 SC 265.
(4) A 'certificate' is a written testimony to the truth of any fact. The section deals with two kinds
of certificates:
534 Penal Code Sec. 197
(i) that required bylaw to be given or signed.
(ii) that relating to a fact of which such certificate is by law admissible in evidence. 1882
RatUnCriC 182.
(5) A decree-holder who has received the decree amount from the judgment-debtor is required by
law (0. 2, R. 2 of the Civil P. C.) to 'certify' the payment to the Court. But he is not required to do
so in writing, but may do so orally. Consequently, a written certificate of satisfaction is not a
"certificate" within the meaning of this section. A IR 1917 Cal 466
(6) Medical certificates by medical practitioners and character certificates are not certificates required
by law to be given and are not within this section. AIR 1943 Cal 40.
(7) Where Rule 18 of the Post Office Savings Bank Rules provided that in cases of female
depositors withdrawing amounts by their authorised agents, the agents must sign a certificate on the
application for withdrawal to the effect "certified that the depositor is on this day alive and same" and
the accused signed such certificate after the death of the depositor, he could not be said to commit an
offence under this section. The certificate under Rule 18 was nothing but a declaration or a statement
and could have been replaced by those words. AIR 1926 Cal-258.
(8) The mere faci that an Act requires that an application should be made and that it should
contain certain statements does not necessarily mean that the Act requires a certificate to be given or
signed. A IR 1917 Pat 696.
(9) The words "recjuired by law" do not mean authorisation to issue or sign a certificate or
authorisation to do something which could not be said to be illegal. These words have reference to
some statutory requirement. Thus a solvency certificate is not one contemplated by this section; (1972)
13 Guj LR 444.
(10) The word "certificate" is not used here in the sense of "certification". A IR 1917 Cal 466
(II) A written statement filed in a civil suit is not a certificate within the meaning of this section;
1972 AlICriR 503.
(12) The principal of a College gave a certificate in respect of the age of a student so that he may
take part in the sports. The Principal was not required by any law to give such a certificate, therefore he
cannot be said to have committed an offence under Section 197. 1982 AIIL.J1231.
(13) If the certificate has to be further proved by any witness then it is not one by law admissible
in evidence. A IR 1943 Cal 40.
(14) Where a false medical certificate is obtained from a doctor for purposes of life insurance by
false presentation of the real person who intends to apply for a policy of life insurance and the doctor
issues such medical certificate of fitness in ignorance of the false presentation, the -doctor is not guilty
under this section. (1965) 3 LawRep 284,
2. Practice.—Evidence—Prove: (I) That the document in question purports to be a certificate.
(2) That such certificate is required by law to be given or signed or that it related to some fact of
which such certificate is by law admissible in evidence. -
(3) That such certificate is false.
(4) That it is false in a material point.
(5) That the accused issued or signed the same. -
(6) That he, when doing so, knew or believed, such certificate to be false.
- 3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
Sec. 198 Of False Evidence and Offences Against Public Justice 535
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, issued (or signed) a certificate required by law to be
given or signed or (relating to—a fact of which such certificate is by law admissible in evidence)
knowing or believing that such certificate is false in a material point to wit and thereby committed an
offence punishable under section 197 of the Penal Code and within, my cognizance..
And I hereby direct that you be tried on the said charge.

Section 198
198. Using as true a certificate known to be false.—Whoever corruptly uses or
attempts to use any such certificate as a true certificate, knowing the same to be false
in any material point, shall be punished in the same manner as if he gave, false
evidence.
Cases and Materials
1. Scope.—(l) Section 198 must be read along with section 197. The section penalises the
corrupt user of any false certificate as a true certificate and attempt to use such false certificate knowing
it, to be false is made an offence. In the absence of any such knowledge a prosecution under this section
is not sustainable. -
(2) The words "any such certificate" mean the certificate dealt with by S. 197 and must therefore
satisfy the requirements of Section, namely: (I) that it should be required by law to be given or signed,
or (ii) that it should relate to any fact of which such certificate is, by law; admissible in evidence as
such certificate, that is without further proof. (1965) 3 LawRep 284,
(3) A decree-holder certifying under Order 21, Rule 2, Civil Procedure Code, in writing the receipt
of the decree amount is not issuing a 'certificate' within the meaning, of that section. Consequently the
use of such certificate cannot be an offence under this section. AIR 1943 Cal 40.
(4) Where a person used a false medical certificate and there was nothing to show that he knew that
the medical certificate was false, he could not be convicted under this section. AIR 1944 Cal 448.
2. Practice.—Evidence----prove: (1) That the document in question is a certificate.
(2) That it was required by law to be issued or that it relates to a fact of which such certificate is
admissible in evidence.
(3) That the said certificate is a false certificate and false on a material point.
'(4) That such certificate was issued.
3. Procedure.—Not c ognizable—Warrant_BajJabe_o -compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, corruptly used or attempted to use as true a certificate
(required by law to be given and signed or relating to a fact of which such certificate is by law'
admissible in evidence) but which is false in a material point, to wit---, and known by you to be the
same and thereby committed an offence punishable under section 198 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.
536 Penal Code Sec. 199

Section 199
199. False statement made in declaration which is by law receivable as
evidence.—Whoever, in any declaration made or subscribed by him, which
declaration any Court of Justice, or any public servant or other person, is bound or
authorized by law to receive as evidence of any fact, makes any statement which is
false, and which he either knows or believes to be false or does not believe to be true,
touching any point material to the object for which the declaration is made or used,
shall be punished in the same manner as if he gave false evidence.
Cases and Materials : Synopsis
1. Scope of the section. - 7. Verifications of pleadings.
2. "Made or subscribed" 8. Burden of proof
3. 'Court of Justice ' 9. False statement touching any point material
4. "Bound or authorised by law to receive as to the object of the declaration.
evidence". 10. Procedure.
5. Making false statement, knowing or believing 11. Practice.
it to be false or not believing it to be true. 12. Charge.
6. This section and Section 191. 13. Complaint.
1. Scope of the section.—(l) The essential ingredients of this section are (a) making of
declaration which a Court or a public servant is bound or authorised by law to receive in evidence, (b)
making a false statement in such declaration knowing or believing it to be false, and (c) such false
statement should be touching any point material to the object for which the declaration is made or
used. A conviction for an offence under this section may be passed primarily on circumstantial
evidence. The accused is entitled to know theexact words which are alleged to have been used by him
and which are sought to be made the subject of a charge of perjury. This section deals with . declarations
made or subscribed which any Court or public servant or the person are bound or authorised by law to
receive which is false on material points with knowledge of its falsity and the person making the
declaration either knew or believed it to be false or did not believe it to be true.
(2) Allegation stated in the complaint petition that the appellants filed a civil suit being OS No.
112 of 1982 and obtained an ex parte decree from the court of Sub--Judge, Rangpur to the effect that a
deed of gift executed on 21-6-1980 by the respondent's late husband was forged, collusive , and void as
it was obtained by giving false evidence making false statement and false personation. The alleged
offences have been committed in relation to a proceeding in the Civil Court and no Court is competent
to take cognizance of an offence mentioned in clause (b) of section 195, CrPC except on a written
complaint by the Court concerned. The refusal of the High Court Division to quash the proceeding in
question is not justified.. 7 BCR (AD) 94.
(3) This section deals with the declarations which any Court of Justice or any public servant or
other person is bound, or authorised by law to receive as evidence of any fact. (1895) ILR 22 Cal 131.
(4) This section requires the following three essentials—(a) making of declaration which a Càurt
or Public Servant is bound or authorised by law to receive in evidence; (b) making of a false statement
in such declaration knowing or believing it to be false, and (c) such false statement should be touching
any point material to the object for which the declaration is made or used. 1983 CriLJ 1927.
Sec. 199 Of False Evidence and Offences Against Public Justice 537

(5) The declaration contemplated in this section is a statement of facts in the form simply of
declaration which for the purpose of poof of the fact, declared has, by itself, all the legal force of
evidence given on oath or solemn affirmation. A IR 1914 Low Bur 30.
(6) Under this section, the "declaration' contemplated is not necessarily one which the person,
making the declaration is, bound by law to make. AIR 1967 SC 68.
(7) The difference between Ss. 191 and 199 is this: Section 191 with statements and declarations
falsely made by a person legally bound by an oath or by an express provision of law to state the trut!).
Section 199 deals with statements and declarations made voluntarily provided they are capable of being
used as evidence and which the Court is bound to receive as evidence. AIR 1967 SC 68.
(8) Where a person is sought to be prosecuted on the basis of false statements made by him on
oath in an affidavit filed in support of an application to a Court or transfer of a criminal case to another
Court, it has been held that the case would come rather under S. 191 or S. 192 than under this section
(S. 199). AIR 1967 SC 68.
(9)The pleadings in civil suits are bound to be verified; but the declarations in such verifications
are not, as such, receivable in evidence in proof of the facts started in the pleadings, and hence are not
covered by thissection. (1977)81 CaIWN 797.
2. Made or subsér'ibed.—(l) A document cannot be said to be 'made or subscribed' by a person
unless it bears his signature. Consequently, it was held that even a deposition on oath recorded by the
Court, but not signed by the deponent can only fall under S. 193 and not under S. 199. (1887) 7
Ca1LR 536.
3. "Court of Justice."—(l) It cannot be said that the Court was performing no judicial act in
accepting or acting upon the affidavit filed in support of the service of notice. The Court is authorised
by lw to receive such affidavit in proof of the service of notice. AIR 1947 Pat 37.
4. "Bound or authorised by law to receive as evidence."—(l) The declaration must be one
which is bound or authorised by law to be received as evidence of the fact declared. (1912) 13 CriLJ
769 (All).
(2) The following are examples of the declarations which are legally receivable as evidence of fact
declared:—
(a) Affidavits made on oath administered by proper officer. AIR 1947 Pat 54
(b) Statutory certificates under S. 2 of the Bankers Books' Evidence Act. AIR 1914 Low Bur 30.
(3) The following are examples of declarations which are not receivable as evidence of the facts
declared:—
(a) Declarations in verification of pleadings or in insolvency petitions. AIR 1927 All 383.
(b) Report to a Revenue Officer for getting the applicant's name entered in the Revenue Register.
A IR 1914 LowBur 30.
(c) Affidavits administered by persons not authorised to administer oaths. (1972) 74 PunLR 521.
(d)Statements made by awitness not on oath. (1868-69) 4 MI-ICR 185.
•(4) False declaration in affidavit accompanying applications for admission to Medical College—
Held, Medical College authority was not bound by any law to receive such declaration as evidence of
any fact nd no offence under S. 199 or S. 200 was committed. 1973 CurLi 806
(5,) Accused established to have made false declarations—False declarations made with a view to
facilitate an offence under Imports and Exports (Control) Act—False declarations were not such as
538 Penal Code Sec. 199

would be received as evidence of facts before any Court or public servant"—Held, no offence under S.
193 or S. 199. 1968 CriLJ 1378.

5. Making false statement, knowing or believing it to be false or not believing it to be

true.—(1) It is one of the essential elements of this section that the accused must have known or
believed that the statement was false or that he did not believe it to be true. AIR 1947 Pat 251.
(2) Where a person who prima facie could have had no knowledge at all of the facts which he stated
in his affidavit as being known to him, and no attempt was made to indicate the sources of his
knowledge, it was held that he must be presumed to have made the statement, if it was false, knowing
that it was false. AIR 1940 Pat 631.
(3) Where a false statement in an affidavit was stated to be made on information as distinct from
personal knowledge, it was held that it could not be said that the deponent knew or believed it to be
false or did not believe it to be true. AIR 1923 All 175.
(4) Where.an affidavit merely repeated the statement of another person it was held that it would not
fall under this section. AIR 1937 Pat 211.
(5) Where there is a reasonable possibility that the defence story was true, it cannot be said that the
essential ingredient of the offence namely, knowledge or belief that the statement is false is established.
A IR 1947 Pat 251.
(6) The Court ought not to forget that statements which are in fact false, are often Slip of memory
and not deliberately or intentionally. And when the person making them admits the mistake and
corrects them as soon as they are pointed out to him, it is not in the interests of justice that he should
be prosecuted for an offence under this section. AIR 1918 Mad 627.
6. This section and S. 191.—(I) The distinction between S. 191 and Section 199 is that under
S. 191 the declaration is one which a person bound by an oath or by an express provision of law to
state the truth or being bound by law to make a declaration upon any subject makes statement which is
false. The declaration contemplated by S. 199 is not necessarily one which the person making the
declaration is bound by law to make. The essential element of an offence under S. 199 is that the
declaration containing the false statement must be one which any Court of Justice or any public
servant or other person is bound or authorised by law to receive as evidence of any fact. 1975 ChandLR
(Cri) 88 (Pun]).
7. Verifications of pleadings.—(1) In order to constitute an offence under. S 199 a statement
must be made in a declaration which must be receivable as evidence. A statement made in a verified
pleading does not constitute evidence and is not receivable as such and therefore a person is not liable
under S. 199, P. C., even though such statement is false. ('197677) 81 CaIW N 79.7.
8.. Burden of proof. —(1) Burden of proof in a charge under this section is on the prosecution to.
show not only that the statement is false but also that at the time of making the declaration the accused
knew or believed it to be false or didn't believe it to be true. AIR 1947 Pat 251.
(2) Where the prosecution fails to discharge this burden the accused is entitled to acquittal. It is
not necessary that the prosecution must adduce direct evidence in this respect. AIR 1934 Oudh 155.
(3) A perspn can be convicted under this section purely on the basis of circumstantial evidence.
AIR 1944 Sjn.d 155
9. False statement touching any point material to the object of the decIaration.—(lA false
declaration will constitute an offence under this section onlv,where it is made touching any point
Sec. 200 Of False Evidence and Offences Against Public Justice 539
material to the object for which the declaration was made. A false declaration on an immaterial point
will not be an offence under this section but w ill be an offence under S. 191. AIR 1969 SC 7.
10. Procedure.—(1) Where the offence is alleged.to have been committed in, or in relation to any
proceeding in any Court, the complaint in writing of such Court is necessary under Section 195(1)(b)
of Criminal P.C. to take cognizance of the offence. (1899) 54 Mys CCR No. 295, p. 728.
(2) Where it was complained that certain averments in the affidavits filed in a proceeding for
allotment of premises before the kent Control Officer are false though no specific averment was singled
out for this purpose in the complaint it was held that the complaint was not entertainable. A IR 1982
SC 1238.
(3) Not cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan Magistrate
or Magistrate, of the first class.
11. Practice.-Evidence- prove: (1) That the accused made or subscribed the declaration in
question.
(2) That a Court of Justice, etc., was bound or authorised to receive such declaration as evidence.
• (3) That the accusedmade the statement in question contained in such declaration.
(4) That such statement is false.
(5) That such false statement touched a point material to the object of such declaration.
(6) That when making such false statement, the accused . knew that it was false, or believed it to be
false, or did not believe it to be true.
12. Charge.—The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, in a declaration made or subscribed with declaration,
any Court of Justice or any public servant or other person is bound or authorised by law to receive, as
evidence of any fact, made a statement which is false or which he knows or believes it to be false and
does not believe to be true on a point material to the object for which the declaratibn was made and
thereby committed an offence punishable under section 199 of the Penal Code and within my
cognizance (or cognizance of the Court of Session).
And I thereby direct that you be tried on the said charge.
13. Complaint.—A complaint in writing of the Court before which the offence is committed or of
some other Court to which it is subordinate, required under 195, CrCP. .

Section 200
• '200. Using as true such declaration knowing it to be false.—Whoever
corruptly uses or attempts to use as true any such declaration, knowing the dame to
be false in any material points, shall be punished in the same manner as if he gave false
evidence.
Explanation.-A declaration which is inadmissible merely upon the ground of
some informality, is a declaration within the meaning of sections 199 and 200.
Cases and Materials
1. Scope.—(1) In order to attract the application of this section, the declaration must be used or
attempted to be used corruptly. A IR 1969 SC Z. ' •. ..
540 Penal Code Sec. 201

(2) Where a false declaration which is not authorised by law to be received as evidence by a public
servant is used for certain purpose, S. 200 is not'attracted. 1973 CurLJ 806.
(3) Affidavits filCd in civil proceedings in support of interlocutory applications stating facts on the
depönents belief but not giving the grounds for the belief are inadequate and defective and are not
receivable in evidence in civil proceedings. AIR 1934 Cal 694.
'(4) Even though.an affidavit does not comply with the requirements of 0. 19, R..3, Civil P.C., it
may still. be a declaration within the meaning of Ss. 199 and 200 by virtue of the said Explanation.
A IR'1933Pat5I3.
2. Practice.— Evidence— Prove: ( 1) That the declaration is false.
(2) That a Court of Justice etc., was bound or authorised by law to receive the same in evidence.
(3) That such declaration is false ma material point.
(4) That the accused made such false declaration or attempted to do so.
(5) That he did so corruptly.
(6) That when he so used attempted to use the same he knew of the falseness thereof.
3. Procedure.—Not .cognizable—Warrant—Bailable—Not Compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, or about the—day of—, at—, corruptly used or attempted to be used as any such
declaration which is false and which you knew or believe to be false and do not believe to be true on a
point material to the object for which the declaration is made and thereby committed an offence
punished under section 200 of the Penal Code within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Complaint.—Complaint in writing of the Court before which the offence is committed, or of -
some other Court to which it is subordinate,is required under section 195, CrPC. There must be
proper materials before an action is taken. 24 Cr1LJ 147.

Section 201
201. Causing disappearance of evidence of offence, Or giving false
information to screen offender.—Whoever, knowing or having reason to believe
that an offence has been committed, causes any evidence of the commission of that
offence to disappear, with the intention of screening the offender from legal
punishment, or with that intention gives any information respecting the offence which
he knows or believes to be false,
If a capital offence.—shall, if the offence which he knows or believes to have
been committed is punishable with death, be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable Lo fine;
If punishable with 5 limprisonment for life].—and, if the offence is punishable
with 5 [imprisoiment for life] -or with imprisonment which may extend to ten years,
shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine;
Sec. 201 Of False Evidence and Offences Against Public Justice 541

If punishable with less than ten years' imprisonment.—and, if the offence is

punishable with imprisonment for any term not extending to ten years, shall be
punished with imprisonment of the description provided for the offence for a term
which may extend to one-fourth part of the longest term of the imprisonment
provided, for the offence, or with fine, or with both.
Illustration
A , knowing that B has murdered Z, assists B to hide the body with the intention: of
screening B from punishment. A is liable to imprisonment of either description for seven
years, and also to fine.
Cases and Materials : Synopsis
1. Scope. 12. Section, if applies to person concealing his
2. This section and Ss. 194 and 195. own offence.
3. This section and S. 141. 13. Act done under threat of danger to life.
4. "W hoever". 14. "A ny evidence of the commission of that
5. "Offence has been committed' offence '
6. "Offence" 15. Giving false information. -
7. "K nowing or having reason to believe" 16. Evidence and proof.
8. "Causes any evidence to disappear' 17. Charge.
9. W ith the intention of screening the offender" 18. Sentence
10. A ccused need not be aware of the identity of 19. Procedure.
the offender. 20., Practice.
11. Suicide.
1. Scope.—(1) Section 201 deals with the causing of disappearance of evidence of an offence
committed with an intention of screening the offender from legal punishment and giving false
information respecting an offence committed with the intention of screening the offender from legal
punishment. This section is not restricted to the case of a person who screens the actual offender. It can
be applied to the person guilty of the main offence though a Court will not normally punish a person
for both offences. For a conviction under this section an offence should have been committed for which
a-person has been convicted, if what has disappeared was not evidence of the offence the accused
committed no offence under this section. Intention m screen the offender should be established. Where a
person removed the body of the deceased from one place to another so to efface traces of the place, where
the murder took place or to implicate another person this section attracted (25 CrL.J 1140). Concealing
the bloodstains, weapon, recovery of the body of the deceased on its being , pointed out by accused will
fall under this section. Where the offence was committed by the husband, the position of wife is
privileged and if she conceals the evidence of the commission of crime, she cannot be held guilty under
this section (AIR 1949 Pat 80). Knowledge of the removal of the dead body is not enough to attract the
applicability of this section. (A IR 1963 SC 74). Mere rumour or suspicion is not sufficient to bring a
case within the mischief of the provision of section 201. Punishment under section 201 cannot be
awarded without ascertaining what original, offence was committed (51 CriLJ 1178). Where a person is
acquitted of the main offence his conviction under this section without any further charge is not illegal
(1958 CrLJ 689). There is difference of opinion as to whether a person can be convicted under section
302 for committing a murder and alsq under section 201 for concealing the evidence of the crime (PLD
1963 Pesh 178).
542 Penal Code Sec. 201

(2) No hint having been given to her during her examination under section 342 of the Code of
Criminal Procedure as to the disappearance of evidence of crime she was prejudiced in her defence and
her conviction under section 201, Penal Code is not sustainable. 41 DLR 349.
(3.) Accused's statement the part of which is incriminating does not connect him with the act of
killing. 40 DLR (A D) 106.
(4) There is no rule of law that once a witness has been discredited on one point, no credit is to be
given to another. If a natural witness is declared hostile his evidence may be accepted if corroborated.
The evidence of boatman PW 2 cannot be discarded. PW I informant, Hossain Ali did not say in his
evidence that PW 4 (Sadam Au) that he told this fact (five victims were taken away to an unknown
destination) to PW '4. This portion of evidence of PW 4 is inadmissible. The story of taking five
victims by a jeep unto school and the victims did not raise any alarm seeking help cannot be accepted
as true with easy mind. In fact, the story suffers from inherent improbability. PW 11 Nurul Hoque, the
driver of the jeep in which the victims were allegedly taken to the unknown destination (to a school) at
the instance of the appellants and the non-appealing accused . persons, does not prove affirmatively of
taking of victims by jeep to a school nor had he produced log book recording the notes therein as
admitted by him. This evidence does not inspire confidence, Appeal allowed. 40 DLR 97.
(5) Causing disappearance of evidence pointing out the place of concealment of the dead body
whether constituted the offence—No witness is forthcoming to say that the .accused himself participated
in the act of concealment and burial of the dead-body. The so-called eyes-witness have not also
disclosed that the accused assaulted the victim. In such circumstances mere pointing out the place
where the dead-body was concealed would not constitute the offence of causing disappearance of
evidence. (Ref 1971 CrLJ 1215). 9 BLD 455.
(6) Leave was granted by this Court to consider whether the evidence on record was properly
assessed by the High Court Division and whether the testimony of solitary eye-witness of the incident
can be relied upon in affirming the order of conviction. Since the local witnesses including the
Chairman of the local Union Parishad stated that shortly after the occurrence when they met Abiran
Nessa she told them Altaf and Shamsul Huq had murdered Rahima Khatun in the jute field, there is no
reason to disbelieve evidence of PW 4 when she stated that she had seen Altaf and Shamsu killing her
daughter. There is nothing on record that-PW 4 Abiran Nessa had any special grudge Or enmity to
falsely implicate the accused persons in a murder case. Evidence of PW 4 as corroborated by PW 1, 5,
7, 9, 11, 12 and 13 has established beyond all reasonable doubt that appellants Altaf and Shamsul have
committed the murder of Rahima Khatun in furtherance of their common intention. Accordingly, their
conviction under sections 302/34 of the Penal Code is upheld. Their conviction under sections 201/34
is, however, set aside as there is no evidence to sustain the charge. 4 BCR (A D) 114.
(7) There was no eye-witness that the accused murdered his wife and daughter—Strong
circumstantial evidence established and proved beyond doubt that the accused who was seen before and
after' the death of his wife and daughter was instrumental to their death—Prosecution proved the motive
of the murder of the victims, which was immoral and illicit love between the accused ancLaccused's
sister-in-law who was carrying for the second time a child by the accused-condemfled prisoner. In a
capital sentence case the hearing should be concluded with topmost priority—The hearing as delayed
for nothing—The spectre of death was haunting the condemned prisoner for about 2 years—This delay
of two years has provided extra punishment which calls for reduction of sentence. 3BCR 332.
(8) Accused appellant were charged under sections 302/34 of the Penal Code, but Additional
Sessions Judge on consideration of evidence on record found them guilty under section 201, Penal
Sec. 201 Of False Evidence and Offences Against Public Justice 543

Code—High Court Division upheld the conviction by referring to sections 236 and 237 of the Code of
Criminal Procedure—Appellate Division (Ref 4BSCR 418). 1 BCR (A D) 129.
(9) Charge and conviction under sections 302 and 201, if legal—A man can be charged both under
section 302 for the offence of murder (or as in the present case. under section 314 as well as under
section 201 PC for causing disappearance of the evidence of murder but in a case of this description
(i.e. where the same person has been charged under section 302 as well as under section 201) it is
proper that the charge under section. 201 should be made in the alternative. Where charge under
section 302 against an accused fails there is nothing illegal to convict him under section 201 if offence
under this section is established against him. This is permissible even though charge under section
201 was not in terms framed against him as such a course is permissible under the provisions of
section 237 of the CrPC. (Ref 16 DLR 189 and 11 DLR 62 W P). 21 DLR 783.
(10) Causing disappearance of the evidence of offence. So far as the proposition of law laid down in
16 DLR 189 is concerned we are unable to agree with board proposition laid down there, namely, mere
carrying of the dead body in the absence of anything to show that a physical attempt was made to
conceal the same is not -enough to attract the mischief of section 201 of the Penal Code. If a murder be
committed at place A and the dead body be removed from there to another place by a person who knew
or had reason to believe tl{at a murder had been committed certainly he causes the disappearance of an
evidence of the commission of murder inasmuch as he has caused to disappear a very important piece of
evidence concurring the venue of murder. Such removal of the body is very likely to react against the
entire prosecution case. 20 DLR 464.
(II) Joinder of charges under sections 302 and 201 PC against two persons ' illegal—The offences
alleged to have been committed by the two accused are unconnected with each other and are separate
offences, and, as such, they could not be tried together in the same trial. It makes no difference that the
accused has.been acquitted (Ref 7 DLh 532, 6 DLR 171). 12 DLR 392.
(12) Murder—Evidence, appreciation of—Conviction for murder based on circumstantial pieces of
evidence not "well authenticated" or "well knitted" from any angle. Recovery of dead body of
deceased at pointing of accused, however, established beyond doubt. Conviction under section 302, PC
set aside while that under section 201, Penal Code maintained in circumstances of case. 1981 PCrLJ I.
(13) The section is intended to reach acts to which Ss. 194 and 195 do not extend. It does not
include acts falling within those sections. It is an attempt to define the position as that of an accessory
after the fact. AIR 1960 Mad 9.
(14) In both cases i.e.. (a) Causing disappearance of evidence of an offence and (b) Giving of
false information the accused must have intended to screen the offender from legal punishment. AIR
1952 SC 354.
(15) Where in a case of murder there is no proof that the accused charged under this section
concealed the dead body (or otherwise destroyed the evidence of the crime or cause it to disappear or
that he gave any fale information with a view to shield the culprit from punishment) this section will
have no application. AIR 1967 Him Pra 10.
(16) Disappearance of evidence—There was no witness saying that the accused participated in
concealment and burial of the dead body, not the eye-witnesses disclosed that the accused assaulted the
victim. In such circumstances mere pointing out the place where the dead body was concealed would
not constitute the offence of causing disappearance of evidence. Gopal Raigor Vs. State 42 DLR 446
544 Penal Code . Sec. .201

(17) Accused's statement the part of which is incriminating does not connect him with the act of
killing. In the statement of accused Yasin Majhee which was recorded in Bengali it appears that he
accompanied the murders upto the house of Ysain Mridha where the dead body was brought. This part
of the statement may be incriminating if at all in respect of the offence of concealment of the dead body,
but it does not connect him with the act of killing. State Vs. A bdur Rashid Piada 40 DLR (A D) 106
(18) The statement of the accused Joynal to the Chairman is of the same nature and as such is not
a confessional statement. As to the extra-judicial confession orally made by accused Joynal to PW 2,
Chairman, this is also of the same nature as the statement recorded by the Magistrate; he did not
implicate himself in the murder, and as such it is not a confessional statement implicating himself and
other accused in the murder. State Vs. Abdur Rashid 40 DLR (AD) 106.
(19) Since both the condemned prisoners are sentenced to imprisonment for life there is no
necessity for the separate sentence to be passed against them under section 201 of the Penal Code
State Vs. Hamida Khatun and another 50 DLR 517.
(20) The trial Court has rightly found that the appellants namely, Hemayet Khan, Sabur Khan
Nuruzzaman Chowdhury Meskat Chowdhury and Shariff Shawkat Hosain are guilt of the offence
under sections 302/34ofthe Penal Code as these appellants caused the death of Belal in furtherance of
their common intention to cause the death in a gruesome manner and the accused Munshi
Moniruzzaman.is found guilty of the offence only under section 201 of the Penal Code for concealing of
the dead of the victim. State Vs. Hemayet Khan and other (Criminal)- 3 BLC 56
-(21) The convict-appellant Dr. AKM Akhter Azam in spite of the fact that on his arrival at the
house of convict-appellant Shawkat Iqbal he found Renu- dead but without ascertaining the real cause of
death by the standard mode or method the said doctor issued the certificate with the handing Death
Certificate and his conduct goes to show that he issued the certificate for screening appellant Shawkat
lqbal from legal punishment when in all reasonableness it was known to him that death did not occur
to the deceased due to the diseases written by him in the certificate but Renu was done to death in
unnatural manner: Dr. A KM A khter A zam and others Vs. State (Criminal) 6 BLC 231.
(22) Causing disappearance of evidence—No witness stated that the accused himself participated in
the act of concealment and burial of the dead body—So-called eye-witness have not also -disclosed that
the accused assaulted the victim—In such circumstances mere pointing out by the accused of the place
where the dead body was concealed would not constitute the offence of causing disappearance of
evidence. Gopal Rajgor and others Vi. The State 9 BLD (HCD) 455.
(23) To sustain a charge. U/s. 201, Penal Code it is essential to prove that an offence has been
committed and that the accused knew or had reason to believe that an offence has been committed
and with the requisite knowledge and intent to screen the offenders from legal punishment causes
the evidence thereof to disappear or gives false information in respect of such offence, knowing or
having reason to believe the same to be false. Khandkar Md. Moniruzzaman Vs. The State, 14 BLD
(HCD) 308. . . .
(24) The act alleged to be the screening of the offender must be the voluntary act of the accused, for
it is only then that he can be said to have done the act with the intention of screening the offender form
punishment A IR 1930 A ll 45. - -
(25) Where the accused not connected with any offence carried the woman lodging report of
commission of rape on her with her active consent to certain hospital for purpose of abortion, the
Sec. 201 Of False Evidence and Offences Against Public Justice 545

accused could not be said to have committed an pffence under either S.313 or S 201. 1983 CriLi
(NOC) 192.
2. This section and Ss. 194 and 195.—(1) An offence under S. 194 or S. 195 brings into the
field an entirely different set • of circumstances and involves the fabrication of a false charge against a
third party which is not involved in a case of causing the evidence of an offence to disappear. A IR 1933
A ll 30.
3. This section and S. 114.-. –(I) The borderline between abetment of an offence and giving false
information to screen the offender may be rather thin in some cases and that it would be prudent in such
cases, to err on. thesafe side and hold the accused guilty only under S. 201 and not under S. 114 in the
instant case one K was murdered by R who had an intrigue with C, the wife K. As R Was running
away, C gave out that some dacoits had come and taken away her jewels also. It was held that C
should be proceeded against under S. 201 and not under S. 114 of the Code. AIR 1953 SC 131. -
4. "Whoever".—(l) The word "whoever" in the section refers to the person who causes the
evidence of the actual commission of the offence to disappearance and not to the person who causes the
disappearance of the evidence as to by whom the offence was committed. A IR 1962 Guj 225.
5. "offence has b gen committed".—(l) In order to constitute an offence under this section it is
essential to establish first that an offence- has been committed for which some person known or
unknown would be criminally irresponsible. A IR -1952 SC 354;- -- -- -
(2) To establish the charge under S. 201, the prosecution must first prove that an offence had been
committed, not merely a suspicion that it might have been committed—and that the accused, knowing
of having reason to believe that such an offence had been committed, and with the intent to screen the
offender from legal punishment had caused the evidence t jireof to- disappear. The proof of the
commission of offence is an essential requisite for bringing home the offence under S. 20!, Penal Code.
A IR 1968 SC 829. - -
(3) Where no offence is proved to have been committed by anyone, there can be no question, -
obviously, of any person "Knowing or having reason to believe" that an offence has been committed,
or of screening any offender or of causing the disappearance of evidence of the "commission of such
offence ". Thus, the removal or concealment of the body of a deceased person, not proved to have been
murdered, cannot be an offence under this section. 1976 CriLJ1629. - --
6. "Offence".—(l) The word 'offence', as used in the section, does not contemplate that the
accused should know the particular section of the Penal Code under which the offence falls or the
precise character of the offence committed. A IR 1960 Mad 9. - -
• (2) The "offence" mentioned in the 3rd and 4th paras of this section must be understood in the
same which it has the 2nd para, namely an offence which the person accused under this section either
knew or had reason to believe, had been committed. A IR 1965 SC 1413.
7. "Knowing or having reason to believe".—(l) The words 'having reason to believe' in the -
first paragraph of the section and the words 'he- believes' in the second paragraph refer to the same state
of mind; proof of one is proof of the other. A IR 1965 SC 1413. -.
(2) A person can be said to have reason to believe a thing only if he has sufficient cause for such
belief. A IR 1960 Mad 9.
(3) Whether there was sufficient cause for the belief would depend upon the facts and circumstances -
of the particular case. A IR 1960 Mad 9.
546 Penal Code Sec. 201

(4) Knowledge of some crime having been committed cannot be ascribed to accused by mere
relationship with the main offender. 1980 A11LJ 762.
(5) Where a certain person is proved to have been murdered, on a certain day, the mere fact that the
accused knew the place where certain articles which the deceased had with him on that day, were to be
found, is a very suspicious circumstance against the accused but is not sufficient to convict the accused
either of the murder or of the offence of concealing the evidence of the crime under this section. A IR
1941 Mad 316.
8. "Causes any evidence to disappear".—(l) One of the essential ingredients of the offence under
this section is the causing of the disappearance of evidence of the crime. A IR 1958 A ll 467.
• (2) The concealing Or disposing of the body of a murdered person would clearly amount to causing
the disappearance of evidence of the crime. A IR 1975 SC 455. -
(3) A man who conceals blood-stained knife with which murder has been committed would be
causing evidence to disappear as much as. if he were to bury body of the victim. A IR 1958 Punj 183.
(4) A person may be said to cause the disappearance of evidence of the commission of an offence if
by his act any evidence of the crime ceases to be visible. A IR 1967 Him Pra 10.
(5) Where A committed murder and concealed the dead body in a room in the house and ordered
his wife B not to allow anybody inside the house, B cannot be said to cause the disappearance of
evidence of the crime by reason merely of the fact thai she refused to allow any one to come inside the
house though the position would have been otherwise if she herself had concealed or removed the dead
body. A IR 1949 Pat 80.
(6) Mere moving dead body of murdered person a few feet or a few yards from the spot where the
offence was committed would not amount to causing disappearance of evidence. ILJ (1965) 1 Mad 346
(7) By merely removing dead body of murdered person from one place to another, a person can be
said to have caused evidence of the said offence to disappear. 1982 CriLi 942.
(8) Where the body of a murdered person lies where the murder took place unconcealed, obviously
this section can have no application. A IR 1931 Lah.278.
(9) Where an offence of forgery was committed and X stole the documents and was caught and the
document recovered in a damaged condition, it was held .that, as the document had not actually
disappeared, this section would not apply, but that X could be charged with an offence under S. 511
read with this section. A IR 1915 A ll 385.
(10) A mere knowledge on the part of A, that evidence of a crime had been caused by another to
disappear is not sufficient to charge A under this section. In order that A may be liable under this
section it must be proved that A himself had caused such disappearance or had given false information
respecting the offence; even a strong suspicion is not sufficient. A IR 1963 SC 74.
(II) The expression "whoever ...... causes........clearly envisages some active step on the part of
doer of the act and so in the matter of causing disappearance of evidence relevant to a particular offence
the person charged must be proved to have actively participated in the matter of disappearance of
evidence and not more sufference by him or her of the removal of such evidence by other. 1975 CriLJ
169 (Gauhati)...
(12) It depends on the circumstances of each case whether it can be said that the accused's act
amounted to causing the evidence of the commission of the offence to disappear. A IR 1971 SC 2013.
Sec. 201 Of False Evidence and Offences Against Public Justice 547
9. "With the intention of screening the offender."—<l) It is an essential element of the offence
under this section that the accused should have caused the evidence of the offence to disappear with the
intention of screening the offender from legal punishment. AIR 1966 Madh Pra 106.
(2) The question whether the accused intended to screen the offender depends upon the facts and
circumstances of the particular case. AIR 1963 Guj 135.
(3) Where the two accused who were sweeper were seen carrying a dead body it could not be said'
that they had any intention as they were employed by the other accused and according to his command
they carried the dead body. They could not be convicted under. Section 201, ILR (1980) Born 1661,
(4) Where the accused admitted the possession and disposal of the ornaments of a mürdéred boy
and such disposal of the ornaments resulted in screening the offender, it was held that the accused must
be presumed to intend the natural consequences of his act and, therefore, to have intended to screen the
offender form punishment . AIR 1954 Mad 1088.
(5) The mere fact that a concealment was likely to have the effect of screening the offender is
not sufficient to prove accused's intentioji to screen the offender from punishment. A IR 1963
MadhPra 106
(6) It is not necessary that the intention to screen must be of a specified offender. An intention to
screen even an unknown offender is sufficient. AIR 1927 Sind 241.
(7) The demarcating line between knowledge and intention is no doubt thin but it is not difficult
to perceive that they connote different things. It is one thing to entertain a certain intention and another
to have the knowledge that one's act may possibly lead to a certain result. AIR 1960 Mad 9.
10. Accused need not be aware of the identity of the offender.—(1) It is not necessary for a
conviction of the accused under this sectidn that he should be aware of the identity of the offender
whom he intends to screen. (1974) 40 CutLT 242. .
(2) Where the accused was proved to have secretly buried the headless body of a person just
murdered, but there was no proof that he was aware of the identity of the murderer, it was held that the
accused could be convicted under this section. A IR 1933 Lah 516
(3) If it is clear that the false information was given in order to screen the offender, whoever he was,
form punishment, this section will apply. AIR 1937 Sind 23.
11. Suicide.—(l) The causing of the disappearance of the body of.a person who has committed
suicide is not an offence under this section, as it could not be said that there was an intention to screen
from punishment the dead person who was the offender. AIR 1934 Sind 139.
12. Section, if applies to person concealing his own offence.—(1) S .201 can be applied even
to a person guilty of the main offence. A IR 1953 SC 11. .
(2) A person charged for the principal offence and also under this section may be convicted under
this section even though acquitted of the main offence. AIR 1979 SC 1534.
(3) Although there is no impediment to a person being convicted for both the main offence and an
offence under this section, in practice, a Court will not convict an accused for both offences. AIR 1953
SC 131.
• 13. Act done under threat of danger to life.—(1) A person causing the disappearance of
evidence under threat of danger to his life would still be liable under this section, but will be protected
under S. 94 of the Code. AIR 1957 All 184.
548 Penal Code Sec. 201

(2) Where X is ordered under threat of being shot dead to take away dispose of the body of a
murdered person to a place where it is not likely to be recovered anddoes so even after the danger of
instant death has ceased, he is liable under this section. AIR 1938 All 91.
14. any evidence of the commission of that offence.—(l) The causing of the disappearance of
evidence as to the locality of the crime will be the causing of disappearance of "any evidence of the
commission of the offence". Where X in murdered at place A and the body is removed and placed at
place B removing all traces of the crime at A, the case will fall under this section. AIR 1958 Punj 183.
(2) The expression "Any evidence of the commission of the offence" refers, not to evidence in the
extensive sense in which that word is used the Evidence Act, but the evidence in its primary sense as
meaning anything to make the crime evidence such as the existence of a wounded corpse or of
bloodstains, fabricated document or similar material objects indicating that an offence has been
Committed. AIR 1958 Punj 183.
(3) The suppression of certain statements by witness made to the police during the course of
investigation in a case cannot thus be said to be causing the disappearance of evidence of the crime
within the meaning of this section. AIR 1921 Born 115.
(4) Where an offence is committed, there may be evidence of various types:
(i) Evidence showing that the offence has been committed.
(ii) Evidence showing that the offence was committed at a particular place.
(iii) Evidence showing that the offence was committed by a particular person. AIR 1962 Guj 225.
(5) The section does not apply to a person who causes the disappearance of evidence as to the
person by whom the offence was committed inasmuch as in such cases, the accused cannot be said to
cause the disappearance of the evidence of the commission of the offence. AIR 1962 Guj 225.
(6) The stress is on the words "any evidence". So any person who was has taken part in causing
any evidence Of an offence to disappear will be liable under this section. AIR 1958 AndhPra 37.
15. Giving false information.—.(l) There are 3 groups Of sections under the Code.relating to the
giving of information:
(i) Sections 118 to 120 dealing with concealment of design to commit an offence.
(ii) Sections 176, 177, 181, 182—Omission to give information or giving false information on
any subject on which the accused was legally bound to give information
(iii) Sections 201-203—The giving of false information as to the commission of an. offence or the
omission to give information as to an offence, which the accused was legally bound to give.
AIR 1960 Mad 9.
(2) The giving of a false information respecting an offence is an offence under this section where the
accused knows it to be false or believes it to be false. AIR 1975 SC 1883.
(3) Giving of a false information respecting an offence under this section, when such information is
given with the intention of screening the offender from legal punishment. AIR 1962 Ker 133.
(4)- The section does not say to whom the false information should be given. It would take in
private persons as well as public servants including the police, but it would not include a mere passer,
by who is not interested in bringing the offender to book. AIR 1962 Ker 133.
- (5) It is not necessary that the information should be given to the police or a Magistrate, or any
Other public servant. AIR 1960 Mad 9. .
Sec. 201 Of False Evidence and Offences Against Public Justice 549
(6) It is not material whether the information is volunteered or given in reply to inquires. AIR
1960 Mad 9.
(7) Statements contained in first information report under S. 154, Criminal P. C. are covered by
the section. AIR
1962 Ker 133.
(8) Information given by a person in the course of an investigation by the pplice cannot even, if
false, amount to an offence under this section. AIR 1962 Ker 133;
(9) It is not necessary under this section that the false information should be given by a person
who is legally bound to give information to the authorities regarding the commission of an offence. AIR
1960 Mad 9. .
16. Evidence and Proof.—(1) A person accused of an offence under this section cannot be
•convicted on the testimony of accomplices unless the testimony is corroborated independent evidence
in material particulars. 1973 CriLJ 1426.
(2) It is the totality of facts and circumstances and the conduct of the accused with reference to the
incriminating evidence and not the mere possession of relevant evidence that will raise the presumption
against him under S. 114 jgfthe Evidence Act. 1971 CriLJ 1215.
(3) Where the circumstantial evidence in a particular, case is sufficient and safe enough to warrant a
finding that the offence has been committed, is a question of facts and not of law. So is the question
whether the accused knew or had reasons to believe that such an offence has been committed. This
question further depends on an assessment of the accused's mind. Nevertheless, it is a question of fact.
AIR 1975 SC 1925.
(4) Where a person is accused of an offence under this section by reason of his having given false
information to the police regarding the commission of an offence, the falsity of the information can only
be proved by some other evidence. AIR 1939 Sind 130.
(5) In order to establish the charge under this section it is essential to prove that an offence has
been committed, that the . accused knew or had reason to believe that such an offence had been
committed and with the requisite knowledge and with intent to screen the offender from legal
punishment causes the evidence thereof to disappear or gives false- information respecting such offence
knowing or having reason to believe the same to be false. AIR 1979 SC 1245.
(6y\ Where one P was shot dead at the farm of A by the accused Din conspiracy with H and S and
P's bod was taken in A's car and thrown in a lonely well on the boundary of the village, but there
was no kllegation that A was in any manner concerned as an abettor or accomplice in the murder or
participaed or abetted the removal and disposal of P's dead body, the mere fact that after five days after
P's murder A got his car washed at one petrol pump could not , by any stretch of imagination, be
prime facie evidence of the factual ingredients of an offence under S. 201. AIR 1980 SC 1560.
(7) In this case A, B and C were prosecuted Under Ss. 364 302/34, 12013/302 and S. 201. While
C was held guilty of these offences, others were acquitted. The High Court in appeal confirmed the
decision of the trial Court. In appeal to the Supreme Court, C was acquitted of all the charges except
one under S. 201. It was held that the offence under Section 201 was established against him by reason
of the approver's deposition coupled with very reliable material in proof of the recovery of the dead
body (of the murdered person) at the instance of C. AIR 1979 SC 1280.
(8) .Conviction under S.302 aid S. 201—Body of wife recovered at the instance of the accused,
husband of deceased—Body was fully decomposed and no skin or viscera were there and cause of death
550 Penal Code Sec.'201

could not be ascertained—Prosecution case mainly based on confessional statement of accused—

Evidence on record corroborating confessional statement of accused which was considered to be
voluntary and true, conviction of accused upheld, 1983 Raj CriCas 157.
(9) Conviction of accused under Ss. 302, 201, 323 nw 534—Statement of eye-witness recorded 2-
3 days after the incident—F.l.R. recorded 36 hours after incident—These are great infirmities in the
prosecution witneses—Accused cannot be convicted for the offences, 1984 Cr1LR (Mah) 67.
(10) Conviction under—Dead body in very advance stage of decomposition—Cause of death could
not be ascertained—Homicidal death of victim not proved—Accused cannot be convicted only on
evidence of oral extra-judicial confession made by him. 1984 RajCriC 54.
17. Charge.—(l) If a person, who is charged for both the main offence and also under S. 201 is
acquitted of the main offence, the acquittal is no impediment to his conviction under Sec. 201. 1979
CriLJ (NOC) 149 (Kant).
(2) Accused charged for murder and also under S. 201, P.C. along with others—Accused acquitted
by Sessions Court and also by High Court of an offence under S. 201, P.C.— .-Appeal against
conviction for murder but no appeal against acquittal under S. 201—Held, in the circumstances it was
not possible for the Supreme Court to convict the accused for the first time under S. 201 P.C. AIR
1975 SC 1252.
(3) Accused charged with murder—Recovery of dead body at instance of accused—Accused stating
that he had buried corpse—Accused acquitted of the charge under S. 302, sP.C—Accused can be
convicted in appeal under S. 201 for concealing dead body of deceased knowing that he was murdered.
1968 RajLW 147 (160).
(4) Where a charge is framed against the accused only for an offence under Sec. 302, it would be
proper to consider whether an offence under S. 201 has been established only if the case under S. 302 is
not proved. AIR 1937 PC 179.
(5) It is unsatisfactory to have an alternative charge one count charging the accused as principal and
the other as accessory after the fact. AIR 1916 Cal 919.
(6) The joinder of two separate charges in respect of two false reports in respect of two separate
distinct offences is not justified.. (1908) 8 CriLJ 497.
(7) Person charged with murder may be convicted under S. 201—His conviction under S. 194 is
not illegal but he must be asked to plead to the charge under S. 194. 41R 1933 All 30.
(8) Where according to the prosecution two persons joined in laying a false trial after a murder and
the actual false information suggestive of burglary given by one of them was only an incident of the
transaction; the murder, the fabrication of evidence to suggest burglaTy and the false information given
by one of them are so connected together as to form one transaction and each of the accused will be
punishable U.S 201, P.C., even without a specific charge framed in that behalf. A IR 1933 Nag 136
(9) The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the----day of—,at—, knowing or having reason to believe that certain offence
to wit—punishable with—has been committed, did cause certain evidence of th said offence to
disappear, to wit—(or knowingly gave false information, to wit) with the intention of screening the
said ( name of person committing the offence) from legal punishment, and thereby committed an offenc.e
punishable under Section 201 of the Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 202 Of False Evidence and Offences Against Public Justice 551

18. Sentence.—(I) The decree of heinousness of the offence of concealing an offence so as to screen
the offender from legal punishment must be proportionate to the heinousness of the offence actually
committed and sought to be concealed. AIR 1965 SC 1413.
(2) Where the accused causes disappearance of the evidence of two offences committed by a single
act, the accused may, strictly speaking be said to commit two offences under this section and the
punishment cannot be limited by either S. 71 of the Code or S. 26 of the General Clausqs Act. But
normally, no Court should award two separate punishments for the same act constituting two offences
under Section 201. 'A IR 1965 SC 1413.
(3) Where the accused caused the disappearance of the evidence of the commission of a crime more
on account of panic than with any deliberate intention to screen from punishment the person who
committed the crime, a severe punishment was held unnecessary. AIR 1935 All 282.
(4) The husband of the deceased and his father were found to be guilty of offences punishable under
Section 302 and Section 201 respectively. It sentenced the husband to life imprisonment under S. 302
and no separate punishment under S. 201 was passed against him. His father was sentenced to three
years rigorous imprisonment under S. 201. In appeal by the husband, the Supreme Court acquitted
him of the charge of mufder but sentenced him to the maximum punishment of seven years' rigorous
imprisonment, observing that his case was different from his father's case on two grounds . Firstly, as
the husband of the deceased, it was his duty to do something to protect his wife and, secondly, he took
a leading part in disposing the body of the deceased. AIR 1974 SC 778.
(5) Separate sentence u/s. 201 along with a conviction u/s. 302 is illegal. AIR 1 916
. Mad 1163.
19. Procedure.—(1) Conspiracy to suppress the evidence of murder and to screen the murders and
to commit defamation could never be postulated as part of a police officer's function either by the
provisions of the Police Act or by any other law which confers powers on the police. AIR 1980 Andh
.Pra 219. .
(2) Not cognizable—Warrant---Bailable--Not compoundable—Triable by Metropolitan Magistrate
or Magistrate of the first class or second class if the offence falls under first class. In case of 2nd clause—
do in case of 3rd clause Metropolitan Magistrate or Magistrate of the first cjass or court by which the
offence is triable. . .
20. Practice.— Evidence---Prove: ( 1) That an offence has been committed. Mere rumour or
suspicion is not sufficient.
(2) That the accused knew or had reason to believe, that such offence had been committed.
(3) That the accused caused evidence thereof to disappear, or gave false information respecting such
offence, knowing or having reason to believe the same to be false.
(4) That the accused did as in (3) with intent to screen the.offender froin legal punishment.
The following must be proved as an aggravating circumstance:
(5) That the offence in question was punishable with death or , imprisonment for life or with
imprisonment extending to ten years.

Section 202
202. Intentional omission to give information of offence by person bound to
inform.—Whoever, knowing or having reason to believe that an offence has been
552 Penal Code Sec. 202

committed, intentionally omits to give any information respecting that offenc which
he is legally bound to give, shall be punished with imprisonment • of either description
for a term which may extend to six months, or with fine, or with both.
- Cases and Materials : Synopsis
I. Scope and applicability. 6. "W hoever"— Main offender if can be
2. "Knowing or having reason to believe." convicted under this section.
3. Intentional omission to give information. 7. Practice.
4. "Legally bound to give information". 8. Procedure.
5. Conviction. 9. Charge.
1. Scope and Applicability.—(1) This section should be read along with section 44 and 45 of
the CrPC. Section 44 makes it obligatory upon every person to give information to the nearest
magistrate or police officer of offences enumerated therein and under this section the intentional
omission is made punishable ('AIR 1964 Pat 62). The word "whoever" occurring in section 202 refers
to a person other than the offender and has no application to the person who is alleged to have
committed the principal offence (AIR 1979 SC 1232);
(2) The accused committed an offence punishable under section 202 of the Penal Code for not
giving the information about The offence either to the nearest Magistrate or to the police station. State
Vs. Md. Bachehu Miah A bdul Mannan and 5 others 51 DLR 355.
(3) The provisions of the section are not intended to be punitive in themselves, but are intended to
facilitate the getting of information as to the commission of offences and thereby to facilitate steps being
taken in the investigation of the same. AIR .1921 Oudh 227.
(4) Where the police received information of the offence from another person in the presence of the
accusedhe will not be guilty under this section merely because of his omission to inform the police, as
the section is not intended for such cases at all and is not applicable to them. A IR 1921 Oudh 227
(5) In a prosecution under S. 202. the prosecution must establish the main offence before making a
person liable under S. 2.02. To sustain a conviction under S. 202, it is also necessary for the
prosecution to prove i) that the accused had knowledge or reason to believe-that some offence had been
committed, (ii). that the accused had intentionally omitted to give information respecting that offence
and (iii) that the acsed.was legally bound to give that information A IR 1979 SCJ232
2. "Knowin , oT having reason to believe".—(1) !n order that there may be a conviction under
this section the accused Qiust know or have reason to believe that an offence of which he is bound to
give information has been committed. (1905) 2 Cr1LJ 133.
(2)if the evidence is not sufficienf to show that the circumstances were such that any ordinary
person would be led t believe that an offence had been committed, the accused would not be guilty
under this section meel' because subjectively, he might have thought it probable that an offence had
been comm itted hdeifad failed to give inforrnatioi about it to the authorities as required by the.
law. (1905) 2 C,iLJ 133. . .. -
(3) If the acct'sed hasleason to believe that n offence has been committed and intentionally omits
to give information thereof, it has been held that he would be guilty under this section, although it
might subsequently transpire that his belief was mistaken. (1865) 2 Suth WR 1.
(4) It seems to be pointless to prosecute a person for not giving information of an offence when it is
found that actually no offence was committed merely because there were circumstances suggesting the
commission of an offence. (1865) 4 SuthWR 29 (Cr).
Sec. 205 Of False Evidence and Offences Against Public Justice 553

(5) if at the time when the person is being tried for an offence under this section it is found that no
offence has, as a matter of fact, been committed, the accused will not be guilty under this section. 1961
BUR 35.
(6) in a prosecution under S. 202, it is necessary for the prosecution to establish the main offence
before making a person liable under S. 202. AIR 1979 SC 1232.
(7) A person who helps the murderers in a case to conceal the dead body necessarily knows about
the murder and if he is one on whom the law imposes a duty to give information about the crime to the
authorities, he would be guilty both under this section and S. 201 and under the provisions of S. 71,
would be liable to the higher punishment under that section. (1904) 14 MadLi 226.
3. Intentional omission to give inform a*ion.—(1) Intention. is a material ingredient andthe gist
of the offence under this section. (1872) 9 BengLR (App) 31.
(2) If omission is bonafide and not wilful, it is not offence under this section. 1947 MarLR 6.
(3) If the corpus de licit is not established, there can be no conviction for the main offence norfor
intentional omission under this section. 1961 BLJR 35. .
(4) If there is suspicion of a crime having been committed and the circumstances need to be
reported under S. 40(d), Criminal P. C., an omission to give information w.e,.rld make one liable
under S. 176 of this Code. 1887 Pun ReCr No. 20.
(5) Part of the accused's confession in murder case though not sufficient to prove murder might
make him liable for concealment of the act punishable under this section. (1907) 6 CriLJ 141.
4. "Legally bound to give information".—(l) It is necessary that the accused should be legally
bound to give information. AIR 1930 Mad 870. .
(2) If a person is legally bound to give information, the omission by him to give information of
the commission of any of the offences specified Will' be an offence punishable under this section. AIR
1925 Sind 257. . .. . . . .
5. Conviction.—(1) An offence under this section is not a minor offence in relation to an offence
under S. 201 or to an offence under S. 19(a) and . (f) of the Arms Act and consequently a person charged
under S. 201 of the Code or under S. 19(a)and (f) of the Arms Act cannot be convicted under this
section without a separate charge. (1912) 13 CriL,J 18 (Sind).
(2) An acquittal in regard to an offence under this section will bar a subsequent trial for an offence
under S. 176 of the Code on the same facts; (1906).3 CriL.J 388. •.
(3) Where a person convicted by the Magistrate of an offence under this section, appealed to the
Sessions Judge against the conviction, and the Judge found that there was no evidence of any omission
to give information of an offence, but remanded the case under Section 422 of the Criminal P.C.(5 of
1988), for additional inquiry, it was held that S. 422, Criminal P. C. (5 of 1898), would apply only to
cases where the evidence is insufficient and not where there is no evidence and that consequently the
order of remand could be sustained. (1872) 9.BomLR (App) 31.
6. "Whoever"—Main offender if can be convicted under this section.—(1) The word
'Whoever' occurring at the opening part of S. 202 refers to a person other than the offender and has no
application to the person who is alleged to have committed the principal offence. This is so because.
there is no law which casts duty on a criminal to give information which would incriminate himself.
AIR 1979 SC 1232. . .. . . .
554 ., Penal Code Sec. 203

(2) A person who assists the murderers in a case in disposing of the dead body and fails to give
information about the crime to the public authorities as required b'law may be guilty of an offence
both under S. 201 and under this section. (1904) 14 MadL.J 226
7. Practice.— Evidence— Pro y e: (I) That the offence, which was not informed about, has been
committed. .
(2) That the accused knew or had reason to believe that such offence had been committed.
(3) That he omitted to give information thereof.
(4) That such omission was intentional.
(5) That the accused was legally, bound to give information which he omitted to . give.
8. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate. .. .. . . . . .
9. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, knowing that on or about the—day of—, at—, knowingly committed the offence of
intentionally omitting to give information respecting the commission of the offence which you were
legally bound to give and thereby committed an offence punishable under section 202 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 203
203. Giving false information respecting an offence committed.—Whoever,
knowing or having reason to believe, that an offence has been committed', gives any
information respecting that ' offence which he knows or believes to be false, shall be
punished with imprisonment of either description for a term which may extend to two
years, orwith fine, or with -both.
7[Explanation.— In sections 201 and 202 and in this section, the word "offence"
includes any act committed at any place out of 8[Bangladesh], which, if committed in
8 [Bangladesh] would be punishable under any of the following sections • namely, 302,
304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458,
459, and 460.] .
Cases and Materials
I. Scope.-.-.(1) Even persons who are not legally bound to.give information give any information
which is false and misleading, this section is attracted. The section applies where information is
voluntarily given and not when it is extracted by police (14 crLJ 252).
(2) To convict under S. 203, the prosecution must prove -that an offence hasbeen committed, that
the accused knew or had reason to believe that such offence had been committed, that he gave
information with respect to that offence, that the information so given was false, that when he gave such
information, he knew or believed it to be false. 1982 CriLJ 106 (MP).

7. Explanation was inserted by the Indian Criminnal Law Amendment Act. 1894 (Act Ill of 1894), s. 7.
8. The word "Bangladesh" was substituted for the word 'Pakistan" by Act VIII of 1973. 2nd Sch. (w.e.f. 26 March 1971).
Sec. 203 Of False Evidence and Offences Against Public Justice 555

(3) It is necessary to establish the corpus delicti before a person can be convicted under S. 202 for
omission to give information respecting that offence. The same principle will apply to a charge under
this section. (1865) 4 SuthW R (Cr1) 29.
(4) là jutif'a conviction for giving false information with respect to an Offence under this section,
it must, therefore, be proved, not only that the person charged had "reason to believe" that an offence
had been committed but that the offence had actually been committed and that the accused knew or had
reason to believe that it had been SO; committed. (1873) 20 SuthW RCr 66
(5) The main essential of an offence either under this section or S. 177 of the Code is the giving of
information known to the giver to be false. If the person making such report is legally bound to furnish.
information to public servant. on the subject-matter of that report, then he commits an offence under S.
177, but if the report relates to an offence as to which the person making it, has the knowledge or belief
specified in this section,.then an offence under this section is committed. (1.913) 14 CriLf 135 (Nag).
(6) The information must be of a voluntary nature and not in answer to questions during the
investigation of a criminal case. (1913) 14 CriLi 252 (Sind).
(7) The expression "gives information" should be taken to mean volunteer's information. Ibid
(8) A person who .givs false information to the police, accusing another of an offence of murder in
order to screen the real offender, commits offences not only under Ss. 201 and 203 of the Code but also
under S. 211. AIR 1, 919 Cal 679..
(9) It is only the person who actually gives the information that can be proceeded against under
this section. A person who accompanies the giver of the false information does not commit an offence
under this section. AIR 1933 All 30. .. .
(10) This section applies only to persons voluntarily giving false information. Statements made in
the course of examination by the police in the course of investigation are not within this section. AIR
1920 UppBur 20. . . . .
(11) The information contemplated by these sections must be proved to be false to the knowledge
of the accused. Witnesses examined by police cannot be prosecuted for giving false information. AIR
1962 Ker.133. . . .. . .
2. Practice.—Evidence—Prove: (1) That an offence has been committed. -
(2) That the accused knew or had reason to believe, that such offence had been committed.
(3) That he gave the information.
(4) That such information was with respect to that offence.
(5) That the information so given is false.
(6) That when he gave such information he knew or believed it to be false.
3. Procedure.—Not cognizable—Warrant---Bailable—Not compoundable—Triable by any
Magistrate. . . . . ..
4. Charge.—The charge should run as follows:
1, (name and office of-the Magistrate) hereby charge you (name of the accused) as follows:
That you, knowing on or about the—day of—at—the offence of—was committed by omitting to
give information respecting the said offence, to wit—which you knew or believed to be false, and
thereby committed an offence punishable under section 203 of the Penal Code and within my
cognizance. . .
And I hereby direct that you be tried on the said charge.
556 Penal Code Sec. 204

Section 204
204. Destruction of document to prevent its production as evidence.-
Whoever .secrets or destroys any document which he may be lawfully compelled to
produce as evidence in a Court Of Justice, or in any proceeding lawfully held before a
public servant, .as such, or obliterates or renders illegible the whole or any part of such
document with the intention of preventing the same from being produced or used as
evidence before such Court or public servant as aforesaid, or after he shall have been
lawfully summoned or required to produce the same for that purpose, shall be
punished with imprisonment of either decription for a term which may extend to two
years, or with fine, or with both.
Cases and. Materials
1. Scope.—( I) An intentional refusal to produce and a secret dealing of the document will fall
under this section (40 CrLf 75). The offence consists of its destruction with the intention of making it
unavailable in evidence. This section may be read along with section 175 as it is merely an aggravated
form of the offence descr,jbed in that section. .
(2) A case not covered by S. 477 may still be within this section. A IR 1921 Cal 552.
(3) In order that a person may be said to secrete' a document it is not necessary that its existence
should have been unknown to others. A document, the existence of which is not known to others may
be secreted in order to prevent any one from getting knowledge of its existence. A document the
existence of which 'is known to others may also be secreted in order to prevent its being produced in
evidence. A IR 1931 Cal 184.
(4) A mere refusal or a bona fide refusal to produce a document is not a secretion of the document.
But a refusal to produce, with the intention, otherwise , proved, of keeping the document secret, may be
sufficient to prove a secretion within the meaning of the section. A IR 1938 Sind 217.
(5) Merely keeping the existence of a document secret is similarly ipso facto not 'secreting' the
document within the meaning of the section unless it is so kept with the intention referred to in the
section. A /R 1938 Sind 217.
(6) The accused was summoned to produce a document alleged to be in his possession. On his
refusal to do so, a search warrant was issued under S. 93 of the Criminal P. C., but the document
could not be found. In a charge under this section against the accused, the Magistrate discharged the
accused on the ground that a mere refusal to produce the document did not amount to secreting the
document. The High Court set aside the order and remanded the case. AIR 1951 Cal 101.
(7) Unless the document in question is one which the accused could be lawfully compelled to
produce in evidence, he cannot be hauled up under this section. 9I112 CriLJ 450('451) ('DB)(t'al).
(8) Where in the course of an investigation, a police officer got a panchayatnama rewritten by the
same scribe and signed by the same Panchas in order to make it fair and tidy,. and destroyed the
original, it was held-that the facts should be viewed in the proper perspective and the fair copy must be
regarded as the only document lawfully required to be produced in, evidence and that the former writing
should be treated as rough notes designed for the preparation of the fair original document (1912) 13
CriLJ 912. . . . .. . . .. . -
(9) Where the all-correct solution filed by the complainant in a cross-word competition, was not
made available by the accused Managing Director and the complainant did not get the prize due to
Sec. 205 Of False Evidence and Offences Against Publi'c Justice 557

him, the alleged suppression was held to be intentional within the meaning of this section. (1957) 2
A ndhW R 368.
2. Practice.—Evidence—Prove; (1) That the accused secreted or destroyed the document or that he
obliterated or rendered illegible the whole or any part of such document.
(2) That he was lawfully compellable to produce the same as evidence (a) in a Court of Justice or
(b) in proceedings lawfully held by a public servant.
(3) That he did as in () with the intention of preventing the same from being produced or used as
such evidence, or required to produce the same for that purpose.
3. Procedure.-Not cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows;
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—(secreted or destroyed) a document, to wit—which. you
may be lawfully committed to produce as evidence in a court or any proceeding lawfully held before a
public servant, to wit—or obliterated (or rendered illegible) the whole or a part of such document with
the intention of preventing the same from being produced or used as evidence before a Court or in any
proceeding lawfully held before public servant to wit—(or obliterated or rendered illegible) the whole or
a part of such document 'after you were lawfully summoned or required to produce the same and thereby
committed an offence punishable under section 204 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 205
205. False personation for purpose of act or proceeding in suit or
prosecution.—Whoever falsely personates another, and in such assumed character
makes any admission or statement, or confesses judgment, or causes any process to be
issued, or becomes bail or security,, or does any other act in any suit or criminal,
prosecution, shall be punished with imprisonment of either description fora term.
which may extend to three years, or with fine, or with both.
Cases and Materials - . .
1. Scope.—(l) This section may be read along with section 196(i)(b) of the CrPC. This section•
deals with false personation in a suit or in a criminal prosecution and doing certain acts in an assumed
character. Fraudulent intention is not required to constitute an offence under this section. The offence.
under this section is one against public justice and consists of deceiving the Court. When a person
does not assume the name or character of another which he does not possess this section is not attracted
(38 CrLJ 216). The offence of false personation is dealt with in sections 140, 170, 171, 416 and this
section.
(2) Misappropriation—Denial of the charge, when receives reasonable support from the prosecution
evidence and circumstances. When all the facts and circumstances of the case against accused persons
Are taken into account, in particular his conduct, there is a reasonable possibility that the explanation
which he put forward is true and in consequence of which he is entitled to be acquitted. Mir A hmed V s.
State (1962) 14 DLR (SC) 258. . ' '
55.3 Penal Code Sec. 262
• (3). Fraud or dishonesty is not a necessary ingredient of an offence under this section and a•
conviction for false personation may be upheld even where the false personation is with the consent of
the person personated. (1904) 2 CriLJ 388. .
(4) Under S. 419 (cheating by false personation) a dishonest or fraudulent intent is an essential
ingredient of the offence, as, in the absence of such intent, there will be no cheating at all as defined in
S. 415, which is the basis of the offence under S. 419. (1904)2 CriL.J 388 (Cal);
(5) "Personation" means assumption of likeness or character of another. A did two acts, one of
getting a rent-note executed in the, name of B, a fictitious person, and the other of posing to be B and
producing the rent-note before the Sub-Registrar. It was held that there might be no personation in the
first.act inasmuch as it indicated a simple assumption of another name, but the second act definite!y.
constituted personation by assuming another man's personality. AIR 1961 All 62.
(6) A man may personate another in the sense of assuming a character without any intention of
seriously posing as being that other. There is no false personation in such a case because the
personator' s act is both intended and known to be mere imitation. (1903) 5 Born LR 138.
(7) Where an accused representing himself as a servant of another accepts a notice that was to be
served on the, other person by writing the words to the effect that he received it on behalf of his master,
it has been held that he does not falsely 'personate another but assumes the status of such person's
sérvañt. A IR 1937 Pat 211;
(8) To constitute the offence of false personation, it is not only necessary to assume a fictitious
name but also to prove that the name was used as a means of falsely representing some other
individual. (1868-69) 4 MadHR 18.
(9) The accused should have assumed the name and character of the person he is charged with as
having personated. The fact that he simply presented a petition in Court in the name of that individual
was held to be insufficient to indicate an intention of falsely personating such person. (1867) 8
SuthW RCr 80. .
(10) Personation must be of a known person, not of an imaginary person. (1868-69)4MadHCR 18.
(11) In. order to constitute an act an offence under this section it must have been done in a suit or
criminal prosecution. (1900) 5 Mys CCR No. 142 p. 836.
(12) Succession certificate proceedings (which are not 'suits' under the Civil Procedure Code) are
not suits within the meaning of this section. AIR 1940 Lah 514.
(13) The presentation of a petition of compromise to the Registrar of the High Court in appeals
pending before the High Court was held to be an act in a suit within the meaning of this section. AIR
1927 Pat 199.
(14) A prosecution under Act 3 of 1852 is a criminal prosecution within the meaning of this
section. 1,871 RatUnCrC 59.
(15) It is not enough to prove merely the assumption of a fictitious name. It is further necessary to
prove that the assumed name was used as a means of falsely representing another individual. AIR 1935
Mad 913. . . .,

(16) Where the offence is alleged to have been committed in, or in relation to, any proceeding in
any Court, the complaint in writing of such Court is necessary under S. 195(1 )(b) of Criminal P. C. to
take cognizance thereof. 1977 CriL.J 1632; ' , •.
Sec. 206 Of False Evidence and Offences Against Public Justice 559

2. Practice.—Evidence—Prove: (I) That the accused falsely personated the person in question.
(2) That he.made the admission, etc.
(3) That he made such admission etc. in such assumed character.
(4) That such admission etc. was made in a suit or in a criminal prosecution.
3. Procedure.—Not cognizable—Warrant---Bailable—Not compoundable—Triable by
• Metropolitan Magistrate 'or. Magistrate of the first or second class.
4. Charge—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
• That you, on or about the—day of—at--falsely personated (name) in (specify the suit or criminal
proceeding) before office of Judge or Magistrate, rand in such assumed character (specify . the admission
or statement made or.judgment confessed or process caused to be issued or bail or security given or any
other act done) and that you thereby committed an offence punishable under section 205 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said chargé.
5. Complaint—A complaint in writing of the Court before which the offence is committed, or of
some other Court to which it is subordinate, is required under section 195, CrPC.

Section 206
206. Fraudulent removal or concealment of property to prevent its seizure
as forfeited or in execution.—Whoever fraudulently removes, conceals, transfers or
delivers to any person any property or any interest therein, intending thereby to
prevent that property or, interest therein from being taken as a forfeiture or in
satisfaction of a fine, under a sentence which has been pronounced, or which he knows
to be likely to be pronounced, by a Court. of Justice or, other competent authority, or
from being taken in eecution of a decree or order which has been made, or which he
knows to be likely to be made by a Court of Justice in a civil suit, shall be punished
with imprisonment of either description for a term which may extend to two years, or
With fine, or with both.
Cases and Materials : Synopsis
1. slope. 6. . Complaint.
2. "Whoever fraudulently removes, etc." 7. Evidence.
3. "Intending thereby to prevent' 8.. Practice.
4. "Taken in execution of decree or order' 9. Procedure.
5. "Decree or order..... . in civil suit". 10. Charge.
1. Scope.—(l) This section deals with fraudulent withdrawal of property so as to defeat the just
•taiins of those who have or may have a right over it. Fraudulent removal or concealment of the just
claim of the others has been made punishable under this section. Where an undertaking is given to the
Court that he will not transfer his property pending a proceeding but transfe rs the same, an offence
under.this section is committed A IR 1940 Mad 271. .
560 Penal Code Sec. 206
2. "Whoever fraudulently removes, etc."—(l) The section uses the word "fraudulently" and not
"dishonestly". The two words are defined separately in Ss." 25 and 24 respectively, of the Code and
have different connotations. 1936 MadWN 1150.
(2) The word "fraudulently" ordinarily connotes firstly deceit or secrecy and, secondly, an
intention to cause injury to another person. A IR 1940 Mad 271.
(3) Where the accused judgment-debtor immediately after giving an undertaking to the Court not
to transfer certain property, transferred the same in favour of his son by a sale deed with knowledge that
his son would be in a position to claim the property as his own, it was held that the intention to cause
injury was clearly established and that the fact whether or not the creditor would be able to circumvent
the transfer by other proceedings was immaterial. A IR 1940 Mad 271.
(4) A whose property was attached in execution of a warrant by a Court, openly and in daylight
removed the property in spite of protest; held that there was no element of concealment, secrecy or
deception and consequently, no offence under this section was committed. 1962(2) Cr1 Li 555,
(5) Handing over one's property which is not legally liable to be attached to avoid its being mixed
up with other property liable to be attached for a decree does not amount to transfer as contemplated by
this section. A IR 1917.Bom 265. .
(6) There is nothing to prevent a judgement-debtor from disposing of his interest in an attached
debt such action being legally justifiable cannot be treated as being "fraudulent" within the meaning of
this section, and hence, in such a case the judgement-debtor will not be guilty under this section.
(1906) 3 Cri Li 92 (A ll).
(7) Where a person openly removes movable property so as to avoid its being taken in execution
of a decree, etc., as mentioned in this section, such removal will not be "fraudulent" within the
meaning of this section and hence such removal will not be an offence under this section. But such
removal may be "dishonest" and may amount to theft. A IR 1941 Par 136
3 "Intending thereby to prevent".--(l) The particular intention necessary for the applicability
of this section is an intention to prevent the property or interest therein from being taken as forfeiture or
in satisfaction of a fine or in execution of a decree or order of Civil Court. Such an intention is totally
different from the intention involved in the offence of criminal breach of trust under Section 406 infra.
A IR 1937 Born 46
(2) Where property has already been taken as forfeiture or in satisfaction of a fine or in execution of
a decree, a removal etc., of such property cannot be said to be made with intent "to prevent" its being
so "taken" within the meaning of this section. 1888 A ll WN237.
(3) Where crops which had been attached were harvested by the accused with a view to save them
from being ruined and not with the view of preventing their being taken in execution, it was held that
no offence under this section was committed. A IR 1938 Mad 976.
4. "Taken in execution of decree or order".—(l) Where movable property is attached in
execution of a decree under 0. 21, R. 43 of the Civil P. C. and the attaching officer has handed over the
same to a third person on the latter's executing a bond undertaking to produce the same whenever
called for, the property was held to be taken in execution within the meaning of this section, and a
subsequent removal of it from such custody cannot be said to, be so done in order to prevent it from
being 'taken in execution' and S. 206 would not apply to such a removal. A IR 1937 Born 46.
(2) A obtained a motor car from B under a hire-purchase agreement under which the car was to
remain the property of B until A had paid the amount due to B. On the default of payment B obtained
206 Of False Evidence and Offences Against Public Justice 56.1

a decree against A for the amount. Subsequent thereto A transferred the car to another. It was held that
on the decree for money being obtained, the agreement of hire-purchase became merged in the decree,
and put an end, to the title of B to the car, that the transfer of the car by A was transfer of his property
which if fraudulently made with the intention of preventing B from taking it in execution of his decree,
would render A liable under this section. AIR 1918 Cal 663.
5; "Decree or order ......in civil suit".—.(l) A property under distraint which would be
governed by S 145 of the Bengal Rent Act, (10 of 1859) cannot be said to be "taken in execution of
decree or order". (1869) 2 Beng LR (SN) (iv).
(2) The words "intending thereby to prevent that property from 'being taken iii execution of a
decree or order which ' has been made or which he knows to . be likely to be made by a Court of Justice
in a civil suit" refer to civil suit which is actually pending before a Court. AIR 1,930 Rang 128.
(3) A certificate issued under the Public Demands Recovery Act (Beng. Act I of 1895) has the force
and effect of a decree of a Court as regards the remedies for enforcing the same. Mdn.ey due under such
certificate must be regarded as money due under civil Court decree and removal of crops under
attachment in execution of such a certifit:419 amounts to an offence punishable under this section. (1900)
5 Cal W N291.
6. Complaint.—(1) Where the offence under this section is alleged to have been committed in, or
in relation to any proceeding in any Court, a complaint by such Court or by a Court to which it is
subordinate is neceSsary before a Court can take cognizance of such offence. 1933 Mad WN 722.,
(2) Where the act of the accused fell within two sections, namely, S. 379 and S. 206, it was held
that a complaint is necessary before taking cognizance of the case. 1936 Mad W N212.
(3) Where attached property was left in the custody of sureties and the accused removed the same
from such custody after committing dacoity armed with deadly weapons, it was held that the claimants
constituting the offence under Ss. 206 and 395 are not only not identical but that S. 395 was a much
graver offence involving additional ingredients and that no complaint under S. 195, Criminal P. C.
was necessary before inquiry into a charge of dacoity AIR 1948 Mad 115
(4) Where the facts amount to an offence requiring 'a complaint and also another offence not
requiring complaint the prosecution cannot evade the provisions of law requiring a complaint, by
proscuting the accused, for the offence not requiring a complaint whether such offence constitutes the
major or the minor one Of the two offences. AIR 1966 SC 523.
(5) A complaint in writing of the Court before which the offence is committed, or of some other
Court to which it is subordinate, is required under section 195, CrPC.
7. Evidence.--(I) Evidence of fraudulent transfers other than those for which the accused is beiüg
prosecuted would be admissible under. Ss: 14 and 15 of the Evidence Act to prove either that those
transfers were parts of the same transaction or that the transfers which were specified in the charge were
made fraudulently. (1892) ILR 16 Born 414.
8. Practice.—Evidence—Prove: (1) That the sentence of fine had been or was, to the ki'owlede of
the ac fused, likely to be pronounced, or that the decree or order had been, or was to the knowledge.oi*
the accused, likely to be made.
(2) That it was a Court of Justice, or other competent authority pronouncing or about to
pronounce such sentence, or tha't it was a Court of Justice making or about to make such decree or
order in a civil suit. ' . '
562 Penal Code •sec. 207

(3) That the property in question or interest therein had become or was likely to become, liable to
be taken as forfeiture of such fine, or taken in execution of such decree or order.
(4) That the accused removed, concealed, transferred or delivered such property or interest therein
with intent thereby to prevent such property from being taken;
(5) That he did As above with intent to defraud.
9. 'Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate.
lO Charge.—The charge shouldrun as follows:,
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--fraudulently removed (or concealed) or transferred or
delivered to XY, a certain property (specify. it) intending thereby to prevent the said property from
being taken as forfeiture (or fine) under the sentence which had been pronounced (or which you knew to
be likely, to be pronounced) by (specify the COurt) in criminal case No—or from being taken in
execution of the decree which had been made by (specify the Court) in civil suit No.—and that you
thereby committed an,offence punishable under section 206 of the Penal Code and within- my
cognizance. - -
And I hereby direct that you be tried on the said charge.

- - Section 207 - -
- 207. Fraudulent claim to property to prevent its seizure as forfeited or hi
execution.—Whoever fraudulently accepts, receives or claims any property or any
• interest therein, knowing that he has no right or rightful claim to such property or
• interest, or practises any deception touching any right to any property or any interest
therein, intending thereby to prevent that property or interest therein from being
taken as a forfeiture- or .in satisfaction of a fine, under a sentence, which has been
pronounced, or which he knows to be likely to be pronounced by a Court , of Justice or
other cómpeteñt authority, or from being taken in execution, of a decree or order, which
has been made, or which he knows to be likely to be made by a Court of Justice in a
civil suit, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both. -.
Cases and Materials
1. Scope.-.--(l) This section deals with the receiver, acceptor or claimer of property to prevent as a
forfeiture. It punishes the accomplice. This section should be. read along with sections 20, 25 and 206
of the Penal Code.
(2;A creditor commits no fraud who anticipates other creditors and obtains a discharge of his debt
by the assignment of any property which has not already been attached by another creditor. 1876 Rat
Un Rep Cr1 Gas 110...
(3) Where the offence' is alleged to have been committed in, or in relation to, any proceeding in
any Court, no Court shall take cognizance of the offence except on the complaint in writing.of such
Court as required by Section 195(l)(b), Criminal P. C. 1977 Cr1 LI 1329 'A ndh .Prq).
Of False Evidence and Offences Against Public Justice . 563
(4) The petition of complaint discloses no offence under the various sections of the Penal Code.
Cognizance has been taken against the accused petitioner under sections 193/207 of the Penal Code.
Allegation by the complainant that the accused has no subsisting interest in the property in question
thus raises question of civil dispute, not a criminal issue. Criminal Courts are not to be utilised for
adjudication of civil disputes—Court strongly disapproving resort to criminal proceeding for harassing
a person with motive of settling civil disputes. Questions of fact are to be tried on-evidence by the trial
court. 39 DLR 214.
2. Practice.—Evidence— p rove: (l) That the sentence of fine had been or was, to the knowledge of
the accused, likely to be pronounced, or that the decree or order had been or was, to his knowledge,
likely to be made. .
(2) That it was a Court of Justice, or other competent authority, pronouncing or about to
pronounce, such sentence; or that it was a Court of Justice making, or about to make, such decree or
order in a civil suit.
(3) That the property in question or interest therein had become liable to be taken as f tufr
each such fine, or taken in execution of such decree or order.
(4) That the accused accepted, received or claimed such property or interest with intent to defraud,
or that he practised a deception touching the right thereto.
(5) That he had no right or rightful claim thereto.
(6) That he did as above in order to prevent such property or interest from being so taken.
3. Procedure.—Not c ognizable—Summons_Bailable_No compoundabie-.-.-Triabje by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as fàllowL
That you, on or about the—day of—at—fraudulently accepted (or received , or.claimed) certain
property or interest in property to wit—knowing that.you had no right or rightful claim to the same (or
practised deception touching a right to certain property or an interest in certain property to wit—) by—
intending thereby to prevent that property or interest in property from being taken as a forfeiture or in
satisfaction of a fine under a sentence which had been pronounced or which you knew to be likely to be
pronounced by the Court of—(or by a competent authority to wit—) or from being taken in execution
of a decree or order which had been made or which you knew likely to be made by the—Court in suit
and that you thereby committed an offence punishable under section 207 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried on the said charge..
5. Complaint.—A complaintTh writing of the Court beford which the offence is committed, or of
some other Court to which it is subordinate, is required under section 195, CrPC.

Section 208
• 208. Fraudulently suffering decree for sum not due.—Whoever fraudulently
causes or suffers a decree or order to be passed against him at the suit of any person
for a sum not due or for a larger sum than is due to such person, or for any property
564 Penal Code See. 209

or interest in property to which such person is not entitled, or fraudulently causes or

suffers a decree or order to be executed against him after it has been satisfied, or for
anything in respect of which it has been satisfied. shall be punished with
imprisonment of either description for . a term which may extend to two years, or with
fine, or with both.
Illustration
• A institutes a suit against Z. Z, kiowing that A is likely to obtain a decree against him,
fraudulently suffers a judgment to pass against him for a larger amount at the suit of B,
who has no just claim againsthim, in order that B, either on his own account or for the
benefit of Z, may share in the proceeds of any sale of Zs property which may be made
under A 's decree. Z has committed an offence under this section.
Materials
1. Practice.—Evidencé—Prove: (1) That the accused caused, or suffered, the decree or order to be
passed against him.
(2) That such decree or order was for a sum not due by the accused; or for a sum larger than was
due; or for property or interest therein to which the decree-holder was not entitled.
(3) That the accused did as in (1) with intent to defraud.
Or prove the following points:
(1) That a decree against the accused had been satisfied.
(2) That he, afterwards, caused or suffered such decree or order to be executed against him.
(3) That such execution was for that in respect ofwhich it had been so satisfied.
(4) That the accused did as above with intent to defraud.
2. Procedure.—Not cognizable_Warrant—Bailable—NOt compoundable—Triable by any
Magistrate.
• 3. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—fraudulently caused (or suffered) a decree (or order) to
wit—in suit NO.—of the Court of—to be passed against you, and which was for a sum not due (or for a
larger sum than is due to such person or for any property or interest in property to which the decree-
holder was not entitled) or fraudulently caused (or suffered) a decree (or order) to wit—decree No—in
suit No—decided by the Court—on--., to be executed against you after it had been satisfied (or for
-anything in respect of which it had been satisfied) and thereby committed an offence punishable under
section 208 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge. -
5. Corn plaint.—A complaint in writing of the Court before which the offence is committed, or of
some other Court to which it is subordinate, is required under section 195, CrPC.

Section 209
209. Dishonestly making false claim in Court.-Whoever fraudulently or -
dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice
Sec.209 Of False Evidence and Offences Against Public Justice 565

any claim which he knows to be false, shall be punished with imprisonment of either
:.:description for a term which may extend to two years, and shall also be liable to fine.
Cases and Materials : Synopsis
1.. Scope. 7. Jurisdiction to make inquiry or complaint.
2. False claim. 8. Evidence.
3. "Fraudulently or dishonestly". 9. Procedure.
4. "In a Court of Justice ' JO. Practice.
5. "Which he knows to befalse' 11. Charge.
6. Complaint.

1. Scope.—(1) This section relates to false and fraudulent claims in a Court of Justice. It is much
wider than the above section .as it applies to a person who is acting fraudulently or dishonestly.
(2) Accused charged under sections 209/34 and 420/34—Further charge under section 5(2) of Act II
of 1947—Acquitted of the charge under sections 209/34 and 420/34 but convicted and sentenced under
section 465—There was allegation of fabrication of document for establishing false claim before a Law
Court—Question as to valiçity of conviction and sentence Under section 465— .lrregularity, whether
curable. The petitioner and 2 others faced trial under sections 209/34 and 420/34. It was clear that there
was allegationof fabrication of documents with a view to establish a false claim in a proceeding before a
Court of Law. The petitioner had, therefore, the notice of allegation and fabrication of document.
Held—The ingredients of the offence punishable under section 209 and those of an offence punishable
under section 465 are almost similar. It was at best irregularly curable under section 537 of the
Criminal Procedure Code, 2 BSCD 248.
(3) This section relates to false and fraudulent claims in a Court. 1884 Pun Re(Cr) No. 25;
(2) In order to constitute the offence it is not necessary that the whole of the claim should be false.
The section would apply even if a part of the claim is false. .1890 All WN 1(2).
(4) A false caim in a Court of Justice does not amount to the offence of extortion or of an attempt
to commit extortion. AIR 1917 Oudh 117.
(5) This section relates to the offence of filing a false suit (i. e..a suit based (in a false claim) which
is a civil remedy. (1869) 12 Suth W R (Cr) 37.

2. False claim.—(l) An attempt to execute a decree cannot be described as making a false claim.
AIR 1946 Nag 350.
(2) Where an application for execution was made not only for the amount decreed, but also for
amounts not decreed, it was assumed that Section 209 would apply if the accused acted fraudulently,
but that in the particular case the section did not apply as the accused did not act fraudulently. AIR
1936A11164.
(3) Cases where an application for execution was made not only for the amount decreed but also for
amounts not decreed may come under Section 210 which inter alia makes it an offence for a person to
fraudulently cause a decre or order to be executed after it has been satisfied or for anything in respect of
which it has been satisfied, or to fraudulently suffer or permit any such act to be.done in his name. AIR
1931 All 305.
(4) This section does ot refer to a documeniproduced in evidence to substantiate the relief asked
for in a suit. "claim" cannot be confused with A document on which the claim is based, for such
document is only the evidence by which the claim is attempted to be proved. AIR 1916 Mad 1105.
566 Penal Code Sec. 209

• (5) Where there was a conspiracy to file a false claim and to obtain or attempt to obtain a decree in
respect thereof, the object of the conspiracy being one and indivisible, it is not Open to the Magistrate
to treat the conspiracy as having two objects. There can be one indivisible object within contemplation
of both of the two Sections 209 and 210. AIR 1947 Sind 49.
(6) Where the suit was dismissed as false and malicious on 3 February 1913 and the application
for sanction to prosecute under this section was made on 20 November 1913 it was held that the delay
did not imply mala fides and that it would not be proper to refuse on this ground the application for
sanction (now complaint). AIR 1915 Cal 457.
3. "'Fraudulently or dishonestly".—(l) Where a plaintiff institutes asuit against a wrong person
of a similar name on a genuine promissory note, but not dishonestly and intentionally, no offence
under this section or Section 193 of the Code is committed. AIR 1915 Low Bur 59.
4. "In a Court of Justice".—(l) The words in the section are "a Court of Justice" and not "a
Court of Justice having jurisdiction". It is therefore immaterial whether, the Court in which the false
claim was instituted had jurisdiction to try the suit. AIR 1919 All 323.
(2) The miiager under the Encumbered Estates Act is not a Court and a proceeding before him is
not a suit inasmuch as he does not decide disputes between parties. A fraudulent claim preferred before
him would not, therefore, be covered by this section. AIR 1935 Pat 515.
5. "Which he knows to be false".-.--(l) It is not sufficient for the prosecution, in a charge of an
offence under this section to prove that the claim made by the accused was believed by him to be false
or.that the accused had reason to believe it to be false or that he did not believe it to be true. It must be
proved that the accused knew the claim to be false. (1894) 17 MysLR No. 494, p. 722.
(2) The mere fact that the Court does not accept the plaintiff's claim and dismisses his suit will
not prove that he knowingly made a false claim. (1921)22 CriLJ 467 (Pat).
6. Complaint-41) An offence under this section, committed in, or in relation to, any proceeding
in Court cannot be taken cognizance of by any Court except upon a complaint as required by Section
195, Criminal Procedure Code. AIR 1924 Cal 502.
(2) Courts have to be astute to see that where: the facts of a case really amount to an offence undet
this section, the provisions of Section 195, Criminal Procedure Code requiring the complaint of the
concerned Court are not evaded by framing the complaint as one falling under some other section of the
Code, as for instance, Section 500 (defamation). AIR 1935 Sind 81.
(3) Before giving a complaint the Court should consider whether in the interest of justice it is
expedient to make the complaint. Great caution is required for setting the criminal law in motion and
without any reasonable foundation for the charge, no complai nt should be made. The danger of parties
vindictively proceeding against their opponents has always to be kept in mind. AIR 1966 Mad 456.
(4) Mere dismissal of suit, in the absence of clear finding that the suit was false and was brought
with intent to injure the defendant, would not justify complaint being made. AIR 1920 Pat 548.
(5) A compromise in a suit for money due on a handnote is, however, no bar to a complaint being
made fOr an offence under this section. AIR 1922 Cal 412. -
of some other
(6) A complaint in writing of the Court before which the offence is committed, or
Court to which it is -subordinate, is required under section 195, CrPC. The complaint must be made
by the Court before which the plaint for the false claim is filed and not by the Court to which the case
is transferred after setting as of the ex parte decree (33 CrLf 860). Where a plaintiff is called upon to
Sec. 210 Of False Evidence and Offences Against Public Justice 567
show cause why' he should not be prosecuted under this section, he should be afforded every
opportunity of adducing evidence in support of his claim and to remove any doubt in the mind of the
Court as to the falsity of the case (21 CrLJ 158).
7. Jurisdiction to make inquiry or complaint.—(1) Mutation proceedings before X dismissed—
Y later succeeding X and passing order under S. 476, Criminal P. C. sanctioning prosecution under
the section—Y was held to have no jurisdiction to pass the order—Proper course for him was to give
sanction under Section 195, Criminal P. C. A IR 1917 Pat 35.
(2) The subordinate Judges who have been empowered to entertain civil appeals will be Courts to
which appeals "ordinarily lie" within Section 195(3); Criminal P. C. A IR 1916 Mad 1105.
(3) District Judge of one area has jurisdiction to take action against petitioner of another area under
S. 476, Criminal P. C. for an offence committed under. S. 209 or 210, P.C., if these offences, which are
alleged to have been committed, are brought to the notice of the District Judge in the course Of a
judicial proceeding. A IR 1916 Pat 97.
8. Evidence.—(l) Prosecution based on the allegation that a false claim was wilfully presente.d
will have to prove affirmatively that the case was a false one. A IR 1932 Pat 243.
9. Procedure.—(l) Where the plaintiff is called upon to show cause Why he should not be
prosecuted, he should be afforded every opportunity of adducing evidence in support of his claim and to
remove any doubt in the mind of the Court as to the falsity of the case. A IR 1920 Pat 548.
(2) Not cognizable—Warrant----Bailable—Not compoundable—Triable by any Magistrate.
10. Practice.—Evidence—Prove: (1) That the claim in question was made in a Court of Justice.
(2) That the accused made such claim.
(3) That such claim was a false one.
(4) That the accused when making such claim knew it to be false.
(5) That he made such claim, intending to defraud, or to cause wrongful gain, or loss, or annoy the
person in question. ..
11. Charge.—The char'ge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:.
That. you, on or about ' the—day of—at—fraudulently (or dishonestly or with intent to injure or
annoy any person made a.calim to wit—(specify the particulars of the calim) in Suit No.—.-of--in the
Court of—and which you knew to be false and thereby committed an offence punishable under section
209 of the Penal Code and within my cognizance.
And I hereby direct that you be tried an the said charge..

Section 210
210.' Fraudulently obtaining decree for sum not due.—Whoever fraudulently
obtains a decree or order against any person for a sum not due, or for a larger sum than
is due, or for any property, or interest in property to which he is not entitled, o,-
fraudulently causes a decree or order to be executed against any person after it has
been satisfied, or for anything in respect of which it has been satisfied, or fraudulently
suffers or permits any such act to be done in his name, shall be punished with
568 Penal Code Sec. 210

imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Ces and Materials Synopsis
1. Scope and applicability. S. "A fter it has been satisfied".
2. "Fraudulently obtains a decree" etc. 6. Complaint— Necessity of
3. "Fraudulently causes a decree to be 7. Evidence.
executed". . 8. Practice.
4. Proceeding on false clainiy,i %urt having on 9, Procedure.
Jurisdiction. .•.1.. io. Charge.
.1. Scope and applicability.----( 1) Prosecution for false charge—Whether complaint by Magistrate
is necessary in respect . of a case ending in a final report- .-Orders passed. by a Magistrate in a case
initiated on the basis of an FIR lodged by an informant ending in discharge of the accused or acceptance
of Final Report are not proceeding in aCourt within the meaning of section 195, CrPC as it is merely
in the category of "Police Proceeding"—ln such a case embargo placed by section 195 is not applicable
and no complaint by Magistrate for prosecution on account of false charge is necessary. The Additional
Sessions Judge acted illegally in. allowing the appeal On the ground of non-filing of complaint by the
Magistrate (Ref 38 DL.R 321). 8 BLD 517. .
(2) This section punishes a plaintiff for his fraudulent acts whereas S. 208 punishes the defendant
for his fraudulent acts. Thus, a fraudulent attempt to get the decree executed after it has been - satisfied is
punishableunder this section. It is immaterial whether the decree was satisfied .in full or only in pa't.
(1869) 12 Suth W R (Cr) 37.
(3) Where the purpose of a conspiracy was to file a false claim and to obtain or attempt to obtain .a
decree in respect of that false claim, this section read with Section 120B of the Code would apply and
the fact that a decree was not passed would not make Section 210 inapplicable, since, if - the Court
holds the claim to be false, no decree could be passed. AIR 1947 Sind 49. .
• 2. "Fraudulently obtains a decree" etc.—(1) Fraudulently obtaining a decree or a fraudulent
execution of a decree for a sum not due would be punishable under this section and the fact that the
Court had no power to pass the decree would be immaterial. AIR 1919 All 323.
(2) The accused's liability is not affected by the fact that the order. of attachment fraudulently
obtained is set aside on objection being made. AIR 1931 All 305.
(3) The offence is committed as soon as a decree is fraudulently obtained or executed and thought
the fact that the decree has not been set aside might be evidence to prove that there was no fraud, it can
in no way debar a prosecution for an offence, under this section '1906) 3 CriLJ 365.
(4)Where a dealer in saltpetre overstated the claim in his suit against the Railway Company in
order to claim more damages, it was held that his action was fraudulent. AIR 1924 Nag 35.
(5) While deciding the question of conspiracy to file a false claim, the Court has to consider its
object. Where the conspiracy was to file a false claim and obtain a decree in respect thereof, the object
should be one and indivisible and hence, the Magistrate is not justified in splitting up the object and
then convicting the accused under Section . 120131209, P.C. and to order their acquittal under S.
12013/2 10, P.C. A IR 1947 Sind 49.
3. "Fraudulently causes a decree to be executed".—(I) The mere making of an application for
execution cannot be said to be causing the decree to be executed' within the meaning of this section. If
Sec. 210 Of False Evidence and Offences Against Public Justice

the execution application is dismissed as satisfied out of Court, it cannot be held that the decree was
"caused to be executed". 1902 Pun Re (Cr) No. 13 (p. 39).
(2) The offence of fraudulently causing a decree to. be executed is not completed until the judgment-
debtor appears and has no objection or has objection which has been overruled and the Court has
therefore proceeded to order execution. 1902 Pun Re Cr No. 13 (p 39).
(3) Where the decree-holder gets the judgment-debtor's property attached in execution for an
amount not due to him under the decree he is prima facie guilty of an offence under this section. A IR
1931 All 305. . .
(4) Where adecree-holder omitted to enter part satisfaction of a decree in the execution proceedings
and the judgment-debtor did not raise any objection to the e, 'cess claim for nearly 2 years till the full
decretal amount was recovered,.it was held that-the omission to enter part recovery cannot be said to be
fraudulent within the meaning of this section. AIR 1929 La/i 676. . .
• (5) Where the facts do not establish a criminal intention but only a bona fide mistake, there is no
offence under this section. (1909)11 CriLJ202 '(All). . . ..
(6) If the decree-holder commits an honest mistake in failing to give credit for certain repáyl*ent in,
execution proceedings But on realising the mistake hgets the execution dismissed, his act cannot be
held to be fraudulent. A IR 196 Nag 350. .
(7) Judgment-debtor making payments in kind—Decree-holder concealing this fact and taking out
execution—Offence falls under this section and not S. (406 criminal breach of trust) ..LComplaint under
S. 195 necessary—Offence cannot be treated as one under S. 406 so as to evade provisions as to
sanction. A IR 1936 Sind .121 . .. . .. .
4. Proêeeding on false claim in Court having no jurisdiction.—(l) The fact, that the Court
from which a decree is fraudulently obtained on a false claim or in which a decree is fraudulently
executed for a sum not due or after the decree has been satisfied, has no jurisdiction will not affect the
question of the criminal liability of the person who resorts to such abuse of legal process, as the
applicability of the section does not depend on the question whether the Court by which the decree, is
passed or executd has jurisdiction to do so. AIR 1919 A ll 323.. .
5. "After it has been satisfied".—(l) The word 'satisfied' is tobe understood in its ordinary
meaning and not as referring to decrees the satisfaction of which has been certified to the Court under 0.
21, R. 2, Civil P. C. (1886) ILR 10 Born 288.
(2) Order 21, Rule 2, P. C. 'provides that no payment not certified shall be recognised by the
executing Court. But that rule is no bar to a criminal Court taking cognizance of an offence under this
section in a case in which the decree-holder is charged under this section for fraudulently causing that
decree to be executed after it has been satisfied out of Court, which' satisfaction, however, has not been
certified to the executing Court under 0. 21, R. 2 of the C.-P.. C. (1897-1901) 1 Upp Bur Ru! 278.
(3) Order 21, Rule . 2 of the Civil P. C., does not prohibit the executing Court from making an
enquiry under Section 340, Criminal P. C. into an alleged adjustment with a view to filing a
complaint of an offence under this section. A IR 1931 Rang 148.
6. Complaint—Necessity of.—(1).A prosecution for an offence under this section requires a
complaint to be made by the Court in 'which or in relation to any proceeding in which, such offence is
I ' alleged to be committed or of some other Court to which such Court is subordinate. (1887) 10 Mys LR
No. 320 p. 1048. , .
570 . Penal Code . Se. 21.0

(2) When a plaintiff instituted a Suit first'in Court X and obtained a degree for part only, of
the claim, and thereafter instituted another suit in Court Y for the amount disallowed by Court X
in the'first suit it was held that the suit in Court Y cannot be said torelafe to proceedings in
Court X and that the proper Court to prefer the complaint was Court Y and not Court X. A IR 1925
Lah 524. . .
(3) Before making complaint of offence under this section, Court ought to satisfy itself that there is
a prima facie case for proceeding against the accused under this section. 1888 Rat Un Cr C 374.
(4) A complaint cannot be refused to be made on the ground that the judgment-debtor has not been
prejudiced. AIR. 1917 La/i 209.
(5) The danger of parties vindictively proceeding against their opponents has always to be
considered before making or refusing to make a complaint. AIR 1966 Mad 456. .
(6) Where the facts disclose primarily an offence under this section and also constitute subsidiary
offences the necessity for a complaint cannot be. avoided by omitting this section from the complaint
and mentioning only the subsidiary offence. 'AIR 1944 Sind 130.
(7) The provisions of law requiring the complaint of a Court or other authority for a certain offence,
being taken cognizance of, cannot be evaded by ignoring the featires of the case which bring it within
such provisions and by treating the case as relating to some other offence in regard to which the
provisions do not apply. AIR 1966 SC 1775.
(8) A complaint in writing of the Court before which the offence is committed or of some other
Court to which it is subordinate is required Under section 195, CrPC
7. Evidence^ ( 1) The fact that the decree has been set aside by the civil Court on the ground of
fraud is no evidence in a criminal Court trying an offence under this section, that the decree was
obtained fraudulently. However the fact that the decree had not been set aside might be evidence to
show that it had not been obtained by fraud. (1906) 3 CriLJ 360 (Cal).
8. Practice.—Evidence—Prove: (1) That the accused obtained the decree or order or suffered or
permitted the same to be done in his name. ..
(2) That such decree or order was for a sum not due or that it was for a sum larger than what was
actually due, or that it was for property or an interest therein, to which he was not entitled.
(3) That the accused did as above with intent to defraud.
9. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate. .
10. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—fraudulently obtained a decree or order in suit No—Of-
against you of—for Tk—which was not due or was a larger ' sum than was due (or for any property or
interest in property to which you are not entitled or fraudulently caused a decree or order) to be
executed against—after it had been satisfied (or fraudulently suffered or permitted any such act to be
done in your name) and therebycommittedan offence punishable under section 210 of the Peña,l Code
and within my cognizance:
And I hereby direct that yoU be tried on the said charge.
Soc. 2! Penal Code 571

Section 211
211. False charge of offence made with intent to injure.-Whoever, with
intent to cause injury to any person, institutes or causes to be, instituted any criminal
proceeding against that person, or falsely charges any person with having committed
an offence, knowing that there is no just or lawful ground for such proceeding or
charge against.that person, shaIl'be punished with imprisonment of either ' description
for a term which may extend to two years, or with fine, or with both;
and, if such criminal proceeding be instituted on a false charge of an offence
punishable with death, 4 [imprisonment] fior life, or 'imprisonment for seven years or
upwards, shall , be punishable with imprisonment of either description for a term
which may extend to seven. years, and shall also be liable to fine.
Cases and Mate rials : Synopsis
1. Scope of the section. 18. Complaint by Court -S. 1 95(1)(b),
2. "Whoever". Criminal P. C
3. "With intent to cause injury". 19. Complaint under this section against public
servant.
4. "Criminal Proceedlngs"
20. Abetment of offence under the section.
5. Proceedings for contempt of Court.
21. Compounding of original offence.
6. "Institutes criminal proceeding "--'W alsely
22. Court making complaint under S. .195
charges with having committed an offence"
of the Criminal P. C. if can order
7. "Institutes or causes to be instituted" compensation under S. 250, Criminal
8. "Or falsely charges" P.
9. "Against that person". 23. Complaint under this section-Trial
10. "With having committed an offence" for offence under S. 500.
11. Knowledge. 24. Opportunity to accused of being
12. "Just or lawful ground' heard before prosecution.
25. Burden ofproof. .
13. False charge against two or more persons.
26. Jurisdiction.
14. Institution of criminal proceeding or false
27. Delay in finding complaint under this
charge' must have been made in Bangladesh.
section.
15. This
1 section and S. 47 of the District Police Act, 28. Procedure.
1859.
29. , Charge.
16. This section and S. 195. 30. Punishment.
17. This section and S. 182 of the Code 31. Practice. .
1. Scope of the section-41) The institution of criminal proceedings against a person is generally
by charging that person with having committed an offence. But not necessarily so, for there can be
criminal proceedings, without a charge of the commission of an offence and there , can be a charge made
of the commission of an offence without the institution of criminal proceedings. Though the two
expressions overlap and are therefore not mutually exclusive. They are not co-extensive in meaning and
it is to rope in all cases covered by the two expressions that the Legislature has used both in the first
part of section 211 Penal Code. The second part of the section provides for an aggravated form of the
offence described in the first part (1966 CriL] 26). To substantiate a charge of abetment of offence under
section 211 it is necessary to prove that the abettor was aware of the falsity of the complaint.
572 Penal Code Sec. 211

(2) Venue.—The place where the letter falsely charging a person with having committed the offence
is sent and not the place where it is posted decides the jurisdiction of the Court (49 CriLJ 335). Where
the offence under section 211 is committed in two places but only one place is mentioned, by mention
of the only one place the accused is not misled in his defence and this does not affect his
conviction(AIR 1936 Pat 358).
(3) False charge made to police and not to Magistrate.— W here a false charge has been made only
to the police, or when the person making the false charge has not applied to the Magistrate and where
no Court proceedings whatever have been caused, then no complaint is necessary (28 GnU 934).
Where the offence consists in giving false information to the police and the case does not go further
than a police inquiry the offence falls within para. I of the section and not within para; 2. In such a case
it is competent to the Magistrate to proceed on the report of the police without any formal complaint
under section 476 of the CrPC (32 CriL.J 314). . .
(4)Prosecution under section 21 1 will not lie for lodging false FIR unless it is first judicially
decided that the FIR lodged is a false one. So long as a complaint is not dismissed under section 203
of the CrPC or otherwise judicially determined, no proceeding can be instituted under section 211 of
the Penal Code, agaircst the person lodging that complaint. The original complaint must be first
disposed of according to law before such proceedings can be taken. : In the instant case the allegation in
the FIR lodged by the petitioner has not yet been judicially determined as to whether it is-false or
otherwise and without that being done it cannot le prejudged that the FIR lodged by the petitioner is
false. As such the petitioner cannot be prosecuted at this stage on the allegation that he had lodged false
FIR (Ref I PLD 477 Lah). 28 DLR 115.
(5) Definite accusation necessary—The mere lodging of information with the police is not a charge
within the meaning of section 211, Penal Code. There must be definite accusation made if a charge
under section 211, Penal Code is to be substantiated. 6 PLD Ba! 14.
(6) The complaint of X against .Y, Z and others under section 394 P. C. was found by the police.
to be false and thereupon X was prosecuted under section 211 for making false charge. X, however,
moved the Court against police report and the Court found a prima facie case against Y, Z and others,
but ultimately they were acquitted of the charge under section 394 P. C. The question thus arose
whether a charge under section 211 would lie against X. Held: In the circumstances of the case, no
charge would lie against X under section 211. Hazi Sadaruddin Vs. State (1961) 13 DLR 321= 1962
PLD 543. . S

(7) Moving a Magistrate under section 107, Criminal Procedure Code, becomes "criminal
proceeding" within the meaning of section 211 after issue of notice, to respondent—Before issue of
notice false or malicious information to Magistrate under section 107, Cr. P. C. covered not by section
211, but by section 182, P. C. (1949) PLR (La/i) 477.
(8) Prosecution for false charge—Whether complaint by the Magistrate is necessary in respect of a
case ending in final report—Order passed by the Magistrate in a case initiated on the basis of an F.I.R.
ending in discharge of the accused or acceptance of the Final Report are not proceedings in a Court
within the meaning of Section 195, Cr. P. C. as they are merely "Police Proceedings"—In such a case
the embargo placed by Section .195, Cr. P. C. is not applicable and no complaint by the Magistrate for
prosecution on account of a false charge is necessary—The Additional Sessions Judge acted illegal in
allowing the appeal on. the ground of non-finding of complaint by.the Magistrate. A bdul Quader Vs.
Serajuddowal and other 8 BLD (HCD) 517. . . .
Sec. 211 Penal Code 573

(9) This section deals with two categories of cases:

(a) institution of criminal proceeding against a person, and,
(b) making of false charge against a person with having corhniitted an offence. AIR 1923 Oudh 4.
(10) in either of the categories of cases under this section, it is essential that the person before
whom the accusation is made must be in a position of authority to get the offender punished. AIR 1923
Oudh4. .
(II) It is in the interest of justice that a man who brings a false charge or institutes criminal
proceeding with intent to injure another and without just and proper ground should be prosecuted if a
prima facie case is made out against him. (1934) 35 C'riLJ 1392 (Lah).
(12) A Court has authority to make complaint under this section against the person who made a
false complaint, even though the person, complained against, desires that no action should be taken.
AIR 1928 All 333.
(13) To constitute an offepce under this section it must be established;
(a) that the accused instituted or caused to be instituted a criminal proceeding against a person;
(b) that he falsely oharged a person with having committed an offence;
(c) that he did so with intent to cause injury to such person;
(d) that he did so knowing that there was no just or lawful ground for such proceeding or charge
AIR 1964 SC 177. . . .
(4) The ingredients of this section and of malicious prosecution are parallel. The words "with
intent to cause injury to any person, institutes any criminal proceeding, knowing that there is no just
or lawful ground" as used in this section are more. or less equivalent to the expression "maliciously
prosecutes any person without any reasonable or probable cause" which is the foundation of an action
for malicious prosecution. AIR 1966 All 66 . . .
(15) To constitute the offence provided for by S. 211, it is sufficient that a false complaint is made
against any person. It is not necessary .that summons should be issued upon such complaint. (1904) 1
CriLJ 7 (A ll). . .
• 2. "Whoever".—(l) The section applies not only to a private individual but also to a police
officer who brings a false charge of an offence with intent to injure another person. (1969) 11 SuthW R
(Cr)2. . . . . ..
'(3) The section is notinapplicable.to a witness called in support of a false charge if he was the
prime mover in the false charge and caused the proceeding to be instituted. 1882 All WN 84.
3. "With, intent to cause injury".—(l) Where false information is given to a person in authority
but the intention is not to set the criminal law in motion, against any particular person the offence of.
giving 'false information may fall under S. 182 but will not amount to an offence under this section.
AIR 1944 Mad 391. . . . . .
(2) The fact that the complaint fails to prove the charge made by him does not necessarily show
that the charge was false or that it was made with intent to cause injury. (1912) 12 CriLJ 897.
(3) The admission of making a false charge does not necessarily involve an admission of an intent
to cause injury. 1886 AIIWN 66;
(4) The question, whether the accused intended to cause injury to a person by instituting a
criminal proceeding against him or by making a false charge against him, is one of inference form the
facts and circumstances of the particular case. AIR 1919 Cal 679.
574 Penal Code Sec. 211

(5) Where the person charged is innocent and the accused must have known that there was no just
or lawful ground for the proceeding or the charge the intention of the accused to cause injury to such
person can be inferred from the relation of the parties. AIR 1939 Pat! 78,
4. "Criminal proceeding".—(l) A criminal procedure is a step taken in a criminal Court
according to the laws of Criminal Procedure for the purpose of preventing a crime or for prosecuting a
person for the commission of crime. AIR 1949 Lah 28.
(2) It is not necessary, in order to constitute a proceeding a criminal proceeding that a crime
should have been committed. AIR 1949 Lah 28.
(3) A security proceeding instituted by a Magistrate under the preventive sections (Sections 107-
110) of the Criminal P. C. on the motion of a party will be a "criminal proceeding" for the purpose of
this section. A IR 1949 Lah 28.
(4) A proceeding initiated by a party before a Magistrate may not, at the outset, be a criminal
proceeding but may become so at a subsequent state. Thus under the worker's Breach of Contract Act
(13 of 1859), (now repealed) where amaster or employer was entitled to apply to a Magistrate, under
certain circumstances, for an .order for the return of the advance received by a workman and the
Magistrate was empowe'ied to pass such an order, and was also empowered to inflict punishment for
disobedience of the order it was held that the application was not a criminal proceeding up to the stage
of the disobedience of the order but became a criminal proceeding on the disobedience of the order and
the Magistrate's action of inflicting punishment on the employee-, AIR 1920 Mad 553.
(5) Where a party moves the Magistrate to take action under S. 107 of the Criminal P. C., against
a person, the proceeding does not become a criminal proceeding until the Magistrate issues notice to
such person, and that if the Magistrate refuses to issue such notice, there is no criminal proceeding. AIR
1949 Lah 28.
() An application to take proceedings under the Contempt of Courts Act can be regarded as the
institution ofcriminal proceeding. AIR 1964 SC 1773.
5. Proceedings for contempt of Court.—(1) The institution of proceeding for contempt of Court
against any person with the knowledge that there is no just or lawful ground for starting such
proceeding is an offence under this section. AIR 1964-SC 1773.
6. "Institutes criminal proceedings".—" Falsely charges with having committed an
offence".—(1) A person who ets the criminal law in motion by making a false charge to the police of -
a cognizable offence institutes criminal proceedings within the meaning of this section and if the offence
charged falls within the description in the latter part of the section he is liable to punishment there
provided. A IR 1964 SC 1773.
(2) The-expression "criminal proceeding" in this section refers to a criminal proceeding in a Court.
In such a case however, there "would be the charge" of an offence and- the person giving, the false
information to the police would be liable for "falsely charging a person" which is also an offence under
this section, apart from the "institution of criminal proceedings" against a person. (1862-1863) 1
MadHCR 30.
(3) A criminal prosecution can be "instituted":
(a). by a complaint as defined in S. 2(d) of the Criminal P. C. I CriL.J 957 (958) (Lah);
(b) by moving the Court by petition under the provisions of the Criminal P. C. which may, not
amount to complaint as so defined e.g., by a petition under S. 107 of the Criminal P. C.
A IR 1949 Lah28; '
Sec. 211 . Penal Code 575

(c) by, a police report to the Court (1942) 43 CriLJ 775;

(d) by making a false charge of a cognizable offence to the police AIR 1964 SC 1773.
(4) Where the Magistrate has no jurisdiction to take cognizance of the complaint or petition or
report made to him' it cannot be said that there is any institution of criminal proceeding before him.
(1909) 9 CILJ 77. -
(5) The following do not constitute the institution of criminal proceedings:
(a) Merely giving evidence in a case. A IR 1936 Lah 828(829):37 Cr1LJ 1043.
(b) A mere statement of facts Or communication of suspicion. AlE 1963 Ker 152.
(c) Charge not made to Magistrate or police empowered to take cognizance or investigate it. AIR
1944 Mad 391.
7. "Institutes or causes to be instituted".—(1) Where A in collusion with B institutes a
criminal proceeding in a Court: B may be said to cause the proceeding to be instituted though he was
not a party to the proceeding and may be proceeded against under this section. A IR 1930 Cal 671.
.8. "Or falsely charges"—(l)The expression "falsely charges" in this section means "falsely
accuses". AIR 1959 Cal 293. ..•. . .
(2) Accused will not be gUilty under this section unless the "false charge" which he is alleged to
have made is proved to have been willfully false. Pact that the accused fails to prove the charge made
by him does, not necessarily show that it was false or was wilfully and maliciously made. A IR 1914.
Cal 349. . , . .. . . .
• (3) The false charge must be made, not to any person, , but to a person who is empowered to
investigate the charge and get the offender punished. AIR 1964 SC 1773. .
(4) Where a false charge was made to a village Magistrate who had no power to investigate it and
he passed on the charge (as he was bound to do) to a person who had the power to investigate it, it was
held that this. section applied. (1909) 9 CrILJ 170 (FB) (Mad). ' •:
(5) Where a charge was made to the police at M who had no power to investigate it but was
repeated to the police at S who had such power it was held that this section was not inapplicable. A IR
1936 Pat 358.
(6) It is not necessary that the false charge must be one which would give rise to a criminal
proce eding. Where X applied to the Court to take contempt proceedings against Y for beach of an
injunction order of the Court and made false charges against Y in the petition, it was held that,
assuming that the proceedings for. contempt are not "criminal proceedings" within the meaning of the
section, the section would still apply. AIR 1964 SC 1773.
(7) It is not necessary that the false charge must be, of an offence under the Penal Code. A false
charge against person of having committed: an' offence under 'a special or local law is also within this
section. AIR 1964 SC 1773.
(8) A mere report of facts or information given is not a 'charge' though such report or information
expresses a suspicion against a person'. AIR 1950 Nag 20.
(9) Identification of accused at test parades does not amount to a "false charge" within this section,
as such identification is not substantive evidence and it can only be used as corroborative of the
statement in Court. AIR 1973 SC 2190. ' •.
(10) If a person specifically complains against another that he has committed a crime and does so,
falsely, he would be guilty of making a false chàrge. A IR 1942 Oudh 100..
576 Penal Code Sec. 211

(11) Answers given to question by the police under Ss. 161 and 162 of.the Criminal Procedure
Code cannot constitute "false charges" within the meaning of this section. A IR 1932 Mad 24.
(12) A false statement made to the police praying for the protection of the petitioner from
harassment and oppression is not a false charge within this section. A IR 1937 LOu 624.
(13) In order to constitute a charge, it is necessary that the object and intention of the maker of the
charge must be to set the criminal law in motion against the person charged.. A IR 1973 SC 2190.
(14) Where a false charge is made to the police the fact that the statement was not reduced to
writing under S. 154, Criminal P. C., does not prevent the statement from being a false charge within
the meaning of this section. A IR 1936 Mad 160. -
(15) Where a charge is partly true and partly false the proper test is whether the charge is
substantially true or false, i.e., whether the main charge is false and what is true is a mere fringe of the
complaint. A IR 1963 Ker 152.
• 9. "Against that person".—(l) The intention to cause injury must be with referenée to a
particular person. A person.making a report to the police about the theft of his property without naming
or indicating any particular person cannot be proceeded against under this sectioneven if the report is
false. A IR 1941 Cal 289.
- - (2)Where A filed a report before the police that his son was kidnapped by someone, not specified,
it was held that this section did not apply. A IR 1953 A ssam 204.
(3) A telegram that a dacoity had taken place without mentioning names is not an institution of
false charge within S. 211. A IR 1915 Mad 312.
10. "With having -committed an offence".—(1) To tell the police during an investigation that a
person is a bad character is not making a charge of an offence. 1888 Pun Re No. 26 P. 47 (DB).
(2) The refusal to give a stamped receipt for money paid was not an "offence and making a false
charge against a person that he refused to give a stamped receipt was not a false charge of any "offence"
and this section does not apply. (1862-63) 1 Born I-ICR 92. .
II. Knowledge.—(l) It is essential that, in order that the section may apply, the accused should
have acted with guilty knowledge or in other words "knowing that there is no just or lawful ground"
for such proceeding or charge. In the absence of such knowledge, the act will not amount to an offence
under this section. A IR 1925 Lah 325. .
(2) It is for the prosecution to prove that the accused knew that there was no just or lawful cause for
the charge. A IR 1952 Lah 3.5.
(3) Unless it could be proved that the accused actually knew that there was no just or lawful
ground for the charge, he is not guilty under this sect 'ion and that it is not enough to show that he
acted in bad faith or without due care and caution, or acted maliciously or that he had no sufficient
reason to believe or did not believe the charge to be true, though all these may be relevant evidence
more or less cogent to prove such knowledge. A IR 1939 Pat 178. -
(4) If the complaint is in-its generality; bona fide, the fact that one accused person had been -
wrongly identified cannot be regarded as a ground for instituting a prosecution under this section. A IR
1939 Pat 178.
- - (5) If the allegations in the charge are substantially true and there is no mention of any particular
section, a conviction under this section could not be sustained: (1937) 20 Nag Li 92.
Sec. 211 Penal Code 577

• (6) Guilty knowledge is most difficult to prove. But that it should be proved substantially by the
prosecution is absolutely essential. (1867) 8 SuthWR (CR) 87. -
12. "Just or lawful ground."—(I) It is an essen'tial element Of the offence under this section that
the false charge should have been made without just or lawful ground. (1882) 15 MysLR No. 303.
(2) To say that a complaint was not proved and had no basis on the evidence produced is not the
same thing as saying that the complaint was false or that it was made with knowledge that there was
no just or lawful cause or with intent to cause injury. AIR 1955 MadhBha 42.
(3) The person who was alleged to have given the information must be produced and it must be
shown what the information given. Another way is to show that no person of ordinary prudence would,
on the facts stated in the report, make such a charge. AIR 1953 Raj 115.
13. False charge against two or more persons.—(l) Where a false charge is made against two or
more persons, only one offence is committed and not two in spite of the fact that the charge was made
against two or more persons. AIR 1934 Rang 21.
14. Institution . of criminal proceiIing or false charge must have been made in
Bangladesh.—(l) The institution of criminal proceedings or the false charge must have been made in
Bangladesh where the Code is in force and not in a foreign territory. Where criminal proceedings were
instituted and false charge made before a Court it was held that S. 211 did not apply. A IR 1924
Born 51.
15. This section and.Sectioñ 47 of the District Police Act, 1859.—(l) The word charge as used
in this section has a different meaning form the meaning of the same word as ued in the District Police
Act. AIR 1953 Mad 507. .
16. This section and Section 195.—(1) X burnt his own house and falsely charged Y with
having committed an offence under S. 436 of the Code. It was held that the firing of the house was a
minor act on the part of X, subordinate tothe major act of making a false charge, as the burning of the
house was manifestly intended to be used as evidence of the said false charge and that X should be
convicted under this section and not under S. 195 of the Code..(1867) 8 SuthW R (CR) 65,
17. This S. and Section 82.—(l) It is an essential ingredient of the offence under S. 182 that the
accused should have given information which he knew or believed to be false: it is not sufficient that he
had reason to believe the information to be false. This section, on .the other hand, requires that the false
charge should have been made, knowing that there was no just or lawful ground for the charge. it is not
necessary that heshouldhave known that the charge was false..AIR 1925 Sind 184.
(2) The essence of the offence under S. 182 is not so much the falsity of the information as the
contempt of the lawful authority of public servants. The essence of the offence of making a false charge
under this section is the falsity of the charge. AIR 1925 Mad 400.
(3) The provisions of the Criminal Procedure Code, Section 195, requiring the complaint of the
Court as a condition precedent for an offence (committed in or in relation to the proceedings before such
Court) being taken coginzance of cannot be evaded by treating the offence as some other offence in
regard to which the above provisions may not apply. AIR 1966 SC 1775. .
(4) Where the accused first lodges a first information with the police and follows it up with a
complaint containing the same information before a Magistrate, the information cannot be prosecuted
00 for an offence under S. 182 unless the complaint to the Magistrate is found to be false and the
Magistrate files a complaint in writing about an offence under this section. AIR 1969 SC 355.
578 Penal Code Sec. 211
(5).. Where the accused made a false report to the. police and a similar complaint subsequently to the
Magistrate, the police can institute proceedings under S. 182 with reference to the false report, and
where either section is applicable at the instance Of either officer, Magistrate or police officer, the
discretion or power of one or the other to proceed is not limited in any way whatever by the discretion
vested in the other. AIR 1928 All 342.
(6) Where a charge might have been made against the accused under S. 182 or S. 211, and the
charge was launched under the provision which requires sanction of a particular authority but which has
been refused, it would be contrary to public policy to hold that it is open to the complainant to alter
his election, shift his ground and start a fresh charge on the alternative section which does not require.
such sanction. AIR 1922 All 502. . . . ..
(7) Where the matter falls under S. 182, it is the public servant concerned that must move in the
matter, and if he does not do , so, the Court has no authority suo moW to do so. AIR 1925 Mad 400.
(8) Sanction of the Magistrate is required for a complaint under S. 182 or S. 211 but not for one
under S.. 182, P.C. and if police officer filesacomplaint under S. 182 it can be sustained. AIR
1956 Hyd 25. . .. .
(9) Woman demading investigation and punishment of Sub-Inspector who is alleged to have
raped her—Sub-Inspector not found guilty of charge—Complaint by Sub-Inspector against woman for
false charge—Held, woman was guilty of offence under S. 211 and not under S. 182 and consequently
complaint of District Superintendent of Police before whom false charge was made was not necessary.
AIR 1935 Nag 69.. .
18. Complaint by Court—S. 195(1)(b), Criminal P.C.—(l) Where an offence under this section
is alleged to have been committed in or in relation to any proceedings in Court X--
(a) Court X cannot itself try the accused for that offence. AIR 1926 Pat 368 (368).
(b) No other Court can try the accused for that offence except on a complaint made by Court X.
A IR 1979 SC 777. •. .. .
(2) Offence under S. 211 in relation to proceeding in Court—Cognizance on private complaint is
barred under S. 195(1)(b), Criminal P C. 1984 CriL.J4NOC',) 34 (Mad).
(3) Where an offence cannot be said to be committed in or in relation to any proceedings in Court
• no complaint by a Court is necessary for the prosecution of the accused under this section. AIR 1967
• SC 528. . .
(4) Where a false charge is laid before the police which does not lead to proceedings in Court no
complaint under S. 195(1)(b) is necessary or can be given for the prosecution of the accused under this
section. A IR 1941 Mad 579. .
• (5) Where the accused makes a false charge to the police and also makes a complaint to the Court
which is found to be false, then a complaint by the Court would be a pre-requisite for a prosecution
under this section. 4ll 1960 Raj 168.
• (6) Doing declaration—Accusation contained in —Made to a Magistrate—Does not amount to
complaint. A IR 1930 Pat 550.
(7) Application by complainant asking for judicial enquiry of the charge made by him which the
police had reported to be false is a complaint. AIR 1919 Pat 530.
(8) A successor-in-office of a Magistrate can give a complaint under S. 195(1)(b), Criminal P. C.
in respect of an offence under this section committed in or in relation to proceedings before his
predecessor-in-office. AIR 1968 SC 1422.
Sec. 211 Penal Code 579
(9) Where the accused before a Bench of Magistrate, was discharged by two Magistrates, but the
complaint under S. 195(1 )(b) of the Criminal Procedure Code in respect of an offence under this section
was made by three Magistrate it was held that the defect, if any, was only a technical defect and the
High Court would not interfere with the conviction in revision. A IR 1933 Oudh 430.'
(10) In a case where the complaint by the court under S. 195 (1). (b) of the Criminal P. C. is
necessary, the Court should examine the person who made the false charge, give him an opportunity of
being heard, and then prefer the complaint under S. 195 (1) (b), Criminal P. C. AIR 1935 All 745.
(11) The proceedings contemplated by Section 196 (1) (b), Criminal P. C. need not be in
existence on the date of the commission of offence under S. 211, Penal Code. The fact that the
proceedings had concluded would be immaterial. 1974 Cr:LJ 945.
(. 12) Mere dismissal of complaint does not justify a Courtin , prosecuting the complainant under S.
21 t. AIR 1927 All 107.
(13) Where there- are split opinions of two different tribunals it may be. taken as a normally safe
guide to suggest that definite expression as to the malice of either party are probably. somewhat
undesirable for a purpose to institute proceedings for malicious prosecution. A IR 1922 Pat 160
(14) Court which acquitted the petitioner on the entire proceedings filed by the respondent, not
mentioning or observing anything or granting permission to the petitioner to institute prOceedings
against the respondent under Section 211, P.C. complaint by petitioner under S. 211 is not
maintainable. 1981 MadLW (Cr,) 51.
(15) Complaint's statement nor recovered—Held, the order of acquittal did not call for any
interference and the order initiating compensation recovery proceedings under Sec. 211, P.C. was liable
to be set aside. 1984 Raj CriC 45..
(16) Where one Court finds charge made by the accused to . be true and another Court finds it to be
false it is not a . case for exercising the discretion in favour of making a complaint for an offence under
this section. A IR 1922 Pat 160.
(17) A complaint given by a Court for an offence under S. 193 of the Code cannot be availed to
support a prosecution for an offence under this section. .AIR. 1919 Pat 416
(18) An objection as to the want of complaint should not be reserved for consideration till the
entire evidence is recorded but must be disposed of as a preliminary point. AIR 1954 Mad 561.
(19) Where a criminal case is compromised before the full evidence of the complaint is given it is
not proper to direct a prosecution under this section. AIR 1924 Pat 138. -
(20) T made a complaint to the police against P for certain offences. A warrant of arrest having
been issued against P, he surrendered before the Magistrate who released him on bail. The police after
investigation, submitted the report indicating the complaint against P as baseless and false; thereupon
the Magistrate discharged P. Held, that the release Of P on bail and his subsequent discharge were
proceedings before a court and had resulted directly from the complaint filed .by T with the police and
that for filing a complaint against T for making false charge under S. 211, a complaint by the concerned
Magistrate in accordance with S, 195(1) (b) would be necessary. AIR 1979 SC 777.
(2 1) A complaint in writing of the Court before which the offence is committed, or of some other
Court to which such Court is subordinate is required for prosecution under section 195, CrPC. The
Court must make a complaint and cannot directly order prosecution. A Court should not make a
complaint where there are not sufficient materials before it to show that there is a prima facie case
580 Penal Code Sec. 211

against the accused. The mere fact that the complaint was dismissed by a .Magistrate summarily under
section 203, CrPC will not throw the burden on the complainant, to prove that the complaint was a
reasonable and honest one and justify a complaint by the Court (27 CrLJ 1345).
19. Complaint under this section against public servant.—(l) Cognizance of complaint under
this section cannot be taken against a person for action taken by him as a public servant without the
sanction of local Government: A IR 1936 Rang 242.
20. Abetment of offence under the section.—(l) W1'iereA instigated Bto make a false charge
against C, of committing an offence but he was convicted of main offence under this section but the
sentence awarded was sustainable under S. 211/109 of the Code, it was held that in the absence of any
prejudice the conviction need not be . altered to one for abetment. (1903)7 C'aIW N 56
(2) An act done subsequent to the commission of the offence such as giving evidence in support of
the false charge is not an abetment of the offence under this section and cannot be punished as such.
(1872) 18 $uthW R 28., '•
21. Compounding of original offence.—(1) A made a false charge to the police that he herd been
wrongfully confmed by B (S. 347). The police reported the charge as false and A was prosecuted for an
offence under S. 211. While so being prosecuted A reported to the Court that he had compounded the
original* offfence with B, Held that the compounding was not a conclusive answer to the charge under
S. 211. (1885) 1I,ILR Cal 79.
22. Court making complaint under section 195 of the Criminal P.C. if can order
compensation under S. 250, Criminal P. C.—(l) A Magistrate can make a complaint under S. 195,
Criminal P. C. in respect of an offence under this section, and also grant compensation under S. 250,
Criminal P.C. to the person falsely charged but before taking action under S. 25 .0, Criminal P. C. the
Magistrate must come to a finding of his own that the case is false and further that it is frivolous or
vexatious. (1913) 14 CriL.J 75. .
(2) If the false charge is of such a nature that a prosecution is necessary on grounds of public policy
it may well be that a Magistrate would exercise discretion wrongly if instead of sanctioning a
prosecution under S. 211, Penal Code he awarded compensation. If the false charge is one which does
not render it necessary, on grounds of public policy that a prosecution should be sanctioned a
Magistrate who makes an order for compensation cannot be said to exercise his discretion wrongly.
(1904) ILR 27 Mad 59.
(3) Ordinary compensation under S. 250 without directing prosecution under , S. 211 was held
having regard to the facts as being a wrong exercise of discretion. (1902) ILR 29 Cal 479.
23. Complaint under this section—Trial for offence under Section 500.—(1) This section
will apply only—where the false charge is made to a .person who has power to investigate the charge.
Where a false charge against a person is made to other person it may fall under S. 499 of the Code, if it
amounts to defamation as defined by that section. A IR 1964 SC 1773.
(2) Where though a complaint purports to be one for an offence under this section, if the facts stated
in the complaint disclose only an offence under S. 500 of the Code., the Magistrate will be at liberty, to
proceed against the accused for an offence under S. 500. AIR 1925 Lah 631.
(3) The dismissal of a complaint for an offence under this section is no bar , to the filing of a.
complaint under S. 500 of the Code on the same facts. A IR 1934 Rang 40.
24. Opportunity to accused of being heard before prosecution.—(1 .) Where A makes
'complaint against B of having committed an offence under this section it should be disposed of
Sec. 211 Penal Code 581
according to law like any other complaint. B is not entitled to be first given an opportunity of proving
the truth of the charge he had made. A IR 1942 Oudh 100.
(2) Where A files a complaint against B before a Magistrate. of havingeommitted an offence under
the Code, the complainant must be heard, giving A an Opportunity of adducing evidence in support of
his case, and disposed of, before the Court can order the prosecutioli of A for an offence under this
section. A IR 1939 Sind 78.
(3) Although the complaint made by a person must be inquired into and disposed of before the
complainant is prosecuted under S. 211, there is no provision of law requiring the court to .order the
person to show cause why he should not be so prosecuted. A ll? 191.9 Cal 433.
25. Burden of proof.—(l) The burden of proof, in a trial for an offence under this section, is on
the prosecution to prove that the act of the accused satisfied all the essential elements of the offence
under this section. A IR 1929 Mad 496
(2) The prisoner being put on his trial as for a criminal offence it is for the prosecution to make
out a distinct case against him, not for the prisoner in the first instance to justify himself, and show
that he had just or lawful ground for his charge. (1939) 20 Nag LJ 92,
26. Jurisdiction^ ( 1) Where a Magistrate not empowered to take cognizance of an offence, takes
cognizance of it, the complainant cannot be prosecuted for an offence under this section for giving a false
complaint, even though the Magistrate .took. cognizance of the complaint in good faith. A IR 1930
Pat 550.
(2) Where a false charge was made by the accused to the l:G. of Police at Madras by letter posted
at Kumbakonam it was held that the offence of making a false charge must be taken to be completed at
Madras, where the letter was received, and that the Kumbakonam Magistrate's Court had no
jurisdiction to try the accused for an offence under Section 211 or for an attempt to commit that offence.
A IR 1948 Mad 292.
27. Delay in filing complaint under this section.—(l)Great delay in filing the complaint under
Section 211 should not be tolerated and such delay is a sufficiently good reason for refusing to proceed
with the complaint. It is not in the public interest that persons should be allowed to come forward
after such delay and to require the Court to enquire into the matter. A IR 1935, Raig 485.
28. Procedure.—(l) Where a false charge is made against several persons, distinct offences are
committed against each of them and the accused may be separately proceeded against in respect of each
of such offences. A IR l9I8 Low Bur 7.
(2) Where to persons A and B make similar false charges separately on different dates against the
same persons in respect of the same act , A and B ought not to be tried together but should be charged
separately. A IR 1920 Cal 927.
(3) A person cannot be tried separately for offences under Section 182 and Section 211 where the
charge in respect of either section is in respect of the same offence of giving false information or lodging
a false charge or complaint. A IR 1916 Upp Bur 18. .
(4) The offence under this section being non-cognizable one a prosecution for the offence cannot be
started by the police of theit own accord. A IR 7925 Mad 672. .
(5) Not cognizable_-Warran.t_Bajlable_o compoundable—Triable by any Magistrate if the
offence made with intent to injure. If the offence is punishable with imprisonment for seven years or
upwards and if the offence chargel be capital or imprisonment for life—Metropolitan Magistrate or
Magistrate of the first class.
82 Penal Code Sec. 2l

'29. Charge.—(1) It is desirable to mention in the charge the place of the commission of the
offence but the non-mention of it will not render the proceedings invalid in the absence of prejudice
caused to the accused. A IR 1936 Pat 358.
(2) The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows;
That you, on or about the—day of—at—with intent to cause injury to one—instituted criminal
proceedings before—charging the said—with having committed an offence of—(or falsely charged
said—before—with having committed an offence to wit) knowing at the time that there was no just or
lawful ground for such proceeding or charge against the said—and that you thereby committed an
offence punishable under section 211 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
30.Punishment;—( I) Person convicted under the second part of the section cannot be sentenced•
merely to a fine, but must b given imprisonment with or without fine. (1862-63)IBHCR 34.
(2) If a false charge does not amount to an institution of a criminal proceeding the accused can be
punished only under the first part of the section with imprisonment which may extend to 2 years or
with fine or with both. (1883) ILR 5.411598.
(3) In order that a case may fall under the second paragraph of this section, if the accused is charged
with the knowledge that there was no ji.rst or lawful ground for doing so. It is further necessary that the
criminal prosecution must have been for an offence punishable with the punishment mentioned in that
paragraph and for the purpose, that the real nature of the complaint should be looked at. (1885) 8
MysLR No. 329, P. 558.
(4) The age of the accused is a consideration in awarding the punishment of fine. Where
imprisonment is not awarded on the ground of the old age of the accused, the accused must be fined in
such a way that he would suffer as much as if he had been a young man. AIR 1917 Mad 667.
31. Practice.—Evidence—Prove: (1) That the accused instituted or caused to be instituted
criminal proceedings. Or That he made a charge of an offence.
(2) That there were just or lawful grounds for such proceedings; Or That such charge was false.
(3) That the accused then knew such criminal proceedings or charge to be without just or lawful
grounds.
(4) That he did as above with intent to cause injury to the person in question.

Section 212
212. Harbouring offender.—Whenever an offence has been committed, whoever
harbours or conceals a person whom he knows or has reason to believe to be the
offender, with the intention of screening him from legal punishment,
If a capital offence.—shall, if the offence is punishable with death, be punished
with imprisonment of either description for a term which may extend to five years,
and shall also be liable to fine;
If punishable with 4 [imprisonment] for life or with imprisonment.—and, if
the offence is punishable with 4[imprisonment] for life or with imprisonment which
See. 212 Penal Code 583

may extend to ten years, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine;
and, if the offence is punishable with imprisonment which may extend to one year,
and not to ten years, shall be punished with imprisonment of the description provided
for the .offence for a term which may extend to one-fourth part of the longest term of
imprisonment provided for the offence, or with fine, or with both.
9 ["Offence" in this section includes any act committed at any place out of
8[Bangladesh], which, if committed in 8.[Bangl4esh], would be punishable under any.
of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398,
399,402,435,436 ' 449, 450, 457, 458, 459 and 460; and every such act shall, for the
purposes of this section, be deemed to be punishable as if .the accused person had
been guilty of it in 8[Bangladesh].J
Exception.-This provision shall not extend to any case in which the harbour or•
concealment is by the husband or wife of the offender.
Illustration
A , knowing that B has committed deco ity, knowingly conceals B in order to screen
him from legal punishment. Here, as B is liable to 4[imprisonment] for life, A is liable to
imprisonment of either description for a term not. exceeding three years, and is also liable
to fine.
Cases and Materials
1. Scope.—(I) No prosecution case be launched under this section for screening or harbouring an
accused, where there is no evidence to bring home the knowledge of the accused that the person
harboured was an offender within the meaning of this section.
(2) An offence under this section presupposes that some other offence has been committed by a
person whom the accused harbours or conceals with the intention of screening him from legal
punishment. A IR 1930 A ll 33.
(3) Harbouring or concealing the offender is a necessary ingredient of the offence under this section.
1867 Pun Re Cr No. 21, P. 40.
(4) The word 'harbour' includes supplying a person with shelter, food, drink, money, clothes,
arms, ammunition or means of conveyance or assisting a person in any way to evade apprehension.
Mere knowledge of the whereabouts of an offender does not amount to 'harbouring' him unless the
alleged 'harbourer' is guilty of any of the above acts. A IR 1935 Cal 550.
(5) A person can be supposed to "know" where there is direct appeal to his senses. Under
Section 26 a person can be said to have "reason to believe" a thing only when he has sufficient cause to
believe such thing and not otherwise. A IR 1930 A ll 33.
(6) Where there is neither affirmative nor circumstantial evidence to bring home to the accused the
fact that he "knew or had reason to believe" that the person whom he was "harbouring" was an
"offender", his conviction under S. 212 cannot be sustained. A IR 1930 A ll 33.

9.
Ins, by the Indian Criminal Law Amendment Act, 1894 (Act Ill of 1894), s. 7.
584 Penal Code Sec. 212

(7) Where certain persons belonging to a criminal tribe were found hiding themselves in accused's
premise soon after the occurrence of a dacoity in the neighbourhood and the accused, Ion being
questioned by the .chaukidar and other villagers who came there and arrested suspects, as to how they
came to be there, kept silent and later, gave out the false, story that it was he who had arrested them, it
was held that the evidence was not sufficient to convict the accused of an offence under this section, of
having harboured the persons knowing or having reason to believe that they were the offenders
concerned in the dacoity in question. AIR 1938 Pat 358.
(8) The section only applies to the harbouring of an offender i. e., one who has actually committed
an offence. The section has no application to the harbouring of persons who are not offenders but who
abscond merely for the purpose of avoiding or delaying the judicial inquiry into n offence. A IR
1946 Pat 74.
(9) For an offence under this section, it is necessary to prove that the accused knew or had reason
to believe that an offence had been committed by the person harboured. Merely to know that he was a
proclaimed offender is not enough. A IR 1946 Pat 74.
(10) A person cannot he considered as harbouring a thief unless his intention was to screen him
from legal punishment and where the accused's act is only motivated by feelings of humanity (as when
he gives food and surgical aid to a-wounded person) and he has no intention of screening the offender
form legal punishment he cannot be considered as "harbouring" him within the meaning of Section
110. (1916)11 CrILJ49O(UppBur).
(ii) No prosecution can be launched under this section until the offender has been convicted of the
offence he is alleged to have committed. A IR 1951 Tray-Co 90.
(12) A trial for the offence under this section should be stayed till the trial ofthe offender alleged to
have been harboured by the accused has been concluded. 1937 Mad WN 21.
(13) The punishment for the harbourer is made to conform to the gravity of the offence committed
by the principal offender. The more serious the offence, the greater is the disfavour shown by-law to the
offender being harboured or screened from legal punishment. A IR 1958 A ll 214.
(14) Offence under Section 212 being bailable remand of accused to police custody is illegal and
the accused is entitled to bail under Section 167(3) of Criminal P.C. 1982 Chand Cri C 443.
2. Practice.— Evidence— Prove: ( 1)Thatan offence has been committed by the person harboured.
(2) That such offence is punishable with (a) death, or (b) imprisonment for life or imprisonment
not exceeding ten years, or (c) imprisonment form one to ten years.
(3) That the accused has harboured or concealed the offender.
(4) That the accused knew him to be an offender, or had reason to believe him to be so.
(5) That the accused thereby intended to screen such offender from legal punishment.
3. Procedu re.—Cognizable---Warrant----Bailable—Not. compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class. If the offence is punishable with imprisonment for one year
and not for ten years—Metropolitan Magistrate or Magistrate of the first class or Court by which the
offence is triable.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day--of-----the offence of (specify it) was committed at (specify the
place) by X Y , and that you on or about the—day—of--at—harboured or concealed the said XY
Sec. 213 Penal Code 585

knowing(or having reason to believe) at the time of the said harbouring or concealing that the said XY
had committed the said offence—and that you thereby committed an offence punishable under section
212 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 213
213. Taking gift, etc., tQ screen an offender from punishment.—Whoever
accepts or attempts toobtain, or agrees to accept, any gratification for himself or any
other person, or any restitution of property to himself or any other person, in
consideration of his concealing an offence or of his screening any person from legal
punishment for any offence, or of his not proceeding against any person for the
purpose of bringing-him to legal punishment;.
If a capital offence.—shall if the offence is punishable with death, be punished
with' imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fme; .
If punishable with 4Iim.prisonmentj for life, or with imprisonment.—and, if
the offence is punishable with 4 [imprisonment] for life, or with imprisonment which
may extend to ten years, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine;
and, if the offence is punishable. with imprisonment not extending to ten years,
shall bepunished with imprisonment of the description provided for the offence for a
term which may extend to one-fourth part of the longest term Of . imprisonment
provided for the offence, or with fine, or with both.
Cases and Materials
- 1. Scope.—(1) This section is applicable when the person accepting illegal gratification is not a
public servant (A IR 1947 Cal 29). The compounding of a crime for stifling criminal prosecution is
punishable under this section. This section will apply when persons really guilty are screened (26
CrLf 346). It is the duty of every State to punish the criminal. No individual has right to compound
any crime because he himself is injured and no one else. This section does not apply where the
compounding of an offerize is legal.
(2) Unlike S. 161 applicbility of this section is not confined to public servants. A IR 1947
Cal 29. .
(3) This section may be compared with S. 217 in this respect. Like S. 161, S. 217 also applies
only to public servants and the offence under S. 217 can be committed only by a public servant as
such. AIR 1947 Cal 29. . .
(4) Before a person can be convicted under this. section itis essential that the concealed offence (or
the offence to which the screening etc.,, relates) should first be proved to have been committed. A mere
suspicion of the offence having been committed would not suffice. (1886) ILR 23 Cal 420.
(5) The words 'concealing' or 'screening' presuppose the actual commission of the offence. (1913)
14 CriLJ
586 Penal Code Sec. 213

(6) The expression 'screening any person from legal punishment' has the same meaning as the
expression 'saving any person , from legal punishment' used in Ss. 217 and 218, Penal Code. AIR 1949
Born 405.
(7) Actual concealment of the offence of screening of the offender as well as acceptance of
gratification or restitution as consideration is necessary to complete this offence. AIR 1925 Cal 8.5.
(8) Where the accused is the most material witness for the prosecution and the chances of
conviction in the legal proceedings from which he desires to screen a person are remote if he makes
himself scarce, the abstention on the part of the accused from giving evidence or his keeping away from
the Court would, amount to screening the offender. AIR 1949 Barn 405.
(9) Where a person is arrested for a certain offence and then, he is set at liberty by a public servant
(having authority in regard to the matter) on receipt of a certain sum as a bribe the public servant is
guilty of an offence under this section. AIR 1947 Cal 29
(10) The word 'consideration' is wide enough to cover the case of something having been done or
achieved in the past and also the case of something to be done in the future. AIR 1949 Born 405.
(11) Offences under special laws like the Forest Act may be compoundable by virtue of the
provisions of such Acts. (1912) 13 CriLJ 574 (Low Bur).
(12) Where the accused was convicted under this section for screening a cattle-lifter from
punishment and was sentenced to six months' rigorous imprisonment, the Sessions Judge reduced the
sentence in appeal to one month and a.few days i.e.,Tor period already undergone. It was held that
under the circumstances of the case, the appellate sentence was not inadequate. (1905) 2 Cr/Li 232.
(13) Where a public servant is prosecuted under this section for having accepted an illegal
gratification for doing. any ...the things mentioned therein, (e.g. not proceeding against an arrested
person), his act is not done in his official capacity and hence no sanction is necessary for his
prosecution under S. 197 of the Criminal P.C. AIR 1947 Cal 29. .
Practice.— Evjdence— Prove: ( I) That the commission of the offence is concealed.
(2) That the accused (a) concealed such offence, or (b) screened the offender from legal punishment,
or (c) omitted to proceed against such offender so as to bring him to punishment.
(3) That the accused accepted, or attempted to obtain, or agreed to accept the gratification or,
restitution, its described in the section.
(4) That the accused so accepted, etc. in consideration of such concealment, etc. as in (2).
3. Procedure— Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class, and if with imprisonment for less than ten years, triable by
Metropolitan Magistrate, Magistrate of the first class or Court by which the offence is friable.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—one XY, committed the offence punishable with—and
that you on or about the—day of—at—accepted or attempted to obtain or agreed to accept a certain
gratification to wit—(or certain property, to wit—) for yourself (or for) in consideration of your
concealing the said offence of—(or screening the said XY from legal punishment for the said offence, or
not proceeding against the said XY for purpose of bringing him to legal punishment) and that you
thereby committed an offence punishable under section 213 of the Penal Code and within my
cognizance. .
And I hereby direct that you be tried on tle said charge.
Sec. 214 Penal Code 587

Section 214
214. Offering gift or restoration of property in consideration of screening
offender.—Whoever gives or causes, or offers or agrees to give or cause, any
gratification to any person, or [to restore or cause]Sic the restoration of any property
to any person, in consideration of that person's concealing an offence, or of his
screening any person from legal punishment for any offence, or of his not proceeding
against any person for the purpose of bringing him to legal punishment;
If a capital offence.—shall, if the offence is punishable with death, be punished
with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine;
If punishable with 4 [imprisonment] for life, or with imprisonment—and, if
the offence is punishable with 4 [imprisonment] for life or with imprisonment which
may extend to ten years, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine;
and, if the offence is punishable with imprisonment not extending to ten years,
shall be punished with imprisonment of the description provided for the offence for a
term which may extend to one-fourth part of the longest term of imprisonment
provided for the offence, or with fine, or with both.
'°[Exception.— The provisions of sections 21.3 and 224 do not extend to any case
in which the offence may lawfully be compounded.]
Illustrations. — Rep, by the Code of Criminal Procedure, 1882 (X of 1882).
Cases and Materials
1. Scope.—(l) Section 213 dealt with the receiver of gift or presentation and this section punishes
the offer of the gifts. The motive in giving gratification is very material and that is to compromise an
offence which is not compoundable. .The offence is complete when as soon as the gratification so
offered. Compounding of offences other than falling under section 345, CrPC is illegal. A Court dealing
with, a charge under this section is not entitled to question the correctness of the decision of another
Court acquitting a person charged with having committed the offence which the person before it is
charged with having attempted to conceal (47 CrLf 817).
(2) The words 'concealing an offence' and screening 'any person from legal punishment for any
offence' appear to presuppose the actual commission of an offence, or the guilt of the person screened
from punishment. A IR 1918 Nag 181.
(3) The accused was separately tried and convicted for an offence under Defence Rules for exporting
goods without permit and also under this section for offering a gift to conceal the above offence. His
conviction for the offence under the Defence ROles was set aside and he was acquitted of that offence. It
was held that thereafter his conviction for the offence under this section could not stand and when he
applied for revision against such conviction, the Court of Revision was bound to set aside the
conviction. A IR 1946 Pal 101.

Sic. The, use of the words in square brackets "to restore or cause" is both syntactically as well as semantically incorrect:
Read "restores or causes" instead thereof —Chief Editor
10. Subs, by the Indian Penal Code Arndt. Act, 1882 (VIII of 1882), s. 6 for the original Exception.
588 Penal Code Sec. 215

(4) Accused acquitted of offence under S. 165A of Penal Code and Prevention of Corrupt Act—No
proof of misappropriating Government money—Held, accused not liable to conviction under S. 214
also. A IR 1981 SC 1735.
(5) The intention of the Legislature under this section is to discourage malpractices when offences
have really been committed and not to ensure general veracity on the part of the public in regard to
imaginary offences or offenders. (1913) 14 CrILJ4S3(454) (DB) (Born),
(6) The actual concealment or screening even though for a short time, is essential for conviction
under this section. A IR 1925 Cal 85.
(7) Where two of the accused offered gratification to a public servant in consideration of his not
proceeding against them and the other accused whose papers and books he had seized, made such offer
in consideration of his not bringing them to legal punishment, it was held that they committed offence
• under this section and not under Section 109/161 of the Code. 1881 Pun Re No 13, P. 15.
(8) Where consideration is given or offered under this section for concealment of an offence, the fact
that no particular person has been found to have committed the offence and the gratification is not in
consideration- of screening form punishment any particular person will not affect the question of the
guilt of the person who has paid or offered the gratification. (1809) 4 Mys CCR No. 189, P. 649.
• 2. Practice.— Evidence— Prove: ( 1)That the commission of the offence concealed.
: .(2) That the accused (a) concealed such offence; or (b) screened the offender from legal punishment;
or (c) omitted to proceed against such offender so as to bring him to punishment:
(3) That the accused gave or caused, or offered to give or cause the gratification, etc. as stated in
the section. -.
(4) That he so gave or caused, etc. in consideration of such concealment, etc.
3. Procedure.—Not cogn izable—Warrant—Bai lab le—N ot compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class, if with imprisonment for less than ten years,
Metropolitan Magistrate or Magistrate of the first class, or Court by which the offence is triable:
4. Charge.-.---The charge should run as follows:
- 1, (name and office of the Magistrate) hereby charge you (name of the accused). as follows:
That on or about the—day of—at—you gave or caused or offered to give a gratification, to wit—to
XY, in consideration of the said XY's concealing the offence of—under section—of—and which offence
is punishable with (or of his screening you or any person to wit—from legal punishment) for the said
offence of—(or of his not proceeding against you or any person to wit—for the purpose of brining you
or him to legal punishment) and thereby committed an offence under section 214 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 215
215. Taking gift to help to recover stolen property, etc.—Whoever takes, or
agrees Or consents to take, any gratification under pretence or on account of helping
any person torecover any moveable property , of which he shall have been deprived
by any offence punishable under this Code, shall, unless he uses all means in his
Sec. 215 Penal Code 589

power to cause the offender to be apprehened and convicted of the offence, be

punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Cases and Materials Synopsis
I. Scope of the section. 7. W hether the thief himself can be convicted
2. "Takes, or agrees or consents to take, any under this section.
gratificatIon". 8. A ttempt.
3. Knowledge of the criminal whether necessary; 9. Procedure.
4. "deprived by any offence' 10. Practice.
5. "Uses all means in his offence' 11. Charge.
6. Onus of proof that the accused used all means
within his power.
1. Scope.—(1) This section is primarily aimed at professional trackers and other person who
being usually in league with thieves or well aware of their proceedings obtain money, etc. for the
recovery of stolen property without making any effort to bring the offenders to justice. This section is
not intended to apply to the actual thief but to someone who being in league with the thief, receives
some gratification on account of helping the owner to recover the stolen property and at the same time
using all means in his power to cause the thief to be apprehended and convicted of the offence (15 CrLf
471, 26 CrLJ 1121). This section is not intended to punish a person who receives consideration
bonafide for helping the owner who lost his property by theft from recovering the same. There can be
no conviction under this section unless there is evidence that the loss of the moveable property was
through an offence committed under the Code (33 CrLf 709).
(2) Expression "unless he uses all the means in his power to cause the offender to be apprehended"
explained—Burden of proof on the accused. The expression "unless he uses all means in his power to
cause the offender to be apprehended" in section 215, indicates the intention of the legislature that the
accused will have to show that he used all means in his power to apprehend the offender. The burden
of proof in these circumstances of a case falling under section 215 of the Code is on the accused because
it is within his knowledge as to what he. did or did not do for apprehending the offender. Eusuf Haji
Vs. State (1965) 17 DLR 117.
(3) Complainant's bullock missing—Circumstances showing that it might have strayed—Section
not applicable. A IR 1940 Pat 548. .
(4) It is not an offence to take money from another in order to help him to find stolen property and
to convict the thief. In order that the act shouldcome within the scope of S. 215, there should be
evidence: (i) that property has been stolen; (ii) that the accused knew the criminal and (iii) that he has
failed to use all means in his power to cause the offender to be apprehended. A IR 1935 Sind 105.
(5) It is not an offence underthis section to take money from another in order to help him to find
stolen property, and to have the thief convicted. A IR 1935 Sind 105.
(6) The cycle of X was stolen by some one Y approached Xand told him that if he (X) gave him a
certain amount his cycle could be recovered. X paid Y a smaller sum which Y accepted but did nothing
to recover .the bicycle. The manner of Y's approach implied that he was to be asked no questions as to
the actual offender and no attempt was intended to be made for the apprehension or conviction of the
thief. It was held that the accused Y was guilty of an offence under this. section. AIR 1938
. Pat 590.
590 Penal Code Sec. 215

(7) Where it is doubtful whether the important ingredients of the offence are present the accused
should be given the benefit of doubt and acquitted. A IR 1935 Sind 105.
2. "Takes or agrees or consents to take any gratification".—( 1) Where accused offers to trace.
and recover for the complainant a certain movable property which he has lost, if he (the accused) is
paid a certain amount and on the complainant refusing to pay the amount demanded, the accused
does nothing further in the matter, the accused is not guilty of any offence underthis section. A IR
1940 Pat 548.
3. Knowledge of the criminal whether necessary.—(1) The accused need not have knowledge of
tht offender who deprived the owner by means of an offence, of movable property ,A IR 1938 A ll 440.
4. "Deprived by any offence"—(I)lt is one of the essential ingredients of the offence under this
section that an owner ought to have been deprived of his movable property by an offence punishable
under the Code. A conviction under this section cannot be sustained in the absence of evidence to show
that the loss of the movable property was by means of the commission of an offence punishable under
the Code. A IR 1940 Pat 548.
(2) Where cattle belonging to X stray away, X cannot be said to be 'deprived' of his possession of
such cattle and there is no presumption that an offence has been committed with respect of such cattle.
A IR 1941 Pat 138.
(3) The word 'deprive' must not be construed, narrowly in the sense of "taken out of the
possession of'. It would include not only a taking out of the procession of the owner, but also
preventing him form getting possession of it if he would have done so in the normal course of events.
Thus where A's bullock strays away and is tied up by somebody, A can be said to be 'deprived' of the
bullock. A IR 1938 A ll 440.
(4) Where the accused took the complainant who had lost his buffaloes to the jungle but without
pointing out to him the actual place where buffaloes were, himself went alone and returned with the.
buffaloes, it was held that it would not be inferred that some person had committed criminal
misappropriation in respect of them. A IR 1953 Madh Bha 191.
5. "Uses all means inhis power".—(l) To a large extent the conduct of the accused after he has
received the gratification determines his guilt or innocence. If, the person agreeing to take the
gratification or having taken the gratification has used all means in his power to bring about the
apprehension and conviction of the accused, then he does not commit the crime defined in this section.
A IR 1925 Cal 85. .
(2) Where it was found that the prisoner knew the thieves and assisted in endeavoring to purchase
the stolen property form the thieves, not intending to bring them to justice, it was held that the receipt
of money amounted to corrupt receiving of money. (1849) 18 LJMC 186.
(3) Where an accused knowing that a buffalo was stolen property demands gratification from
owner to help him recover the animal without making attempts to get the person who had stolen
or the person who has retaining it to be prosecuted and convicted, he is guilty under S. 215. 1977
A ll CriR 63.
6. Onus proof that the accused used all means within his power.—(1) It is not for the
prosecution to prove the negative that the accused did not use all means in his power to cause the
offender to be apprehended. It is for the defence to establish the positive fact that they did all in their
power to cause the offender to be apprehended. A IR 1947 A ll 225.
Sec. 2 '
Penal Code 591

7. Whether the thief himself can be convicted under this sectión.—(1) The person who has
committed the main offence can also be convicted under this section. AIR 1947 All 225.
(2) A person suspected of theft may, if the prosecution fails to prove the fact of theft by him be
convicted under this section. AIR 1938 Pat 570.
(3) An' actual thief or person suspéctd to be the thief can be convicted under this section. 1967
CriLJ 1248 (Raj).
8. Attempt.—(I) A proposal to the owner of the lost property to recover it on receipt of a certain
amount on condition that the thieves should not be prosecuted will amount to an attempt to commit
the offence under this section. AIR 1941 Rang 295.
9. Procedure.—(l) Where the accused who was sentenced to six months' RA. and fine under S.
215, but by the time case came to High Court theoffence was eight years old and accused had already
suffered I month's jail he was let off with imprisonment suffered but fine was maintained. 1977 All
CriR 63.
(2) It is only in exceptional circumstances that a more severe sentence should be passed for both
offences than would have been inflicted for the thefts alone. AIR 1941 Rang 340.
(3) Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan Magistrate or
Magistrate of the first class.
10. Practice.—Evidence—Prove: ( 1) That the owner ofthe movable property was deprived of it by
an offence punishable by the Code.
(2) That the taking of such gratification under the pretence of helping recovery of the property lost.
(3) That the accused took or agreed to take or consented to take some gratification.
(4) That the accused failed to use all means in his power to cause the apprehension and conviction
of the offender.
11.. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That ,X the owner of—movable property was deprived of it by offence namely—punishable by the
Code that on or about—at—took or agreed or consented to take some gratification, that you did so
under the pretence or on account of helping to recover the property deprived of, that you failed to use all
means in your power to cause the offender apprehended and convicted and that you have thereby .
committed an offence punishable under section 215 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 216
216. Harbouring offender who has escaped from custody or whose
apprehension has been ordered.—Whenever any person convicted of or charged
with an offence, being in lawful custody for that offence, escapes from such custody,
or whenever a public servant, in the exercise of the 'lawful powers of such public
servant, orders a certain person to be apprehended for an offence, whoever, knowing
of such escape or order for apprehension, harbours or conceals that person with the
intention of preventing him from being apprehended, shall be punished in the mariner
following, that is to say, .
592 Penal Code Sec. 216

If a capital offence.-if the offence for which the person was in custody or is
ordered to be apprehended is punishable with death, he shall be punished with
imprisonment of either description fora term which may extend to seven years, and
shall also be liable to fine;
if' punishable with 4 [imprisonment] for life, Or with imprisonment.—if the
offence is punishable with 4[imprisonment] for life, or imprisonment for ten years, he
shall be punished with imprisonment of: either description for a term which may
extend to three years, with or without fine;
and, if the offence is punishable with imprisonment which may extend to one year
and not to ten years, he shall be punished with imprisonment of the description
provided for the offence for a term which may extend to one-fourth part of the longest
term of the imprisonment provided for such offence, or with fine, or with both.
"["Offence" in this section includes also any act or omission of which a person is
alleged to have been guilty out of 8[Bangladesh] which, if he had been guilty of it in
8[Bangladesh], woild have been punishable as an offence, and for which he is, under
any law relating to extradition, or under the Fugitive Offenders Act, 1881, or
otherwise, liable to be apprehended or detained in custody in 8 [Bangladesh], and every
such act or omission shall, for the purposes of this section, be deemed to be
punishable as if the accused. person had been guilty of it in 8[Bangladesh].
Exception.— This provision does not extend to the case in which the harbour or
concealment is by the husband or wife of the person to be apprehended.
Cases and Materials
1. Scope.—(1) The purpose of section 216 is to penalise acts designed to obstruct or defeat the
course of justice, which requires that suspected persons should be arrested whether they may prove
eventually to be guilty or innocent and it is not necessary to show in a prosecution under section 216
that the offence in respect of which orders for their apprehension were issued was actually committed.
For a conviction under section 216 it must be shown: first, that there has been an order for the
apprehension of a certain person as being guilty of an offence; secondly, that knowledge by the accused
party of the order; thirdly, that the harbouring or concealing by the accused of a person with the
intention of preventing him from being apprehended (A IR 1944 PC 54). This section requires that a
definite order must have been made for his arrest by apublic servant in the exercise of his lawful power
as such public servant.
(2) It is not an essential ingredient of the offence under this section that the person harboured
should be found guilty. It is enough to show that the person harboured had escaped from lawful
custody or that an order had been issued for his apprehension for an offence. AIR 1928 Mad 1147.
(3) The fact that the person harboured is subsequently acquitted will not affect the guilt of the
person who has harbourëd. him. AIR 1928 Mad 447.
(4) In order to convict a person under this section, it must be shown that the warrant to arrest
alleged offender was a legal one. AIR 1928 Born 184. .

II. Ins, by the Indian Criminal Law Amendement Act. 1886 (Act X of 1886), s. 23.

Sec. 216 Penal Code 593
C,

(5) It is necessary that an order for apprehension should have been made a proclamation under
Section 82 of the Code of Criminal Procedure reciting that a warrant has been issued is neither legal.
evidence that a warrant has been issued nor is equivalent to notice of its contents to the public. AIR
1944 PC 54. .

(6) The mere fact that an absconder is found in the house of another is not sufficient to involve the
owner of the house of an offence under this section ,. It is the duty of the prosecution to prove that the
accused knew that the person harboured . is a proclaimed offender. AIR 1939 Lah 19.
(7) The issue of proclamation under Section 82, Criminal P. C. cannot establish that the accused
knew of the issue of the warrants. The distinction between "knowing" and "having reason to believe"
cannot be ignored. To read this section as if it contained the latter words would vitiate the judgment,
conviction and sentence. AIR 1944 PC 54.
(8) False information given by the accused after having been informed that the person harboured
was a proclaimed offender is sufficient to bring the accused within the purview of this section. AIR 1980
Lah 99.
(9) The words "in any way" meant to point to some method ejusdem generics with those specified.
in the earlier portion of the section, it was held that they did not include the assisting of an accused
person to escape by merely telling lies to the police as to his whereabouts. AIR 1924 All 676
(10)Helping the offender to escape or evade apprehension, by giving false information to the police
would be a form of"harbouring" and will be an offence under this section. AIR 1930 Lah 99.
(11) Where with the intention of assisting an offender wanted by the police, a person warns him of
the approach of the police and thereby helps him to escape arrest by the police, the person who so
warns the offender would be guilty under this section. AIR 1925 Oudh 423.
(12) Where the accused has helped another to evade apprehension he is guilty of the offence of
harbouring under this section. There is no time-limit for the duration of the offence, and it is
immaterial how long the evasion continues, the offence being complete as soon as the accused has
committed the act which amounts to the "harbouring." AIR 1923 Lah 223.
(13) Where there is no legal proof that the accused did any of the things that would amount to
"harbouring", he must be acquitted. AIR 1935 Rang 294.
(14)Mere knowledge of the whereabouts of an offender does not amount to harbouring him unless
the accused has done something to help the offender to evade apprehension. AIR 1935 Cal 550.
(15) The mere production by the father of his son, who was absconding on demand by the police
is not sufficient to prove that the father was "harbouring" the son. AIR 1935 Cal 550.
(1,6) Employing any method which gives time and opportunity to the offender to conceal himself
or escape would be assistance to the offender in evading apprehension. AIR 1918 Cal 826
(17) If a man from mere motive of humanity and without any intention of enabling the fugitive to
escape from justice, were to give food to a man who was starving, or surgical assistance to one, who
was wounded, even with a full knowledge of his character, he cannot be said to commit an offence.
under this section. AIR 1928 Born 184.
(18)No provision whatever is made under this section for the punishment of a harbourer where the
man harboured is wanted for an offence punishable with imprisonment of less than one year. AIR 1943
Oudh 51.
594 Penal Code Sec. 216A

(19) Offence under S. 216 being bailable remand of accused to police custody is illegal. 1982
Chand CriC 443.
2. Practice.— Evidence--Prove: ( 1) That the person in question has been convicted of, or charged
with, an offence.
(2) That such person was in lawful custody for the same.
(3) That such person escaped from such custody.
(4) That the accused knew of such escape.
(5) That he with knowledge harboured, or concealed such offender.
(6) That he did so, with, intent to prevent him from being apprehended.
(7) That the offence in question was punishable with (a) death , or (b) imprisonment for life or
imprisonment for ten years, or (c) with imprisonment for one to ten years.
3. Procedure.—Not cognizable—Warrant—Bai lab le—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That on or about the—day of—at—one XY was charged with or convicted of an offence under
section—by the Court of—(or one XY was ordered to be apprehended for an offence punishable under
section--by—a public servant in the execise of his lawful powers as such public servant) and that you
knowing of the escape of XY or knowing of the said—order for apprehension on the—or about—day
of—at—harboured or concealed XY with the intention of preventing him from being apprehended; and
that you thereby committed an offence punishable under section 216 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

Section 216A
12 [216A. Penalty for harbouring robbers or dacotis.—Whoever, knowing or
having reason to believe that any persons are about to commit or have recently
committed robbery or dacoity, harbours them or any of them, with the intention of
facilitating the commission of such robbery or dacoity, or of screening Them or any of
them from punishment, shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to fine.
Explanation. - For the purposes of this section it is immaterial whether the
robbery or dacoity is intended to be committed, or has been committed, within or
without 8[Bangladesh].
Exception.-T his provision does not extend to the case in which the harbour is by
the husband or wife of the offender.
12. Sections 216A and 216B were inserted by the Indian Criminal Law Amendment Act, 1894 (Act III of 1894), s.8.
Sec. 216A Penal Code 595

Cases and Materials

I. Scope.—(l) This section should be read along with sections 26; 52A, 390 and 391 of the Penal
Code. Section 212 is a general provision. But in case of robbery and dacoity this section must be
applied. To jOstif a conviction under this section both knowledge and intention are required. This
section requires that no one should harbour any person who know that a robbery or dacoity is about to
be committed or has been recently committed.
(2) In order that the section may apply it must be shown—
(a) that the persons in question were about to commit or had recently committed robbery. or
dacoity;
(b) that the accused knew or had "reason to believe" this;
(c) that the accused harboured all or any of such persons;
(d) that the accused.did so with the intention of—(i) facilitating thO commission of such robbery or
dacoity, or (ii) of screening them or any of them form punishment. 1958 MPLJ (Notes) 94.
(3) In order to attract the applicability of the section, it is not enough that a person should be
harbouring dacoitsin.geieral, but that the section renders it penal to harbour persons who intended to
commit a particular dacoity. A IR 1925 Sind 295.
(4) Merely telling an untruth respecting the whereabouts of the dacoits after the dacoity is
committed, is no offence under this section unless there is proof that such statement was made with the
intention of screening the dacoits from punishment. 1947 RangLR 38.
(5) Section '.110(c) of the Criminal P.C. provides for the taking of security for good behaviour from
persons who habitually protect or harbour thieves in general. This section provides for the punishment
of persons for harbouring particular persons; who are about to commit or have recently committed
robbery or dacoity. AIR 1923 682 (684)
(6) Where a person charged with the substantive offence of dacoity or robbery has been acquitted of
that offence, another person who is said to have intended to screen him from legal punishment in
respect of that offence, cannot be held guilty of harbouring the alleged offender under this section. AIR
1947 Mad 303. . .
(7) A person is not a dãcoit in respect of whom the Court is satisfied that his connection with the
gang is limited to certain acts, which in themselves do not amount to dacoity or abettor thereof, the
acts may be punishable under this section. (1910) 11 CriLJ 551 (Oudh).
(8) The burden of proof is on the prosecution to prove all the ingredients of the offence. 1958
MPLJ (Notes) 94.
2. Practice.—Evidence--'Prove: (1) That the persons in question were about to commit or had
recently committed robbery or dacoity.
(2) That the accused knew this. . .
(3) That the accused harboured them or some of them.
(4) That the accused did so with the intention of (a) facilitating the commission of such robbery or
dacoity, or (b) screening them or some of them from punishment.
3. Procedure.—Ccignizable—Warrant—Bailable-----Not compoundable—Triable , by Metropolitan
Magistrate or Magistrate of the first class.
596 Penal Code Sec. 2168-217

4. Charge-The charge should run as follows:

I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—knowing or having reason to believe that some persons,
namely X, Y , Z, were about to commit (or had recently committed) robbery or dacoity harboured him
or them (mention the robber. dacoity, etc.) with the intention of facilitating such robbery or dacoity or
(of screening him or them) from punishment and that you thereby committed an offence punishable
under section 216A of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 216B
216B. Definition of "harbour" in sections 212, 216 and 216A .— Omitted by the
Penal Code (A mendment) A ct, 1942 (V III of 1942), s. 3.]

Section 217
217. Public servant disobeying direction of law with intent to save person
from punishment or property from forfeiture.—Whoever, being a public servant,
knowingly disobeys any direction of the law as to the way in which he is to conduct
himself as such public servant, intending thereby to save, or knowing it to be likely
that he will thereby save, any person from legal punishment, or subject him to a less
punishment than that to which he is liable, or with intent to save, or knowing that he
is likely thereby to save, any property from forfeiture or any charge to which it is
liable by law, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
Cases and Materials
1. Scope.—(1) Sections 217 to 220 deal with disobedience by public servants in the cause of
discharge of their official duties. Section 217 deals with official partiality involving disobedience of
lawful directions. Section 217 makes dereliction of duty committed in the exercise of powers by public
servant punishable. This section makes punishable a certain dereliction of duty quite a part from the
.question as to whether any bribe is paid to induce such dereliction. The directions must be express,
positive, specific and not general directions in connection with an act (A IR 1947 Cal 29). It will be
sufficient if the accused had knowledge that by this act an offender could be saved from legal
punishment (33 CrLJ 657). The words "save" in this section and "screen" in section 213 have the
same meaning (51 CrLJ 84).
(2) For a conviction under this section it is not necessary as in the case of charge under S. 201, to
establish that an offence has actually been committed. AIR 1932 Cal 850.
(3) The section makes punishable a certain dereliction of duty quite apart from the question
whether or not a bribe is paid to induce such dereliction. The dereliction must have been committedin
the course of the discharge of the functions of the pejson charged. AIR 1947 Cal 29.
(4) Failure on the part of the Sub-Inspector of Police to seize an unlicensed muzzle loading country
made gun in the course Of the house search of the suspect with an intention to help the latter to escape
Sec. 218 Penal Code 597

punishment for a consideration of illegal gratification was held to amount to an offence under Penal
Code, S 217. A IR 1932 Cal 850.
(5) The expression "save any person from legal punishment" under this section has the same
meaning as "screening any person from legal punishment." A IR 1949 Born 405.
(6) Where a poliôe constable retains for himself a piece of gold found in a search for stolen property
but not proved to be part of the stolen property, without reporting his possession to his superior
officers under S. 457, Cr. P. C. he is guilty of the offence under this section. A IR 1916 Mad 1109.
(7) An offence under this section clearly falls under S. 197 of the Criminal P.C. and hence,
sanction under that section is necessary for the prosecution of the public servant under this section. The
sanction has to be obtained before proceedings are started Sanction given or obtained after the
institution of the proceedings is not sufficient to validate the proceedings A IR 1947 Cal 29.
2. Practice—Evidence—Prove: (1) That the accused is a.public servant.
(2) That he conducted himself in the particular manner charged.
(3) That such conduct was in the exercise of his duties as such public servant.
(4) That such conduct was in disobedience to a direction of law.
(5) That when the accused disobeyed such direction of law, he did so knowingly.
(6) That when he was guilty of such disobedience he intended to, or knew that it was likely that
he would thereby save (a) some person from punishment or subject some person to a less punishment
than that to which he was entitled, or (b) some property from forfeiture or a charge to which it was
liable, or (c) that such punishment. etc., was legally enforceable or that such forfeiture or charge was
legal liability.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by the
Special Judge under Act XL of 1958.
4. Charge.—The charge should run as follows:
• 1. (name and office of the MagiStrate/Judge) hereby charge you (name of the accused) as follows:
That on or about the—day of—at—you being a public servant knowingly disobeyed the direction
of the law as to the way in which you were to conduct yourself as such public servant, to wit (specify
the direction of law) intending thereby to save—(or knowing it to be likely that you would thereby
save—) from legal punishment(or subject him to a less punishment than that to which he was liable or
with intent to save or knowing that you were likely thereby to save some property to wit—from
forfeiture and that you thereby committed an offence punishable under section 217 of the Penal Code
and within my cognizance.
And I hereby direct that you be tried on the said charge.
Sanction.—Sanction for prosecution of a public servant is necessary under section 6(5) of Act XL
of 1958.

Section 218
I.

218. Public servant framing iicorrect record or writing with intent to save
person from punishment or property from forfeiture.—Whoever, being a public
servant, and being, as such public servant, charged with the preparation of any record
598 Penal Code Sec. 218

or other writing, frames that record or writing in a manner which he knows to be

incorrect, with intent to cause, orinowing it to be likely that he will thereby cause,
loss or injury to the public or to any person, or with intent-thereby to save, or
knowing it to belike1y that he will thereby save, any person from legal punishment,
or with intent to save, or knowing that he is likely thereby to save, any property from
• forfeiture or other charge to which it is liable by law, shall be punished with
imprisonment of either description for a term which may extend to three years, or
with fine, or with both.
Cases and Materials
1. Scope and applicability. 10. Alteration of the record in exercise of powers
2. This section and S. 192. vested in public servant.

3. This section and Ss. 167, 193 and 197. 11. "To save any person from legal punishment".

4. "Charged." 12. Charge.

S. "Record". 13. Necessity for sanction to prosecute or for

complaint.
6. "Frames that record or writing."
7. "In a manner which he knows to be 14.Jurisdiction.
incorrect." IS. Sentence.
8. "W ith intent to cause." 16. Procedure.
9. Actual userof the record not necessary. 17. Practice.
1. Scope.—(1) This section deals with the intentional preparation of a false record with the object
of saving or injuring any person or property. The correctness of records is of the highest importance to
the State and to the public. The intention with which the public servant does the acts mentioned in the
section is an essential ingredient of the offence punishable under it. Though the offence under this
section appears to overlap the offence under section 193 to some extent, it is still distinct (AIR 1942
All 150). Legal punishment: is not departmental punishment. Substitution of one page for another is
Within this section (1970 CrLf 726).Actual guilt of the offence is not necessary. It is sufficient that the
commission of a cognizable, offence is brought to the notice of the officer who to screen the offender has
prepared the incorrect record '26 CrLf 83 7).
(2) Charge under section 218 exclusively trible by Sessions Court framed by Magistrate under
sections 218 and 420, P.C., and conviction only under section 420, P.C. held, Trial was without
jurisdiction. As soon as the Magistrate had framed a charge under section 218 he lost jurisdiction over
the. trial. A siruddin Vs. Crown (1953) 5 DLR (FC) 101.
(3) Evasion of arrest is not obstruction to arrest. By running away, the appellant evaded arrest, but
mere evasion of arrest does not amount to offering resistance or obstruction to the arrest which would
result only if there were some active opposition to the arrest by force or show of force. (1951) PLD
(Lah) 276.
(4) Petitioner, an MBBS was a demonstrator in Dhaka Medical College. He held a post mortem
examination on the dead body of one Nurjahan Begum. In the first report he opined that the death was
caused by drowning and suicidal in nature. Subsequently, he prepared another post mortem report
starting that death was caused by Strangulation and was homicidal in nature. He pleaded that he was an
experienced doctor. He contended that he carried Out the order of the superior officer who asked him to
prepare the second post mortem finding the first one to be incorrect. He was sentenced to one year's
Sec. 218 Penal Code 599

rigorous imprisonment. Held: Explanation that he carried out the order of the superior officer who found
the first report incorrect is unacceptable in that when the second report was going directly opposed to
the first report the petitioner should have taken due care to get the order of the superior officer in writing
stating the circumstances in which a fresh report was being called for, stating the reasons justifying a
radical departure from what was stated in the first report. He waendangering the neck of someone
under section 302, Penal Code. In discharging his Professional
' duties, a doctor must strictly observe
the ri.rlesof medical ethics and jurisprudence as well as have regard to the laws of the country which do
not spare the kind of conduct for which he now stands convicted. 5 BCR 61 A D
(5) This section contemplates a wilful falsification of a public document with intent therebyio
cause loss or injury to the public or any person by means of the document itself or by some transaction
with which it is essentially connected. Rat Un Cri C 201.
(6) Even if the incorrect document is not submitted to another person or otherwise used by the
writer, the offence is complete as soon as the document is made part of the record. The requirements of
the section are satisfied, if it is shown that the document has been prepared by a public servant, charged
with its preparation in a manner which he knows to be incorrect and with the knowledge that he is
thereby likely to cause ltss to the public or any person. (1971) 2 SC CriR 318.
2. This section and S. 192.—(1) Transaction may partake some of the characteristic offences u/ss.
192 and 218, the dominant factor would be the principal motive. If the motive was to make a false
document with the object that an erroneous opinion be formed in some judicial proceedings, the
provisions of S. 192 would be attracted. The proximity to ajuclicial proceeding pending or likely to
come into existence is the test by which applicability of S. 192 has to be determined. 1970 A ll
CriR 263.
3. This section and Sections 167, 193 and 197.—(1) Court cannot refuse to take cognizance of
offence under S. 218 merely, because it also falls under S. 193 and the public servant presumably
intended to allow the record to be made use of as evidence in a judicial pi'oceèding. A IR 1962 A ll 150.
(2) The offences may at times overlap but that does not make them .any the less distinct and the
accused cn be prosecuted for the offence under this section although in the particular case the offence
may also fall under Section 193, and there is no complaint under Section 195, Criminal P.C. for
prosecution for the offence. under S. 193. A IR 1968 SC 19.
(3) While S. 192 deals with judicial proceedings and the false evidence is intended to be used in a
judicial proceedings, this section deals with public servants and the gist of the offence is the
intentional preparation of a false record with a view to saving or injuring any person or property . This
need not have relation to a judicial proceeding as such. A IR 1968 SC 19.
4. "Charged".—(l) The word "charged" is not restricted to the narrow meaning of "enjoined by
a , special provision of law". A IR 1930 La/i 159.
(2) Where .a public servant who is not chrged with the preparation of any record submits a false
record, he cannot be convicted for an offence under this section. A IR 1929 A ll 374.
(3) The Pradhan of a village who was only 'liable for correct maintaince of birth and death registers
and who was not required to prepare them or make entries therein, could not be charged under S. 218.
1982 A liCriR 264. (265).. .
5. "Record."-.--(l) A pay sheet drawn by a Railway Officer is record with this section. A IR 1914
Oudh 361.
600 . Penal Code Sec. 218

6. "Frames that record or writing".—(l) A conviction of a police official under this section can
be maintained only where it is established that during the investigation the accused recorded statements
which were not made before him, or altered the statements that were actually made, or made a record of
circumstances which as a matter of fact did not transpire before him. A IR /970 Pun] 200.
(2)The fact that the police officer recorded statements made before him which were false and which.
he knew to be false is not sufficient to make him guilty of an offence under this section, where his
recording was not incorrect in any way, although he might have had a motive for recording the false
statement knowing it to be false. A IR 1925 Lah 461. .
(3) . The substitution of one leaf by another so as to omit a particular party from the page
substituted may be penal within the second, ingredient of the section. A IR 1970 Pun] 200.
7. "In a manner which he knows to be iàcorrect."—(l). Under this section, unless the record is
incorrectly prepared with the knowledge that it is incorrect, the accused will not be guilty. (1871) 15
Suth W RCr 17. . ... .
(2) Abonafide mistake in the preparation of a public record by a public servant will not be an
offence under this section. 1964 A 1ICrR 244.
8. "With intent to cause."—(l) An offence under this section is committed if it is proved that the
accused made the entries in question with the intention to cause or knowing it to be likely that he
would thereby cause loss or injury, it is immaterial whether the accused would have been able to
accomplish the object he had in view. A IR 1938 Mad 595.
(2) Where direct evidence proving the necessary criminal intention is lacking in the case and the
circumstantial evidence too meager to support any safe conclusion as to the intention with which the
accused made the entry, it is not safe to convict the accused for an offence under this section. A IR 1957
SC 486.
(3) Where a Sub-Inspector of Police made a report thereby to the Magistrate knowing it to be
incorrect thereby causing injury to the complainant it was held that he was liable under this section.
A IR 1930 Lah 159(163): 31 CriLJ 584.
(4) Patwari making wrong entry ignoring transfer of crop by Civil Court Amin to particular person
and thereby including former tenants to commit riot—Inference of criminal intent to cause loss can be
drawn; A IR 1935 A ll 968.
9. Actual user of the record not necessary.—(l) It is not necessary that the record incorrectly
framed should be actually submitted to any person or used by the writer. If the record is framed
incorrectly with the intention of causing loss or with the knowledge that he is likely to cause loss or
injury to the public or any person the. offence is complete. A IR 1938 Mad, 595.
10. Alteration of record in exercise of powers vested in public servant.—(1) Where the public
servant (Lokhpal of the village) corrected entries in Rev'nue record by entering the name of certain
persons as tenants on the basis of his discovery that th'ey were in possession, it was held that the
entries, though erroneous were made in the exercise of his powers given him by the Land Revenue
Manual and that the public servant could not be prosecuted under this section for correcting such
entries. 1970 CriLi 384 (A ll).
IL "To save any person from legal punishment."—(I) The public servant who makes the
record or writing is included in the expression "save any person form legal punishment.' .' Hence, a
ptiblic servant, who makes a false entry to save himself from legal punishment commits the offence
under this section. A IR 1921 Born 115.
Sec. 218 . Peiial Code 601

(2) The word "save' in this section and the word "screen' in Section 213 have the same meaning.
A IR 1949 Born 405.
(3) Where a perusal of entry made in the general dairy by A.S.I. showed that it was incorrectly
prepared by him and wrong facts were mentioned therein, .in order to suppress the crimes committed by
the police at the time of occurrence, the A.S.I. was liable to be convicted u/s. 218. 1981 A IILJ 871,
(4) Where the prosecution has failed to prove the main offence of murder against the accused a
public. servant. he would be entitled to benefit of doubt in respect of the offence under Sec. 218 for
framing record. 1982 CriUJ (NOC) 69 (Ker).
12. Charge.—(l) Where an accused is charged for falsification of several documents and all the
documents. form part of one transaction for the same purpose a single charge in respect of all the
documents is not illegal and even if there is any irregularity, the same s cured by Ss. 220 and 465, Cr.
P.C.A IR 1918 Lah242.
(2) The chhrge should run as follows:
I, (name and office of the Special"Judge) hereby charge you (name of the accused) as follows:
That, on or about the—day of—at—being a public servant charged with the preparation of a record
or writing to wit—framed the said record or writing in a manner which you knew to be incorrect
(specify the incorrect statement) and which you made with intent to cause or knowing it to be likely
that you will thereby cause loss or injury to the public (or to any person to wit—) or with intent
thereby to save or knowing it to be likely that you will thereby save any person from legal punishment
or with intent to save or knowing that you are .thereby likely to save any property to wit—) from
forfeiture to which it was liable by order of the Court in case No.— of—and that you thereby
committed an offence punishable under section 218 of the Penal Code and within my cognizance.
And I hereby direct that you be' tried on the said charge.
13. Necessity for sanction to prosecute or for complaint.—(1) If the acts complained of are so
integrally connected with the duties attaching to the officer as to be, inseparable form them than sanction
under S. 197, Criminal P.C. would be necessary for a prosecution under this section. But where the
official status furnishes only the occasion or opportunity for the criminal acts complained of no sanction
to prosecute would be necessary. A IR 1968 A ll 207.
(2) Where several persons are tried for more offences that one and sanction is required in respect of
one of the offences committed by one of the accused but is not obtained, it would be necessary to
consider in respect of that other offences charged against all the accused whether the trial of such offences
has been prejudiced by the introduction of the evidence in regard to the offence for which sanction was
required. If there was prejudice then whole trial can be set aside. If there was no prejudice the trial is
not void. A IR 1953 Born 177. . .
(3) The provisions of S. 340 Criminal P. C. are not applicable to an offence under this section,
but the provisions of S. 344 of the Criminal P.C. will apply. A IR '1966A ll 510.
(4) Joint trial of offences tnder Ss. 161 and 218, Penal Code—Previous sanction under S. 6.
Prevention of Corruption Act, 1947, not obtained for former offence—Evidence of demand and
acceptances of illegal gratification for making false entry relevant for both offences—Accused is not
prejudiced by joint trial and conviction for latter offence is valid. A IR 1951 A ll 502.
(5) Sanction for prosecution of a public servant is required under Act XL of 1958.
602 Penal Code Sec. 219

14. Jurisdiction.-.--The Offence under this section was triable only by a Court of Sessions under
the Criminal P.C. A IR 1914 Oudh 361.
15. Sentence.—(l) A Police Officer manipulating a record such as Police diary should be given
deterrent punishment. 1964 (2) CriLJ 71.
16. Procedure.—(l) The joint trial of a constable charged under S. 161 for accepting bribe and his
colleague a constable charged under S. 218 for having made false entries in the general diarywith
intention to negative the offence under S. 161 is legal as the two offences though distinct were
committed in the same transaction. 1982 A/iLl 681.
(2) Not cognizable—Warrant--Not bailable—Not compoundable—Triable by the Special Judge
under Act XL of 1958. . . .
17. Practice.—Evidencè—Prove: (1) That the accused is a public servant.
(2) That he was charged with the preparation of record or other writing in his capacity as a public
servant. .
(3) That he framed such record or other writing in an incorrect manner..
(4) That he then knew that he was framing it in incorrect manner.
(5) That he did as above with the intent or with the knowledge that it was likely that he would
thereby, (a) cause loss or injury to the public or any person, (b) save a person from punishment, or (c)
save some property from forfeiture or charge. . ..
(6) That such punishment was legally enforceable or that such charge or forfeiture was legal
liability.

Section 219
219. Public servant in judicial proceeding corruptly making report, etc.
contrary to law.—Whoever, being a public servant, corruptly or maliciously makes or
pronounces, in any stage of a judicial proceeding, any report, order, verdict, or
decision which he knows to be contrary to law, shall be punished with imprisonment
of either, description for a term which may extend to seven years,' or with fine, or with
both.
Cases and Materials
1. Scope.—(1) This section may be read along with sections 21, 77 and 196. The essence of the
offence under this section is that there must be a judicial proceeding, actually commenced and pending,
wherein a party claims relief against another and invites the decision of the Court in regard thereto and
not a fictitious one where there is no party litigating.
(2) The essence of the offence that there must be a judicial proceeding actually commenced and
pending wherein a party claims relief against another and invites the decision of the Court in regard
thereto. 1979 A ll CrjR 233.
(3) Where a village munsif framed the register of suits as showing that a certain suit was filed
where, in fact, it was not so filed and made an entry of a judgment purporting to have been passed in
the suit, whereas in fact, it was not so passed, it was that this section would not apply, though the
accused ma y be punishable under S. 218 of the Code. A IR 138 Mad 595;
Sec. 220 . Penal Code • 603

(4) An Order under S. 112, Cr. P. C. (1898) drawn up by a Magistrate. There is no judicial
proceeding and any report submitted by the police up to the stage does.. not fall within the scope , of
judicial proceedings and S. 219 is not attracted even if the report is found to have been furnished
corruptly or maliciously. 1979 A ll CriR 233.
(5) The term 'maliciously' implies an intention to an act which is wrongful to the detriment of
another. A IR 1917A 11317.
(6) Where a village munsif, heard and pronounced a decree which he knew to be contrary to law, in
a suit which he knew he had no jurisdiction to entertain, it was held that he had acted maliciously and
was guilty of an offence under this section. A IR 1917A 11317.
2. Practice.—Evidence—Prove: (I) That the accused is a public. servant.
(2) That he made or pronounced the report order or decision.
(3) That he did as in (2) corruptly and maliciously.
(4) That such report, order and decision Was made or pronounced in the course of a judicial
proceeding.
(5) That such report, etc. was contrary to law.
(6) That when the accused made or pronounced the same he knew it to be contrary to law.
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by Court of
Sessions.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day—on the file of—at—a judicial proceeding now pending, you a
'public servant corruptly or maliciously made or pronounced report, order or decision which you knew
to be contrary to law, that you have thereby committed an offence punishable under section 219, Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said charge,.
5. Sanction.—Sanction is required under section 197, CrPC.

Section 2.20
220. Commitment for trial or confinement by person having authority who
knows that he is acting contrary to law.—Whoever, being in any office which gives
him legal authority to commit persons for trial or to confinement, or to keep persons
in confinement, corruptly or maliciously commits any person for trial or confinement,
or keeps any person in confinement, in the exercise of that authority, knowing that in
so doing he is acting contrary to law, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
Cases and Materials
1. Scope.—(l) In view of the abolition of Chapter XVIII, commitment proceeding, now the legal
position is that the Session triable cases are being sent- to the Court of Session under section 205.
CrPC. This section should also have been amended by replacing the word "commit" by "send".
604 - Penal Code Sec. 220

• (2) The liability under this section is one under the general law and is not affected by the
imposition of liability under Statutes. AIR 1943 Pat 229.
(3) Where a person is kept under wrongful containment by the police on certain false charges. for
the purpose of extorting money from him by threat of prosecution. the offence falls under this section
and not S. 342 or Section 347. AIR 1947 Sind 36.
(4) Malice or corruption and guilty knowledge are the essential ingredients of the section. (1904) 1
CriLJ 146 (152) (Kathiawad); (1903) 5 BomLR 597(598) .(DB)
(5) Every unlawful commitment to confinement will not by itself warrant the legal inference of
malice; malice must be alleged and proved. AIR 1967 Mad 262.
(6) Where the unlawful commitment to confinement was wilful without any excuse and with a
view to put pressure on the person confined to come to terms with a person in whom the accused was
interested, it was held that the accused could be said to have acted "maliciously"; AIR 1956 Pepsu 30.
(7) Police Sub-Inspector wrongfully confines certain persons on charges of gambling in futures and
extorts money from them by putting them in fear of being challenged upon offences which he knew to
be false; the offence falls under S. 220 and not under S. 347 or S. 342 and is triable only by the Court
of Session. A IR 1941 Sind 36.
(8) Knowledge that keeping in confinement is contrary to law is a question of fact and must be
established in order to satisfy the requirements of this section. AIR 1948 Sind 67.
(9) The keeping of a person arrested on suspicion of his having committed an offence in
confinement, even by a person who had legal authority to do so would be •an offence under this section,
if in the exercise of that authority, he knows that he is. acting contrary to law.AIR I.943FC 18.
(10) The prior sanction of the Government under S. 197 of the Code is necessary fora prosecution
of the accused for an offence under this section where the officer is one referred to in that section. AIR
1947 Sind 60.
(11) Where the accused is charged with an offence under this section and also with offences under
S. 193 and 211 of the Code, and the prosecution for the offences under Ss. 193 and 211 could not be
continued for want of complaint under S. 195, Criminal P. C., there is no impediment to the
prosecution being continued for the offence under this section. which does not require any such
complaint. A IR 1937 Lah 802. .
(12) An accused charged under S. 220 of the Code and his confederate charged under Section 348
read with S. 114 of the Code must be tried together where the offences form part of the same
transaction. A IR 1941 Sind 36. •
(13) The circumstances that the accused acted as per instruments of the superior officers and he had
no personal grudge will be relevant on the question of sentence. AIR 1948 Sind 67.
(14) Complaint againsi police officer under sections 220 and 342. Penal Code, Offence under
section 220 exclusively triable by court of Session—Additional District Magistrate after recording
evidence of witnesses in preliminary inquiry taking cognizance of offence under section 342 only—
ADM in circumstances of case not bound to commit accused to Court of Session and Justified in
discharging accused if no case made out against him. PLD 1967 Ker 649.
(15) A police officer arresting a person unjustifiably or otherwise than on reasonable grounds and
bona fide belief renders himself liable for prosecution under section 220 of the Penal Code. Alhaj Md,
Y usuf A li Vs. The State 22 DLR BLD (HCD) 231.
Sec. 221 Penal Code 605

• 2. Practice.—Evidence—Prove: (1) That the accused held an office, which empowered him to (a)
send persons for trial, or (b) commit persons to confinement, or (c) keep persons in confinement.
,
(2) That he sent a person for trial or to confinement or kept a person in confinement in exercise of
such powers.
(3) That he, in doing as above, was acting contrary to law.
(4) That he at the time knew that he was acting contrary to law.
(5) That he when doing as in (2) also acted corruptly or maliciously.
3. Procedu re.—Not cognizable—Warrant—Bal lab le—Not compoundable—Triable by Court of
Session.
4. Charge.—The charge should run as follows:
1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you being in an office which gives you the power to order or keep in confinement persons, on
or about--at--corruptly or maliciously committed a person to confinement in exercise of that authority
knowing that in so doing you were acting contrary to law and have thereby committed an offence
punishable under section 220, Penal Code and within my cognizance. -
And I hereby direct that you be tried on the said charge.
5. Sanction—No prosecution under this section can be instituted without sanction- under
section. 197. CrPC.

Section 221
221. Intentional omission to apprehend on the part of public servant bound
to apprehend.----Whoever, being a public servant legally bound as such public servant
to apprehend or to keep in confinement any person charged with or liable to be
apprehended for an offence, intentionally omits to apprehend such person, or
intentionally suffers such persOn to escape, or intentionally aids such person in
escaping or attempting to escape from such confinement, shall be punished as follows,
that is to say:—
with imprisonment of either description for a term . which may extend to seven
years, with or without fine, if the person in confinement, or who ought to have been
apprehended, was charged with, or liable to be apprehended for, an offence punishable
with death; or -
with imprisonment of either description for a term which may extend to three -
years, with or without fine, if the person in confinement, or who ought to have been
apprehended, was charged with, or liable tobe apprehended for, an offence punishable
with 4 [imprisonment] for life or imprisonment for a term which may extend to ten.
years; or
with imprisonment of either description for a term which may extend to two
years, with or without fine, if the person in confinement, or who ought to have been
apprehended, was charged with, or liable to be apprehended for, an offence
punishable with imprisonment for a term less than ten years.
606 Penal Code Sec. 221

Cases and Materials

1. Scope.—.-(l) This section may be read along with section 21, 40 and 43. This section deals
with intentional omission and keeping in confinement any person charged with or liable to be
apprehended for an offence, or intentionally allowing such person to escape or intentionally aiding such
persons to escape from such confinement.
(2) The ingredients of the section are: (a) The accused must be a public servant who is legally,
bound to apprehended or keep in confinement any person either charged with or liable to be apprehend
for any offence. (b) He must have intentionally omitted to apprehend or allowed such person to escape
or must have aided such person in the escape or attempting to escape from the confinement. A IR 1979
SC 1184.
(3) The prosecution must prove that the accused was legally bound to arrest or detain a person and
that he did either make the arrest or intentionally -allowed the suspected person to escape. A IR 1979
SC 1184.
(4) Where the accused was under no legal obligation to arrest or detain person, his arrest of such -
person for any offence and the subsequent escape of the prisoner will not make the accused guilty under
this section. A IR 1929 A ll 935.
(5) Where the accused were legally bound to arrest a man who had committed a murder in their
presence and they intentionally omitted to apprehend him, their motive in so doing being to avoid
themselves hurt. it was held that they were guilty under this section. A IR 1936 A ll 651.
2. Practice.—Evidence—Prove: (I) That the accused is a public servant.
(2) That the person in question had been charged with an offence or that such person was liable to
be apprehended for an offence.
(3) That the accused was legally bound to apprehend such person for the same.
(4) That he omitted to apprehend.
(5) That he did so intentionally.
Prove also that the offence for which such person is charged with etc., is punishable (a) with
death; (b) with imprisonment for life or imprisonment upto ten years; (c) with imprisonment for less
than ten years.
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by a
Metropolitan Magistrate or Magistrate of the first class; if it comes under the second , clause, triable by
Metropolitan Magistrate or Magistrate first or second Class; if it comes under third clause, triable by
any Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you being a public servant namely—and being as such public servant legally bound to
apprehend (or keep in confinement) one X (offender) who was on or about—at—charged with or liable
to be apprehended for an offence under section—and punishable with—intentionally omitting to
apprehend such person or intentionally allowed the said X, offender, to escape or intentionally aided the
said X in escaping or attempting to escape from such confinement and that you thereby committed an
offence punishable under section 221 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
5. Sanction.—Previous sanction under section 197 CrPC, for prosecution is necessary.
Sec. 222 Penal Code 607

Section 222
222. Intentional omission to apprehend on the part of public servant bound
to apprehend person under sentence or lawfully committed.—Whoever, being a
public servant legally bound as such public servant to apprehend or to keep in
confinement any person under sentence of a Court of Justice for any offence 13[or
lawfully committed to custody], intentionally omits . to apprehend such person. or
intentionally suffers such person to escape or intentionally aids such person in
escaping or attempting to escape from-such confinement, shall be punished as follows,
that is so say:—
with 5 [imprisonrnent for life] or with imprisonment of either description for a term
which may extend to fourteen years. with or without fine,, if the person in
confinement, or who ought to have been apprehended, is under sentence of death: or
with imprisonment of either description for a term which may extend to
seven years, with or without fine, if the person in confinement, or who ought to
have been apprelended, is subject, by a sentence of a Court of Justice, or by virtue
*]
of a commutation of such sentence, to S[jmprisopjnent for life]. 14[ * * .

. ] or imprisonment for a term often years

15[ * * * *] 16[ * * *

or upwards;' or
with imprisonment of either • description for a term which may extend to three
years, or with fine, or with both, if the person in confinement. or who ought to have
been apprehended, is subject, by a sentence of a Court-of Justice, to imprisonment.
for a term not extending to ten years, 13 [or if the person was lawfully' committed to
custody]. '•
Cases and Materials
1.Scope.—.This section may be read along with sections 20 21. 40 and 43. This section is
similar to section 221 with the exception that the person to be apprehended has already been convicted
or sent for trial of an offence. It is thus an aggravated form of offence punishable under section 221 of the
Penal Code.
(2) In order to attract the provisions of Section 222, it must be established by the prosecution that
the omission or failure on the part of the public servant was in respect of 'a person convicted and
sentenced or otherwise lawfully committed to custody. 1975 ChandLR (Cri) 429 (Delhi).
(3) Where an act does not amount to escape but constitutes a preparation to escape,, and the
accused intentionally facilitates the attempt to escape, he will be guilty under this section even though
the attempt has been frustrated by other circumstances. AIR 1929 Lah 631.
2. Practice.—Evidence—Prove: (1) That the accused is a public servant.

13. Ins, by the Indian Penal Code Amendment Act. 1870 (XXVII of 1870), s, 8,
14. The words "or penal servitude for life" were omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act,
1949(11 of 1950), Sch.
15 The words "or to transportation" were omitted by Ordiance No. XLI of 1985.
16. The words "or penal servitude' were omitted by Act 11 of 1950. Sch.
608 Penal Code Sec. 223

(2) That the person is question was sentenced by a Court of Justice.

(3) That such sentence was for an offence committed.
(4) That such person was liable to be apprehended under such sentence.
(5) That the accused was legally boundto apprehend such person.
(6) That he omitted to apprehend.
(7) That he did so intentionally.
3. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate. If the offence comes under
second clause the case is triable by Metropolitan Magistrate or Magistrate of the first class. If the case
comes under third clause, it is triable byMetropotitan Magistrate, Magistrate first or second class.
4. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, being a public servant, to wit—and being as such public servant legally bound to
apprehend or keep in confinement one XY, who was, on or about the—day of— at—under the sentence
of the Court of—foii the offence of.—(or who was lawfully committed to custody, by—) did
intentionally omit to apprehend the said X Y (or intentionally suffer the said XY to escape, or
intentionally aid the said XY in escaping or attempting to escape from such confinement) and that you
thereby committed an offence punishable under section 222 of the Penal Code and within my
cognizance. -
And I hereby direct that you be tried on the said charge.
5. Sanction.—Previous sanction under section 197 CrPC, for prosecution is necessary.

Section 223
223. Escape from confinement or custody negligently suffered by public
servant.—Whoever, being a public servant legally bound as such public servant to
keep in confinement any person charged with or convicted of any offence 13[or
lawfully committed to custody], negligently suffers such persons to escape from
confinement, shall be punished with simple imprisonment for a term which may
extend to two years, or with fine, or with both.
Cases and Materials Synopsis
1. Scope and applicability. 7. Sentence.
2. Legally bound to keep person in confinement. 8. Effect of acquittal under this section.
3. "Confinement." 9. Procedure.
4. "Charged with any offence," 10. Practice.
5. "Escape from lawful custody." II. Charge.
6. Negligence. 12. Sanction.
I. Scope and applicability.—(l This section deals with negligence of public servant who
negligently suffered any person charged with or convicted of an Offence or lawfully committed to
custody and kept in confinement to escape from confinement.
Sec. 223 Penal Code 609
(2). This section provides for the punishment of such public servant who negligently suffers the
person in confinement to escape. (1942) 46 CaIWN 163.
(3) In view of the difference between Sections 221 and 222 on the one hand and this section on the
other, the maximum punishmeit prescribed for the offence under this section is comparatively much
less severe than the one prescribed under S. 221 or S. 222. (1911) 16 MysCCR No. 207
(4) In order that the section may apply the . accused must have been acting as a public servant at the
relevant time, 1972 CriLJ 988 Pat). . .
2. Legally bound to keep person in confinement—i(l) The accused must be a public servant
legally bound (inter alia) to keep in confinement any person charged with or convicted of any offence.
(1941) 46 CaIW N 161 . ..: ..' .
(2) Convict warders and overseers are public servnts since under the Jail Rules they are
empowered to keep persons in confinement and as such are covered by the definition of public servant
in S. 21. Cl. (7). (1909)9 CriL.190. . .
(3) The expression "public servant" in this section must be understood in the light of the
Explanation and a person who is actually discharging the duties of.a public servant must be held to be
a "public servant" legally bound to keep a person in confinement if the real holder of the Officer is
legally bound to do so. 1888 Rat Un Cr C 388. . ..
3. "Confinement".—(l) The expression "confinement" 'im:the section is not restored to
confinement within certain circumscribing limits. 1891 Pun Re (Cr) No 2. P. 3.
(2) Where constables escorting a prisoner for one place , to another negligently allowed the prisoner
to escape en route, it was held that the prisoner was in confinement at the time ofescape and that the
constables were guilty under this Section. 1891 Pun Re (Cr) No. 2 P. 3.
(3) Where an authority not authorised to confine but only to detain, let off a person from his
custody no offenc p under this section is committed. 1972 CriLi 988 (Pat).
(4) Where the accused puts the prisoner in the thana under lock and key and puts a sentry, the
accused cannot therefore be said to have the prisoner under his confinement and cannot be convicted of
an offence under this section if the prisoner escapes in his absence. 1900 PunjLR No. P. 8.
4. "Charged with any offence".—(1) It is not necessary that the accused should have been
formally charged with the commission of any offence or that charges should have been framed against
him. (1911) 46 CaIW N 163. . . .
(2) Where a Check Post officer under the Sales Tax Act detained certain persons but they were not
charged or convicted of any offence and the officer allowed them to escape he is not guilty of any offence
under this section. 1972 Cr1LJ 988. .
5. Escape from lawful custody.—(1) Wherea person has been committed to custody and is also.
not charged with an offence or under a sentence for an offence, but has been simply arrestedunder a civil
process, allowing him toescape is not an offence under this section. (1886) ILR 12 Cal 190.
(2).A prisoner.cannot be said to have escaped from confinement until he has regained his liberty.
1890 Pun Re No. 32. . . .. .
(3) The escape from custody contemplated by this section is an escape from lawful custody. Where
the custody is not lawful one, a public servant who suffers the prisoner to escape from , such unlawful
custody does not commit any offence under this section. AIR 1918 Pat 252.
610 Penal Code Sec. 223
6. "Negligence".---(l) Before a man can be convicted under this section it must be shown, not
only that he was guilty of negligence but that the escape was, at least, the natural and probable
consequence of his negligence. It must be shown that the escape was directly due to the negligence. If
the escape was only remotely connected with .the negligence, there can be no conviction under this
section. A IR 1918 A ll 282.
(2) Where a police daffadar with some constables is entrusted with the duty of escorting some
prisoners and he stays away and allows the constables to proceed with the prisoners and the prisoners
escape owing to the negligence of the constable, the .daffadar is also guilty of the offence under this
section along with constables. (1911) 16 MysCcR No. 207 P. 1234.
(3) Where the prisoners escape during the watch of the accused, it is prima facie evidence of his
negligence and he must satisfactorily establish that he took all reasonable care in performance his duty.
AIR 1951 Kutch.89.
(4) Accused .A and B were sentries at the jail gate in which 'D' was confined as undertrial
prisoner Accused 'C' came to the jail gate and told A and B that 'D' was called by the jailorfor some
work in his house. He had brought the key from the jailor to open the middle gate A and B and
opened their respective gates and D was given in charge of C. D escaped from C's custody. Held—A
and B were negligent hi giving D in charge of 'C' against the jail rules—Even if there were orders from
the jailor, those were illegal and they Were not bound to obey them they were guilty under S. 223. As
regards 'C' he was actually acting as a public servant when D was given to his charge and, in allowing
him, to escape he was also negligent and hence guilty under S. 223. 1982 WLN (UC) 148.
7. Sentence.--(1) Where the accused does not act with any corrupt motive but his conduct may be
,, regarded as mereiegligence a sentence of fine may be an adequate punishment. (1884) ILR 6 All 129.
(2) Where two undertrials escaped from the custody of the petitioners and were later arrested and
convicted, and there was not single instance of dereliction of duty on the part of petitioners in the past
and they had to maintain their families they were released on probation 1904 All md CriLR 158
8. Effect of acquittal under this section.—(1) An offence under special enactments. Hence an
.acquittal of the accused of the offence under this section does not bar his prosecution under S. 29 of the
Police A ct. A IR 1933 Pat 670.
9. Procedure.—(1) Where a prisoner was charged with commission of an offence in British India
and he escaped from custody of the accused who were British police officers, it was held that Court had
no jurisdiction to try the accused under this section on the ground that the accused committed no
offence against the law. (1894) 17 Mys LR No. 448, P. 701.
(2) A prosecution of a public servant under this section requires sanction under Section 197,
Criminal P. C. 1972 CriLi 988
(3) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate..
t Practjce.—Evidence--prove (1) That the accused is a public servant.
(2) That the person in question was charged with or convicted of an offence.
(3) That the accused was legally bound to keep such person in confinement.
(4) That he suffered such person escape therefrom.
(5) That he acted negligently when suffering such person to escape.
II. Charge.—The charge should run as follows: . .
I. (name and dffice of the Magistrate) hereby charge you (name of the accused) as follows:
Sec. 224 Penal Code 611

That you, on or about the—day of—being a public servant to wit—and as such public servant
legally bound to keep in confinement one XY who was charged with the offence of—under section—of
the Penal Code (or convicted of or lawfully committed to custody) negligently suffered the said XY to
escape from confinement, and that you thereby committed an offence punishable under section 223 of
the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
.12 S:ánctioñ—Sanction is necessary for prosecution of the public servant under section 197.
CrPC.

Section 224
224. Resistance or obstruction by a person to his lawful apprehension.—
Whoever intentionally, offers any resistance or illegal obstruction to the lawful
apprehension of himself for any offence with which he is charged or of which he has
been convicted, or escapes or attempts to escape from any custody in which he is
lawfully detained for any such offence, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Explanation. —The punishment in this section is in addition to the punishment for
which the person to be apprehended or . detained in custody was liable for the offence
with which he was charged, or of which he was convicted.
Cases and Materials 4 Synopsis
1. Scope 7. "Intentionally."
2. "Resistance or illegal obstruction to the 8. Procedure.
lawful apprehension." 9. Proof.
3. "Escapes from any custody in which he is 10. Sentence.
lawfully detained." 11. Explanation to the section.
4. "Offence." 12. Practice.
5. "W ith which he is charged." 13. Charge.
6. "For any such offence.".
1. Scope.—(1) This section punishes the person who offers resistance or obstruction to their lawful.
apprehension. It requires that the accused person must offer resistance or illegal obstruction to the
lawful apprehension of himself for any offence with which he has been charged or of which he has been
convicted (25 .CRiL.J 462).A charge of having escaped from custody maybe inquired in and tried
wherever the person happens to be when the charge is made (section 181, CrPC).
(2) Arrest without any offence charged, illegal—In order to make a person liable for an offence
under section 224 of the PenalCode the essential prerequisite is that the appreherion of the person
must be lawful apprehension for offence with which he is charged or of which he has been convicted. In
the instant case, neither the FIR nor charge-sheet discloses that the petitioner was wanted in connection
with any case whatsoever. Criminal trial—Deprivation of a citizens liberty must be in accordance with
law. The police as guardians of law and order are now armed with extra-ordinary powers and if they
behave in an irresponsible and unauthorised manner then the whole concept of personal liberty of the
citizen will be jeopardised. 29. DLR 270.
612 Penal Code Sec. 224

(3) Leave to appeal to Supreme Court—granted to examine plea that, while dismissing application
for bait before arrest Session Judge had acted illegally in remanding the accused to custody and that in
any event transfer by High Court of case under S. 224, Penal Code from the Court of Magistrate to
Session was bad in law. Offence under section 224 read with Schedule 11, triable by Magistrate first or
second class. Sessions Judge has no jurisdiction to try such offence without formal order of
commitment (Ref PLD 1957 Kar 428), 1966 PLD 589 SC.
(4) The section is limited to cases in which the apprehension or confinement is for an offence,
while in regard to the previous three sections, (viz, Ss. 221, 222 and 223), it is only S. 221 which is
limited to the apprehension or custody of an offender and Ss. 222 and 223 are wide enough to apply
'not only to a person charged with or convicted of an offence but also to other persons, provided they
have been lawfully committed to custody. (1886) ILR 12 Cal 190.
2. "Resistance or illegal obstruction to the lawful apprehension."—(l) Resistance or illegal
obstruction to the lawful apprehension or arrest of a person for an offence is itself an offence punishable
under this section. AIR 1932 Lah 615.
(2) If the arrest or order for arrest is not legal, resistance to the arrest will not be an offence. AIR
1968 All 132.
(3) Resistance or obstruction to arrest can be said to be caused only if there is some active
opposition to the arrest by force or show of force. (1952) 52 CriLi 1031 (Lak).
(4) Mere evasion of arrest by running away amount to offering of the police party does not amount
to offering resistance or obstruction to arrest within the meaning of this section. AIR 1917 Mad 182.
(5) Where a police officer was about to arrest an accused and a crowd carrying lathies began to
assemble just to see what was going on, without any intention of preventing the police officer from
making the arrest and the police officer considered their apprearance so formidable that he desisted from
arresting the accused, it was held that it could not be said that the accused committed an offence under
this section. AIR 1925 All 308.
(6) The question whether an apprehension is lawful does not depend upon the ultimate acquittal of
the accused person. AIR 1966 Mys 20.
3. "Escape from any custody in which he is lawfully detained."—(l) The latter part of this
section provides that whoever escapes or attempts to escape from any custody in which he is lawfully
detained is punished under it. AIR 1954 Hyd 89.
(2) In construing the words "lawfull', detained in custody" in this section regard must be had to
the nature of the custody itself as well r.s to the circumstances under which the authority to arrest and
keep in custody arises. AIR 1916 Mac 686.
(3) It is only after a person has been apprehended or arrested that the question of custody arises.
ILR (1953) Cut 751.
(4). In order to sustain a Conviction under this section, it is essential to show that the apprehension
or arrest was lawful in every way. A IR 1964 Ker 185 (DB).
(5) If the person arresting the accused has no authority to do so, escape from custody after such
arrest is not an offence. AIR 1927 Cal 516. .
(6) Where a police constable arrested a person under a warrant which was not signed by the
Magistrate ordering the arrest and the accused escaped from such custody, the arrest is not legal and the
accused committed no offence. AIR 1918 Pat 252.
Sec. 224 Penal Code 613

7) If the warrant is initialed by the endorsing officer it is sufficient compliance with the law.
(1901) 5 CaIW N 447.
(8) If a person is arrested for non-cognizable offence by police officer without warrant, then his
custody is not lawful and escape from such custody is not offence under this section. A IR 1936
Pa: 249.
(9) A private person may, under S. 43 of the Code of Criminal Procedure, arrest any person who in
his view commits a non-bailable and cognizable offence and if the person so arrested escapes while in
such custody, he will be liable under this section. But if the offence is not committed in the view of the
private person or is bailable, an arrest by such a person is not legal and.escape from such custody is not
an offence. AIR 1924 Mad 384.
(10) A person legally arrested for an offence must submit to be tried and dealt with according to
law. If he gains his liberty before he is delivered by due course of law, he commits the offence of escape -
form custody even when the escape is effected by the consent or neglect of the person that kept the
accused in custody. AIR 1954 Hyd 89.
(11) Even where a person in the lawful custody of the police is forcibly rescued by others, he must
be held to escape form lawful custody, if he does not come back and submit to the custody voluntarily,
the moment he is set free by his rescuers. AIR 1969 Mad 408.
4. "Offence."—(l) A person who escapes from lawful custody in which he has been detained for
an offence punishable under a special or local law can also be punished under this section.(1886) 9
MysLR No. 384 P. 819.
(2) The arrest of a person for failure to furnish security for good behaviour under Section 122 of the
Code of the Criminal Procedure or under S: 152 of the Land Revenue Act is not an arrest for an offence
and hence escape from custody while under such arrest does not fall within this section. A IR 1925
Sind 193.
• 5, "With which he is charged."—(l) The word charged' is this section is used in the ordinary
sense of the word, namely, that a person is accused of having been involved in an offence and not in the
sense that a charge has been farmed against him by a Court of law under the Code of Criminal
Procedure. AIR 1927 Born 96
(2) For a conviction under this section. it is necessary to establish that the accused was charged
with an offence before he is arrested. (1955) 8 Sau LR 290.
6. "For any such offence".—.(l) The words "for any such offence" in this section mean for any
offence with which he is charged or of which he has been convicted .So that it-would be an offence for a
person to escape from custody after he has been lawfully arrested on a charge of having committed an
offence, although he may not be convicted of such latter offence. A IR 1917 Cal 426
7. "Intentionally."—(I) To constitute an offence under this section, the resistance or obstruction
to arrest must be intentional. AIR 1966 Mys 20.
(2) An obstruction or resistance is intentional when those who offer the obstruction or resistance do
so with the intention that there should be no apprehension notwithstanding such apprehension is to
their knowledge lawful. AIR 1966 Mys 20.
(3) Where the accused is forcibly taken away form custody by others, it has been held that he
escaped from custody intentionally and, therefore cannot be convicted under this section. A IR 1957
Mad 7/4.
614 Penal Code Sec. 225

-8. Procedure.—(1) A charge of theft and a charge for escaping form lawful custody cannot be tried
together in one trial as they-are not so connected as to form one transaction within the meaning of S.
218 of the Criminal P.C. 11906) 4 CrilJ 389 (Low Bur).
(2) Charges of rioting and hurt and escape from lawful custody can be tried together if they are part
of the same transaction. AIR 1924 Mad 384. -
(3) Cognizable—Warrant—Bailable—Not compoundable—Triable by any Magistrate.
9. Proof.—(l) The question whether a person was or was not charged with an offence should
depend upon thefacts and circumstance of each case and the inference to be drawn therefrom. 1963 (2)
CriLJ 466 (Mys). -
10. Sentence.—(1) Where a police officer went to arrest a person for an offence and he resisted the
arresting on the ground that he had obtained a bail order and the police officer was not satisfied with it
and the accused then accompanied him to the police station, it was held that in the circumstances of the
case a sentence of fine of Rs. 200/- was sufficient. (1959)26 Cut LT 92(95).
(2) A person accused of an offence under this section can plead no circumstances in extenuation, as
the offence under this section and Section 225 are serious ones. AIR 1965 Mys 20.
11. Explanation to the section.—(l) Punishment for an offence under this section must be in
addition to the punishment awarded for the substantive offence.. But there is nothing in the Explanation
to this section to require that a sentence of imprisonment must be made to run consequently to a
sentence imposed for the main offence of which the accused has been convicted. AIR 1934 Born 462.
12. Practice.—Evidence—When the offence charged is that of resistance to apprehension. prove:
(I) That the accused is charged with an offence.
(2) That he offered resistance or obstruction to his apprehension.
(3) That such resistance or obstruction was illegal.
(4) That the accused offered it intentionally.
13. Charge.—The charge should run as follows: .
I, (name and office of the Magistrate) hereby charge you (name ofthe accused) as follows:
That you, on or about the—day of at—intentionally offered resistance (or illegal obstruction) to
your lawful apprehension for the offence of—with which you were charged or-of which you had been
convicted or escaped or attempted to escape from the custody of—in which you were lawfully detained
for the offence of—and thereby committed an offence punishable under section 224 of the Penal Code
and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 225
225. Resistance or obstruction to lawful apprehension of another person.—
Whoever intentionally offers any resistance or illegal obstruction to the lawful
apprehension of any Other person for an offence, or rescues or attempts to rescue any
other person from any custody in which that person is lawfully detained for an
offence, shall be punished with imprisonment of either description for a term which
may extend to two year, or with fine, or with both;
Sec. 225 Penal Code 615

or. if the person to be apprehended, or the person rescued or attempted to be

rescued, is charged with or liable to be apprehended for an offence punishable with
5 [imprisonment for life] or imprisonment for a term' which may extend to ten years,
shall be punished with imprisonment, of either description for a term which may
extend to three years. and shall also be liable to fine;
or, if the person to be apprehended or rescued, or attempted to be rescued, is
charged with or liable to be apprehended for an offence punishable with death, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine;
or, if the person to be apprehended or rescued, or attempted to be rescued, is liable
under the sentence of a Court of Justice or by virtue of a commutation of such
a sentence to 5 [irnprisonment for life]. 15[* * *], 17[* * *], or imprisonment
for a term of ten years or upwards, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to
fine;
or. if the person to be apprehended or rescued, or attempted to be rescued, is
under sentence of death, shall be punished with 5 [imprisonment for life] or
imprisonment of either , description for a term not exceeding ten years, and shall also be
liable to fine.
Cases and Materials Synopsis -
1. Scope. 9. Detention in custody must be lawful.
2. Apprehension for an offence. 10. Arrest and custody by policeman.
3. Resistance or obstruction. H. Arrest by prh'ate person.
4. Rescue. 12. Procedure.
5. Intention. 13. . Sentence.
6. Knowledge offacts leading to detention. 14. Practice.
7. Arrest of custody must be lawful—General. 15. Charge,
8. Defective warrants—Apprehension whether
lawful.
1. Scope.—(I) This section deals with resistance offered by persons other than the offender to the
lawful apprehension or escape from custody. Intentional offering of any resistance or illegal obstruction
to the lawful apprehension of an offender obstructing and beating a police-officer while apprehending a,
person on a charge of cognizable offence without warrant are punishable under section 225 or 332.
2. Apprehension for an offenc.—(l). In making an arrest, the body of the person to be arrested
should be actually touched, or confined unless there is a submission to the custody by word or action
on the part of person to be arrested. Mere words do not constitute an arrest. A IR 1916 Sind 19.
(2) Proceedings under Chap. VIII of the Code of Criminal Procedure (security proceedings) are not
proceedings in respect of 'offence' within the meaning of Section 40. (1885) ILR 7A 1/67. .. .

.l7. The words "penal servitude" were omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act. 1949 (II
of 1950), Sell. . . .. . . . .
616 Penal Code Sec. 225

(3) The apprehension must be lawful; whether it is made in good faith or, not, is immaterial. AIR
1966 Mys 20.
3. Resistance or obstruction.—(1) Threatening an officer in order to prevent him from making an
arrest of a person may amount to offering resistance or illegal obstruction to the apprehension of such
person. A IR 1930 Pat 344.
(2) In the absence of any intention to prevent the apprehension of a person. the mere assembly of a
large number of persons even with lathis, did not amount to resistance or obstruction to apprehension
of that person. A IR 1925 A ll 308.
4. Rescue.—(I) A person cannot rescue himself from custody though he may be said to escape
form custody, nor can a person be said to have been rescued when the officer himself releases the person
in custody. A IR 1940 Pat 479,
(2) To constitute a rescue there must be an overt act on the part of the accused. Mere oral
incitement or instigation to escape will not be sufficient to make out the offence of rescuing a person
from custody. A IR 1961 Ker 331. .
5. Intention.—(l) The resistance of " illegal obstruction must be intentional. In the absence of
proof of such intention the accused is entitled to be acquitted. A IR 1922 Lah 73.
(2) Aresistance can be said to be intentional only where the person offering resistance knows that
an arrest is being or is about to be made. A IR 1928 Lah 324.
(3) A rescue as distinguished from resistance or obstruction need not be intentional. A IR 1969
Mad 408. .
6. Knowledge of facts leading to detention.—(l) It is notnecessary that the accused should be
aware of the facts leading to the detention or arrest of the person rescued. 1971 CriLJ 910.
7. Arrest or custody must be lawful—General.---(1) It is essential for a conviction under this
section that the prosecution should show that the apprehension or arrest made or attempted to be made
in lawful in every way. A IR 1932 Pat 171.
(2) The obstruction to the arrest of a boy under 7 years of age for a theft committed by him is not
an offence, for under S. 82 of the Code nothing is an offence which is done by a child under 7 (9 in
Bd.) years of age, although if the boy rescued is over 7 and under 12 years, S. 83 would apply, and the
arrest would be prima facie legal and the rescue will be an offence. A IR 1916 Mad 642. . k.

(3) Where the first transaction beginning with the arrest of the offender comes to an end when he is
let Off from custody and no effort is made then to pursue. and rearrest him, a subsequent arrest by the
private person will not be a part of same transaction nor will be covered by the provision in S. 37,
Criminal P. C. or any other provision of law. A IR 1955 Pat 106.
(4) Where the person who was arrested for an alleged act which would be a cognizable Offence was
acquitted of that offence on the ground that no such act constituting the offence was committed at all,
the arrest must be taken to have been illegal. A IR 1966 Pat 286.
(5) Where the offence was not committed in the view of the person arresting the offender the arrest
would be illegal. A IR 1932 . Lah 263. . ... . . .. .. .. .
8 Defective warrants—Apprehension whether lawful —(1) Rescue from custody is no offence
when warrant of arrest is defective. But if the persons rescuing cause hurt to the constable unnecessarily
they would be guilty under S. 323. P. C. A IR 1918 Pat 252:
Sec. 225 Penal Code 617

(2) When a police officer arrests person, not on his own initiative, but on a verbak order of his.
superior under S 55 Criminal P.C., such an arrest is illegal and hence the custody of the arrested
person is also illegal. A IR 1941 Rang 180,
(3) Any person who is being arrested under a warrant has a right to ask the officer arresting him to
show him the warrant. When the warrant is not shown to him and arrest is made, such an arrest wilt.
not be legal arrest. A IR 1924 Mad 555.
(4) Under S. 70, Criminal P.C.,he seal of the Court is essential to the validity , .of awarraftt•of
arrest. An arrest made under a warrant which bears no seal of the Court issuing it, is illegal. A IR 1915
Cal 737. -
(5) A Revenue Or Civil warrant for arrest should state the name or description of the person
authorised to arrest. Otherwise the arrest would be illegal. A IR 1932 A ll 692.
(6) The issue of a non-bailable warrant in a case in which the accusedavé:charged for abailable
offence is not illegal and resistance to the arrest under such a warrant wifl be an offànce under this
section. A IR 1939 A ll 156
(7) Under S 70(2) Criminal P C a warrant of arrest remains in force until it is cancelled b y the
Court or is executed Hence, a warrant executed beyond its returnable date is valid and nay resistance to
arrest will amount to an offence under this section. A IR 1928 Pat 466
(8) Where the warrant has been directed to be issued, by the presiding officer who took cognizance,'
his successor in office can sign the warrant and an arrest effected in pursuance f it would be lawful. Any
resistance to an arrest under such a warrant will amount to an offence under this section. A IR 1932
. ....
Pat 175 •;
9. Detention in custody must be lawfCl.—(l) Where an accused convicted by the Gram
Kutchery is being taken to jail under a warrant not by the village chowkidar as required by the Rules
but by some other person not so authorised and the convict is rescued from the custody, no offence
under this section is committed as the custody is not lawful. (1955) ILR 33 Pat 674.
(2) Under S. 63 of the Forest Act, a Forest Officer cannot arrest without warrant, persons
committing an offence under S. 29 and if he arrests without a warrant, his custody of the arrested person
is not lawful, within the meaning of this section. A IR 1927 Cal 516.
(3)A forest guard arresting a person for an offence under Sec. 374, P.C. and not for any offence
under the Forest Act—Held detertion of accused was not lawful; 1979 BLJR 578.
(4) An Excise. Officer acting under S. 15 of the Opium Act has lawful authority to arrest a person
who sells a black substance alleging it to be opium. Hence the custody of such personarrested by the
Excise Officer is lawful custody. A IR 1917 Cal 426. •' . . . .
(5) A sailor of United States Navy was absent over leave and was arrested in Hamilton City,
Bermuda by U.S. shore patrol and was placed in custody in wagon. The accused who was a Bermudan
civilian released the sailor by opening the door. This incident took place on territory which was not
included in the area leased to United States under U. S. bases (Agreement) Act. The arrest of the sailor
was lawful under United States law and was in respect of matters concerning discipline within S. 9(1
of the Act. The accused was convicted under S. 111 Bermuda Criminal Code for aiding the sailor to
escape from lawful custody—Held that the sailor arrested as above must be considered to be in lawful
custodyvithin the meaning of Ss. 110 and i.l1 'of Burmuda Criminal Code and the conviction of the
accused wasproper. A IR 1955 NUC (England) 4384. .
M8 Penal Code Sec. 225
10. Arrest and custody by policeman.—(1) An arrest made under Section 41, Criminal P.C.,
would not be illegal merely because the person arresting had knowledge of the issue of such warrant.
A IR 1918 Mad 514.
(2) Where a Sub-Inspector of Police not present at the scene of arrest, directed his constables
orally to bring certain persOn with papers to the police station, the orde does not amount to a direction
fgr arrest within the meaning of Section 55. Criminal P. C. The arrest by the constable is illegal and
the person resisting such an arrest is not liable for an offence under this section. AIR 1940 Pat 361.
(3) Where, on the requisition of a police officer of one police station, the accused in a cognizable
case, found in the limits of another police station, is arrested by officers of the latter station in
conformity with provisions of Sections 48 and 41(9), Criminal P. C., the arrest and custody of the
arrested person is legal and the person Who rescues him will be guilty of an offence under this section.
A IR 1946 Cal 314.
(4) A man cannot be arrested by the police for a non-cognizable offence without a warrant and the
Police Officer having the custody of the arrested person is not lawfully detaining him. Therefore, the
rescue of the arrested.person by others will not amount to an offence under this section. (1941) 22
ParL T 29.
(5) if the prosecution mentioned is S. 41(l)(c), Criminal P. C., is not proved the arrest of a
person under that clause is illegal. Rescuing such a person from the custody of the Police Officer will
not amount to an offence under this section. AIR 1936 Pat 249,
1
11. Arrest by private person.—( 1) Where a private person arrests a person and makes over the
arrested person to a village servant, the custody of the village servant is lawful. A IR 1932... 214.
(2) It is necessary that the non-bailable and cognizable offence must be committed in the view of
the private person, for the private person to be entitled to arrest the offender .. Where, therefore, the
private person arrested the offender after he had committed the crime, which was not within the view of
the rivate person or was bailable, the custody of the private person was held not lawful. 1974 All WR
(HC'.), 26(26.
12. Procedure.-41) In cases under this section the proper person to make a complaint is the
officer form whose custody the escape or rescue has been effected, but a complaint .by another prson
aware of the facts is not a nullity. A Magistrate is competent to make a complaint as a common
informer. AIR 1933 Lah 884.
(2) An accused charged for an offence under thissection cannot be tried jointly with the offender
who has been charged for theft committed earlier in point of time and whose rescue is the subject-matter
ofthe charge under this section. (1909) 9 CriLJ 147 (cal).
(3) Where a rescue was effected by the use of force, the use of force and the rescue would constitute
a single transaction and the accused cannot be convicted both under S. 353 and also under this Section.
A IR 1954 HimPra 68.
(4) Co gnizable—Warrant—Bailable, if the case falls under the first clause otherwise not bailable—
Not compoundable-_Triable by any Magistrate. If the case comes under second, third and fourth
clauses the ease is triable by Metropolitan Magistrate or Magistrate first class and if it comes under last
clause the case is triable by Court of Sessions, Chief Metropolitan Magistrate, District Magistrate,
Additional District Magistrate.
Sec. 225A Penal Code
619
13. Sentence._(
I) Where the obstruction caused is such as not tp constitute a serious offence,
then a heavy punishment is not called for. AIR 1930 Pat 344.
(2)
An offence under this section is a serious one and the accused can plead no circumstance in
extenuation. AIR 1966 Mys 20.
(3)
To release accused on admonition upon his conviction under S. 225, Penal Code for rescuing
another person from lawful detention, will be wrong in principle where law and order situation is
deteriorated. 1971 .Cr1LJ 910.
14. Practice._Evideflce p rove .
(1) That the person in question was detained in custody.
(2) That such detention was in respect of an offence.
(3) That such detention was lawful.
(4) That the accused rescued or attempted to rescue such person.
(5) That he did so intentionally
There must be a clear finding as to the intention with which the accused acted. (23 CriL.j 3).
1.5. Charge.—The charge should run as follows:
1, (name and officof the Ju
dge/Magistrate ) hereby charge you (name of the accused) as follows:
That you on or about the—day of—at
–_intentionally offered resistance or illegal obstruction to the
lawful apprehension of XY for the offence of—under section—of the Penal Code (or rescued or
attempted to rescue ,
) the said XY from the custody in which the said XY was lawfully detained for the
offence of—and that you thereby committed an offence punishable under section 225 clause—of the
Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 225A
18 1225A Omission to apprehend, or sufferance of escape, on part of public
servant, in cases 'not otherwise provided
for.—Whoever being a public servant
legally bound as such public servant to apprehend or to keep in co
nfinement any
person in any case not provided for in section 221, section 222 or section 223. or in
any other law for the time being in force, omits to apprehend that person or suffers
him to escape from c onfinement, shall be punished,—
(a) if he does so i
ntentionally, with imprisonment of either description for a 'term'
which may extend to three years. or with fine, or with both; and
(b) if he, does so negligently, with simple imprisonment for a term which may
extend to two years, or with fine. or with both.]
Cases and ' Materials •' ' ' .
I. Scope.-__(i) An omission to execute a warrant should not be confused with omission to
apprehend; when a warrant was issued to an officer directing him to arrest and produce a witness, and
even though he received it late, he produced the witness on the scheduled date along with the warrant,

18 225A and 225B were substituted by the Indian Criminal Law Amendment Act, 1886 (X of 1886).
225A. which was earlier inserted by Act XXVII of 1870. s. 9. S. 24 (I). for section
620 Penal.Code Sec. 225B

the technical non-execution of the warrant will not amount to an offence under S. 225-A: 1979 CriLR

(Mahj 15.
(2) Villagers assisting the Headman of the village in arresting 'a person are not public servants
within the meaning of S. 21. Where a person was arrested for theft of cattle and made over to villagers
for being taken to the police station and the arrested person escaped through their negligence, it was
held that the villagers could not be convicted under this section. AIR 1917 Upp Bur 8.
(3) An act is said to be done negligently when it is done without exercising due care and caution.
Where a person properly arrested is confined in a room, the omission to secure the door of the room,
which was the main cause of escape of the prisoner from custody is an indication , of negligence. AIR
1930 Pat 103.
(4) Under S. 41. Cr. P. C., a police officer-can arrest without a warrant or an order of a Magistrate
any person who comes within the purview of the said section. Confinement of such a person, though
arrested without a warrant is legal within the meaning of this section. AIR 1930 Pat 103.
2; Practice.—Evidence—Prove: (1) That the accused is a public servant
(2)That he was legally bound to apprehend or keep in confinement, the person in question.
(3) That he omitted to apprehend that person, or suffered him to escape from confinement.
(4) That he did as above intentionally or negligently for clause (b).
(5) That the offence does not fall under section 221, 222 01. 223 or any other law.
3. Procedure.—(a) In case of intentional omission or sufferance: Not cognizable—Warrant----
Bailable—Not compoundable—Triable by Metropolitan Magistrate or Magistrate of the first class.
(b) In case of negligent emission or sufferance: Not cognizable—Summons—Bailable—Not
compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you. on or about the—day of—at—being a public servant legally bound as such public
servant to apprehend or to keep in confinement one . .XY intentionally or negligently omitted to
apprehend the said XY (or suffered the said XY to escape from confinement) and that you thereby
committed an offence punishable under section 225A of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
. Sanction.—Sanction for prosecution of the public servant is necessary.

Section 225B
I8125l. Resistance. or obstruction to lawful apprehension, or escape or
recue, in cases not otherwise provided for.—Whoever. in any case not provided
for in section 224 or section 225 or in any other law for the time being in force,
intentionally offers any resistance or illegal obstruction to the lawful apprehension of
himself or of any other person, or escapes or attempts to escape from any custody in
which he is lawfully detained, or rescues or attempts to rescue any other person from
any custody in which that person is lawfully detained, shall be punished with
imprisonment of either description for a term which may extend to six months, or
with fine, or with both.]
Sec. 225B Penal Code 621

Cases and Materials Synopsis

1. Scope. 9. Necessity to show the warrant.
2. Intention. 10. Identity of the person to be arrested.
3. Resistance or Illegal obstruction. 11. Delegation of authority.
4. Escape from lawful custody. 12. Sentence.
5. Apprehension must be legal. 13. Procedure.
6. Detention must be lawful. 14. Practice.
7. A pprehension under a warrant-General. 15. Charge.
8. Seal of the Court In the warrant.
1. Scope.-(l) The offence under this section consists of resistance or obstruction to lawful
apprehension or escape or rescue from lawful custody or attempt to secure such escape Or rescue. In
order that the act of the accused may amount to offence under section 225B. two pre-requisites are to be
satisfied: (i) that the arresting agency had the legal authority to arrest, and (ii) that the warrant of arrest
had been legally issued by a competent authority (1957 CrLJ 1264). Rescuing the person arrested from
the custody of Munsif's (ourt employees even with the knowledge that they were officers of Court
would not expose the accused to punishment if the arrest itself was illegal.
(2) This section will apply to cases of apprehension of persons under civil warrants and to escape
or rescue from custody in civil jail or to cases of confinement under a warrant under S. 129(2) of the
Criminal P. C.. or to cases of persons in the custody of the police pending proceedings under S. 109.
Criminal P. C. AIR 1921 All 281.
2. Intention.-(I) The resistance or obstruction, etc., must be intentional. A resistance is
intentional only when the person who makes the resistance knows that he is being or is about to be
arrested. AIR 1928 Lah 324.
3. Resistance or illegal obstruction.-(1) In order to justify a conviction under this section, on
the ground of resistance or obstruction to apprehension, there must be an overt act of resistance or
obstruction. AIR 1923 Rang 231.
(2) A mere evasion of arrest is not a resistance or obstruction to arrest within this section. AIR
Mad 182.
(3) An escape from custody does not amount to resistance or obstruction, though the escape is by
itself punishable under this section. AIR 1927 Lah 708.
4. Escape from lawful custody.-(l) A refusal to go with the bailiff and sitting down is an
attempt to escape. AIR 1955 Mad 157.
(2) Where the bailiff did not touch the body of the accused but merely asked the accused to
accompany him and the accused ran away, he cannot be said to have escaped from legal custody within
the meaning of this section. AIR 1961 Raj 156
(3) Where, after arrest the accused runs away and shuts himself in a room and refuses to come out.
his act constitutes an escape from custody. AIR 1927 Lah 708.
(4) Even when the escape is effected by the consent or neglect of the person that kept the prisoner
in custody, the latter is no less guilty as neither such illegal consent or neglect absolves him from the
duty of submitting to the judgment of the law. AIR 1919 Mad 864.
622 Penal Code Sec. 22513

(5) A man legally arrested must submit to be tried and dealt with according to. law. Even though
he may be rescued by his friends, if he takes advantage of this and gets out of the way of the process-
server in whose custody he is, he must be considered to escape from lawful detention within the
meaning of this section. A IR 1.969 Mad 408.
5. Apprehension must be legal-41) It is resistance or obstruction to the lawful apprehension of
a person that is punishable under this section. A IR 1938 A ll 120.
(2) Where the arrest or apprehension is not legal or authorised by law, this section will not apply.
1973 CriLJ 245 (A hdhPra).
(3) Where the imposition of a tax, for the non-payment of which a warrant is issued is itself illegal
and ultra vires. the resistance to its execution cannot be punishable under this section. AIR 1928 Lah
322. .
(4) If a person is arrested under some specific provisions of law, the arrest must be justified only
under that provision: it is not open to the prosecution to attribute the arrest to some other provision. If
the earlier provision of law is not applicable and the arrested person has offered resistance, then he is
not guilty of an offence under this section. A IR 1924 Mad 555.
6. Detention must be lawful.—(I) A person cannot be convicted under this section for an escape
or attempt to escape unless the custody in which he was detained was lawful. AIR 1950 I-Iyd2O.
(2) The person from whose custody the rescue is effected or escape is made must have had
authority to lawfully detain the person rescued. A IR 1954 Mad 321.
(3) Where an order of a Civil Court committing a judgment-debtor to custody is illegal, the
judgment-debtor cannot be convicted under this section for escaping from the custody. A IR 1962 Ker
258.
to the custody of the
(4) Where the order. of a Civil Court committing' the judgment-debtor ,
process-server is lawful, then the custody of the process-server is lawful and escape from such custody
amounts to an offence under this section. A IR 1933 Mad 278.
7. Apprehension under a warrant—General.—(l) When an arrest is made under the authority
of a warrant, it is absolutely necessary that the warrant shall conform to the mandatory provisions Of the
section under which it is issued. A IR 1937 Pat 603(605).
(2) It is the duty of the Court to issue the warrant in a proper form. When the warrant is
incomplete, this section will not apply. A IR 1962 Ker 258.
(3) It is of no consequence that the person who is arrested is unable to read the warrant and had no
knowledge as to whether the warrant is or is not properly filled up. AIR 1962 Ke258.
(4) In order that the act of the accused may amount to an offence under this section, two ingredients
are to be satisfied, viz.. (a) that the Amin had the legal authority to arrest the judgment-debtor and (b)
that the warran t or authority had been legally issued by a competent authority. A IR 1961 Ker 331.
(5) Where the search warrant issued to a police officer empowered him to search the house of -a
particular person to find out a woman who was alleged to be unl&wfully detained and ' oman was
not found in the house but was found in a field and was taken custody of and the accused rescued her
from such custody, it was held that the custody wasn.t lawful. A IR 1928 Pat 550.
(6) It does not matter that the accused had torn up the defective warrant in pursuance of which the
arrest was effected. A IR 1923 A ll 87. ' , .
Sec. 225B Penal Code 623
> (7) A distinction must be made between a warrant which is illegal and a warrant which is only
informal. AIR 1926 Sind 190.
(8) An arrest is not illegal merely because the warrant was not addressed to the bailiff of the Court
by name but only to the 'bailiff of the Court'. AIR 1915 Mad 225.
(9) The warrant for the arrest of ajudgment-debtor must be issued to a person named and when the
warrant is not so issued, the judgment-debtor who escapes from the custody of the person executing the
warrant does not commit an offence under this section. AIR 1962 Ker 258. - - -
(10) In a case where there was a simultaneous issue of warrant and notice and the judgment-debtor
refused to accept the notice and resisted the execution of warrant, it was held, that the conviction for an
offence under this section is sustainable. A IR 1932 Pat 315. - -
8. Seal of the Court inthe warrant.—(l) The omission of the seal of the Court on a warrant
renders it void and a person offering resistance to apprehension on such a warrant does not commit an
offence under this section. AIR 1939 Rang 320. - -
9. Necessity to show the warrant.—(l) A Civil Court's warrant of arrest need not be shown to
the person to be arrested in the first instance but it is the duty of the bailiff to acquaint him with the
contents of the warrant ind if the accused then wants to see the warrant it would be the duty of the
bailiff to show the warrant to him. A IR 1921 Cal 79. -
(2) An officer with a warrant of arrest must show the warrant to the person to be arrested. A IR 19/6
A ll 53. - - - - -
10. Identity of the person to be arrested.—(1) If the description in the warrant of the person to
be arrested is wrong, it makes the warrant invalid and the arrest illegal. 1961 Ker Li 695. -
(2) Where an arrest warrant described the accused as plaintiff instead of as defendant but there was
no mistake about the name or identity of the accused. it -was held that the warrant was not illegal and
that the conviction was not bad unless the accused had been prejudiced. (1926) 51 MadLi (Notes) 36.
11. Delegation of authority.—(1) The delegation of authority to execute a warrant must be made
properly. An endorsement to that effect on the warrant is prima fade evidence of the authority of the
person to whom the warrant is delivered by the Nazir for execution. Where, however, there is no such
endorsement on the warrant, the delegation of authority cannot be considered as proper and
consequently the arrest effected by the person to whom the warrant is handed over for execution
becomes illegal. AIR 1962 Ker 258.

-- (2) The warrant must be signed by the person who has been duly authorised to sign it. A IR 1938
tvIad536 - - - ,- - - -
- (3) The fact-that the person whóThad no authority to sign the warrant had been doing so for a long
time will not make the warrant legal. A IR 1934 Mad 206 - --
(4) The Nazir of the Court is incompetent to extend time for the execution of a-warrant, but where
the extension is endorsed by the same officer who has originally issued the warrant and the
endorsement appears on the -warrant itself, the warrant is legal. AIR 1926 Cal 605.
- 12. Sentence.—(1) A nominal punishment (fine of Tk. Il-) was held sufficient where on the facts
of the case, the offence was held to be a technical one. AIR 1933 Mad 278.
13. Procedure.-() In cases under this section, the proper person to make the complaint is the
officer from whom the escape or rescue has been effected, but a complaint by another person aware of the
624 Penal Code Sec. 226-227

facts is not a nullity. A Magistrate is competent to make a complaint as a common informer. A IR 1933
Lah 884.
(2) The findings of the lower Court that one of the accused escaped from the arrest and another
accused assisted him to escape cannot be challenged in revision under S. 401, Criminal P. C., when
there is evidence on record that justified the finding. A IR 1945 Mad 409.
(3) The High Court will not interfere in revision with an order of acquittal, where the institution of
the proceedings itself is irregular. A IR 1925 A ll 318.
(4) Cognizable—Warrant—Bailable—Not compoundable—Triable by any Magistrate.
14. Practice.—Evidence—Prove: (I) That the accused offered some resistance or illegal
obstruction.
(2) That he did so (a) to prevent the lawful apprehension of himself or of any other person, or (b) to
escape or attempt to escape from any custody in which he is lawfully detained, or (c) to rescue or
attempt to rescue some person from some custody in which that person was lawfully detained.
(3) That he did as in (I) intentionally.
15. Charge.—The charge should run as follows:
I. (name and office of the Magistrate.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at----intentionally offered resistance or illegal obstruction to
the lawful apprehension by—ofX or yourself or escaped or attempted to escape from the custody of—in
which you were lawfully detained or rescued or attempted to rescue one X from the custody of—in
which he was lawfully detained and that you thereby committed an offence punishable under section
225B of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 226
19[* * * * * * * 1

Section 227
227. Violation of condition of remission of punishment.—Whoever, having
accepted any conditional remission of punishment. knowingly violates any condition
on which such remission was granted, shall be punished with the punishment to which
he was originally sentenced, if he has already suffered no part of that punishment, and
if he has suffered any part of that punishment, then with so much of that punishment
as he has not already suffered.
Cases and Materials
1. Scope.—(l) It is for the Court to decide under this section whether a conditionally released
prisoner had knowingly violated the conditions of which remission was granted to him and until he
has been found guilty under this section it is not for the jail authorities to say that he had committed
an offence under this section. A IR 1933 Rang 28.

19. Section 226 was omitted by Ordinance No. XLI of 1985.

Penal Code 625
Sec. 228
(2) A Magistrate cannot pass a sentence on a person for, an offence under this section in excess of
what he is empowered to pass under the Criminal P C. A IR 1929 Rang 279.
(3) In a charge for an offence under this section the fact of the conviction of the accused, its date and
the sentence passed should be proved by documentary evidence. So also, the facts that the accused
person was granted remission of punishment and the conditions on which the remission was granted
must be proved by. documentary evidence. But the fact that the accused is the person convicted,
sentenced and granted remission and that he had committed a breach of a condition of the remission
may be proved by oral evidence. A IR 1929 Rang 278.
•2. Practice.—Evidence--Prove: (1) That the nature and extent of the original punishment to
which the accused had been sentenced.
(2) That such punishment had been remitted.
(3) That such ' remission had been granted to and accepted by the accused upon a certain condition.
(4) That the accused violated such condition.
(5) That he did so knowing tháthe was violating such condition.
(6) That whether the accused has already suffered any part of the. original punishment.
3. Procedure.—.Not cognizable—Summons--Not Bailable—Not compoundable—Triable by the
Court by which the original offence was triable.
.4. Charge.—The charge should run as follows:
I, ' (name and office of the Magistrate) hereby charge you (name ofthe accused) as follows:
That you, on or about the—day of—were sentenced in cse no.—of—by the Court—of—to
(mention the punishment) and which punishment was remitted oil—by the order of—on your accepting
the condition, to wit—and which you accepted and which you knowingly violated in that on or about
the—day of—your—(state the- nature of violation) and that you thereby committed an offence
punishable under section 227 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 228
228. Intentional insult or interruption to public servant sitting in judicial.
proceeding.—Whoever intentionally offers any insult or causes any interruption to
any public servant, while such public servant is sitting in any stage of a judicial
proceeding, shall be punished with simple imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand '[taka], or .with both.
Cases and Materials . 'Synopsis
1. Scope of the section. 10. Illustrative cases.
2. The section and S.'345, Cri P.C. 11. High Court and Subordinate Courts—
Jurisdiction for proceeding in contempt.
3. Intention.
4. Public servant. 12. Duty of court
5. Judicial proceedings. 13. Apology..
6. Silting in a stage of a judicial proceeding. 14. Procedure.
7. Interruption. IS. Practice.
co 8. Conduct of an advocate. 16. Charge.
9. Application to Court. 17. Complaint.
626 Penal Code Sec. 228
I. Scope of the section.—(1) The crime of contempt of court lies in the disrespect shown to the
person administering justice and the need to protect him against intentional insults and avoiding
interruption of proceedings. This section cannot be invoked when contempt of court is committed
outside the Court and when the Court is not sitting. Mere fact that a judicial officer feels insulted is not
the test (A IR 1943 A ll 97). To constitute an offence under section 228: (a) there must be either insult or
interruption, (b) the insult or interruption must be intentional, and (c) the insult must have been offered
or the interruption caused to a public servant sitting in any stage of a judicial proceeding. The offence
of contempt of court except in the matters dealt with in this section has been made punishable under
the Contempt of Courts Act and in the case of superior Courts under the Constitution of the People's
Republic of Bangladesh. An intentional disobedience by a person of the order of the Court leads to the
conclusion that the person offered insult to that officer (A IR 1960 Pat 309). The Supreme Court in a
case reported in A IR 1959 SC 102 pointed out that the object of contempt proceedings is not to afford
protection to Judges personally , from imputations to which they may be exposed as individuals, it is
intended to be a protection to the public whose interests would be very much affected if by the act or
conduct of any party the authority of the Court is lowered and the sense of confidence Which people
have in the administration of justice by it is weakened. Any criticism of the conduct of a Judge which
cannot possibly have th tendency to obstruct or interfere with the administration of justice, is not
contempt of court, even though it may be a libellous attack on the Judge. Thus an attack on a Judge for
conduct not connected with his judicial functions will not come within the mischief of contempt of
court. The mere fact that an act of a person has annoyed a Judge cannot make it contempt of court
(PLD 1961 Lah 51) The procedure under this section is summary trial (PLD 1967 Lah 1231).
But
the right of the subjects are guided by making it imperative on the Court to prepare the record as
provided in section 481, CrPC. As the procedure under section 480; CrPC is in the nature of a
summary trial the necessity is all the greater for a full, and clear record which is not only a guarantee of
the coolness and judicial temper of the presiding officer but which affords materials for the Appellate
Court to proceed on (1969 .PCrLJ 627). An omission to record the particulars required by this section
is fatal to the proceedings under section 480, CrPC. The record of the Court must show the nature and
the stage of the judicial proceedings in which the Court was interrupted or insulted and the nature of
the interruption or insult. The record should show how the accused had acted or what he had stated or
what caused interruption or insult. In respect of an alleged contempt under section 228, PC it is
- necessary for the court to state to the accused, the particulars of the offence of which he is accused and to
give an opportunity to him of explaining and correcting any misapprehension as to what had, in fact,
been said or meant by him. This opportunity is all the more. necessary to be given in a summary
proceeding under section 480 as the Court itself is the prosecutor and the prosecution witness and there
is to be no trial or examination of witnesses and the only opportunity for the accused to make a
statement is in reply to the question put to him under section 242, Cr.P.C. The failure to do so
amounts to miscarriage of justice and is fatal to the proceeding (1968 PCrLJ 628, A IR 1963 Tri 50).
An offence under this section cannot be tried except by a Court and under section 228 of the CrPC the
Court itself must be the Court which has been interrupted or insulted. In such cases where the offence
falls under section 228, Penal Code, the High Court Division has no jurisdiction to proceed to try the
accused for contempt of Court (1969 PCrLJ 920).
(2) In the facts and circumstances of the present case, when the offender begged to be excused, the
matter ought to have been dropped. Moshiur Rahman (Md) V3. State (criminal) 53 DLR 42.
(3) Council Fees of a lawyer vary from lawyer to lawyer depending upon many factors. The
Tr ibunal shall have the same powers as vested in a Civil Court for the purpose of inquiry and every
enquiry as such shall be deemed to be judicial proceeding within the meaning of sections 193 and 228
Sec. 228 Penal Code 627

of the Penal Code—A Tribunal shall be deemed to be a Civil Court for the purposes of sections 480
and 482, CrPC. 42 DLR 201.
(4) TI parade held for identification of accused is not ajudicial proceeding while an officer disobeys
the order of a Magistrate to bring an accused person for T I parade, the officer disobeying that order is
not guilty of contempt of Court, it not being a judicial proceeding and therefore he cannot be hauled up
under section 228 of the Penal Code. 29 DLR 355.
(5) Contempt of Court—Object of the section is to guard the respect due to a Court of law and
against interruption and insult while acting as such. Court's duty, is to see that what is objected to
really amounts to insult or interruption of the work. Contempt proceeding is not to be used as a
protection to a Judge in his individual capacity. Underlying idea is to maintain the authority of the
Court in the estimation of the public and that confidence injustice is not shaken. While sitting as a
Court of law the judge should not be too sensitive, should have a measure of indulgence to lawyers
when arguing case. 29 DLR 311.
(6) Contempt of Court—For breach of the Court's order, when is and when is not. It is no doubt
true that for justifying a committal for breach of a prohibitory order it is not necessary to actually prove
service of the order upon the party. Jurisdiction to punish by such a short-handed method should be
exercised with circumspection only. in extreme cases upon clear proof of a wilful disregard. 19 DLR
(SC) 103.
(7) Ingredients of the section that must be satisfied—namely, insult or interruption to a "public
servant" in a "judicial proceeding" held before an authority which must be a "Court". Section 228 is
wide enough for the purpose of bringing into the mischief of the section any person guilty of insulting
or causing interruption to a public servant engaged in a judicial proceeding. In the first place, the
"public servant" mentioned in the section, must be engaged in a "judicial proceeding". The CrPC
does not permit trial of any offence under the Penal Code except by a Court. Only a Court can conduct
a trial under section 228 of the Penal Code. An offence under section 228 of the Penal Code cannot be
tried, except by a Court and under section 28 of the CrPC the Court itself must be the Court which has
been interrupted or insulted. In the present case conviction under section 228 Penal Code by the
respondent—the Additional Deputy Commissioner, is wholly without jurisdiction because he was not
engaged in a judicial proceeding, he was not acting as a Court, and he could not (even if he is treated
to be a Court) pass a sentence of fine exceeding Taka 200.00. 19 DLR 354.
(8) A revenue officer not authorised to pass a sentence of fine (or imprisonment) for contempt of
Court under section 480, CrPC he not being designated as a Court within the meaning of "any Civil,
Criminal or Revenue Court". His remedy for contempt lies in making of a complaint under section 28,
CrPC. Section 480, CrPC does not empower an Industrial Court to impose punishment for insult or
interruption to itself. 17 DLR (SC) 477.
(9) Preliminary inquiry in respect of an offence mentioned in the section not mandatory—In respect
of a case under section 228, PC the court itself can try the offence. The Magistrate has an option when
the charge is one under section 228, PC to try the case himself or send it to some one else. The offence
under section. 228 is one which in the very nature of things is committed in the full view of the public
servant, engaged In a judicial proceeding and as such, in a case of this nature omission to record a
finding cannot be considered to be , fatal if it appears from the facts and circumstances of the case that
such a trial would be in the interest of justice. 16 DLR 519.
628 Penal Code Sec. 228

(10) Contempt of Court—conduct that tends to bring the administration of law by a Court into
disrespect amounts to a contempt. This power should be used sparingly and only in serious cases and
that Court should not be either unduly touchy or over-astute in discovering new varieties of contempt.
for "its usefulness depends on the wisdom and restraint with which it is exercised". Every non-
disclosure of a relevant fact or abuse of every process of Court, because.it has remote possibility of
deflecting justice—does not amount to contempt. In a contempt proceeding a reprimand is a recognised
move of punishment (Ref 1969 Pak CrLf 627) 15 DLr. (SC) 150.
(11) Provisions of the section to be applied immediately. Proceeding under section 228 follow the
procedure laid down in section 480. CrPC and the provisions of that section have to be applied by the
Court then and there before its rising. 2 DLR 80.'
(12) Imputing impartiality of justice or Court fo its face constitutes gross contempt. 7 PLD 16 Lah.
(13) Contempt of Court—Cases of—to be treated with much discretion—Weapon of contempt "to
be used sparingly and d1ways with reference to administration of justice". Person alleged to have
adopted rude behaviour towards Judge when he was not engaged in judicial proceeding but was acting
in his administrative capacity—No case of contempt—conduct, imputed to person, falling within the
purview of section 228, PC—High Court has no jurisdiction for proceeding in contempt in such case.
1969 P.CrLJ 920 (SC). .
(14) Advocate, without ceremony of employing normal forms of address, addressing Court in
insolvent tones, criticising court's order as "wrong", refusing to leave Court room when ordered to
withdraw but leaving Court room, whenthreatened of forceful expulsion, uttering words "I am going
but I shall not withdraw my remarks" thereafter loudly and vehemently criticising and denouncing
Court's order outside court room and inciting party affected to disobey Court's order—Held: guilty of
gross contempt—Maximum punishment awarded—Jurisdiction—Contempt of Court—Proper tribunal
to decide—Judge in whose presence contempt committed. Apology—only unreserved and
unconditional apology to be considered for condonation of offence or for leniency in punishment .—
Contemner justifying his misbehavior in his statement but adding at end that he had no desire to
commit contempt of court, that he assured unabated respect for it and hastened to tender personal
apologies if he had unwittingly hurt feelings of Court—Words held worse than no apology'. 1967 PLD
1231La/i. .
(15) Where a person publishes certain allegations against a judicial officer, and such allegations are
punishable as defamation under Section 499 and are not punishable under any specific provision of the
Code as contempt of Court the jurisdiction to the High Court to take action against him for contempt
of Court in respect of such allegations, under the Contempt of Courts Act, is not barred by the Act
irrespective of the availability of the remedy of prosecution of the offender for defamation under S. 499.
A IR 1952 SC 149.
(16) Where, the matter charged is not only an insult to an individual public servant but amounts
to what has been termed "scandalising the Court itself', the accused person will be liable to
proceedings for contempt of Court and the Contempt of Courts Act read with S. 228 of the Code will
not be a bar to such a proceeding. A IR 1959 SC 102. .
(17) The aim of all proceedings for contempt of Court is to deter 'men from offering indignities to a
Court of Justice. AIR 1952 SC 149. . .
(18) The object of contempt proceedings is not to afford protection to judges personally from
imputations to which they may be exposed as individuals: it is intended to be a protection to the
Sec. 228 Penal Code 629

public whose interests would be verymuch affected if, by the act or conduct of any party, the authority
of the Court is lowered, and the sense of confidence which people have in thç administration ofjustice.
by it is weakened. A IR 1954 Sc io. .
(19) The essential ingredients of this section: (a) intention. (b) insult or interruption to a public
servant, and (c) the public servant insulted or interrupted must be sitting in anystage of a judicial
proceeding. A IR 1959 SC 102.
(20) The offence dealt with by this section is a criminal contempt as distinguished from a civil
contempt which consists of disobedience of an order or process of a Court causing private injury to
persons; A IR 1953 Cal 627.
2. This section and S. 480, Cr. P. C.—(1) The difference between S. 228, P.C. and S. 480.
Cr.P.C. is that—(i) while S. 480. Cr.P.C. empowers a Civil, Criminal or Revenue Court, to take
action when an offence described in Ss. 175, 178, 179, 180 or 228 of the P.C. is committed in it
presence. S. 228, P.C. empowers any public servant to take action when a person intentionally offers
insult or causes interruption to him while he is sitting -in any stage of a judicial proceeding. (ii) S.
480, Cr.P.C. empoyers the Courts referred to therein to take action , not only, when offence is
committed under S. 228, P.C. but also under other sections referred to therein whereas the power
conferred under S. 228 on a public servant is limited only to the extent that if any person offers insult
or causes any interruption to him while he is sitting in any stage of a judicial proceeding he can punish
him. 1978 CriLJ 1040 (Guj).
3.Intention.—(I) To constitute an offence under this section there must be an intentional insult
or interruption of proceedings. 1974 CriLJ 211 (Mys).
(2) The question is not whether a judicial officer felt insulted but whether an insult was intended.
A IR 1968 Cal 249: 1968 CriLJ.
(3) Whether there is an intention to offer insult to the Magistrate trying the case or not must
depend on the facts and circumstances of each case. A IR 1959 SC 102.
(4) Where an accused, while being questioned under S. 313, Criminal P. C. called the Judge "a
prejudiced Judge" and on being asked to withdraw the statement refused to do so, it was held that the
words used and the conduct of the accused in not withdrawing those remarks go to show that he had
the intention to insult the Judge. A IR 1922 Born 261.
(5) Where the presiding officer of Court asked the accused to quit the Court but the accused
insisted upon staying in spite of the warning that action for contempt of Court might be taken against
him, it was held that the conduct of the accused in remaining in the Court in spite of the warning
showed that he had the necessary intention. A IR 1960 Pat 309.
(6) The exchange of remarks by accused while being examined by the Court does not amount to
intentional insult or interruption. A IR 1925 Nag 403.
(7) Audible remarks which interrupt the proceedings do not amount to intentional insult or
interruption. A IR 1916 Mad 648.
(8) The fact that an application to the Court by an advocate, for transfer of a case from that Court to
another, is not happily worded does not give rise to a presumption that the petitioner intended: to
insult the presiding officer. A IR 1916 A ll 330.
4. Public servant.—(1) Member of a 'Panchayat Adalat' is a public servant. A IR 1952 A ll 306.
(2) An advocate even though a part of the machinery of the administration of justice is not a
public servant. A IR 1966 Born 19.
630 Penal Code Sec. 228

5. Judicial proceedings.—(1) The expression 'judicial proceeding' is a general expression for

proceedings in Courts, for the course authorised to be taken in various cases to secure the determination
of a controversy; to obtain the enforcement of a right or the redress or the prevention of a wrong. ILR
(1973) HimPra 1301 (1304).
(2) An enquiry is judicial if the object of it is to determine the jural relations between one person
and another or a group of persons or between him and community generally, and in the absence of such
an object in view, even a Judge cannot be said to act judicially. A IR 1965 HimPra 25.
(3) The following proceedings were all held to be judicial proceedings:
(a) Proceedings before the Debt Settlement Board under S. 50 of the Bengal Agricultural Debts
A ct, 1935. A IR 1940 Cal 286
(b) Proceedings under the Income-tax Net are deemed to be judicial proceedings for the purpose of
S. 193, S. 228 and S. 196 of P.C. A IR 1964 SC 1154.
(c) Proceedings before a Sub-Registrar. (1874) 13 BengLRAp 40.
(d) Proceedings of the Conciliation Board constituted under the Relief of Indebtedness Act. AIR
1938 Lah 366
(e) Enquiry by Customs Officer under the Customs Act. AIR 1971 SC 1087.
(f) Proceedings before the Rent Control and Eviction Officer are judicial proceedings within the
meaning of Ss. 193 and 228 of P.C. AIR 1982 SC 1238.
(4) The following have been held not to be judicial proceedings:
(a) Proceedings before the Settlement Officer under the Holdings Act. AIR 1965 Punj 454.
(b) Proceedings in departmental enquiry before a District Magistrate. (1906) 3 CriL.J 376.
6. Sitting in a stage of a judicial proceeding.—(1) In order that the act of the accused should
amount to an offence under this section it must be done while the public servant is sitting in any stage
of a judicial proceedings. (1884) ILR 10 Cal 109 (PC).
(2) Where the evidence does not disclose that the public servant was sitting in any stage of a
judicial proceeding the conviction under this sectiob cannot stand. AIR 1959 SC 102.
(3) The mere fact that the judicial proceeding is pending on the file of the public servant is not
sufficient. 1971 CriLJ 742 (Orissa).
(4) Where the order of the Magistrate showed that he was engaged in the trial of criminal cases and
that he had finished recording the deposition of a witness and was going to proceed with the recording
of other depositions, when the interruption occurred, it was held that this was sufficient to indicate the
case in which he was engaged and the stage at which he was interrupted. AIR 1953 Hyd 285.
(5) Where the record of the proceedings do not show the nature and the stage of the judicial
proceedings in which the Court was sitting and the nature of the interruption or insult, the conviction
under the section cannot be upheld. 1969 Cr/Li 582(583) (DB) (Raj).
(6) The failure to state in the order convicting the accused under this section that the judge was
sitting in a stage of judicial proceeding and the nature of the proceeding in which he was so sitting, are
not irregularities curable under S. 465 of the Criminal P.C. AIR 1931 Nag 193.
(7) The pronouncement of judgment is a stage of judicial proceedings. AIR 1952 All 306.
(8) An enquiry conducted by an officer of the Railway Protection Force is a judicial inquiry. 1970
A ll CriR 437:
Sea. 228 Penal Code 631

• (9) A private interview with a District Magistrate is not a stage .ofjudiciai proceeding. AIR 1948
Sind 97.
(10) Magistrate dismissing complaint under S. 203, Cr. P. C. and directing complainant to fetch
his lawyer—thereafter Magistrate is not sitting in a stage ofjudicial proceeding. AIR 1956 Orissa 28.
7. .lnterruption.—(1) It is not a sine qua non that the alleged interruption must delay the'
proceedings of the Court for any length of time. The determining factor is notthe duration of the time
but the nature of the act committed by the accused. AIR 1918 Lah 65,
8. Conduct of an advocate.—(l) The law allows some latitude to a member of the Bar acting
bona fide in the discharge of his professional duty, so long as his conduct is not clearly vexatious so as
to lead to the inference that his intention is to insult or interrupt the Court. 1954 CriL.J 1008.
(2) The mere circumstance that the counsel expressed hisT intention to retire from the case or to
move for.transfer of the case does not constitute a threat or insult. AIR 1956 Mys 60.
(3) A counsel may legally advise his client at a criminal trial not to answer questions put to him
and when he so advises his client when questioned under S. 313, Criminal P. C., he does not commit
an offence under this sectjon. (1906) 3 Cr1LJ 134 (Lah).
(4) When a lawyer is being prosecuted on a charge under this section, and he asserts that he would
not tender any apology because he has not committed the offence and that on the question of law
involved in the case he would like to secure a pronouncement from the highest Court by making it a
test case, he is perfectly within his rights and does not transgress any law. AIR 1943 Lah 14.
(5) Every act of discourtesy by counsel does not amount to contempt. 1969 CriLi 582.
6. Lawyer's right.—Preventing a legal practitioner in the discharge of his legal duties, illegal.
Bench and Bar, complimentary—both unitedly engaged in the performance of an essential public
service—Patience and reasonable indulgences coupled with restraint benefit both. The law of contempt
is a device to restore the balance in the scales of justice, when upset, by unauthorised interference with
processes of law punishment, which may lead to a cul de sac, has never been by itself, the end of law.
9. Application to Court.—(1) If application containing an insult to the Judge, is made to the
Court when the Judge is not sitting in a stage of judicial proceedings and is filed in the office of the
Court, the third essential element (i.e., the judge must be sitting in a stage of judicial proceeding) is
wanting and this section will not apply. AIR 1959 SC 102.
(2) An application made to the Judge while sitting in a stage of judicial proceeding may contain
language which cannot be said to be mere insult to the Judge, and may amount to scandalising the
Court itself impairing the administration of justice. Such cases may fall under the Contempt of Courts
Act and the High Court may take proceedings under that Act against the offender. AIR 1959 SC 102.
10. Illustrative cases.—(1) The following havebeen held not to be offences under this section:—
(a) Appearing in Court in a drunken state. AIR 1956 All 258. -
(b) Fighting in Court verandah which did not interrupt the Court proceedings. A IR 119 A ll 330.
(c) An assessor appearing in a dress consisting of a cap and a scarfAJR 1933 Born 478.
(d) Prevarication on the part of a witness. 1873 Rat UnCriC 69.
(e) Prevarication and refusal by witness to answer questions. (1873) 10 BomHCR 69.
(f A neglect or refusal to return direct answers to questions. AIR 1925 All 239.
(g) Undefined.risoner merely uttering some words and not keeping silent. (1906) 4Cr/Li 210..
632 Penal Code Sec. 228

(h) A lawyer resenting an unwarranted remark by the Magistrate. AIR 1943 Lah 14.
(i) A rude remark not addressed to the Court but overheard by it. AIR 1943 Lah 14.
(j) An act of a lawyer in calling the attention of the Presiding Officer or the Court to the rude
behaviour of the Court peon. AIR 1943 Lah 14.
(k) Merely asking a witness not to go as he has to be cross-examined. AIR 1923 Lah 88.
(I) Mere audible remarks interrupting Court's proceedings but not intended to cause interruption.
1973 Cr1LJ 1064 (Orissa).
(m) Mere refusal to enter into the witness box by a party on being so directed by the Magistrate.
1935 MadWN 704. . .
(n) Disobedience to a summons to appear in Court. I Weir 215.
(o) Leaving the Court when ordered not to leave the Court. I Weir 215:
(p) Making signs from outside to a prisoner who is on trial. I Weir 214.
(q) Exchanging remarks with co-accused when he was being examined by the Magistrate. AIR
1925 Nag 403. . . .
(r) Mere disturbance of Court work without intention. 1956 BUR 652.
(s) Party failing to comply with the Court's order for production of account books. A IR 1955
NUC (Raj) 4627.
(t) A guardian giving a minor in marriage without obtaining the Court's permission. AIR 1933
Pat 142. .
(u) Mere persistence of advocate in putting question to witness after disallowance by Court.
(1972) 13 GujLR 548. .
(v) Counsel stating that he would move for transfer in each and every case before the Magistrate
and would see him—No offence. 1969 CriLJ 582 (Raj).
(w) Person attending Court as witness—Daffadar of Court asking him on orders of Court to stay
away from Court hall and to come only when called—Disobedience—No direct order of Court
to the person—Held: no offence u/s. 228 is made out. (1917) 23 MysCCR No. 125, p. 82.
(x) Refusal of accused to sign statement made by him when required by Court—Offence under S.
180 and not under Section 228, P.C. (1900) 5 Mys CCR No. 165, p. 852.
(2) The following may amount to offences under this section:—
(a) Prevarication or persistent refusal to answer questions amounting, under the circumstances, to
an interruption to a public servant, sitting in a stage of judicial proceeding.. 1889 Rat Un
CriC 473.
(b) Persistently putting irrelevant and vexatious questions after warning. 1867 Pun Re 44, p. 80.
(c) Protests made to Court with the sole object and intention of interrupting the Court. AIR 1953
Hyd285.
(d) Accused during the hearing of the case making an impertinent threat to a witness in the box.
AIR 1923 All 193.
(e) Accused abusing the Adhikari (sitting as a village munsif) vulgarly in Court. 1934 Mad W N
398.
(0 Pleader insisting upon cross-examining a witness on answers given by him to questions put
by the Court. (1903) 8 Mys CCR No. 342, p. 293.
(g) Accused telling a Magistrate in a judicial proceeding that "the Magistrate was not fit to sit on
the chair and that the trial was high-handed". 1977 All Cri R 308(308).
Sec. 228 - Penal Code 633

11. High Court and Subordinate Courts—Jurisdiction for proceeding in contempt.—( l) No

power to punish for contempt of an inferior court now exists in the High Court independently of the
Contempt of Courts Act. So far as the subordinate Courts are concerned, they have no power to punish
for contempt outside the provisions of the Code. A IR 1930 A ll 225.
(2) The High Court has the right to protect subordinate Courts against contempt subject to the
restriction that cases of contempt which have already been provided for in the Code should not be taken
cognizance of by the High Court. If in its true nature and effect the act complained of is really
scandalising the Court rather than a mere intentional personal insult to the Magistrate, the jurisdiction
of the High Court to take contempt proceedings is not ousted by the Contempt of Courts Act. A IR
1959 SC 102.
(3) Even if the .facts of a case disclose an offence which may fall under S. 228, the case may be
triable as a contempt under the Contempt of Courts Act if the acts complained of could not be confined
to what would be covered by S. 228 of the Code. A IR 1972 Sc 905.
12. Duty of Court.—(l) It must be considered in each case how insulting the expressions used
are and whether there was any necessity for the accused to make use of these expressions. Where there
was no necessity to use the insulting epressions and they were intentionally used it would not be
wise to pass over such action in silence. A IR 1943 A ll 97.
(2) The Judge should exercise a judicial balance in deciding to take action or not, having regard to
the particular circumstances of the case. A IR 1937A 11 171.
(3) Powers given to judicial officer under this section are given exclusively for the purpose of
supporting the dignity of his important office and not for upholding his own vanity. A IR 1960 Punj
211.
13. Apology.—(l) Section 484 of the Criminal P. C. provides for the discharge of the accused
who is charged with an offence under this section on his tendering an apology, in the circumstances
mentioned in that section. 1980 CriLJ (NOC) I (A ll).
• (2) An apology tendered by the accused must be voluntary, unconditional and indicative of
remorse and contrition and should be offered at earliest opportunity. Justification of his act by the
contemner and at the same time tendering an apology are incompatible and incongruous. Such an
apology cannot but be taken to be an afterthought put forward in the hope of avoiding the consequence.
Such an apology cannot be entertained. A IR 1969 Pat 323.
14. Procedure.—(l) As regards trial two courses are open to the Court before which an offence
under this section is committed. It may itself take cognizance of the offenceon the same day before the
rising of the Court and award punishment, as provided by S. 476 of the Criminal P. C. or it may
• proceed under S. 480 and make a complaint. A IR 1969 Pat 323.
(2) Where as regards an offence under this section the Court acts under S. 476 of the Criminal P.
C. it should follow the procedure prescribed by $.'476. A IR 1963 Tripura 50
(3) The Court trying an offence under this section is not bound to hear any evidence. It can rely on
• its own opinion of what happened and can detain the offender in custody, take cognizance of the offence
and sentence him. But all that must be done before the rising of the Court i. e., on the same day. A IR
1942 Born 206 (1).
(4) The record must show the nature and the stage of the judicial proceedings in which the Court
°' interrupted or insulted was sitting and the nature of the interruption or insult, and omission to set forth
634 Penal Code Sec. 229

the particulars as required by S. 481 Cl.(2) Crirnliäl C., is not merely an irregularity which could
be corrected by the application of S. 537.. bUt Ia fatal to the proceedings. AIR 1968 Cal 249.
(5) If the facts of a case te''eaI that offences under Ss. 228 and 353 or 506 of P.C. are committed
they cannot be split up in order to avoid the operation of S. 195, Cr. P.C. 1975 P un Li (Cri) 15.
(6) An offence under this section may be tried summarily. AIR 1952 All 306.
(7) Not c ognizable—Summons—Bailable--Not by the Court in which
the offence is committed subject to the provision of Chapter XXXV of the CrPC (section 480 CrPC).
15. Practice.—Evidence-----prove: (1) That the person offended is a public servant.
(2) That at the time of the offence, such..public servant was sitting in some stage of judicial
proceeding.
(3) That whilst he was so sitting the accused offered an insult to such public servant, or caused
some interruption to him.
(4) That he did so intentionally.
16. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you—on or about--at--intenti6al1y offered insult or caused interruption namely—to a
public servant while he was sitting in a judicial proceeding namely (specify the proceeding) and thereby
committed-an offence punishable under section 228, Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
17. Complaint.—No prosecution case be legally initiated without the previous complaint in
writing of the Court concerned or of some other Court to which Court is subordinate (section 195 (b) of
the CrPC). .

Section .229 .
229. Personâtjon of a juror or assessor.
Whoever, by personation or
otherwise, shall intentionally cause, or knowingly suffer himself to be returned,
empanelled or sworn as ajuryman or assessor in any case in which he knows that he
is not entitled by law to be so returned, empanelled or sworn, or knowing himself to
have been so , returned, empanelled or sworn contrary to law, shall voluntarily serve on
such jury or as such assessor, shall be punished with imprisonment of either
description for a term which may extend to two .years, or with fine, or with both.
Materials
1. Scope.--(I) The jury and assessor's trials have been abolished before the birth of Bangladesh.
(2) The onus to establish a plea of insanity is on the accused. But the prosecution had to take the
initiative to bring all relevant facts and special circumstances, if any, into light which were in existence
prior to commission of the crime. Nikhil Chandra Haider V. The State 2 7 BLD (HCD) 197.
CHAPTER )GI
Of Offences relating to Coin and Governnt Stamps
.

Chapter in1roduction— A t the time the Coç,q. was; enacted, there were numerous coins
or several pieces varying in . qu , l4y. nd fineness, but the authors of the Code
recommended that Gove men coins should be protected first. They did not then suggest
any measures to protect stamps or currency notes but the Chapter was afterwards
revised to include stamps. This Chapter now deals with offences relating, to coin (cections
230 to section 254) and offences relating to stamps (sections 255 to 263-A ). Offences..
relating to coins comprise counterfeiting of coins and alteration of coins. The offrnces
'included in this Chapter are extradition offences. W hen paper currency was introduced,
Secs. 489A to 489E came to be inserted in the Code. Before these sections came to be
inserted, such offences were dealt with under Secs. 467 and 471 of the Code.
The offences relating to coins fall under.:—
(I) Counterfeiting. Secs, 231, 232. .
(2) Criminal acts of the employees of Mint. Sec. 224.
(3) A lteration of coins. ('Seas. 246, 247, 248, 249, 250. 251, 252, 253 and 254).
A s regards Govt. stamps the following offences are punishable:—
(a) Counterfeiting: Sec. 225.
(b) In possession. Sec. 256
(c) Making any instrument. Sec. 254.
(d) Sale of Govt. stamp .' Sec. 258
(e) Intending to sell or dispose of.' Sec. 259.
( Using or giving.' Sec. 260.
(g) Fraudulently removing,' Sec.. 261. .
(Ii) Using used stamp .' Sec. 262.
The actual counterfeiting can rarely be directly proved by positive evidence. It is
usually made out by the circumstantial evidence such as the finding of coining tools in
the offender's house together with pieces of counterfeit money, some in a finished and
some in unfinished stage or such other evidence as is sufficient for the drawal of the
inference that the offender has been engaged in counterfeiting coins. The definition of
counterfeiting given\ in section 231 is exactly the same in substance as that given-,in
section 28 with the further addition of the words and it is not essential to counteifeiting
that the limitation should ' be exact. W here a' trifling varies from the real coin' in the
inscription effigies or arms, does not take the case out of the statute' and although the
counterfeit coin was made of a different 'metal from the real coin as lead, tin, copper etc.
gold or silvered over yet it amounted to a counterfeit within the statute.
636 1 Penal Code Sec. 230

Section 230
230. "Coin" defined.-' [Coin is metal used for the time being as money, and
stamped and issued by the authority of some State or Sovereign Power in order to be.
so used.]
2 [Bangladeshl coin.- 2 [Bangladesh] coin is metal stamped and issued by the
authority of the Government 3[ * * I in order to be used as money; and metal which
has been so stamped and issued shall continue to be 2 [Bangladesh] coin for the
purposes of this Chapter, notwithstanding that it may have ceased to be used as
money.]
Illustrations
(q) Cowries are not coin.
(b) Lumps of unstamped copper, though used as money, are not coin.
(C) Medals are not coin, inasmuch as they are not intendea to , be used as money.
(d) The coin denominated as the Company 's 4[taka] is the Queen's coin.
5[(è) The "Farukhabad" 4 [taka], which was formerly used as money under the
authority of the Government of India, is 6[Bangladesh coin] although it is no longer so -
used]
Case and Materials
1. Scope—( 1) Taka or paisa of a certain year withdrawn from circulation ceases to be coins within
the meaning of this section. An imitation of an ancient coin, gone out of circulation, would not be a
counterfeit coin because it is not used as money.
(2) The test of whether a particular piece of metal is money or not is the possibility of taking it
into the market and obtaining goods of any kind in exchange for it. For this its value must be
ascertained and well-known. That it is known to persons of special skill or information is 'not
sufficient. (1874) 11 Born HCR 172.
(3) A gold mohur of the reign of Shahjahan was held not to be a coin within the meaning of this
section as it was not used for the time being as money. (1908) 4 CriLJ 453.
(4) An Bangladesh Coin continues to be Bangladesh Coin for the purpose of Chapter XII
notwithstanding that it has ceased to be used as money. A IR 1926 A ll 321.
(5) Murshidabad rupees having been stamped and issued by the authority of the Government of
India or at least of the Government of the Presidency are Indian Coins within the meaning of the
section even though they are no longer so used. (1905,) 2 CriLi 395.
(6) The mere fact that a coin is being used as an ornament by soldering a ring to it does not
transform it absolutely into a new article. By removal of the ring the coin in a deformed state will

i:
Substituted fororiginal paragraph by the Indian Penal Code Amendment Act. 1872 (Act XIX of 1872).
2. The word "Bangladesh" was substituted for the word "Pakistan" by Act VIII of 1973. 2nd Sch.. w.e.f. 26-3-1971.
3. The words "of Pakistan" were omitted by Act VIII of 1973.
4. The word "Taka" was susbstituted for the word "rupees" by Act VllIof 1973, w.e.f. 26-3-1971.
5. Ins, by Act VI of 1896. S. 1(2).
6. The original words "the Queen's Coin" have successively been amended by AU. 1961 (with effect from 23rd March.
1956 and Act VIII of 1973 (with effect from 26th March. 1971) to read as above.
Sec. 231 Penal Code 637

reappear and when these coins are tendered to a Bank they are not tendered as ornaments or other
articles but as coins which have been deformed. A IR 1926 A ll 321.

'Section 231 . .
231. Counterfeiting coin.—Whoever counterfeits or knowingly performs any
part of the process of counterfeiting .com, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable
to fine. .
Explanation. — A person commits this offence who intending to practise
deception, or knowing it to be likely that deception will thereby be practised, causes a
genuine coin to appear like a different coin
Cases and Materials
1. Scope.—(1) This section should be read along with section 28 of this Code. The counterfeiting
should be of 'coin' as defined in section 230 of the Penal Code in order to constitute an offence under
section. The offence is complete although the coin may not be in a fit. state to be uttered or the work
may not be finished or perfected. This section applies equally whether the act of counterfeiting is
complete or unfinished. Coin of the time of Akbar not being 'coin' as defined in section 230,
counterfeiting it is not offence. The opinion of the Mint. Master to whom coins are sent for
examination, that they are not genuine is not sufficient by itself in the absence of evidence by an expert
before the Court (1957 CrLJ 381).
(2) In order to be counterfeit coins it is not necessary that they should be of exact resemblance of
the genuine coins. So also it does not matter that they are not of the same material but are of some
inferior material. It is sufficient that they are such as to cause deception and may be passed off as
genuine coins. A IR 1919 Pat 330.
(3) The thing alleged to be counterfeit coin must have some such resemblance to a piece of genuine
coin as to show that it 4.vas intended to resemble and pass for it though the imitation may be imperfect
or the process incomplete. (1907) 6 CriLJ 395 (A ll)..
(4) Where the edges of the coins were irregular and the glazing of the coins was not complete it
was held that as none would be deceived by these coins they would not be counterfeit coins. (1961) 2
CriLJ 472 (GuI).
(5) Where it was alleged that the accused counterfeited coins and introduced them in the house of
his enemy with the sole object that the latter should be thought to be the counterfeiter and be
prosecuted accordingly it was held that the accused could not be said to have counterfeited coins. A IR
1938 Nag 444.
(6) One need not be an expert to find out a bad coin. Experience shows that many have the
knack and capacity to mark it out readily even though the same is mixed up with good ones. AIR
1.957Mys24. .
(7) Offences connected with counterfeit coins are detected with great difficulty and call for a
deterrent punishment. A IR 1936 Nag 242.
2. Practice.—Evidence—Prove: (1) That the metal is a coin.
(2) That the accused counterfeited it, or performed on it any part of the process of counterfeiting.
(3) That he did so knowingly.
638 Penal Code Sec. 232

3. Procedure.—Cognizable —Warra nt—Not bailable—Not compoundable—Triable by

Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
1. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of,—at—, counterfeited (or knowingly performed any part of the
process of counterfeiting, to wit—), a coin, to—wit—and that you thereby committed an offence
punishable under section 231 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 232
232. Counterfeiting 6 [Bangladesh coin].—Whoever counterfeits, or knowingly
performs any part of the process of counterfeiting 6 [Bangladesh coin], shall be
punished with 7 [imprisonment] for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
Cases and Materials
I. Scope.—(1) This section makes counterfeiting of Bangladesh coins an offence. As the protection
of the coin of the country is considered more essential, heavier penalty is provided herein for
counterfeiting of Bangladesh coins. If coins are made to resemble genuine coins and they were intended
for getting them to be secretly into the house of their enemies of the accused, the accused cannot be
convicted for an offence under this section. To constitute the offence described in this section there must
be an intention that the coins made will be used as Bangladesh coin or a knowledge that they are likely
to be used as such.
(2) Offence under section 232 includes offence under section 235—Separate sentence. illegal. The
offence described in section 235 of the Penal Code is included in the offence described in section 232.
Penal Code and separate convictions and sentences under these two sections are improper and illegal. I
PLD 179Lah.
(3) There can be no deception as contemplated by S. 28 and this section unless there is an
intention on the part of the accused to use the counterfeit article as coin' or in other words to infringe.
the monopoly of the mint by the manufacture of false coins or to cause loss to the currency-ownin g
A IR 1937 Mad 711. -publicytheraonfsuci.
(4) Even if person counterfeits an Indian coin which is not current at the time, he commits an
offence under this section provided the intention to deceive or the knowledge of the likelihood of
deception is there: Murshidabad rupees stand on the same footing as Farrukhabad rupees and
counterfeiting of such coins will be an offence under this section. (1905)2 CriLJ395 (A ll).
(5) It is not an offence under this section to remove the rings of the coins which had been used as
ornaments previously and to work up the face of the coins where the rings had been attached merely
because by doing so the coin has been restored to its original form. (1901) ILR 23 A ll 420 (422).
(6) If the accused clips and cuts away a coin and makes up the deficiency by solder with the
intention of subsequently delivering it to a bank he would be guilty of fraudulently defacing a coin. AIR
/926A 1/321..

Substituted by Ordinance No. XLI of 1985, for "transportation".
7.
Sec. 233 Penal Code 639

(7) Where the accused counterfeitsIndian coins with The sole intention of using them to foist a
false case .against his enemy as being a counterfeiter, the intention is not to practise deception as
understood in Section 28. A IR 1937 Mad 711.
(8) It is not incumbent on the Court, when a substantive term of imprisonment is awarded to the
accused, to superadd any fine to that sentence. Where the accused was not a man of means and the
imposition of fine could have only a nuisance value, it was held that an award of rigorous
imprisonment would suffice. 1957 KerLT2I5.
(9) Where the accused are charged under Section 235 for being in possession of implements and
materials for counterfeiting coins and under 9. 232 for actually counterfeiting coins, it has been held
that the possession of the implements and materials is part and parcel of the transaction of
counterfeiting coin and, therefore the passing of separate sentences under S. 235 is illegal. A IR 1950
Lah97, '• '.'_...
(10) Where the accused has been charged with making what he called Shah Alum coins it is the
duty of th€ Magistrate to find whether the coins were coins or not. (1908) 7 Cr1LJ 400 "Cal).
(11) The questidh Whether the coins were orwere not used or intended to be used as money cannot
be disposed of without the recording of evidence. (1908) 7. CriL.J 400.
2. Practice.—Evidence—Prove: (1) That the accused counterfeited or performed on it any part of
the process of counterfeiting
(2) That the thing counterfeited is Bangladesh coin.
(3) That the accused did so knowingly.
3. Procedure.—Cognizable—Warránt—Not bailable—Not compoundable—Triable by Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate specially empowered in
that behalf.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, did counterfeit a piece of Bangladesh's coin, to wit—
and that you thereby committed an offence punishable under section 232 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried on the said charge.

Section 233
233. Making or selling instrument for counterfeiting coin.—Whoever makes
or mends, or performs any part of the process of making or mending, or buys, sells or
disposes of, any die or instrument, for the purpose of being used, or knowing or
having reason to believe that it is intended to be ' used, for the purpose of
counterfeiting coin, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.
Cases and Materials
1. Scope.--(l) A collar of iron for grinning the edges of counterfeit money was held to be an
instrument within the meaning of Statutes 8 and 9.. Will. Ill, C. 26 although it was to be used in a'
coining press. (1825) 172 ER 105.
640 Penal Code Sec. 234

(2) On indictment for making mould intended to make and impress the figure and resemblance of
the obverse side of a shilling, it was held sufficient to prove that the accused made the mould and a part
of the impression though he had not completed the entire impression. (1936) 173 ER 219.
(3) The accused, with the intention of making counterfeit half dollars of Peru, procured dies for
stamping the coins. He was, however, arrested before he could secure the metal and chemical
preparations necessary for making the counterfeit coins. It was held that the procuring of the dies was an
act in furtherance of the criminal purpose sufficiently proximate to the offence intended. (1855) 25 U
MC 17.
(4) The accused went to a die-sinker and ordered him to make dies. .the die-sinker informed the
officers of the mint and the latter directed the die-sinker to execute the order of the accused. It was held
that the accused could be held guilty as a principal offender for feloniously making a die which would
impress the resemblance of the obverse side of a shilling. (1844) 174 ER 818.
(5) Where the .accused was convicted and sentenced both under Sections 232 and 233, the
conviction and sentence under Section 233 was set aside on theground that what the accusea really did
was to make .a counterfeit coin and not the instruments for making counterfeit coin, except incidentally
as part of the process of making counterfeit coin. 1900 Pun LR 7, p. 14.
2. Practice.—Evidence—Prove: (1) That the accused made, or mended, or performed some part of
the process of making or mending the die or instrument, or that he bought, sold, or disposed of it.
(2)That he did so, for the purpose that such die or instrument might be used for the purpose of
counterfeiting coin, or that he knew, or had reason to believe, that the same was intended to be used for
such purpose.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by the
Metropolitan Magistrate or Magistrate of the first or second class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That on or about—at— .you made or (mended or performed any 'part of the process of making or
mending) or (bought or sold) or disposed of a die of instrument used for counterfeiting coin, namely—
and that you thereby committed an offence punishable under section 233 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried on the said charge.

Section 234
234. Making or selling instrument for counterfeiting 6 113angladesh coin].—
Whoever makes or mends, or performs any part of the process of making or mending,
or buys, sells or disposes of, any die or instrument, for the purpose of being used, or
knowing or having reason to believe that it is intended to be used, for the purpose of
counterfeiting 6 [Bangladesh coin], shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.
Cases and Materials
I. Scope.—(1) When coin stamped with the puncheon in question resembled the shillings of the
reign of King William Ill on the headside of the coin with no letters, it was held that the shillings of
Sec. 235 Penal Code 641

the reign of King were current coin of the Kingdom though the letters were worn out and the puncheon
came within the Statues 8 and 9 Will, Ill, C. 26. (1778) 168 ER 197.
(2) Where the instrument in question could not make a complete coin it :was held that it could not
be called a mould because it required something to be done to make it a mould. (1843) I Cox .0 41.
2 Practice.—Evidence—Prove: (I) That the accused made or mended or performed some process
of making or mending the die or instrument or that he bought, sold or disposed of it. -
(2) That he did so for the purpose that such die or instrument might be used for the purpose of
counterfeiting coin.
(3) That he did so knowing or having reason to believe that the same was intended to be used for
such purpose.
(4) That the coin counterfeited is a Bangladesh coin.
3. Procedure.—Cognizable—Warrant—Not—Bailable--Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the day of—at—did make (or mend or perform) any part of the process of
making or mending, to wit, or buy or sell or dispose of a certain die (or instrument) for the purpose of
being used (or knowing or having reason to believe that it was intended to be used) for counterfeiting a
piece of Bangladeshi coin, to wit and that you thereby committed an offence punishable under section
• 234 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 235
235. Possession of instrument or material for the purpose of using the same
for counterfeiting coin.—Whoever is in possession of any instrument or material,
for the purpose of using the same for counterfeiting coin, or knowing or having reason
to believe that the same is intended to be used for that purpose, shall be punished
with imprisonment of either description for a term which may extend to three years,
and shall also be liable to fine.
If 6 [Bangladesh coin]. and, if the coin to be counterfeited is 6[Bang1adeh coin],
shall be punished with imprisonment of either description for a term - which may
extend to three years, and shall also be liable to fine.
Cases and Materials : Synopsis
1. Scope. 4. Punishment.
2. Possession, what constitutes. 5. Practice.
3. 'For the purpose of using the same...for that 6 Procedure.
purpose". 7. Charge.
I. Scope.—The prosecution has to establish that the moulds were capable of producing a
Ac counterfeit coin, althugh broken moulds may be evidence of coining having previously taken place. It
is incumbent upon the prosecution to prove not only Ihe possession of the instrument or material but
642 Penal Code Sec. 235

also to prove that the possessin was with the intention of using the same for the purpàse of
counterfeiting coin or with full knowledge and belief that it was intended to be used for that purpose If
the prosecution fails to prove the necessary intention knowledge or belief a person cannot be convicted
under that section by a mere proof of physical possession of a instrument or material.. Excluive
possession without access by other is necessary. Where a wife knows that certain implements were in
the possession of her husband but that she was not in possession of them a conviction under this
section may not stand. (51 Cr1LJ 717). ..
. Possession, what constitutes...-(1) The possession conteriplated by the section is voluntary
and conscious possession (1904) 1 CriLJ 960
(2) To establish voluntarily and conscious possession there must be evidence of some
circumsnces indicating that the accused intended to exercise pOwer or Control over the object
concerned or that he knew that he could do so at his will 41R 1919 Pa; 330
(3) The indication that the accused intended to exercise power or control over an instrument or
material may arise from the position of the instr4mept or material in the place which is constantly used
by the accused person and which could not be overlooked by him or from the bulk of the object itself
or from any circumstances such as the looking up of the thing which would point to voluntary or
COnSCIOUS possession. A IR 1919 Pat 330.
(4) If the articles found in a house or room, the factors such as the length of possession or
occupation of the house or room by the accused, the nature of occupation, accessibility to others are
material. It is, however, not necessary that the accused should be the owner of the place where the
things are found. A IR 1950 A ll 732.
(5) To prove that articles found in a house or room were in possession of accused it must be
shown that the articles were there with his knowledge. A IR 1915 Low Bur 64.
(6) Where the articles were found in a box in a place which was accessible to the accused and some
other persons and there was no other private belonging to the accused found in the box it was held that
the accused could not be held to be in possession of the articles. A IR 1935 Lah'39.
(7) Where the moulds were found buried underneath an open verandah with a village pathway on
the south and a road on the west it was held that the possibility • of the articles having been
surreptitiously introduced by a stranger could not be ruled out and that the accused could not be held
to be in possession of the moulds 41R 1919 Pat 330
(8) The articles were recovered from a room which at the time of recovery, was coupled by the
accused and his wife. The room had no internal connection with other parts.'of the hou.é. The moulds,
crucibtes and bamboo tubes were found laying on the floor of the room. It was held that the room must
be held to be in the exclusive possession of the accused, therefore, the accused must be hel4 to be in
possession of the articles. A IR 1950 all 732.
3. "For the purpose of using the same—for that purpose".—(l) Mere possession of
instruments or materials capable of counterfeiting coins is no offence. It must further be proved that the
possession was for the purpose of using the instruments or materials for counterfeiting coin or that the
accused knew or had reason to believe that the instruments or materials were intended to be used for the
purpose of counterfeiting coin. A IR 1969 Delhi 315.
(2) The purpose , intention or knowledge as to the• use to be made of the articles in possession
may be implied form the nature of the articles themselves. (1904) 1 CrilJ 960.
Sec. 235 Penal Code 643
(3) The prosecution is bound to adduce evidence in the trial Court to show that the instruments
with reference to which the charge is framed were capable of producing counterfeit coin. The prosecution
cannot be allowed to supply the defect in the Court .,of appeal. A IR 1969 Dc/hi 315.
(4) Where the dks found with the accused were incapable of striking a competent coin it was held
that twas not possible to infer that the accused intended to manufacture coins. A /fl 1925 Lah 22
(5) Where though the alleged counterfeit coins wj3icli had irregular edges could not pass off as
genuine coins Within the meaning of S. 28, it was held that they were materialswhich were in the
process of being made into counterfeit coins and the case might fall within this section. 1961 (2), Cr/LI
472 'dufl.
(6) A person cannot be punished under this section on the ground that he had knowledge that
someone else is in such possession. A IR 1950 Lah 97.
4 Punishment.—(I) Where there is no evidence to show that the instruments or materials in
possession of the accused are for the purpose of counterfeiting coin the ccüsed can be held guilty only
under the first clause and not under the second clause. (1958) 24 Cut LI' 445.
(2) The offence of counterfeiting coins and other offences connected with counterfeiting cOihs are
very serious. A IR 1930 Lah 514.
(3) the offence of counterfeiting coins and other offences connected with counterfeiting coins are
such as can be detected only with great difficulty. A IR 1927 Lah 220.
(4) Where accused convicted under this section was sentenced by the Magistrate to simple
imprisonment for one year with a fine of Rs. 50 it was held that sentence was wholly inadequate. The
sentence was enhanced to rigorous imprisonment for one year in addition to the simple imprisonment
already undergone. A IR 1927 La/i 220.
(5) Where an accused is found guilty under this section. a sentence of imprisonment must be
awarded. The sentence of fine can be awarded only in addition to the term of imprisonment. Where
however a substantive term of imprisonment is awarded it is not incumbent on the court to superadd
fine to the sentence of imprisonment. Where the accused was not known to be man of means and
imposition of fine could have only a nuisance value it was held that the award of fine improper. 1957
Ker LT 215..
(6) Where the accused is convicted and sentenced for being in possession of instruments or
materials for counterfeiting he should not be convicted and sentenced for being, in possession of such
instruments or materials. A IR 1930 La/i 51.
(7) Separate sentence cannot be passed under Ss. 232 and 235 for counterfeiting coin and for being
in possession of instruments used for counterfeiting such coin. The possession of the instruments or
materials being part and parcel of the transaction of counterfeiting coin the sentence under S. 235 is
illegal. A IR 1950 Lah 97.
(8) The Supreme Court in this case reduced a sentence often years to one of five years as the Court
considered that the imprisonment for five years might be long enough for correctional purposes under
the circumstances of the case. A IR 1978 SC 480.
5. Practice._Evidence__ proye : (1) That the instrument or material in question is one for the
purpose of counterfeiting coin. -
(2) That the accused was in possession of such instrument or material in question.
544 Penal Code Sec. 236-237

(3) That he was in possession thereof for the purpose of using it or that he knew or had reason to
believe that it was intended to be used for that purpose.
6. Procedure.—Cognizable—War rant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second clas. If case falls under clause two, the case
is triable by court of Sessions, Chief Metropolitan Magistrate, District Magistrate, Additional District
Magistrate.
7. Charge.—The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at were in possession of a certain instrument (or material) to
wit—for the purpose of using the said instrument for counterfeiting a piece of Bangladesh coin known
as—(or knowing or having reason to believe that the said instrument was intended to be used for the
purpose of counterfeiting, etc.) and thereby committed an offence punishable under section 235 of the
Penal Code and within my cognizance.,
And I hereby direct that you be tried on the said charge.

Section 236
236. Abetting in. 2 [Bangladeshl the counterfeiting out of 2 [Bangladesh] of
coin.—Whoever, being within 2 [Bangladesh], abets the counterfeiting of coin out of
2 [Bangladesh] shall be punished in the same manner as if he abetted the counterfeiting
of such coin witiin 2[Bangladesh].
Materials
1. Practice.—Evidence—Prove: (1) That the accused abetted the counterfeiting of coin.
(2) That the counterfeiting was outside Bangladesh.
(3) That the accused was in Bangladesh at the time of abetment.
2. Procedure.—Cognizable—Warrant —Not bailable—Not compoundable—Triable by Court of
Session.
3. Charge. —The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—being Bangladesh abetted one XY residing out of
Bangladesh at—in the counterfeiting of coin by doing—(mention the act done) and thereby committed
an offence punishable , under section 236 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge

Section 237
.237. Import or export of counterfeit coin.—Whoever imports into
2 [Bangladesh], or exports therefrom, any counterfeit coin, knowing or having reason
to believe that the same is counterfeit, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to fine
Sec. 238 Penal Code 645

Materials
1. Scope.—This section is directed against illicit traffic in counterfeiting of coins. If the import or
export of counterfeit coins is with guilty knowledge the importer or exporter is piuiishable under this
section.
2. Practice.—Evidence— .-Prove: (I) That the accused iported into or exported form Bangladesh
some coins
(2) That such coins Were counterfeits coins.
(3) That the accused knew or had reason to believe that the coins were counterfeit.
3. Procedure.—Cognizable—_Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—did import into or export from Bangladesh, viz, at—certain
pieces of counterfeit corn, to wit—(specify the amount andiame of the coins) knowing or having
reason to believe that the said coins were counterfeit and that you thereby committed an offence
punishable under section 237 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 238
238. Import or export of counterfeits of the 6 [Bangladesh coin].—Whoever
imports into 2 [Bangladesh], or exports therefrom, any counterfeit coin which he
knows or has reason to believe to be a counterfeit of 6 [B.angladesh coin], shall be
punished with 7 [imprisonment] for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
Materials
I. Practice.—Evidence—Prove: (1) That the accused imported into or exported from Bangladesh
coins.
(2)That such coins were counterfeit coins.
(3) That the accused then knew or had reason to believe that they were counterfeit coins.
(4) That the counterfeit coins were counterfeit Bangladesh coins.
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of
Session.
3. Charge.—The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, og or about the—day of—did import into or export from Bangladesh, viz, at—certain
pieces of countei-feit Bangladesh coins, to wit----(speci1i the amount and name of coins) knowing or
having reason to believe that the said coins were counterfeit, and that you thereby committed an offence
punishable under section 238 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
646 Penal Code Sec. 239-240

Section 239
239. Dehvery cif coin, possessed with knowledge that it is counterfeit.—
Whoever having any counterfeit coin which," at the time when he became possessed of
it, he knew to be cotnterfeit, frau ieritly or with intent that fraud may be committed,
delivers the same to any prsó, ø attempts to induce any person to receive it, shall
be punished with imprisonment of either description for a term which may extend to
five years, and shall also be liable to fine.
Materials
. Scope.—Three classes of offences are credited by sections 239 to 243. This section and section
240 deals with professional dealers in false coin who receive false coin and fraudulently pass it off as
true coin. The object of the section is to penalise fraudulently circulation of base coins while the
professional offender is punished lightly under section 241. Evidence of possession and the attempted
disposal of coins of unusual kind is relevant on a charge of uttering such coins soon afterwards when
the factum of uttering is'denied.
2. Practice.—Evidence—Prove: (1) That the accused was in possession of coin.
(2) That which was counterfeit.
(3) That he knew it as counterfeit.
(4) That he delivered it to another or attempted to induce him to receive it.
(5) That the delivery was fraudulent or that fraud might be committed.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you ( nie of the accused) as follows:
That you on or about—at had pieces of counterfeit coin (or Bangladesh coin) namely—which at
the time you possessed them, you knew to be counterfeit and which you fraudulently or (with the
intent that fraud. may be committed) delivered to A or (attempted to induce A to receive them) and you
have thereby committed an offence punishable under section 239, Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

Section 240
240. Delivery of 6 lBangladesh coin] possessed with knowledge that it is
counterfeit.—Whoever, ' having any counterfeit coin, which is a counterfeit of
6 [Bangladesh coin], and which, at the time when he became possessed of it, he knew
to be a counterfeit of 6 [Bangladesh coin], fraudulently or with intent that fraud may be
committed, delivers the same to any person, or attempts to induce any person to
receive it, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
Sec. 240 Penal Code 647

Cases and Materials : Synopsis

I. Scope of the section. 4. Punishment.

2. "Which.. at the time when he became possessed 5. Procedure.

of it, he knew to be counterfeit." 6. Practice.
3. "Fraudulently......
delivers the same." 7 Charge.
I. Scope of the section.—(l) Before a man can be convicted under section 240. Penal Code it
must be established that the accused fraudulently or with intent that, fraud may be committed is in
possession of counterfeit coin and that he had knowledge at the time when he became possessed of it
that it was a counterfeit corn For a conviction under section 240 the point of time to be considered in
connection with the offence is the time when the accused becomes possessed of the false coins and it
has to be shown that at the particular time the accused knew that the coins were not genuine This
section does not apply to the actual coin,
() Where the offence charged consisted of selling sliver repuees as genuine gold mohur of the time
of Shhajahan, it was held that a gold mOhur of the reign of Shahajahan could not be deemed to be coin
within the meaning of S. 230 as it was not-used- for the' time being as money and that, therefore, no
offence under S. 239 had been committed. (1906) 4 CriLi 453.
2. "Which, at the time when he became possessed of it, he knew to be counterfeit."—( 1)
Under this section as well as under S. 239, the prosecution must establish that at the time when,.
the accused came to possess the counterfeit coins he knew them to be counterfeit. A IR 1955 NUC
(ALL) 2662.
(2) The knowledge of the accused, at the time he became possessed of the coins, that they were
counterfeit is not necessary under S. 241 and the conviction can be altered to one under S 239 if the
facts established fulfil the requirements of that section. AIR 1936 Nag 242.
(3) It is not always possible or necessary to prove the knowledge , of the accused that the coins were -
counterfeit by positive evidence.. The prosecution may bring out circumstances which may indicate or
from which a reasonable preumption could be raised that the accused ought to have known at the time
he became possessed of the coins that they were counterfeit. 1957 A11LJ283(284).
(4) Where the accused carried as many as 890 similar coins and had passed on 350 of them as
genuine to three different persons, it was held that it could be safely presumed that the accused had the
particular knowledge when he got possession of the coins.' AIR 1953 Pepsu 43.
(5) No guilty knowledge can be inferred from mere possession of a small number of counterfeit
coins by a person in the course of his business of giving small coins in exchange. A IR 1955 NUC
(All) 2662. . .
(6) Sections 239 and 240 are not intended to apply to the coiner of the counterfeit coins: The
words "which at the time when he became possessed of it, he knew to be counterfeit" point to a person
other than the coiner that is to. say, the person who procures or obtains or receives counterfeit coins.
1900 Pun LR 7 P. 14.
3 "Fraudulently......delivers the same.—(1) It is an essential element of the offence that the
accused should have delivered the counterfeit coin fraudulently or with intent that fraud may be
committed. AIR 1955 NUC (All? 2662.
(2) The giving of a piece of counterfeit money in charity has been held not to be an uttering within
the meaning of Statute 2 Will IV C. 34, S. 7 although the accused may know it to be counterfeit as
there -is no intention to defraud in such a case. (1837) 173 ER 425.
648 Penal Code Sec. 241

4. Punishment.—(1) When a substantive term of imprisonment has been awarded it is not

incumbent on the Court to supper any fine to that sentence. 1957 KerLT 215.
(2) Where the accused is not a man of means and imposition of fine could have only a nuisance
value and fine should not be imposed. 1957 KerLT 215
(3) Where the articles seized from the house of the accused indicated that he had some knowledge
of counterfeiting and his action in uttering them was of a deliberate nature the accused could not be
dealt with leniently. A IR 1936 Nag 242.
(4) Where the accused was a young girl and there was the possibility of her having come under the
influence of her father who was an utterer of counterfeit coins and had also some previous convictions to
his credit, it was held that it would serve the ends of justice if the original sentence of three years'
rigorous imprisonment was reduced to the period of two years already undergone. 1957 A 1ILJ 283,
5. Procédure.—(I) It is not proper to join a charge under this section with a charge u/ss. 232 and
235. 1957 KerLT 215.
(2) Offencés under Ss. 230 and 240 are separate and distinct offences the latter deals with counterfeit
of Bd. coins and the former with other counterfeit coins and separate convictions and sentence are
permissible. A IR 1933 Pesh 99.
(3). A person having certain counterfeit coins in his possession but uttering only one of them
cannot be separately convicted under S. 240 respecting the one coin and under S. 243 regarding the
other coins in his possession because an offence under Section 240 implies prior guilty possession.
1957A 11L.J 283.
(4) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session, Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate.
6. Practice.—Evidence—Prove: (1) That the coin is a Bangladesh coin.
(2) That coin in question is counterfeit.
(3) That the accused became possessed of it.
(4) That he delivered to another or attempted to induce him to accept it.
(5) That he did so fraudulently or with the intention that the fraud may be committed.
7. Charge.—The charge should run as follows:
I. (name and office of the Judge/Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, having in your possession pieces of counterfeit
Bangladesh's coin, known as—knowing at the time when you became possessed of the said coins that
they were counterfeit, fraudulently (or with intent that fraud might be committed) delivered the same to
one XY (or attempted to induce X Y to receive the same), and thereby committed an offence punishable
under section 240 of the Penal Code and.within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 241
• 241. Delivery of coin as genuine, which, when first possessed, the deliverer
did not know to be counterfeit.—Whoever delivers-to any other person as genuine,
or attempts to induce any other person to receive as genuine, any counterfeit coin
Sec. 241 Penaf Code 649

which he knows to be counterfeit, but which he did not know to be counterfeit at the
time when he took it into his possession, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine to an
amount which may extend to ten times the value of the coin counterfeited, or with
both.
Illustration
A , a coiner, delivers counterfeit Company's 4[taka] to his accomplice B, for the
purpose of uttering them. B sells the 4 [taka] to C, another, utterer, who buys them
knowing them to be counterfeit. C pays away the 4[taka] for goods to D, who receives
thm, not knowing them to be counterfeit. D after receiving the 4ltakaJ, discovers that
they are counterfeit and pays them away as if they were good. Here D is punishable only
under this section, but B and C are punishable under section 239 or 240, as the case
may be.
Cases and Materials
1. Scope.-(1) The delivery of counterfeit coin as genuine would be an offence under this section if
the deliverer knew it to be a counterfeit coin at the time of such delivery although he did not know it to
be counterfeit when he obtained possession of it. AIR 1936 Nag 242.
(2) Where a person tendered a coin to another and it was refused on the ground that it was a bad
coin it was held that it might be presumed that after the other person refused the coin as bad the
accused knew it to be counterfeit and has attempted to induce a second person to receive it as genuine
constituted an offence under this section. (1911) 12 CrILJ 79
(3)Where-the uttering was not done under any stress of sudden temptation but was of a deliberate
nature and the accused was a man of some status and he passed the counterfeit coins to others who were,
not so well off as he was, it was held that the matter could not be dealt with leniently especially ait
was a kind of offence which it was difficuitto detect. AIR 1936.Nag 242.
2. Practice.—Evidence—Prove: (I) That the coin in question is a counterfeit coin. -
(2) That the accused delivered it, or so attempted to induce someone to receive it.
(3) That he so delivered it, or so attempted to induce someone to receive the same as genuine.
(4) That he, at the same time he delivered it, etc., kne r the same to be a counterfeit coin.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of— , at—, having in your possession—pieces of counterfeit
Bangladesh's coin known as—delivered as genuine to one XY the said coins (or attempted to induce
one XY to—receive the said coins as genuine) knowing at. the time of the said delivery (or attempt),
though not at the time when you became possessed of the said coins, that the said coins were
counterfeit, and thereby committed an offence punishable under section 241' of the Penal Code and
within my cognizance. .
And I hereby direct that you be tried on the said charge.
650 Penal Code Sec. 242-243

Section 242
242. Possession of counterfeit coin by person who knew it to be counterfeit
when he became possessed thereof.—Whoever, fraudulently or with intent that
fraud may be committed, is in possession of counterfeit coin, having known at the
time when he became possessed thereof that such coin was counterfeit, shall be
punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine.
Cases and Materials
1. Scope.—( 1) The possession of coins which are not current coin is no offence under this section.
(1880) 3 MysLR No. 225 P. 373.
(2) This section should be read along with sections 25, 28 and 235 of the Penal Code. Mere
possession of a counterfeit coin is an offence under this section but possession must be with intent to
defraud. When pieces of counterfeit coin are found on one or two persons acting in guilty concert, and
both knowing of the possession, both are guilty.
2. Practice.—Evidence__prove: (1) That the accused was in possession of coin.
(2) That the coin was counterfeit.
(3) That he was in possession of it with intent to defraud or that fraud may be committed.
(4) That the time he came to possess them he knew them to be counterfeit.
3. Proced ure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4. - Charge.—The charge should run as follows:
I, (name and office, of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of— ,at— , fraudulently (or with intention to defraud) were in
possession of coins being counterfeit coins, knowing at the time when you became possessed of it they
Were counterfeit and thereby committed an offence punishable under section 242 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 243
243. Possession of 6 [Bangladesli coin] by person who knew ' , it to be
counterfeit when he became possessed thereof.—Whoever, fraudulently or with
intent that fraud may be committed, is in possession of counterfeit coin, which is a
counterfeit of 6 [Bangladesh coin], having known . at the time when he became
possessed of it that it was counterfeit, shall be punished with imprisonment of either
description for a term which may extend to seven years,' and shall also be liable to fine.
Cases and Materials : Synopsis
I. Scope of the section.
possessed of it that it was counterfeit."
2. "Fraudulently or with intent that fraud may 6. Punishment.
be committed."
7 Procedure.
3. "Is in possession."
4. Counterfeit coin 8. Practice.
.
S. "Having known at the time when he became 9. charge. .
See. 243 Penal Code 651

I. Scope of the section.—(1) The term 'possession,' as used in section 243 has to be interpreted
in the light of sections 25, 27, 230 and 235. To establish possession under section 243 it is not
sufficient to show that the object in question was in such a position that theaccused had known it,
might have exercised power or control over it, there must be evidence of some circumstances indicating
that he intended to exercise power or control or that he knew that he could do so at will. Generally
where counterfeit coins are found in a place which is in joint possession of several persons, no one, not
even the head of the family can be convicted under this section, so tong as there is no evidence to show
that it was in his . possession either exclusively or jointly with others (A IR 1919 Pat 330).
(3) The essential element of the offence under this section is that at the time the accused became
possessed of a counterfeit coin, he knew it be counterfeit. AIR 1917 Cal 123.
2. "Fraudulently or with intent that fraud may be committed."---(l) Where the accused had
tied the counterfeit coins separately in a handkerchief and taken them to the bazar on the market day to
dispose them of and he had also complained that he had been receiving counterfeit coins from his
customers, it was held these facts would show that the possession of the counterfeit coins was with
• intent to defraud people or with intent that fraud might be committed. AIR 1943 Oudh 335.
(2) Where eleven silvei pieces of the size Of a rupee along with thirty counterfeit rupees, all bearing
the same year, were found concealed in a locked room the key of which was in the possession of the
accused, it was held that the circumstances created a presumption under S . 114 of the Evidence Act that
the accused was in possession of the coins fraudulently or with intent that fraud may be committed.
AIR 1933 Oudh 85.
(3) Where, in the course of a search of house of the accused in connection with an offence under Ss.
457 and 330 of the Code counterfeit coins were recovered from the house but the defence of the accused
was that the coins at one time belonged to an estate and were sold as a part of the property or the estate
and were purchased by one M but the accused having half share in the purchase the coins came to his
share and after the puchase it was not shown that any attempt was made by the accused to pass on the
coins to other persons as genuine, it ws held that from these facts the element that the accused was in
possession of the counterfeit coins fraudulently or with intent that fraud may be committed was not
proved. A IR 1936 Pat 533.
(4) Where the accused a tea vendor, was alleged to have been found in possession of 85 counterfeit
four anna pieces but the coins were not made available for scrutiny by the High Court in appeal, the
High Court acquitted the accused holding that the probability of the accused's innocent possession on
of the coins during his business could be ruled out. AIR 1969 Delhi 315.
3. "Is in possession."—(l) One of the requirements of the section is that the accued must be in
possession of the counterfeit coins. The possession must be voluntary or conscious possession. (1904)
I CriLJ 960 (963) (DB) (Born).
• (2) The indication that the accused intended to exercise power or èontrol over the coins may arise
from the position of the coins in a place which is constantly used by the accused and which could not
be overlooked by him or from the bulk of the coins themselves or from any circumstances such as the
locking up of the thing Which would point to the voluntary or conscious possession. AIR 1936 All 650..
(3) Where the counterfeit coins were found buried under an open verandah with a village path way
on one side, and road on the other side, it was held that there was the possibility of the coins having
been placed thereby by some enemies of the accused and of the accused knowing nothing about them.
A IR 1919 Pat 330. .
652 Penal Code Sec. 243

(4) Where the coins were found concealed in a locked room the key of which was in possession of
the accused it was held that the accused was in possession of the coins. AIR 1933 Oudh 85.
(5) Under Section 27.when property is in possession of a person's wife, clerk or servant on account
of that person it is in that person's possession within the meaning of the Code. If there is prior
authority to the servant or arrangement with him to receive the coin, the time when the servant receives
the coin is the time when the master (the accused) becomes possessed of the coin. In other cases the
time 'hen the master comes to know or consents or allows the coins to remain with the servant is the
time when he becomes possessed of them. AIR 1917 Cal 123.
4. Counterfeitcoin.—(I) It is not essential that the counterfeit coins should exactly resemble
genuine coins. It is sufficient that they are such as to cause deception and may be passed for genuine
coins. A IR 1919 Pat 330.
(2) Where the evidence of the expert was that.it.was not possible to pass off the alleged counterfeit
coins as genuine it was held that the accused could not be said to have committed an offence under this
section. AIR 1956 Born 511.
(3) Where the edges of the alleged counterfeit coins are irregular and none would be deceived by
such coins they cannot be counterfeit coins within the meaning of S. 28 and this section will not
apply. 1961 (2) CriL.J.472.
5. "Having known at the time when he became possessed of it that it was counterfeit.—(l) It
must be established that at the time the accused came into possession of the coin, he knew that it was a
counterfeit coin. AIR 1969 Delhi 315.
(2) If a person comes into possession of counterfeit coins innocently he does not become liable to
punishment under this section by his subsequent discovery that they are counterfeit coins and retention
of them. AIR 1950 Al 732.
(3) The onus of proving that the accused knew at the time when he became possessed of the coins
that they were counterfeit is on the prosecution. AIR 1943 Qudh 335.
(4) If the prosecution succeeds in establishing circumstances suggesting that the accused knew at
the time he became possessed of the coins that they were counterfeit, then it is necessary for the accused
to lead evidence to show that it was not at that time that he became aware of their counterfeit character.
A IR 1941 Pat 26
(5) Where the accused had tied the coins separately in a handkerchief and taken then to Bazar on
the market day with the object of disposing them of and he had also complained that he had been
receiving counterfeit coins form his customers, it was held that these facts could' raise a reasonable
presumption that the accused knew them to be counterfeit at the time when he became possessed of
them. A IR 1943 Oudh 335.
• (6) It was arranged between the accused and a police constable that the latter would go over to the
former and take delivery of 400 pieces of counterfeit eight anna bits and pay Rs. 100/- in exchange
Shortly after the constable went to the place of the accused the police party entered the room of the
accused and found 20 packets containing eight anna bits lying on the floor and the accused in the act of
making over the possession of the counterfeit coins to the constable. It was held that the accused had
committed an offence under this section but not under Section 240. AIR 1955IVUC (Cal) 5566.
(7) Under Section 27 of the Code when property is in the possession of a person's wife, clerk Or
servant on account of that person it is in that person's possession. The requirement of the knowledge at
Sec, 244 Penal Code 653

the time the accused became possessed of the counterfeit coin is necessary for this mode of possession
also. If there is prior authority to the servant or three is arrangement with him to receive the thing, the
time when the servant receives the thing is the time when the master becomes possessed of the thing.
In other cases the time when the master comes to know or consents or allows the thing to remain with
the servant is the time when he becomes possessed of it. A IR 1977 Cal 123:
6. Punishment..-_(l) Offence relating to counterfeiting of Bd. coins are serious offences and to
award a punishment of two months' rigious imprisonment is not calculatedto deter the offence from
committing such offences. (1875) 23 SuthWR 4.
7. Procedure.—(l) A person having certain counterfeit coins in his possession but uttering only
one of them cannot be separately convicted under S. 240 respecting the coin which is uttered and under
S. 243 regarding the other coins remaining in his possession because an offence under S. 240 implies
prior guilty knowledge. The conviction having been obtained under , S. 240, the guilty possession
should not have been made a distinct crime under S. 243. 1957 AIIL.1283(284).
(2) Where one A who was in possession of some counterfeit coins gave some Out of them to B and
A was tried and convicted under Sections 243 for the coins in his possession and subsequently tried
under Section 240 in' respect of the coins that he gave to B, it was held that the delivery of the
counterfeit coins to B was. a distinct offence from that for which A was previously convicted. It was
further held that B could be jointly tried with A for abetting an offence u/s. 240. (1904) 1 Cr1LJ
714 (Cal).
(3) Cognizable—Warrant—Not bailable—Not compoundable Triable by Metropolitan
Magistrate or Magistrate of the first class.
8. P ractice.—Evidence—.Prove: (1) That the accused was in possession of Bangladesh coin.
(2) That the Bangladesh coin was counterfeit.
(3) That he was in possession of it with intent to defraud or with intent that fraud may be
committed.
(4) That he knew that it was counterfeit at the time he became possessed of it.
9. Charge.—The charge should run as follOws:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the day of—at—fraudulently (or with intent that fraud might be committed
were in possession of pieces of counterfeit Bangladeshi coins, known as knowing at the time when you
became possessed of the said coins that they were counterfeit, and thereby committed an offence
punishable under section 243 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 244
244. Person employed in mint causing coin to be of different weight or
composition from that fixed by law.—Whoever, being employed in any mint
lawfully established in 2 [Bangladesh], does any act, or omits what he is legally bound
to do, with the intention of causing any coin issued from that mint to be of a different
weight or composition from the weight or composition fixed by law, shall be punished
654 Penal Code Sec. 245

with imprisonment of either description for a term which may extend to sevenyears,
and shall also be liable to fine.
Materials
Practice—Evidence—Prove: (1) That the accused is employed in lawfully established mint in
Bangladesh.
(2) That he during such employment, did or omitted to do, something which he was , legally
bound to do, which would cause any coin issued from that mint to be different weight or composition
from that fixed by law.
(3) That he did or omitted to do such things with that intention.
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you. on or about the—day of—at—being employed as in the mint lawfully established in
Bangladesh, did an act, to wit—(or omitted what were legally bound to do, to wit(, with the intention
of causing the coin issued form the said mint to be of a different weight or composition from the weight
or composition fixed by law, and thereby, committed an offence punishable under section 244 of the
Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 245
245. Unlawfully taking coining instrument from mint.—Whoever, without-
lawful authority, takes out of any mint, lawfully established in 2 [Bangladesh], any
coining tool or instrument, shall be .punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.
Materials
I. Practice.—Evidence—Prove: (I) That the instrument in question is a coining tool or
instrument.
(2) That it belongs to mint lawfully established in Bangladesh.
(3) That the accused took it out it of the mint without lawful authority.
2. Procedure.—Cognizable—Warrant—N ot bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows: . .
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—without lawful authority did take out of a mint lawful
established in Bangladesh to wit, the mint—a certain coining-tool or instrument to wit—and thereby
committed an offence punishable under section 245 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 246-247 Penal Code 655

Section 246
246. Fraudulently or dishonestly diminishing weight or altering
composition of coin.—Whoever fraudulently or dishonestly performs on any coin
any operation which diminishes the weight or alters the composition of that coin, shall
be punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine. .
Explanation.— A person who scoops out part of the coin and puts anything else
into the cavity alters the composition of that coin.
Materials
I. Practice.—Evidence—Prove: (1) That the metal in question is a coin.
(2) That the accused performed upon such coin the operation in question.
(3) That the accused did as above fraudulently or dishonestly.
(4) That such operation diminished its weight, or altered its composition.
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class. . .
3. Charge The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—fraudulently (or dishonestly performed on the coin, to
wit—, an operation which diminished its weight or altered its composition), and you thereby
committed an offence punishable under section 246 of the Penal Code and within my cognizance.
And I heróby direct that you be tried on the said charge.

Section 247
247. . Fraudulently or dishonestly diminishing weight or altering
composition of 6 [Bangladesh coin].—Whoever fraudulently or dishonestly
performs on 8 [any Bangladesh coin], any operation which diminishes the weight or
alters the composition , of that coin, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to jine.
Cases and Materials
1. Scope^ ( 1) The, mere fact that an Bd. coin is being used as an ornament by soldering a ring to
it does not transform it absolutely into a new article. If a person clips and cuts away such a coin and
makes up the deficient weight by solder with the intention of subsequently delivering it to a bank he
would be guilty of fraudulently defacing a coin even though on a previous occasion the coin has been
used as an ornament. A IR 1926 A ll 321.
2. Practice.—Evidence—Prove: (I) That the accused performed an operation.
(2) That the operation was made on Bangladesh coin.

8. ' The original words "any of the Queen's coin" have been successively amended by A.0. 1961 (with effect from 23rd
March, 1956) and Act VIII of 1973 (with effect from the 26th March. 1971) to read as above,
656 Penal Code Sec. 248-249
(3) That it was made fraudulently.
(4) That such operation diminished its weight and altered its composition.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—, fraudulently (or dishonestly) performed on any
Bangladesh coin namely—an operation which diminished its weight or altered its composition and
that you have thereby committed an offence punishable under . section 247 of the Penal code and within
my cognizance.
And I hereby direct that you be tried on the said charge.

Section 248
248. Altering appearance of coin with intent that it shall pass as coin of
different description.—Whoever performs on any coin any operation which alters
the appearance of that coin, with the intention that the said coin shall pass as a coin of
a different description, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.'
Materials
1. Practice.—Evidence—Prove: (I) That the metal in question is a coin.
(2) That the accused performed on such coin the operation in question.
(3) That such operation altered the appearance thereof.
(4) That the accused did as above with the intention that such coin should-pass as a coin of
different description. .
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day—at—performed an operation on the coin namely—which altered
its appearance with the intention that the said coin shall pass as a coin of different description and you
thereby committed an offence punishable under section 248 of the Penal Code and within my
cognizance. . ..
And I hereby direct that you be tried on the said charge.

Section 249
249. Altering appearance of 6[Bangladesh coin] with intent that it shall pass
as coin of different description.—Whoever performs on 8 [any Bangladesh coin] any
operation which alters the appearance of that coin, with the intention that the said
coin shall pass as a coin ofa different description, shall be punished with
Sec. 250 . Penal Code . 657

imprisonment of either decription for a term which !nay extend to seven years, and
shall also be liable to fine.
Materials
1. Practice.—Evidence—Prove: (1) That the accused performed an operation on Bangladesh coin.
(2) That the operation altered its appearance.
(3) That the accused did so with the intention that the coin should pass off as a coin of different
description.
2. Procedure.—Cogñizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
3. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That on or about—at—you performed an operation on a Bangladesh coin namely—which altered
the appearance of the said coin with the intention that the said coin shall pass off as coin of different
description and you thereby committed an offence punishable under section 249 of the Penal Code and
within my cognizance. .,
And I hereby direct that you be tried on the said charge. .

Section 250
• 250. Delivery of coin, possessed with knowledge that it is altered.—Whoever,
having coin in his possession with respect to which the offence defined in section 246
or 248 has been committed, and having known at the time when he became possessed
of such coin that such offence had been committed with respect to it fraudulently or
with intent that fraud may be committed, delivers such coin to any other person, or
attempts to induce any other person to receive the same, shall be punished With
imprisonment of either description for a term which may extend to five years, and
shall also be liable to fine.
Materials
1. Practice.—Evidence—Prove: (1) That the coin in question was one with respect to which the
offence defined in section 246 or 248 was committed.
(2) That the accused was in possession of it.
(3) That at the time when he became possessed of it he knew that any of the said offences had been
committed. •
(4) That he delivered it to someone, or attempted to induce someone to receive it.
(5) That he did as above with intent to defraud or with intent that fraud might be committed.
2. Procedure._Cognizable—Warraflt—NOt bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
658 Penal Code Sec. 251

That on or about-at—you had in possession a coin namely—with respect to which an offence

under section- 246 or section 248 of the Penal Code had been committed and at the time you came in
possession you knew that such offence under section 246 or 248 had been committed and having
known at the time when you came to possess the said coin that such offence had been committed with
respect to it fraudulently or with intent that fraud may be, committed, delivered such coin to A, or
attempted to induce the said A to receive the same and thereby committed an offence punishable under
section 250 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge. -

Section 251.
251., Delivery of 6 [Bangladesh coin], possessed with knowledge that it is
altered. 'Whoever, having coin in his possession with respect to which the offence
defined in section 247 or 249 has been committed, and having known at the time
when he became possessed of such coin that such offence had been committed with
respect to it, fraudulently . or with intent that fraud may be committed, delivers such
coin to any other person, or attempts to induce any other person to receive the same,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Cases and Materials
I. Scope.—(l) To sustain a conviction under this section the prosecution must establish: that the
accused had delivered a coin with respect to which the offence defined in S. 247 or S. 249 had been
committed, to some person or attempted to induce such person to receive the same, either fraudulently
or with intent that fraud may be committed. (1903) 8 MCCR No. 325, P. 277.
.(2) If an accused person clips and cuts away a coin used as an ornament by soldering a ring to it
and makes up the deficiency in weight by solder with the intention of subsequently delivering it to a
bank, he would be guilty of fraudulently defecting a coin although on a previous occasion' the coin had
been used as an ornament. AIR 1926 All 321.
(3) The sentence of fine is optional. The law does not require a-sentence of fine as well as of
imprisonment. 1 W eir 223.
2. Pr actice.—Evidence—Prove: (I) That the coin in question was one with respect to which the
offence defined in section 247 or 249 was committed.
(2) That the coin in question was a Bangladesh coin.
(3) that the accused was in possession of it. -
(4) That.at the time he came into possession he knew that th offence 'under section 247 or section
249 had been committed.
(5) That he delivered it to another or attempted to induce him to receive it.
(6) That he did so with intent to defraud or that fraud might be committed.
'3. Procedure._CognizableL warj.antNot bailable—Not compoundable—Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate or Additional District Magistrate specially
empowered in this behalf.
Sec. 252-253 Penal Code 659
4. Charge.—The charge should run as follows:
I, (name and office of the Judge/Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—had in your possession a coin namely—and in respect of
which the offence defined in section 246 or section 248 Penal Code had been committed, and knowing
at the time when you became possessed of the said coin that such offence had been committed, you
fraudulently or with intent that fraud may be committed delivered such coin to XY (or attempted to
induce the said XY to receive the same) and thereby committed an offence punishable under section 25 1
of the Penal Codeand within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 252
252. Possession of coin by person who knew it to be altered when he became
possessed t hereof.—Whoever, fraudulently or with intent that fraud may be
committed, is in possession of coin with respect to which the offence defined in either
of the sections 246 or 248 has been committed, having known at the time of becoming
possessed thereof that such offence had been committed with respect to such coin,
shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.
Materials
1. Practice.—Eyidence_prove: (1) That the accused was in possession of a coin.
(2) That it was a coin in, respect of which the offence defined in section 246 had been committed.
(3) That the accused knew of it when he became possession of the coin.
(4) That he was so possessedof the coin with intent to defraud, or with intent that fraud might be
committed. .
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows:.
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about- .--at—had in your possession a coin namely—with respect to which the
offence defined in section 246 or 248 had been committed having known at the time of becoming
possessed of it that such offence had been committed . and thereby committed an offence punishable
under section 252 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 253
253. Possession of 6 [Bangladesh coin] by person who knew it to be altered
when , he became possessed
thereof.—Whoever, fraudulently or with intent that
.fraud maybe committed, is in possession of coin with respect to which the offence
defined in either of the sections 247 or 249 has been - committed, having known at the
Penal Code Sec. 254
660

time of becoming possessed thereof that such offence had been committed with
respect to such coin, shall be punished with imprisonment of either description for a
term which may extend to five years, and shall also be liable to fine.

Materials
1. Practice._Evidence—PrOVe (1) That the accused was in possession of Bangladesh coin.
(2) That it was in respect of which the offence under section 247 or 249 had been committed.
(3) That the accused knew of it when he became possessed of it.
(4) That he possessed the Bangladesh coin with intent to defraud or with the intent that fraud
might be committed.
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
3. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or abput—at—had in your possession Bangladesh coin namely—and in respect of
which the offence defined in section 247 or 249 had been committed having known at the time of
becoming possessed of it that such offence had been committed with respect to such Bangladesh coin
and thereby committed an offence punishable under section 253, Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

- . Sectioir 254
254. Delivery of coin as genuine which, when first possessed, the deliverer
did not know to be altered.—Whoever delivers to any other person as genuine or as
a coin of a different description from what it is, or attempts to induce any person to
receive as genuine, or as a different coin from what it is, any coin in respect of which
he knows that any such operation as that mentioned in section 246, 247, 248, or 249
has been performed, but in respect of which he did not, at the time when he took it
into his possession, know that such operation had been performed, shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine to an amount which may extend to ten times the value of the coin for which
the altered coin is passed, or attempted to be passed.
Materials
1. Practice.—Evidence—Prove: ( 1) That the coin in question is one with respect to which any
such operation as that mentioned in sections 246, 247, 248 or 249 has been performed.
(2) That the accused delivered it to someone, or that he attempted to induce someone to receive it.
(3) That he delivered it, or so attempted to induce someone to receive it, as a genuine co in, .or as a
coin of a different description.
(4) That at the time he did so he knew that it had been operated upon.
Sec. 255 Penal Code 661

2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by any

Magistrate.
3. Charge.—The charge should run as follows:
1. (name and office ofthe Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--delivered to XY (or attempted to induce XY to receive
as genuine a coin, namely—in respect of which an operation as is mentioned in sections 246, 247.,. 248
or249 of the Penal Code to wit had been performed, and you thereby committed an offence punishable
under section 254 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 255
255. Counterfeiting Government stamp.—Whoever counterfeits, or knowingly
performs any part of the process of counterfeiting, any stamp issued by Government
for the purpose of revenue, shall be punished with 7 [imprisonment] for life or with
imprisonment of eithei description for a term which may extend to ten years, and shall
also be liable to fine.
Explanation.— A person commits this offence who counterfeits by causing a
genuine stamp of one denomination to appear like a genuine stamp of a different
denomination.
Cases and Materials
1. Scope.—(l) Sections 255 to 263A, Penai Code deal with offences relating to stamps issued by
the Government. This section deals with counterfeiting of Government stamps. Stamp is an impression
by means of a die upon paper, or other material in token or the payment of a certain charge or tax
mostly for the purpose of revenue. This section may be read along With section 28 and section 17,
Penal Code.
(2) Term "prejudicial act" in section 2(4) of the Public Safety Act does not cover the definition of
the term "prejudicial act" under section 2(f) (viii) of the Special Powers Act (XIV of 1974), section 26
(3)—On 5-2-74 when the offence was detected the accused could not be tried for an offence which falls
under section 16(3) of the Special Powers Act, since the S. P. Act became law on 9-2-74 there being
given no retrospective effect with regard to, the operation of the provisions of the Act. Retrospective
operation of a penal statue—unless a penal law is given retrospective effect no offence committed before
law came into force can be tried under that statute. The appellants were found in possession of forged
and counterfeit non-judicial stamps on 5-2-74. The evidence collected by the police made out a prima
facie case for submission of charge-sheet under sections 255. 256, 258 and 259 of the Penal Code. But
the police could not invoke section 16(3) of the Act when the Act was not in existence on 5-2-74 the
date of commission of the offence and the Act was not given any retrospective effect. Criminal trial—of
the CrPC it cannot be tried under a Special Act which came into effect after , the commission of the
offence. Forum for trial must be one as provided by the CrPC. 30 DLR 112 (SC).
(3) Where the accused engraved a counterfeit stamp, like in some parts, a genuine stamp and
unlike in other parts and then cut out the unlike parts and concealed the parts cut out, he was held
guilty of 'counterfeiting stamp. (1812) 168 ER 620.
662 Penal Code Sec. 256

(4) Where the accused altered some used stamps so as to make them resemble unused ones, it was
held that the alteration amounted to counterfeiting within the meaning of Section 28 of the Code. AIR
1921 Nag 86
(5) A forged stamp was held to be a stamp-within the meaning of Section 13 of the Stamp Duties
Management Act, 1891 (54 and 55 Vict, C 38) even though it bore the 'cancellation mark. (1914)
1 KB /44.
(6) Where a one anna stamp paper had been used instead of one rupee stamp paper and on the two
Bangali letters of the word 'anna' semi opaque blots of ink had been dropped but there had not been
the slightest attempt made to alter the word 'anna' into 'roopya' and the word 'anna' in the Persian
character was perfectly intact it was held that there was no counterfeiting. (1865) 2 SuthW R 65.
(7) Under S. 17 of the Post Office Act, 1898 . postage stamp and impression of stamping machine
issued under this authority of Government and denoting pre-payment of postage are deemed to be
- stamps issued by Government for the purpose of revenue within the meaning of this Code. (1892) 5
CPLR 43.
2. Practice.—Evidence--Prove: (1) That the counterfeit was that of stamp issued by Government
for , the purpose of revenue.
(2) That the accused made such counterfeit or that he knowingly 'performed' any part of the
process of counterfeiting.
3. Procedure.—Cognizable—Warrant-----Bailable—Not compoundable—Triable by Chief
Metropolitan Magistrate, District Magistrate or Additional District Magistrate specially empowered.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—counterfeited (or knowingly performed a certain part of the
process of counterfeiting, to wit-) a certain stamp issued by Government for the purpose of revenue to
wit and thereby committed an offence punishable under section 255 of the Penal Code and within my
cognizance;
And I hereby direct that you be tried on the said charge.

Section 256
• 256. Having possession of instrument or material for counterfeiting.
Government, stamp.—Whoever has in his possession any instrument or material for
the purpose of being used, or , knowing or having reason to believe that it is intended to
be 'used, for the purpose of counterfeiting any stamp issued by Government for the
purpose of revenue, shall be punished with imprisonment of either description for a
term which may extend to seven years,. and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) This section may be read along with sections 27 and 235. this section deals with
possession of instrument or material for counterfeiting of stem corresponding section 235 of the Penal
Code dealing with coin.
(2) Even an innocent possession of a die for making a false stamp known to be such by its
possessor is an offence. (1896) 2 QBD 310. '
Sec. 257 Penal Code 663
I
2. Practice.—Evidence—Prove: (1) That the instrument or material in question is one usable for
counterfeiting stamps.
(2) That the stamps so predicable thereby are counterfeits of those issued by Government for the
purpose of revenue.
(3) That the accused had such instrument or material in his possession.
(4) That the same was in possession of the accused for the purpose of its being used to counterfeit
such Government stamps; or that the accused knew or had reason to believe that such instrument or
material was intended to be used.
3. Procedure—Cognizable—Warrant—Bailable—Not compoundable—Triable, by Metropolitan
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (nane and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about—at—had in your possession instruments or materials for the purpose of
being used or knowing or having reason to believe that it is intended to be used for the purpose of
counterfeiting an stamp issued by Government for the purpose of revenue and thereby committed an
offence punishable under section 256 of the Penal Code and within my cognizance.
And I hereby direct that you be tried an the said charge.

Section 257
257. Making or selling instrument for counterfeiting Government stamp.—
Whoever makes, or performs any part of the process of making, or buys, or sells, or
disposes of, any instrument for the purpose of being used, or knowing or having
reason to believe that it is intended to be used, for the purpose of counterfeiting any
stamp, issued by Government for the purpose of revenue, shall be punished with
imprisonment of either description for , a term which may extend to seven years, and
shall also be liable to fine. . .
Materials.
I. Practice.---(l) Evidence—Prove: (1) That the instrument or material in question is one usable
for counterfeiting stamps.
(2) That the stamps so predicable thereby are counterfeits of those issued by Government for the
purpose of revenue.
(3) That.the accused made, or perform, some part of the process of making such instrument, or that
he bought, sold or disposed of such instrument.
(4) That he did as above in order that such instrument might be used .for purpose of counterfeitin g-
such stamp or that the accused knew or had reason to believe that the same was intended to be used for
such purpose.
2. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first or second class.
3. Charge.—The charge should run as follows:
I, (naffle and office of the Magistrate) hereby charge you (name of the accused) as follows:
664 Penal Code Sec. 258

That you, on or about—at—made (or performed any part of the process of making or bought or
sold disposed of) any instrument namely—for the purpose of being used (or knowing or having reason
to be believed that it was intended to be issued) for counterfeiting a stamp namely—issued by
Government for the purpose of revenue, and thereby committed an offence punishable under section 257
of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 258
258. Sale of counterfeit Government stamp.—Whoever sells, or offers for sale,
any stamp which he knows or has reason to believe to be a counterfeit of any stamp
issued by Government for the purpose of revenue, shall be punished with
imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine.
Cases and Materials
1. Scope.—(l) Investigation by Anti-Corruption authority thought not authorised under the law
does neither deprive the Court of its jurisdiction to hold trial nor vitiate the trial for want of
jurisdiction in the investigation officer, District Anti-Corruption Officer, Bakerganj on a certain
information visited the stall of the accused, licensed stamp vendor, and recovered 61 suspected one
rupeenomination court-fee stamps from his file and thereafter lodged FIR: with Kotwali P.S. and
directed the assistant Inspector of the Anti-Corruption Bureau to investigate into the case. The
investigation was done by him in accordance with the provisions of Cr. P. C. He submitted charge-
sheet against the accused who was found guilty under sections 258 and 259 P. C. and was sentenced
to three years' R.I. On appeal it was contended that the trial of the accused was illegal because of the
investigation into the case by an officer of the Anti-Corruption Bureau who had no authority to
investigate into the case and as such this illegal investigation conferred no jurisdiction on the trial
court. Held:There is no doubt that court which took cognizance of the-offence suffered from no
jurisdictional defect or want of jurisdictional authority in trying the accused because of the irregular
investigation and collection of evidence against him by an authority who may not have been authorised
to do so. Before we part with this case we would like to observe that since the legislature has not
empowered specifically the Bureau of'Anti-Corruption to investigate and enquire into offences which
was deliberately kept out of the Schedule to the Anti-Corruption Act of 1957, it was no function of the
members of the Anti-Corruption Bureau to have investigated into the case. Abdul Karim Howladar Vs.
The State, (1969) 21 DLR 871.
(2) Under Section 13 of the Stamp Duties Management Act, 1891 (54 and 55 Vict C 38 a forged
stamp has been held to be a stamp even though it bears a cancellation mark. (1914) 1 KB 144;
2. Practice.—Evidence—Prove: (1) That the counterfeit was that of a stamp issued by Government
for the purpose of revenue.
(2) That the accused sold or offered to sell such counterfeit stamp.
(3) That when selling or offering the same for sale he knew or had reason to believe that the same
was counterfeit.
3. Procedure.—Cognizable—Warr-ant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
Sec. 259-260 Penal Code 665
4. Charge.—The charge should run as follows:
1, (name and offic.e of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—sold (offered for sale) a stamp to wit—which you knew
(or had reason to believe) to be counterfeit of the stamp—issued by the Government for the purpose of
revenue and thereby committed an offence punishable under section 258 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried on the said charge.

Section 259
259. Having possession of counterfeit Government stamp.—Whoever has in
his possession any stamp which he knows to be a counterfeit of any stamp issued by
Government for the purpose of revenue, intending to use or dispose of the same as a
genuine stamp, or in order that it may be used as ,a genuine stamp, shall be punished
with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
Materials
1. Scope.—(1) This section deals with possession of counterfeit stamps corresponding to section
243 relating to coin, Mere possession of counterfeit stamp is no offence under tte Code, but if he
possesses it with the intention of using it or disposing it-ofas genuine, this section is attracted.
2. Practice.—Evidence—Prove: (1) That the counterfeit was that of a stamp issued by Government
for the purpose ofrevenue.
(2) That the accused had such counterfeit stamp in his possession.
(3) That he then knew the same to be counterfeit.
(4) That he was so possessed intending to use or dispose of the same as a genuine stamp, or that
he was so possessed thereof in order that the same may be used as a genuine stamp.
3. Procedure.—Cognizable--Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class. -
4. Charge.—The charge should run asfollows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you., on or about the—day of—, at—, were in possession of a stamp Exhibit—, which you
knew to be a counterfeit of a stamp to wit—, issued by Government for the purpose of revenue,
intending to use (or dispose of) the same as genuine stamp and thereby committed an offence
punishable under section 159 the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 260
260. Using as genuine a Government stamp known to be counterfeit.—
Whoever uses as genuine any stamp, knowing it to be a counterfeit of any stamp
' issued by Government for the purpose of ,revenue, shall be punished with
666 Penal Code Sec. 261

imprisonment of either description for a term which may extend to seven years, or
with fine, or with both.
Cases and Materials
1. Scope.—(l) This section corresponds to section 154, a similar section relating to coin. Stamp
used as genuine must be a counterfeit stamp.
(2) Where a person altered some used stamps so as to make them resemble unused ones and used
them as unused, it was held that the alteration amounted to counterfeiting within the meaning of Sec.
28 of the Code. A IR 1921 Nag 86
(3) Where a person used a genuine one anna stamp for a rupee stamp and on the two Bangla letters
of the word 'anna' semi opaque blots of ink had been dropped but there had been no attempt made to
alter the word 'anna' into 'roopya' and the word 'anna' in the Persian character wasi kept perfectly
intact, it was held that the accused could not be held guilty under this section. (1865) 2 SuthW R 65.
2. Practice.—Evidence—Prove: (1) That the counterfeit was that of a stamp issued by Government
for the purpose of revenue.
(2) That the accused'knew the same to be counterfeit.
(3) That he used counterfeit stamp , with such knowledge.
(4) That he used same as a,genuine stamp.
3. Procedu re.—Cognizable---Warrant—Bailable--Not cómpoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or ' about the—day of—at—, used as genuine a stamp to wit—knowing to be a
counterfeit of a stamp issued by Government for the purpose of revenue, to wit—and thereby committed
an offence punishable under section 260 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 261
261. Effacing writing from substance bearing Government stamp, or
removing from document a stamp used for it, with intent to cause loss to
Government.—Whoever fraudulently or with intent to cause loss to the Government,
removes or effaces from any substance, bearing any stamp issued by Government for
'the purpose of revenue, any writing Or document for which such stamp has been used,
or removes from any writing or document a stamp which has been used for such
writing or document, in order that such stamp may be used for a different writing or
document, shall be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
Materials
1. Practice.—Evidence--Prove: (1) That the stamp was issued by Government for revenue
purpose.
Sec. 262 Penal Code 667

(2) That such stamp had been used as such on the substance in question..
(3) That the accused removed or effaced from such stamp some of the writing for which it had
been used. .
(4) That he did so with intent to defraud or to cause loss to Government.
2. Procedure.--Cognizable—Warrant-Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
3. Charge.-The charge should run as follows:
I, (name and office of the Magistrate) hereby, charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, fraudulently. (or with intent to cause loss to the
Government) removed or effaced from any substance bearing any stamp issued by Government for the
purpose of revenue any writing or document for which such stamp has been used or removed from any
writing or document a stamp which had been used for such writing or document in order that such
stamp may be used for different writing or document and thereby committed an offence 'punishable
under section 261 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 262
262. Using Government stamp known to have been before used.—Whoever
fraudulently or with intent to cause loss to the Government, uses for any purpose a
stamp issued by Government for the purpose of revenue, which he knows to have
been before used, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
Cases and Materials
1. Scope.—(1) Offence complete no sooner the document is filed—Recipient not within the
mischief of the section and cannot be charged for abetting. The user of used-up stamp in Court as
contemplated under section 262 is complete as soon as the document is filed before the Court, and at
that stage the Officer of the Court whose duty is to receive the documents has nothing whatever to do
with it. In this view of the matter, so far as that offence is concerned which is completed with the filing
of the document, there is no unity of criminal behaviour as between-the person filling that document
and the person responsible for accepting it, punching it, sealing it and then entering into a register.
A bdul LatfMridha Vs. Crown 8 DLR 238.
(2) Under the section it is incumbent upon the prosecution to bring home to the accused not only
that he used the stamp with knowledge that it had been used before but also that he used it fraudulently
or with intent to cause loss to the Government. The intent to defraud or 'to cause such loss cannot be
assumed. 1981 All W N 56
(3) A person is punishable under this section for using a postage stamp twice. (1892) 5 CPLR 43.
2. Practice.—Evidence—Prove: (1) .That the stamp was issued by Government for the purpose of
revenue.
(2) That it had been already used for such purpose.
(3) That the accused afterwards again used such stamp.
668 Penal Code Sec. 263
(4) That when he used it again he knew that it had been before used.
(5) That he again so used the stamp with intent to defraud or to cause loss to Government.
3. Procedure.—Cognizable—Warrant-- . Bailable---Not compoundable—Triable by any
Magistrate. -
4. Criminal triaL—Offence—several persons charged for the commission of an offence read with
section 34, Penal Code. Acquittal of one does not preclude the remaining being convicted of the
substantive offence.
Section 263
263. Erasure of mark denoting that stamp has been used.—Whoever
fraudulently or with intent to cause loss to Government, erases or removes from a
stamp issued by Government for the purpose of revenue, any mark, put or impressed
upon such stamp for the purpose of denoting that the same has been used, or
knowingly has in his possession or sells or disposes of any such stamp from which
such mark has been erased or removed, or sells or disposes of any such stamp which
he knows to have been used, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
Cases and Materials
1. Scope.—(I) Under this section three things are punishable: (i) erasure or removal of a mark
denoting that a stamp has been used, (ii) knowingly possessing any stamp, and (iii) selling or
disposing of any such stamp.
(2)-4a) Disorderly behaviour menacing in nature, causing annoyance to passengers in the street,
whether constitutes offence under section 79 of the Chittagong Metropolitan Police Ordinance, 1978 as
it was done in a hut, and not in the open street. Effect of the act upon the passengers or public peace is
the main ingredient of the offence whether the act was done in a hut or in the street. -
•(b) Whether the sentence of imprisonment in default of payment of fine under section 79 of the
Ordinance is legal. Section 33(1) of the Code of Criminal Procedure governs both the case where the
offence is punishable with imprisonment as well as fine and where the offence is punishable only with
fine. The State Vs. Abul Kashem 5 BCR 265 AD.
(3) There is no necessity under this part of the section for the prosecution to prove that the erasure
of the mark or impression had been done by the accused or that he had any connection with it. (1936)
37 CriLJ 923 (Cal).
(4) The endorsements put upon a stamp by a stamp vendor are not put for the purpose of showing
that it has been used and hence erasement of such endorsement of the stamp and its possession do not
come within the purview of this section. (1936) 37 CriLi 923 (Cal)
(5) In a case where accused were charge-sheeted under Ss. 262, 263 and also under Ss. 120B, 467,
471, P.C. if there is no sanction to prosecute u/s. 195, Cr. P. C. the Court cannot proceed with the
case ulss 12013, 467, 471, but as offences under Ss. 262, 263 are quite different from those under Ss.
.463, 471 and do not need any sanction to prosecute Court can proceed with the case with respect to
those offences only. 1980 A ll CriR 76
2. Practice.—(a) In case of erasing or removing marks—Prove: (1) That , the stamp in question
was issued by the Government for the purpose of revenue.
Sec. 263A Penal Code 669
(2) That it bore the mark that it been used.
(3) That the accused removed or erased such mark or impression.
(4) That he did so with the intention to defraud or cause loss to the Government.
(b) In case of sale or disposal— prove: (1) That the stamp in question was issued by the
Government for the purpose of revenue,
(2) That it bore the mark or impression showing that it had been used.
(3) That the accused removed or erased such mark or impression.
(4') That the accused was in possession of such stamp then in such condition.
(5) That he knew at that time such mark or impression and had been removed or erased.
(c) In case of sale or 'disposal—Prove: (.1) That the stamp in question was issued by Government
for the purpose of raising revenue. -
(2) That it bore the mark that it had been used.
(3) That the accused removed the stamp.
(4) That the accused sold or disposed of such stamp.
(5) That he then knew it had been so used.
(6) That he sold or disposed of such stamp with intent to defraud or cause loss to government.
3. Procedure._Cognj zabl'e_warraflt_Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—at—fraudulently or with the intent to cause loss to Government erased
or removed from a stamp issued by the Government for the purpose of revenue, a mark put or
impressed upon such stamp for denoting that the same had been used or possessing it knowing at that
time that such mark or impression had been removed or erased (or you sold or disposed of such stamp
knowing that the mark or impression in the stamp had been removed or erased with a fraudulent-
intention or had the intention to cause loss to Government wheti so selling or disposing of it) and
thereby committed an offence punishable under section 263 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.

• , ,, Section 263A
9 [263A. Prohibition of fictitious stamps.—(I) Whoever—
(a) makes, knowingly utters, deals in or sells any fictitious stamp, or knowingly
uses for any postal purpose any fictitious stamp, or
(b) has in his possession, without lawful excuse, any fictitious stamp, or
(c) makes or, without lawful excuse, has in his possession any die, plate,
instrument or materials for making any fictitious stamp,
shall be punished with fine which may extend to two hundred 4[taka].

9. S. 263A was inserted by the Indian Criminal Law Amendment Act, 1895 (UI of 1895), s. 2,
670 Penal Code Sec. 263A

(2) Any such stamp, die, plate, instrument or materials in the possession of any
person for making any fictitious stamp may be seized and shall be forfeited.
(3) In this section "fictitious stamp" means any stamp falsely purporting to be
issued by Government for the purpose of denoting a rate of postage or any facsimile
or imitation or representation, whether on paper or otherwise, of any stamp issued by
Government for that purpose.
(4) In this section and also in sections 255 to 263 both inclusive, the word
"Government" when used in connection with, or in ieference to, any stamp issued for
the purpose of denoting a rate of postage, shall, notwithstanding anything in section
17, be deemed to include the person- or persons authorised by law to administer•
executive government in any part of 2 [Bangladesh], and also in any part of Her
Majesty's dominions or in any foreign country.
Cases and Materials
1. Scope.—(1) This section was addedby Act III of 1895 in consequence of the resolution of the
International Postal Congress held at Vienna in 1891. This section deals with sale of any fictitious
stamp or use of such stamp for postal purposes.
• (2) Possession of die for making false stamp known to be such to its possessor held to be an
offence under S. 7(c) of Post Office (Protection) Act, 1884 (47 and 48 Vict. C. 76). (1886) 2 QBD 310.
(3) In the Penal Code there are about 15 offences, such as u/ss 263A, 283, 290, 294A which are
punishable only with fine, but in none of these sections it is provided that the offender should be
committed to prison in default of payment of the fine—Courts while sentencing a person to fine under
these sections pass sentence of imprisonment in default of payment of the fine since this power is
already there u/ss. 3 1(1) & 33(1) Cr. P.C.—There is no illegality inthe Magistrate's order in the case
sentencing the appellant to simple imprisonment in default of the fine. The State Vs. Abdul Kashem 4
BSCD 37.
2. Practice.—Evidence----Prove: (1) That the accused made, knowingly uttered, dealt in or sold
the fictitious stamp in question, or knowingly used it for any postal purpose. -.
(2) That he had in his possession, without lawful excuse, such stamp.
(3) That he made or without lawful excuse had in his possession any die, plate instrument or
material for making such stamp.
3. Procedure.—Cognizable—Warrant—Bailable—N.ot : compoundable—Triable by any
Magistrate.
4. Charge.-The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as. follows:
• That you, ,on or about the—at---, made, knowingly altered, dealt in or sold fictitious stamps (or
knowingly used for any postal purposes any fictitious stamp) or had in your possession without lawful
excuse any fictitious stamp or made or had in your possession any die, plate instrument or materials for
making any fictitious stamp and thereby committed an offence punishable under section 263A of the
Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge..
CHAPTER )911
Of Offences relating to Weights and Measures

Chapter introduction.— This Chapter does not.require for its working any fixed and
immutable standard of weights and measures. It is sufficient for the purpose of the
Chapter that the weights and measures current in a locality should be fraudulently
deviated from. The offence, in short, consists in the fraud practised by making a person
believe , that a weight or measure is what in reality it is not. The offence consists in
cheating by using false weights and measures which carry with them the resemblance of
public authenticity.
The offences of using false tokens, whether they be false coins, false stamps, false
weights and measures or false trade-marks, are all parts of the genehc offence' of
cheating against which extensive provisions have been made by the municipalities and
local boards for regulating the weights and measures and for verifying . and stamping
them. In such cases, the use of unauthorized weights and measures is also prohibited and
punished. But, whether it is a charge for using unauthorized weights and , measures, or for
an offence under any section of this Chapter, the underlying principle is the same, only in
the one case cheating is apprehended, in the other case it is to be proved. A police officer
in charge of a police station possesses the power to inspect or search for any weights and
measures which he has reason to believe to be false and, if they are so found, to seize
them. (Section 153, Cr.F.C.).
In Bangladesh as part of the Indian Subcontinent, the standards of weights and
lengths were laid down in the (a) the W eights and Measures of Capacity A ct, 1871 (X X X I
p1 1871), (b) the Measures of Length A ct, .1889 (II of 1889), and (c) the Standards of
W eight A ct, 1939 (IX of 1939). There were used certain terms for standards of weights
and lengths being seer, pound, yard and their multiples and sub-multiples. These
standards, however, were not effectively enforced throughout the country with the result
that different systems of lengths and measures prevailed in different parts of the country.
Moreover, the same term often represented different units of weight in different areas and
in different trades within the same area: This 'state f chaos hampered trade and provided
opportunity for the exploitation of the masses. A s such, an urgent need was felt for
enforcing a un iform system of weights and measures throughout the cointry. A fter
prolonged consideration it wa.felt that the best course was to adopt a uniform system of
weights and measures based on the metric system, a system which , had already been
adopted by nearly 70 countries and was recognised throughout, the •world. The
Government consequently passed an A ct namely, the W eights and Measures (Metric
System) A ct, 1967 (V of 1967), fixing the primary unit of length as a metre and the
primary unit of mass as kilogram, apart from fixing units of time, electric current, scale
672 Penal Code

of temperature, luminous intensity, area, volume and capacity. The standards established
'by the A ct were based on the international system of units, 'as recognised by the General
Conference of W eights and Measures (CGPM) and the International Organization of
Legal Metrology. (OIML). Subsequent to the enactment of the said A ct, CGPM revised the
standards of weights and measures with a view to providing a coherent scheme for
measurements having regard to the rapid advances, made in the fields of science and
technology, and evolved a practical system of units of weights and measures, suitable for
adop tion for all the signatories to the Metre Convention. This practical system of weights
and measures W as' given the name "Le Systeme International d' Unites" Y with its
international abbreviation "ST). The "SI" includes seven base units, two supplementary
units, about fifty derived units and a few special units. The "ST' is not a new system, it
emanates from the six primary units which were established by the said A ct and also
includes derived units which are required in the specialised fields of nuclear -science,
space technology, aeronautics, electronics, communication and for the manufacture of
high-precision instruments and equipments required in the country and for export: To
sustain and assist scientific and technological research in the country, mare accurate
standards of weights and measures, as in the "SI", had to be adopted for the
measurement of space and time, temperature and heat, magnetic quantities, X -ray
dosage, nuclear radiation, etc. The scientific and technological organizations, urged the
formal adoption of "ST' . and other units to facilitate their working.
The OIML, which is responsible for the preparation of international laws on weights
and measures, called -"Legal Metrology ", has recognised. all the "SI" units for legal
purposes and has prepared the draft of a. legislation for enactment by member-countries.
Bangladesh is a signatory to the Metre Convention and is thus a member of the
CGPM Bangladesh is also a member of the OIML. In view of the revision by the CGPM
of the Standards of W eights and Measures and the changes in the law suggesed by the
OIML, the Government was to consider what changes were required to be made in the
said A ct to give effect to the recommendations made by the aforesaid International
Organizations.
W hile many countries of the world, including Our neighbours India, Pakistan and Sri
Lanka had in their march forward, adopted metric system of weights and measures, a
system universally acclaimed as simple, scientific and highly efficient in economic
activities especially industrial production and trade and commerce— we were labouring
under an unscientific and outmoded indigenous system of weights-and measures. The law
on metric system, called the Standards of W eights and Measures A ct, 1969, which we had
inherited from erstwhile Pakistan j had also not, in view of the dimension of the progress
since made in the system internationally,, been cunsidered suitable for adoption in this
country. The Government, therefore, sought to make suitable provision for introduction of
metric system of weights and measures so that this country might- keep pace with other
countries in the march forward in the field of weights and measures.
A s a result, the Standards of W eights and Measures Ordinance, 1982 (Ord. 'No. X II of
1982),' has been made, and promulgated. Under this Ordinance, the Base Unit of Mass
shall be the kilogram, kilogram being a unit of mass equal to the mass of the
Sec. 264 Of Offences relating to Weights and Measures 673

international prototype of the kilogram. The base unit of length shall be the metre.. The
Ordinance prohibits the use and manufacture of non-standard weights and measures. It
also prohibits the inscription or indication of weight or measures except in accordance
with the standards laid down. The Ordinance further provides for penalties in Secs.
32 to 55.
The offences punishable by this Chapter are not defined with reference to any precise
standard of weight or measure established by law. A false weight or measure here
signifies that— taking the law or the ordinary usage of the place, or the common
understanding of the parties, to have fixed on certain known instrument of weight or
measure, with reference to which two persons deal together— the false dealer by deceit
substitutes another weight or measure in order to defraud

Section. 264
264. Fraudulent use of false instrument for weighing—Whoever fraudulently.
uses any instrument for weighing which he knows to be false, shall be punished with
imprisonment of either dscriptibn for a term which may extend to one year, or with
fine, or with both. . . .
Cases and Materials
I. Scope.—(1) This section relates to fraudulent use of an instrument for weighing which are
known to be false and used for the purpose of proving of short weight as full weight. Section 153,
CrPC may be read for the purpose of inspection of weights and measures by police.
2) This section requires two essentials: . . .
(I) . Fraudulent use of an instrument for weighing. .
(ii) Knowledge that such instrument is false.
(3) Intention to defraud is the essential ingredient of the offence under the section and in the
absence of any evidence of such intention the accused cannot be punished. (1862) 18 Suth WR 7.
(4) Where it was found that the weighing machine in possession of the accused was to be adjusted
before use and the Inspector of Weights and Measures had not adjusted it before examination,, it was
held that the accused could not be held guilty for possession of incorrect weighing machine. (1862)
121 ER 1094. . . .
(5) Where the weighing machine was out of repairs for a fortnight so that when anything was
weighed by it the weight appeared to be four pounds more than its actual weight, the accused was held -
guilty of possessing an incorrect .weighing machine. (1865)34 LJMC 31(34).
(6) The accused possessed a machine for weighing tea which had under the scoop in which tea was
placed a piece of paper the effect of which was to make the machine indicate weight exceeding by the
weight of the paper, the weight of the tea in the scoop. The paper was placed for convenience and
expedition, in weighing because it would take longer to weigh the tea if it were placed in the bag ii
which it was to be sold before being put into the scoop. The paper weighed less than the bag. Still, the
accused was held guilty of possessing false and unjustweighingrnachine..(1899) 2 Q and 673.
(7) A girl in the employment of the accused placed a paper bag under the scoop where it remained1
whilst the tea was being weighed. When the weighing was finished the girl put the machine with th'
674 Penal Code Sec. 265

bag still under the scoop aside the shelf Precautions were taken to ensure that the bag should not be
used for any other weighing. It was held that the accused had committed an offence of using for trade a
weighing machine which was false and unjust (1905) 1 KB 410.
(8) The accused had in his possession weighing machines consisting of pair of scales correct as to
balance at the time they were found by the Inspector of Weights and Measures but having a hollow
brass ball hanging upon the weight end of the beam of each pair, the balls being constructed with necks
which could be unscrewed so as to allow shot to be placed in the interior and being hung bytout
brass wire hooks upon the beam end of the scales from which they were easily removable by merely
lifting them off. Without the shot which the balls contained the scales would be unjust and against a
purchaser. The balls formed no part of the scales. The accused was held guilty of having in his
possession unjust weighing machines. (1868) 3QB433.
2. Practice.—Evidence— p rove: (I) That the instrument in question is one for weighing.
(2) That it is a false one. .
(3) That the accused knew it to be false. . .
(4) That he used it knowing . it to be so.
(5) That he did as above with intent to defraud.
3. Procedure.—Not cogniz able—Summons—Bailable—Not compoundable—Triable by any
Magistrate. . .
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—,at--, fraudulently used a certain instrument for weighing to
wit—, knowing it to be false at the time of using it, and thereby committed an offence punishable
under section 264 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge..

Section 265
265 Fraudulent use of false weight or measure —Whoever fraudulently uses
any false weight or false measure of length or capacity, or fraudulently uses any
weight or any measure of length or capacity as a different weight or measure from
what it is, shall be punished with imprisonment of either description for a term which
may extend to one yeas, or with fine, or with both. . ..
Cases and Materials
1. Scope.—(1) Section 264 punishes One who uses a false balance; this section punishes one'who
uses, a false weight or measure. To ascertain whether a measure is false or not, the only proper .test to
apply is that of the measure, and the same articles must be measured in each case, and proof should be
adduced that this had been done. A person cannot be convicted under section 265 where there is no
complaint by a purchaser (9 C'rLJ 4 Lah). .
• (2) For a conviction under this section the prosecution must prove the following ingredients: (a)
that aweight or measure of length or capacity was a false one; (b)that the accused used such a weight
or measure; and (c) that he did so fraudulently. 1982 (2) Cr1LJ693. .
Sec. 266 Of Offences relating to Weights and Measures 675
(3) In every place there were well-known customary weights and if any one used knowing that a
weight was less than the customary weight which it purported to be used the weight dishonestly, he
committed a fraud. (1909) 14 Mys CGR No. 74p. 524.
(4) In the absence of standard weight prescribed by lawful authority or generally recognised by
local custom no presumption of fraud could arise and a.conviction for short weight could not be
sustained. (1909) 9 Cr1 Li 415 (UppBur).
(5) Where in a ginning factory the Police Sub-Inspector found that there was an additional weight
of 1/4 seer attached to the Maund, so that, the owner who purchased cotton from the villagers paid to
them only the price of a maund while every time the owner got cotton weighing more than a.maund
and there was a. practice according to the Mandi Committee to add 1/4 seer for every maund, the
prosecution having failed to establish that the accused fraudulently used a false weight, the accused
could not. be convicted. 1962 (2) CriL.J 693.
(6) The accused was getting his grain measured with a katha which he borrowed for the purpose
from another person who told him that it was passed by the Notified Area Committee. When the katha
was seized by the police they found it to measure five tolas more than the standard katha. It was held
that the accused could not be convicted under this section in the absence of proof that he knew that the
khata was incorrect or that before he used it he tampered with it. A IR 1929 Nag 239.
2. Practice.—Evidence— prove: (1) That the weight or measure is a false one or that it is different
from what it was used as.
(2) That the accused used such false or different weight or measure.
(3) That he did as above with intent to defraud.
3. Procedure.—Not compoundable—Triable by any
Magistrate. .. .
4.Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, fraudulently used a false weight (or false measure of
length or capacity) or fraudulently used a weight (or measure of length or capacity), or as a different
weight (or measure) from what it was, and thereby committed an offence punishable under section 265
of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 266
266. Being in possession of false weight or measure,—Whoever is in
possession of any instrument for weighing, or of any weight, Or of any measure of
length or capacity, which he knows to be false, and[ sic -1 intending that the same may
be fraudulently used, shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with both.

Sic. Here, the word "and" is not necessary both syntactically and semantically. In India it was rightly omitted in
1953. --Chief Mitor . -
676 Penal Code Sec. 266

Cases and Materials

1. Scope.—(1) This section relates to the possession of a false weight or measure with knowledge
of its falsity or the use thereof with intent to defraud. Mere possession of the false weights or measures
is not sufficient. Fraudulent intention is an ingredient of an offence under this section (41 CrLf 172).
The offence under this section is an offence against society and in such cases no leniency in the sentence
will be showed (1959 CrLf 1112).
(2) In comparing weights used in the bazar some reasonable allowance should be made for wear
and tear and for the rough and ready methods of bazar shopkeepers. AIR 1914 Lah 42.
(3) Where both the purchaser and the seller are aware of the actual measure used there can be no
question of fraudulent intention. It is only when the seller purports to sell according to a certain
standard and sells below that standard that he ca be said to be guilty of fraud. AIR 1939 Born 455.
(4) Where it has been agreed between the seller and the purchaser that a certain .commodity should
be measured by a certain measure produced by the seller and the seller has not represented in any Way
that the measure was the standard measure, the seller cannot be said to have a fraudulent intention. AIR
1939 Born 455.
(5) The fact that an offence may have been committed under the Weights and Measures Act does
not make the measure false within the meaning of this section. AIR 1939 Born 455.
(6) If a dealer has.a measure in his shop which has been tested by Government and certified to be a
proper measure, there is no reason to presume that he could have known that it was not a correct
measure or that at the time the stamp was put on the measure it was not up to the prescribed standard,.
If the measures are found to be short there is no presumption that he was using them fraudulently. AIR
1943 Mad 589.
(7) If weights are kept in a shop by a person for the purposes of his trade and are regularly used by
him, this would lead to a reasonable inference that the person knew that they were deficient and that he
was using them fraudulently.. AIR 1945 Mad 8.
(8) Where the evidence showed that the accused was sitting on the gunny bag from beneath which
true and false weights were recovered by the police Officer, that a series false weights were found at a
distance of 4 inches from the series of trueweights and that the box containing opium and the scales for
weighing it were near the gunny bag, it was held that the only inference that could be dra'n from these
circumstances was.that the accused possessed false weights knowing them to be false and intending that
the same might be fraudulently used. AIR 1959 Raj 191.
(9) The offence under this section is an .offence against the society and in such cases any leniency
will be misplaced. A IR 1959 Raj; 191.
(10) The essential ingredients of the offence should be proved by the prosecution at the stage when
the evidence for the prosecution is called. The prosecution cannot seek to use an admission in the
accused's statement to fill up the gap in the prosecution evidence. AIR 1937 Mad 209.
2. Practice.—Evidence—Prove: (1) That the instrument, or the measure, or the weight in question
is false.
(2) That the accused was in possession of the same.
(3) That he knew the same to be false.
(4) That he intended that such false weight, etc, should be used to defraud someone'
Sec. 267 Of Offences relating to Weights and Measures 677 -

3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any

Magistrate.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate, etc) hereby charge you (name of the accused) as follows:
That you, on or about the—day of— at—in possession of an instrument for weighing (or of weight
or a measure of length or measure of capacity) which you knew to be false at the time of your
possession intending that the same may be fraudulently. used, and thereby committed an offence
punishable under section 266 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 267
267. Making, or selling falseweight or measure.—Whoever makes, sells or
disposes of any instrument for weighing, or any weight, or any measure of length or
capacity which he knows to be false, in orderthat the same may be used as true, or
knowing that the same is likely to be used as true, shall be punished with
imprisonment of either description for a term which may extend to one year, or with
fine; or with both.
Materials
1. Scope.—(1)This section punishes a person who makes, sells or disposes of a false balance,
weight or measure. The object is to prevent the circulation of false .scales,weights or measures.
2. Practice.—Evidence—Prove: (1) That the instrument, or the measure, or the weight in question
is false.
(2) That the accused either made, sold or disposed of the same.
(3) That he then knew it to be false.
(4) That he so made, sold, or disposed of it, in order that it might be used as true, or that he knew
that it was likely to be used as true.
3. Procedure.—Not cognizable—Summons—Bilable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—made (or sold, or disposed of) namely—which was an
instrument for weighing (or any weight or measure of length or capacity) knowing at the time of
making (or sale or disposal) to be false in order that the said instrument for weighing (or any measure
of length or capacity) was likely to be used as true and thereby committed an offence punishable under
section 267 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
CHAPTER XIV
Of Offences affecting the Public Health, Safety, Convenience,
Decency and Morals

Chapter introduction. — This chapter deals with public nuisances and offences
affecting public health, safely, convenience, decency and morals. Nuisances are of two
kinds: (i) namely public, affecting members of the public, or (ii) private affecting a
private person. In Clerk and Lindsell on Torts— "Nuisance " is an actor omission which is
an interference with or disturbance . of or annoyance to a person in the exercise or
enjoynent of—
(a) a right belonging to him as a member of the public when it is a public nuisance,
or
(b) his ownership or occupation of land or of some easement, quasi-easement or
other right used or enjoyed in connection with land when it is a private
nuisance".
This Chapter deals with public nuisances. Public nuisances are offences against the
public by either doing a thing which tends to the annoyance of all the subjects or by
neglecting to do a thing which the common good require. This Chapter and Chapters X
and X I of the Criminal Procedure Code deal with public nuisance and abatement of
public nuisance. Nuisance causing or conducive to the injury, destruction, danger or
annoyance to persons collectively are dealt with in this Chapter. The offences contained
in this Chapter are grouped in Dr. Hari Singh Gour 's Indian Penal Code 9th Ed., V ol. II
page, 1895 as follows:
(1) Spread of infection (See sections 269-271).
(2) Fouling water (See section 277).
(3) Making atmosphere noxious to health (See section 278).
(4) A dulteration offood, drink and drugs (See sections 272-276).
(5) Rash driving (See section 279).
(6) Rash Navigation (See sections 280 and'282).
(7) Endangering public ways (See sections 281 and 283).
(8) Negligent handling of poisons, combustibles and explosives (See sections 284-
286).
(9) Negligence with respect to— -
(a) Machinery (See section 287).
(b) Buildings (See section 288).
(c) A nimals (See section 289). '
Sec. 268 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 679

(10) Spread of obscenity (See sections 292-294).

(11) Public gambling (See section 294A ).
Section 268 defines public nuisance. The following sections provide for punishments
for different kinds of public nuisances and section 290 provides pun is hments for anyone
committing public nuisances which are not provided for in the other sections of this
Chapter.
In order to constitute the offence of public nuisance there must be a real damage as a
sensible person subjected to it would find injurious regard being had to the situation and
mode of occupation of the property injured. The nuisance must be to the general public
or a section of the public and not merely an individual or of any particular community:
The obstruction of a navigable river by p bamboo stockade with a small opening to
allow boats to pass with difficulty will be a public nuisance.
The fact that a public nuisance has been in existence for a number of years in the
same place will not legalise it. The fact that there are other nuisances in the
neighbourhood will not be a proper defence. In judging public nuisance, the public
good, it may cause, be taken into account to see if public benefit outweights the public
nuisance. The advantage gained ought to be closely connected with thç inconvenience
resulting or rather without which would have been an inconvenience if it were not
absorbed in the superior advantage.
Further the indecent exposure of the person in a public plan may be punished if there
is a wilful intention to insult, the modesty of .a women. But under section 509 however, it
may be punished even if there is no such intention: Nuisances punishable under the Code
may still be made the subject of civil action before or without prosecution.

Section 268
•
268. Public nuisance.—A person is guilty of a public nuisance whO dots any act
or is guilty of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance
to persons who may have occasion to Use any public right.
• A common nuisance, is not excused on the ground that it causes some convenience
or advantage.
Cases and Materials Synopsis
1. Scope and applicability of section. 8. Public nuisance causing some advantage or
2. Nuisance—Meaning of convenience.
3. . Public and private nuisance—Distinction. 9. "Public ", meaning
4. Act or Illegal omission, 10. Panchayai Committee—W hether "public"
5. . Intention to commit nuisance. 11. Common injury, etc., to the public or people in
6.. Legalised nuisance. general living in the vicinity.
7. Length of time—W hether can legalise public 12. Injury, annoyance, etc., to one class of
nuisance. . people.
680 Penal Code Sec. 268

13. Annoyance to one person. 24. Burial, cremation of dead bodies, etc.
14. Slaughtering skinning etc. of animals, 25. Noise, etc.
• running butcher's shop, cooking meat in 26. Gambling.
public etc. 27. Prostitutes.
15. Ruinous building, wall, etc. . 28. Indecent exposure of person, etc.
16. Obstruction to public road, navigable river, 29. Obscene, indecent etc., exhibitions.
etc. . . 30. Non-payment of taxes.
1-7. Encroachment on public road, place etc. 31, Ex-communication.
18. Collecting crowd. 32.. Person liable for public nuisance.
19. Carrying on business or trade. 33. Evidence of nuisance.
20. Acts dangerous to public health. . 34. Remedies.
21. Insanitary conditions. . 35. Procedure. . .
22. Offensive odour.
36. Jurisdiction.
23. Fouling of water. .
37. Abetment of nuisence.
1. Scope and applicability of section.—(l) Nuisances are of two kinds,i) public and (ii) private.
'Private nuisance' is defined to be anything done to the hurt or annoyance of the lands, tenements of
another, and not amounting to trespass. It is an act affecting some particular individual or individuals
as distinguished from the public at large. 'Public nuisance' or common nuisance is an offence against
the public,, either by doing a thing which tends to the annoyance of the whole community in general,
or by neglecting th do anything which the common good requires. The definition of public nuisance
given in this section is material with reference to section 290 which provides a punishment for the
offence of committing a public nuisance in any case not otherwise punishable by the Code. Chapter
XIV of the Penal Code and Chapters X and XI of the CrPC deal with public nuisance and abatement of
public, nuisance. Nuisance causing or conducive to the injury, destruction, danger or annoyance to
persons collectively are dealt with in this Chapter. Section 133, CrPC provides a speedy and summary
remedy in case of urgency where danger to public interest or public health is concerned.
(2) Ingredients—This section requires two essentials: ..
(i) A person Must do an act or must be guilty of an illegal omission. . . .
(ii) Such act or omission must cause— . . . . .
() common injury, danger, or annoyance (i) to the public or (ii) to the people in, general who
dwell or occupy property in the vicinity, or
(b) i nj ury,' obstruction, danger or annoyance to persons'who may have occasion to use any
public right.
(3) Noise made in carrying. on of lawful trade under licence, if injurious to physical comfort of
community, is a public nuisance as contemplated in section 268. PLD 1968 Dhaka 823.
(4) It is no defence to the charge of committing public nuisance that the act Was done to protect the
accused's own lands and crops.. (1912) 13 C'riL.J 183 (All).
(5) The definition of "public nuisance ,, this section is also applicable to the Civil P.C. by
virtue of S. 3(48) of the General Clauses Act, AIR 1972 Raj 103.
2. Nuisance—Meaning of.—(1) There is a difference between injury to property and personal
discomfort. As regards personal discomfort, a person must, in the interest of the public generally,
submit to the discomfort of the circumstances of the place and the trades carried on around him; but as
Sec. 268 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 681

regards injury to property the same rule is not applied. In regard to injury to property the law does not
regard trifling and small inconveniences but only regards sensible inconveniences, injuries which
sensibly diminish comfort, enjoyment or value of the property which is affected. (1865) 11 A R 1483.
3. Public and private nuisance—Distinction.—(l) . A nuisance which causes injury, danger or
annoyance only to a particular person or group or class of persons is not a public but a private
nuisance. A IR 1950 Cal 349. .
4. Act or illegal omission.—(l) The words "illegal omission" in this section must be construed
in the light of the definitions of words 'acts', 'act' and "illegal" given in Ss. 32, 33 and S. 43
respectively. Unless the omission which causes the nuisance, is an illegal omission in the above sense
there will be no public nuisance: (1894) 1 W eir 244. .
5. Intention to commit nuisance.—(1) An ünintentiónal obstruction of a public way caused by
keeping a charpoy on a public road will be a public nuisance, although there may be no deliberate
intention to cause such obstruction. (1935) 36 CriLJ 893 (A ll).
6. Legalised nuisance.—(1) The general principle is that a public nuisance cannot be legalised
merely by the fact of its continued existence for a long time. The principle is that no length of time can
legalise a public nuisace.?1871) 16 SuthW R Cr 6(11). . •. . . .
7. Length of time—Whether can legalise public nuisance.—(1) The general principle is that
no length of time can legitimise a public nuisance. A IR 1958. Pu)7j 11(12): 1958 Cr1LJ9I.
(2) Twenty or twenty-five years previously a businessman set up a factory at a considerable
distance from the houses of the people, which continued working as a flour mill for many years. But
subsequently it was converted into a metal factory manufacturing brass utensils. Some of the owners
and occupiers of residential buildings, which had sprung up in the vicinity of the factory, filed a
complaint against factory owner. It was held that the mere fact that the factory was allowed to operate
for several years without any objection having been raised by the neighbours would not render the
person immune from punishment and the businessman was held guilty uls. 290. A IR 1958'Puij 11.
(3) An act which was not a nuisance at its commencement may subsequently become one owing to
a change in the circumstances, notwithstandihg the length of time for which it might have been in
existence. A IR 1958 Punj 11. . . .•'
8. Public nuisance causing some advantage or convenience.—(l) Under S. 81 an act done in
good faith for the purpose of preventing or avoiding other harm to person or property is not an Offence
although such act may be done with the knowledge that it is likely to cause harm But this is a general
exception and must yield to the special provision in paragraph 2 of this section A IR 1940 Pat 577
9 "Public"—Meaning of—(l) The word "public' in S 268 has to be taken in the sense
defined in S 12 of the Code in which the word "public' has been defined as including any class of the
public or any community. A IR 1936 Oudh 154. . . . .
10. Panchayat Committee—Whether "public".—(l) A Panchayat is not the same as the
'Public' and hence injuries to the revenues of the Panchayat is not injury to the public so as to
constitute a public nuisance. Hence, the non-payment of a Panchayat tax is not a public nuisance. A IR
1964 A ll 16 .
11. Common injury, etc., to the public or people in general living in the vicinity.—(l) To
'constitute an offence under this section firstly, there must be an injury, danger or annoyance and this
injury etc must be to the public or the people in general who live or occupy property in the vicinity.
682 Penal Code Sec. 268

The injury etc. may be one which is actually caused to the public or the pepple in general living in the
vicinity, or which must necessarily be caused to anyone who may have occasion to use a public right.
A IR 1958 Mad/i Pra 350.
12. Injury, annoyance, etc., to one class of people.—(I) Injury, or annoyance or probability
thereof to a particular class of people will not be a public nuisance within the meaning of this section.
AIR 1928A11 627.
(2) Injury to the cultivators of a particular village has been held not to be a public nuisance. AIR
1928 A ll 627.
13. Annoyance to one person.—(l) Even annoyance to one person will be sufficient to bring the
act within. the purview of this section. AIR 1924 All 194.
14. Slaughtering, skinning, etc. of animals, running butcher's shop, cooking meat in
public, etc.-.--(l) Public nuisance being essentially a question which depends on the circumstances of
each case the slaughtering of cows may, under certain circumstances, amount to a public nuisance,
although such slaughtering may be offensive in particular to the Hindu community. AIR 1942 Pat 471.
(2) Aperson wilfully slaughtering cattle in a public street so that the groans and the blood could
be heard and seen by persons passing along the street would commit an offence under this section.
Such an act would cause annoyance to everyone whether Hindu, Muslim, European or other. AIR 1942
Pat 471. .
(3) The skinning of a dead animal, which has died a natural death, in public is not a public
nuisance. AIR 1914 All 363.
(4) The slaughter etc. of animals within closed doors, or in a private enclosed place not open to
view from the outside will stand on a different footing than slaughtering of animals, especially cows
etc. in the-public and may not be regarded as constituting a public nuisance as in such a case the public
in general are not affected, although the susceptibilities of Hindus may be hurt by such a proceeding.
A IR 1929 Lah 252.
15. Ruinous building, wall, etc.—(l) Where a wall of a house collapsed and caused injury to the
complainant's property by its fall into his compound, it was held that neither this section nor S. 288
.nor Section 425 of the Code was applicable to the case, and that the case was clearly one of tort to be
decided in a Civil Court. ('1904) 1 CriL.J 488. ..
16.. Obstruction to public road, navigable river, etc.—(l) Though S. 283 may not apply in a
case as obstruction to any particular person has not been proved this section read with Sec-290 may
apply if the nuisance is one which must necessarily cause obstruction to any person who may have
occasion to use the public way or river, channel, etc. AIR 1925 La/i 454.
.(2) Encroachment, however small on a public street or highway is an offence, as the public).
ubli is
entitled to use every part of the highway, however wide it may be. AIR 1925 La/i 454.
:(3) The public nuisance in relation to a-highway may be caused by a positive act or an illegal
omission. Thus, allowing prickly pear to spread from one's compound to the public road is a public
nuisance. A IR J928 Mad 1235. -.
(4) Collecting a crowd so as to obstruct traffic is a public nuisance. AIR 1924 All 568.
(5) Merely offering State tickets for sale in a shop is not a public nuisance, although a number of
persons gather in front Of the shop for buying the trickiest and thereby cause obstruction to the public.
A IR 1929 Lah 861 (801) : 31 CriLJ 442.
Sec. 268 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 683
(6) Building of platforms in front of houses or shops and abutting on public streets is a public
nuisance. A IR 1936A 11 16 (157) :37Cr1LJ269.
(7) A public nuisance on a highway or public street by means of an obstruction may be caused
even in the absence of any deliberatç intention to do so. A IR 1935 A ll 746
(8) Under this section in order to constitute a public nuisance, an obstruction may be caused by
any act or illegal omission, which means that obstruction caused by negligence though without any
deliberate intention may be a public nuisance. AIR 1935 All 746.
(9) Whether a thing amounts to a public nuisance or not depends to a considerable extent on the
question whether it really causes inconvenience or annoyance or difficulty to the public in general, or to
the people living in the locality. AIR 1959 Mad 513.
(10) It is a matter of common experience that villagers stack logs of wood and fuel on the public
road for temporary purpose. In such a case the act, though it causes some inconvenience to the user of
the public road, is not punishable. A IR 1967 Orissa 36
17 Encroachment on public road, place, etc.—(l) Where an occupier of land adjoining a
meadow, on which cattle are pastured, grows on his land a tree whose leaves are poisonous, he will be
liable for damages if the branches of the tree project on the adjoining meadow and cattle browse on the
leaves of the tree and die in consequence. (1879) 48 LJQB 109.
18. Collecting crowd.—(I) If a person collects together a crowd of people and causes annoyance to
people generally in the neighbourhood or obstructing the traffic on a public highway, he would be
committing a public nuisance. (1832) 110 ER 68..
19. Carrying on business or trade.—(I) The question wither a particular trade or business
amounts to a nuisance can be determined only after taking into consideration a number of circumstances
such as the place where it is located, the number of people whose rights are prejudicially affected
thereby and the extent of the injury, discomfort and annoyance caused to normal human beings.,AIR
1958 Punj 11. . .
20. Acts'dangerous to public health.-41) The causing of stagnation of water, so as , to give rise
to the breeding of mosquitoes and offensive smell and endangering the health of persons living in the
vicinity, is a public nuisance. AIR 1953 Mad 242.
(2) An occupier of a mill issuing black smoke in objectionable quantity from its chimney is guilty
of committing public nuisance. AIR 1958 Punj 11.
21. Insanitary conditions.—(l) A mere act of passing urine in anyplace open to the. public will
not amount to the offence of public nuisance under this section, unless the act is such as would cause
annoyance to the public in general. AIR 1937 Mad 130. ..
(2) There can be no conviction for public nuisance in a case of letting of clean water onto a public
road where there is no evidence to show that the public and neighbours did feel that any nuisance had
been committed. 1932 MadWN 111.
22. Offensive odour.—(l) The word "nuisance" is not necessarily something which is injurious
to health. Matters substantially offensive to the senses, like offensive odour etc., may also be public
nuisances within the meaning of the section. (1907) 5 CriL.J 45.
(2) Where the manager of a bone-mill permitted a large stack of bones to remain uncovered in the
open for a long time so as to become rotten and to emit a smell noxious to people living in or passing
by the vicinity, it was held that he was guilty of committing public nuisance. (1907) 5 CriLJ 45.
684 Penal Code Sec. 268

23. Fouling of water.—.-(1) The fouling of water of a river running in a continuos stream does not
amount to the fouling of the water of a public spring within the meaning of S. 277, but it may come
under this section read with Sec. 290. (1904) 1 Cr1LJ 6
24. Burial, cremation of dead bodies, etc.—(1) Where persons entitled to use a particular spot
dedicated for the purpose of cremation use it for that purpose in a manner neither unusual nor calculated
to aggravate the inconveniences incidental to such act as it is generally performed in the country, they
cannot be convicted of public nuisance on the ground that their act caused material annoyance and
discomfort to persons near the place on the occasion of the cremation. (1896) ILR 19 Mad 464.
25. Noise, etc.—(1) The noise of a theater causing annoyance to the residents of a single house in
the neighbourhood is not a public nuisance. A IR 1930 Cal 713.
(2) The working of an engine of a motor . c•cle emitting noise on a particular day for a short period
cannot amount to a public nuisance as the act complained of should cause a common injury or
annoyance to the public or to the people in general who occupy property in the vicinity. (1984) 1
A PLJ 239.
(3) The noise made by a chowkidar of a house at night time so as to scare away thieves and bad
characters is not a public nuisance, although by so doing he might hurt the susceptibilities of a
neighbour. A IR 1926 Oudh 414.
(4) Once the level of noise made by life in the building is such that it interferes with the use and
enjoyment of the building then there is nuisance. (1981) 1 W LR 898 (906).
26. Gambling.--(I) Gambling in .a public place is a public nuisance. AIR 1916 Mad 617.
(2) Gambling in a private house is not in itself a public nuisance. (1891) JLR 14 Mad 364.
27. Prostitutes.—(I) Bare solicitation, by a prostitute is not a public nuisance. The reason is that
annoyance caused to a single person, though in a public place, cannot be brought under the definition
of a "public nuisance". (1900) ILR 22 All 113.
(2) Prostitution carried on in a clandestine or hidden manner is not a public nuisance, although
persons who come to know of the immoralities committed in the house may feel their moral sense
outraged. A IR 1950 Cal 330.
28. Indecent exposure of person, etc.—(]) Indecent exposure of one's person will be an offence
of public nuisance, although the place where the person stands is not a public place, if it is a place
where a number of persons belonging to the public can and do see the persoh. (1861-64) 9 Cox 388.
(2) Bathing naked near houses on the beach is a public nuisance, although the houses may have
been erected recently and the practice of bathing .in the sea at that place may have gone on for a long
time. (1871-74) 12 Cox 1 (2, 3). . .
29. Obscene, indecent, etc., exhibitions.—(l) Exposure of dead body of child near, public
highway causing shock and disgust to passers-by and outraging public decency was held to be a
nuisance at the common law. (1882-86) 15 Cox 171;
• (2) In a public nuisance abatement action against motion picture theater for exhibiting obscene
pictures, proof that pictures in question are obscene beyond reasonable doubt is not required. (1982) 70'
L Ed (2d) 262.
. . .
30. Non-payment of taxes.—(1) The non-payment of Panchayat tax is not public nuisance,
injury to the revenues of the Panchayat is not the same 'as common injury etc., to the public, as the
public is a different body from Panchayat. AIR 1964 All 16
Sec. 269 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 685

31. Excommunication.—(l) Excluding two persons from caste privileges or from use of wells
used by orthodox Hindus does not amount to offence of public nuisance. It is only a civil wrong, if at
all, for which the remedy lies in a Civil Court. 1883 PunRe 3.
32. Person liable for public nuisance.—(1) A joint owner of property is responsible in law for a
public nuisance caused by his property.. AIR 1928 Mad 1235..
(2) Where a public nuisance is committed by building a platform in front of a house or shop
abutting on the road, it is the owner of the shop or the house who is liable and not the tenant or the
shopkeeper who sits on the platform, because the platform is a nuisance, whether it is used by anyone
or not. A IR 1936 A ll 156
(3) Where a public nuisance is caused by the working of a paddy husking mill at night, it is the
Manager who is liable and not the proprietor. AIR 1,919 Cal 539.
33. Evidence of nuisance.—(1) Where a "Prabha" which was two yards wide was left lying on
the road at a place where the road was three yards wide it was held that though obstruction to an
individual was not expressly proved, it was a matter of necessary inference. AIR 1916 Mad 847.
34. Remedies.—(l) Obstruction on public way—Plaintiff required to make detour—Damage is
nonetheless special because other persons may suffer some inconvenience—Plaintiff's suit though not
instituted under 0. 1. R. 8 or under S. 91 is maintainable. A IR 1951 Mad M.
(2) A complaint as regards a public nuisance may be preferred by any member of the public
including a public officer. And where such a complaint is filed by a public officer as such, it cannot be
thrown out on the gro,un&-that he has not professed to complain as an ordinary citizen, but professes to
do so as 'a public officer. AIR 1928 Mad 1235.
35. Procedure.—(l) The various remedies for public nuisance are concurrent and not mutually
exclusive. A prosecution under this section will, therefore, not be barred merely because previous to
such prosecution, proceedings have not been taken under the Criminal P.C., S. 133, for the removal of
the nuisance 1869 Rat UnCriC 23.
36. Jurisdiction.—( I) The mere fact that the annoyance caused by the public nuisance committed
at a place outside Bd is felt by the people living in Bd will not give jurisdiction to the Bd Court to try
the offence in the absence of certificate of the political agent of the concerned area or in his absence the
sanction of the Government. AIR 1935 Mad 189.
37. Abatement of nuisance.—(l) The accused who obtains an injunction against the complainant
for removal of dams obstructing accused's right of way and on the Complainant not obeying the
injunction removes the darns himself, is guilty under S. 426, as he is not entitled to take the law into
his own hands. AIR 1927 Born 363.
'1
.Section 269
269. Negligent act likely to spread infection of disease dangerous. to life.—.
Whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to life,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine, or with both. .
686 Penal Code Sec. 269

Cases and Materials

1. Scope.-.-(1) This section may be read along with sections 26, 32 and 33 of this Code. Sections
269 to 271 deal with the spread of infectious disease. If a man is attacked by a contagious and deadly
disease and needlessly goes abroad with it in a public way or if a person carries about a child so
infected, he does what he may be supposed to know to be likely to spread the infection. And unless
some lawful occasion or reason for this conduct can be shown, as That the sick person had been dircted
to be removed to a hospital and that the removal was not performed with due caution', the act will be
an offence punishable under this-section.
(2) The object of this section is not to punish the accused for his unlawful act, such as the
disobedience of the order of the Health Officey to remove a smallpox patient to an Isolation Hospital.
But the object is to prevent the danger of the infection spreading and so, where the accused has
removed the patient to a separate and isolated house and the Court finds that there is no danger of the
infection spreading, the accused will not be guilty under this section despite his noncompliance with
the Health Officer's order to remove the patient to an Isolation Hospital. AIR 1920 Mad 420.
(3) The failure of the owner of a brick field to report the outbreak of cholera in his field was-held
not to be an "illegal" omission and hence, as not coming within this section. AIR 1923 Rang 1.40.
(4) The failure of the accused to take proper sanitaly precautions at his brick field as required by the
conditions of his licence which led to the outbreak of cholera costing many lives on his brick field, was
held to be an illegal and criminal omission on the part of the accused. AIR 1923 Rang 140.
(5) Under S. 32, "act" includes an illegal omission. This principle applies also to the
interpretation of the word "act" in this section. AIR 1923 Rang 140.
(6) The mere disobedience of the orders of the Health authorities for the removal to the Isolation
Hospital of a patient suffering from smallpox will not be an offence - under this section where the accused
has not done anything to spread the infection but has removed the patient to a separate and isolated
house though not to the Isolation Hospital. AIR 1920 Mad 420. -
(7) The expression 'dangerous to life" does not mean that the disease should be immediately
dangerous to life. Thus leprosy may be treated as a disease dangerous , to life within the meaning of this
section. AIR 1955 NUC (Born) 4834.
2. Practice.—Evidence---Prove: (1) That the disease in question is (a) infectious and (b) dangerous
to life. .
(2) That the accused did not act which was likely to spread infection thereof.
(3) That such act was unlawful ornegligenL
(4) That the accused knew, or had reason to believe, that such act of his was likely to spread the
infection of such disease.
3. Procedure.—Cognizable—Summons--Bailnble----Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run, as follows: .
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you unlawfully or negligently did an act which you knew or had reason to believe to. be
likely to spread the infection of (name of the disease) dangerous to human life and thereby committed
an offence punishable under section 269 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 270-271 Of Offences affecting Pub. Health, Safety, Convenience. Decency and Morals 687

Section 270
270. Malignant act likely to. spread infectiOn of disease dangerous to life.----
Whoever malignantly does any act which is, and which he knows or has reason to
believe to be, likely to spread the infection of any disease dangerous to life, shall be
punished with imprisonment of either description for a terii which may extend to two
years, or with fine, or with both.
Cases and Materials
1. Scope.—{l) The word "malignantly" does not merely convey the idea of hatred or ill-will to an
individual but includes any wicked or mischievous intention of the mind. (1822-1839) 107 ER 379.
2. Practice.—Evidence---Prove: (1) That the disease in question is (a) infectious and (b) dangerous
to life. .
(2) That the accusel did an act which was likely to spread infection thereof.
(3)That the accused acted malignantly. .. . -
(4) That the accused knew, or had reason to believe, that such act of his was likely to spread the
infection of such disease. . . .. .
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate. .
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows::
That you militantly did an act which you knew or had reason to believe to be likely to spread the.
infection of (name of the disease) a disease dangerous to life and thereby committed an offence
punishable under section 270 of the Penal Code and within my cognizance.
And Ihereby direct that you be tried on the said charge.

Section 271
271. Disobedience to quarantine rule.—Whoever knowingly disobeys any rule
made and promulgated l [ by the 2[Government] ] 3 [ * * ] for putting any vessel
into a state of quarantine, or for regulating the intercourse of vessels in 'a state of
quarantine with the shore or with other vessels, or for regulating the intercourse
between places where, an infectious disease prevails and other places, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine, or with both.
Materials
1. Scope.—This section prescribes punishment for breach of quarantine rule. The motive for
disobeying any rule is quite immaterial under this section. The disobedience is punishable whether any

1. The words "by the Central or any Provincial Government" were substituted for the words :'by the G. of 1, or by any
Government" by A.O. 1937. .
2. The word "Government" was substituated for the words "Central or any Provincial Government" by the Bangladesh
Laws (Revision and Declaration) Act, 1973 (Act. VIII of 1973), Second Schedule (with effect from 26th March, 1971).
3. The words "or the Crown Representative" were omitted by A.O. 1949, Sch.
688 Penal Code Sec. 272

injurious consequence flows from it or not. While a disobedience of a lawful order made by the
Government is punishable under section 188 of the Penal Code, under this section a knowing
disobedience of the lawful order is covered.
2. Practice.—Evidence--prove: (1) That there is existence of the rule of quarantine.
(2) That such rule was made and promulgated by Government.
(3) That the accused knew of such rule.
(4) That he disobeyed it knowingly.
3. Procedure.—Not cogni .zable—Summons—Bai lab le--Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you on or about the—day of—at—knowingly disobeyed the quarantine rules (specify the
rule) made or promulgated by the Government far putting any vessel into a state of quarantine with the
shore or other vessels or for regulating the intercourse between places where an infectious disease
prevailed and other places and you have thereby committed offence punishable under section 271 of the
Penal Code and within my cognizance..
And I hereby direct that you be tried on the said charge.

Section 272
• 272. Adulteration of food or drink intended for sale.—Whoever adulterates
any article of food or drink, so as to make such article noxious as food or drink,
intending to sell such article as food or drink, or knowing it to be likely that the same
will be sold as food' or drink, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend
to one thousand 4[taka], or with both.
Cases and Materials
1. Scopè.—( 1) Thissection deals with adulteration of food or drink intended for sale. It is an
offence to knowingly sell food unfit for human consumption. It is essential to prove: that an article of
food or drink has been adulterated with the intention to sell the same as food or drink. The word
"noxious" means harmful or injurious to health. The section may be read along with section 521,
CrPC.
(2) Adulteration of food—Mere possession of any alleged adulterated food in any premise by itself
will not constitute an offence under section 272 of the Penal Code and Section 25C(a) of the Special
Powers Act, 1974 unless it is alleged and proved that a particular person or a group of persons were
personally involved in the process of adulteration of food or selling thereof. Mohammad Nazarul Islam
Vs. The State 3 BID (HCD) 65.
(3) Legislation of preventing food adulteration serves a very important role in securing to the
citizens a minimum degree of purity in the articles of food and thereby protecting and preserving public
health. It also serves to prevent fraud on the consumer public. 1965(2) CriLJ 571(Punj).

4.
The word "taka" was substituted for the word "rupees" by Act VIII of 1993, w..e:f. 26-3-1971. • • •
Sec. 273 Of Offences affecting Pub. Health, Safety, Convenience. Decency and Morals 689

(4) For an adulteration of food or drink to fall under this section it is necessary that the adulteration
has rendered the food/drink noxious. That is not required in offences under the Prevention of Food
Adulteration Act. Thus, mixing water with milk intending to sell the compound is in itself no offence
under this section unless there is anything to show that the milk was rendered noxious as food or drink
by the admixture of water. But such adulteration will be an offence under the Prevention of Food
Adulteration Act. A IR 1926 Lah 49.
(5) The expression "noxious as food" means unwholesome as a food or injurious to health. It does
not mean repugnant to one's feeling. Thus, mixing of pig's fat with ghee and selling the mixture
would not render the article "noxious as food" though it may be noxious to the religious feelings of
both Hindus and Mahomedans. Consequently, such mixing is not punishable under the section. A IR
1924 A ll 214.
(6) For a conviction under the section it is not enough. that the article of food or drink has been
adulterated. It is essential to show that it was intended to sell such article or that it was known that
such article was likely to be sold as food or drink. A IR 1943 BQm 445.
2. Practice.—Ev.idence—Prove: (1) That the article in question is food or drink.
(2) That the accused adulterated it.
(3) That such adulteration rendered it noxious as food or drink.
(4) That the accused at the time of such adulteration intended to sell such article as food or drink,
or knew it to be likely that such article would be sold as food or drink.
3. .Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, adulterated article of food and drink namely—so as to
make it noxious as food or drink with the intention of selling such article as food or drink or knowing
it to be likely that the same will be sold as food or drink and thereby committed an offence punishable
under section 272, Penal Code and within my congnizance.,
And I hereby direct that you be tried on the said charge.

Section 273
• 273. Sale of noxious food or drink.—Whoever sells, or offers or exposes for
sale, as food or drink, any article which has been rendered or has -become noxious, or is
in a state unfit for food or drink, knowing or having reason to believe that the same is
noxious as food or drink, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which may extend to one
thousand 4 [taka], or with both. ' • •.
Cases and Materials
1. Scope^ —(I) This section deals with sale or offer of exposure for sale of noxious articles as food
and drink. This section is more comprehensive in its provision, and is not expressly limited to food
intended for human consumption. it comes in the Chapter dealing with offences relating to public
690 Penal Code Sec. 274
health. It. seems it is not intended to include food or drink for animals. The words "the public" mean
human being in general and do not include animals. This section may be read along with section 521,
çrPC. . .
2. ingredients.—The essentials of this section are:—
(a) Selling or offering or exposing for sale as food or drink some article. -
(b) Such article must have become noxious or must be in a state unfit for food or drink.
(c) The sale or exposure must have been made with a knowledge or reasonable belief that the
article is noxious as food or drink. .. .
(3) Where ghee adulterated With vegetable oil or with pig's fat is sold, in the absence of evidence
to show that the adulteration was such as to render it noxious, such sale cannot be held to constitute an
offence under this. section. AIR 1924 All 214.
(4) A person who exposes for sale milk adulterated with water is not guilty of an offence under the
séctioh A IR 1926 Lah 49
(5) When food unfitfor human consumption is exposed for sale the exposure constitutes an
offence; A IR J934 Pat /73.
I
(6) Knowledge that' article for sale is noxious as food or drink, isrequired to be proved, forth ere is
no warrant in law for the presumption that the accused knew or had reason 't6 believe that an article of
food was unfit for human consumption. AIR 1922 All273.
(7) Conviction of a person under this section, when the charge' preferred againii ' him Was under the
Preventiofl of Adulteration Act is illegal. For, the offence under S..273, Penal Code requires existence of
knowledge that the food was not genuine while no such knowledge is required under the said Act. AIR
1952 Pat. 77.
(8) On conviction, the noxious al-tide of food, can be destroyed. But destruction of food under the
Municipalities Act is no bar to a prosecution under this section as such destruction is not a judicial
proceeding but only an executive act AIR 1934 Pat 113
2 Procedure —Not cognizable—Summons_Bai tab le_Not compoundable —Triable by any
Magistrate
3. Charge.—The charge should run as follows:-
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—sold, or offered for sale or exposed for sale as 'food or drink
an article—which had become noxious as food or drink, knowing or having reason to believe that the
same is noxious as food or drink and you have thereby committed as offence publishable under section
273 of the Penal Code and within my cognizance
And I hereby direct that you be tried on the said charge

Section 274
274. Adulteration of drugs.—Whoever adulterates any drug or medical.
preparation in such a manner as to lessen-the efficacy or, change the operation of such
drug, or medical preparation, or to make it noxious, intending that it shall be sold or
used for, or knowing it to be likely that it will be sold or used for, any medicinal
Sec. 275 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 691

purpose, as if it had not undergone such adulteration, shall be punished with

imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand 4 [taka], or with both.
Materials
• I. Scope.—This section deals with adulteration of drugs. It must be shown that by reason of
adulteration efficacy of the medicine is lessened or its operation changed or the drug rendered noxious.
On a conviction the court may order the drug or medical preparation to be destroyed as contemplated
under section 521, CrPC.
2. Practice.—Evidence—Prove: (1) That the article is a drug or medical preparaiton
(2) That is was adulterated by the accused.
(3) That such adulteration tended to lessen its efficacy or to change its operaiton or to make it
noxious.
(4), that the accused intended that such adulterated drug should be sold or used for jj medicinal
pupose.as an unadulterated drug, or knew it was likely that it would be sold or used i'or't jw same.
'3. Procedure.—Nor cognizable—Summons—Bailable—Not compoundable—Triahic by any
Magistrate:
4. Charge.—The charge should run as follows: -
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows;
That you, on or about the day—at—adulterated 'any drug or medical preparation in such a manner
as to lessen its efficacy or change the operation of such drug or medical preparation, or to make it
noxious intending that is shall be sold or used for or knowing it to be likely to be sold or used for any
medicinal purpose as if it was not adulterated and thereby committed an offence punishable under
section 274-of the Penal Code, and 'ithiri my cognizance.
And . 1 hereby direct that you be tried on the said charge.

Section 275
275.: Sale of adulterated drugs.—Whoever, knowing any drug or medical
preparation to have been adulterated in such a manner as to lessen its efficacy, to
change its operation, or to render it noxious, sells the same, or Offers or exposes it for
sale, or issues it from any dispensary for medicinal purposes as unadulterated, or
causes it to be used for medicinal purposes by any person not knowing 'of 'the
adulteration, shall be punished with imprisonment, of either description for a term
which may extend to six months, or with .fine which may extend to one thousand
4[taka], or with both.'
Cases and Materials •
1. Scope.—The offence under this section consists in selling, or offering or exposing for sale, or
issuing from any dispensary, and adulterated drug as unadulterated: This section prohibits its sale and
also its issue from any dispensary. This section should be read along with section 521 CrPC, (Ref 5
BCR 251 A D).
(2) The, adulteration of a drug and the sale of the adulterated drug will be an offence under Ss. 274
and 275, although the ingredients used for the purpose of the adulteration are harmless, where the effect
of the adulteration is to lessen theefficacyof the drug. (1887) 19 QBD 582.
692 Penal Code Sec. 276

2. Practice.-Evidence-Prove: (1) That the drug has been adulterated.

(2) That the adulteration was such as to lessen its efficacy or change its operation, or render it
noxious.
(3) That the accused sold, or offered or exposed, such drug for sale: or that he issued it from a
medical dispensary; or that he caused it to be used for medicinal purpose.
(4) That he sold, or issued such drug as an unadulterated drug; or cuased it to be used by a person
who did not know of such adulteraiton.
(5) That he knew thit such drug was so adulterated when he sold, etc.
-

3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate etc.), hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—knowing that any drug or medical preparation had been
adulterated in such a manner as to lessen its efficacy or to change its operation or render it noxious,
sold or offered to sell or exposed for sale, or issued it from any dispensary for medicinal purpose as
unadulterated or caused it to be used for medical purposes by any person not knowing of its
adulteration and thereby committed an offence punishable under section 275, Penal Code and within
my cognizance. *
And I hereby direct that you be tried on the said charge.

Section 276
276. Sale of drug-as a different drug or preparation.—Whoever knowingly
sells, or offers or exposes for sale, or issues from a dispensary for.medicinal purposes,
any drug or medical preparation, as a different drug or medical preparation, shall be
punished-with imprisonment of either description for a term which may extend to six
months, or with fine Which may extend to one thousand 4[taka], or with both.
Cases and Materials
I. Scope.—(l) The offence under this section is the sale or offer for sale or exposure for sale of
something, which is not what it purports to be. The essence of the offence is the false pretence
involved.
(2) This section differs from the Sale of Food and Drugs Act, 1875 in as much as under the latter
Act, the sale must be to the prejudice of the purchaser. Thus, if the chemist knowingly sold paregoric
substitute when the purchaser asked for paregoric poison it will be an offence under this section though
it is not an offence under the above said Act. (1909) 99 LT 833:
2. Practice.—Evidence—Prove: (1) That the accused sold, or offered, or exposed for sale, or issued
from a dispensary the drugs or medicinal preparation as different from what it is.
(2) That the accused knew that such drugs are different.
(3) That the accused knew of the difference at the time of sale or offer for sale, etc. -
3. Procedure.—Cognizable—Summons—Bailable--Not- compoundable—Triable by any
Magistrate.
Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals
Sec. 277 693
4. Charge.-The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—knowingly sold or offered for sale or exposed for sale or
issued from a dispensary for medicinal purposes any drug or medical preparation as a different drug or
medical preparation and you have thereby committed an offence punishable under section 276 of the
Penal Code and within my cognizance,
And 1 . hereby direct that you be tried on the said charge.

Section 277
277. Fouling water of public spring or reservoir.—Whoever voluntarily
corrupts or fouls the water of any public spring or reservoir, so as to render it less fit
for the purpose for which it is ordinarily used, shall be punished with imprisonment
of either description for a term which may extend to three months, or with fine which
may extend to five hundred 4[taka], or with both.
Cases and Materials
1. Scope.—The offence under this section consists of voluntarily fouling water of a public spring
or reservoir making it less fit for the purpose for which it is ordinarily used.. The words "corrupts or
fouls water" are used in its literal sense. The water of a public spring or reservoir belongs to every
member of the public in common, and if person voluntarily fouls it, he commits public nuisance.
This section may be read along with section 39, PC. .
(2) A well will be a public well, if people are allowed to use its water although they may not be
doing so as a matter of legal right, but merely as licences. A IR 1916 Nag 15.
(3) This section does not apply to the pollution of a well, which the complainant claims to be his
private well, particularly in the absence of any evidence to show that the public were using the water as
a matter of right. The mere fact that the neighbours were using the water of a well would not make it a
public well. A IR 1954 Pat 309.
(4) Spitting into a public well, the water of which is used for drinking purposes, would be an
offence under this section, in spite of the fact that by such spitting the degree to which the water . has
been rendered unfit for drinking purposes may be only very slight. A IR 1916 Nag 15.
2. Practice.-Evidence---Prove: (I) That the water in question was of a public spring or reservoir.
(2) That the accused corrupted or fouled such water.
(3) That he did so voluntarily. .
(4) That such act of corrupting or fouling the water rendered it less fit for the purpose of which it
was ordinarily used. .
3; Procedure.-Cognizable-Summons---Baj lab le-Not compoundable-Triable by any
Magistrate. .
4. Charge.—The charge should run as follows:
1, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—voluntarily corrupted or fouled the water of the public
spring namely—or the reservoir namely—so as to render it less fit for the purpose of which it is
694 . Penal Code Sec. 278

ordinarily used and thereby committed an offence punishable under section 277 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried on the said charge..

Section 278

278. Making atmosphere noxious to health.—Whoever vo1untarilyvitiates the

atmosphere in any place so as to make it noxious to the health of persons in general
dwelling or carrying on business in the neighbourhood or passing along a public way,
shall be punished with fine which may extenct to-five htindred 4[taka].
Cases and Materials ' •. ' .
1. Scope.—Prosecutions against offensive trades which give out bad smells will come under this
section. Throwing of a human skull in a highly offensive condition out of malice into a private
dwelling house does not warrant conviction under section 278. The section is directed against a public
and not a private nuisance. This section may be read along with section 39, Penal Code.
(2) Using one's compound as an open latrine for the members of one's family was bound to give
rise to obnoxious smell and was an offence under this section. AIR 1953 Ajmer 4.
(3) Where the risk to health of persons is limited to only the inmates of only one house or other
limited class of individuals, the offence would only be a private nuisance and will not fall under this
section nor under S. 268. A IR 1929 Pal 113.
(4) The throwing of a human skull in a highly offensive condition out of malice into a. private
dwelling house, is not an offence under this section. AIR 1927 Pal 113.
(5) The fact that after the accused had started using his open compound as a latrine for himself and
members of his family other persons came and occupied property in the neighbourhood and began to
complain of the obnoxious smell caused by the accused's open compound being used as a latrine by
the members of his family, will not affect the character of the accused's act as an offence and would not
be a defence to the charge of a public nuisance against him. AIR 1953 Ajmer 4
(6) An offence under S. 268 read with S. 290 is a minor offence when compared with an offence
under this section: Hence a person charged with an offence under this section may under S. 237,.
Criminal P.C., be convicted under S. 290, though he has not been separately charged with the latter
offence. AIR 1928 Oudh 402. ..
2. Practice.—Evidence--Prove: (1) That the accused caused the atmosphere to be vitiated.
(2) That he did so voluntarily. .
(3) That such vitiation was in its nature noxious to health.
(4) That it was noxious to the, health of persons dwelling or. carrying on business in the
neighbourhood of the place, or passing along a public way.
3. Procedure.—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
Sec. 279 Of Offences affecting Pub. Health. Safety, Convenience, Decency and Morals 695

• That you on or about the—day of—at—voluntarily vitiated the atmosphere at (name of place) so
as to make it noxious to the health of persons in general dwelling or carrying on business in the
neighbourhood or passing along a public way and thereby committed an offence punishable under
section 278 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 279
279. Rash driving or riding on a public way.—Whoever drives any vehicle, or
rides, on any public way in a manner so rash or negligent as to endanger human life, or
to be likely to cause hurt or injury to any other .person, shall be punished with
imprisonment of either description for a, term which may extend to 5 [three years, or
with fine which may, subject to the minimum of one thousand taka, extend to five
thousand tàka], or with both. . ' .. . .
6[.Exp1anation.— A ny person driving any vehicle, or riding, on any public way, in
which exceeds the limit prescribed in this behalf by or under any law for the
time being in force shall for the purpose of this section, be deemed to have driven so
rashly or negligently as to endanger human life, or cause hurt or injury to any other
person.] .. . . ..
Cases and . Materials: Synopsis. . •
1. . Scope. . . . . . 10. Over-speeding.
2. • This section, Ss. 304i1, 336, 337, 338 and other 11. Overtaking vehicle in front.
analogous and cognate provisions of law. 12. Driving on wrong side of road.
3. This section and provisions, of Motor 13 . Illustrative cases .
Vehicles Act. 14. A betment of offence under the section.
4.. This Section and provisions of Police A cts, 15. Vicarious liability . . .
5.:. This section and Section 101 of Railways Act. 16: ' Evidence and burden of proof
6. Public way. . . 17. Procedure. .
7. 'Negligent or rash driving or riding 18. Sentence. . . ..
8 Contributory negligence.19 Practice
9. So as to endanger human life or to be likely 20. Charge.
to cause hurt or injury to any other person.
. Scope.—This section should be read along with sections 44 and 3 . 19, Penal Code. Under this
section the effect of driving or riding must be either that human life was in fact endangered or that hurt
or injury was likely to be caused. The criminality lies in running the risk of doing such an act with
recklessness or indifference as to the consequence. In determining whethr a person in negligent or rash
the standard of reasonable care is that which is reasonably to be demanded in the circumstances. Merely
because of slow speed of vehicle it cannot be said it, was not rash driving. Negligence means breach of a
dOty caused by Omission to. do something which a reasonable man guided by those considerations
• which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent

5 Subs by Ord X of 1982 s 3 for the comma and certain words.-
6.....The explanation was added, ibid.
696 Penal Code Sec. 279

and reasonable man would not do. The test of negligent and rash driving is to see whether the accident
in question would have been avoided by the accused if he exercised care and diligence which ordinarily
cautious persons using the road in similar circumstances would have done. A person who is driving a
motor vehicle should always keep it in a state of control sufficient to enable him to avoi4 dashing
against any other vehicle or running into any passenger who may fall to step off the road and he is
prima facie guilty of negligence if the vehicle leaves the road and dashes headlong and knocks against
other users of the road. By the Criminal negligence in driving his bus on the wrong side at a speed
which the circumstances existing at the time of the collision did not warrant by not keeping a proper
lookout to avoid collision and by failing to apply the efficient brakes which he had in time and which
braking would have averted the collision, the accused is plainly guilty of the offences under sections
304A, 304B and 279, Penal Code. The question as to what is the proper sentence to be awarded to the
accused found guilty under sections 27.9, 304A and 304B. Penal Code, one has to consider whether the
rash or negligent act of the accused showed callousness on the part of the accused as regards the risk to
which he was exposing other persons and the severity of the sentence must depend to a great extent on
the degree of callousness which is present in the conduct of the accused. Criminal, negligence or
crininal rashness is an important element in offences punishable under this section. In road accidents
the court has to keep in mind the likelihood of error in judgment on the part of the person driving a
motor vehicle as well as the pedestrian attempting to cross the road little realizing the great difference
in his speed and that of the approaching motor vehicle. The burden of proving that the vehicle as being
run rashly or negligently will be on the prosecution and particularly so when the vehicle hits a moving
vehicle which might have contributed to the accident. When there has been an accident and the vehicle
hits against the tree or culvert the presumption is that the accused was running the vehicle negligently,
where there is a special statute, such as Motor Vehicles Act, which penalises rash driving of a motor,
the punishment should be under such statute. The accused cannot be prosecuted under this section
when once he is convicted under the Motor Vehicles Act for rash driving, but he can be prosecuted
under section 338 of the Penal Code for the consequences of such rash driving (29 CrLJ271). The
accused cannot be convicted under this section as well as section 338(49 CrLf 759). Sections 279 and
338, Penal code deal with separate and distinct offences. There is no illegality in convicting and
sentencing under both sections. . .
• (2) Accused driving vehicle with defective brakes and gear—Accident taking .place—Some
passengers killed, while others inured—Offence falls under sections 304A, 279 and.338, and not under
section 304 (Ref A IR 1940 Rang 176) PLD 1966 Lah 745.
2. This section, Ss. 304A, 336, 337, 338 and other analogous and cognate provisions of
law.—( I) The bare act of rash or negligent driving or riding, so as to endanger, human life or to be
likely to cause hurt or injury to any other person, is itself an offence under this section, although
actually no one is injured or hurt. A IR 1968 Goa 77.
(2) The offence under this section and those under Ss. 304-A, 337 and 338 are distinct offences and
an accused can be convicted both under this section as well as under SS. 304-A, 337 or 338 as the case
may be. A IR 1956 MadhB 141.
(3) Where in respect of the same transaction an accused is charged both under Section 270 and .5.
337 of the Penal Code and the latter offence is compounded and such compounding results in the
acquittal of the accused of the offence under S. 337, P.C., it has been held that such acquittal would not
affect the liability of the accused for the offence under S..279. and would not be a bar to his trial' for such
offence. A IR I96OBom269. . . . . . . ... ..,
Sec. 279 O'fOffences affecting Pub. Health, Safety, Convenience, Decency and Morals 697

(4) To constitute an offence under S. 304A the rash and negligent act of the accused must be the
direct and proximate cause of the death. AIR 1936 Oudh 400. . .
3. This section and provisions of Motor Vehicles Act.--(l) In cases of rash and negligent
driving of a motor vehicle in a manner so as to endanger human life or to be likely to cause hurt or
injury to another person, the offender can be tried either under the Motor Vehicles Act or under this
section. AIR 1967 Pat .368. .
(2) A trial and conviction or acquittal of a person under the Motor Vehicles Act, for rash and
negligent driving so as to endanger human life will bar a fresh.trial of the same person for an offence
under this section. A IR 1967 Pat 368(368, 369): 1967 Cr1LJ 1564. .
(3) It has been held that the conviction of a person for reckless driving under the Motor Vehicles
Act will not bar his trial for an offence under S. 325 or S 338, Penal Code. A IR 1928 A ll 191..
(4) A conviction under S 121 of the Motor Vehicles Act (1939) (using vehicle in unsafe
condition) is no bar to the conviction of the accused under this section. A IR 1953 Pat 56.
(5) Where, in addition to breach of rules rashness or negligence within the meaning of this section
is proved, the proper section which will be more appropriate to apply. will be this section. AIR .1932
All 69.
(6) Driving on the wrong side of the road is. alwaysand in every condition improper and not only
under particular conditions, and where owing to such driving of a car a collision with a motor cycle
occurs, the offence falls under this section and not under the Motor Vehicles Act. AIR 1921 Sind 97.
(7) Under S. 116 of the Motor, Vehicles Act (1939) the manner of driving or the speed of driving
the car must be dangerous to the public but under Schedule of the Motor Vehicles Act Regulation 3
the offence of passing a tramcar on the left side is per se an offence though the tramcar may be stationary
and although no danger may be caused to the public thereby. A IR 1965 Cal 363.
4. This section and provisions of Police Acts.—(1)The finding that the accused was not guilty
under S. 34 of the Police Act (186, 1) necessarily means that the accused cannot be convicted under this
section. This implies the. proposition that the offence" under Section 34 of the Police Act is
substantially the same as the one under this section. AIR 1925 All 448.
5. This section and S. 101 of Railways Act.—(1) Section 101 of the Railways Act makes it an
offence for a railway servant to endanger the safety of persons by (inter alia) any rash or negligent act.
Under that section, it was held that the actual endangering of the safety of any person is necessary to
constitute the offence and that the mere fact that the accused's act or omission was likely to endanger
the safety of any person,was not sufficient. (1910) 11 CriLi 362.
6 "Public way.".—(l) A distinction must be made between a public way and a private way, and
it is only in the former case that this section will come into play. A public way connotes that the
public have a right to use it and not merely a licence to do so. (1822-1830)108 ER 719.
(2) A continued user of a way ,by the 'public for a long time raises a presIwption that the way
belongs to the public and that it has been dedicated by the owner for public - use. (1909JLR 32
Mad 527. . .
7. Negligent or rash driving or riding.—(1) Under this section what constitutes an offence is the
rash or negligent driving of a vehicle or riding on a public way so as to endanger human life or be
likely to cause hurt or injury to another person. 1975 CriLJ 1402 (Pat). . ,
698 Penal Code Sec. 279

(2) The hazard implied in the term rashness must be of such a degree that injury is most likely to
be occasioned. The question whether the hazard was of such a degree as to make the accused's act
criminally rash depends on the facts and circumstances of each case. AIR 1966 Born 122.
(3) The negligence required under this section is of a higher degree than that required in a civil suit
for damages, but of a lower degree than that required in a charge of manslaughter. AIR 1948 PC 183.
(4) In the absence of definite evidence to justify the conclusion that the driver of a motor car was
drying in a rash and negligent manner, he cannot be convicted under this section or S. 304-A. 337 or
338 merely because his car collided with a lorry and caused injury to some persons. A IR 1933
Oudh 391.
• (5) Motorists are not the only persons who owe a duty of care on a highway. Other persons using
the highway have also a duty and responsibility and must conform to the ordinary usages of the road.
A IR 1934 Nag.65. .
(6) Where the people on the road do not, move away quickly and the motor car, in spite of its
slowing down as it approached the spot and stopping hits one of the persons the driver cannot be held
guilty of rash or negligent driving. AIR 1934 Nag 65.
• (7) Drivers of motor vehicles also must remember that pedestrians have a right to walk on the road
and are entitled to expect that drivers of motor vehicles would exercise a reasonable amount of care
when driving along the road. AIR 1966 Born 122. . . . ..
(8) It is the duty of the driver of a motor vehicle to keep his attention on the road and the traffic
moving on the road. Where instead of doing so, he fixes his attention on a speeding train olia railway
line running parallel to the road in order to keep pace with the train with the result that he has
suddenly to swerve to one side of the road in order to avoid hitting a bullock-cart coming from the
opposite side and the car is Overturned and persons in it are killed and grievously hurt the driver will
be liable under S. 304-A: A IR 1954 Tray Co 25.
(9) Bus driver negotiating a bye-pass at high speed—Spring breaking as a result—Bus going out
of control and dashing against ajeep—Driver held guilty of rash and negligent driver. AIR 1971 Madh
Pra 145. . .
8. Contributory negligence.—(l) The doctrine of contributory negligence has no place in the
criminal law and where a person is charged with the offence of causing an accident on a public road by
rash or negligent driving of a vehicle on the road the fact that another person involved in theáccident.
and killed or hurt therein, was partly responsible for the accident by his own negligence, will not be a
defence to the charge. 1967 KerLi 323. .
(2) Where the accident was caused by the fault of the deceased himself; who interfered in the
management of the horse or the vehicle, the driver of the vehicle or the rider of the horse, as the case
may be, will not be guilty. 1978 ChndLR (Cri) 139.
(3) Where an Ekka driver was solely responsible for the collision between the Ekka and a motor
car and was killed inthe accident, the driver of the motor car, it was held, could to be held guilty. AIR
1938 A ll 571.
9. So as to endanger human life or to be likely to cause hurt or injury to any other
person.—(l) Even where there was no person on the road at the time of the alleged rash driving or
riding, the accused would be guilty. A IR 1968 Goa 77. •
Sec. 279 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 699

(2) The words "any other person" in the section are wide enough to include the occupants of the
vehicle which is being rashly or negligently driyed and are not limited to persons On the road. AIR
1936 Oudh 148. ,. . . .
(3) If there is no danger to the public outside the vehicle being rashly or negligently driven on the
road this section will not apply. AIR 1930 Sind 64. . .
(4) Where hurt is actually caused to persons riding a bus. as a consequence of rash and negligent
driving by the driver, he would be guilty under S. 337. AIR 1930 Sind 64.
(5) Where a person has been convicted under S. 337, as he actually caused hurt to some of the
occupants. of the bus which he was driving it will not be necessary that he should be convicted under
S. 279 also, even if it should be held that S. 279 is applicable to such cases. A IR 1936 Oudh 148.
(6). This section will apply even in cases where at the time of the rash or negligent driving or
riding the road happens tobe temporarily unoccupted by any pedestrian or by any vehicle this was so
not only because any person or any vehicle may happen to arrive on the road at any time but also
because the driver or the rider is to look to his own safety as well and cannot at all indulge inriding or
driving which may endanger his own life. AIR 1944 Lah 163.
10 Over-speeding..----(l) it is difficult to estimate the speed of a car when the only source of
evidence is the observation as the car passes along in the dark. One method of ascertaining the speed of
the car would be to find out the distance at which the car pulled up from the time the brakes were
applied. AIR 1938 A11571.
(2) On a straight and open road a 'speed of 25 or 30 miles an hour cannot necessarily be regarded as
excessive. A IR 1934 Nag 65(66:35 CrIL.J 696— A 1933 Oudh 391.
(3) Where a Pork Inspector's car was chasing another car suspected to contain illicit pork and both
cars where going at a dangerous speed ignoring traffic.signals with the result that finally the chased car
crashed and the chasing car .stopped at a distance of 100 feet from the crashed car, it was held that the
driver of the chasing car was guilty under this section. AIR 1938 Rang 97.
11. Overtaking vehicle in front.—(l) The driver of.a vehicle has to be very careful while
attempting to overtake another vehicle that is proceeding in the same direction before him. If he tries to
force his way between the vehicle proceeding in front and the car coming from opposite side his
conduct would amount to reckless driving within the meaning of S. 116 of the M.V. Act. AIR 1925
All 798. . . .. . ..
(2) The driver of a motor vehicle attempting to pass a car in front of him by going to the wrong
side of the road and colliding with a vehicle on that side coming from the opposite direction, must be
held to be guilty of rash and negligent driving: A IR 1921 Born 456. , . . . . .. .
(3) Under the Schedules of the M.V. Act. Regulation 3, the offence of passing a tramcar on the left
side is per se an offence, though the tramcar.may be stationary and although there may be no danger to
the public thereby caused and there is no question of any "reckless" driving within the meaning of S
116 of the M.V. Act. AIR 1965 Cal 363.
12. Driving on, wrong side of road.—(l) Not observing the rule of the road and not keeping to
the left side of the road are prima facie evidence of negligent driving. AIR 1954 Tray-Co 25.
(2) Observing the rule of the road is not the only criterion as to negligence or otherwise on the part
of the driver of a vehicle on a public highway. AIR 1934 Nag 65.
700 Penal Code Sec. 279

• (3) Merely violating the rule of the road .by going on the right side of the road instead-of on the left
side,does not prove rashness or negligence on the part of the driver in every case, although such breach
of the rule of the road may itself amount to an offence under the M.V. Act and M.V. Rules. AIR 1932
All 69,
13. illustrative Cases.---(l). Where the driver of a bus 'undertook to drive the bus , in spite of the
fact that its front tyres were defective and were in such a condition that they might burst on the way, it
was held that the driver was guilty of a rash act and when the tyres actually burst on the road and the
bus capsized resulting in injury to some persons and in the death of another person, the driver became
guilty under S. 304-A , A IR (1962) 4 Orissa JD 372.
• (2) The. accused was driving a bus with defective brakes and other defects at such a high speed that
when he made an attempt to apply the foot-brakes on being signaled to stop, he was completely unable
to control it. Two of the wheels had already gone into the nullah by the side of the road. The bus after
swerving to the right and to the left ultimately capsized on the road with the result that the body of the
bus went to, pieces. One of the passengers died then and there and one got his spine broken. Many
others received other injuries. It was held that the accused was guilty of offences under Ss. 279, 338
and 304-A . A IR 1958 Pat 56.
(3) Where the driver of a bus allowed a minor to drive the bus, knowing that he did not know
driving well and the minor drove the bus so rashly and negligently as to endanger the safety of
passengers in the bus and an accident was caused in which several passengers were injured, it was held
that the driver who was sitting by the side of the minor boy while the minor was driving, was guilty
and was liable as a principal offender under the provisions of S. 114 of the Penal C6de. A IR 1951
Pun] 418. .
(4) Fora person to carry another person on the pillion of his bicycle while riding along a crowded
Street would be a rash and negligent act within the meaning of the section likely to cause injury to
other persons using the road. AIR 1940 Rang 176. .. . . -
(5) The accused was.driving a motor lorry for a long distance continuously while he was feeling
sleepy and being overcome by sleep lost control of the car adn caused an accident resulting in the death
of persons in the lorry. It was held that an offence under S. 304-A was committed by the accused. AIR'
1965 A ll 196.
(6) Where the driver of a bus drove past a stationary bus without leaving sufficient clearance to
protect the passenger standing on the foot-board of the moving bus, it was held that the driver was
guilty of rash and negligent driving. A IR 1969 Delhi 183. .
(7) Where a person was sitting on a bridge 12ft. wide and a bus while crossing the bridge crushed
the leg of that person, it was held that the accused driver was guilty of rah and negligent driving and
in such case the speed of the vehicle was not material. AIR 1982 MP 83.
(8) If a cyclist is going by his left side on the unsurfaced portion of a road and a vehicle coming
from behind: at high speed without blowing the horn dashed against the cyclist, held, accident was due
to rash and negligent driving , of the vehicle. AIR 1977 Gauhasi 55.
(9) Bus being driven on a Kutcha track giving rise to jolts. Some loaded iron sheets aileged to
have fallen down and injured a person on the track—No evidence that sheets fell down because of the
high speed—Driver held not guilty under S. 279. AIR 1972 SC 1485.
.14. Abetment of offence under the section.—(1) The mere fact that the, owner or occupant of a
car did not insist on the driver driving at a moderate pace, does not show that he instigated his driving
at a reckless pace. AIR 1938 Rang 97. .
Sec. 279 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 701
15. Vicarious liability.—.-(1) The actual driver, and not the owner of a carriage, is liable under
this section, in case of a collision with another vehicle and injury to another person arising out of the
rash and negligent driving of the former vehicle. (1870) 14 SuthW R Cr 32.
16. Evidence and burden of proof.—(l) To prove an offence under S. 279 the prosecution is
required to establish that (a) the accused was driving vehicle or was riding on a public way, and (b)
such driving of vehicle or riding was in a manner so rash and negligent as to endanger human life and
likely to cause hurt or injury to any other persons. (1983) 24 Dc/hiLT 158.
(2) The burden of proving rash or negligent driving (within the meaning of this section) on the -
part of the accused is on the prosecution especially in a case where there has been a collision with
another carriage, which was also moving. The reason is that in such cases the driver of the other
.carriage may have also been negligent, (1975) 41 CuILT 246.
(3) Where the accused's vehicle dashed against a tree or a culvert, the presumption is that he was
driving rashly or negligently, as in such a case, there can be no question of the negligence of the tree or
the culvert. AIR 1934 Mad 209: .
(4) The presumption, of negligence on the part of a driver is a refutable one. AIR 1934 Mad 209.
(5) Rash and negligent driving cannot be assumed merely because of absence of explanation or false
explanation set up by accused. 1982 CriLi (NOC) 192 (Orissa).
(6) Unless a passenger is conversant with driving it is difficult to rely on the evidence of such
person to determine whether the bus was driven at a fast speed or otherwise. (1983) 1 BomCR 307.
(7) Persons injured in the accident are the best witnesses—Conviction can be based on their
testimony if it inspires confidences. 1983 CurLJ (Civ & Cri)270.
17. Proéedure.—(l) Where there has been a collision between two vehicles and drivers of both the
vehicles are charged with rash and negligent driving, there cannot be ajoint trial of the two accused, as
the act of each accused must be treated as being independent of the act of the other accused and that
their offences cannot be regarded as having been committed in the course of the same transaction. AIR
1963 Guj 275. . .. .
(2) Where the Magistrate in the trial court induced the accused to plead guilty and assured him to
let him off.on a very lenient punishment and the State applied for enhancement of punishment it was
held that such short cuts in case of serious offences impairs a fair trial. The case was remanded for fresh
trial. 1980 Cr1LR (Guj',) 415.
(3) S. 130(1) of the M.V. Act, 1939 is not applicable to the case where offence complained is
under this section. Hence, conviction of accused under this section on plea of guilty is illegal, if
summons under S. 130(1) of M.V. Act had been issued in such a case. A IR 1958 Mad 286.
(4) Where in a case under Section 279, PC the persecution had deliberately not produced the
evidence which was not only material but vital for the decisions of the ease and the accused was
acquitted of the charges under S. 279, P.C., the High Court in exercise or revisional powers set aside
the acquittal in the interest of justice. AIR 1980 Born CR 324.
(5) Cognizable—Summons—Baj lable—Not compoundable—Triable by any Magistrate.
18. Sentence.—(1) In cases coming under this section, the convicting Magistrate may, instead of
sentencing the accused to any term of imprisonment, release him after due admonition. A IR 1925
A ll 644.
702 Penal Code . Sec. 280

• (2) Accused 33 years -of age—First offender—No evidence adverse to his characters or
antecedents—The accident and death of the child occurred while the accused driver was trying his best
to save the child—Brakes of the involved bus were loose but it was given to him by the roadways
department as road worthy—Held this was contributory factor towards minimising his sentence—
Accused was released on probation under S. 4 of the Probation of Offenders Act. A IR (1983) 1 Chand
LR (Cr1) 420.
(3) Where because of the negligence of the accused, a driver, two persons died and the accident
had taken place at peak hours of traffic and near the crossing where the accused-driver was required to be
more careful, the accused could not be given the benefit of S. 360, Cr.P.C., though he had a large
family to maintain and he was the only earning member. (1983) 23 De/hiLT 484.
(4) In accident cases, where criminal negligence or rashness on the part of the driver of a vehicle is
proved, a sufficiently deterrent sentence within the limits of law is to be awarded, unless there are any
extenuating circumstances. It is the duty of the Magistrate to take a serious view of such cases except
where the circumstances justify a lighter sentence. A public road should be reasonably safe for
pedestrians and others whouse it. AIR 1968 Goa 77.
(5) In a prosecution of accused for offence under S. 279, it being the first offence of accused and
having regard to his age and the manner in which the incident took place, sentence of fine only was
awarded in the ends of justice. 1980 Born CR 351.
(6) Sentence of six months rigorous imprisonment and a fine of Rs 200 for an offence under S. 279
was held not excessi''e or unjust. 1984 Raj CriC 82.
19. Prictice.—Evidence—Prove: (1) That the accused was driving a vehicle or that he was riding.
(2) That it is a public way on which he was driving or riding.
(3)That he was driving or riding in a rash or negligent manner.
(4)That the driving or riding was such as to endanger human life, or was such as to be likely to
cause hurt or injury. . .
20. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--drove a vehicle (details of the car) or rode on a public way
(name of the road) in a manner so rash or negligent as to endanger human life or to be likely to cause
hurt or injury to any other person and thereby committed ajioffence punishable under section 279 of the
Penal Code and within my cognizance. .
And I hereby direct that you be tried on the said charge.

Section 280
280. Rash navigation of vessel.—WhOever navigates any vessel in a manner so
rash or negligent as to endanger human life, or to be likely to cause hurt or injury to
any other person, shall be punished with imprisonment of either description for a
term which may extend to six months, or ith fine which may extend to one thousand
4[taka], or with both. . .
Sec. 281 Of Offences affecting Pub. Health, Safety, Convenience, Decency and Morals 703

Cases and Materials

1. Scope.—This section will be-attracted when navigation is performed in a rash and negligent
manner. To support a conviction Under the section the prosecution must prove the rashness or
negligence which endangers human life or is likely to cause hurt or injury to any other person.
(2) The mere fact that the accused navigated the ship in an extremely slovenly manner will not
attract the application of this section, unless it was proved that he navigated it in a manner so rash or
negligent as to endanger human life or to be likely to cause hurt or injury to any other person. AIR
1925 SEnd M.
(3) Where the boatmen accused, while navigating a boat met with accident resulting in death of
many passengers, but no gross negligence and rashness on the part of the boatmen accused was
established their conviction under S. 280 was unsustainable. A IR 1982 A l/Li 498.
(4) It is the primary duty of steam vessels to keep out of the way of vessels lying at anchor, and
collision of a steam vessel with a vessel lying at anchor will, therefore, be prima facie evidence of
negligence in the navigation of a steam vessel. (1911) 12 criLJ 582.
(5) Where the person charged with an offence under this section, viz the navigating of a vessel
negligently so as to endanger the lives of the people sitting in the ferry boat, is acquitted of the offence
on the finding that there vas no negligence on his part, his master. viz the owner of the boat cannot be
convicted for the abetment of the offence. But where the boat sinks notwithstanding all the care of the
boatman and the passengers are drowned, the owner of the boat (the master of the boatman) will be
liable under S. 3Q4-A for having plied the boat through his servant in such a negligent manner. (1911)
12 CriLJ 495. .
(6) As under S. 279, under this section also, contributory negligence on the part of the victim,
who is hurt or injured etc or has been placed in .a position of danger, is no defence to a charge.
although such contributory negligence may-be pleaded in mitigation of the sentence.. (/ 9.11) 12. GnU
362. . .. .
20. Practice.—Evidence---Prove: (1) That it was a.vessel whichwas being navigated.
(2) That the accused was navigating the same. . .
(3) That he was doing so in a rash or negligent manner.
p
(4) That the navigation was such as to endanger human life, or was such as to be likely to cause
hurt or. injury. . .. . . - . .
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4 Charge—The charge should run as follows:
1, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of, at— navigated a vessel—in a manner so rashly or negligently,
as to endanger human life or to be likely to cause hurt or injury to another person- and thereby
committed an offence punishable under section 280. Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 281
buoy.—Whoever exhibits any false light,
281. Exhibition of false tight, mark or
mark or buoy, intending or knowing it to be likely that such exhibition will mislead
704 Penal. Code . Sec. 282

any navigator, shall be punished with imprisonment of either description for a term
which may extend to se'en years, or with fine, or with both.
Materials
I. Practice.—Evidence—Prove: (I) That the accused exhibited the tight, mark or buoy in
question. . . .
(2) That such light, mark or buoy was false.
(3) That the accused did as in (I), intending or knowing that such false exhibition would be likely
to mislead any navigator. .
2. Procedure.—Cognizable—Warrant—Bailable---Not compoundable—Triable by Metropolitan
• Magistrate or Magistrate of the first class.
2. Charge.—The charge should run as follows: .
• I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
• That you, on or about the—day of—at--did exhibit a false light (or mark or buoy) when a certain
vessel called—(if the name of the vessel is known it should be specified) was sailing (specie' the
place)—knowing or intending it to be likely that the exhibition of the said false light (or mark or buoy)
would mislead the office in charge of the navigation of the said vessel and thereby committed an offence
punishable under section 281 of the Penal Code and within my cognizance.
And 1 hereby direct that you betried on the said charge.

Section 282
282. Conveying person by water for hire in unsafe: or overloaded vessel.—
Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any
person by water in any vessel, when that vessel is in such a state or so loaded as to
endanger the life of that person,. shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend
to one thousand 4 [taka], or with both. .
Cases and Materials
1. Scope.—This section deals with conveying passengers by water for hire in unsafe and
overloaded vessel. The word 'whoever' is wide enough to include boatman, a lessee of a ferry or the
owner of a vessel.
• () The section applies not only where the accused has done the act knowingly but also where he
has acted negligently: AIR 1950 Maid 300.
(3) Criminal negligence is gross and culpable neglect or failure to exercise reasonable and proper
care to guard against injury either to the public in general or to an individual in particular, which
having regard to the circumstances out of which the charge has arisen, it was the imperative duty of the
accused to have adopted. AIR 1934 Cal 490.
(4) The owner of the concerned boats, which carried terrific overloads thus endangering the safety of
the passengers, lived near the starting place of the boats and he left everything to his tindals and only
took the daily proceeds earned by such overloading. It was held that hewas personally liable for the
overloading, as he must be held guilty of negligence in leaving everything to his Tindals and allowing
team to overload the boats in a dangerous manner. AIR 1950 Mad 300. • •
Sec. 283 Of Offences affecting Pub. Health, Safety Convenience. Decency and Morals 705

• (5) Overloading of a boat and leaving it in the middle of the stream in charge of only one boatman
when the monsoon was in full swing, would, amount to culpable negligence under this section. A IR
1934 Cal 490.
(6) Launch was capsized owing to over-rush of passengers waiting at the jetty on to the deck of the
launch and not to overloading, held that capsizing was not due to the negligence of the owner or master
of the launch. AIR 1970 SC 1362. . .'
2. Practice.—Evidence----Prove(1)That the accused conveyed aperson for hire. or cause the same
to be done. ' ' . ' ' .' ''' ' ' ' .• -
(2) That the mode of conveying that person was in a vessel by water.
(3) that such vessel at the time was in sUch'a taie, or so loaded, as to be dangerous to the life of
that person.
(4) That when such person was thus conveyed, the acuséd acted negligently or with a knowledge
of the state of such vessel.
3. Procedure.—Not cognizable—Summon's—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you on or about the—day of—ai—knowingly or negligently conveyed or caused to be
conveyed for hire—(name of the person) by water in the vessel(name of vessel) when the vessel was in
such.a state or so overloaded as to endanger the life of the said person and you have thereby committed
an offence punishable under section 282 of the Penal Code and within my cognizance.
A I hereby direct that you be tried on the said. charge.

Section 283
283. Danger or obstruction in public way or' line of navigation.—Whoever, by
doing any, act, or by omitting to take order with any property in his possession or
under his charge, causes danger, obstruction or injury to any person in any public way
or public line of navigation, shall be punished with fine which may extend to two
hundred 4[taka].
Cases and Materials: Synopsis
1. Scope and applicability of section. 10. "Public way".
2. This section and S. 268. 11. Navigable river, etc.—Obstruction on.
3. This section and s 133, Criminal P.C. 12. Encroachment on public way.
4. "Act"—Meaning of 13. Nuisance caused by crowd— Person
S. Omission to take order with property in one's responsible.
possession or charge. 14. Criminal trespass and obstruction of public
6. Intention. way—Distinction.
7. Negligence. 15. Defences to charge under section; (e.g.)
8. A ctually causing danger etc., necessary for reasonable user of road by accused.
'.0
offence. 16. Benefit arising from public nuisance (S. 268,
). "Any person' . - Para. 2).
706 Penal Code Sec. 283

17. Order to remove nuisance—Non-compliance 20. Compensation to complainant.

with. 21. Procedure.
18. Person liable under the section. 22. Practice.
19. Vicarious liability. 23. Charge.
• 1. Scope and applicability of section.—This section may be read along with sections 22. 27,
32 and 279. This section refers to parties who do acts so as to cause danger, .obstruction or injury to
any person in any public way, or public line of navigation. All injuries to a public way, as by digging
a ditch or making a hedge across it or laying logs of timber in it, or plugging it up or by doing any
other act which will render it. less commodious to the public will be punishable under this section.
The obstruction may be caused by negligence (36 CrLf 893). Where a hut encroaches a highway the
person who constructed the hut is liable. What is punishable under this section.is not any act but an.
act which causes danger or injury to anyone. In a case under this section the prosecution must prove
that the obstruction was caused under the authority Or diction of the accused (41R 1921 All 192). A
plain reading of section 283, Penal Code would show that the real gravemen of the offence lies on the
accused .acting or omitting to take order with any property in his possession or under his charge and
thereby causing danger,,.obstruction or injury to any person in any public way. etc. This section can by
no means be extended to a case where a party prohibits strangers from passing through its-field, even
though that may have been allowed access on earlier occasions.
(2) In order to attract the application of this section, there must be on the part of the accused an act
or, an omission to take order with certain property. In the absence of either of these factors, the mere fact
that the accused prohibits strangers from passing through his fields will not be an offence although they
may have been allowed access on previous occasions. 1969 CriLJ 77 (Delhi).
2. This section and S. 268.—(1) Pollution of the water of a canal so as to vitiate the atmosphere
will fall under S 268 and not under the more particular S 277 as a canal is not a "public spring or
reservoir" so as to attract the provisions of the special S. 277. (1866) 6 QBD 631.
3. This section and S. 133, Criminal P.C.—(1) A Magistrate passing an order under S 139 of
the Criminal P.C.; cannot do so simply relying upon a conviction of the person accused of the
nuisance under this section in respect of the same matter but must follow the procedure laid down in S.
133 and the subsequent sections of the Criminal P.C. (1096) 3 CriLJ 331.
4. "Act"—Meaning of.--( I) Where the omission has nothing to do with, any property it will not
be an omission for the purpose of the Section. Thus merely standing on a public road in a crowd,
instead of moving away, will not constitute an offence under this section. AIR 1957 RaJ64.
5. Omission to take order with property in one's possession or charge.—(l) The omission
to take order with any property in his possession or under his charge by the accused, thereby
causing a public nuisance would,be an offence where such omission is contrary to the law. (1869) 20
LT (NS) 564; .
6. Intention.—( 1) Where the accused 'placed a charpai on a public road and thereby obstructed a
Sub-Inspector of Police while engaged in the discharge of his public duty. It was held that the accused
was guilty of an offence under this section, although his act was purely negligent and not intentional.
AIR 1935 All 746.
7. Negligence.—Under this section even a negligent act, which is done quite unintentionally, i.e.
without any intention of causing obstruction etc., to any person will be an offence. AIR 1935 All 74.
Sec. 283 Of Offences affecting Pub. Health. Safety, Convenience, Decency and Morals 707

8. Actually causing danger, etc., necessary for offence.—(l) Proof of actual injury, danger or
obstruction to any person is necessary for an offence under this section; Mere proof of obstruction on a
public way, without proof of any particular person being actually obstructed, will not be an offence
under this. section. AIR 1925 Lu/i 153.
9. , "Any person".—(l) This section only applies where the danger, injury Or obstruction is
caused to a . particular person. AIR 1935 All 746.
10. "Public way".—(l) A'public.way is one which the public have a legal right to use, while a
public place would seem to include a place to which the public are accustomed to resort without being
interfered with though there is no legal right to do so. (1884) 14. QBD 66.
(2) A cat-track lay in the patta land of the accused, who put up a wall across it and claimed a right
to close it. It was held that the proper course would be to proceed against them under S. 133. Criminal
P.C. but that they could not be convicted under this section. A IR 1940 Mad 216.
(3) A pathway lying on a private land and used by the villagers is not a public way, unless there,is
evidence of a universal user sufficient to raise a presumption of dedication to the public. A IR 1930
Cal 286; .
(4) To establish a customary right of way, the court must be satisfied of the reason ableness and
certainty of the user,and that such user was not permissive nor exercised by stealth or force and that the
right has been exercised for such length of time as to suggest that by agreement or otherwise, the usage
has become the customary law of the particular locality. AIR 1930 Cal 286.
11. Navigable rider etc.—Obstruction on.—(l) Under this section danger, obstruction or injury
caused to any person on a navigable river, stream etc., is also an offence. (1874) 9 Ch App 423.
12. Encroachment on public way.—(1) Though every person is entitled to use a highway, no
one is entitled to use it in such a way as to exclude or obstruct other persOns from exercising a similar
right which they also have in regard to the highway. (1909) .9 CriLJ 321.
(2) The public have a right to use the whole of 'a public road including the sides, and
encroachment or obstruction on the sides of a public road will also be a public nuisance. AIR 1931
Born 326. .
(3) The placing of charpa, in the bazar temporarily, did not amount to a public nuisance in the
circumstances of the case. (19/2) 13 CriLJ 830.
(4) The placing of Maharram taboots in a line across a road by persons going in a Moharram
procession and obstructing the passage of mail tonga was an offejice upder' this sectIon (1909) 9
CriLJ321.: . . . , . . . .. . .. . . . .
13. Nuisance caused.by crowd—Person epohsibl L yWherë crowd gathèrs . iñ •f
shop and causes obstruction and danger on .public.road, but the crowd, is attracted to that spot by the
exhibition of certain toys in the shop window, the obstuction or danger must be held to have been
caused by the owner of the shop and he must be held responsible therefor under this section. (1911) 12
CriLl 258. .
14. Criminal trespass and obstruction of public way—Distinction.—(1) Including a part of a
public footpath in one's own land is not a criminal tespass. The reason is that in such a case, the
accused, like any other member of the public is entitled to make use of the foot-path and there is no
illegal entry on the property in the possession of another, with intent to commit an offence, etc., as
708 Penal Code . , Sec. 283

required by Section 441 of the Code. But in suchá case the accused can be convicted of an offence
under this section or S 268 read with S. 290. (1870-71) 6MädHCRxvL:
15. Defences to charge under section (e.g. reasonable, user of road by accused).--()) In case
of doubt or difficulty, the private reasonable right of a house-holder to carry on his business will have
to give way to the right of thepublic to use the road. (1911•) 12 Cril.J.258.
(2) Where by exhibiting, certain clock-work toys in his shop window, the shop-keeper attracts a
huge crowd in front of his shop on a public road and such crowd causes obstruction and danger to the
members of the public using the road the shop-keeper must be heidresponsible for such obstruction
and danger. In such a case, it has been held that it cannot be said that the mode of user of the public
road by the shop-keeper was necessary for carrying on his business in - the sense thaothrwis,itcpu.I.
not have been carried on in a reasonable way. (1911) 12 CriLi 258. .
(2) A person who is carrying a prabha in a processing along apubik way and on being Ordered by'
a Magistrate not to do so, leaves the prabha on the road. .then and there and walks away, so as
- necessarily to be likely to cause obstruction to any person who may have occasion to use the public
• way. cannot plead the Magistrate's order in defence to a charge of public nuisance or a chargeunder this
section. A/R 1916 Mad 847.
16. Benefit arising from public nuisance (S. 268. Para.2).—{1)Undei S. 268. Para. 2.0
common nuisance is not excused on the ground that it causes some convenience or advantage. But this
provision may not be applicable to this section inasmuch as under this section the nuisance is not a
common nuisance but one, which affects a particular person. In such cases. S. 81. which occurs in the
Chapter on General Exceptions (Chapter IV). will apply. Under that-section. as act done in gpod faith
for the purpose of preventing or avoiding other harm to person or property, is not an offence. AIR 1940
Paz 577.
17. Order to remove nuisance—Non-compliance with.—(]) The order of a public authority
legally competent to pass , such order, requiring the removal of a nuisance must be carried Out by the
accused otherwise he may become liable under Section 188 or Section 291 of the Code. (1897) ILR 20
Mad 1.
18. Person liable under the section.—(l) Where A constructs a'hut on the side of a public road
and encroaching upon it and B hires the hut and exposes goods for sale therein, it is A that will be
liable for obstruction under this section, or under Section 268 and not B. who merely exhibits goods
for sale in the hut taken on hire by him. (1908) 1 Cr1LJ 244(Cal).
19. Vicarious liability.—(1) Under this section the prosecution must prove that the obstruction
to a public way charged against the accused, was caused under the authority or direction of the accused.
A IR 1921 A ll 192.
(2) Where building materials were supplied by the contractor, who placed them on the public road.
the person for whom they were supplied, could not be convicted under this section unless he had
sanctioned the act. A IR 1921 A ll 192.
20. Compensation to complainant-1) Section 357 of the Criminal P.C. provides for the
payment of compensation to the complainant out of the fine imposed upon an accused person in a
criminal case. But where a person is accused of an offence under this section and is convicted and
sentenced to a fine the complainant cannot be awarded compensation for the expense incurred by him in
removing the obstruction caused by the accused. 1886 Rat Un Cr1 C 241.
See. 284 Of Offences affecting Pub. Health, Safety, Convenience. Decency and Morals 709

21. Procedure.---(1) Trial of this offence by Panchayat in contravention of Panchayat Rules is

void. 1969 CriLJ 77 (Delhi).
(2) Cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
22. Practice.—Evidence—Prove: (1) That the accused caused the danger. obstruction or injury in
question.
(2) That the same was caused by his act or omission to take prder with property ni his
possession or under his chargé.
3) That the person put in danger or obstructed or injured was then in a public way or public
line of navigation
23. Charge'—The charge should run as foilo.vs
I (name and office of the Magistrate etc ) hereby charge you (name of the accused) as follows
That you on or about the—day of—at—did (specify that act) or omitted to take order with—
(name of the property) in your possession or under your charge and thereby caused danger, obstruction
or injury to (name the person) in the public way (name of the public way) or the public line of
navigation (name of the line) and thereby committed an offence punishable under section 283 of the
Penal Code and within my congnizance.
And I hereby direct that you be tried on the said charge.

Section 284

284. Negligent conduct with respect to poisonous substance.—Whoever does,

with any poisonous substance, any act in a manner so rash or negligent as to endanger
human life, or to be likely to cause hqrt or injury to any person.
or knowingly or negligently omits to take such order with any poisonous
substance in his possession as is sufficient to guard against probable danger to human
life from such poisonous substance,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine, which may extend to one thousand 4 [taka], or with
both.
Cases and Materials
1. Scope.—(1) This Section may be read along with sections 27, 32, 44. 279. 283 and 319. The
gist of the offence under this section is culpable negligence and where a person is in possession of
poisonous substances, imposes upon him the duty of being careful.
(2) The gist of the offence in all these cases is culpable negligence in regard to the matters
mentioned in each section. 1882 Pun Re No. 16p. 19.
(3) The fact that a person has in his custody any dangerous substance, like poison, is it self
sufficient to impose on him the duty of being careful. 1882 Pun Re No. 16. P. 19.

2. Practice.—Evidence—Prove: (I) That the substance in question is poisonous, and if taken,

would be dangerous to life or likely to cause hurt or injury.
710 Penal Code Sec. 285

• 2) That the accused did an act therewith, which endangered, or was likely to endanger, human life
or was likely to cause hurt or injury.
(3) That he did such act rashly or negligently.
Or, Prove: (,J') That the substance in question is poisonous, and if taken, would be dangerous to
life, or to cause "hurt or injury.
(2) That the accused was in possession of such substance; .
(3) That he omitted to .take such..order therewith as was sufficient to guard against a probable
daher to human life, therefrom.
(4) That such omission was negligent, or with a knowledge of such probable danger.
3. Procedure.—Not cognizáble—Summons—Bailable—NOt compoundable—Triable by any
Magistrate. . . .• . .
4. Charge.—The chargL should run as follows:
1. (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—did (name of the act) with (name of the poisonous
substance) in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or
injury to (name of the person) or that you being in possession of such poisonous substance knowingly
or negligently omitted to take such order as is sufficient to guard against the probable danger to human
life from any such poisonous substance and thereby committed an offence punishable under section 284
of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 285
285. Negligent conduct with respect to fire or combustible matter.—Whoever
does, with fire or any combustible matter any act so rashly or negligently as to
endanger human life, or to be likely to cause hurt or injury to any other , person,
or knowingly or negligently omits to take such order with any fire or any
combustible matter in his possession as is sufficient to guard against any probable
danger to human life from such fire or combustible matter, . .
shall be punished with imprisonment of either description for a term' which may
extend to six months, or with fine which may extend to one thousand 4 [taka], or
with both.
Cases and Materials
1. Scope^ ( 1) Combustible matter is matter which is inflammable or capable of catching fire. It
includes fireworks, or fluids naphtha. The word injury' includes any harm illegally caused to the
property of any other person and is not confined to injury to the person only. Theproximity of naked
fire with stocks or turpentine is a source of danger to human life. The preventive sections are 133 and
144 CrPC. This section may be read along with sections 27, 31 44, 279, 283. 286 and 319,
Penal Code
Sec. 286 Of Offences affecting Pub. Health, Safety. Convenience, Decency and Morals 7

(2) It is a question of fact in each case, whether the keeping, depositing and manufacturing of
inflammable substances like naphtha does create danger to human life and property, and the question
must depend upon the circumstances of each case, as it is primarily a question of degree. 7 Cox
CrC 342.
• (3) Under S. 435, the act constituting the offence is a willful act, while under this section the
conduct of the accused is not willful but only rash or negligent. Where an accused is charted with an
offence under Section 435. he may under Section 221 of the Criminal Procedure Code be convicted of
the lesser offence under this section.(/ 966) 1 MadLJ 385 (386).
(4) Section 34 cannot be invoked in cases falling under this section. as there can be no question of
common intention in such a case, as required by S. 34, between the several persons alleged to have
joined in the commission of the offence. (1966) 1. MadU 385(386).
(5) Under .second.para of this section, the position must be such that the accused's failure to take
order must make danger to human life from the fire or combustible matter "probable". It is not enough
if such danger is merely possible. A IR 1965 SC 116. ..
(6) . Where the position is such that danger was probable, the mere fact actually no fire had broken:
out earlier is no proof thai danger was not probable. AIR 1965 SC 1616..
2. Practice.—Evidence--Prove: (1) That the accused did an act that endangered or was likely to
endanger.life or was likely to cause htirt or injury. ..
(2) That such act was done with fire or some combustible matter.
(3) That such act was done rashly or negligently. .
Or, Prove: (I) That the accused had in his possession some fire or combustible matter.
(2) That he omitted to take such order Therewith, as was sufficient to guard against a probable
danger to human life therefrom. . . . . . ... .
(3) That such omission was negligent or with knowledge of such probable danger.
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.. .. . . . . . .
.
4. Charge.—The charge should run as follows: . . . .. .
I, (name and office of the Magistrate etc.) hereby charge you (name of he accused) as follows:
That you, on or about the—day of—at—did (enumerate the act) with fire (or any combustible
matter) (name it) so rashly or negligently as to endanger human life or likely to cause hurt or injury to
or that you being in possession of such fire or other combustible matter knowingly or negligently
omitted to take such order as is sufficient to guard against the probable danger to human life from any
such fire or other combustible material and thereby committed an offence punishable under section 285
of the Penal Code and within my cognizance.
And Ihereby direct that you be tried on the said charge.

Section 286
286. Negligent conduct with respect to explosive substance. Whoever does,
with any explosive substance, any act s rashly or negligently as to endanger human.
life, or to be likely to cause . hurt or injury to any other person, . ..
712 ;, .' Penal Code Sec. 286

or knowingly, or negligently omits to take such Order with any explosive substance
in his possession as is sufficient to guard against any probable danger to human life
from that substance,
Shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand 4 [taka], or with
both.
Cases and Materials
1. Scope.—(I) Where the rash or negligent act of the accused in handling any explosive substance
results in hurt or grievous hurt to another person. the offence will fall under S. 337 or S. 338 (as the
case may be) and not under this section. (1906) 3 CriLi 363.
(2) Firing a loaded gun in a narrow passage of a small building with rooms on both side, of which
the doors are open is a rash and negligent act done with an explosive substance ,so as to endanger
human life and is an offence under this section. A IR 1949 Born 29(30). 49 CriLJ 593 (DB).
(3) The accused went out shooting in the month of July when people were likely to be about in
the fields and that a single pellet from his gun lodged itself in the thigh of a person who was at work in
the field. It was held that this was not sufficient evidence of rashness or negligence to support a
conviction under S. 337. (1906) 3 CriLJ363 (A ll). .
(4) Where the offence under S. 286 was not mentioned in the charge but the Judge in his summing
up to the jury referred to that offence at length and the jury gave their verdict convicting the accused of
that offence. It was held that the conviction could not be set aside under S. 537(b), Criminal P.C. as
there was no prejudice' to the accused and no miscarriage of justice. A IR 1949 Born 20.
3. Practice.—Evidence—Prove: (I) That the accused did an act with an explosive substance.
(2) That the said act was so rash or negligent as to endanger human life or likely to cause hurt or
injury.
(3) That the accused was in possession of an explosive substance.
(4) That there was probable danger to human life from possession of such explosive substance.
(5) That he knowingly or negligently omitted to take such order with it as is sufficient to guard
against any probable danger to human life from such explosive matter.
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrates . . .
4. Cbarge.—The charge should run as follows:
I. (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--did (enumerate that act) with an explosive substance
(name it) so rashly or negligently as to endanger human life or likely to cause hurt or injury to (name
of the person injured) or that you being in possession of (name the explosive substance) omitted to take
such order as is sufficient to guard against the probable danger to human life from any such explosive
substance and thereby committed an offence punishable under section 286, Penal Code and within my
cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 287 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 713..

Section 287
287. Negligent conduct with respect to machinery.—Whoever does, with any
machinery, any act so rashly or negligently as to endanger human life or to be likely to
cause hurt or injury to any other person,
or knowingly or negligently , omits to take such order with any machinery in his
possession or under his care as is sufficient to guard against any probable danger to
human life from such machinery,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand 4[taka], or with
both. .
Cases and Materials: Syiopsis
1.. Scope. . 7. Endanger human lift.
2. This Section and Section 304A. . 8. Probable danger
3. "Machinery 9. Practice.
4. Dangerous machinery. 10 Procedure.
5. Doing an act rashly or negligently. 11. Charge.
6. Contributory negligence.
1. Scope.—The section deals with negligent conduct in respect of machinery. An owner of
machinery is criminally liable if he compels his servants to work it in an unsafe condition knowing it
to be so, in a manner likely to endanger human life. This section may be read along with sections 32,
44, 279, 283, 286 and 319 of this Code. I
2. This section and Section. 304A.—(1) To constitute an offence under this section, it is not
necessary that death, hurt or grievous hurt must be actually caused by the rash or negligent conduct of
the accused. Where death, hurt or grievous hurt are actually caused by the rash or negligent conduct. S.
304A or 337 or 338 as the case may be will apply. AIR 1930 Lah 453.
(2) S. 304A will apply to a case of causing death by a rash or negligent act only where it is proved
that the death is the direct consequence of the rash or negligent act of the accused. AIR 1930 Lah 453.
3. "Maèhinery".--(l) The word "machinery" in this section would include a part of the machine.
(1897) 1. QB 192.
• 4. Dangerous machinery.—(1) Machinery or parts of machinery would be dangerous.if in the
ordinary course of human affairs danger may reasonably be anticipated from the use of them without
adequate protection. (1887) 1 QB 192. . .
(2) In considering whether a machinery is dangerous the contingency of carelessness on the part of
the workmen in charge of it and the frequency with hich that contingency is likely tooccur, are
matters that must be taken into consideration by the Coirt. (1897) 1 QB 192(195).
5. Doing an act rashly or negligently.—(l) The rashness and negligence contemplated by this
section is criminal rashness and negligence. Simple lack of care may constitute civil liability. 1970
KerLT 828. . .
'-C (2) There is a distinction between the meaning of "rashness" and that of "negligence" under this
Ui
section and analogous provisions like S. 279. In the case of negligence, the party fails to do an act
714 Penal Code Sec. 287
which he was bound to do, because of inadvertence. In the case of rashness, the part does an act from
which he was bound to forbear and breaks a negative duty. In rashness, the party runs a risk of which
he is conscious. A IR 1944 Lah 163.
(3) Where there is actual danger to life occasioned by the rash or negligent act of the accused is a
question of fact depending on circumstances of each case. Thus, working boilers at an unsafe pressure
would be an offence under this section: but where the boilers are worked within the limits of safe
pressure, no offence would be committed. (1906) 4 CriL.J 279.
(4) Where a person owning machinery employs a competent man and leaves him free to work it in
the best manner according to his judgment, the owner cannot be held responsible for any accident due
to the errors of the employee, as in such a case the owner cannot be held to have acted in a rash or
negligent manner with regard to the machinery: (1906) 4 CriLi279.
(5) Where the owner of a boiler discards employees who contend for safety, and seeks out one who
although technically competent, agrees to take the risk in working a boiler of a pressure which the
discarded employees considered unsafe, the employer cannot take shelter behind the employee. (1906)
4 CriLJ 279.
6. Contributory negligence.—(l) Contributory negligence is not a valid defence to a charge under
this section or S. 304A. 1977. KerLT 828.
7. Endanger human life.—(I) The expression "to endanger human life" in para. I of this section
does not imply that death or hurt should have actually been caused. Where the act or omission on the
part of the accused is so risky as to make such result likely, the act or omission must be held to fall
under this section. (1906) 4.CriLJ 279.
8. "Probable danger".—(l) All that is required. by this section is that the person must take
reasonable precaution and as much care as is sufficient .against such danger as can be expected within
the bounds of probability. A IR 1930 Pat 507.
9. Practice.—Evidence— prove: (I) That the accused did an act that endangered, or was likely to
endanger life, or was likely to cause hurt or injury.
(2) That such act was done with a machinery.
(3) That such act was done so rashly or negligently.
Or. Prove: (I) That the accused had in his possession or under his care some machinery.
(2) That the omitted to take such order therewith as was sufficient to guard against a probable
danger to human life therefrom.
(3) That such omission was negligent or with knowledge of such probable danger.
.10. Procedure.—Not co gnizable.—Summons —Bailable—Not compoundable—Triable by any
.
Magistrate.
11. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—acted with (name of the machinery) so rashly and
negligently as to endanger human life or to be likely to cause hurt or injury to (name of the person) or
knowingly or negligently omitted to take such order with the—in your possession as is sufficient to
guard against any probable danger to human life from such machinery (name of the maTiineiy) and
thereby committed an offence punishable under section 287, Peial Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
Sec. 288 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 715

Section 288
288. Negligent conduct with respect to pulling down or repairing
buildings.—Whoever, in pulling down or repairing any building, knowingly or
negligently omits to take such order with that building as is sufficient to guard against
any probable danger to human life from the fall of that building, or of any part thereof,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand 4 [taka], or with
both.
Cases and Materials
1. Scope.—The requirement of this section is that a person must knowingly or negligently omit
to take the necessary order with the building in pulling it down or repairing it. It is not sufficient that
an injury is caused while the building is being pulled down or repaired. In other words, the injury
must be the direct consequence of the building being pulled down or repaired. What the section further
requires is that the accused must knowingly or negligently omit to take such order with the building as
is sufficient to guard against a probable danger tohuman life "from the, fall of that building or any part
thereof". This makes it clear that the injury complained of must be the consequence of the fall of the
building or any part thereof. A worker throwing a brick negligently may be responsible for his rash .or
negligent act but a contractor who has engaged a worker in a work of construction cannot be held guilty
of omitting to take such order as is sufficient to guard against a probable danger to human life form the
fall of a building or of any part thereof if the injury is caused not because the building or a part of it fell
but because the worker threw a brick carelessly (1970 Born LR 629).
(2) The basic condition for the applicability of the section is that the accused's negligent conduct
must be in respect of the pulling down or repairing of a building (1904) 1 CriLi 488.
(3) In order to attract this section the - injury caused to the victim must be the direct consequence of
the pulling down or repairing of the building. (1970) 72 Born LR 629.
(4) The section will not apply to a faulty construction of a building which collapses and causes
injury. The matter may come under S. 337. A IR 1970 Mad 198.
2. Practiëe.—Evidence---Prove: (I) That the accused was pulling down or repairing a building.
(2) That he omitted to take sufficient order therewith to guard against a probable danger or the fall
thereof, or any part thereof. . .
(3) That such omission was negligent or with knowledge of such probable. danger.
3. . Procedure.—Cognizable—Summons—Bailable--Not compoundable—Triable by any.
Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—dày of—at—while pulling down or repairing a building knowingly
did not take sufficient guard against danger to human life as a result--(name of the person) fell from the
aforesaid building or any part thereof and sustained injury and you have thereby committed an offence
punishable under section , 288, PenalCode and within my cognizance.
And l..•hereby direct that you be tried on the said charge.
716 Penal Code Sec. 289

Section 289
289. Negligent conduct with respect to animal.—Whoever knowingly or
negligently omits to take such order with any animal in his possession as is sufficient
to gItard against any probable danger to human life, or any probable danger of grievous
hurt from such animal, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to one thousand
4[taka], or with both.
Cases and Materials: Synopsis
I. Scope. 5. "Probable danger to human life or probable
danger of grievous hurt"
2. Knowingly or negligently omits to take such
order...." 6. Evidence and proof.

3. "Any ani,naI' 7. Procedure.

- 8. Practice,
-
4. In his possession
9. Charge.
1. "Scope.—This section deals with improper or careless management of animals. Any negligence
in the management of an animal is not criminal. What has to be shown is that the accused was so
negligent that he did not take sufficient precaution to guard against probable danger to human life or
grievous hurt from such animal. Where owing to the negligence of its owner a dog bit the complainant
in his arm this section was held to apply (25 CrLJ 565). If the animal is not naturally fierce or vicious
the onus of proving negligence lies on prosecution.
2. "Knowingly or negligently, omits to take such order .......".—(l) The section describes the
offence as an omission to take order with an animal in one's possession under the circumstances
mentioned therein. But, such omission will not be an offence under the section in every case. It will
have to be proved that the accused knowingly or negligently omitted to take order with an animal in
his possession, so as to endanger the safety of other persons. In other words, the omission to take order
with an animal must be an omission of which the accused is guilty "knowingly or negligent". (1900-
1902) 1 Low Bur Ru! 208 .(209)— (1866) 5 Suth W R (Letters)8.'
(2) It must be clear from the evidence that the omission io take order with the animal in the
accused's possession was such as to make it probable that there would be danger to human life or
danger of grievous hurt to another person thereby caused. Unless these ingredients are established the
accused cannot be convicted under this section. (1900-1902) 1 Low Bur Ru! 208.
(3) The word "negligently" imports that the accused has failed to do something which he was
bound to do. (1963) 11 W R(Eng) 435 (436).
(4) Where the accused tethered his horse in a narrow street where people would not be able to pass
without going near its hind legs and the complainant was kicked by the horse an injured, it was held
that the accused was -guilty of and offence under this section. AIR 1940 Sind .1 72.
(5) The mere fact that a rope tied to a bull-lock when violently strained, broke, does not prove
negligence in taking order with the animal on the part of the person who was responsible for the
animal. (1904) 1 CriLi 1059 (A ll). -
3. "Any animal".—(l) This section visualises the possibility of danger emanating from any
animal, and hence is applicableto any animal and not merely to wild animals or animals which are
ferocious by nature. (1873) 19 SuthW R (Cr) 1.
Sec. 289 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 717

(2) Where the animals are dangerous by nature and they are set at large, the presumption is that
they will cause injury to human beings and the person, who was in charge of the animal and who so
set them at large, would be guilty of an offence under this section. AIR 1918 All 369.
(3) Where the animal is not by nature a dangerous one, as for instance a dog,, cow or other
domestic animal, there is no presumption that the animal would be dangerous and in such a case,
merely allowing the animal to be at large
be or some laxity in its management will not per se amount to
an offence under this section. It must shown that the animal has a tendency to be vicious. AIR 1918
A ll 369.
(4) Even in the case of an animal like a langur (ape), it has been held that there is no presumption
of its being dangerous and that in the absence of affirmative proof of danger to the safety of human
being, the mere fact that the langur had broken its chain and run away and caused 'damage to street
lights, flower pots etc., would not be sufficient to convict the owner of an offence under this section. In
such cases, the fact that there was no proof of the animal being not dangerous to the safety of human
beings, is beside the point. There must be positive affirmative proof of the animal being dangerous.
(1904) / CriL.J 1059 (A ll). . .
(5) Where a domestic animal like a horse, pony, dog. etc., is known to be vicious it -must be
treated on the same footiri'g as an animal which is dangerous by nature and in , such cases if the animal
will be at large, the owner or the person responsible for keeping the animal will be liable under this
section on the ground of the mere fact of the animal having been allowed to be at large. 1955 NagLJ 20.
(6) Where the accused let loose his' bull. which had on a previous occasion fought, with the
complainant's bull, it must be held that the bull was of a dangerous character and that the accused
knowingly omitted to keep the bull securely and thereby committed an offence under this section. AIR
1916 Born 196. . .
4. "In his possession ".—(I) In order that a person may be held guilty under this section. it is
necessary that his negligent conduct, namely, his omission to take proper order with an animal must
be with 'regard to an animal in his, possession. But the possession may be actual or constructive. Thus,
where a buffalo, known to be dangerous, injured a person, it was held that not only the herdsman in
charge of the animal, who failed to take any steps to prevent the injury, but also the owner of the
animal who took no special precautions regarding the animal would be liable under this section.
(1907) 6 CriL.J 100 (Nag). . .
(2) A bull set-at large by a Hindu in accordance with religious practice cannot be said to be in the
possession of the former owner, and if it subsequently proves to be dangerous to the safety of other
persons, such owner cannot be held guilty of an offence under this section. (1904) 1 CriLJ 501 (Lah).
5. "Probable danger to human life or probable danger of grievous hurt".—(l) If danger to
human life or danger of grievous hurt is not probable as a consequence of the accused's negligence or
omission, this section will not apply.' But mere probability of danger to life or danger of grievous hurt
is enough to attract the operation of this section. Actual loss of life or actual grievous hurt is not a
necessary ingredient of the offence under this section. (1888) IIMysLR No. 357p. p. 173. -
(2) Even, in a case where only simple hurt is actually caused by the animal in accused's
possession, it may be held, in the circumstances of a particular case, that there was probability of the
• danger of grievous hurt being caused to another person and that the accused had committed an offence
under this section. AIR 1923 Rang 147. ,
718 Penal Code Sec. 290

(3) Where an accused Was prosecuted under this section for having let his dog at large but there
was no proof of any tendency of the dog to bite a human being it was held that the accused was not
liable. AIR 1918 All 369.
(4) Risk of damage to property is also not covered by the section. (1904) 1 CriLJ 1059 (A ll).
6. Evidence and proof.—(1) Where the accused's ape broke its chain and escaped and broke
some flower-pots and some street lights, it was held that the accused could not be convicted under this
section merely on these facts, as they did not establish affirmatively that the animal was dangerous to
human beings. The mere fact that its was not shown that the animal was not dangerous will not be.
sufficient to convict the accused. (1904)1 CriL.J 1059 (All).
7. Procedure.—(1) The offence under this section, not being one punishable with imprisonment
for a term exceeding two years, is triable summarily under. S. 260 (1) © (1) of the. Criminal P.C., but
the record must show in case of conviction that the facts proved were sufficient to constitute the offence
under this section. (1900-1902) 1 Low Bur Rut 208.
(2) Cognizable—Summons----Bailable—Not compoundable—Triable by any Magistrate.
8. Practice.—Evkfence—Prove: (1) That the animal was in the possession of the accused.
(2) That he omitted to take sufficient order therewith to guard against probable danger to human
life or of grievous hurt therefrom.
(3) That such omission was negligent, or with knowledge of such probable danger.
9. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—knowingly or negligently omitted to take such order with
(name and description of the animal) in your possession as was sufficient to guard against any probable
danger to human life or any probable danger of grievous hurt and you have thereby committed an
offence punishable under section 289, Penal code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 290
290. Punishment for public nuisance in cases not otherwise provided for.—
Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with fine which may extend to two hundred 4[taka].
Cases and Materials
1. Scope.—This section may be read along with sections 74 to 76 of the Dhaka Metropolitan
Police Ordinance, 1976, and sections 76 to 78 of the Chittagong Metropolitan Police Ordinance. 1978.
and Khülna Metropolitan Police Ordinance, 1985, Rajshahi Metropolitan Police Ordinance 1992.
Public nuisance nay be undoubtedly , caused without any deliberate intention of causing it and this
section des not refer to -the intention of the accused person (A IR 1935 A ll 74). The mere act of
gambling in a private house is not a public nuisance. But where a person permits crowds of disorderly
persons to make use of his house for gambling and his doing so have caused annoyance to the public,
he is guilty of an offence under section 290. An offence under section 290 is not cognizable and so a
police officer is not at all justified in carrying out an investigation without an order of a Magistrate of
Sec. 290 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 1 719

the first or second class having power to try the case under section 156, CrPC, If cognizance is taken
by the Magistrate on the report for prosecution after investigation by a police officer without order from
the competent Magistrate, the entire proceedings will be vitiated. The fact that there was a special law
to meet a particular offence does not prevent the punishment of the offenders under the Penal Code. The
accused should be given an opportunity to meet the charge (27 CrLJ 152).
(2) The essential elements of an offence under this section are different from the elements of an
offence under S. 323 of the Code. Hence a person charged under S. 290 cannot be convicted under S.
323 unless the accused is given notice of the charge under the latter section. (1970) 1 MadLJ 242.
(3) A municipality can be made liable for an offence under this section. 1973 CriLJ 1227.
(4) In the following cases the act was held punishable under this section:—
(a) Allowing a prickly pear to spread on to a road used by the public. A IR 1928 Mad 1235.
(b) Working of paddy husking machine at night. A IR 1919 Cal 539.
(c) 'Prabha' was left on the road which was only three yards wide and the 'prabha' occupying
two yards of it. A IR 1916 Mad 847.
(d) Working a rice-husking machine at night in a residential quarter of a city. (1904) 1 Cr1LJ
512.
(e) Letting loose cattle at night. (1892) 1 W eir 238(239).
(5) In the following cases the act was held not punishable under this section:—
(a) A person who was regularly parking his car near the house of 'A' from 20.30 hrs. nd kept it
there till late in the night does not commit any offence under S. 290.1979 BBCJ 743.
(b) Coal depot in existence for.7 to 8 years—Only two neighbours complaining of nuisance
against depot—It is not public nuisance but private one. 1977 GnU (NOC) 279.
(c) Working of motor cycle engineemitting noise for a short period. (1984) 1 A PLJ 239.
(6) Section 360(3), Criminal P.C. covers offences punishable with fine only and hence an accused
convicted under this section can be released with admonition by the Magistrate acting under S. 360(3).
Criminal P.C. A IR 1935 Born 156.
(7) . Offence under section 290 of the Penal Code being a non-cognizable one the proceeding
initiated on police report without the permission of the Magistrate as required under section 155(2).
CrPC is illegal. The Court can, in a given case, regard the police report as a report under section
190(1)(b) CrPC and take cognizance on that police report but a completed investigation conducted
without prior permission the proceeding on the basis of the said report would be an illegality (Ref. 10
DLR 152 Dhaka) 41 DLR 306. .
(8) Police officer is not justified in carrying out investigation of complaint without sanction of
competent Magistrate. An offence under section 290, Penal Code is not cognizable and so a police
officer is not at all justified in carrying out an investigation without an order of a Magistrate of first or
second class having power to try the case (Ref 16 DLR 528) PLD 196'! Lah 882.
(9) The annoyance of a few residents of a single house is not sufficient to constitute a public
nuisance as contemplated by section 290 of the Penal Code. It is not sufficient proof.underthat section
to say that the complainant and a few of his tenants represent the people in general who occupy
property in the vicinity, there being no other dwelling within unpleasant range. Before an act is found
to be a nuisance, inquiry by the Commissioners is mandatory. Magistrate acts as a court when passing
720 Penal Code Sec. 291

an order under this section and therefore, such an order is open to the High Court's revisional
jurisdiction. 10 DLR 206.
2. Practice.—Evidence—Prove: (1) That the accused did an act or was guilty of an illegal
omission.
(2) That such act or omission caused injury, danger, or annoyance.
(3) That such injury. danger, Or annoyance was common to the public or the people in general
who dwell or occupy property in the vicinity.
Or. Prove: (1) That the accused did an act or was guilty of an illegal omission.
(2) That the act or omission in question must necessarily cause injury, obstruction, danger, or
annoyance. .
(3) That such injury, danger, or ainoyanôe must necessarily be caused to persons who may have
occasion to use any public right.
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by any
magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc) hereby charge you (name of the accused) as follows:
That you, on or about the__day of—at---committed (name and description of the public nuisanëe)
and thereby committed an offence punishable under section 290 of the Penal Code and within my
cognizance.
And 1 hereby direct that you be tried on, the said charge..

Section 291
291. Continuance of nuisance after injunction to discontinue.---Whoever
repeats or continues a publicnuisance, having been enjoined by any public servant
who has lawful authority to issue such injunction not to repeat or continue such
nuisance, shall be punished with simple imprisonment for a term which may extend to
six months, or with fine, or with both. . . .
Cases and Materials
1. Scope.—(1) This section punishes a person continuing a nuisance after he is enjoined by a
public servant not to repeat or continue, it.' .
(2). This section as well as S. 143 of the Criminal P.C. contemplates a case in which an accused
has previously been guilty of a public nuisance and is ordered by one of the Magistrate mentioned in S.
143 of the Criminal P.C. not to repeat or continue the public nuisance. (1886) ILR 8 A ll 99.
(3) Where an order under S. 143, Criminal P.C. is not directed to any particular individual but
addressed to the public in general as in the case of an order under S. 144 of the Criminal P.C.. non-.
compliance with the order will not be an offence under this section but will be an offence under S. 188
of the Penal Code. (1886) ILR 8 A ll 99.
(4) The distinction between an offence under S. 188 and one under this section is of material
importance, because, if the offence falls under S. 188 the case will be governed , by S. 195(1 )of the
Criminal P.C. and no Court can take cognizance of the offence except on the complaint in writing of
Sec. 292 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 721

the public servant concerned, or some other public servant to whom he is subordinate. A IR 1930
Lah 1065.
2. Practice.—Evidence—Prove: (1) That there was the issue of the injunction.
(2) That such injunction was legally issued.
(3) That the injunction is one which restrains the repetition or continuance of apublic nuisance.
(4) That the accused as enjoined by such injunction not to repeat or continue such nuisance.
(5) That he has repeated or continued the same public nuisance.
3. Procedure._Cognizablc—SummonS—Bailable—Not. compoundable—Triable by any,
Magistrate.
4. Charge.—The charge should run as follows:
I., (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—repeated or continued (name' the public nuisance in
details) having been enjoined by (name and office of the public servant) who had lawfully issued the
said order of the injunction not to repeat or continue the same and thereby committed an offence
punishable under section 291, Penal Code and within my cognizance..
And I hereby direct that you be tried on the said.charge.

Section 292
7 [292. Sale, etc. of obscene books, etc.—Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into
• circulation,. or for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in his possession any obscene book
pamphlet, paper, drawing, painting, , representation or figure or any other
obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be sold,
let to hire, distributed or publicly exhibited or in any manner put into
circulation, or •
(c) takes part in or receives profits from any business in the course of which he
knows or has reason to believe that any such obscene objects are, for any of
the purposes aforesaid, made, produced, purchased, kept, imported, exported,
• conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section,
or .that any such obscene object can be procured from or through any person,
or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished with imprisonment of either description for a term which may
extend to three months, or with fine, or with both.

Substituted by the Obscene Publications Act. 1925 (Act VIII of 1925). s. 2 for the original section 292.
7.
722 Penal Code . Sec. 292

Exception.— This section does not extend to any book, pamphlet, writing, drawing
or painting kept or used boña fide for religious purposes or any representation
sculptured, engraved, painted or otherwise represented on or in any temple, or on any
car used for the conveyance of idols, or kept or used for any religious purpose.]
Cases and Materials: Synopsis
1. Scope of the section. 7. "Makes, products"
2. constitutional validity of the section. 8. W ho is liable.
3. Obscenity, what constitutes. 9. Punishment.
4. "Puts into circulation" 10. Charge—What it should Contain.
5. Exception—Works of religion, art, literature, 11. Evidence.
etc. 12. Procedure.
6. Exhibition of film passed. by Board of 13. Practice.
Censors.
I. Scope of the section.—The word 'obscene' has not been defined in the Penal Code. It should
be given its ordinary and literary meaning. The word obscene is not vague. It is a word, which is well
understood even if pefsons differ in their attitude as to what is obscene and what is not. Obscenity
denotes the quantity of being obscene which means offensive to modesty or decency, filthy and
repulsive. In the present day society in Bangladesh where great emphasis is laid in family planning
necessitating imparting of sex education in the manner the books dealing with sex matters are to be so
written as not to cross the boundary of decency. To sustain a conviction under this section, the
prosecution has to prove that the book is obscene and it is not sufficient to prove that it is indecent and
that the leniency of the book is to deprave .and not merely to shock or to disgust. Where a person is
prosecuted under section 292 no doubt it is better to indicate in the charge in what respect exactly the
book is obscene. But if the accused is not prejudiced in his defence and the prosecution maintains that
the whole book is obscene, mere failure to mention particular passages is not a sufficient reason to
interfere in revision. . ...
(2) The petitioners sold nude photographs of women. He contended that photographs were not
obscene. Artists, professors, physicians and surgeons of some repute who appeared as witnesses
deposed that the photographs were not obscene but made artistic exposition of the beauty of the human
body. Held: 'Obscenity' consists of publishing or exhibiting such matter or object which has the
tendency to corrupt the mind of those who are open to immoral influence by exciting in them sexuality
and carnal desire. Y aqub Beg. Vs. State (1960) 12 DLR (W P)45.
(3) In determining whether a certain picture or writing is or is not obscene, it would not do to
apply test of an artist; the mere fact that a picture is perfect in its technique and depicts the beauty of
human body does not exclude it from the definition of obscenity. }iaqub Beg. Vs. State (1960) 12
DLR(W P)45. . .
(4) A mind open to immoral influence does not mean an abnormal case of a person who is easily
excited sexually or whose mind is perverse but means the case of a normal person, particularly a
youth whose mind has not reached such a stage of artistic maturity that he would be completely
impervious to such exposition so long as it has certain artistic value. Y aqub Beg. Vs. State (1960)
12 DLR (W P)45.
(5) In order to determine whether a picture of writing is obscene or not, it would also be necessary
to see the prevailing normal standards and conditions of the society in which such an object is
circulated or is likely to be seen or read. Y aqub Beg. Vs. State (1960) 12 DLR (W P) 45.
Sec. 292 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 723
(6) Even in a so-called liberal society the exposing of the female form with all the nakedness of the
flesh would not fail to have an immoral influence in some measure upon the normal members of such a
society. Y aqub Beg. Vs. State (1960) 12 DLR (W P) 45.
(7) Obscene, test of—Obscenity to be determined with reference to standards current in society in
which words are uttered or published—Intention of author immaterial. Crown Vs. Hossain 2 PCR 279.
2. Constitutional validity of the section.—(1) The validity of this section was questioned under
Art. 19(I)(a) of the Indian Constitution but has been upheld by the Supreme Court as being a
restriction imposed in the interests of public decency and morality and hence covered by clause (2) of
A rt. 19. AIR 1965 SC 881. .
3. Obscenity, what constitutes.—(1) It is the duty of the Court to consider the obscene matter by
taking an overall view of the entire work and to determine whether the obscene passages are so likely to
deprave and corrupt those whose minds are open to such influences and in whose hands the book is
likely to fall and in doing so one must not overlook the influence of the book on the social morality of
our contemporary society. AIR 1970 SC 1390.
(2) The word 'obscenity' should be given its ordinary and literal meaning. Viz: repulsive, filthy,
loathsome, indecent, lewd. But every indecent or filthy object will not come within the mischief of the
section. AIR 1958 Mad 210.
(3) "Obscenity" means perversity of existing knowledge and having no educative value. (1971) 73
PunLR (D) 113.
(4) The use of the term 'obscenity' is restricted to sexual immorality. The true test is thus not to
find out what depraves the morals in any way whatsoever but what leads to deprave in only one way,
viz., by exciting sexual desires and lascivious thoughts. A IR 1952 Cal 214.
(5) The important point to look at would be rather the form of expression 'obscenity' than the
actual meaning, for the same meaning may be obscenely expressed by one form of language and yet by
the use of another form may be couched in expression free from reproach. AIR 1952 Cal 214.
(6) The fact that the publication will not extend a harmful influence of men of wide culture will not
be decisive of the matter. AIR 1932.Cal 651.
(7) A picture of a woman in the nude is not per se obsCene. For the purpose of deciding whether
such picture is obscene, one has to consider to a great extent the surrounding circumstances, the pose,
the posture, the suggestive element in the picture and the person or persons in whose hands it is likely
to fall. AIR 1959 All 49.
(8) Mens rea wor guilty mind has not been dispensed with under the section. AIR 1965 SC 881.
(9) All the surrounding circumstances have to be taken into consideration in determining whether
the accused had the guilty mind. AIR 1965 SC 881.
(10) The prosecution need not give positive evidence to prove guilty intention. Mens rea can be
established by circumstantial evidence. AIR 1965 SC 881.
(11) A man is deemed to have intended the natural consequences of his act. Hence, once it is found
that the publication concerned was obscene mens iea cannot be said to be absent. AIR 1965 SC 881.
(12) In prosecution under the section the prosecution need not prove that the person who sells or
keeps for sale any obscene object knows that it is obscene. The section does not make knowledge of
obscenity an ingredient of the offence. AIR 1965 SC 881.
724 Penal Code Sec. 292
(13) Whether.the publication is obscene or not depends upon the material itself and not upon the
motive. A IR 1932 Cal 651.
(14) The section does not extend to any book, etc., the publication of which is proved to be
justified as being for the public good on the ground that such book etc. is in the interest of science,
literature, art etc. AIR 1970 All 614.
(15) In determining whether or not a publication is obscene regard must be had to that publication
alone; other books not the subject of the charges cannot be considered. AIR 1965 SC 881.
(16) It will be no defence to a charge under this section to show that similar books which are freely
circulating are not subject to any ban. A IR 1961 Call 77.
(17) An overall view of the obscene matter in the setting of the whole work would, of course, be
necessary but the obscene matter must be considered by itself and separately to find out whether it is so
gross and its-obscenity so decided that it is likely to deprave and corrupt readers. AIR 1965 SC 881.
(18) A book may be. obscene although. it contains but a single obscene passage. A IR 1962
Born 268.
(19) Though obscenity has extremely poor value in the propagation of ideas, opinions and
information of public interest or profit, the approach to the problem in such cases may become different
as the interest of the society may tilt the scales in favour of free speech and expression. A IR 1965
SC 881. .
(20) Where obscenity and art are mixed up, art must be so preponderating as to throw the
obscenity into a shadow, or the obscenity so trivial and insignificant that it can have no effect and may
be overlooked. AIR 1965 SC 881.
(21) Scientific, treatises and journals are not to be condemned as obscene publications by treating
them in the same way as books and papers which are published for being read by the sdmmon and
ordinary man and woman. A IR 1952 Cal 214.
(22) Books on medical science with intimate illustration and photographs though in a sense
immodest are not considered to be obscene but the same illustrations and photographs collected in a
book form without the medical text would be considered as obscene. A IR 196i SC 881.
(23) Books intended to give advice to married people and particularly to husbands on how to
regulate the sexual side of their lives to be best advantage, that is to say promoting their health and
mutual happiness serve a useful purpose and cannot be treated as obscene. AIR 1956 Born 32.
(24) An advertisement of Kok Shastra contained the words "coloured pictures (photos) of 84
postures (Man) of men and women with interesting descriptions of these". The advertisement did
not contain any posture offensive .to senses, nor did it suggest any indecent, obscene or immoral ideas.
It was held that there was nothing obscene in the word Asan' and it did not necessarily mean the
posture formed at cohabitation the advertisement did not come within the purview of the section. AIR
1928 Pat 649. .
4. "Puts into circulation".—(l) Under the section private circulation of obscene literature is also
an offence: Putting obscene literature into circulation wh ether privately or otherwise is an offence. AIR
1955 NUC. (All) 3567. . .
5. Exception—Works or religion, art, literature, etc.—(l) Under the section as it originally
stood, a representation in a temple or on a car used for conveying an idol was exempted from the
Sec. 292 Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 725
operation of the section. In 1 .925 in implementation of the International Convention of Suppression of -
Traffic in Obscene Literature the scope of the exceptibn was slightly enlarged. The exception now
applies to any matter connected with religion. However, the scope of the exception was not widened by
the above amendment so as to make it applicable to objects of art and literature. AIR 1962 Born 268.
(2) A passage in a religious book may become obscene if it finds place in a journal intended for
public. A IR 1917 Lah 219.
6. Exhibition of film passed by Board of Censors.—(i) Where the Board of Censors under the
Cinematograph Act (1930) has certified a film as being fit to be exhibited such certificate will be a good
defence under s. 79 to a prosecution under this section on the ground that the film is obscene. AIR
1980 SC 605.
7. "Makes, produces".—(l) It is implied that printing is not to be included in the expression
"makes" or "produces" as used in the second part of Section 292(a). 1970 KerLT 605.
8. Who is liable.—(I) In the case of selling or keeping for sale an obscene object, to escape
liability the accused can prove his lack of knowledge unless the circumstances are such that he must be
held guilty for the acts of another. The Court will presume that he is guilty, if the book is sold on his
behalf and is later founcf to be obscene unless he can establish that the sale was without his knowledge
or consent. AIR 1965 SC 881.
(2) Where the prosecution does not prove that a book containing obscene matter was printed at
certain press the keeper of the press cannot be convicted on the mere evidence of the printed statement
of the book as to where it was printed, for it raises no presumption under S.7 of the Press and
Registration of Books Act (1867). The presumption, however, arises against the person who is shown
as the printer and publisher. AIR 1953 Mad 418.
9. Punishment.—(1) Under the section as amended in 1969, a sentence of imprisonment is
obligatory in every case and a mere sentence of fine will not be legal. 1979 CriLl 1183;
• (2) A middle-aged married man committing an offence under this section cannot be released under
the Probation of Offenders Act. AIR 1974 SC 1230.
(3) Though motive of the publisher of an obscene book does not prevent it from being obscene it
can be taken into account in awarding sentence. AIR 1932 Cal 651.
(4) Though absence of knowledge on the part of a person who sells or keeps for sale any obscene
object that it is obscene may not take the case out of the section, it may be taken into consideration in
mitigation of the sentence. AIR 1965 SC 881.
10. Charge—What it should contain.—(1) When a charge is .brought under this section it
should specify the words or representation alleged to be obscene. (1878) 3 QBD 607.
(2) Though it is better and advisable to indicate in the charge how and in what particulars a book
is obscene, if the prosecution maintains that the whole book is obscene and the accused is not
prejudiced in his defence mere failure of the prosecution to mention particular passages will not be
sufficient for interference in revision. 1961 Ker LT 701.
(3) Clause (1) of this section uses the specific word "obscene" and describes when a book or other
matter mentioned therein would be "obscene" for the purpose of the section. Hence, it would be"
sufficient for a charge under this section to sate that the accused has done one or more of the things
which are "obscene". 1979 CriLJ 1183 (DB) (Kant).
726 Penal Code Sec. 293

(4)The charge should run as follows:

I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—sold (or distributed or imported or printed for sale or hire,
or willfully exhibited to public view or attempted to sell, etc. or offered to sell etc.) to wit, which is an
obscene book, inasmuch as the following obscene passages or words viz, and you thereby committed
an offence punishable under section 292, Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
11. Evidence.—(1) In a prosecution under the section the question whether the book is obscene or
not does not altogether depend upon oral evidence of a writer and art critic because the book must be
judged in the light of the provisions of the section and the provision, of the Constitution. A IR 1965 SC
881.
(2) The fact there is undoubtedly a good deal of gulf between legalism and literature on the
question of decency is no ground for judging the character of a publications on a different standard than
the strictly legal one. A IR 1955 NUC (A ll) 3567.
12. Procedure.—(1) After the amendment the offence under S. 292, P.C. which was prior td
amendment, triable by Magistrate of the first class has been made triable exclusively by the Session
Court. 1974 CriLJ 178(Guj,).
(2) Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan Magistrate or
Magistrate of the first or second class.
13. Practice.—Evidence—Prove: (I) That the book, etc., is of an obscene nature.
(2) That the accused—
(a) sold, let to hire, distributed, publicly exhibited or in any manner put into circulation, or for
purpose of sale, hire, distribution, public exhibition or circulation made, produced or had in
his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure
or any other obscene object whatsoever, or
(b) imported, exported or conveyed any obscene object for any of the purposes aforesaid, or
knowing or having reason to believe that such object would be sold, let to hire, distributed or
publicly exhibited or in any manner put into circulation, or
(c) took part in, or received profits from, any business in the course of which he knew or had
reason to believe that any such obscene objects were, for any of the purposes aforesaid, made,
produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner
put in circulation,, or
(d) advertised or make known by any means whatsoever that any person was engaged or was
ready to engage in any act which was an offence under this section, or that any such obscene
object could be procured from or through any person, or
(e) offered or attempted to do any act which was an offence under this section.

Section 293
8 [293. Sale, etc. of obscene objects to young person.—Whoever sells, lets to
hire, distributes, exhibits or circulates to any person under the age of twenty years

8.
Section'293 was substituted for the original section by the Obscene Publications Act, 1925 (Act VII! of 1925), s.2.
Sec. 294 Of Offences affecting the Public Health, Safety, Conveniehce, Decency and Morals 727

any such obscene object as is referred to in the last preceding section, or offers or
attempts so to do, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine, or with both.]
Cases and Materials
I.' Scope.—This section was substituted for the original section by section 2 of the Obscene
Publications Act (VIII of 1925). It merely enhances the punishment where the obscene objects are sold,
etc., to persons under the age of 20 years. On a conviction the court may order the destruction of all the
copies of the thing in respect of which the conviction was held (section 521, CrPC).
(2) The word "obscene" in this section must be given the same meaning as--under S. 292.
Whether a publication is obscene is a question of fact, and the High Court will not ordinarily interfere
with the decision of the trial Court on the point: (1918) JLR 20 Born 193.
2. Practice.—Evidence—Prove: (1) That the book, etc. is of an obscene nature.
(2) That the person to whom it was sold, etc. or offered or attempted to be sold was under the age
of 20 years.
3. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.,) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—sold, let on hire, distributed, exhibited or circulated to
(name of the person aged) being below 20 years Of age (specify the obscene object) or offered or
attempted to sell, let on hire, etc. and, thereby committed an offence punishable under section 293 of the
Penal Code and within any cognizance.
And I hereby direct that you be tried on the said charge.

Section 294
9[294. Obscene acts and songs.—Whoever, to the annoyance of others,—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any
public place,
shall be punished with imprisonment of either description for a term which may
extend to three months, or with fine, or with both.]
Cases and Materials: Synopsis
1. Scope and.object of the section. 4. Procedure.
2. Annoyance. . 5. Practice.
3. Punishment. 6. Charge.
1. Scope and object of the section.—This section is intended to prevent obscene acts being
performed in public to the annoyance of the public at large. Annoyance to others is an essential
ingredient of the offence under this section. A prosecution under this section will not fail if two girls

Section 294 was substituted for the original Section by the Indian Criminal Law Amendment Act. 1895 (Act Ill of 1895),
9.
si .
728 Penal Code Sec. 294

who were the objects of the obscene act were not produced as witness (1963 CrLJ 273). Obscene songs
when sung the prosecution will have to show that the actual words used were obscene. A conviction
under this section for uttering an obscene abuse in a public place may amount to a conviction for an
offence involving a breach of the peace within the meaning of section 106, CrPC. Where the obscene
words used by the accused were not set out in the evidence, it was held that the omission was not a
sufficient ground for setting aside a conviction.
(2) Witnesses not stating actual words of song for determining whether the song was obscene—or
not—mere statement of complainant that accused sang obscene songs in front of his house cannot be
considered sufficient for conviction under section 294. 1969 PCrLJ 615.
(3) Annoyance to somebody is necessary to constitute an offence under this section. (1872-1892)
LowBur Rul 537. .•
(4) The section is intended to prevent obscene acts being done 'in the public to the annoyance of
the public at large and it does not limit the scope of the word "others" to mean the person who is the
intended victim of the obscene act of the accused. AIR 1963 All 105.
(5) Cabarets are shown all over the world and unless there is a special legislation to ban them, it
will be a misuse of S. 294, P.C., to punish the entertainers and organisers of such shows. 1981 Cand
Cr1 C 17.
(6) No precise or arithmetical definition of the word which would cover all possible cases can be
given. Whether the questioned act is obscene or not will have to be judged on the facts of each case in
the context of its surroundings. 1970 Cr1 LI 1323.
(7) The test of obscenity is whether the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influences. 1968 KerL7' 219.
(8) An address to respectable young girls in a public place suggestive of illicit sex relation with
them will amount to . the uttering of obscene words within the meaning of the section. A IR 1963
A ll 105.
2. Annoyance.—('l) Annoyance, an important ingredient of the offence under this section is
generally associated with the mental condition and for that reason it is difficult to prove as a fart by
positive evidence. In almost all the cases it is to be inferred from proved facts. 1973 CriLi 1047 (Mys).
3. Punishment.—(l) An offence under this section must be looked upon with utmost severity and
the maximum sentence of three months' rigorous imprisonment was called for and a lighter sentence
would not meet the ends of justice even if the accused was a youngster of 16 or 17 years of age. AIR
1963 All 105.
(2) A sentence of three months was held to be . unduly severe. AIR 1923 Rang 253.
(3) Where a woman was convicted for abusing her husband it was held that a fine of Rupees 20 or
simple imprisonment for one month in default of payment of fine was unduly severe. (1872-1892) Low
BurR ule 309.
4. Procedure.--(I) Where an accused is prosecuted under this section atone and the charge fails,
he cannot be convicted under the Police Act. (1969) 71 PunLR 277.
(2) Cognizable—Warrant—Bailable—Not compoundable--Triable by any Magistrate.
5. Practice.—Evidence—Prove: (1) That the accused did some act or that the . accused sang, recited
or uttered any obscene songs, ballad or words.
Sec. 294A Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 729

(2) That this was done in or near a public place.

(3) That it was of an obscene nature.
(4) That it caused annoyance to others.
6. Charge—The charge should run as follows:
1, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--did an obscene act namely—or sang, recited or uttered
any songs, ballad or words (specify the song or recital) in a public place (specify the place) that such an
act or singing or reciting or uttering was obscene and that it caused annoyance to others and thereby
committed an offence under section 294 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 294A
10 [294A. Keeping lottery office.—Whoever keeps any office or place for the
purpose of drawing any lottery ' i [not being a State lottery or a lottery authorized by
the 12[Govemment]] shall be punished with imprisonment of either description for a
term 'which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or tor deliver any goods, or
to do or forbear doing anything for the benefit of any person, on ' any event or
contingency relative or applicable to the drawing of any ticket, lot, number or figure in
any such lottery shall be punished with fine which may extend to one thousand
4[taka].
Cases and Materials: Synopsis
1. Scope of the section. . 8. Lottery and wagering contracts.
2. Liability under first clause of the section. 9. 'Suit by person purchasing lottery tickets, for
3. "Keeps any office or place" return of money.
4. Lottery. 10. PunishmenL
5. "Drawing any lottery ' 11. Procedure.
6. "Not being a Slate Lottery or a lottery 12. Practice.
authorised by the Government' 13. Charge.
7. Offence under second clause. 14. Sanction.
1. Scope of the section.--(I) A lottery stands on the same footing as gambling because both of
them are games of chance. The object of this section is to save people from the effects of unauthorised
lotteries. The mischief of gambling is confined to participants comparatively limited while in a lottery
the mischief is widespread. This section penalises lottery which is widespread. When government
themselves run lotteries or permit lotteries to be run for certain purposes they do not legalise them but
they only exempt such lotteries. The second link of the section makes the publication of any proposal

tO. Section 294A was inserted by the Indian Penal Code Amendment Act. 1870 (Act XXVII of 1870), 5. 10.
11. Substituted by A.O. 1937, for "not authorised by Government".
12. The word "Government" was substituted for the words "Povincial Government" by Act VIII of 1973, Second Sch.
w.e.f. 26th March, 1971). .
730 Penal Code Sec. 294A

to pay any sum on an event or contingency relative to the drawing of any ticket in such lottery. The
existence of the reference as to prizes in the circular is enough to attract this section. The intention of
the legislature is that the public should not be informed of such proposals (Ref 5 BCR 265 AD).
(2) Though only a particular activity out of the series of activities involved in conducting a lottery
is made a punishable offence it does not mean that the other activities are lawful. A distinction must be
made between the two categories into which acts, which are not lawful, can be divided. An act may not
be lawful and may be made into a penal offence and therefore punishable, but in the other category
would fall acts which are not lawful but yet not punishable crimes but which may entail only civil
conse4u-nces. AIR 1971 Born 332.
2. Liability under first clause of the section.-.--(l) This section makes it an offence for any
person to keep an office or place for the purpose of drawing a lottery which is not authorised. AIR 1933
Mad 16.
(2) Keeping an office or place for drawing an unauthorised lottery is an offence and this would
include the case of a person who, without being an owner or occupier is permitted to keep the place for
the particular object. AIR 1936 Mad 225.
(3) The members o(a committee of a club who exercise full control over club matters including its
premises can be said to keep the premises of the club within the meaning of this section. A IR 1914
Low Bur 23.
(4) Whether a corporation can or cannot be liable for an offence under this section, its officers may
well be liable and investigation alone can determine if any or all of them are so liable. AIR 1930 Lah 581.
3. "Keeps any office or place."—(l) The conditions of the first part of the section are complied
with when it is shown that the accused did keep an office where they carried onthe necessary
preliminary work for running a lottery and which they held out to the public as the place where the
lottery would finally be drawn. AIR 1923 Mad 187.
(2) It is not essential to the commission of an offence of keeping a place for the purpose of drawing
a lottery, which is not authorised, that it should be solely appropriated to such purpose. A IR 1936
Mad 225.
(3) Where a house is kept for a double purpose, viz., as an honest social club and also for drawing.
a lottery it is a place kept within the meaning of this section. AIR 1914 Low Bur 23. -
4. Lottery.—_(I) There is no definition of-the word "lottery" in the Penal Code so that the word as
used in this section must bear its ordinary meaning. In its ordinary . meaning what constitutes lottery is
that some gain, which need not be a money prize, is to come to the subsériber, dependent upon pure
chance, any element of skill being absent. (1958) 1 AndhW R 456(457).
(2) A scheme may be a lottery though none of the competitors is a total loser. AIR 1936 Mad 225.
(3) A scheme under which a number of persons subscribe to a fund for the purpose of dividing that
fund between them by chance and unequally will be a lottery. Thus where a person subscribes to a fund
every month but the prize winner every month as a result of a draw is paid a lump sum after which he
is not required to subscribe there is a lottery. AIR 1934 Mad 482. -
(4) The essential feature of a lottery is that the prizes are determined solely by chance. If chance so
decrees that no prize is to be distributed to the adventurers and the stakes are to be appropriated by the
organizer the scheme isstill.a lottery. AIR 1917 Lah 93. -
Sec. 294A Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals 731
(5) It is not necessary for a scheme being a lottery that the fund out of which the prizes are
provided should consist only of sums contributed by the adventurers. AIR 1934 Sind 149.
(6) A scheme would be a lottery even if the prize money came out of the interest earned from the
subscribers' contributions. If the subscribers have purchased a chance of winning a prize it can make no
difference whether the prizes are paid circuitously from the interest earned on the subscribers or are paid
directly from those contributions. AIR 1936 Mad 225.
(7) A scheme by a compay purporting to grant interest bearing loans on personal security to
persons chosen by lot or granting cash bonuses to donors by drawing lots is a lottery within the
meaning of the section. AIR 1933 Mad 129.
(8) There can be a lottery within the meaning of the section even if the number of the subsribersJs
known. AIR 1936 Mad 225.
5. "Drawing any lottery".—(l) The section contemplates only lotteries in which the lucky
numbers are ascertained by drawing. Drawing is . used in its physical sense, meaning actual drawing
form an urn, box or other receptacle whether by manual, mechanical or other process. A IR 1957
A ndhPara 987.
(2) A person who conducts a lottery in which the lucky numbers are calculated arithmetically is
not guilty under this section. AIR 1942 Mad 404.
(3) The accused who was a dealer in cigarettes had.caused five-rupee notes to be placed in some
packets and any purchaser of a packet of the cigarettes sold .by the accused stood a chance of getting a.
packet of cigarettes containing a five rupee note. It was held:that although the transaction in question
amounted to a lottery there was no drawing' within the meaning of the section and hence the.accused
could not be held guilty under this section. AIR 1928 Born 559.
6. "Not being a State lottery or a lottery authorised by the Government."—(l) This section
does not apply to State lotteries or lotteries authorised by the Government. The burden lies on the
accused to show that the lottery was authorised by government. AIR 1914 LowBur 23.
(2) A collector who is a revenue officer is not authorised to sanction a lottery. A IR1914L.owBur23.
(3) The mere act of taking income tax from a club on the profits of lotteries does not constitute
authorisation. AIR 1914 Low Bur 23. .
(4) The Government issued an order declaring that conducting Chit funds was illegal-but added
that the prosecution of persons who were running Chit funds in ignorance of law would be withheld
provided they did their best to wind up lottery and pay everybody who had subscribed to the lottery.
It was held that the order of the Government withholding prosecution during certain time in which
the subscriptions were directed to be repaid did not amount to authorisation of the lottery. A IR 1938
Mad 715.
7. Offence under second clause.—(I) The offence under the second clause of the section consists
in the publication of proposals and does not depend upon whether the proposals are actually carried out
or not. AIR 1934 Mad 464.
(2) If the proposals are such as come within the mischief of the second clause the offence is
complete by publishing them and it does not matter whether the scheme is to actually conduct the
lottery or to merely defraud the public. AIR 1957 Andh Pra 987.
732 Penal Code Sec. 294A
(3) A large number of lottery tickets were found in the shop of the accused. The name of the
accused had been entered in the counterfoils in the space provided for the name, not of the purchaser of
the ticket but of the seller of the ticket to the ultimate purchaser. A printed document headed by the
name of the accused in large capitals containing a proposal to purchasers to buy shares each amounting
to 1/72nd in lots of twelve tickets and reciting that the holder of the document was entitled to 1/73rd
share of any price won by any one of the twelve tickets was also found. It was hela that there was
publication which was established by the very fact that the proposal forms had been printed in press.
A IR 1941 Sind 91.
(4) Under the clause, publication of the proposal is enough. It is not necessary that the payment
proposed to be made should be made by the person advertising. The accused issued a circular for the
sale of tickets for prize on horses winning at the.Derby races. The circular state that the "sweep will be
closed on ......and the draw will take place on .....Prize winners will be notified by telegram".
It was held that the accused published a proposal to pay a sum for the benefit of any person on any
event or contingency relative or applicable to the drawing of any ticket, lot, number or figure in a
lottery and was liable to punishment. AIR 1925 Bpm 243.
(5) The publication that lottery tickets can be had at a particular place is not sufficient to
constitute a publication of proposal to pay any sum .on any event or contingency relative or applicable
to the drawing of any ticket in any lottery not authorised by Government as provided in the second
clause. AIR 1925 Born 26.
(6) The word "goods" in the second clause applies not only to movable property but also to
immovable property. AIR 1927 Mad 66.
8. Lottery and wagering contracts.--(I) A lottery is distinct from a wager. AIR 1936 Mad 225.
(2) Wager is between two parties whereas a lottery is a multipartite agreement. AIR 1933 Mad 16.
9. Suit by person purchasing lottery tickets, for returns of money.—(1) Section 294-A is
aimed at the class of person who promote lotteries and it is intended to protect the class of persons who
are tempted to take tickets in lotteries. The purchaser of a ticket is not in pan delicto with the
promoter. So a person subscribing for a lottery is entitled to recover his subscription from the promoter
even if the money has been distributed. AIR 1936 Mad 225.
10. Punishment^ ( 1) Though ignorance of law is no defence to a prosecution under this section
it can be taken into consideration in awarding sentence. AIR 1934 Sind 149.
(2) Where the common object is the keeping of a place for the purpose of drawing a lottery not
authorized by Government all who engage in such an object can be held guilty. AIR 1914 Low Bur 23.
11. Procedure.—(l) A valid complaint as required by S. 196, Criminal P.C., is a condition
precedent for taking cognizance of an offence under this section. In the absence of such a complaint the
Magistrate would have no jurisdiction to proceed to the trial and the defect is not curable under S. 465,
Criminal P. C. A IR 1957 A nd/i Pra 987.
(2) The District Magistrate acting under S. 155(2), Criminal P.C., can order investigation into a
case under this section even though the offence cannot be tried without a complaint by the Government
or by some officer empowered by the Government in this behalf. AIR 1932 La/i 581.
(3) Not cognizable—Summons—Bailable-Not compoundable—Triable by any Magistrate.
13. Practice.—Evidence—Prove: (I) That the accused kept an office or place for drawing a lottery.
Sec. 294B Of Offences affecting the Public Health, Safety. Convenience, Decency and Morals 733
(2) That such lottery was not a lottery run by the Government and that it was an unaüthorised
offence falling under the second limb.
(3) That the accused published a proposal.
(4) That the said proposal was to pay any sum or deliver any goods or to do or forbear from doing
something for the benefit of any person on any event or contingency relative or applicable to the
drawing of any ticket lot, number or figure in any such lottery.
14. Charge.—The charge should run as follows:
I (name and office of the Magistrate. etc.) hereby charge you (name of the accused) as follows:
(a) First Limb:—T hat you, on or about the—day of—at—kept an office or place for the purpose of
drawing a lottery, not being a State lottery, auihorised by the Government.
(b) Second Limb:— That you, on or about the—day of—at—published a proposal to pay sum or to
do or forbear doing anything for the benefit of any person on an event or contingency relative or
applicable to be drawing of any ticket lot, number or figure in any .such lottery , authorised by the
Government and thereby committed an offence punishable under section 294A, Penal Code and within
my cognizance. -
And I hereby direct that you be tried on the said charge.
15. Sanction.—No court shall take cognizance of an offence under this section unless upon a
complaint made by the order of or under authority from Government (section 196. CrPC).

Section 294B
' 3 [294B. etc.—Whoever offers, or
Offering of prize in connection with trade,
undertakes to offer, in connection with any trade or business or sale of any
commodity, any prize, reward or other similar consideration, by whatever name
called, whether in money or kind, against any coupon, ticket, number or figure, or by
any other device, as an inducement or encouragement to trade or business or to the
buying of any commodity or for the purpose of advertisement or popularising any
commodity, and whoever publishes any such offer, shall be punishable with
imprisonment of either description for a term vhich may extend to six months, or
with fine, or with both].
Cases and Materials
1. Scope.—Petitioners have admitted that they have televised the advertisement and over the radio
as well by offering gifts to the consumers for the purpose of popularising their "Lifebuoy" product,
prima-facie commit an offence punishable under section 294B of the Penal Code. A ma! Cabraa/ Vs.
Go/am Murtaza (Criminal) 55 DLR 492.
2. Procedure,—Not cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate. -
3. Practice.—Evidence—Prove: (1) That the accused offered or undertook to offer in connection
with business or trade, sale of any commodity, any price or reward or other similar consideration.

13. Section 29413 was added by Act XX of 1965. s. 3.

734 Penal Code Sec. 294B

(2) That the accused by that name, whether in money or kind or against any coupon, ticket,
number-or figure, or buy any other device, wanted to induce or encourage any business or trade to the
buying of any commodity.
(3) That the accused for that purpose advertised or tried to popularise any commodity in any way.
4. Charge.—The charge should run as follows:
I, (name 1and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--offered or undertook to offer in connection with (name of
the business) or sale of the commodity any price or reward or any other consideration whether in
nioney or kind etc. as an inducement or encouragement to trade or business and to the buying of any
commodity for the purpose of advertisement or popularizing any aforesaid, commodity and thereby
committed an offence punishable under section29413 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.
[U I
Of Offences relating to Religion

Chapter introduction.— The Romans were religious cynics and tolerated all religions
and left alone those professed by races brought under their subjection. This policy has
been adopted by all rulers who profess religious neutrality but, at same time, insist that
followers of rival religions shall not make religious beliefs of others a target for their
hostility. This Chapter has been enacted to subserve that object.
"The principle on which this Chapter has been framed is a principle on which it
would be desirable that all Governments should act, but from which the British
Government in India cannot depart without risking the dissolution of society: it is this that
every man should be suffered to profess his own religion, and that no man should be
suffered to insult the religion of another".
"The legislature in enacting Chapter X V P. C. in a country populated by persons of
evidently different religions, had it in view to punish deliberated acts of offence
perpetrated by persons of one religious persuation of the insult or annoyance of persons
of another persuation ". Section 295 makes punishable acts of destruction, damage or
defilement by . whomsoever committed quite irrespective of the person of the offender.
provided such acts are done with intention of insulting the religion of any class ofpersons
or with the knowledge that such destruction, damage or defilement will be considered by...
any class an insult to their region. The mens rèa is therefore of the essence of the offence:
and in addition, the act must itself be one of destruction, damage or defilement, otherwise
it is not criminally punishable ". The legislature, has made a great advance in adopting
religious toleration which civilised Governments enjoin. .
In the case of a person defiling place of worship of offering indignity to a human
corpse, the intention with 'which the act was done or the knowledge of what was likely to
be the effect of the act may almost be assumed from the nature of the act but they are in
some cases likely to be proved. In the case of destruction, damage or trespass the
intention of the accused has to be proved in the case of disturbance of religious worship
the section does not require proof of intention. It is necessary however to prove that there,
was an assembly lawfully in public, worship that the assembly was infact disturbed and the
accused did the. act causing a disturbance or with intention of causing disturbance or
knowing that such act was likely to cause a disturbance.
This Chapter is also in consonance with the article 41 of the Constitution of
Bangladesh which states as follows:
41. Freedom of religion.— (1) Subject to law, public order and morality—
(a) every citizen has the right to profess, practise or propagate any religion;
(b) every religious community or denomination has the right to establish, maintain or
manage its religious institutions.
736 Penal Code Sec. 295

(2) No person attending any educational institutions shall be required to receive

religious instruction, or to take part in or to attend any religious ceremony or worship, if
that instruction, ceremony or worship relates to a religion other than his own."

Section 295
• 295. Injuring or defiling place of worship, with intent to insult the religion
of any class.—Whoever destroys, damages or defiles any place of worship, or any
object held sacred by any class of persons with the intention of thereby insulting the
religion of any class of persons or with the knowledge that any class of persons is
likely to consider such destruction, damage or defilement as an insult to their religion,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
Cases and Materials: Synopsis
1. Scope and object of the section. 7. 'W ith, the Intention of thereby insulting their
2. Abetment of offeiIce under section. religion'.
3. "Destroys, damages or defiles," 8. Punishment.
4.. "Place of worship'.* 9. Practice.
5. "Object held sacred' 10. Procedure.
6. "Religion of any class of persons". 11. Charge.
1. Scope and object of the section.— (I) This section has .been intended to respect the religious
susceptibilities of persons or different persuasions and creeds. Courts have got to be very circumspect in
such matters and pay due regard to feelings and religious emotions of different classes of persons with
different beliefs irrespective of the consideration whether or not they share those beliefs or whether they
are rational or otherwise in the opinion of the court. The word 'object' in section 295 does not include
animate objects. A bull dedicated and set at large at a Hindu ceremony of Shardha is not an object
within the meaning of section 295 (17 Cal 252). The word 'defile' in this section cannot be confined
to the idea of making dirty but must also be extended to ceremonial pollution.
(2) Ingredients of the offence—The essential ingredient of offence uls. 295, 297 is that the accused
must act with the intention of insulting the religion of any class of persons. Rajkishore Shil vs. Rashan
A u & ors. 5 BSCD 37.
• (3) Ingredient of the offence under section 295 speaks of defining of any place or worship or any
object held sacred by any class of persons. The section does not require investigation into the
possession or ownership of the land., Okil A li Vs. Bohari La! Paul (1961) 13 DLR 305.
(4) The ingredients of S. 295 are: first, that a person should destroy, damage or defile any place of
worship or any object held sacred by any class of persons; and secondly he should have the intention of
thereby insulting the religion of any class of persons or the knowledge that any class of persons is
likely to consider such destruction, damage or defilement as an insult to their religion. If any one of the
ingredients is not present the section cannot apply. AIR 1955 Mad 550.
(5) The section is intended to respect the religious susceptibilities of persons of different religious
creeds or persuasions. Courts have got to be circumspect in such matters and to pay due regard to the
feelings and religious emotions of different classes of persons with different beliefs irrespective of the
Sec. 295 Of Offences relating to Religion 737,.,.,

consideration whether or not, they share those beliefs or whether they rational or otherwise in the
opinion of the Court. A IR 1958 Sc 1032. . . ..
2. Abetment of offence under seciton.—(1) Offence under S. 295-A and B alleged to have made
statements amounting to abetment of offence—B acquitted—B's statement inextricably mixed up with
that of A—A's conviction cannot be sustained. 1978 CriLl 256 (Gauhati).
3. "Destroys, damages or defiles".—The word is not to be restricted to acts that would, make an
object of worship unclean as a material object but extends to acts done in relation to the object of--
worship which would render such object ritually or ceremonially impure. 1959 Nag U (Notes) 120.
(2) Where a person belonging to Moothan Caste which is one of the sub-divisions of the Su4ra
caste entered the Nallombalam of a temple which was open to non-Brahmins, it was held that his act
did not amount to defiling the temple within the.meaning of this section. A IR 1919 Mad 755.
(3) Where a Mahomedan threw a burning cigarette on the 'Viman' (an object held sacred by the
Hindus) taken out in a procession by Hindus but the cigarette did not actually fall on the 'Viman' but
struck the side and fell on the ground it was held that the accused was guilty under this section rel
with S.511. A IR I955 Bhopal 23.
4. "Place of worshfp".— (1) The use of a hut on an agricultural land without the permission of
the landlord as a public mosque with the azan or public call to prayers does not make it a place of
worship. A IR 1941 Pat 492.
• (2) Where the lessor has not dedicated the site or the shed over it to the Hindu public to be used
as a temple or place of worship the mere fact that the lessee uses the same as a place of worship and
permits such user by other Hindts of the locality cannot make the place a place of worship. AIR 1961
Ker 28.
5. "Object held sacred".—(I) Whether any object is held sacred by any class of persons must:
depend upon the evidence in case. AIR 1958 SC 1032.
(2) Any object, however trivial or destitute of real value in , itself, if regarded ai sacred by any class
of persons would come within the meaning of the section. AIR 1958 SC 1032..
(3) It is not absolutely necessary that the object in order to be held sacred should have been
actually worshipped. The object may be held sacred without being worshipped. AIR 1958 SC 1032.
(4) To hold that only idols in temples or idols carried in procession on festival occasions are
meant to be included within the words "any Object held sacred by any class of persons" is to give these
words a much too restricted meaning not warranted by the section. AIR 1958 SC 1032.
(5) It is well luiown that, the . image of Lord Ganesh Or any objective representation of a similar
kind is held sacred by certain classes of Hindus even though the image is made of mud and has not
'beeti consecrated. AIR 1958 SC 1032.
(6) A sacred book like the Bible or the Koran or the Granth Sahib is an object held sacred within
the meaning of the section. AIR 1958 SC 1032.
L?) The word "object' used in this section applies to some inanimate object such as an idol and
not to an animate object such as a cow or a bull dedicated to deity. AIR 1918 Lah 365.
(8) The use of a hut on an agricultural land without the permission of the landlord as a public
mosque with the azan or public call to prayers does not make it an object held sacred by any class of
persons within the meaning of this Section. AIR 1941 Pat 492 (493, 494), 12, Cr1LJ 579.
738 - . Penal Code . Sec. 295
- - 6. "Religion of any class of persons."—(l) The section applies not only as between those who
follow different religious but also between different sects or classes of Hindus who are animated by
sectarian feelings. I W eir 253.
(2) A class of persons would certainly be a body of persons. But in order that a body of persons
might form a class there must be a principle of classification and even two persons would be sufficient
to form a class if these two persons according to the principle of classification adopted form a, group
distinct from any .other group. (1955) 98 Cal LI 139.. -
7. "With the intention of thereby insulting ..... . their religion".—(l) Mere defilement of a
place of worship is not punishable under this section. There must, further, be an intention of-thereby
insulting the religion of any class of persons or the knowledge that a class of persons is likely to
consider the defilement as an insult to their religion. A IR 1955 WUC (Raj) 4036.
(2) The question whether there was intention to insult must depend upon the evidence in the case. -
A IR 1958 SC 1032.- .. . .
(3) Where. ' a Hindu breaks the thread of another Hindu regarding him as an upstart wearing
something which he was not entitled to wear, neither the victim Of the assault would be likely to
consider the act as an insult to his , religion nor the assailant could be considered to have the knowledge
that he was likely to do so. The case would be otherwise if a Mahomedan or a Christian or an atheist
• tears off the sacred thread which is being worn by a Hindu entitled to, or even claiming to be entitled
to, wear it and the assailant at the same time indicates disrespect for the thread. A IR 1940 Oudh 348.
• (4) Where a Mohomedan threw a burning cigarette on a 'Viman' (an object held sacred by Hindus)
-
,which was being carried in a procession by Hindus it was held that the act of the accused could not
be held to be unintentional or that it could not be said that he had no guilty knowledge as
contemplated by this section. In any case, the accused would be supposed to have the knowledge that
the Hindus were likely to consider the defilement of a 'Viman' to be an insult to their religion. A IR
1955 Bhopal23.. -
(5) Where the assignee of a decree in favour of the lessor got delivery of the leased property through
Court the assignee must have honestly believed that he had the right to use the property as he liked
and by pulling down the shed used by the lessee as prayer hall he could not be said to have intended or
known that such an act would be an insult to the religion of others who had no right over the shed.
A IR 1961 Ker 28.
(6) In the Pun Jagannath temple the Bhog was found kept, on a certain day, outside the inner
sanctum. As the Bhog became unfit for being offered to the deity, the Puja Pandas ordered it to be
removed. The cooks, instead of removing it themselves, had it removed by Sudra Bhojyas. The Puja
Pandas, therefore, insisted that a pollution had taken place and they refused to perform the knits unless
- - mahasnan was performed. Thereupon the temple authorities ordered the pushpalak sebaks to perform
the remaining knits. It was held that as on previous occasions the pushpalak sebaks had been allowed -
- to offer the seba puja and as the knits had been inordinately delayed by the refusal of the Puja Pandas
on the day in question the authorities could not be said to have ' b-r intended or known it to be likely
that the Bhog offered by the pushpalák sebaks would be defiled and that the Hindu religion would be
insulted. A IR 1958 Orissa 220.
- 8.. Punishment.—.(1) When a person enters a Hindu temple and damages its property it is
improper to pass consecutive sentences for each of the offences undór Ss. 295 and 447 as the offence
under S. 447 is inseparable frOm that under S. 295: A IR 1925 Oudh M. -
Sec. 295A Of Offences relating to Religion 739
9. Practice.—Evidençe--Prove: (I) That the place was one of worship or that the object was a
sacred one.
(2) That the same was held sacred by a class of persons.
(3) That the accused destroyed, damaged, or defiled the same.
(4) That he did so (a) with the intention of thereby insulting the religion of a class of persons, or
(b) with the knowledge that a class of persons is likely to consider such destruction etc. as an insult to-
their religion.
10. Procedure.—Cognjzable—Summons . Bailabje_Not compoundable—Triable by any
Magistrate.
11. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.,) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--destroyed (or damaged or defiled) a certain place of
worship, to wit—(or a certain object, to wit—) held sacred by (specify the class of persons) with the
intention of thereby insulting the religion of (specify the class of persons insulted) (or with the
knowledge, etc.,) and thereby committed an offence punishable under section 295, Penal Code and
within my cognizance. .
And I hereby direct that you be tried on the said charge.

Section 295A
1 [295A Dehberate and malicious acts intended to outrage religious feelings
of any class by insulting its religion, or religious beliefs.—Whoever, with
deliberate and malicious intention of outraging the religious feelings of any class of
2 [the citizens of 3 [Bangladesh]], by words, either spoken or written, or by visible
representations, insults or attempts to insult the religion or the religious beliefs of that
class, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.]
Cases and Materials: Synopsis
I. Scope of the section. 6. Procedure.
2. Constitutional validity of section. . 7. Practice.
3. "Deliberate and malicious intention ". 8. Charge.
4. Defence to charge under this section. 9. Sanction.
S. Forfeiture of offending copies.
1. Scope of the section.—(I) Section 295A has been intended to respect the religious
susceptibilities of person of different religious persuasions or creeds (1962 CrLJ 594). It is true that in
couttries where there is religious freedom certain latitude must of necessity be conceded in respect of
the free expression of religious opinions together with a certain measure of liberty to criticise the
religious beliefs of others. But, that does not mean that he should indulge in writing articles in .a

I. Section 295A inserted by the Criminal Law Amendment Act, 1927 (XXV of 1927), S. 2''
2. Substituted by A.O., 1961, Art. 2 and Sch., for "His Maesty's subjects' (with effect frornthe.23rd March. 1956..
3. The word "Bangladesh" was substituted by Act VIII of 1971 w.e.f. 26-3-1971, for "Pakistan"
740 Penal Code Sec. 295A

highly objectionable language intended to outrage the religious feelings of the followers of other
religions. It is contrary to all reason toimagine that liberty to criticise includes a licence in resort to
vile and abusive language. In this 'section the word 'malicious' has not been used in the popular sense.
In order to establish malice as contemplated by this section, it is not necessary for the prosecution to
prove that the accused bore ill will or 'enmity against specific person. If the injurious act was done
voluntarily without a lawful excuse, malice may be presumed. Malice in one sense is a negation of
bonafides. If a person knowing that his words, either uttered or written, are likely to offend or injure the
religious faiths of others, indulges in them, it would be difficult to hold that his act was done bonafide
and without malice. It is wrong to think that the truth of the allegations could be an effective defence to
a charge under section 295A of the Penal Code. Having regard to the purpose for which section 295A of
the Penal Code has been enacted it is not possible to accept the view that a statement which would
otherwise fall within the mischief of section 295A, can be taken out of it merely because in happens to
be a true statement. If the language used transgresses the limits of decency and is designed to vex,
annoy and outrage the religious feeling of others, "then the malicious" intention of the writer can be
inferred from the language employed by him;
(2) Insult to religi6us beliefs—Section 295A on its language is applicable to those insults to
religious beliefs which in addition to being deliberate and malicious are intended to outrage the
religious feelings of the followers of that religion. W .M.N. Trust, Lahore Vs. Crown (1955) 7 DLR
(W PC) 17.'
3) Law requries the lodging of complaint by the prescribed authority in respect of an offence under
Section 295A of the Penal Code but no such restriction has been imposed upon Section 298 of the
Penal Code. Md. Jamir Sheikh Vs. Fakir Md. A . W ahab and another 10 BLD (HCD) 452.
(4) Deliberate and malicious acts, either spoken or written, or by visible representation intended to
outrage religious feelings of any class of citizens constitute an offence under section 295A of the Penal
Code. Dr. Homco Baha Jahangir Beiman-al-Shuresari Vs. The state. 16 BLD (HCD) 140.
(5) Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its
religion or religious 'beliefs. Section 295A of the Code on its language is applicable to those insults to
religious beliefs which in addition to being deliberate and malicious are intended to outrage the
religious feelings of the followers of that religion. After going through the publication very carefully and
meticulously .as to its entirety the High Court Division held that the same has not been written or
published with any intention to hit the religious feeling or sentiments of the Muslims, rather, it was
written against the narrow interpretation or distorted meaning given or spread out in our country,
specially, by less'educated and half educated fanatic religious Moltas and Islamic fotowabaj. Reading of
the entire caption and publication establishes that its inner or real meaning is not at all intended to hit
the feeling of any Muslim or to distort the meaning of the said Sura of the Holy Quaran. Shamsuddin
A hmed and others Vs The State and another, 20 BLD (HCD) 268.
(6) Section 295A and 298—In spite of issuance of repeated summons and warrant of arrest the
responded No. 2 did not appear before the Magistrate concerned but prayed for quashing the proceeding
before the High Court Division without praying for bail for which it was the duty of the HCD to reject
the quashing petition. Mowlana Md. Y usuf Vs State and another (Criminal 3 B4C 171.
(7) The intention of the publication was to make the real Muslims aware about the false
interpretation given by the so-called half-educated and preachers of Islam. The allegation does not come
within the ambit of the offence of section 295A of Penal Code against the petitioners. Shamsuddin
A hmed and others Vs. State and another (Criminal) 52 DLR 497.
Sec. 295A Of Offences relating to Religion 741:

(8) The further requirement of the section is that the writing etc. must be with deliberate and
malicious intention of outraging the religious feelings of such class. AIR 1971 Mad/i Pra .152.
(9) The section is intended to respect the religious susceptibilities of persons of different religious
persuasions or creeds. Courts have got to be very circumspect in such matters and to pay due regard to
the feeling and religious emotions of different classes of persons with different beliefs irrespective of the
consideration whether or not they share those beliefs or whether they are rational or otherwise in the
opinion of the Court. AIR 1960 All 715.
(10) The offence under this section is more serious than the one under S. 298. 'Outraging' is a
stronger word than 'wounding' and the intention to outrage is malicious as well as deliberate and is
directed to a class of persons and not merely to an individual. A IR 1939 Rang 199.
(II) The section which has been inserted in the Code in 1927 has no retrospective effect. But
where a book which falls under S. 153A is reprinted and republished with the author's permission after
the enactment of the section the author can be convicted under this Section. AIR 1941 Oudh 310.
(12) The promotion of enmity between the followers of different religions does not come within the
purview of the section but under. S. 153-A. A IR 1971 Madii Pra 152. .
2. Constitutional validity of section.—( I) The 'calculated tendency of the aggravated form of,,
insult to religion is clearly to disrupt the public order and the section which penalises such activities is
well within the protection of clause (2) of Art. 19 of the Indian Constitution as being a law imposing
reasonable restrictions on the exercise of the right of freedom, of speech and expression guaranteed by
art. 19 (1) (a) of the Constitution in the interests of public order. AIR 1957 SC 620.
3. "Deliberate and malicious intentions."—(1) Insult to religion 'offered unwittingly or
carelessly or without any deliberate or malicious intention to outrage the religious feeling of that class
will not come under this section. But if the intention is to outrage religious feelings deliberately and
maliciously an offence under this section will be made out. AIR 1957 SC 620.
(2) Malice has to be gathered primarily from the language used by the accused. AIR 1960 All 715.
(3) It is permissible to receive and consider external evidence either to prove or to rebut the
meaning ascribed to malice. AIR 1960 All 715.
(4) If the words used caused persons to feel insulted but were only such as might possibly wound
and in fact did so, then there would be no offence under this section; if, however, the words used were
hound to be regarded by any reasonable man as grossly offensive and provocative and were maliciously
intended to be regarded as such, then an offence under this section would have been committed. AIR
1957 All 538.
(5) Where the accused destroys the sacred thread worn by another on the ground that he was not
entitled to wear it but does not speak slightingly of the thread with reference to its religious
significance this section has no application. AIR 1940 Oudh 348.
(6) A bull dedicated to Lord Shiva is a public property unless the deity contemplated is in
existence in the shape of a consecrated idol. If the bull is sold under the Cattle Trespass Act the
purchaser acquires a proprietary title to it; and if he used the bull for the purpose of polishing after
puncturing its nose he does not commit an offence under this section for hurting the religious
susceptibilities of the Hindu community. AIR 1952 All 26.
(7) Held, that in no part of the book called 'Gurumat Vichar Suraj' was there any passage showing
disrespect to the Sikh Gurus or the Sri Guru Grantha Sahib. The author professed to accept the
742 Penal Code

message of the gurus as contained in the Sri Guru Grantha Sahib but sought to place his own
interpretation on that message. AIR 1955 Punj 28.
4. Defence to charge under this sectlon..—(1) It is no defence to a charge under this section that
the statement was true. Even a true statement may outrage the religious feelings of a class of citizens.
AIR 1960 All 715.
(2) It is no defence to a charge under the section for anyone to say that he was writing a pamphlet
in reply to one written by an adherent of another religion who has attacked his own religion. AIR 1955
Punj 28.
(3) It is no defence that the another had incidentally attacked other religious beliefs also. AIR 1959
A ndhPra 572.
(4) To a charge under the section it would be a defence to say that the accused had no malicious
intention towards a class but be did intend-to wound or shock the .feelings of an individual, so that
attention might, however rudely, be called to the reform which he had in view. AIR 1939 Rang 199.
5. Forfeiture of offending copies.—(1) In order that the liability for forfeiture and seizure under
S. 95(1) of the Criminal P.C. may be incurred, it is necessary that the grounds of such action must fall
within the scope of the grounds on which a person may be held guilty under this section. It is not
enough if the publication offends S. 153A as promoting class hatred or enmity between followers of
different religion. A IR 1971 MadhPra 152.
6. Procedure.—(1) Private complaint S. 295A—Obtaining of sanction of concerned Governthent
under. S. 196 S. 196(1) Criminal P.C. (2 of 1974) is sine qua non and no Magistrate can take
cognizance of that complaint unles order granting sanction is produced. 1981 CriL.J 113.
(2) Cognizable—Summons—Not bailable—Not Compoundable—Triable by any Magistrate.
7. Practice.—Evidence---Prove: (1) That the accused spokç or wrote the words or made the visible
representations.
(2)That the accused thereby insulted or attempted to insult the religious beliefs of a class of
persons.
(3) That the accused did so with a deliberate and malicious intention of outraging the religious
feelings of that class.
8. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.,) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—insulted (or attempted to insult) the religion (or the
religious beliefs) uttering the following words or written as follows or made the following signs or
visible representations and you spoke or wrote or made signs or made visible representations with the
deliberate and malicious intention of outraging the religious feelings of a class of citizens namely—and
thereby committed an offence punishable under section 295A of the Penal Code and within any
cognizance.
And I hereby direct that you be tried on the said charge.
9. Sanction.—Sanction of Government is necessary for prosecution under this section (section
196, CrPC). .•
Sec. 296 Of Offences relating to Religion 743

Section 296
296. Disturbing religious assembly.—Whoever voluntarily causes disturbance
to any assembly lawfully engaged in the performance of religious worship, or religious
ceremonies, shall be punished with imprisonment of either description for a term
which may extend to one year or with fine, or with both.
Cases and Materials: Synopsis
1. Scope and applicability of section. 5. Religious processions.
2. 'Voluntarily". 6. 'Disturbance", what constitutes.
3. "Assembly lawfully engaged in performance 7. Music before mosque.
of . religious worship or religious 8. Procedure.
ceremonies". 9. Practice.
4. "Assembly". 10. Charge.
1. Scope and applicability of section.—The object of section 296 is to secure freedom from
molestation when people meet for the performance of worship in a quiet spot vested for the time being
in the assembly exclusively. Assemblies held for religious worship, or for the performance of religious
ceremonies, are hereby protected from intentional disturbance. Obstruction of a religious procession
taken out after obtaining the permission ' of the public authorities is an offence under this section (12
CrL1573). . .. . .
(2) The chief elements of the offence under the section are as follows:
(a) There must be an assembly engaged in the performance, of religious worship or religious
ceremonies.
(b) The accused must cause disturbance to such assembly.
c) The accused must do so voluntarily. . . .. .. . .
(d) The assembly must be lawfully engaged in the performance of religicus worship or religious
ceremonies. ('1885) ILR 7 A LL 461. . . . . . . .. .. .
(3) The section is applicable to any one who causes the disturbance. Persons who are' themselves
engaged in the performance of religious worship or religious ceremonies can be guilty under this
section. AIR 1943 Nag 199. '. . ...
2. "Voluntarily".—(1) Even in the absence of au 'active intention to cause disturbance to an
assembly engaged in the performance of religious worship, the accused would be guilty of an offence
under this section where he has actually caused disturbance to such assembly by . his act if at the time
when he did the act he knew that he was likely thereby to cause disturbance to the religious assembly.
(1910) 11 Ci-iLi 400. . .
• .3. "Assembly lawfully engaged in performanoe of religious worship. or religious
ceremonies".—(1) In order that this section may apply the assembly must be actually engaged in the
performance of religious worship or religious ceremonies when the allegeddisturbanc is caused.
Disturbance during an interval in a worship or prayer is not covered by thisseion. (1885) ILR 7 A ll
461 (FB). . . .
(2) The mere fact that when a religious procession is passing a mosque the music ' is stopped
does not mean that the procession is not actually engaged in religious worship at that time. A IR
1949 Nag 132. . . .. . . . .
744 Penal Code Sec. 297

4. "Assembly".—(1) Under this section, special protection is given only to congregational and
not individual worship (1883) ILR 6 Mad 203.
(2) Even three persons are enough to constitute an "assembly" within the meaning of this section.
AIR !940A11 291.
5. Religious processions.—(l) A religious procession can be regarded as an assembly lawfully
engaged in the performance of religious worship and voluntarily causing disturbance to religious
procession will be an offence under this section. (1890) ILR 12 All 495.
(2) There is no legal right to take a procession through private property unless such right is
established by some proof. AIR 1933 Oudh 196.
6. "Disturbance", what constitutes.—(1) Merely spreading a false 'rumour which leads to a
religious procession to come to an end of its, own accord is not causing a "disturbance" within the
meaning of this section. A IR 1919 A ll 188 (2,) (189): 20 cr/LI 421.
(2) Merely uttering the word "am in" in a loud tone according to tenets of accused's sect, during
prayer in a mosque, while the majority of the congregation utter it in a low tone according to the tenets
of their sect is not an offence under this section. (1891) JLR 13 All 419.
7 Music before fflosque.—(l) Where a mosque is abutting on a highway, going in a procession
with music at a time when prayer is going on in the mosque will be an offence as such music must
necessarily disturb the congregation engaged in the prayer. (1910) 11 Cr/Li 400.
(2) The playing of music before a mosque is not an offence when it is done at times agreed upon
between the communities. AIR 1945 Mad 496.
8. Procedure.—(l) Where several accused are charged under Ss. 143 and 296, the case of each
accused is to be considered individually. 1961 BLJR 347.
(2) Cognizable—Summons—Bailable—NOt compoundable—Triable by any Magistrate.
'9. Practice.—Evidence—Prove: (1) That there is existence of the assembly in question.
• (2) That such assembly was at the time of the offence engaged in performing religious worship or
ceremony.
(3) That the assembly being engaged in such performance was lawful.
(4) That the accused caused disturbance of such assembly when so engaged.
(5) That the accused did so voluntarily.
10. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—voluntarily caused disturbance to an assembly to wit—
lawfully engaged in the performance of religious worship (or religious ceremonies): and thereby
committed an offence punishable undersection 296 of the Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 297
297. Trespassing on burial places, etc.—Whoever, with the intention of
wounding the feelings of any person, or of insulting the religion of any person, or with
the knowledge that the feelings of any person are likely to be wounded, or that the
Sec. 297 Of Offences relating to Religion 745

religion of any person is likely to be insulted thereby, commits any trespass in any
place of worship or ion any place of sepulture, or any place set apart for the
performance of funeral rites or as a depository for the remains of the dead, or offers
any indignity to any human corpse, or causes disturbance to any persons assembled
for the performance of funeral ceremonies, shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine, or with both.
Cases and Material: Synopsis
I. Scope . 6. "Causes disturbance to any persons
2. "With the intention .. . . insulted thereby'p. assembled for the performance of funeral.
3. "Commits any trespass". ceremonies".
4. "Place of sepulture, or any place set apart for 7. Charge.
the performance of funeral rites or as a 8. Procedure.
depository for the remains of the dead". 9 Practice
5. "Indignity to human corpse"..
1. Scope.—Place reserved for burial or cremation of the dead are regarded as sacred. Intention or
knowledge is an ess€ntial ingredient of the offence under this section (14 CrLJ 117). The act of a
person who destroys or disturbs a place of sepulture with the intentio of wounding the feelings of any
other person amounts to trespass. Section 297 fully deals with offences to which it refers and, is self-
contained and required no interpretation by reference to section 441. 'Where the accused entered the
mosque for prayer and abused everyone present there, no offence under this section can be said to have
been committed. Persons having sexual intercourse with a woman inside a mosque were held guilty of
an offence under this section (24 CrLJ 711). -
(2) Cutting shrubs from grave-yard--Guilty of trespass. Accused cutting shrubs from the grave-
yard and erecting a hedge around it in order to prevent people of neighbouring hamlet from burying
their dead body—Accused guilty of trespass. 1953 PLD (Pesh) 62.
(3) The essence of Sec. 297 is an intention, or knowledge of likelihood, to wound feelings or
insult religion and when with that intention or knowledge' trespassing on a place of worship is
committed the offence is complete. Rujkishore Shil Vs. Roshan A li & ors. 5 BSCD 37.
2. "With the intention ......insulted thereby".—(l) The section does not refer only to
intention. It also refers to knowledge of likelihood of feelings being insulted etc. AIR 1941 Sind 33.
(2) Though the section does not refer to the i1ieligious feelings, the kind of feelings which come
within the section is clearly limited in its nature by the second paragraph by reference to feelings of a
spiritual nature rather than of a material kind,—feelings associated with sacred places. It does not
punish acts, which are merely earthly vanity or pride. AIR 1941 Sind 33.
(3) The accused entered the house of the complainant, demolished the wall which he was
constructing and took away the pindi of Naika Gossain worshipped by the complainant and his family
from the niche and threw it into a drain. It was held that the accused was guilty under this section. AIR
1940 Pat 414.
3. "Commits any trespass".—(l) Before a person can be convicted under this section it must be
proved that there was a trespass by him with the intention and in the place mentioned in the section.
A IR 1920 Pat 349.
(2) Where A was Ibund in a mosque having sexual intercourse with a woman B. Both were held
guilty under this sections. AIR 1924 All 9.
746 Penal Code Sec. 297
(3) The fact that the accused were the sole owners of the land did not render their action in
damaging the structure erected over the graves of the complainant's relations any the less a trespass
by
within the meaning of the section even though they had been placed in possession of the land the
Civil Court. A IR 1932 Cal 459.
(4) From the mere fact that the accused was a trustee of a mosque it cannot be said that he could
not commit trespass on the property. AIR 1924 Rang 106.
4. "Place of sepulture, or any place set apart for the performance of funeral rites or as a
depository for the remains of the dead".—(l) It is not necessary that the trespass was committed on
a place set apart for the funeral rites or as a depository for the remains of the dead. Even trespass on any
place of sepulture i.sufficient. (1909) 10 CHLI 160.
(2) Where the accused is charged with having ploughed the family grave-yard of the complainant,
there must be evidence and proof of the land or any part of it having been set apart as a "depository for
the remains of the dead". In the absence of such proof, the accused cannot be convicted under this
section. 1976 CriLJ 943.
5. "Indignity to human corpse".—(l) The accused who formed part of the committee whose
duty it was to collect subscription to defray cost of erecting a wall round a cemetery stopped a corpse at
the gate and demanded a fee before admitting it into the cemetery and some discussion ensued between
the parties during which the corpse was placed on the ground but later the party bearing the corpse was
admitted without any payment. It was held that there was no indignity offered to the corpse within the
meaning of the section. 1 Weir 287.
(2) Where certain persons prevented the grave diggers from digging a grave for the corpse of the
complainant's son on account of the complainant not having joined the Khilaphat party it was held
that they could not be held to have offered indignity to the corpse. AIR 1922 All 184.
6. "Causes disturbance to any persons assembled for the performance of funeral
cereinoiiies".—( 1) The word 'disturbance' implies some active interference in, or hindrance to, the
performance of the funeral ceremonies. AIR 1919 La/i 433.
(2) Where the accused came to the cremation ground and told the complainant and his relatives not
to cremate the body of their grand-daughter-in-law, it was held that the mere utterance of the words "do
not cremate the body" unaccompanied by any attempt to prevent the cremation or to interfere if the
cremation was persisted in was not a disturbance within the meaning of the section. AIR 1919 Lah 433.
7. Charge.—(1)Where charge .was framed under the first clause of the section and the finding was
that a case under the second clause was made out the conviction is liable to be set aside as the
ingredients of the offence under the first clause were not proved. 1971 Cr1LJ 1008 (Cal).
(2) The charge should run as follows:
I, (name and office .of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—committed trespass in (name of the place of worship or
name of the place where the sepulture situated or a place set apart for the performance of funeral rites or a
depository of the remains of the dead) offered an indignity by (specify the indignity to the corpse of or
caused disturbance to persons assembled) (enumerate the persons for the performance of funeral
ceremonies) with the intention or wounding the feelings of (name of the persons whose feelings were
wounded or of insulting the religion of 'or with the knowledge, that the feelings are likely to be
wounded and you have thereby committed an offence punishable under section 297 of the Penal Code
and within my cognizance. S H

And I hereby direct that you be tried on the said charge.

•See. 298 Of Offences relating to Religion 747
S. Procedure.—(l) An offence under this section cannot be treated as a minor offence with respect
to an offence under S. 295, as the former contains an additional ingredient of trespass. Hence an accused
charged under S. 295 cannot, by virtue of S 222, Criminal P.C., be convicted under this section.
A IR,
1952 A ll 878.
(2) Cognizable— Summons_Bajiable_ 0 compoundable—Triable by any Magistrate.
9. Practice.—Evidence__prove(l) That the accused had the intention to:
(a) wound the feelings of any other person, or
(b) to insult the religion of any person; or
(c) had the knowledge that;
(I) the feelings of any person is likely to be wounded, or
(ii) that the religion of any person is likely to be insulted.
(2) That the place trespassed was a place of worship or of burial place or of the remains of the dead.
or
• (3) That the accused trespassed upon such a place or offered any indignity to a human corpse or
disturbed persons assembled for funeral ceremonies.

Section r298
298. Uttering words, etc. with deliberate intent to wound religious
feelings.—Whoever, with the deliberate intention of wounding the religious feelings
of any person, utters any word or makes any sound in the hearing of that person or
makes any gesture. in the sight of that person or places any object in the sight of that
person, shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.
Cases and Materials: Synopsis
I. Scope of the section. 4. Procedure.
2. "With the deliberate intention". . 5. Practice.
3. "Religious feelings' 6. Charge.
1. Scope of the section.—(l) The offence under this section consists in the deliberate inten jion of
wounding the religious feelings of other persons by uttering any word or making any sound to be
hearing of that person or making any gesture in the sight of that person or placing an object to wound
that person's religious feelings. The deliberate intention must be interred . from the words spoken, the
place where they were spoken, the persons when they were spoken.. and other surrounding
circumstances. No direct evidence may be addressed to establish intention. Deliberate intention to
wound the religious feelings of a section of the public has to be established. Cow slaughter without a
deliberate intention to wound the feelings of Hindus may not be an offence.
(2) Ingredients of murder and culpable homicide stated to elaborate the point. It has been held in
the decision reported in 1987 BLD (A D) 165 that "all murders are culpable homicide but all culpable
homicides are not murder". Excepting the General Exceptions attached to the definition of murder an
act comrnijted either with certain guilty intention or with certain guilty knowledge constitutes culpable
homicide amounting to murder. If the criminal act is done,wjth the intention for causing death then it
is murder clear and simple. In all other cases of culpable homicide it is the degree of probability of
death from certain injuries which determines whether the injuries constitute murder or culpable
homicide not amounting to murder and if death is the like result of the injuries it A culpable homicide
748 Penal Code Sec. 298

not amounting to murder; and, if deth is the most likely result then it is murder. Mom in Maitha Vs.
State 4IDLR 37.
(3) See 3 BLC(AD) 171; 1990 BLD 452.
(4) The section punishes uttering of words, etc., with the deliberate intention of wounding the
religious feelings of others. The section is much wider in , scope than S. 295 and includes any action
which is known to wound the religious feelings of others while s. 295 is limited to certain specified
kinds of acts. AIR 193 7A 11 13.
2. "With the deliberate intentions".—(1) The essence of the offence under the section consists in
the deliberate intention of wounding the religious feelings of others and mere knowledge of the
likelihood that the religious feelings of others may be wounded is not sufficient to bring the act of the
accused within the mischief of this section. AIR 1963 Orissa 23.
(2) Where the intention to wound the religious feeling was not conceived suddenly in the course of
discussion but was pre-meditated , deliberate intention may be inferred. AIR 1952 Orissa 149.
(3) It is no defence to proceedings under this section that the religious feeling were deliberately
shocked or wounded by the accused in order to draw attention to some matter in need of reform. AIR
1939 Rang 199. -
(4) Motive is not tobe confused with intention. If a man knows that a certain consequence will
follow from his act it must be presumed that he intended that consequence to take place though he
may have some different ulterior motive for performing the act. Thus if an accused kills a cow in the
presence of Hindus he must have known that it would lead to wounding of their religious feelings. AIR
1937A11 13.
(5) Where the accused had caused the slaughter of a bullock on Bakrid day in an open public place
in spite of the protest of and in the presence of Hindus the accused must be taken to have deliberately
intended to wound the religious feelings of such Hindus and is guilty under this section and cannot
claim the protection of Art 25(1) of the Indian Constitution. AIR 1965 Tripura 22.
3. "Religious feelings".—(l) Religious feelings can mean nothing more or less than feelings
associated with a person's religious ideas. Although instances of cow sacrifice may be found in the
Hindus scriptures it is well-known that the idea of cow slaughter is abhorrent to the Hindus in general.
A IR 1965 Tripura 22.
4. Procedure.—(1) Sanction of the Govt. under S. 196 (1) Cr. P.C. is not necessary in the case of
an offence under S. 298. 1981 CriLi 113.
(2) Not cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
5. Practice.—Evidence—Prove: (1) That the accused uttered some words or made some sounds to
the hearing of the complainant or made a gesture in the presence of the person or placed any object in
the sight of the complainant.
(2) That he did so intentionally and deliberately.
• (3) That the intention was to wound the religious feelings of any other person.
6. Charge.—The charge should run , as follows;
I, (name and office of the Magistrate etc.,) hereby charge you (name of the accused) as. follow:
That you, on or about the—day of—at—uttered the words (specify them) to the hearing of (name
of the persons) or made a sound (namely) to the hearing of our made gesture in the sight of and placed
an object in the front of some person (with the deliberate object) intending to wound the religious
feelings of the persons and thereby committed an offence punishable under section 298 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried on the said ch4lrge.
CHAPTER XVI
Of Offences affecting the Human Body

Chapter introduction.— This Chapter consists of 80 Sections dealing with all offences
involving personal injury classed as offences affecting the human body, out of them
Sections 299 to 302 deal with offences of culpable homicide not amounting to murder
and murder. Under the Mohamedan system there were three kinds of punishment namely
retaliation, defined punishment and discretionary punishment and the entire
administration was entrusted to Kazi, resulting in punishment being dependent upon the
notions of each Kazi. W hen the British assumed power, the need for uniform Criminal law
was felt necessary and the result of their labours is the present Penal Code. Offences
affecting life are contained in sections 299 to 311. The other offences, depending upon
the injury caused, fall under sections 312 to 376, P. C.
Classification of homicide.— "The term homicide is used to describe the killing of a
human being by a human being. Such a killing may be lawful or it may be unlawful and
criminal. Unlawful homicide includes murder, manslaughter, causing death by
dangerous driving, killing in pursuance of a suicide pact, and infanticide" '. Homicide is
the killing of human being by a human being. Homicide may be lawful or unlawful.
Lawful homicide may again be classified under the heads: (a) excusable homicide, and
(b) justifiable homicide; and unlawful homicide may be classified as.' (1) culpable
homicide not amounting to murder, (2) murder, (3) suicide, and (4) homicide by rash
and negligent acts not culpable. A ll offences affecting human body are contained in 82
sections falling broadly into seven divisions namely.'
1. Culpable homicide, murder and allied. 299-311=13 Sections.
2. Miscarriage, infanticide, etc.,' 312-318=7 Sections
3. Grievous hurt, etc..' 319-338=20 Sections.
4. Illegal restrains and wrongful confinement.' 349-358=10 Sections.
5. A ssault, criminal force etc.. 349-358=10 Sections.
6. Kidnapping abductions, etc..' 359-374=16 Sections.
7. Rape and unnatural offences: 375-377=3 Sections.
"Killing of a human being brings to an end the, life of a human being as defined in
Fitzgames Stephens in his digest as causing the death of a human being by an act or
omission but for which the person killed would not have died, when he died, and which is
directly and immediately connected with his death. Under the Penal Code sees. 45 and
46 define 'life' and 'death'. Every killing of a human being is not criminal. Homicide
may be lawful or unlawful. Lawful homicide may be justifiable as falling under Secs. 76,
79, 81, 100 to 103 or excusable as falling under Secs. 80, 82 to 85, 87, 88, 92. Unlawful
homicide (Sec. 300) and Manslaughter or culpable homicide not amounting to a murder
Sec. 299, 304-A , 305 and 306 of the Code.
750 Penal Code Sec. 299-300

Of Offences affecting Life

Section 299
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 by such act to cause
death, commits the offence of culpable homicide.
Illustrations
(a) 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. A has committed the offence of culpable
homicide.
(b) A knows Z to be behind a hush. 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 and kills Z
Here B may be guilty of no offence, but A has committed the offence of culpable
homicide.
(c) .A , by shooting at a fowl with intent to kill and steal it, kills B, who is behind a
bush, A not knowing that he was there. Here although A was doing an unlawful act, he
was not kuilly of culpable homicide, as he did not intend to kill B Or cause death by
doing an act that he knew was likely to cause death.
Explanation 1.— 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.
Explanation 2.—Where 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 skillful treatment the death might have been prevented.
Explanation 3.—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.
Cases
1. For cases under this section see under section 300 below.

Section 300
300. Murder.—Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of causing
death, or— -
2ndly.— If it is done with tE 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, or-
Sec. 300 Of Offences affecting the Human Body 751

3rdly.— 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 course of nature
to cause death, or-
, 4thly.— 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 f6f incurring the risk of cusing death
or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. • Z dies in consequence. A commits
murder.
(b) 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 Qf a person in a sound state of health. But if,
A , not knowing that Zis labouring under any disease, gives him such a blow as would not
in the ordinary course of nature kill a person in a sound state of health, here A , although
he may intend to cause bodily injury, is not guilty of murder. if he did not intend to cause
death or such bodily injury as in the ordinary course of nature would cause death.
(c) 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 death.
(d) A without any excuse fires a loaded cannon 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.
When culpable homicide is not murder.—Exception 1.—Culpable homicide is
not 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 subjet to the following provisos:----
First.— That the provocation is not sought or voluiitarily provoked by the
offender as an excuse for killing or doing harm to any person.
Secondly.— 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'such public servant.
Thirdly.— That the provocation is not given by anything done in the lawful
exercise of the right of private defence.
Explanation.— W hether the provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of fact.
Illustrations
(a) A , under the influence of passion excited by a provocation given by Z,
intentionally kills Y , Zs child. This is murder, inasmuch as the provocation was not given
752 Penal Code Sec. 300

by the child, and the death of the child was not caused by accident or misfortune in doing
an act caused by the provocation.
(b) Y gives grave and sudden provocation to A . A , on this provocation fires a pistol at
I', 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 merely culpable homicide.
(c) A is lawfrlly arrested by Z, a bailiff A is excited to sudden and violent passion by
the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing
done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a
word of A 's deposition, and that A has .perfured 'himself A is moved to sudden passion by
these words, and kills Z This is murder.
(e) A attempts , to pull Z's nose. Z, in the exercise of the right of private defence, lays
hold f A to prevent him from doing so. A is moved to sudden and violeit passion in
consequence, and kills Z. This is murder, inasmuch as the provocation, was given by a
thing done in the exercise of the right of private defence.
(),? Z strikes B. B is by this provocation excited to violent rage. A , a by-stander,
intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into Bs
hand for that purpose. B kills Z with the knife. Here B may have committed only culpable
homicide, but A is guilty of murder.
Exception 2.—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
such right of defence without premeditation, and without any intention of doing more
harm than is. necessary for the purpose of such defence.
Illustration
Zattempts to horsewhip A , not in such a manner as to cause grievous hurt to A . A
draws out a pistol. 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.
Exception 3.—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 dut' as such
public servant and without ill-will towards the person whose death is caused.
Exception 4—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's having taken undue advantage or acted in a cruel or unusual
manner
Explanation.—It is immaterial in such cases which party offers the provocation or
commits the first assault.
Sec. 300 Of Offences affecting the Human Body 753

Exception 5-Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of death
with his own consent.
Illustration
A . by instigation voluntarily causes Z, a person under eighteen years of age, to
commit suicide. Here on account of Zs youth, he was incapable of giving consent to his
own death: A has therefore abetted murder.
Cases and Materials: Synopsis
Scope of the sections 299 and 300. 28. "Offender knows to be likely, to cause
1.
death "-s. 300. CL 2.
2. Culpable homicide and murder-Distinction,
29. "Sufficient In the ordinary course of nature to
3. "Whoever causes death".
. cause death "-Third clause of S. 300.
4. "Death ".
Child in mother's womb-ExpL 3 to S. 299. 30. Fourth clause of S. 300-Doing Imminently
5.
. dangerous act with reckless indifference to Its
6. Direct and distinct connection.
probable consequences.
7. Obscure cause.
31. Exceptions-General.
8. "By doing an act."
32. Exception 1.
9. 'Act' if includes illegal 'omission'.
33. Grave and sudden provocation.
10. Attack by several persons.
34. Abusive language.
11. Section 34 and 300.
35. Infidelity of wife or mistress.
12. Sections 149 and 300.
36. Suspicion of unchastity.
13. Sections 35 and 300.
37. Misconduct of female relation other than wife.
14. This section and S. 396.
38. Pangs of jealousy.
15. Abetment and S. 300.
39. Provocation grave but not sudden.
16. "With the intention of causing death'
40. Provocation sudden but not grave.
17. Intention and knowledge.
41. Test of provocation
18. Act intended against, one causing death of
42. Burden of proof of provocation.
another.
causing such bodily 43. Provocation sought-Proviso I to Exception
19. "With the intention of
injury as is likely to cause death. . .
44. Loss of self-control by self-induced
20. Divine influence.
intoxication.
21. Insanity,
45. Provocation by lawful act-Proviso 2.:
22. Motive not essential for liability.
46. Provocation by public servant-Proviso 2.
23. Nature of weapon and intention.
47. Provocation by act done in exercise of right of
24. Bodily injury to person labouring under
. private defence-Proviso 3.
disorder-Explanation i to S. 299.
of provocation one of fact-
25. "Or with the knowledge that he is likely by 48. Question
Explanation to Exception 1.
such act to cause death".
49. Exception 2-Excessive exercise of right of
26. Absence of knowledge and intent.
private defence.
2.. Second clause of S. 300-Explanation .i to S.
50. Goad faith. . .
299.
754 Penal Code Sec. 300

51. "Exceeding the powers given to him by 77. Examination of the accused under Section 313
law". of the Criminal P.C.
52. Exercise of right of private defence must be 78. Presumption from possession of property of
without premeditation. deceased.
53. "W ithout any intention of doing more harm 79. Sufficiency of evidence.
than is necessary for such defence". 80. Value of evidence.
54. Exception 3-Exercise of lawful powers- 81. Statement of oath.
Excess of
.82. Circumstantial evidence.
55. Killing under officer's order.
83. Injuries on the accused
56. Killing under threat of others.
84. Time of death.
57. Exception 4. -
85. Absconding of accused.
58. "Sudden fight'
86. Dying declaration.
59. "Fight".
87. Murder by poisoning.
60. Exception 4 applies only if the culpable
88. Drunkenness.
homicide Is done without premeditation.
89. Act done to person believed to be dead.
61. "Sudden quarrel'
90. Practice and procedure. -
62. "W ithout taking undue advantage".
91. Bail.
63. "A cting in a cruel or unusual manner"
92. Duly and Powers of Court in undefended
64. Exception S.
capital cases.
65. Burden of Proof.
93. Appointment of amicus curiae.
66, A libi.
94. Court's duty generally in capita! cases.
67. Appreciation of evidence.
95. Corpus delicti.
68.. Benefit of doubt.
96. Framing of charge.
69.. Confession.
97. Charge should be explained to the 'accused
70. Evidence and proof of poisoning
98. Charge for murder-conviction for hurt or
71. Evidence, of partisan witnesses who are
grievous hurt or for other offence.
relatives of deceased or prejudiced or
99. Several charges-Judge's duty.
inimical.
100. Charge or murder-Conviction under S. 194
72. Medical evidence.
or s. 20/.
73. Jdentiflcatjo, of dead body to the doctor who
ioi.- charges for murder and kidnapping.
held the post-mortem examination.
102. charge under S. 302134-Conviction under
74. Expert evidence.
S.302.
75. Evidence, of approver.
103. Charge under S. 302134-Conviction under
76. Evidence of accomplice. S. 3021149.
1. Scope of the sections 299 and 300.-(1) The section 299 defines culpable homicide.
Homicide is the killing of human being by a human being. It is either lawful or unlawful. Lawful.
homicide can be divided into two classes: (I) Excusable homicide: This class includes the following
cases as mentioned in sections 80, '82, 83. 84, 85, 86, 87, 88 and 92 of the Penal Code: and (ii)
Justifiable homicide: This class includes cases where the death is caused' and come under the
provisions of sections 76, 77, 78, 79, 81, 100 and 103. Unlawful homicide may be classified as: (I)
Culpable homicide not arnounti'ng to murder. (ii) Murder,' (iii) Suicide, and (iv) Homicide by rash and
negligent acts not culpable. To come within the definition of culpable homicide under section 299, the
Sec. 300 Of Offences affecting the Human Body 755

act of the accused should cause death, "Death" means the death of a human being. 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 the child has been brought forth, though the child may
not have breathed or been completely born. The death should be caused: (a) with the intention of
causing death, or (b) with the intention of causing such bodily injury or is likely to cause death, or (c)
with the knowledge that the act is likely to cause death. The question when a person can be said to
cause death by his act to be answered in the light of Explanations I and 2 of section 299, Penal Code.
The simpler case should be where death results directly from the act itself. "When death results from
consequences naturally or naturally flowing from that act, then also there need be no hesitancy in
saying that the act caused death (A IR 1967 Mad 205). To constitute culpable homicide there must be
knowledge that the act is likely to cause death. Knowledge implies consciousness, a mental act. a
condition of the mind which is incapable of direct proof. The word "likely" means probably (AIR 1966
SC 148). Section 299 is divided into three parts. The first part refers to the act by which the death is
caused by being done with the intention of causing death. That part corresponds to the first part of
section 300. The second part of section 299 speaks of the intention to cause such bodily injury as is
likely to cause death. This has corresponding provisions in clauses. "Secondly" and "Thirdly" of
section 300 of the Penal Code. Section 304, Part I covers cases which, by reason of the exceptions
under section 300 are taken out of the purview of clauses (1), (2) and (3) of section 300, but otherwise
would fall within it and also cases which fall within the second part of section 299 but not within
section 300. clauses (2) and (3). The third part of section 299 corresponds to clause 'Fourthly' of
section 300. Section 304, Part II, Penal Code and section 304B of the Penal code covers those cases
which fall within the third part of section 299 but do not fall within the fourth clause of section 300
Though there is difference between the second and third clauses of section 299, Penal Code namely,
'the intention to cause death' and the intention of causing such bodily injury as is likely to cause
death; it is only one of degree. The former requires a particular intent The latter is satisfied with
knowledge only. 'Intention' is the state of mind of a person which reference to certain consequences
which result from his desired movements or omissions. An act is said to be intentional which it is
done with a desire that certain consequences shall follow from a person's physical acts or omissions.
Intention thus is a subjective consideration. Where consequences are substantially certain or inevitable,
no difficulty arises because one can then deem a consequence to be intended though not desired because
the court must credit every sane man with the knowledge that if the result was inevitable, he must have
foreseen it (1963 CrLJ 363). In a case reported in (1977 CrLJ 436 SC) their Lordships held "the
distinction between culpable homicide (section 299) and murder (section 300) has always to be
carefully borne in mind while dealing with a charge under section 302" Under the category of unlawful
homicides fall both cases of culpable homicides amounting to murder and those not amounting to
murder. Culpable homicide is not murder when the case is brought within five Exceptions to section
300, Penal Code. But even though none of the five Exceptions are pleaded or prima facie established on
the evidence on record, the prosecution must still be required under the law to bring the case under any
of the four clauses of section 300, Penal Code to sustain the charge of murder. If the prosecution fails to
discharge this omission in establishing any one of four clauses of section 300, the charge of murder
would not be made out and the case may be one of culpable homicide not amounting to murder as
described under section 299, Penal Code. To decide whether it is a case of murder or culpable
homicide not amounting to murder, degree of knowledge is to be looked into. An intentional killing is
always murder unless comes within one of the special Exceptions in section 300. If an Exception
756 Penal Code Sec. 300

applies, it is culpable homicide not amounting to murder (A IR 1966 Sc 148). The manner of causing
the injuries as disposed by the prosecution witness, the nature of the inquires caused, the part of the
body where they were caused, the weapon used by the accused in the commission of the offence and his
conduct are -relevant factors in considering whether the offence committed is one of murder or culpable
homicide nbt amounting to murder (1967 CrLJ 184 FB).The word "act" in all the clauses of section
299 and section 300 denotes not only a single act but also a series of acts taken as a single act. When a
number of persons participate in the commission of criminal act the responsibility may be individual,
that is to say, that each person may be guilty of a different offence or all of them may be liable for the
total result produced. This depends on the intention and knowledge of the participants. The subject is
covered by Sections 34,35 and 38 of the Penal Code (AIR 1966 SC 148).
(2) The ingredients of section 99 are: (a) the death of the person in question; (b) such death was
caused by the act of the accused (c) the accused intended by such act to cause death, or he intended by
such act to cause bodily injury as was likely to cause death.
(3) The expression. "likely to cause death" within the meaning of clause (b) of sec. 299—Murder
and Culpable Homicide—Analysis—Distinction between the two offences—Provocation—When an act
does not constitute , murder but constitutes culpable homicide not amounting to murder—Appellate
Division examines whether the High Court Division maintained the conviction of the two accused
appellants for murder on correct appreciation of fact and proper application of law relating to murder and
culpable homicide not amounting to murder. On 22-5-1980 deceased M was practising bicycle with
his friend. P.W. 3A on the bank of a river. At that time his another friend, namely, appellant R went
there. M asked R to pay TIc. 2/- which was due from him on account of cost of a picnic. R told M that
the money would not be paid by him but would be paid by H his another friend, whereupon M passed
the remark, "if you are unable to pay Tk. 2/- why did you join the picnic, you Chotolak'. At this B
left the place saying that he would "show him" meaning that he would give a lesson and within a few
minutes he came back, accompanied by H who carried a sized Sundari Wood in hand. In the
meantime, M and P.W. 3 A were taking bath in their river. H called M to get up from the river, and
when he got up, H asked him why he had called him "Chotolak". But H. ignoring the explanation of
M that the "remark" was not meant for him, at once struck M on his head with the sized Sundari
Wood, as a result of which, M fell down senseless. He was ultimately brought to Khulna Sadar
Hospital where after 3 days in the mid night following 25-5-80, he succumbed to the injury. In due
course both H&R where prosecuted, the former for committing the murder of M and the latter for its
abetment. The trial Court on consideration of the evidence of 12 witnesses including the Medical
Officer who held post mortem examination on the dead body of M held H guilty U/s. 302 and R guilty
u/s 302/109 of the Penal Code, convicted them accordingly and sentenced them to death. The
Additional Sessions Judge made a Reference u/s. 374 of the criminal Procedure Code for confirmation
of the sentence of death; the condemned prisoners also filed a Criminal Appeal challenging their
conviction and sentence. The High Court Division at Jessore confirmed the conviction of the appellants
but bommuted their sentence to transportation for life:
Observed:— (i) In the instant case, death resulted from the fracture of the frontal and parietal, bones
caused by a single blow dealt by appellant H.
(ii) The trial Court did not refer to the law of definite murder and culpable homicide and marking
the distinction between them but simply observed that the accused came with the sized wood "with a
determination to kill the victim". The High Court Division took up the first question whether the act
Sec. 300 Of Offences affecting the Human Body 757

of killing fell into Exception No I —That is whether appellant H was deprived of his power of self-
control by any grave and sudden provocation and held that there was no such provocation. There after,
High court Division considered the nature of the injury and the weapon used, and held that the act of
causing death was doie with intention of causing death. In support of this view High Court referred to
the 'sized wood' which was 2 cubit long and 5 inches in breadth" and observed: "This sized wood 2
cubit long and 5 inches in depth is a weapon which was sufficient tL, cause death if a blow is inflicted
by it on the head".
Held-^ (i) Description of the sized wood as given by the High court Division hardly carries any
meaning for a piece of wood has got breadth also besides length and depth. Breadth of the wood is
taking here. Evidence show that the sized wood was a plank (1). A plank is generally 0.5" to I"
thick and if it is taken that the plank in question was 1" thick, then its size was length-2 cubits,
breadth-5 inches and thickness of"depth"-1 inch. Still a piece of wood of such a nature is not as deadly
as say a daggar or a firearm from which intention to kill can be easily inferred, As to the nature of the
injury caused therewith, though the parietal and frontal bones were fractured such a fracture is not very
much likely to cause death. This injury is 'likely' to result in death. The abrupt finding of the High
Court Division that the act of this offender was done with the intention of causing death is not
supported by the fact of the-case. The reasoning of the High Court division does not appear to us to be
sound and logical. What weighing is that the injury in question was caused with the intention of
causing such bodily injury as is "likely to cause death" within the meaning of Clause (b) of Sec. 299
and as such the act of causing the death is culpable homicide not amounting to murder.
(ii) In view of our finding above the question whether the objectionable 'remark' of the victim boy
calling the accused "Chotolok" provided any "grave and sudden provocation" and whether the accused
was deprived of his power of self-control by such provocation, need not be considered. But suffice it to
say that "provocation" contemplated in Exception No.] shall be not only be grave' but also it shall be
sudden and if considerable time intervened in which the passion aroused by the provocation subsides,
then there is hardly any scope for deprivation of power of self control. In this case the provocation given
by the remark "Chotolok" was not directed at the principal assailant H. Secondly, a considerable time
elapsed between the remark and the assault. Be that as it may. in 'iew of the nature of the act of
causing death we are clearly of the view that this act does not constitute murder but constitutes
'culpable homicide not amounting to murder' punishable under Part-I of Sec. 304 of the Penal Code.
Khan A bdul HaJlz vs. The State. BCR 1987 A d 214.
(4) When death is probable it is culpable homicide and when-death is most probable it is murder.
Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain
guilty intention. State, represented by the Solicitor to the Government of the People's Republic of
Bangladesh Vs. A shraf A ll and others 46 DLR (A D) 241.
(5) Injuries of the deceased whether injuries of such nature as to constitute 'murder'—The two
injuries in the occipital region are the cause of death as the expert evidence shows, while the other
injuries are simple in nature—It is difficult to hold that these injuries are simple in nature and that
these injuries were caused with the intention to cause the death nor such injuries appear to be sufficient
to cause death in the ordinary course of nature. But these injuries though caused intentionally, are of
such a nature that these are "likely to cause death'. This Criminal act of causing the death do not fall
into any of the four categories of criminal acts which constitute "Murder" as described in Sec. 300.
This Criminal act was done with the intention of causing such injuries as are likely to cause death, as
758 Penal Code Sec. 300

described in s. 299—It constitutes culpable homicide not amounting to murder, punishable u/s. 304-
Part I. The State Vs. Montu & ors. (1992)12 BLD (A D) (1992) 44 DLR (A D) 287.
(6) In the cse of culpable homicide the intention or knowledge is not so positive or definite. The
injury caused may or may not cause the death of the victim. To find that the offender is guilty of
murder, it must be held that his case falls within any of the four clauses of section 300, otherwise he
will be guilty of culpable homicide not amounting to murder. Facts of the case show that death was
caused without premeditation. Bandez A li Vs. State 40 DLR (A D) 200..
(7) Mere killing of a person or mere causing of a person's death is not murder or a culpable
homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of
cases have been described in section 299 as "culpable hornicid' and four classes of cases have been
described in section 300 as "murder". The essential difference between mere "culpable homicide" and
"murder" is the degree of probability of causing death. When death is probable, it is culpable homicide
but when death is most probable, it is murder. The State Vs. A shraf A li and others, 14 BLD (A D) 127.
(8) Death of the victim by a single blow and the charge of murder does not lie, circumstance
thereof. In-the present case the prosecution did not allege enmity. No malice was suggested. The knife
blow was inflicted in The midst of a quarrel over an 'au' which could hardly furnish a motive to cause
victim's death. So, Abul Lais's act of. inflicting the fatal injury on the deceased falls within the
mischief of the third and last clause of section 299 P.C. But in view of the weapon used being only a
pen-knife it cannot be inferred from the circumstances that he knows that his act was so imminently
dangerous to cause .Rajjab Al's death. Moreover, Abul Lais inflicted the injury on Rajjab A li when he
was being dispossessed by Rajjab Ali of a portion of land on which he had grown paddy. He had thus
an excuse for inflicting the injury on Rajjab Ali which, no doubt, proved fatal. Hence he cannot be held
guilty of murder, though he is undoubtedly guilty of culpable homicide not amounting to murder and
is liable to be sentenced under the second part of section 304 P. C. Abul Lais Vs. The State, (1970) 22
DLR 419.
(9) When a culpable homicide is not murder. The first clause of section 300 is obviously relatable
to the first clause of section 299, its second and third clauses to the second clause of section 299, and
its fourth clause to the last clause of section 299. It is also evident that simply by reason -of an offence
being covered by any of the clauses of section 299 which would not doubt make it culpable homicide,
the offence will not be 'murder' unless the ingredients of one of the four clauses, of section 300 be
attracted. if the offence does not attract the ingredients of one of the four clauses of section 300 it would
not be 'murder' and will remain culpable homicide not amounting to murder. In view of the opening
words of section 300 an offence of culpable homicide will, also amount to murder if any of the five
exceptions mentioned in the section be attracted to the facts of a particular case. Makbul Hossain Vs.
The State, (1970) 22 DLR 269.
(10) Ingredients of murder and culpable homicide stated to elaborate the point. If the criminal act is
done with the intention of causing death then it is murder clear and simple. In all other cases of
culpable homicide it is the degree of probability of death from certain injuries which determine whether
the injuries constitute murder or culpable homicide not amounting to murder and, if death is the likely
result of the injuries it is culpable homicide not amounting to murder; and if death is the most likely
result then it is murder. Appellant cannot be convicted and sentenced under section 302 as the alleged
offence comes within the ambit of Exceptions I and 4. Sect i on 300 of the Penal Code. It also appears
that the accused had taken no undue advantage in the matter. 41 DLR 37.
Sec. 300 Of Offences affecting the Human Body 759

(II) A proposition of universal application cannot possibly be that the same evidence which has
been adducOd in support of an unsuccessful defence of self-defence can never be relied upon in whole or'
in part as affording provoction sufficient to reduce the crime from murder to manslaughter. Conduct
which cannot justify may well execute. 10 DLR 174.
(1 .2) Culpable homicide which is not murder is man slaughter. If it is established that the injury
resposible for causing the death was sufficient in the ordinary course of nature the offence would fall
under the definition of murder and if the same was likely to cause death, offence would be one of man
slaughter punishable under Para I of section 304, Penal Code. 1980 PCrLJ 489.
(13).The law of homicide is contained in section 299 and 300 of the Penal Code. First part of
section 300, Penal code deals with the first two clauses of section 299 while second part deals with the
third clause (1968 CrLJ 643). If the case falls under section 300, then it is murder unle9s one of the
exceptions to the section becomes applicable. Broadly speaking, the offence is culpable homicide if the
bodily injury intended to be inflicted is likely to cause death. It will be 'murder if such injury is
sufficient in the ordinary course of nature to cause death, When the question of intention arises such
intention has to be gathered from what he does. An offence of murder may amount to culpable homicide
and yet may not amount to murder. The difference between the two offences of culpable homicide and
murder is not only fine bøt also real. Culpable homicide is a generic term. The offence will amount to
murder if the conditions laid down in section 300 are satisfied. If the offence comes under section 299
or under one or other Exceptions to section 300; it will be culpable homicide not amounting to
murder. Murder is unlawfully causing the death of andther with malice. Death means .death of a human
being (section 46). It will be murder whether death is caused of a grown up person or a newly born
child. Where the intention to kill is present, the act amounts to murder. Where such an intention is
absent the act amounts to culpable homicide not amounting to murder. To determine what the
intention of the offender is, each must be decided on its own merits. Intention can be rarely proved by
direct evidence. When facts are so intertwined, determining whether it is culpable homicide and then
finding out separately whether it amounts to murder may not be convenient. When question of
intention arises, it must be borne in mind that person is presumed to intend the nature and probable
'consequences of his act until the contrary is proved. It is, therefore, necessary in order to arrive at a
decision as to offender's intention to inquire what the natural and probable consequences of his acts
would b, intention has to be inferred from what he does. But there are cases in which death is caused
and the intention which can safely be imputed to the offender is less grave. The degree of gui It depends
upon intention and the intention to be inferred must be gathered from the facts proved.. Proof of
knowledge.throws light upon his intention. There need be no proof of knowledge that the bodily injury.
intended was likely to cause death. Before deciding that a cause of culpable homicide amounts to
murder there in be proof of intention sufficient to bring it under ction 300 where the injury
deliberately inflicted is more than merely likely to cause death but sufficient in the ordinary course of
nature to cause death the higher degree of guilt is presumed (1960 ' ,rLJ 303). When death is caused,
by what the medical books often call remote or indirect causes, it might be difficult to establish the
mens rea necessary for the offence of murder (1958 CrLJ 1021). The accused did not intend to cause the
death of the deceased and therefore Cl(l) of section 300, Penal Code is inapplicable. It may be added
that intention also includes foresight of certainty. A consequence is deemed to be intended though it is
not desired when it is foreseen as substantially certain A IR 1969 Goa 116. Section 300, C (2) deals
generally with cases where the intention is to kill the subject of the assault even though the injury is
not fatal in the ordinary course of nature but is fatal in case of the particular victim by reason of a•
760 Penal Code Sec. 300

physical infirmity, such as an enlarged spleen, known to the culprit to be enlarged, or the emaciated
condition of the victim known as such to the culprit. Repeated blows or even a single blow forcibly
delivered with a heavy weapon would make the offence a murder, but where a sudden blow is struck
with a stick that is not heavy, the offence would be culpable homicide not amounting to murder (39
CrLJ 1979). A person who administers a well known poison like arsenic to another must be taken to
- know that his act is so imminently dangerous that it must in all probability cause death or such bodily
injury as is likely to cause death, and if death ensures, he is guilty of murder notwithstanding that his
intention may not have been to cause death. No doubt a man is presumed to intend the natural and
inevitable consequences of his own act, but the presumption of intention must depend upon the facts of
each particular case and 'knowledge' as used in section 300(2), Penal Code is a word which imports a
certainty and not merely a probability (29 CrLJ 17). Attack on an old man of 75 causing many injuries
resulting in death is a murder. The ingredients of section 300, clause (2) are, there is first the intention
to cause bodily harm and next, there is the subjective knowledge that death will be the likely
consequence of the intended injury. The mental attitude is made of two elements, (a) causing an
intentional injury, and (b) which injury the offender has the foresight to know would cause death (AIR
1966 SC 1874). The"third clause speaks of an intention to cause bodily injury which is sufficient in
the ordir)ary course of nature to cause death. Emphasis here is on the sufficiency of injury to cause
death. Sufficiency is the high probability of death depending upon the nature of weapon used or the part
of the body where the injury is inflicted or both. If the probability of death is very great, the
requirements of clause (3) are satisfied and the fact that a particular individual may by virtue of his
having secured specially skilled treatment or being in possession of a particularly strong constitution
has survived an injury which would prove fatal to the majority of persons subjected to it, it's not
enough to prove that such an injury is not sufficient in the ordinary course of nature to cause death (45
CrU 729); The nature of the material object used and the force used are useful guides in arriving at a
decision as to whether the intention and knowledge required by this section can be attributed to the
accused (39 CrLJ 979). The prosecution must prove the following before it can bring a case under C
• (3) of this section:*(]) It must be established, ' quite objectively, that a bodily injury is present; (2) The
nature of the injury must be proved; these are purely objective investigations; (3) It must be proved
that there was an intention to inflict that particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kinds of injury was intended (4) It must be proved that
the injury of the type just described made up of the three elements set out above was sufficient to cause
death in the ordinary course of nature (A IR 1966 SC 1874). The third clause discards the test of
subjective knowledge. This part of the inquiry is purely objective and inferential and has nothing to do
with the intention of the offender (1966 CrLJ 361). Where the accused caused the death of another
person by giving him unmerciful thrashing with sticks, smashing both bones of each forearm, the right
elbow and right knee-cap and the occipital area on the right temporal area of the skull, it was held that
he was guilty of murder (20 CrLJ 157). Intoxication is no excuse for a man throttling to death a
weaker man who is intoxicated. Voluntary drunkenness, though it does not palliate any offence, may be
taken into account as throwing light on the question of intention. C (3) of section 300 differs from
section 299(2) in a matter of degree only (A IR 1929 Lah 157). Question of intention to cause death is
immaterial.- Similarly, proof of motive or ill-will is unnecessary. Where a blow is given by reason of
which death ensues, it may be necessary to prove whether it was necessarily fatal or, in the language of
the Code, sufficient in the ordinary course of nature to cause death. The 4th clause cannot be applied
until it is clear that clauses 1, 2 and 3 of the section each and all of them fail to suit the circumstances,
Sec. 300 Of Offences affecting the Human Body 76.1
It does not apply to a case in which death has been caused by an act done with the intention of causing
bodily injury to a particular person. In such a case the question whether the offence is murder or not
must be decided by reference to the first three clauses of the section and the Exceptions (5 CrL.J 306).
The main ingredient of this clause is that the person committing the act in question should have had
the knowledge that the act done is so imminently dangerous that it must in all probability cause the
death or such bodily injury likely to cause death and that the act was committed without any excuse for
causing death or such bodily injury as is likely to cause death. The explosion of a bomb in a recorded
room must have been known to the accused—an exceptionally intelligent man to cause the death of
numerous persons, and the fact that the accused had no intention of killing any particular individual
does not take the case outside CI(4) (31 CrLJ 290). Sending hand grenade bombs in parcel would
show the knowledge that in all probability it was likely to cause death. It is unusual to expect death in
a case where a person is cleaning a loaded revolver or a gun without a safety catch. In any case under
C (4), the degree of probability or likelihood or the act resulting in fatal harm, is of the highest level.
The distinction bet!ween section 299(3) and section 300(4) is a matter of degree only. If the act must in.
all probability cause death or such bodily injury as is likely to cause death, the offence will fall under
section 300(4) and if the act is likely to cause death, the offence will fall under section 299(3),
knowledge being common to both sub-clauses although knowledge required in section 300(4) is of a
higher degree of probability (30 CrL.J. 141). A person who plunges his knife into the neck of another
must be deemed to know that the injury he will cause by such act, is likely to cause death and therefore
attract CI(4) (A IR 1954 Mad 323). This section should be read a long with sections 85 and 88 of the
Penal Code which deal with intoxication and drunkenness as a defence or plea of mitigation of a
criminal offence. An accused will be protected only when on account of insanity he was incapable of
knowing the nature of the act, that is whether it is right or wrong, or that it was illegal. Mere absence
of motive when committing the murder cannot prove insanity (A IR 1968 Orissa 223).
The five exceptions specified in this section are special exceptions in addition. to the geieral
exception enumerated in Chapter IV. The special exceptions enumerated are—(a) Provocation (a) Right
of private defence; (c) Exercise of legal. powers; (d) Absence of premeditation and heat of passion; and
(e) Consent. The burden of proving any of the exceptions lies upon the accused (Sections 16 and 105 of
the Evidence Act) but the general burden to establish the guilt of the accused is always on the
prosecution and that never shifts. (A IR 1962 SC 605). To bring a case under Exception I to section
300 of the Penal Code the act of causing death should have been done by the offender under the
influence of some feeling depriving him of all self-control endangered by a provocation which is both
grave and sudden. There must not be time for provocation to cool down (A IR 1972 SC 502). The
question whether provocation, is grave and sudden or not is one of fact and has to be considered in the
circumstances of each case. The text of "grave and sudden" provocation under Exception 1 must be
whether a reasonable person belonging to the same class of societas the accused placed in the similar
situation, would be so provoked as to lose his self-control. It must be sudden such loss of self-control
must be shown to have b'Oeñ caused by the gravely and suddenly provocative acts of conduct to the
victim A IR 1946 A ll 262. Use of merely abusive or vulgar language is not a grave provocation (25
CrLJ 298). Return challenge by deceased coached in strong indecent language is not sudden and grave
provocation. A provocation however grave which is not sudden but is a chronic one will not satisfy the
requirements of this Exception. Where the provocation is sought by the accused, it cannot furnish any
2 defence against the charge of murder. Where the iiterval between the provocation and the assault is too
long thç benefit will not be available. The retaliation must be provocation or manner of retaliation
762 Penal Code Sec. 300
should not be grossly disproportionate to the offence given. The accused wife committed adultery and
persisted in living in adultery and abused her husband. Held, the killing fell under Exception 1(14
CrLf 208). Mere attempt to commit unnatural offence, mere verbal abuse would not amount to grave
and sudden provocation (A IR 1962 Gui 39). Exception 2 provides for the case of a person who exceeds.
the right of private defence. The law in this regard honours the human instinct of self-preservation
which is a natural right. The first requirement of this Exception is that the accused must have had a
right of private defence of body or of property and he must have exercised it. Four cardinal conditions
must have existed before the taking of the life of a peron .is justified on the plea of self-defence: Firstly,
the accused must be free from fault in bringing about the encounter; Secondly, there must be present an
impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an
existing necessity; Thirdly there must be no safe or reasonable mode of excape by retreat; and Fourthly,
there must have been a necessity for taking life (1959 CrLf 901). The right commences as soon as a
reasonable apprehension of danger arises and ceases when- the apprehension ceases or on the offence
being committed. If, however, the person acts in good faith, without premeditation of death and
without any intention of doing more harm than was necessary then the offence will be culpable
homicide but all these conditions must be present where the accused had a right of private defence.
There is no right of private defence when both parties sought to enforce their right to a piece of land and
both go armed to enforce there right determined to retrain possession. Section 300, Exception 2 does
not apply to claim the benefit of Exception 2. The accused must show that they had no intention of
doing more harm than was necessary. To hold the Exception 2 to section 300 does not apply, it is not
sufficient that more harm was done than was necessary for the purpose of private defence. Even when the
right of private defence is exceeded and even when more harm was done than was necessary for the
purpose of private defence, it is important to note that these two provisions have reference to that act of
causing death which amounts to culpable homicide. There is, of course, no occasion for applying this
clause to cases where the death is otherwise justifiable, as for example, under section 103. It is only
when the right conferred by sections 96 to 105, PC is exceeded that there is room for its operation. In
view of the facts that (a) the accused was in actual effective possession of the disputed land and the
crops standing therein., (b) the deceased persons, were not unarmed, (c) the deceased party went to the
field with a determination to remove the crop from the possessbn and control of the accused, ()the
occurrence was not a one-sided affair, there was some fight in the course of which blows were exchanged
and both sides received injuries inflicted by the accused party on the deceased person both in severity
and number were far greater than those received by the accused party. It was held that though the
accused had a right to defend their possession and property, the force used by them was recklessly
excessive and as such they were rightly not given benefit of Exception 2 to section 300. Where peaceful
citizens were attacked by a body of men armed with deadly weapons and the citizens in their turn used
similar weapons and one of the aggressors died, it cannot be said that the right of private defence was
exceeded (34 CrLf 765). There is .a right to turn trespassers out by use of some force (A IR 1979 SC
44). Exception 3 protects a public servant, or a person aiding a publid servant acting for the
advancement of public justice, if either of them exceed the powers given io them by law and cause
death. It gives protection so long as the public servant acts in good faith; bit if his act is illegal and
unauthorised by law, or if he glaringly exceeds the powers given to him by law, the exception will not
protect him. The only superior to be obeyed is the law and no superior is to be obeyed who dares to
set himself above the law. To invoke Exception 4 it must be established that the accused committed
the offence (a) without premeditation, (b) in a sudden fight, (c) in the hetof passion upon a sudden
Sec. 300 Of Offences affecting the Human Body - 763

quarrel and (d) without offender's having taken undue advantage or acted in a cruel or unusual manner
(A IR 1956 SC 99). The term "fight" occurring in Exception 4 to Section 300 is not defined in the
Code. It takes two to make a fight. It is not necessary that weapon should be used in a fight. An affray
can be a fight even if only one party in the fight is successful in leading a blow on his opponent. In
order to constitute fight it is necessary that blows should be exchanged even if they do not all find their
target. A fight is a combat between two or more persons, whether with or without weapons. The word
'sudden' implies that the fight should not have been prearranged. If, on any sudden quarrel, blows pass
without any intention to kill or injure another materially and in the course of the scuffle, after the
parties are heard by the context, one kills the other with a deadly weapon, it is culpable homicide and
not murder. The premeditation may be proved by direct or circumstantial evidence. To attract
Exception 4 it must be shown that the offender did not take undue advantage or act in cruel or unusual
manner. Where in a domestic quarrel between the son-in-law and father a third party asked to stop.the
fight and that he will settle the dispute: and the accused thereupon stabbed the unarmed third party
causing his death, it was held that this Exception will not apply (A IR 1956 SC 99). If one of the
accused persons brings himself within Exception 4, there is no room left for the application of section
34 against his co-accused (41 CrLf 383). Exception 5 should be read along with sections 87 or 93 of
the Penal Code. The c6nsent by the deceased under Exception 5 must be unconditional and without
reservation. It must further be unequivocal consent which does not involve the choice of alternatives to
which the person taking the life more or less has driven the person. The accused was very much
disappointed by his third successive failure in the annual examination for the twelfth class and decided
to take his life. He told his literate wife about his decision and she asked him to kill her first and then
kill himself. Accordingly, the accused killed his wife but was arrested .before he could kill himself. It
was held that the deceased did not gie her consent under fear of injury or under a misconception of a
fact. Therefore the accused was guilty under section 304, first part and not under section 302(AIR 1956
Pat 190).
(14) Section 300—As the deceased Sohag did not give any provocation to condemned prisoner
Firoj when admittedly there was no altercation or quarrel between them and when thedeceased's two
children and other deceased persons were unarmed as evidenced the condemned prisoner took an
advantage over them and in such circumstances the case does not come within the purview of exception
one or exception four, section 300 of the Code. State Vs. Firoj Maih and another (Criminal) 5 BLC 1.
(15) The alleged provocation cannot be treated as grave and sudden as it had taken place 12 hours
before the murder which does not attract the first Exception to section 300 of the Code and the actions
taken by the deceased against the condemned convict come within the scope of second proviso to the
first Exception of section 30 of the Penal Code. State vs. Siddiqur Rahman (Criminal) 2 BLC 145.
(16) Murder case—Incident in broad day light—Consistent direct evidence of the complainant and
nine other eye-witnesses against the accused appellant who struck the victim with a knife and after
continuous assault for three hours, giving finishing touch with an axe—victim's death resulted from
the injuries including bone fracture—The act of killing whether constituted murder—Inflicting the
injuries accused appellant acted in very cruel and unusual manner which brings his action within the
ambit of Clause (4) of Sec. 300—Accused appellant rightly convicted for murder—High Court's
decision upheld.
Observed:— The incident took place during broad day light; the deceased was tied with a rope and
hung by the legs from a tree at mid-day and was kept in hanging condition for 3 hours during which he
764 Penal Code Sec. 300

was subjected to assault and torture. While some other persons namely the acquitted accused assaulted
him with lathis, the appellant struck him with a knife and that after he was brought down from the tree
he was given the finishing touch, with an axe, by the appellant again. As a result of this assault with
an axe, his leg bone was fractured and according to the evidence of the Doctor P.W. I death resulted
from these injures particularly, the fracture in the leg which were ante-mortem and homicidal in nature.
The Doctor found multiple injuries on the dead body of the deceased, such as, 2 incised wounds on the
right leg, I incised wound on the right forearm, I incised wound on the nose and I incised wound on
the left leg causing fracture of the bone. It is the injury causing fracture of the bone which, according to
the medical evidence, is mainly responsible for the death. Evidence of the complainant and all other
eye-witnesses is that this injury on the leg was caused by the appellant by striking him with an axe
after he was brought down the tree in unconscious state. It is found that the fatal injury was caused at
the end of continuos assaults for three hours while the victim was hanging from the tree. In the light of
these circumstances, it is to be determined whether this act of killing constitutes murder.
Held:— Even if the contention that the appellant had neither any intention to cause the death nor
any intention to inflict bodily injury most likely to cause the death still we find that the accused had
the knowledge that the injuries he caused were so dangerous that they would in all probability, cause
the death and that inflicting these injuries he acted in a very cruel and unusual manner. This brings his
action with Clause (4) of Sec. 300 of the Penal Code, The appellant is therefore found to have been
rightly convicted for murder. Md. A yub A li Vs. The State BCR 1987 A D 66.
(17) Culpable homicide, when not murder- !--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. Md Bandez All Vs.. The
• State. 1986 BLD (A D) 5.
(18) Culpable homicide—Conviction for murder—When it amounts to murder even if it is held
that fatal injury was caused in sudden quarrel and without any premeditation yet it cannot be held that
the offender did not act in cruel manner or did not take advantage over the deceased—There was no
resistance from the deceased or anybody from his side—In the circumstances, there is no, ground to
interfere with the conviction for murder. Shahidulla Shahid & ors. V s. State 1985 BLD (A D) 10.
(19) Exception 1:—The expression "Provocation"—Explained—Victim's remarks calling the
accused "Chotolok"—Whether "provided any provocation and whether the accused was deprived of his
power of self control by such provocation". Suffice it to say that "provocation" contemplated in
Exception No. I shall not only be 'grave' but also it shall be sudden, and if considerable time
• intervenes in which the passion aroused by the provocation subsides then there is hardly any scope for
deprivation of power of self-control. In this case, the provocation given by the remark "Chotolok" was
not directed at the principal assailant, H. Secondly, a considerable time elapsed between' the remark and
the assault. Be that as it may, in view of the nature of the act of causing death, we are clearly of the
view that this act does not constitute murder but constitutes culpable homicide not amounting to
murder' punishable under Part I of Sec. 304 of the Penal Code. Khan A bdul Hafiz & anr. V s. the
State 5 BSCD 40.
(20) Exception 2:—Private Defence—In a case covered by Exception No. 2 'intention' is there,
but the intention is not to do "more harm than is necessary for the purpose of private defence". Abdul
K/ia/ed Biswas & anr. Vs. The State 5 BSCD 40.
• (21) Per Shahabuddin Ahmed. J:—The prosecution relied upon the suo motu FIR lodged by the
Investigating Officer in which a reference was made to the effect that had received a report of post
Sec. 300 Of Offences affecting the Human Body 765
mortem examination which antimortem and homicidal in nature—But the FIR itself is inadmissible in
that neither the person who lodged and recorded it was examined as a witness nor any other person
was examined to say that he had seen the FIR being written by the Investigating Officer or he knew the
1.0's handwriting—In the circumstances, it was highly improper on the bar of the trial Court to hold
death of the victim was "murder" or calpable homicide as defined in sec. 300 and 299 of the Penal
Code. Keshab Chandra Mistry and ors. Vs. The State. 1985 BLD (A D) 301=BCR 1985 (A D) 298.
(22) Acquittal of the accused-respondents of a charge of murder On the ground of insufficiency of
evidence and improbability of the prosecution—The victim died from the kick of the principal; accused
who was charged with murder but the essential ingredients of murder, such as guilty intention, or
guilty knowledge within the meaning of Sec. 300 are lacking—At best, the act of the accused in. giving
the fatal kick constitutes culpable homicide not-amounting to murder punishable u/s. 304 Part H, PC
in that the offender knew that the kick of the chest was likely to cause death of the victim—The
principal accused since guilty u/s 304, Part 11, PC the appeal against his acquittal set aide sentencing
him to R.I. for 4 years and 6 months with fine. A bdul Hakim Vs. Mokies Mridh,a and ors. 1986 BLD
(AD) 178.
(23) Prosecution is not bound to prove the motive of murder. Gour Chandra Guha Vs. The State.
5 BSCD 40.
(24) Culpable homicide—All murders are culpable homicides but all culpable homicides are not
murder. Excepting the General Exceptions attached to the definition of murder an act committed
homicide amounting to murder—If the criminal act is done with the intention of causing death then it
is murder clear and simple—If death is the likely result of the injuries it is culpable homicide not
amounting to murder; and if death is the most likely result, then it is murder. The State Vs. Toyed A li
ors. 1987 BLD (A D) 265=1988 40 DLR (A D)6=BCR 1987 A D 312.
(25) Murder—Applicability of Exception—Delay in the death of the victim, whether brings the
case to be one under the exception—The mere fact that the victim luckily survived for two weeks on
account of treatment is no ground to put premium of the offence committed by the accused—There
having been no material on record to sustain the contention that the case is covered by Exception
homicide not amounting to murder. Md. A bdul Majid Sarker V s. The State (1988) 40 DLR. (A D)
83= 1988 BLD (AD) 71.
• (26) Culpable homicide—Culpable homicide is committed by an act not only done with the
intention of causing death but also with the knowledge that death is likely to be caused thereby. To
hurl a fala at the chest of a person is certainly an act done either with the guilty intention or with the
guilty knowledge as defined in law. Esarudin Mondal V. A bdus Sob/ian Sarker (1976) 28 DL!? 341.
(27) Death caused by a solitary stab wound with small knife when does not amount to murder.
Medical evidence describing the injury as sufficient in the ordinary course of nature to cause death does
not necessarily mean that the injury was caused with the intention or knowledge to cause death.
Solitary injury caused on the arm of the deceased by a small knife and abstention from repeating attacks
rules out accused's intention to cause death or knowledge that death would be caused. Add!. Advocate-
General, Karachi Vs. Md. Siddique (1969) 21 DLR (W P) 190.
(28) Words "bodily injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death" appearing in section 300 (Thirdly) is the amplificaton of the second ingredient of culpable
homicide given in section 299 namely "or with the intention of causing such bodily injury as likely to
cause death". Clause (Thirdly) of section 300, P.C. actually appears to be an amplification of the
766 Penal Code Sec. 300

second ingredient of culpable homicide given in section 299, P.C. A dd!. A dvocate-General, Karachi
Vs. Md. Siddique. (1969) 21 DLR (W P) 190.
(29) The evidence is that the bickering between the victim and her mother-in-law was a chronic
affair ,and it was not for the first time that the quarrels have caused the loss of self-control'so to entitle
the accused to the benefit of grave and sudden provocation. A bdullah S/who Vs, The State. (1968) 20
DLR (W P) 64.
(30) Accused seeing his uncle's wife and deceased making love lying on same bed, causing fatal
injuries resulting in the death of the victim, Held: It is a case of grave and sudden provocation. In the
facts of evidence it is not possible to avoid the conclusion that fatal injuries to the deceased were caused
by the appellant in a fit of grave and sudden provocation bringing his case under Exception I to section
300. Muhammad Sadiq Vs. State, (1966) 18 DLR (W P) 34.
(3 1) Accused, an old person of 60—Provocation by boy of 17—Exchange of abuse between
accused and boy—Accused killing boy with knife blows. Held: In oriental way of life, the authority of
age is a tangible factor in social affairs. There is a degree of provocation to the older person appearing in
such behaviour by the young boy which would naturally lead to loss of temper and even perhaps, a
resort to violence by 'c'ay of chastisement. A bdur Rahim Vs. State (1961) 13 DLR (SC)).
(32) Provocation which will make the exception applicable—Defence duty to prove the nature of
altercation. The evidence discloses that there was an altercation between the deceased and the accused
before the assault on the deceased was made and it was thereupon contended that there was a sufficient
provocation to the accused to bring his act within the Exception I to section 300, P.C. Held: The
factuin of a mere altercation cannot suffice to bring the said exception into operation. To that end it is
necessary to show the exact nature of the altercation. It is well-settled that in order to entitle one to the
protective benefit of this exception if has to be distinctly shown not only that the act was done under
the influence of some feeling which took away from the person doing it under all control over his action
but that feeling had an adequate cause. State Vs. Darajuddin Mondal 13 DLR 256.
(33) Going at night armed and with suspicion in search of sister (or wife) and finding the latter in
compromising position with a man and then killing both—Plea of grave and sudden provocation, a
valid plea. Muhammad Saleh Vs State: (1965) 17 DLR (SC) 420.
(34) Provocation—Plea of—Where evidence of provocation is present in a case, irrespective of the
fact whether the defence took notice of it or not, the Judge must direct the injury to return a verdict of
manslaughter if he finds that the killing was due to provocation. Jaseph Bullard Vs. Queen (1958) 10
DLR 174.
(35) Provocation—Provocation and act done in consequence thereof must bear reasonable
relationship. 1951 PLD (La/i) 318.
(36) Grave and sudden provocation—Accused's wife outraged by deceased—Wife escaping.and
informing her husband, a police constable—Accused going and shooting dead the assaulted-
Accused's act purely one of punishing the deceased—Accused, held guilty under section 304, P.C.
1950 PLD (Lah) 109. .
(37) Sudden quarrel—Injury on head caused with heavy hatchet—Skull fractured into twelve
pieces—Intention—Offence is murder. 1950 PLD (Lah) 90.
(38) When right of private defence extends to the causing of death of the person making the assault.
Right of such defence merely on the existence of circumstances entitling to it. A victim who is subject
Sec. 300 Of Offences affecting the Human Body 767

to an assault which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault, to the voluntary causing of death or of any other harm to the assailant. In
the case of a right of private defence even if the defence had failed to prove affirmatively that there
existed circumstances which entitled him to a right of private defence but succeeded in proving merely
the circumstances which were likely to give rise to a right of private defence, it is enough and the
accused are entitled to acquittal if they have not exceeded their right of self defence. Jalal A hmed Vs.
The State, (1969) 21 DLR 164.
(39) Taking undue advantage or acting in a cruel manner. Whether a person can be said to have
taken undue advantage or acted in a cruel manner depends upon the circumstances of each particular
case, and no general formula can be involved which may be applicable to all cases that may arise. The
principle, however, is clear that where a man being.dangerously armed fights under an unfair advantage
the killing is murder and not merely m.anslaughter, even though mutual blows pass. If in the course
of a sudden fight one party resorts to a dangerous weapon, like a knife or a dagger, the other party being
wholly unarmed, and causes moral injuries to his adversary, the offence committed is nothing but
murder. A bdul Majid Vs. Crown (1955) 7 DLR (FC) 11.
(40) Where there is nothing in the case indicating that the accused acted otherwise than as the
circumstances would render natural i.e., that under the pressure of the hopeless situation in which he
found hithself, he struck with the knife with object of relieving himself from the threat of serious injury
to himself, in a predicament of such a nature the trapped man cannot be reasonably said to have taken•
undue advantage of A bdul Majid Vs. Crown (1955) 7 DLR (FC) 11.
(4.1) The word "cruelty" as used in Exception 4 to section 300 carries its ordinary sense of the
heartless use of force to cause injury to a person who has no power of resistance. A bdul Majid Vs.
Crown (1955) 7 DLR (FC) 11. ... ..
(42) Where the eye-witnesses without exception said that immediately after the verbal quarrel the
accused and the deceased grappled with each other and then the accused struck the deceased with a
knife, the offence committed did not amount to murder, but culpable homicide not amounting to
murder being covered by Exception 4 to section 300. P.C. A bdul Majid V s. crown (1955) 7 DLR
(FC) 11. .
(43) The offence may be unpremeditated and may also have been committed in a sudden quarrel,
,but an attack by three assailants on a single-handed unarmed victim in which one of the assailant
struck the victim with a sharp-edge weapon which went right through his body and caused his death
was cruel and unusual in the circumstances of the case. 1950 PLD (Loh) 182.
(44) Ingredients which must be satisfied to attract the provisions of exception 4 of section 300
P.C. To attract the provisions of Exception 4 of section 300 P.C. it is not enough to establish that the
attack was unpremeditated -and that the act was committed in the heat ofpassion. It has no be.proved
further that the act committed was the result of "sudden fight" without the offenders "having taken
undue advantage" over the victim. Besides, it must also be proved that the offender did not act in a
cruel and unusual manner. Before an accused can pray in aid of the provisions of Exception 4 of section
300 P.C. all its ingredients must be satisfied. Ekram Hossain Vs. State (1961) 13 DLR 431.
(45) Sudden fight Sec. 300, Exception 4—"Sudden fight" must be .done to which person
responsible for causing death was a party. 1955 PLD (Lah) 356.
(46)The weapon used was a lethal one and the injury grave in nature was caused on the vital part
of the body. The act was done with the intention of causing such bodily injury intended to be inflicted
768 Penal Code sec. 300

as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1st, 2nd &
3rd clauses of section 300, Penal Code. Md. Abdul Majid Vs. State 40 DLR (AD) 83.
(47) The present case iscovered by the exceptions to the section 300 of Penal Code. From the
facts and circumstances of the case, we think that the criminal acts of the accused respondents which
resulted in the death of the victim constitute culpable homicide not amounting to murder punishable
under section 304, Part I of the Penal Code. On a consideration of the facts and circumstances of the
case, it appears that the case is covered by exception-I to section 300 of the Penal Code and
accordingly the conviction of the appellants is altered form section 302 to 304, Part I of the Penal Code
and the sentence of each of the appellants is reduced to RI for 10 years each thereunder. Momin Malitha
Vs. State 41 DLR 37.
(48) Appellant cannot be convicted and sentenced under section 302 as the alleged offence comes
within the ambit of Exceptions I and 4 section 300 of the Penal Code. From the evidence on record, it
transpires that there was quarrel and golmal over the fencing on the disputed land and also altercation
took place on the day of occurrence between the parties over removal of the fencing which ultimately
culminated into a 'maramari' causing thereby bleeding injury on the person of the appellant's:son Kalu
on one hand and the death of victim Abdul Karim on the other. Besides, the injury on the person of the
sonof accused Momin Malitha could not be explained away by the prosecution. It also appears that the
accused had no undue advantage in the matter. Be that as it may, on a careful consideration of the facts
and circumstances of the case and the evidence on record and also the relevant provisions of law, we are
of the view that the alleged offence committed by this appellant Momin Malitha comes within the
ambit of the Exceptions I and 4 of section 300 of the Penal Code and as such this appellant cannot be
convicted and sentenced under section 302 of the Penal Code. Momin Malitha Vs. State 41 DLR 37;
(49) Murder—Right of private defence—In the case of right of private defence of property one
accused of murder must prove that the property in question was his property. When upon evidence it is
found that the primary object of the accused was to make a forcible attempt to snatch away the paddy of
the informant party question of defending such right cannot arise. It was nowhere suggested that the
informant party carried any weapon or made any kind of assault on the accused while, on the other
hand, the accused were found to have been armed with lethal weapons. In this case there was certainly
premeditation on the side of the accused without which he would not have come armed with lethal
weapons. Dilip Vs. State 43 DLR 269.
(5) Culpable homicide—The injries, though caused intentionally, are of such a nature that these
are "likely to cause death" and this does not constitute murder'—It constitutes culpable homicide not
amounting to murder. State Vs. Montu 44 DLR (A D) 287.
(51) When the victim went to bed with her husband and was found subsequently dead there, he
bears a serious obligation to account for her death. Abdus Sukur Mia Vs. State 48 DLR 228.
(52) When all that the accused intended was to strike his wife and the strike by mistake hit their
newly born baby which had led to the killing, such of the accused falls within the purview of exception
I of section 300. State vs A bdul Howlader 48 DLR 257.
(53) As there is a possibility that before the occurrence there might have been some sort of
altercation between the accused and the dçceased or loss of temper by the accused, it cannot be held that
it was a premeditated murder. State vs Abdul Khaieque 46 DLR 353.
(54) The word murder appearing in section 396 of the Penal Code and the word murder appearing
in section 300 of the Penal Code is not the same thing. In section 396 the liability of commission of
Sec. Of Offences affecting the Human Body 769
murder is conjoint while commission of murder as defined under section 300 is absolutely an
individual liability. A rzan @iman A li Vs. State 48 DLR 287.
(55) Accused Abdul Aziz Mina has acted in a cruel and unusual manner and also took undue
advantage in inflicting 4 knife blows on the person of victim Jalal which ultimately caused his death.
Therefore, the offence as committed by accused Abdul Aziz Mina does not in anyway attract the
provision of Exception 4 of section 300 but attracts the provision of section 300 that it is a voluntary
infliction of knife blows with the intention of ca-using death and as such accused Abdul Aziz Mina
cannot escape the liability of causing homicide amounting to murder. A bdul . zia Mina and others Vs.
State 48 DLR 382,
(56) Grave andsudden provocation—Deprivation of the power of self-control--Test of grave and
sudden provocation—The test of grave and sudden provocation is whether a reasonable man belonging
to the same class of society as the accused, placed in the situation in which the accused was placed, can
be so provoked as to cause loss of its self-control—Provocation must be such as will upset not merely
a hasty, hot-headed and hypersensitive person but would upset also a person of ordinary sense and
calmness—Provocation contemplated by Section 300 of the Penal Code should be of such a character
as to deprive the offenders of self-control Majibar Rahamn Vs. The Sate 3 BLD (HCD) 145,
(57) Culpable homicide—When it amounts to murder—Even if it is held that the fatal injury was
caused in a sudden quarrel and without any premeditation yet it cannot be held that the offender did not
act in a cruel manner and did not take advantage over the deceased—There was no resistance from the
deceased or anybody from his side—In the circumstances there is no ground to interfere with the order
of conviction for murder. Shahidullah alias Shahid and others Vs. The State 5 BLD (A D) JO.
(58) Culpable homicide when not murder—Culpable hdmicideis . not murder if it is committed
without any 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. Bandez All alias Md.
Bández Ali Vs. The State 6 BLD (AD) 5.
(59) Murder—All murders are culpable homicides but all culpable homicides are not murders—
excepting the general exceptions attached to the definition of murder and committed either with certain
guilty intention or with certain guilty knowledge constitutes culpable homicide amounting to
murder—If the criminal act is done with the intention of causing death then it is murder clear and
simple—If death is the likely result of the injuries, it is culpable homicide not amounting to murder
but if death is the most likely results, then it is murder. The Sate :Vs. Tayeb A li and others .7 BLD
(AD) 265. . . ..
(60) Murder and culpable homicide—Plea of exception on the ground of grave: and. sudden
provocation—When not tenable—The defence did not even produce any medical certificate to show the
nature of the injury received by the accused and there was no suggestion that the appellant was
assaulted by any one to rouse provocation in him—There is no reason to reduce the offence to one.óf.
culpable homicide not amounting to murder as he acted in a cruel manner. Md. Humayun Kabir Vs.
The State 7 BLD (HCD) 338. . .
• (61) Murder—Question of applicability of exception—Whether delay in the death of the victim
brings the case under the exception--The mere fact that the victim luckily survived for two Weeks on
account of treatment is no ground to put a premium on the offence committed by the accused—There
being no material on record to sustain the contention that the case is covered by exception, there is no
reason to consider that the offence is homicide not amounting to murder. Md. Abdul A4a/icl Sarkar Vs.
The State 8 BLD (AD) 71.
770 Penal Code Sec. 300
(62) When it is clear form the evidence that the free fight between the parties took place following
an altercation it stands out that death of the victim was caused without any premeditation in a sudden
fight in the heat of passion and without the offenders having taken undue advantage or acted in a cruel
or unusual manner. This attracts Exception 4 of section 300 of the Penal Code and brings the case u/s
304 Part I. Abut! Kalam Azad Vs. The State, 14 BLD (1-lCD) 401.
(63) As the incident took place as a result of election rivalry and each of the accused dealt only one
blow for which it cannot be ascertained by which blow death was caused, the offence comes under.
section 304 Part I of the Penal Code instead of section 300. State vs. A bdul Hye Mai and others
(Criminal) I BLC 125.
(64) As the appellant assaulted the brother of the deceased who along with others went to take
revenge on the appellant and there were scufflesbetween the appellant and Moktar, the deceased and out
of fear of retaliation the appellant gave one knife blow only to free himself from Moktar and ran for
safety which became fatal to Mokhtar but the conduct of the appellant is preventive and not retributive
satisfying the legal requirement of the right of private defence. Ruhul A min Mondal vs. Stage
(Criminal) I BLC 281.
(65) Section 304-A"
rejates to causing death by a rash or negligent act and expressly excludes form
its purview "culpable homicide". Hence, the offence under S. 304A is not "culpable homicide": (1881)
ILR 3 A ll 776.
(66) The'provisions relating to murder and culpable homicide are probably the most complicated
in the Penal Code and are so technical as frequently to lead to confusion. AIR 1944 Born 274.
2. Culpable homicide and murder_ Distj
nctjofls_l) A murder is merely a particular form of
culpable homicide. Every murder is culpable homicide but not vice versa. 1972 CriLJ 1416 (Culpable
homicide is genus and murder its specie).
(2) Every act falling within S. 299 and not falling under S. 300 is culpable homicide not
amounting to murder AIR 1966 SC 148.
(3)
What distinguishes culpable homicide from murder is the presence of special mens rea which
consists of four mental attitudes stated in S. 300. Unless the offence can be said to involve at least one
such mental attitude it cannot be murder. AIR 1966 SC 1874.
(4) When the injury is intentional and sufficient to cause ieathin the ordinary course of nature and
death follows, the offence is murder. AIR 1966 SC 148.
(5) Where the intention of the accused was not to kill the deceased outright but to inflict injuries
on his legs and arms so as to disable him, but the accused had the knowledge that the injuries would
be likely to cause death of the deceased, the accused was convicted under S. 304, Part I and not under
S. 302. A IR 1956 SC 654.
(6) The difference between clause (b) of Section 299 and clause (3) of S. 300 is one of the degree of
probability of death resulting from the intended bodily injury. The word 'likely' in cl. (b) of S.299
conveys the sense of 'probable' while words 'sufficient in the ordinary course of nature to cause death'
in S. 300(3) convey that death will be most probable. AIR 1977 SC 45.
(7)
It is the knowledge of the very dangerous character of the act and the running of the risk with
out any excuse that aggravates the offence. AIR 1968 SC 881.
(8)
Where, the knowledge extends only to a lesser degree of the injuries being likely to cause death
the offence would be culpable homicide not amounting to murder. AIR 1968 All 151.
Sec. 300 Of Offences affecting the Human Body 771
(9) If there was no intention to kill, then it can be murder only if.—(a) the accused knew that the
injury inflicted would be likely to cause death, or (b) that it would be sufficient in the ordinary course
of nature to cause death, or (c) that the accused knew that the act must in all probability cause death. If
the case cannot be placed, as high as that and the act is only likely to cause death and there is no special
knowledge, the offence comes under S. 304, Part II. A IR 1956 Sc 116.
(10) The correct approach is to determine first whether the facts proved bring the case under any of
the 4 clauses defining murder, If they do not come under the definition of murder, then the offence
would be culpable homicide not amounting to murder under Sec. 299 and punishable under S. 304. If
the facts come within the definition of 'murder' then the Court must determine whether facts come
under any of the exceptions under S. 300. If they do, the offence would still be culpable homicide not
amounting to murder under Section 299. AIR 1977 SC 45.
(11) A causes death by doing an act with the intention of causing death. This is culpable
homicide, which (if the exceptions to S. 300 do not apply) amounts to murder. A IR 1967 Goa 11.
(12) A causes death by doing an act with intention of causing only bodily injury. The injury
happens to be one which is likely to cause death but the culprit does not know this. This is culpable
homicide not amounting -to murder. AIR 1968 SC 867.
(13) A causes death by doing an act with the intention of causing only bodily injury but he knos
that the injury is likely to cause the death of the person to whom the harm was done. This is murder.
AIR 1960 And/i Pra 141.
(14) A causes death by doing an act with the intention of causing only bodily injury but he does
not know that it is likely to cause death. The injury is, however, so serious that it is sufficient, in the
ordinary course of nature to cause death. This is murder. A IR 1955 A ndh Pra 24.
(15) A causes death by doing an act without intending to cause death or any bodily injury, but
with the knowledge that he is likely by such act to cause death. This is culpable homicide not
amounting to murder. AIR 1968 SC 1390.
(16) A causes death by doing an act with the intention of causing bodily injury which is likely to
cause death but he does not know that he is likely to cause death. Nor is the injury such as can be said
to be sufficient in the ordinary course of nature to cause death. This is not murder but only culpable
homicide not amounting to murder. AIR 1916 Born 191.
(17) Accused forming unlawful assembly with others and attacking opposite party—Lifting a child
of 4 years and throwing him on ground—Child dying—intention to kill child absent—Weapon though
available not used—Throwing not with intention to cause any particular injury to child—Held, it was
culpable homicide and not murder. AIR 1983 SC 529.
(18) Accused young college-going boy—Some altercation between his father and deceased—
Accused inflicting one single blow—death occurred after six days—In the circumstances, Held, that the
accused at the most could be attributed the knowledge that he was likely to cause an injury which was
likely to cause death—Accused therefore liable to conviction only u/s. 304, Part II. AIR 1982 SC 55.
3. "Whoever causes death".—(l) The first stage in an inquiry into an alleged offence of culpable
homicide is to see whether the accused has done an act by doing which he has "caused" the death of
another person. AIR 1979 SC 1876.
(2) The expression "causing death" means putting an end to human life. A IR 1920 Mad 862.
(3) Where the accused has done an act and death can be said to have been caused thereby the
accused will be deemed to have caused the death. AIR 1937 Rang 396.
Penal Code Sec. 300
772
(4) Before an act of the accused can besaid to have caused death, it is necessary to show: i. That
there is a direct and distinct connection between the act and the death, and ii. That the connection is
not too remote. A IR 1971 Mad 259.
4. "Death".-(l) Death is the main ingredient which constitutes culpable homicide. The other
necessary ingredient is the presence. of one of the kinds of mens rea referred to in S. 299. If none of the
elements of mens rea is present the offence is not culpable homicide. 1971 KIerLJ 182.
(2) The words "human being" are not defined in the Code but obviously mean a "being belonging
to the race of mankind". Where the accused assaulted a man believing him in good faith to be a ghost
and the assault proved fatal it was held that he was guilty neither under S. 302 nor under S. 304, AIR
1943 Pat 64.
5. Child in mother's womb—ExpI. 3 to S.299.—(l) Under the Explanation 3 to S. 299
complete, emergence of child form the womb is not necessary. Even if any part of the living child has
been brought forth, the causing the death thereof is homicide though the child may not have breathed or
been completely born. AIR 1940 Mad 294.
(2) It was necessary that the child should have breathed after it had wholly or partially emerged
from the mother's womb. A IR 1916 . Lah 184.
6. Direct and distinct connection.—(1) The test to determine whether the accused has "caused"
death is to see whether the cause of death is directly associated with the act.(1980) 82 Pun LR 8.
(2) Where injuries are inflicted on the deceased by the accused and the injuries set up, without the
intervention of any considerable change of circumstances, blood-poisoning or tetanus or pneumonia or
gangrene which maybe the ultimate cause of death, it cannot be said that the act done by the accused is
not the direct cause of death. A IR 1968 Guj 296.
(3) Although the injury inflicted may not be the direct cause of death, nevertheless, under
Explanation 2 to S..299, the person who caused the injuries must be held to have caused the death.
A IR 1936 Rang 526.
(4) Where the injury is not the direct cause of death the question whether the treatment was proper
or not does not arise in such cases, provided it was administered bonafide by acompetent physician or
surgeon. A IR /936 Rang 442.
(5) The connection between the primary cause and the death should not be too remote. A IR 1964
SC 900.
(6) Where a person receives injuries on the head, but progresses well in the hospital andafter a
month and a half, when he had left the hospital, develops pneumonia and dies, it cannot be said that
the injury caused was the cause of death. A IR 1924 A ll 441.
(7) Where the act of the accused ultimately causes the death of the victim, the, accused will be
guilty of causing the death and it makes no difference whether the act is in its own nature instantly
mortal or whether it becomes the cause of death by reason of the deceased not having adopted the best
mode of treatment. A IR 1940 Mad 293.
(8) The fact that the death could have been prevented by proper treatment cannot exonerate the
accused from criminal liability. A IR 1937 Rang 396..
(9) The idea, that the victim of a murderous assault must take such great care of his health that he
does not by any neglect or omission on his part hasten the advent of his death, is not countenanced by
any provision of the Code. A IR 1934 Oudh 405(409). 35 CriLJ 1113. -
Sec. 300 Of Offences affecting the Human Body
773
7. Obscure
cause.—(1) If a man by working on the fancy of another or by unkind usage puts
another in such a passion of grief or fear that the party dies or contracts some disease whereof he dies it
cannot be said that there is a direct and distinct connection between the act of the accused and the
death. Hale, PC, 429.
8. "By doing an act"^ (
1) There was a preconceived plot on the part of the four accused to bring
the deceased man to a hut and there to kill him, and then to fake an accident, so that the accused
should escape the penalty for their act. The deceased man was brought to the hut. He was there treated
to beer and was at least partially intoxicated, and he was then struck over the head in accordance with
the plan of the accused. The deceased was unconscious after receiving the blow, but he was not then
dead, The accused believing that he was dead, took out the body, rolled it over a low krantz or cliff and
dressed up the scene to make it look like an acci
dent. It was held that the crime was not reduced from
murder to a lesser crime merely because the accused were under some misapprehension for a time
during the completion of their criminal plot. (1954) J A ll ER 376.
9. 'Act' if includes illegal 'Omission'.—(l) A, a young unmarried woman, became pregnant and
her mother B did not take care to procure a midwife at the time of deliver and A died as a consequence
of the want of such assistance; it was held there was no legal duty on the part of the mother to call in a
midwife in the absence of proof that B had means to pay to midwife.
Co nsequently, B was not guilty
of manslaughter. (1862)31 LJMC 102.
(2) If a child is completely born and during such separate existence, is neglected by its mother and
dies in consequence, its mother is guilty of manslaughter.
(1947) 48 CriLJ 605.
10. Attack by several persons.--(]) Where several persons jointly attack the deceased and cause
his death, all of them would be equally guilty of causing the death although it may not be possible to
prove which of them inflicted the fatal blow, if they can be brought within Ss. 34,
1951 All 21. 35, 37 or 149. AIR
(2)
Where it is proved that each of several persons caused an injury which was sufficient in the
ordinary course of nature to cause death, each would be liable for murder. AIR 1973 SC 2699.
(3)
Where, in the absence of proof of a common intention to murder, it is not established which of
several persons committed murder and which the lesser offence, none of the accused can be heldguilty
of murder. AIR 1972 SC 2462. .
(4)
If one person is engaged in murderously beating another to death and cause injury which is
sufficient to cause death and a stlanger, without sharing the common intention, was to rush in and add
some more blows so that the victim's death was more speedily brought about, then it is a case where
both would be guilty of murder and the first man cannot be allowed a defence that it was the second
assailant's stroke that finally ended the victim's life. A IR 1958 Orissa 113.
(5) Two persons attacking decea
evidence which sed—Deceased receiving one blow on head and dying—No
,person gave that blow—No conviction u/s. 304 but u/s. 325. A IR 1965 Cal 89.
11. Sections 34 and 300.—(1) It is no doubt possible for a single act to be done by several
persons, as where they all lift a.heavy stone and drop it on a person, but ordinarily several persons may
do several acts, and S. 34 may be taken to deal with the doing of separate acts, similar or diverse by
several persons in furtherance of the common intention. AIR 1977 SC. 710.
(2) Where a criminal act is done by several persons, the sole test of joint responsibility for the
crime is the existence of a common intention. Such intention must'therefore be proved as also the fact
that the act was done in furtherance of the common intention. AIR 1954 Hyd 54.
7.74 Penal Code Sec. 300
(3) Whethre or not a criminal act is done in furtherance of a common intention is not a matter of
legal presumption but is a question of fact. AIR 1935, Rang 89.
(4) Where the accused caught hold of deceased and scuffled with him while another accused took
out knife and commenced assault but there was no evidence that the accused continued to hold the
deceased till the assault was complete it could not be inferred that accused shared intention of another
accused to murder the deceased. AIR 1982-SC 1228.
(5) Whether a criminal act is done in furtherance of common intention is to be inferred from the
facts and evidence. AIR 1978 SC 1492.
(6) Thp evidence must be taken as a whole and the surrounding circumstances considered in
finding whether there was a common intention and what was the common intention. A IR 1935
Rang 89.
(7) If on consideration of evidence as a whole and the surrounding circumstances, a common
intention to kill is established, then all be guilty of murder. A IR 1935 Rang 89.
(8) The common intention referred to in S. 34 presupposes a prior concert, a pre-arranged plan,
i.e., a prior meeting of minds. This does not mean that there must be a long interval of time between
the formation of the common intention and the doing of the act. The common intention may be inferred
from surrounding circumstances and the conduct of the parties. AIR 1955 SC 331.
(9) An inference of common intention can be drawn where all or some, to the knowledge of all
engaged in an unlawful enterprise e.g.. robbery, are proved to have carried lethal weapons which have
been used with fatal effect. A IR 1971 SC 1112. .
(10) It is not necessary that there should be an express agreement between the persons concerned.
A IR 1935 Rang 89.
(11) Where a murder is-pre-arranged between several persons all are guilty though one of them
actually causes the fatal injury, like shooting, etc. AIR 1955 SC 331.
(12) It is not necessary to make out prenieditation.in order to establish common intention at the
moment of action. A IR 1937 Nag 335.
(13) The common intention may well develop on the spot between anumber of persons. AIR 1972
SC 2555. . .
(14) Where one of several persons expresses his intention of causing the death of deceased and all
of them then continue to take part in the criminal acts resulting in the death of the deceased, the
inference is clear that the common intention was to murder the deceased. AIR 1978 SC 1529.
(15) Where the accused gives direction to his comrades to fire indiscriminately against the
members of the hostile group he would be guilty if his direction brings about a shooting and death of,
any one or more out of the members of the hostile group. AIR 1956 SC 177.
(16) Accused in pursuance of prior concert to attack driver and cleaner of a truck coming in two
trucks—Driver fatally attacked by accused coming in one truck while cleaner attacked by others
coming in another truck—Accused attacking cleaner could be convicted for murder of driver under S.
300 with the aid of Ss. 34 and 149. AIR 1981 SC 648.
(17) If there was no common intention to cause death to the deceased but a fatal blow is struck by
one of the several persons with such intention springing from his mind only, the other person are not.
within S. 34 and are not consequently liable for the murder. AIR 1979 SC 1534.
Sec. 300 Of Offences affecting the Human Body 775
(18) Where A was charged under S. 302 read with S. 34 for having shared the common intention
off our named persons and for having participated in the crime and the four persons were all acquitted, it
was held that the element of sharing a common intention withhe four persons disappeared and A
could not be convicted with the aid of S. 34. AIR 1977 SC 710.
(19) Where one or some of several persons have the intention to murder but the person inflicting
the fatal blow brings himself within any of the exceptions to S. 300, it cannot be any of the exceptions
to S. 300, it cannot be said that there . is a common intention to murder. A IR 1940 Cal 147.
(20) If the common intention is to commit one crime and another crime is committed by one of
them, the other cannot be charged and convicted of the latter crime wide? S. 34. A IR 1954 SC 706
(21) Where injury resulting in death has been caused by one or more of several persons and it
cannot be said which of them caused it, all can be convicted onl by the application of S. 34 or S. 149
or as abettors. A IR 1938 Pat 258.
(22) Several accused firing at deceased. There out of 5 shots fired hitting deceased. Held that in the
absence of evidence to show that there was common intention to cause death or such injury as was
likely to cause death none of the accused persons can be convicted under S. 304 or under S. 302. AIR
1941 Mad 746.
(23) Where the common intention to cause death is present it makes no difference that the Court
cannot decide at what precise point in the course of the series of acts of violence the death took place.
A IR 1941 Pat 550.
(24) A common intention to commit murder under certain circumstances is not sufficient to justify
A finding that the accused and his companions had at the time of the actual occurrence the common
intention of murdering the person. It will be necessary to consider what happened immediately before
the act causing death. AIR 1935 Cal 526.
(25) Where the accused held the legs of the deceased under threats of instant death while others
killed him, the accused cannot necessarily be said to have any of the intentions necessary to make him
liable for the offence of murder. AIR 1957 All 184.
12. Sections 149 and 300.—(1) The liability under this section is a vicarious one.AIR 1972 SC
2555.
(2) Except under the provisions of this section a member of the unlawful assembly cannot be made
liable for the offence committed not by him but by another members of that assembly. A IR 1955
SC 274. .
(3) Where the common object is to commit murder, the fact that there is no proof as to who caused
the fatal blow does not affect the liability of all the members of the unlawful assembly for the murder.
A IR 1973 SC 486
(4) If the offence committed by a person is in prosecution of the common object of this unlawful
assembly or such as members of that assembly knew to be likely to be committed in prosecution of the
common object, every member of this unlawful assembly would be guilty of that offence although there
may have been no common intention and no participation by the other members in the actual
commission of that offence. AIR 1955 SC 274. . . .
(5) Sections 34 and 149 have a certain resemblance and may to a certain extent overlap, but S.
149 cannot at any rate relegate Sec. 34 to the position of dealing only with joint action by the
commission of identically similar criminal acts , a kind of case which is not in itself deserving of
separate treatment at all. AIR 1025 PC I.
776 Penal Code Sec. 300

(6) It is improper to convict accused persons under S. 302 read with S. 34 by holding that "if a
number of persons assault another with a strike mercilessly their intention can only be to murder that
man or at least they should know that they are likely to cause death of the person concerned". This
aspect of their being likely to cause death would be relevant under Section 149 and not under S. 34 for
the obvious reason that under S. 34 it has to be established that there was the common intention before
the participation by the accused. A IR 1971 Sc 1444.
(7) Where, in pursuance of the common object of an unlawful assembly, A commits the offence of
murder of B, A, and all the members of the assembly would be guilty of the same offence by virtue of
S. 149 of the Code. A IR 1973 sc 486.
(8) Where the members of the unlawful assembly knew that a murder is likely to be committed in
pursuance of the common object, every member of the assembly would be guilty of murder. A IR 1961
SC 1541.
(9) When the common object is not as high as murder but only to rescue certain persons from the
lock-up, all the members would be guilty of murder as the use of violence is implied in the object and
they must have known that murder is likely to be omitted. A IR 1956 sc 241.
(10) The distinction between the first part of S. 149 and the second part of that section is this: the
first part deals with all those offences which the members of the assembly can be said to have
contemplated as being necessary to attain their common object. The second part deals with offences
which the members could not have contemplated as being necessary to attain the common object, but
which they knew would be likely to be committed. A IR 1979 sc 1761.
(11) Whether a common object, or the knowledge of the likelihood of particular offence is proved
in a particular case is a question of fact depending upon the way the attack was made, the protracted
nature of theattack, the weapons used and other circumstances of the case. A IR 1978 SC 1525.
(12) Where a body of persons heavily armed set out to take a woman back, it may be held that the
members of the assembly knew that murder was likely to be committed in prosecution of the common
object and hence all will be guilty of murder if one of the parties commits murder. A IR 1942 Lczh 89.
(13) Where . a number of persons go armed with deadly weapons to attack a person or a party it
may be assumed as a matter of commonsense that their common object was either to kill or to cause
grievous hurt, or that the members of the assembly. 'A IR 1953 A ll 189..
(14) Where five or more persons assemble, armed , with deadly weapons for striking any person
who resist their acts and every one knows that the weapons may be used with deadly effect, all will be
liable .for .the fatal injury caused by one of them. A IR 1977 SC 1756
(15) Where there is no unlawful assembly at all at the time of offence there can be no conviction
under Ss. 149 and 300. A IR 1970 sc 27.
(16) Perfectly lawful assembly may later on become a riotous mob and it may be. that there may be
a number of innocent persons therein. But as they are found in the mob of rioters the law will presume
that they share the common object. A IR 1934 A ll 776 .
(17) In cases of rioting, murder and arson the prosecution is not called upon to prove the part that
each of the accused present took in the riot. It has only to prove that there was an unlawful assembly,
that it committed murder, arson, etc., and that the accused was a member of the assembly. A IR 1933
A ll 535. .
(18) Charge under Ss. 302/149 against 16 named persons-14 of them acquitted-2 cannot be
convicted under Ss. 302/149. A IR 1955 SC 274. - . 4
Sec. 300 Of Offences affecting the Human Body .. 777

(19) Ingredients of offence have to be made out by prosecution and not by accused. A IR 1958
Pat 12. . . . .
13. Sections 35 and 300.—(1) Where the common intention of A and B was to give only a
beating to the deceased and not to kill him, but B uses a deadly weapon and A makes no attempt to
prevent B form using it, a knowledge that death is likely to be caused can be inferred and both A and B
would be guilty of murder. But if only fists were used or kicks administered, such knowledge could
not be readily inferred: No hard and fast rule can be laid down on the subject. Each case will depend
upon its own facts. A IR 1949 All 342.
(2) Where there was only a common intention to cause bodily injury and' not death, but all
persons taking part in the attack had knowledge that death was likely to be caused thereby, it was held
that they all could not be convicted of murder. (1912) 13 CriLi 159 (A ll).
14. This section and S. 396.—(1) A death caused by a dacoit in the course of dacoity would be
murder, for the exceptions which mitigate the crime are inapplicable to the crime of daoity.('197/) A ll
Li 833. . . . . .
(2) If a dacoit in pursuance of and in the progress of the commission of a dacoity commits murder,
all of the companions who are participating in the commission of the dacoity may be convicted under
S. 396 although there may be no paicipation by them in murder beyond the fact of participation in the
dacoity. A IR 1954 Pat 109. .
15. Abetment and S. 300.—(1) Where two persons go out to fight a deliberate duel, and death
ensues, all persons Who are present on the occasion, encouraging or promoting that death, will be
guilty of abetting principal offender. (1843-1845) 1 C&K 210. .
(2) Conspiring to kill—No evidence who dealt the fatal blow—All guilty of abetment of murder.
A IR 1930 Pat 164.
(3) Accused ordering to beat—Death caused—Guilty of abetment of murder. A IR 1928 Cal 752.
16. "With the intention of causing death."—(l) Whoever causes death by doing an act with the,
intention of causing death is guilty of culpable homicide. amounting to murder. A IR 1958 SC 465.
(2) Murder—Accused giving blow on head of deceased-5 injuries suffered by deceased on head
region—Each injury caused blow intended to kill—Conviction of accused for murder—Valid. A IR
1981 SC 1167.
(3) A man's intention must, in the generality of cases, be gathered only from his acts. A IR 1958
SC 672.
(4) In deciding the question of intention of causing death, the nature of the weapons used, the part
of the body on which the blow .was given, the force and number of blows are all factors from which an
inference as to the intention tan, as a fact be, drawn. A IR 1979 SC 1504.
(5) Where the accused killed a woman under the conviction that she was a witch responsible for
the illness of his wife and daughter, the intention to cause death is clear and the offence is murder. A IR
1921 Pat 63. . .
(6) Where the accused, believing a woman to be a witch, beat her by way of exorcising the spirit,
and the woman died of the beating, it was held that the accused was guilty, not under this section but
under S. 304 of the Code. A IR 1918 Upp Bur 24.
(7) Where an exorcist subjected a woman believed to be possessed by evil spirits, to prolonged
suffocation by smoke during the. course of ritual, in addition causing bums by heat brought too near her
778 Penal Code Sec. 300

body and the woman died on account of the measures taken by the accused, it was held that the accused
had to be credited with the knowledge that the measures taken by him were likely to cause death and
could be convicted under S. 304, Part II and not under S. 302. AIR 1964 Mad 480.
(8) When the injuries are inflicted on vital parts of the body like the abdomen, etc., by a lethal or
sharp-edged weapon the inference is generally irresistible that the culprit intended to kill the deceased.
AIR 1972 SC 2574.
f
(9) Accused stabbing with considerable force in the middle of the back of the deceased so to
penetrate spinal cavity—Held, accused intended to kill. All? 1958 Ker 207.
(10) The fact that the injuries inflicted did, in fact, cause death will not justify the Court in
reasoning backward from the result to an intention to cause the death. AIR 1931 Cal 261.
(11) When the accused causes ' injuries to the deceased with the intention of causing death, and'
believing him dead places him on a Railway line, but it is the train running over him that really causes
the death, both the acts must be ascribed to the original intention of causing death had the offence will
be murder. AIR 1945 Pat 470.
(12) Intention only to cause beating- LOffence falls under S. 304. AIR 1953Punj 261
(13) Where there was a quarrel between the accused and the victim and the accused incensed by the
situation gave blows on vulnerable part of the victim's body resulting in his death, the offence would
not fall under Section 300. AIR 1981 SC 642.
17. Intention and knowledge.—(l) Intention and knowledge are alternative ingredients of both
Ss. 299 and 300. AIR 1943 Nag 145
• (2) Intention and 'knowledge' are two different things. AIR 1956 SC 488.
•
(3) Intention and knowledge are not identical. AIR 1960 Andh Pm 141.
(4) Knowledge is an awareness of the consequences of an act. AIR 1958 SC 488.
(5) Knowledge, as contrasted with intention would. more properly signify a state of mental
realisation in which the mind is a passive recipient of certain ideas and impressions arising in it or
passing before it. AIR 1955 All 321.
(6) In order to possess and to form an intention must be a capacity for reason. And when, by some
extraneous force, the capacity for reason has been ousted, the capacity to form an intention must have
been unseated too. But knowledge stands upon a different footing. Some degree of knowledge must be
attributed to every sane person. AIR 1940 All 486
(7) 'Knowledge' again has reference to the particular circumstances in which a person is placed.
His intention must be judged, not in the light of the actual circumstances but in the light of what he
supposed to be the circumstances. Thus, a man is not guilty of culpable homicide if his intention was
directed to what he supposed to be lifeless body or a ghost. AIR 1926 Lah 554.
(8) Intent and knowledge both postulate the existence of a positive mental attitude. AIR 1976
SC 15/9.
(9) There may be knowledge without intention, as where a military commander orders his troops
into action well knowing that many of them will loss their lives, but certainly not desiring and
therefore not intending the consequence. AIR 1956 SC 488.
(tO) The knowledge of the consequences which may result in the doing of an act is not the same
thing as the intention that such consequences should ensue. Except in cases where mens rea is not
Sec. 300 Of Offences affecting the Human Body 779

required in not order to prove that a person had certain knowledge, he must have been aware that
certain specified harmful consequences would or could follow.' AIR 1970 Raj 60.
(11) A man will be presumed to intend the natural consequences of his act, or the consequences
which he knows will result from his act. AIR 1967 Goa 11.
(12) In order to establish the mens rea of murder it is sufficient to prove that, when the accused
performed the relevant acts, he knew that it was probable that those acts would result in grievous
bodily harm to somebody, even though he did not derive' to bring that result about, for that purpose,
'grievous bodily harm' meant "really serious bodily harm" and was not limited to harm of such a
nature as to endanger life. (1974) 2 All ER 41,
(13) The proposition that a man will be presumed to intend the natural consequences of his act is
'not a proposition of law but proposition of ordinary good sense. A IR 1970 Raj 60. -
(14) The intention to cause death or the requisite knowledge cannot be assumed. A IR 1955 NUC
1646 (Sau).
(15) Where the accused held the legs of the deceased under threats of instant death while others
killed him, it was held that the rule that the intention of the accused should be presumed from the
natural consequence of his-conduct did not apply and the accused could not be said to have any of the
intentions necessary to make him liable for the offence of the murder. AIR 1957 All 184.'
(16) Observati6ns that intention can be presumed from knowledge or that knowledge can be
presumed form the consequences and that the culprit was therefore guilty can be reconciled only on the
assumption that in the particular case, the intention or the knowledge was found as a fact from the
evidence and circumstances. AIR 1943, All 344.
(17) Questions of knowledge and intention are essentially questions of fact. AIR 1950 Lah 169.
(18) It is seldom that direct evidence of an intention or knowledge is forthcoming. AIR 1945 PC 42.
(19) Intention or knowledge' must be gathered ' Only from the facts and circumstances of each case
and recourse must be had to natural presumptions (i.e. presumptions of fact) which the Courts are
entitled to draw. AIR 1972 SC 2574. . .
(20) The number of injuries caused is only one of the circumstances which the Court may take
into account for coming to a finding about the intention or the knowledge of the offender. A IR 1974
sc 1803.
(21) Where the accused, following trivial quarrel gave a solitary blow of knife on chest to the
deceased who was not a party to quarrel and there was no attempt to inflict second blow, the accused
could not be said of having intention to cause that particular injury. AIR 1983 SC 284.
(22) The knowledge referred to in the section is personal knowledge of the culprit and cannot be
shared by co-culprits. AIR 1939 Oudh 207.
(23) 'Knowing' means something more than having reason to believe. It implies a fact which can
be known and imports knowledge, of something actual by means of authentic or authoritative
information although it does not import actual evidence of the sense. A person cannot know of a
wiirrant of arrest unless it had actually been issued although he may have reason to believe that it was
issued. A IR 1944 PC 54. . ..
18. Act intended against one causing death of another.—(l) The intention of causing death
does not mean the intention of causing death of any particular person. (1912) 13 CriLJ 145.
780 Penal Code Sec. 300

(2) Where several persons attack two men A and B but kill only B, whether their object was to get
at A more than at B, or whether they went at B mistaking him for A, they will be taken to have
intended to kill B. AIR 1920 Born 371.
(3) Where there was no animosity between the accused and the deceased who attempted to
intervene in the dispute between the accused and other persons, and a blow with barcha attempted on
other person fell on the deceased and proved fatal the accused could not be said to have intention to
cause that particular injury to the deceased which in fact was found to have been caused. A IR 1982
SC 1466.
19. "With the intention of causing such bodily injury as is likely to cause death."—(l) The
"intention" referred to is an intention to cause bodily injury which is or happens to be an injury which
is likely to cause death. 1937 Mad W N 556
(2) It is not the death itself not the effect of the injury that is required to be intended by the
offender. AIR 1940 Rang 259.
(3) The question whether a bodily injury inflicted was one likely to cause death of the victim is
one of fact to be decided by the court on the evidence and circumstances of the case. It will depend
upon the part of the body on which the injury was inflicted, the nature of the weapon used, the force of
the stroke, etc. AIR 1978 SC 1420.
(4) A stab on the thigh which is not.a vital part of the body would not, for instance, ordinarily be
considered to be an injury likely to cause death. But a blow on the head is one which is likely to..cause
death. A IR 1928 Pat 169.
(5) Where there were 24 injuries on the person of the deceased and 21 of them were incised and
were either on his head or the neck or the shoulders and on the forearms and were caused with a deadly
weapon, it was held that the accused must be fixed with the intention of causing such bodily injuries
is were likely to cause death. AIR 1958 SC 6.72.
(6) A blow inflicted with a sharp-edged weapon with such violence as to sever the upper arm of a
person is one which is intended to cause such bodily injury as is likely to cause death. A IR 1938
Rang 156.
(7) Accused fired gun at deceased causing wound in abdomen—No medical evidence that injury
was cause of death—Offence under S. 326 and not under S. 300. AIR 1954 J&K 19.
• 20. "Devine influence."—(I) Where the accused cut a woman with a sword several times and
spread hay round her when she was almost in unconscious state and set fire to the hay which resulted
in the death of the woman and the accused pleaded that he was under a divine influence which made
him do the act foj the purpose of exorcising the devil possessed by -the woman, it was held that the act
of the accused came within the 4th clause of S. 300 and that the so-called divine influence could not be
validly pleaded as •a defence to what would othrwise be murder. 1937 Mad W N93.
(2) Where the parents of a child threw their child to crocodiles in the superstitious belief that it
would be ultimately saved (having lost several children), it was held that it was culpable homicide not
amounting to murder. It is submitted that the decision is not correct. It was found in the case that there
was no intention to cause death but they had knowledge that it would be likely to cause death of the
child. The case clearly falls within S. 300 2ndly. A IR 1921 Cal 501.
21; Insanity.—(l) A person who, thought of unsound mind knows that in killing another he is
committing a wrongful act is not entitled to the benefit of S. 84 of the Code. (1906) 4 &iL.J 88.
Sec. 300 Of OffeAces affecting the Human Body 781
(2) A person who has deliberately committed an act and knew very well that what he was doing
was wrong cannot escape liability on the ground that prior to the crime he had shown signs of
eccentricity. AIR 1961 SC 998.
(3) A person deliberately committing an act cannot plead fury. AIR 1950 Mad 592,
(4) The fact that the murder was committed for a very trivial reason does not by itself, proved
insanity. A IR 1979 SC 1828.
(5) The crucial point of time for ascertaining the state of mind of the accused is the time when the
offence was committed. AIR 1964 SC 1563;
(6) Whether theaccused was in such a state of mind as to be entitled to the benefit of S. •84 can
only be established from the circumstances which presided, attended and followed the crime. AIR 1972
SC 2443.
(7) It is for the accused who invokes the plea of insanity to establish that fact. AIR 1966 SC I.
(8) There must be evidence to show that at material time accused was suffering from some definite
or recognisable from of mental disease i.e. legal insanity. AIR 1953 Pepsu 17.
17. Motive ont essential for liability.—(1) Motive is something which prompts a man to form
an intention. AIR 1956 SC ^488.
(2) The element of motive is not a necessary ingredient of the offence of murder. AIR 1973 SC 337.
(3) The absence of motive or the inadequacy of it, on the other hand, is immaterial where there is
direct, clear and convincing evidence of the crime. AIR 1979 SC 1828.
(4) Absence of motive is not sufficient to show that the accused was mad at the time he committed
the offence. AIR 1968 Orissa 223.
(5) Motive of human action is inscrutable and is primarily known to the accused himself. AIR
1955 NUC (Pal) 243 (DB).
(6) It may not be possible for the prosecution in every case to explain the motive of the crime. AIR
1955 Pepsu 81.
(7) In a case of murder of wife by husband there are many considerations which have to be looked
into and it is very difficult to know the exact motive. AIR 1943 SC 1091.
(8) When a murder case has to be rested on circumstantial evidence motive is of some importance.
AIR 1956 SC 411.
(9) Where, no motive is proved the Court would be on its guard and scrutinise and weigh the
evidence with particular care and caution. AIR 1975 SC 118.
(10) When the evidence against the accused is clear the Court need not consider the question of
motive. A IR 1975 SC 1252.
(11) The absence of motive may also be material when the question" of sentence is to be
considered. A IR 1952 Tripura 7.
(12) Presence of motive for the crime is a circumstance against the accused. AIR 1977 SC 472.
(13) Presence of sufficient motive may, when evidence is equally balanced, afford a basis for
holding the accused guilty.. It may also help in proving the intention of the accused. AIR 1978 SC 383.
(14) Court should not first consider the evidence establishing motive for the murder. The proper
course to adopt is to examine the evidence as to the commission of the crime. The motive may never
be discovered, and the suggestion of a , wrong motive may lead the Court astray. AIR 1931 Oudh .119.
782 Penal Code Sec. 300.

(15) It cannot be assumed from the absence of motive that the accused acted in exercise of the right
of private defence. AIR 1947, Lah 244..
(16) From the absence of motive it cannot be assumed that he was insane. AIR 1965 Ker 92
(17) The motive behind a crime (in this case one punishable under S. 302, P. Code) is a relevant
fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant
for assessing the evidence. The circumstances proving the guilt of the accused are, however, not
weakened at all by this fact that the motive has not been established. AIR 1966 SC 1322.
(18) Motive for murder cannot be inferred from the mere fact that deceased after having returned
home after long period had claimed his share in family property from accused father and brothers. AIR
1971 SC 2016
23. Nature of weapon and intention.—'(l) The nature of the weapon used may show the
intention or the knowledge of the culprit in using the weapon. AIR 1937 Mad 634,
(2) Where a man strikes another with a lethal weapon on a vital part of the body an intention on
his part can be inferred to cause an injury which he knew to be likely to cause death. AIR 1925 Lah.
373. . .
(3) Where the weapon used is an ordinary bamboo strike or some such thing the intention or
knowledge necessary to constitute murder may not be inferred. AIR 1928 Rang 64.
(4) As a rule the use of a knife to stab or a pistol to shoot may show, though not necessary, an
intention to do grievous bodily harm. AIR 1935 Pesh 155.
(5) Every case must be decided on its own merits. It depends upon the way the weapon is used
and the part of the body selected for the purpose and notonly on the nature of the weapon. AIR 1935
Pesh 155.
(6) The use of a pocket knife in a sudden fight does not necessarily mean that the accused intends
to cause death or that he knows it to be likely that d eath would follow. But the violent use of the knife
on a vital part of the body would imply the knowledge that the act was so imminently dangerous that
it must, in all probability, cause death or such bodily injury as is likely to cause death. AIR 1935
Pesh 155.. . .
24. Bodily injury to person labouring under disorder—Explanation I to S. 299.—(l) 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 order, shall be deemed have caused his death. But if
the accused had no knowledge of that infirmity and the injury caused is not likely to cause death of a
normal person and there is no intention to cause death he is not guilty of culpable homicide under S.
299. AIR 1953 Punj 173.
(2) Where death has been caused it is-no defence that the deceased was suffering from a complaint
which would have caused his death in any event. Section 300(2) of the Code makes it clear that the
offender is not responsible for death in such a case unless he knew that the condition of the deceased
was such that his act was likely to cause death. AIR 1918 Sind 60.
(3) Where there is an intention to cause death or knowledge that he is likely by such act to cause
death, the Explanation is of no avil and the fact of an infirmity not known to, the accused does not
matter. AIR 1937 Rang 429.
25. "Or with the knowledge that, he is likely by such act to cause death".—(l) The words
"or with knowledge that he is likely by such 'act to cause death" occurring in S. 299 would include
Sec. 300 Of Offences affecting the Human Body 783

cases where there is on intention to kill or to cause such bodily injury, as is likely to cause death, but
the act is done with the knowledge on the part of the offender that he is likely by such, act to cause
death. If death is caused by such act, the doer of the act will be guilty under S. 299. But it would not
amount to murder in the absence of the element in S. 300 being satisfied. 1979 W LN (UC) 307.
(2) Where a person inflicts serious injuries with a weapon on vital part of the body of another, he
would be deemed to have known that injuries inflicted were likely to cause death. A IR 1940 Rang 259.
(3) Where the accused, exited by the exchange of abuse between him and the deceased, took a
weapon lying nearly and struck the deceased, and the weapon was such that it could not ordinarily
result in causing fatal' injury, it was held that the accused could not be said to have known that the
injury was likely to cause death. A IR 1952 Pepsu 112.
(4) Where in an altercation between two parties the accused fired his gun in the air to scare away
the opposite party, but a stray pellet struck one of the opposite party which caused his death, it was
held that the accused did the act with knowledge that it was likely to cause death A IR 1955 Punj 13.
26. Absence of knowledge and intent.—(l) Where there is neither the intention nor the
knowledge referred to in the section, no offence is made out under S. 299 and consequently under S.
300. A IR 1935 Cal 580.
27. Second clause of S. 300—Expi. I to S. 299.—( 1) The essence of the crime of murder under
clause 2 of the section is that there must be the intention of causing such bodily injury as the offender
knows is likely to cause death. A IR 1966 SC 1874.
(2) All cases falling within Cl. 2 of S. 300 would also fall under ci. I of S. 300 and the clause
has been enacted to repel the argument that the intentional causing of death is murder only when the
injury is sufficient in the ordinary course to cause death. A IR 1953 A ll 203.
28. "Offence knows to be likely to cause death"—S. 300 CI. 2.—(1) Under ci. (2) of S. 300.
A will be guilty of murder if he does an act intending to cause bodily injury and knows that the *injury
is likely to cause death of the person to whom the harm is caused. This would include cases of special
knowledge of the constitution, the constitutional defects and ailments of the deceased. (1971) 37 Cut
LT 667..
(2) If a large number of persons go to assault one man with dangs it may be held that death is
likely to ensue, but this resumption does not apply with the same force where a large number of
persons are assaulting a similar body of a large number of persons, even though some of them are
armed with dangs and sticks. A IR 1931 La/i 513.
(3) The language of clause 2 is not limited to a case where the victim is sick man. It is enough if
the accused knew that the injury was likely , to cause the death of the victim. A IR 1942 Pat 420.
(4) C 2 applies only to special cases in which there existed a weakness or defect in the person
injured such that an injury which would not ordinarily kill a person of ordinary health, is likely to kill
him and the offender knows it is likely to kill him. A IR 1946 Nag 120.
(5) The weapon used, the part of the body aimed at and the violence of the blow may all lead to
the inference of the accused having intended such bodily injury as he knew to be likely to cause death
of the victim. A IR 1959 A ll 255.
(6) Where the accused inflicted many blows on the body of a person in order to drive away the evil
spirit which the accused believed possessed such person, it was held that the accused was not guilty of
murder but was punishable under S. 304, part 2. A IR 1928 La/i 917.
784 Penal Code Sec. 300

27. "Sufficient in the ordinary course of nature to cause death"—Third clause of S. 300.-
(1) The third clause of S. 300 makes it clear that if the act is done with the intention of causing bodily
injury to any person and such injury is "sufficient in the ordinary course of nature to cause death" the
offence amounts to murder. AIR 1979 SC 1711.
(2) It is not necessary that the culprit should have also intended to cause death or that the injury
should be sufficient in the ordinary course of nature to cause death. AIR 1966 SC 1874.
(3) It is not necessary that the culprit should have knowledge that the injury was sufficient to cause
death provided that the intended injury was as a matter of fact, sufficient in the ordinary course of nature
to death. A IR 1975 SC 179.
(4) Once the intention to cause the bodily injury actually found to be present is proved the only
question is whether, as matter of purely objective inference, the injury is sufficient in the ordinary
course of nature to cause death. AIR 1979 SC 1224.
(5) When the accused gave a solitary blow on a non-vital part without knowing that the blow may
cut a vital part causing an injury likely to cause death in normal course it cannot be said that the injury
caused was the one wJich was intended. In such case, Illustration (1) to S. 300 thirdly is not attracted
and the accused would be guilty under s. 304, Part IT. AIR 1981 SC 1441.
(6) Where there was only one injury but it was on a vital part of the body and was caused with
such an amount of force that the parietal and temporal bone as also the fossa underneath were fractured
and even the lathi with which the injury was caused must be presumed to have intended to cause the
injury that was actually inflicted. AIR 1965 Mys 150.
(7) If the injury caused is "likely" to cause death, but is not sufficient in the ordinary course of
nature to cause death the offence is not murder but merely culpable homicide not amounting to murder.
A IR 1968SC 867.
(8) Where there is an intention to cause bodily injury and death ensues, the question will
ordinarily arise whether the injury which the accused intended was sufficient in the ordinary course of
nature to cause death or was merely "likely" to cause death. A IR 1979 SC 1006
(9) Whether the injury which the accused intended was sufficient in the ordinary course of nature to
cause death or was merely 'likely' to cause death will depend upon the weapon used, the number of
blows struck, the force with which the weapon was used and the part of the body injured. A IR 1966
SC 148.
(10) The question whether an injury is one which is sufficient in the ordinary.course of nature to
cause death is fundamentally one of fact. AIR 1977 SC 2308.
(11) The. question whether an injury is one which is sufficient in the ordinary course of nature to
cause death is a matter of evidence. AIR 1959A11 255. .
(12) A case will fall within clause 3 when the degree of probability of death is very great and
certainly so where death is the inevitable result of the intended injuries, whether the culprit intended
death or not or even did not know that death would result. AIR 1966 SC 148.
(13) Each case has to be decided in the light of probability of death and not in the light of the
intelligence or knowledge of the culprit, for to do so would place an intolerable and unjustifiable
burden on the prosecution. AIR 1939 Loh 245. .
(14) Where the accused inflicted stab injuries on vital part which penetrated to a depth of 1 and 3/4
inch pierced the left lung and had cut the forth rib of the deceased who came to the spot as peace maker,
Sec. 300 Of Offences affecting the Human Body 785

through and through, it could be said that considerable force was used by the accused and the injury
was sufficient in the ordinary course of nature to cause death, consequently the case fell clearly within
3rd limb of S. 300. A IR 1980 SC 2110.
(15) An injury sufficient in the ordinary course of nature to cause -death is not necessarily fatal. AIR
1967 A ll 495..
(16) An injury sufficient in the ordinary course of nature to cause death is not necessarily an.injury
which inevitably and in all circumstances must cause death. AIR'1953 A ssam 45.
(17) Time lag and negligence of the , deceased in getting treated properly are no criteria in
determining the question whether the injury is sufficient, in the ordinary course of nature, to cause
death. AIR 1979 SC 80. .
(18) Injury to a vital part of the body is not a necessary ingredient to determine whether a case falls.
under clause 3 of S. 300.or not. AIR 1946 Nag 120. . .
(19) Where the accused smote the deceased on the leg abovà the ankle with his dah cutting
through the bones and arteries, the injury was held sufficient in the ordinary course of nature to cause
death. AIR 1940 Mad 745. .. .
(20) Where A gave ablow on the head of B who was standing in verandah and B fell down and a
wound was thereby caused to B on the head which was sufficient in the ordinary course of nature to
cause his death, and he died, it was held that A was guilty of murder. A IR 1955 HimPra 20.
(21) Accused giving lathi blow on the head of deceased; Attack premeditated and not accidental—
Injury, inflicted sufficient in the brdinary course of nature to cause death and actually resulting in
death--Case falls under C1;3rdly of S. 300. AIR 1972 SC 952.
(22) Even if none of the injuries by itself is sufficient in the ordinary course of nature to cause death
of the deceased, cumulatively they may be so. AIR 1977 SC 1998.
(23) Accused poured acid on the body othe deceased—The burns were to the extent of 35 percent
of the body—Death—Accused, held, intended to cause such injuries and the injuries were sufficient in
the ordinary course of nature to cause death. AIR 1974 SC 2328. • ..
(24) Accused administering lathi blows on person of deceased—Latter surveying for.,three weeks—
Injury not incurable—Held injury was not sufficient in the ordinary course of nature to cause death. AIR
1955 SC 439. . .. .
30. Fourth clause of S. 300-Doing imminently dangerous act with reckless indifference to
its probable cossequence.—( 1) The existence of a right of private defence is a sufficient excuse for
incurring the risk of causing death, and in such a case the enquiry whether the accused had knowledge
of the kind mentioned in S. 300 becomes unnecessary. AIR 1939 Rang 225.
(2) Clause 4 comes into play only if no other clause applies. A IR 1955 Pepsu 165.
(3) In case of intentionally causing bodily injury to a particular person,. the question whether such
an act is murder has to be decided with reference to the first three clauses of Section 300. The fourth
clause is designed to provide for rare classes of cases, like putting in jeopardy lives of many persons as
envisaged in Illustration (d) of the section and the like, A IR 1964 Pat 334.
(4) The broad distinction between this clause and the first three clauses is that in the latter the
important thing is an intention to kill or to cause bodily injury, while this clause r aysr hing.about
intention. AIR 1914 Lah 98. .. . . . ..
786 Penal code Rec. 300
• (5)
Where A first assaulted B with a dab and was trying to assault B a second time, B, in
the exercise of his right of private defence, cut A with his own dab causing his death, it was held
that B had not committed any offence and had not exceeded his right of private defence. A IR 1939
Rang 225.
(6) Where a person sets fire to the clothes of another, the former must have known that he was
running the risk of causing the death of the latter or such bodily injury as is: likely to cause his death.
His act will fall within clause "fourthly" of S. 300. AIR 1968 SC 881.
(7) When a:police constable fired his rifie at another constable as a result of which the victim died
on the spot it was held that the case squarely falls within clause fourthly of the definition of murder in
S. 300 and not of any lesser offence. AIR 1983 SC 614. ..
(8) Where the accused held the legs of the deceased while others killed him and there was nothing
to show that these others committed the act in furtherance of a common intention between them and the
accused, it was held that the act of the accused himself was not so imminently dangerous that it must
in all probability have caused the death of the deceased and that this clause did not apply* . 'A IR 1957.
A ll 184. . ...' , .
(9) Where a spear thrust was given by the accused with such force that it went deep into abdominal
cavity, penetrated the peritoneum and lacerated the large intestine and the bladder, it can be assumed
that the accused knew,that the injury must in all probability cause death. AIR 1959 All 255.
(1, 0) Where a grown-up person' stabs another person on the stomach in the region of the umbilicus
inflicting a wound 3" long and causing the intestines .to protrude through it and the injury is found by
medical officers tobe a very serious injury with very little chance of survival and death also occurs as a
result of that injury, it would almost amount to judicial misconduct' to hold that there was no intention
to cause such bodily injury as the assailant knew to be likely to cause the'death of the victim or that he
had no knowledge that his act was so imminently dangerous that it must in all probability cause death
or such bodily injury as is likely to cause death.' AIR 1959 Ker 230.
(11) The fourth clause of S 300 applies to cases where the at of the nature referred to in
'illustration (d) has been committed without the intention of causing an injury to any particular
individual It does not apply to a case where an accused person has fired his revolver at another
deliberately. A IR 1937 Cal 432. ..
(42) Where an ill-treated wife who was in dread of her husband and who, in endeavoring to escape
from her husband, got into panic on seeing him, behind her and jumped into an open well with her
baby in her arms and the baby died as a result of .the jump into the well, it was.hetd that the fourth
clause of S. 300 did not apply because the act of her jumping into the well was not inexcusable. AIR
1940 A ll 486
(13) Medical practitioner administering for treatment of disease medicine not at all prescribed as
proper remedy for it in any system Of ' medicine—Act falls UCI. (4) of S. 300. AIR 1963 MadhPra 102.
(14) Shooting' single arrow on thigh (not vital part of body) of deceased—No knowledge of act
, being imminently dangerous—Death accidental. AIR 1956 Madh B 207.
31. Exception__. eneraI._41) Murder is an aggravated form of culpable homicide. The existence
of any one of the four conditions in the section turns culpable homicide into murder' while the
exceptions reduce the offence of murder again to one of culpable homicide not amounting to murder.
A IR 1966 SC 1874.. • • .
Sec. 300 Of Offences affecting the Human Body 787
(2) The Code recognises no exception to a case of murder other than the five exceptions enacted in
S. 300 and no Court will be justified in reducing a crime of murder into one of culpable homicide not
amounting to murder without advertence to these exceptions. 41R 1954 Tray-Co 396
(A ) Burdn ofproof— (1) The burden of proving the existence of circumstances bringing the case
within any general or special exception or proviso in the Penal Code is upon the accused and the Court
shall presume the absence of such circumstances. AIR 1964 SC 1563.
(2) If upon the facts of the case and the evidence let in by the prosecution itself it appears that the
accused is entitled to the benefit of any of the exceptions, he cannot be deprived of it on the around that
he has not pleaded it nor proved it. AIR 1974 SC 1351.
(3) Neither the falsity of his defence, nor his ignorance nor any mistake or omission of the lower
Courts or advocates should deprive him of the benefit of it. AIR 1941 Bind 117.
(4) Accused can rely on the facts brought out in the case and may thus discharge the burden of
proving the exception; even when he has not pleaded or let in evidence thereon. AIR 1964 SC 1563.
32. Exception 1.—(l) In order to bring the case within this exception it is necessary that the
following facts should be established:-
(i) The offender must have done the act whilst deprived of the power of self-control.
(ii) He must have been so deprived by reason,of the provocation.
The provocation must have been grave and sudden.
'(iv) The provocation must not have been sought by the offender.
(v) It must not have been voluntarily provoked by the offender as an excuse for doing the act.
(vi) The provocation must not have been given by anything done—
(a) either in obedience to the law, or
(b) by a public servant in the lawful exercise of his powers as such, or
(c) in the lawfiul exercise of the right of private defence. (1972) 1 MyiLJ306.
(2) Something which is done suddenly and in the heat of passion caused by provocation is done•
impulsively and at a time when there is temporary suspension of reason and an act so done is not
controlled or planned or perceived or deliberate. 1982 CrIL.J 1229 (1233).
(A) Deprivation of self-control.— ( 1) The whole doctrine relating to provocation. depends on the
fact that it causes or may cause a sudden and temporary loss of self-control whereby malice which is the
formation of an intention to kill is negatived. 1973 Cr1LJ 521 (Assam).
(2) There must exist such an amount of provocation as would be excited by the circumstances in
the mind of a reasonable man so as to lead the jury to ascribe the act to the influence of that passion.
AIR 1-062 SC 605.
(3) It is not open to the accused to show that he was a person Of a particularly excitable nature or of
a particularly unstable mind or of a particularly volatile temperament. AIR 1969 All 61. ---
- (4) Once the power of self-control has been lost, the accused, it has been held, cannot be expected
to retain such a degree of control over himself as to exercise a choice over the weapons used by him for
the attack or to show that his mode of resentment bore a reasonable relationship to the provocation
which operated upon him. AIR 1964 All 262. -
- (B) Grave and sudden provocation— ( I) In determining what amounts to grave and sudden
provocation the Court may take into account the habits, manners and feelings of the class Or
788- Penal Code Sec. 300

community to which the accused belongs, but not of the particular idiosyncrasies of the offender. AIR
1966 Ker 258.
(2) What amounts to grave and sudden provocation depriving the offender of his self-control may.
thus vary according to circumstances and according to the general standard of self-control among the
people of the class involved. AIR 1972 SC 502.
(C) Time to cool down.'-(l) If it appears that there was sufficient time for the passion to cool
down and for reason to get the better of the transport of passion and the subsequent acts were deliberat
before the mortal wound was inflicted, the exception will not apply. AIR .1974 SC 387,
(2) It is impossible to lay down any hard and fast rule as to when a person should be said to have
had time to cool down thus be deprived of the benefit of the exception. Much depends upon the
individual characteristics of the accused and that element cannot be ignored in the determination of the
matter. A IR 1943 Lah 123. .
(3) It is not necessary always that the act of the accused should immediately follow the
provocation. A IR 1920 Lah 501. . .. .- .
(4) If the accused continued to be under the 'influence of the provocation until he killed the deceased
he will be entitled to the'benefit of the exception. AIR 1942 Mad 415.
(D) Source of provocation^ ( 1) The provocation must have come from the victim. 1973 CriLJ:
1220 (All).
(2) The provocation must have come from the victim but it need, not have come from the victim
.
within the sight or hearing of the offender. A IR 1932 Sind 18.
(3) Information received from a reliable person and believed to be credible as to the existence of a
provoking act and verified to be correct can amount to a sufficient provocation. AIR 1943 Lah 123.
(4) Where a provocation ripens into resentment and malice and the person aggrieved deliberately
determines to take the life of a person, the exception will not apply. A IR 192 SC 605
(5) There can never be any, direct evidence as to what was the psychological effect upon the mind of
a person in certain circumstances. The, state ofthe mind of a person must be gathered from proved facts.
A IR 1947 OudhI48. . . . . .
33. Grave and sudden provocation.—(l) It is not every slight provocation which will reduce.
the crime from murder to culpable homicide not amounting to murder. AIR 1977 SC 1801.
(2) The provocation mentioned in the section is something which is recognised as provocation in
law and not merely something which arouses uncontrollable anger in a' particular individual. AIR 1939
Pat 1 43. .
(3) Where A who has no authority of any kind over B, orders B to do a particular thing and B
refuses to obey and A thrashes B to death, the exception cannot possibly apply to the case. AIR 1928
Oudh 282.
(4) The impact of provocation on human frailty is to be judged in the context of the social position
and environments of the person concerned. The restraint which is 'generally shown by sophisticated
persons used to modern living is hardly to be expected in the case of a villager who still regards a wife
as his personal property and chattel amenable at all times to his desire for sexual intercourse. AIR 1967
Punj 508.
14. Abusive language.—(l) Mere abuse in , filthy language would not amount to grave and
sudden provocation. AIR 1962 SC 605.
Sec. 300 Of Offences affecting the Human Body 789
(2) Words cannotordinarily constitute provocation except in ver*y special circumstances. AIR 1962.
SC 605.
• (3) Merely abusing a man's relation is notsudden and grave provocation. AIR 1920A11 184.
(4) It is a question of fact in each case whether the abusive language, was a grave and sudden
provocation. AIR. 1953 Bilaspur 27.
35. Infidelity of wife or mistress.—(l) Where a man sees his wife in the act of adultery—in
flagrante delicto—with.anbther, he will be considered to have grave and sudden provocation and if
under such provocationhe acts without deliberation and kills the wife or the paramour or both, he
would be within the exception. 1975 CriLJ 114.
(2) The fact that the woman seen by the accused in the act of adultery is not his wife but his
mistress was held not to make any difference for thepurpose of provocation, the question of provocation
being -a psychological question. It was held not possible to apply considerations of social morality to
such a question. A IR 1943 Par 443.
(3) Where .a person is merely betrothed to . a girl or is having with her only an intrigue sanctioned
by the custom of their community but in no way incurring the obligation of marriage unless and until
the girl becomes pregnant by him, he cannot have grav! and sudden provocation if he finds another
person having sexual intercourse with the girl. A IR 1939 Pat 443. .
(4) If notwithstanding the provocation, the accused has had time for deliberation and did not lose
his self-control, the exception will not apply. AIR 1962 SC 605.
(5) Where the belief of the accused that illicit intimacy which might have existed earlier between
his wife and the deceased had ceased to exist because of his change of residence was shattered when he
found that the deceased had come to his new residence in his absence, it was held that this must have
given the accused amental jolt and as this knowledge came to him all of a sudden, it was sufficient to
give him grave and sudden, provocation. AIR -1960 All 223.
(6) The mere fact that a man is found in the house at rtight cannot amount to a grave and sudden
provocation. AIR 1952 Sau 3. .
36. Suspicion of unchastity.—(l) Suspicion of unchastity, however strong it may be, cannot be
considered to be a-sudden provocation and cannot reduce-the offence of murder into one of culpable
homicide not amounting to murder, 1971 Ra1LW 4. .
(2) Where S suspected G of carrying on an intrigue with his wife and finding one night that his
'wife was not by his side and, imagining that she must be having intercourse with G, went to G's
house and seeing G sleeping with a woman (who, however happened to be G's wife) and thinking that
the woman was his wife, killed them, it was held that the suspicion was not an extenuating
circumstance and that the offence was premeditated and brutal. AIR 1945 Lah 91.
37. Misconduct of female relation other than wife.—(l) Where A was found by B to be in B's
house at midnight and was seen by B to put his arms round B's -sister, it was held that the
provocation was grave and sudden. AIR 1924 Lah 62... -
(2) Where a man comes home and finds a person actually misbehaving with his relation the
- provocation must be held to be grave and sudden. A IR 1926 Lah 485.
(3) Where a step-mother made improper overtures to her stepson and the latter killed her in a fit of
resentment, it was held that the stepmother's act did not amount to, a grave and sudden provocation.
A IR 1930 Lah 415. . -
790 Penal Code Sec. 300
(4) Where the mother of the accused had run away With her paramour (the deceased) on several
occasions, it was held that, in spite of the pangs of shame and humiliation which the accused must
• have been feeling, it could not be held that the provocation given by the mother in running away with
her young daughter on the last occasion was grave and sudden as the matter had become chronic. AIR
1932 Lah 438.
(5) Fact that deceased was seen in jungle sitting by a female relative of accused may not amount to
grave and sudden provocation. AIR 1943 Lah 43.
38. Pangs of jealousy.—(1) The mere fact that the accused was suffering from pangs of jealousy
cannot furnish any ground for saying that he received any provocation at all. The fact that the deceased
fell in love with the same Woman with whom the accused was in love and the fact that the accused was
not prepared to give up his illicit connection with the woman at the bidding of the accused cannot be
said to be conduct giving grave provocation to the accused. AIR .1934 Oudh 222.
39. Provocation grave but not sudden.—(1) The provocation must be grave as . well as sudden.
(1967) 2 A ndhW R 395.
40. Provocation sudden but not grave.—( 1) Where the provocation though sudden is not grave,
the exception does not apply. AIR 1957 All 317(319).
(2) A provocation cannot be said to be grave unless it is such as would, in a reasonable man,
justify the loss of self-control to the extent of killing of the person giving the provocation. The
resentment caused by the provocation and the act done in consequence thereof must have a reasonable
relationship to the provocation. (192) 1 CrILJ 261,
41. Test of provocati6n.—(1) The test of provocation contemplated by Exception I is whether a
normal man as distinguished from an abnormal man or a man who is hypersensitive would lose his
self-control to the extent of causing the injuries inflicted. AIR 1962 SC 605.
(2) In order to determine whether the provocation was such as to deprive the offender of his self-
control, it is admissible to take into account the condition of the mind the offender was in at the time
of provocation. A IR 1962 SC 605
• (3) The instrument with which the homicide was effected should also be taken into account in
deciding whether the provocation was grave and sudden. To retort in the heat of passion, induced by
• provocation, by a simple blow is a very different thing from making use of a deadly instrument like a
sharp and large knife. In short the mode of resentment must bear reasonable relationship to the
provocation to reduce the offence to culpable homicide not amounting to murder. AIR 1957 All 377.
42. Burden of proof of provocation.—(l) In order to get the benefit of the Exception 1 the
accused must prove that he committed the act by reason of grave and sudden provocation and that the
provocation was such as to have deprived him of his self-control. The Court will presume the absence
of grounds of exception. AIR 1915 Cal 773.
(2) The burden of proof is on the accused to show that he comes within the exception. AIR 1915
Cal 773.
(3) A tendency to assume that because the murdered person was the murderer's wife, he must have
received provocation from her, and to supply by conjecture the absence of evidence on the point, should
be discouraged. AIR 1921 Mad 303.
43. Provocation sought—Proviso I to Exception 1.----(I) The proviso to the exception makes it
clear that the provocation must not have been sought by the accused. The provocation, it has been
said,, must come to the offender. AIR 1969 All 61. ..
Sec. 300 Of Offences affecting the Human Body 791
(2) Where the accused knew that his sister was suspected of intimacy with another person and he
leaves the house with an axe, goes to his sister's house, breaks into it, and murders them both, the
provocation cannot be held to be sudden. A IR 19.37 Lak 562,
(3) Where a provocation is given by the offender himself, he cannot subsequently urge that the
opposite party had acted in a provocative manner. AIR 1969 All 61.
(4) Where A had already accused B to his knowledge and B challenges 'A to repeat the same and
on A's repeating it kills him, the exception will not apply. A IR 1923 Nag 251.
(5) Accused following wife with a view to bring her back—She promised to go back to him next
day—No provocation. AIR 1938 Rang 441. . ..
• 44. Loss of self-control by self-induced intoxication.—(1) It may be that an excitable,
pugnacious or intoxicated person may be more easily provoked than a man of quiet or phlegnjatic
disposition, bu
t the former cannot rely on his excitable state of mind if the violence used is beyond that
which a reasonable or an average person would used to repel an. act which can in law be regarded as
provOcation. (1978) 45 Cut LT 604. ..
45. Provocation by lawful act—Proviso 2.—(1) An arrest or attempted arrest by aprivate
person, if not strictly justifible by law, is not outside the provocation mentioned in the exception. AIR
1933 Pat 508. .
46. Provocation by public servant—Proviso 2.—(1) Under the present proviso an act done by a
public servant in the lawful exercise of his powers cannot be considered a provocation which mitigates
the offence of murder. Unlike this proviso the exclusion of the right of private defence is not confined to
things done in strict conformitywith the law. A IR 1933 Pat 508.
47. Provocation by act done in exercise of right of private defence—Proviso 3.—(l) That
A
is exercising his right of private defence against B cannot amount to a provocation to B. (1911) 12
CriLJ 477. . . . .
48. Question of provocation one of fact—Explanation to exception 1.—(1) If, on the facts
and circumstances of the case, the Court comes to the Conclusion that there was grave and sudden
provocation, the case will come under Exception 1. AIR 1918 All 189. . .
49. Exception 2—Excessive exercise of right of private defence.—(1) This exception deals
with death caused by the excessive exercise of the right of private defence of person or property.
(1965)(2) Cr!LJ 440. ,. . . .. . . .
(2) The voluntary causing of death in the exercise of right of private defence reduces what would
otherwise be murder to the offenCe of culpable homicide not amounting to muider. 'AIR 1978 SC 1538.
(3) Illegal seizure of cattle purporting to be under S. 10, Cattle-trespass Act (1871)—Does not
amount to theft---Owner of cattle has no right to use force to rescue them—Perso'n seizing cattle held
committed no offence in resisting attack by owner's party with arms and lathis. A IR 1965 SC 926,
(4) Culpable homicide will not be murder, is in the exercise in good faith of the right of private
defence, the accused exceeds the powers given to him b3 law, and causes the death of the person against
whom he is exercising such right of defence, (a) without premeditation and (b) without any intention of
doing more than is necessary for the purpose of such defence. A IR 1979 Sc 1179.
(5)The exception can only apply when the accused acted in defence. 1fheis himself the aggressor,
obviously he cannot claim a right of private defence. AIR 1979 SC 1230. • S
792 Penal Code Sec. 300

• (6) Where there is evidence, even on the side of the prosecution, showing circumstances from
which an inference of the exercise of the right of private defence may be drawn, the accused may raise
the plea of private defence and the Court is bound to consider the same. A IR 1975 Sc 1478.
(7) Where there is no right of private defence at all the Exception cannot apply. AIR 1965 SC 257.
(8) Accused giving knife blow to deceased On finding the latter sitting on the chest of the accused's
brother and giving fist blows—Accused held exceeded his right of private defence—Was convicted
under S. 304 1st Part. A IR 1971 SC 1491.
• (9) Murder—Plea of private defence by accused—Accused killing deceased by gun shot claiming
that entrance of deceased with others armed with lathis in his house generated in his mind apprehension
of being killed—Evidence showing that deceased never entered the house and did not do any act to
cause reasonable apprehension of immediate danger to the accused—Plea of accused is unbelievable—
Conviction for murder is proper. AIR 1983 SC 575. .
(10) Where the accused had chased the deceased who was unarmed and stabbed him at two places.
and was poised to give a further blow which was foiled by the intervention of a third person and the
accused pleaded that he had done this in right of private defence it was held that under the
circumstances the accused had nor right of private defence accrued to him and hence his case did not
come in exception II. AIR 1980 SC 108.
(11) Murder—Plea of private defence—Accused continuing to assault deceased after he had fallen
down and was rendered harmless—Plea of private defence was not available. AIR 1983 SC 488.
50. Good faith.—{1) In order that the offender may benefit by Exception 2, he must act in "good
faith". 1976 CriLJ 611 (Orissa);
(2) The question, in cases falling within the Exception, must be whether the accused acted
honestly or whether he used the opportunity to pursue a private grudge and to inflict injuries which he
intended to be inflicted regardless of his rights, that the section punishes a criminal act in excess of the
right of private defence and it is impossible to regard due care and attention in the sense wliich is
usually ascribed to it as an element in such criminality. AIR 1940 Rang 129.
51. "Exceeding the powers given to him by law".----(i) A persOn who exceeds his right of
private defence and kills his assailant comes under the Exception and is guilty only under S. 304 and
not. 302. A IR 1980 SC 660.
(A ) Intention and circumstances— importance f__( 1) The exception deals not .with fact but with
the intention of the accused and refers to circumstances in which a person does not take advantage of the,
right of private defence to kill.with a vengeful motive, but exceeds theright of inflicting fatal injuries,
where the infliction was in fact unnecessary and where there was reckless criminality though the right of
private defence was the only impulse operating on his mind. (1974) 40 CutLT 495.
(2) The question whether the accused, in any particular case, exceeded the right of private defence
is one of fact. The standard to be applied in judging whether the right has or has not been .exceeded is
not that of a cool bystander. 1968 Cr1LJ 255 (Ker).
(B) Illustrative cases.— (1) Accused was taking cattle to the pound. The deceased forcibly
attempted to rescue the cattle from being so taken. Accused thereupon hit the-deceased with a lathi and
killed him. It was held that it was a case of exceeding the right of private defence. AIR 1953 All 555.
(2) Deceased committing offence under Section 430—Accused in preventing mischief inflicting
injury resulting in death—Accused exceeds the right of private defence. AIR 1960 Mad 240.
Sec. 300 Of Offences affecting the Human Body 793

52. Exercise of right of private defence must be without .premeditation.—(l)., Court cannot
presume absence of premeditation; circumstances must justify such an inference being drawn. 1978
CriL.J 578.
(2) Where the accused armed with a deadly weapon proceeds upon a house-breaking expedition and
uses the axe on the pursuer armed only with a lathi, in order to escape, it cannot be said that he was
.exercising his right of private defence without premeditation or, without the intention of causing more
harm than was necessary. AIR 1947 Sind 107.
• (3) The deceased, none of whom was in-possession of any dangerous weapon, were harvesting the
crops on a plot of land with peaceful intention under the protection of the police. The accused who
claimed the crops attacked the deceased with guns and other dangerous weapons and shot them from
close range after sending away by a ruse the constables. It was held that the Exception did not apply as
it could not be said that the accused had shot at the deceased without premeditation and without the
intention of doing more harm than was necessary for the purpose of private defence. AIR 1965 SC 257.
53. "Without any intention of doing more harm than is necessary for such defence".—(l)
The exception provides that under certain conditions the act of the accused in causing death by
exceeding his right of ptivaté, defence, will only amount to culpable homicide not amounting to
murder. One of these conditions is that the accused should not have intended to cause more harm than
is necessary for the defence, though obvious .ly the harm caused must,, in order to exceed the right of
private defence, be more than was necessary for the defence. (1969) 35 CutLT 322.
• (2) A few scratches given by an unarmed assailant on the back Of the accused is not enough to give.
the accused-a right of private defence to the extent of causing the death of the assailant. If he acts in a
cruel and unusual manner, his intention to cause more harm than is necessary can be inferred. AIR 1923.
Lah 232: .
(3) "ere the deceased, who was unarmed, started abusing the accused and went near him; it was
held that the accused was not justified in taking a knife and killing him and in such a case Exception 2
would not apply. A IR 1950 Trav-Co 12..
• (4) Deceased first giving blow with hind portion of spade on accused's back---Kccused inflicting
39 injuries with sickle, three of them individual fatal—Intention to do more harm than necessary for
defence found. 41R 1965 Mys 150.
54. Exception 3—Exercise of lawful powers—Excess of.—(l) Nothing is said to be done or
believed in "good faith" which is done or believed withOut due care and attention. AIR 1937 Pesh 23.
(2) Where there is no good faith as so defined the exception will not apply. AIR 1945 Sind 38.
(3) Where, for instance, an order to shoot is given by a public servant when there was absolutely
no occasion to do so, his order is illegal and neither the public servant nor the person acting under the
order can be said to have acted in good faith. A IR 1950 East Punj 321.
(4) Where a suspected thief who had been arrested by a police constable escaped from a running
train and the constable pursued him and when he was not in a position to apprehend him, fired at him,
but in that process he hit the fireman and killed him, it was held that the case was covered by this
exception. AIR 1955 All 370. ••_ . . .
55. Killing under officer's order.—(l) Shooting by the accused under an illegal order of his
superior is, as has been already seen, no excuse. Both of them are equally guilty. But it may mitigate
U'
punishment. A IR 1950 East Punj 321. '.
794 Penal Code Sec. 300

56. Killing under threat of others.—(1) Section 94 ante, provides that act clone under threats,
except murder, is not an offence under certain circumstance. A threat is not a mitigating circumstance
in the case of murder. AIR 1938 Pat 258.
57. Exception 4.—(l) In order to bring a case within Exception 4 it must be proved that the act
was 'done without premeditation. 1979 W LN (UC) 230 (Raj), 1983 PakLD 79 (81) (Sc,).
(2) All the elements of exception 4 i.e., the act must .have been done:; (1) without premeditation;
(ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a,sudden quarrel; and (v) without the
offender taking undue advantage or without acting in a cruel or unusual manner must exist. AIR 1979
SC 133. . .,
(3) Exception was applied only where all the elements existed. AIR 1978. SC 315.
(4) The exception is meant to apply to cases wherein, in whatsoever way the quarrel originated,
the subsequent conduct of both the parties put them on an equal footing. AIR 1.926 Lah 219.
(5) The number of wounds is not the criterion but the position of the combatants with regard to
their arms and the use of those arms are considerations to bekeptin mindwhen applying Exception 4
to any particular case. AIR 19$5 Pesh 59. . . . .
(6) Where a per.on causes the death of another person in the exercise of the right of private defence
of person, no occasion will arise to determine whether his case comes under Exception 4 as such a
person does not commit the offence of culpable homicide as defined in Section 299. AIR 1960 All 567.
- (.) Where the,accused chased the deceased who was unarmed and stabbed him twice and was
poised to give a further blow.which was foiled by the intervention of a third person who gave a blow to
the, accused on lis head and it was found that the deceased had not come armed for a fight and there was
no mutual exchange of blows between the' accused and the deceased it was held that the case did not fall
within Exception IV. AIR 1980 SC 108.
58.. "Sudden fight"..-.--(l) "Fight" is not defined in the Code. It means a combat or an
engagement between two persons or parties. It implies an exchange of blow 1980 RajdhaniLR 120.
(2) Where it is all a one-sided affair, only the accused causing' injuries to his opponent who does
not retaliate, there isno 'fight' at all and the exception will not apply. AIR 1959 All 131. -
(3) Exchange of blows is not necessary to constitute a fight and' that words may be as prdvocative
as blows. A IR 1946 Lah 41.
(4) The fight must be with person who is killed and not with a third person. If A fights' with B
and C asks them not to fight, the attack on C. by A cannot come within the exception. A IR 1956 SC
99; 1955 PakLD 356 (DB).
(5) Where there is a fight between A and B and C comes and hits 'B, the exception cannot apply.
1955 PakLD ('Lzh) 356; A IR 1955 NUC (Pepsu) 3280. . '.
(6) Sudden and unpremeditated fight—Both parties inflicting injuries by weapons—Death of one
person—Case held covered by Exception 4 to S. 300. AIR 1951 Raj 129.
(7) Murder—Only one blow with knife—Accused having no dispute with deceased—Incident
occurring on spur of moment—Held, accused was guilty of committing offence under S. 304. Part II—
Conviction altered from Section 302 to 304. Part II. AIR 1984 SC 759.
59. "Fight"..—(l) An affray can be a fight even if one party in the fight is successful in landing a
blow upon his opponent. In order to constitute 'fight' it is necessary that blows should be exchanged
even if they do not all find their target. A IR 1955 Punj 191. - '-
Sec. 300 'Of Offêncés affecting the Human Bàdy 795
60. Exception 4 applies o Iyifthà' ciilpable homicide is done without premeditation.—(l)
Exception 4 comes into play only If death is caused without premeditation. AIR 1981 SC 1552.
(2) It is necessary, in órdettocoñstitute an act a premeditated one, that the accused should have
reflected with a view to determine whether he would kill or not, and that he should have determined to
kill as a resultof that reflection. AIR 1951 Punj '137.
(3) The important factor is not whether the killing was premeditated but whether the act which
caused the killing was premeditated. AIR 1939 Rang 225.
(4) Where though the act of the accused was not premeditated in the sense that he preplanned to
kill the deceased, he was actuated by pre-existing enmity to finish him when he found the deceased in a
fallen and helpless position lying on the ground, it was held that he was guilty of murder. A IR 1954
SC 706.
(5) Sudden quarrel on spur of moment arising Out of trivial reason—No premeditation or malice—
Young man causing single blow by knife on chest of victim causing his death—Knowledge that he was
likely to cause injury which was likely to cause death could, however, be inferred—Offence fell under
Section 304, Part II and not under Para I or 2 of S. 300. A IR 1983 SC 463
61. "Sudden. quarrel".—(l) There must not only be a sudden fight but the quarrel also must be
sudden. AIR 1967 All 204(206),
• (2) It is not necessary that the plea of a sudden fight on a sudden quarrel should be taken by either
side. It is, however, necessary that the facts of the case determined after a consideration of all the
evidence must be capable of giving rise, with a reasonable amount of definiteness, to the conclusion
that it was a case of sudden fight upon a sudden quarrel. AIR 1967 All 204.
62. "Without taking undue advantage".—(l) All the ingredients must be present for, the
Exception to apply. AIR 1959 All 131.
not
(2) The offender should have taken undue advantage over the deceased. AIR 1959A11131.
(3) The expression "undue advantage" means unfair advantage. A IR 1959 Pat 66
(4) The question as to whatis undue' advantage in any particular case is a question of fact and not
of law. A IR 1956 SC 99......
(5) Where Exception 4 is applicable, at the beginning of a fight, it cannot be held that one of
participants has taken undue advantage over the other because the latter has acknowledged defeat and
has turned tail and thereupon the former combatant pursues the advantage which he has gained. AIR
1955 NUC (Lah) 5242
61 "Acting in a cruel'or unusual manner".—(l) Where one party is dangerously armed and
the other is unarmed, and the forrner;uses his arms against the latter and kills him, when there.is no
serious provocation or, attack by him, it must be held that the former acts in a cruel and unusual
manner. 1969 CriLJ 1183 (Punj)..
(2) Where the accused stnlck.with lathi only one blow on the head and one on the leg in a sudden
and unpremeditated fight, it was held that the accused did not act in a cruel and unusual manner. AIR
1929 Lah 719.
(3) Where two contending parties, each armed with sharp-edged weapons, clash and in the course
of a free fight some injuries are inflicted on one party or the other, it cannot be said that either of them
acted in a cruel or unusual manner. AIR 1957 SC 324.
796 Penal Code Sec. 300

(4) Deceased in a fallen and helpless position lying on ground—Accused stabbing him with spear
on his jaw—Held nature of stab was brutal and fatal which showed his deliberate intention—Accused
held guilty of murder.. A /R 1954 SC 706
64. Exception 5.--(1) This Exception provides that culpable homicide is not murder if the person
whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death
with his own consent. AIR 1940 Mad 138.
(2) The consent by the deceased must be given unconditionally and without any reservation.
Where although the wife flatly refused to go back to her mother and said that if her husband insisted on
her doing so she would rather be killed, the consent was held to be not of the type contemplated by S.
300. A IR 1956 Mad
(3) Where the accused strangled his beloved aged 16 to death upon their decision to die together in
despair because of their future separation, it was held that though the exception may not apply, the
spirit of the exception may be applied and that the sentence should be one of transportation for life. AIR
1929 La/i 50.
(4) The accused was a student of class X. He had failed at the annual examination for three years in
succession. His wife, aged 19, was a literate woman. The accused took his last failure so much to heart
that he informed his wile of his decision to end his life. His wife asked him to first kill her and then
kill himself. It was held that the consent given by the wife wai not under any fear of injury or under a
misconception of fact and the accused in killing the wife was guilty under S. 304, first part, and not
under S 302. A IR 1958 Pat 190. .
(5) Where the accused killed his stepfather, who was an infirm old man with his consent in order
to involve some of their enemies in trouble by charging them with murder, it was held that the case
was covered by the 5th exception. AIR 1918 Lah 145.
65. Burden of proof.—(l) The fundamentaf principle is that the accused must be presumed to be
innocent until the contrary is proved by credible testimony adduced by the prosecution. The accused is
not found to go into the witness-box and is not to offer any explanation at all. The fact that does not
open his mouth cannot be used against him. A IR 1975 SC 573..
(2) The counsel for the accused can point out that the evidence is quite consistent with an
explanation which fits in with the accused's innocence and the Court can accept it. AIR 1954 J&K 19.
(3) There is no onus on the accused to prove accident or necessity. AIR 1949 Lah 85(87).
(4) It is not for the accused to prove that he had no criminal intention or knowledge or to prove
how the deceased met with his death. AIR 1960 And/i Pra 153.
(5) The burden of proving intention or knowledge is on the prosecution. AIR 1964 SC 1563.
(6) From the mere fact of there being injuries on the victim it cannot be concluded that the accused
had the necessary indention or knowledge. AIR 1966 SC 1874.
(7) Where the burden of proving an issue is on the accused, as where he has to prove an exception
or accident or extenuating circumstance, he is not required to prove it beyond a reasonable doubt or in
default, to incur a verdict of guilty. The test is not whether the accused has proved beyond all
reasonable doubt that he comes within the exception, but whether a reasonable doubt is thrown on the
guilt of the accused. AIR 1964 SC 1553.
(8) An accused person even if he pleads an exception, is entitled to be acquitted if, upon a
consideration of the evidence as a whole (including the evidence given in support of the plea of the
general exception) a reasonable doubt is created in mind of the Court about the guilt of the accused.
A IR 1970 A ll 51. . .
Sec. 300 .Of Offences affecting the Human Body .. 797
(9) In any case, where the guilt of the accused is clear from the evidence, the absence of explanation
as to the injuries on the accused isnot of much importance. AIR 1971 SC 1232.
(10) Dead bodies in a decomposed state—Doctor did not send the dead bodies- to an anatomy
expert—Failure of doctor cannot be a ground for drawing an inference adverse to-accused--Accused.
cannot be made to suffer because of that omission—Accused and not the prosecution would be entitled
to get benefit of any gap or lacuna in prosecution evidence. AIR 1975 SC 258. -
- (11) Accused not pleading accident or giving any explanation of his act—Still court can consider
the circumstances on record and see if the requisite intention or knowledge has been proved against him
AIR 1970 Raj 60.
66. Alibi.—(I) Where the evidence is very strong against the accused it is not, possible to treat
seriously, his alibi evidence especially when that evidence is given by men belonging to his caste and
when the person, with whom the 'accused alleged he was at the time in question, is not produced.
(1936) 37 Cr1LJ 932.
(2) An accused who has failed to prove hi's plea of alibi is nevertheless not prevented , from raising
other defences. AIR 1940 Rang 129.
(3) The standard of proof which is required in regard to a plea of alibi is not different from the
standard which is applied to the prosecution evidence and in both cases should be a reasonable
standard. AIR 1953 SC 415.
67. Appreciation of evidence.—(1) Where in a murder case in view of medical evidence it was
difficult to hold with any certainty that the occurrence had taken place as alleged by prosecution witness
and defence version was false it was held that it would not be safe to convict the accused for murder.
AIR 1981 SC 1579.
(2) Murder—Accused police officials—Injuries on soles and buttocks of deceased—Does not by
itself suggest use of third degree method by accused particularly when there were many other injuries
on other parts of body. A IR 1983 SC 817. .
(3) Murder case—On his way to Court deceased surrounded by accused persons and assaulted with
Kantas, and lath is—Prosecution witnesses, • though interested, were duly corroborated by dying
declaration—Evidence of doctor, reliable—Accused persons were liable to be convicted—Fact that
dying declaration was prodced during trial was immaterial. AIR 1980 SC 443.
(4) Prosecution of accused for offence of murder of his wife—F.I.R. showing that it was a case of
accidental death as a result of burn injury—Sole evidence of deceased's mother as to oral dying
declaration found to be unreliable—No other legal evidence to found conviction of accused—Accused
must be acquitted. A IR 1980 SC 436 .,
(5) Two metallic pieces were recovered from the body of the deceased but no exit wound found on
the body though shot must have been fired from a close range. Held; the two metallic pieces must have
been parts of pellets and not bullets and the deceased must have died as result of shot fired from a gun.'
A IR 1981 SC 376
(6) Where the accused persons who had premeditated intention to assault deceased caused injuries
with spears to the abdomen of the deceased and the incident was reported to kamam immediately after
its occurrence the report could be treated as F.I.R. and the accused could be said to be guilty ofthe
offence of murder. AIR 1980 SC 2113.
798 Penal Code Sec. 300

:() Murder case—Part of Prosecution story as told by alleged eye witnesses, doubtful—Does not
necessarily falsify the whole story—Rest of the story told by - those eye-witnesses must be examined
carefully before it can be relied on. AIR 1981 SC 1579.
(8) Charge of murder against police officers—Persons killed in fire opened by police officers—.
Night of incident was cloudy and it was drizzling—Various contradictions in evidence of witnesses—
Witnesses deposing to incident nearly nine years later and making good the lapses of memory by
giving free play to their imagination—Discrepancies between the complaint and evidence of complaint
even though the complaint was lodged a month later after the incident led by prosecution. AIR. 1981
SC 1917. . .
(9) Discrepancies can be normal or matetiaL Normal discrepancies will always be there as they are:
(a) due to errors of observation, (b) errors of memory due to lapse of time. (c) due to mental disposition
such as shock and horror at the time of the occurrance and the like. Material discrepencies are .those
which are not normal and not expected of a normal person. AIR 1981 SC 1390.
(10) Charge of murde—Allegation of setting fire to deceased—No eye-witness—None of the three
dying declarations implicating accused—Accquittal of accused, held, proper. A IR 1982 sc 1052.
(11) Charge ofmurdeA-Testimony of independent witness, police showing that names of accused
were mentioned to him as assailants of deceased while beating of deceased was in progress-Information
conveyed to such witness admissible as res gestae—such testimony corroborating other evidence
supporting culpability of accused—Accused could be said to be guilty of offences. AIR 1981. SC 1221
(12) Where there was already evidence of two eye-witnesses on record, non-examination of others,
who had received injuries does not create any doubt in the prosecution. AIR 1980 SC 184.
(13) Appreciation of evidence in a case under S. 302—Sessions Judge attaching undue importance•
to minor discrepancies and taking suspicious approach to evidence of witnesses—Assessment of
evidence was altogether unreasonable and therefore High Court was right in interfering and convicting
the accused. A IR 1983 S C 599.. . . .
(14) The conduct of a doctor, in buying a box, packing the dead body of his wife into the box and
throwing it from a running train into a river is the proof of motive of murder in view of illicit
relationship with a murse. No rope was found in the house and the medical evidence does not show
that the wife hanged herself—Conviction -for murder is upheld. AIR 1984 SC 49.
(15) Accused found to have had gun and also lathi—Evidence that there was a gun shot fire and
that accused was present at the occurrence—His statement under Section 342 that he used only a lathi
cannot overweigh other evidence—His acquittal by High Court held not legal. AIR 1979 SC 1509.
(16) In appreciating the evidence against the accused the prime duty of a court is firstly to ensure
that the evidence is legally admissible. AIR 1972 SC 975.
(17) As to approach of Court on appreciation of evidence see the following cases: A IR 1979 Sc
1019; A IR 1979 SC 1697; A IR 1978 SC 1204; A IR 1978 SC 1158; A IR 1978 SC 1142; A IR 1977 SC
381; A IR 1976 SC 2263; A IR 1978 SC 2147; A IR 197625C 1970; A IR 1975 SC 1814; A IR 1975 SC -.
1727; A IR 1975 Sc 1506; A IR 1975 Sc 1484; A IR 1975 SC 1026; A IR 1975 SC 2363; A IR 1974 SC
2294.
(18) Failure of prosecution to prove motive—That accused was alone with deceased at the time of
occurrence also not proved—Accused furnishing plausible explanation as to his subsequent conduct in
running with the bloodstained clothes to police station--Conviction held was liable to be set- aside.
A IR IO2SC922.
Sec. 300 Of Offences affecting the Human Body 799

(19) Murder case—Eye,-witnesses found clever enough to make iproverments in evidence—If

amounts to a serious infirmity in the evidence which cannot be cured by subsidiary facts raising only a
suspicion. AIR 1956 Born 471.
(A) Acquittal of co-accused--Effect.— A cquittal of four out of nine accused—Case of convicted
accused not several: form of acquittal accused—Entire prosecution must be discarded. 'A IR 1975
SC 1962
(B) A dultery.— A ccused killing wife whom he suspected of having become pregnant by
committing adultery with another person—Even on day of occurrence she was missing and while she
was returning, the husband saw her and cut her off with a sickle—Conviction under s. 302 altered to
one under Section 304 and sentence reduced to 5 year's R. 1. 1978 A ll criR 440.
Behaviour of witness contrary to ordinary nature— Evidence A ct. S. 114.— (1) Accused
charged with murdering his wife by burning her—Question whether death was accidental—Strange
behaviour of accused contrary to ordinary human nature was held to prove his himicidal intention.
1976 CriLR 'SC) 502. .
(2) Mother and her two children-who were missing were immediately found in a well. When taken
out the childern were foupd dead—The mother was alive who asked as to how they fell into the well
she remained silent. She was prosecuted for murder of her children and attempt to commit suicide.
Besides that she remained silent. There was no other circumstantial evidence. The defence witness
stated that she stated that because she was starving she jumped into the well. Held, in the circumstnce
her remaining silent could not be pressed into service to commit her under Section 302. 1981 Raj Cri
C406.
(D) 'Benefit of dbubt..— (l) Prosecution evidence discrepant in material particular and self-
contradictory—Accused were given 'benefit of doubt and acquitted. 1977 Cr1LJ 1516.
(2) Murder—Neither prosecution nor defence coming out with the whole and unvarnishedcuth-
Courts can only try to guess or conjecture to decipher truth if possible This may be done within
- limits to determine whether any reasonable doubt emerges on any point under consideration from
proved facts and circumstances'of the case. A IR 1974 SC 1822 (1826) 1974 CriLJ 890.
(3) Conviction of appellent under S. 302,34 and 326, P.C. Appellent tried for murder along with
IO others—Ocular evidence unreliable—Benefit of doubt given to all except appellant--Case of
appellant not distinguishable from others—Benefits cannot be refused to appellant—His conviction
under Ss. 302/34 set aside, however, that under S.326 confirmed. AIR 1982 SC 1022.
(E) Proof beyond reasonable doubt.— (l) Accused, a life convict was last seen with two deceased
warders before he climbed up tower and proclaimed that he committed the murders—At his instance
murder weapon was recovered and his blood-stained clothes were recovered from his person—Held,
offence stood proved beyond reasonale doubt. AIR 1977 SC 1965.
(2) Where the appellant was charged with the murder of five persons the arrest of the appellant on
the spot with a blOodstained dhoti on his person and the evidence of the three witnesses coupled with
the arrest of the appellant on the very spot-of the offence and the prompt lodging of the first information
report left no doubt that the appellant committed the murders. (i982) 3 SCC 373.
(F) Case and counter-case.— In a murder trial where there is a counter case with reference to the
same occurrence the posecution is bound to exhibit the.ejahar in the counter case in order to help the
Court appreciate the totality of the circumstances because there could be no proper appreciation without
knowing both the rival versions. 1977 CriLJ (f'JO(7) 227. -
800 Penal Code Sec. 300

(G) Circumstantial evidence.—(1) The accused strangulated aseventy year old woman living all

alone and the force of strangulation was such as fractured a bone the injuries were held intentional and
deliberate and the case fully falls under Section 302. Held: a complete chain of circumstantial evidence
established guilt. AIR 1979 SC 1711.
(2) Where there was interval between death and recovery of the body not properly explained, it was
held the chain of circumstantial evidence was not complete and accused was entitled to benefit of doubt.
AIR 1979 SC 1410.
(3) Prosecution case wholly based on circumstantial evidence and dying declaration made to S. 1.
and witnesses—Conviction based thereon held justified. AIR 1979 SC 190.
(4) Conviction based on circumstantial evidence–Circumstantial evidence relied upon must forge
such a chain as to support the sole hypothesis, that the accused commmitted the murder. AIR 1977 SC
•1116.
(5) Held that all the tell-tale circumstances established by the prosecution had made the chain so
complete there was no escape from the conclusion that within all human probability, the deceaed was
kidnapped, murdered and his dead body thrown into well by none other but the accsed appellant. AIR
1976 SC 2055.
(6) Circumsances deposed by accomplice—No corroboration from independent witness—accused
held could not be convicted on such evidence. 1983 UJ (SC) 214 (2).
(W Confessions.—(l) In order to convict an accused on the confessional statement it is the burden
of the prosecution to prove . .fistly that the statement was voluntary and secondly that it was true. AIR
1981SC2007.
•
(2) Where there is only one accused who made a confession that he had killed the victim by
• assaulting him with a tangiathe provisions of S. 30 of the Evidence Act are not applicable. 1982
CriLi 2346. . .
(I) Conflict in the evidence.— (I) Conflict between'medical and eye-witness evidence—If and when
fatal. 1976 CriLl 821. . .
(2) Murder—Appreciation of evidence—Conflict between oral testimony and evidence of doctor
which does not fit in with ocular testimony—Conviction on basis of such oral testimony-Not proper.
• 1983 CrILJ 1706. .
• . (3) Patent inconsistency between medical evidence and other prosecution evidence—Physical
disability of accused preventing him from firing gun as . alleged by prosecution—Accused acquitted. AIR
1980 SC 552. . . . .
(J) Defence—Pleadings.—(l) Charge under S. 302 against accused persons A and B-Defence
raised by B that his case fell under one of the exceptions to S. 302—Held A also would be entitled to
the benefit if such defence even though he had not pleaded it but had deemed his presence altogether.
1976 CriLJ 457 (Raj);
(K)Direct evidence.— (1) Straightforward evidence corroborated by dying declaration and medical
evidence sufficient to confirm conviction and sentence of lower Court. AIR 1980 SC 443.
(2) Where the direct evidence of the occurrence was not worthy of credit the motive for the offence
set up by the prosecution was found to be false and an afterthought and the circumstantial evidence did
not unmistakably lead to the guilty of the accused but indicated suicide by the deceased held that the
conviction of the accused for the offence could not stand. 1979 All CriR 373.
Sec. 300 Of Offences affecting the Human Body 801

(L) Doubt as to credibility of witness.— (l) Accused out to murder several persons one after
another—Several shots fired—Fact that the witnesses were not meticulously precise and constant and
regards the number of shots fired not materially affect the credibility of their evidence. Unless the
contradiction between the ocular evidence and medical evidence is very great the ocular evidence need
not be rejected and the prosecution case need not be held untrustworthy. A IR 1977 SC 1066
(2) Evidence of witnesses cannot be discarded on ground that they did not react in a particular
manner. A IR 1983 sc 680.
(3) The mere fact that some of the witness do not admit or express ignorance about certain
collateral facts is hardly a ground to reject their ocular account when there is a general agreement among
them with reg4rd to substratum of the prosecution case. AIR 1981 SC 897
(4)'Witness testifying that he identifiedaccused in light of torch with him—Corroborated by direct
testimony of eye-witnesses—Version of witness could not be discarded, merely on ground that there
was no mention of torch in FIR. AIR 1981 SC 1217.
(5) Prosecution witness inculpating and accused—Name of accused absent from statement made to
police by witness—Testimony of witness could not be relied on. AIR 1981 SC 1223.
(6) 'Independent witnesses'—Evidence of—Cannot be viewed with suspicion on ground that they
are mere 'chance witnesses.' AIR 1983 SC 680.
(7) Where the statements of the only eye-witness to the crime who was removed from the scene of
occurrence in an unconscious state was recorded soon after' the recovery of consciousness and was
confined only to questions put up by the Magistrate failuri on his part to mention overt acts attributed
to assailants would not detract for his credibility. AIR 1981 SC 648.
(M) Dying declaration.— (l) Dying declaration if found to be true can be acted upon without any
corroboration. AIR 1980 SC 559.
(2) Conviction based on an oral dying declaration is not bad. AIR 1979 SC 1497.
(3) Evidence Act (1872), S. 32—Murder—Dying declaration recorded before police.officër–.
Admissible and can be relied for conviction—It need not be recorded before Magistrate. AIR 1983 SC
16.
(4) Omission of the investigation officer to obtain the doctot's attestation on the dying declaration
does not cast any adverse reflection on its veracity. 1983 PakLD 27.
(5) Accused was burnt including a good part of the brain in addition to several injuries inflicted by
làthi—Doctor not specifically stating that deceased after being burnt was conscious and could make a
coherent statement—Dying declaration presenting suspicious circumstances—accused held entitled to
be acquitted. AIR 1982 SC 1021.
: (N) Evidence A ct. S. 27— Effect.— (l) Discovery of head at the instance of accused under,
compulsion—Evidence has to be excluded. 1978 CriLJNOC 114 (A ll).
(2) Recovery of dead body by police on informat ion given by accused on being questioned is not a
conclusive circumstance but it merely raised strong suspicion against him. A IR 1971 SC 2016
(0) Extra-judicial confession. — (1.) Conviction cannot be based solely upOn extra-judicial
confession of accused, unless Court is satisfied beyond doubt that it is voluntary. (1983) 2 Crimes
424(2).
802 Penal Code Sec. 300

(2) Accused charged with murder—Convicted under Section 302----Circumstantia1 evidence relied
upon by prosecution was not sufficient to prove charge of accused—Extra-judicial confessions could not
prove guilt of accused—Accused acquitted of charges. 1984 Cr1LJN0C 58;
(P) Eye-witnesses^ ( I) Mere fact that the accused had some in p tive for committing the crime and
recovery of blood-stained clothes and weapon from accused's person and residence held not sufficient to
sustain conviction for murder where Court found evidence of so-called eye-witnesses to be wholly
undependable—Person claiming to be next door neighbour and to have seen the murder not speaking
about this to. any one till questioned by investigating officer—Evidence of such witness treated as
unreliable. A IR 1977 SC 1753.
(2) Evidence of person claiming to be eye-witness—Such witness not having disclosed name of
assailant for 1 days after occurrence—Explanation for non-disclosure unbelievable—Acquittal of
accused by•H.C. upheld by S. C. AIR 1976 SC 2488.
(3) Mere fact that the witness succeeded in escaping unhurt or that there are discrepancies in
statements of witnesses is no ground for holding that they were not eye-witnesses. AIR 1981 SC 697.
(4) Statements of only eye-witness removed from scene of occurrence in unconscious state, recorded
soon after recovery of.conscjousness, confined only to question put up by Magistrate—Failure on his
part to mention overt acts attributed to assailants does not detract from his credibility. AIR 1981
SC 648.
(5) Name of eye-witness not mentioned in F. I. R.—His evidence cannot be rejected when he was
not the person who lOdged the F. I. R. AIR 1981 SC 1241.
(6) In a case under S. 300. evidence of an eye-witness, who was an unsophisticated adivasi woman
can be relied upon in spite of minor and natural discrepancies therein. AIR 1981 SC 1163.
(7) Evidence of eye-witness cannot be rejected only on the ground that did not intervene to save
the deceased. 1981 Cr/Li 733.
(8) Eye-witnesses deposing that all assailants were armed with shari, cutting weapons like knives
and spears—Lacerated wounds and abrasions found on dead-body—Held, no inconsistency between
ocular and medical evidence as accused armed with spears had struck deceased with lathi portion of
spears—Mere non-mention of this fact in FIR is immaterial when use of spear as lathi was mentioned
by witnesses in statements recorded by Investigating Officer. AIR 1983 SC 1081.
(9) Where the High Court took broad view of the facts and acquitted three out of six accused
persons by giving them benefit of doubt and the evidence of the eye-witness was not found to be
absolutely false in regard to such accused persons, however, the number of injuries received by them
clearly indicated that more them three persons participated in the attack, the evidence of the eye-witness
could not be said to be false on material particulars so as to entitle the other accused persons to be
acquitted. AIR 1981 SC 1161.
(10) Charges of murder and abduction—Two trials—Appreciation of evidence—Alleged, eye-
witnesses, close relations of deceased, implicating named persons as assailants in earlier trial on their
acquittal implicating a different set of persons as assailants in second trial conviction in second trial is
improper. AIR 1984 SC 911.

(Q) Fingerprints— Tampering of— (1) Appreciation of evidence—Finger prints on a dibbi'

recovered from accused—Article recovered on 9-9-73 and sent to fingerprint expert on 29-6-74-
Sec. 300 Of Offences affecting the Human Body 803

Allegation that fingerprints were tampered—Fingerprints found on the article tallied with specimen of
fingerprints of accused—Tampering, held, would mean superimposing some other fingerprints—Since
the fingerprints tallied with the fingerprints of accused there was no tampering. 1977 CriLJ 684.
(R)First Information Report.— A ll accused charged under S. 302—Name of one not mentioned in
F. I. R,—His acquittal on benefit of doubt solely on the ground is illegal. 1976 CriLJ 250 (Orissa),
(S) Grave and sudden provocation.— (l) Co-owner constructing wall on common land in the
presence and in spite of the objections of the other co-owner—Latter shooting the former co-owner was
held to do so under grave and sudden provocation and the, case was held to fall under S. 304, Part I and
not under S. 302. 1978 A11L,J 1216;
(H) Hostile witness—adverse inference.—( 1) Prosecution witness declared hostile—Statements by
witness that accused was insane—Evidentiary value is little—Yet statement made by hostile witness is
not totally rejectable—Court has to judge weight to be given to it. 1977 Cr1LJ 513.
(2) Charge of murder—witness who was declared hostile being silent about person who caused
injuries to deceased—First Information Report lodged by him could not be used to fill up the gap.
1984 A LL.J275 (280): 1984 A ll CriR 12 (DB).
(U) Identification parade.—(1) The accused has a right ,to establish that the claim of the witness
that he/she knows the accused from before is false. The accused can do so by cross-examining the
witness himself. But another mode by which the accused can demonstrate the falsity of the assertion of
the witness is by seeking a test identification by the witness. 1982 Raj CriC 389.
(2) An identification parade held 44 hours after the occurrence cannot be said to a delayed one so as
to blur the mental image stamped on the memory of the witness. 1980 GnU (SC) 205.
(V) Intention to kill.—( I) Accused aiming blow with his walking stick on head of deceased must
be held to have known that death was likely to be caused as the blow was on a vital part of the body—
Conviction altered to one under S. 304, Part LI. AIR 1979 SC 1525.
(2). Accused hitting deceased with sword-stick with such force as to impart his liver and aorta and
causing his death was guilty of murder. AIR 1979 SC 1224.
(3) Held under all the circumstances of the case that the offence fell under S. 304. Part I (death
resulting from act done with knowledge of likelihood of death being caused and with no intention to
• cause death). AIR 1976 SC 2619.
(4) Accused stabbing deceased—Accused held only to know that death was likely to result—
Victim dying 9 years later and after an operation—Case will fall under S. 304 and not S. 302. AIR
1976 SC 1519. . .
• (5) Two phased attack—First, outside the house and then dragging the victim to the house and
then giving him a final blow which was fatal—Held, that the facts negative any intention to kill
deceased—Conviction under S. 302 not sustainable. AIR 1976 SC 1130.
(W) Interested witnesses.—( 1) Partisan witness—Witness, father of deceased and also inimical to
accused—His evidence need not be rejected out of hand on this ground alone unless the evidence is
found to be untruthful. AIR 1978 SC 191..
(2) Partisan eye-witnesses—it is not safe to base conviction of accused on their evidence unless
some corroboration is found in the other evidence or material on record. AIR 1972 SC 1309.
(3) Complainant although could not be termed as 'change witness and was probably present at the
,
spot yet in view of the enmity and blood feud existing between the parties his testimony cannot be
804 Penal Code Sec. 300

relied upon without any independent corroboration as to the identity of the assailants. 1983 PakLD

77 (Sc,).
(4) Witnesses giving evidence against accused being his relatives, held not likely to falsely
implicate him and their evidence was held to be creditworthy and accused was convicted. AIR 1979
SC 1822.
(5) Where the murder of a person and his two sons was committed by 8 accused and the wife of the
deceased, mother of his Sons was the only eye-witness and who although being a close relative of the
deceased persons and an interested witness had no previous ill-will or hostility against the accused or a
motive to falsely implicate the accused persons, and the medical evidence supported her testimony in
regard to the nature of weapons with which the fatal injuries were inflicted on the deceased, under such
circumstances the conviction of the accused persons would not be set aside. AIR 1980 SC 1876.
(6) Murder case—Interested witnesses—Held, in instant case that witness was class fellow of
victim was not sufficient ground to throw out his testimony more particularly when he was common
friend of both victim and one of the accused. AIR 1983 SC 1081.,
(X ) Knowledge anterior to event.— (1) It will not be.safe to hold the accused was conscious that
the pistol was loaded when ' he was demonstrating as to how a pistol is fired. His knowledge anterior to
the event when the bullet was fired and victim killed is of no use. The accused was not guilty of
murder but only under S. 304-A. (1976) 78 PunLR (D) 99.
(Y )Medical Report,–(l) Medical evidence—Appreciation of—Attack by several accused—Medical
report stating 'injuries caused could have been fatal independently but not necessarily'—Conviction of
one accused under S. 302—Not valid Supreme Court charged conviction to one under S. 304, Part.
1. A IR 1977 SC 699.
(2) Medical evidence showing that the injury caused on the chest of victim with a sharp weapon
was sufficient in the ordinary course of nature to cause death—Injury caused intentionally and not
accidentally—Accused guilty under S. 302. 1977 BBCJ 598 (Pat).
(Z) Motive.—(l) Conviction cannot be based on motive alone when on .other important issues
evidence is insufficient and unreliable. 1976 CriLJ 1325.
(2) Where the dowry demand was alleged as motive for murder, but the letters of deceased showing
praise for mother-in-law, the accused and also other documentary evidence showing no serious
differences between the two families this rebutes the prosecution story of insufficiency of dowry as
motive for murder. 1984 CriUJ (NOC) 76.
(ZA) Murder and Robbery— Possession of property.—Murder and robbery forming parts of same
transaction--Accused found in possession of property soon after occurrence may be presumed to have
.-committed both crimes unless he has sufficient explanation for his possession of the stolen property.
1977 MPLJ 620.
(ZB) Presumption of guilt. —Unexplained possession of blood-stained spade with which he was
alleged to have hit and killed the deceased raises strong presumption against him. 1977 RajL W 241.
"ZC) Private defence.--(I) Accused held exceeded his right of private defence and was guilty not
under S. 302 but only under S. 304 Part I. AIR 1979 SC 1179.
(2) Deceased entering land of accused and assaulting co-accued—Accused in purported exercise of
private defence assaulting deceased—Accused can be convicted only under S. 304 Part II and not under
S. 302. A IR 1978 SC 1096.
Sec. 300 Of Offences affecting the Human Body 805
(3) Held, on evidence that accused had acted in private defence Of property—But had "far exceeded
his right-S. 300 Exception 2 applied, conviction was altered to one under Ss. 304. Part 1/34. AIR
1976 SC 22 73.
• (ZD) Serious injuries—Intention to cause.—(1) Where serious injuries are found on the person of
the accused it becomes obligatory on the prosecution to explain them to satisfy the Court about their
orgin but, before this burden is placed on the prosecution following two conditions must be satisfied:
(a) Injuries on accused must be severe and serious and not superficial; (b) The same must have been at
the time of the occurrence in question. AIR 1979 SC 1010.
(2) Serious injury inflicted with great force on chest of deceased—Left lung pierced through and
through—Both the ventricles punctured--Conviction under S. 302 held was right. AIR 1978 SC 1420.
(3) The accused caused only one injury on the head of the victim, who died nearly after nine days
of the occurrence. From the facts and circumstances held that the accused had no intention to cause the
murder of the victim,, 1984 Cr1LR 139.
(ZE) Sudden quarrel— Sudden quarrel—All accused beating deceased on his ribs with stones
lying there—Knowledge that injuries are likely to cause death can be presumed but intention to kill
not made out—Offence falls' under S. 304. Para. II read with S. 34 and not under S. 302. 1977 CriL.J
59 (Raj).
• (ZF) Suspicious circumstances—Suspicious circumstances cannot from basis for conviction of
murder. 1979 CriLJ (NOC) 101 (Punj).
68. Benefit of doubt.—.(1) The greatest possible care should be taken by the Court in convicting
an accused who is presumed to be innocent till the contrary is clearly established which burden is
always in the accusatory system. on the prosecution. The mere fact that there is only a remote
possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. AIR
1972 SC 975.
(2) If the evidence merely raises a strong doubt or suspicion but falls short of the required
standard, the Court should give the benefit of the doubt to the accused. A IR 1980 SC 551.
(3) The reasonable doubt which the law contemplates is not that of a weak, vacillating, capricious,
indolent or a confused. mind. It must be the doubt of a man who is prudent, reasonable, astute and
alert, and arrived at after due application of the mind to every relevant circumstance of the case
appearing from the evidence. A IR 1970 A ll 51.
(4) Where there is a grave doubt as to the truth of the prosecution story the accused is entitled to
the benefit of doubt. A IR 1979 SC 1224.
(5) Where in a trial for murder an important prosecution witness relied by both the Courts below
deposed that the accused came on the scene after the deceased was fatally assaulted by the co-accused
the circumstance was sufficient to give the accused benefit of reasonable. doubt. A IR 1981 SC 650.
(6) Where it is shown that one of two persons must have murdered the deceased, but it is not clear
which of them did so both must be acquitted. A IR 1975 SC 1962.
(7) Inconsistent versions of occurrence—Conviction set aside. A IR 1974 SC 1871.
(8) Murder—Several persons including accused persons injured in incident—None except three out
of sixteen deposing that fatal injury was caused by Accused i—Held, J was entitled to benefit of doubt.
A IR 1974 SC 1822. •
806 Penal Code Sec. 300

(9) Murder—Occurrence took place on dark night—Witnesses claiming identification ofaccused in

the light of lantern—Existence of lantern doubtful—Accused held entitled to benefit of doubt. AIR 1974
SC 1740.
(10) Appeal against conviction of six accused persons—As to one accused prosecution evidence
insufficient for convicting -him—His presence during commission of crime not believed—Prosecution
Story found improbable—Held, the accused was entitled to benefit of doubt. A IR !91 SC 925.
69. Confession.—(l) The term "confession" must be strictly constructed as either admitting in
terms, the offence or at any rate, all the facts which constitute the offence anything short of it may only
be an admission of a gravely incriminating fact or even of a conclusively incriminating fact. (1970) 2
MadL.J 371.
(2) Under S. 24 of the Evidence Act, a confession caused by inducement, threat or promise such as
is referred to in the section is irrelevant. A IR 1927 Lah 682.
(3) Under S. 25 of the Evidence Act a confession to a police officer is inadmissible in evidence to
support a conviction. A IR 1973 SC 922.
(4) Where the weqpons produced are not proved to be connected with the crime, the confession
made in the custody of the police is not admissible against the accused. A IR 1935 Lah 433.
(5) The evidence of confession must always be closely scrutinised where it is alleged to have been
made to witnesses, though it may not be always insufficient to justify conviction. A IR 1929 Oudh 272.
(6) Extra-judicial confessions are not considered with favour but that does not mean that evidence
of such a confession coming from a person who has no reason to state falsely and to whom it is made
in circumstances which lend support to his statement, should not be believed. A IR 1967 SC 152.
(7) Where a confession is retracted by the accused, it does not necessarily follow that it should be
rejected. The credibility of such a confession in each case is a matter to be decided by the Court
according to the circumstances of each particular case and if the Court is of opinion that such a
confession is true the court is bound to act on it. A IR 1957 SC 381.
(8) Where the confession was .recorded without observing the precautions required by law and it
was also self-contradictory and contained an unnatural version the Court dismissed it as unimpressive.
A IR 1954J& K42.
(9) In a case where there is other clear and reliable evidence of murder, a description of the manner
in which the murder was committed may be of no serious consequence. But where the proof of the
factum of the murder is itself solely dependent upon the confession, the apparent improbability of the
manner in which the murder is said to have been brought about, in the confession would be a cogent
circumstance against the confession being relied upon. A IR 1957 SC 381.
10) Where the confession does not amount to an admission of murder a conviction for murder
cannot be based upon it. A IR 1941 Mad 238.
(II) Where a confessional Statement contained both an inculpatory and an exculpatory statement
and the latter statement was inherently improbable, Supreme Court disregarded the exculpatory
statement and convicted the accused on the inculpatory statement. A IR 1969 SC 422,
70. Evidence and proof of poisoning.—(l) In cases of alleged poisoning the two questions that
require determination are firstly, whether the deceased died of the poison and, secondly, whether the
accused administered it A IR 1960 SC 659.
Sec. 300 Of Offences affecting the Human Body 807
(2) In considering whether the accused administered the poison the questions whether the accused
had the poisorf in his possession and whether the accused had the opportunity to administer the poison
will also arise. If these two points are proved a presumption may, under certain circumstances, be
drawn that the accused did administer the poison. AIR 1960 SC 659..
(3) If the Court finds report of the Chemical Examiner incomplete, it can summon and examine
him under S. 293 of Criminal P.C. to satisfy itself that the results stated in the report are correct. AIR
1959 HimPra 3. .. .
(4) Where it is not clear at all what poison was actually administered, the evidence being
conflicting, it is not sufficient for convicting the accused of poisoning the deceased. AIR 1975 SC 1327.
(5) Strict proof is necessary before it can be found as a fact that the deceased died of a particular
poison though 'where it is clear on all the evidence that the deceased did die of a particular poison'
administered by the accused,a conviction for murder would be proper. AIR 1979 SC 1513.
(6) Where the case is tried before a jury the Judge should minutely analyse the evidence before the
jury. AIR /937 Cal 756. . . .
(7) Where one deliberately administers a common poison, the effects of which are well known, it is
no defence to say. that ofte failed to grade the exact dose correctly so as to cause some injury short of
death. AIR 1938 Nag 318. .
(8) There are several poisons particularly of the synthetic hypnotic and vegetable alkaloids groups
'which do not leave any characteristic signs as can be noticed on post-mortem examination. A IR 1972
SC 1331.
71. Evidence of partisan witnesses who are relatives of deceased or prejudiced or
inimical.—(l) The mere fact that the prosecution witnesses are related to the deceased does not by
itself render their evidence open to suspicion and doubt. -AIR 1979 SC 702.
(2) In fact the interest of the relatives of the deceased is undoubtedly to see that the true criminal is
prosecuted ; they can have no interest in accusing anyone falsely unless they have enmity with the
accused. AIR 1974 SC 839.
(3) When a murder takes place in the night within a house, 'the relatives of the deceased are but
natural witnesses and their evidence cannot be said as that of interested persons. AIR 1980 SC 181.
(4) Where thre is such enmity, it is a rule of prudence that the evidence of the relatives should be
taken with caution. AIR 1974 SC 775.
(5) The evidence even of partisan witness should be accepted though the judicial approach in
dealing with such evidence should be cautious. AIR 1973 SC 2695.
(6) When all the material witnesses in a murder case are either related or otherwise 'interested in the
prosecution, in absence of corroboration to a material extent in all particulars it is hazardous to convict
the accused on the testimony of such witnesses. A IR 1981 SC 942: 1981 CriLJ 484.
(7) "Related" is not the same as "interested" ; a person , is interested only when he is likely to
derive some benefit from the litigation or in seeing that the accused is punished. When the only person
who witnessed the murder of her husband was the wife, she may be related but cannot be called
interested. AIR 1981 SC 1390.
(8) Where a witness against whom the High Court had nothing to say and if it required
corroboration of his evidence it was because he was a relation of the deceased, it was not considered safe
808 Penal Code Sec. 300

to base a conviction on his sole testimony. The corroboration that is required in such cases is not what
would be necessary to support the evidence of an approver but what would be sufficient to lend
assurance to the evidence before them and satisfy them that the particular persons were really concerned
in the murder of the deceased. AIR 1954 SC 204.
(9) The fact that the witness and the deceased jointly owned a car used as a taxi, has been held not.
to detract from the evidence of the witness. AIR 1973 SC 2443.
(10) Prosecution witnesses interested in deceased and making improvements in . material
particulars—Reliance could not be placed on testimony of such witnesses. AIR 1981 SC 1223.
72. Medical evidence.—(1) Absence of medical testimony as to the nature of the injury, in a case
of murder, need not lead the Court to presume only a lesser kind. Of injury. The Court can itself come
to the conclusion that an injury was or was not one which was sufficient in the ordinary course of
nature to cause death. AIR 1978 SC 1525. .
(2) The evidence of medical men is of an advisory character given on the data placed before them.
Their evidence is primarily an evidence of opinion and not of fact. A IR 1975 SC 1925. .
(3). Where the medical evidence is based on a misconception of facts or is contradictory it is not
entitled to any weight. AIR 1979 SC 1382. .
(4) Murder—Appreciation of evidence—Inconsistency between, ocular and medical evidence—
Conviction cannot be based on -such evidence. AIR 1981 SC 1578.
(5) The evidence of the eye-witnesses is not to be taken as untrustworthy merely because . it is
inconsistent witl the medical evidence specially when the latter has been scrutinized by the Court with
great care and anxiety. A IR 1973 SC 1204. .
(6) A post-mortem is not absolutely necessary to prove murder. AIR 1975 SC 1083.
(7) Where it is proved from the direct evidence of the eye-witnesses that the accused committed
murder by firing gun shots the inconsistency between the opinion of expert and the prosecution story
relating to distance from which gun shots were fired carries no weight. A IR 1971SC 2119.
(8). In case of contradiction between the testimony .of Medical Officer and that of eyewitnesses, as
regards to the fatal injury of the deceased, testimony of the Medical Officer is to be preferred. AIR 1980
SC 1873.
• (9) It is not necessary when a bichuva is used on a fleshy part of the body that there would be a
punctured wound. A bichuva has sharp edges on both the sides and when it is drawn out the outer
appearance it leaves is of an incised wound. AIR 1983 SC 832.
73. identification of dead body to the doctor who held the post-mortem examination—(1)
Where, in a murder case; the injuries received by the deceased were all antemortem and they were
likely to be caused by the alleged murder-weapon. during a particular period, the facts could be
established only by the doctor who held the post-mortem examination. The dead body, therefore, must
be identified to the doctor properly. (1971) 37 CutLT 477.
74. Expert evidence.—(l) Before relying on the evidence of an expert as to foot-prints the Judge
should form his own opinion as to the identity of the footprints with those of the accused. A IR 1950
Madh B 76.
(2) The reports of the chemical examiner and the Imperial serologist were taken on record by the
Magistrate without any of the two witnesses being called to give evidence. In ordinary circumstances
Of Offences affecting the Human Body 809
Sec. 300
there would have been nothing wrong in taking reports of these, persons on record as permitted by the
Criminal Prcedure Code. When, however, there is difference of opinion in the reports, the duty to
explain the difference is on the prosecution and the mere production of the report does not under the
circumstances, prove anything which can weigh against the appellant. AIR 1954 SC 1.
(3) The omission to send blood, for chemical examination, recovered from the place of occurrence,
in serious cases such as murder cases, is depreciable inasmuch as there is often a dispute as to the place
of occurrence, but such an omission need not jeopardise the success of the prosecution if other reliable
evidence as to the scene of occurrence has been produced. AIR 1976 SC 2263.
(4) After holding certain test firearms expert opining that cartridge found near the cot of deceased
was fired from pistol produced by accused—Held there was no reason for distrusting his opinion. AIR
1979 SC 391. .
(5) A majority of fingerprints found at crime scenes or on crime articles are partially smudged, and
it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint.
evidence. Similarly it is for a competent technician to examine and give his opinion whether the
identity can be established and if so whether that can be done on eight or even less identical
characteristics in an appropriate case. AIR 1978 SC 1183.
75. Evidence of approver.—( 1) The evidence of the approver is not sufficient f6i a conviction for
murder. It is necessary that there should be corroboration of such evidence. AIR 1980 SC 1871.
(2) The corroboration may be by circumstantial evidence. AIR 1963 SC 599.
76. Evidence of accomplice.—(l) Under S. 133 of the Evidence Act an accomplice in a crime is a
competent witness, and though his evidence may be presumed to be untrustworthy unless corroborated
in material particulars. 1974 CrILJ 43 (Raj). .
(2) Though the conviction of an accused on the testimony of an accomplice can •not be said to be
illegal yet the Courts will as a matter of practice not accept the evidence of such a witness without
corroboration in material particulars. AIR 1963 SC 599.
Where the evidence was
77. Examination of the accused under S. 313, Criminal P C.—(1)
that the accused pointed out the dead body and the place where the marks óf$ighting and dragging took
place but in the examination under Section 313 of the Criminal P. C. the accused was not asked any
question about it, it was held that the evidence cannot be used against the. accused. A IR 1971 Goa 15.
78. Presumption from possession of property of deceased.—(1) The presumption of guilt from
recent possession of property which had been removed from the person of the deceased at the time of the
murder is thus one of fact and the Court has a discretion to draw it or not. AIR 1978 SC 1183.
(2.) Inference thatthe accused must have murdered the deceased cannot be drawn from the mere fact
of recovery of ornaments last worn by the deceased at the instance of the accused in absence of any
evidence connecting the accused with the murder. A IR 1980 SC 1753.
(3) Accused car driver of deceased, driving car with deceased sometime before incident on way to
deceased's house—Motive of murder said to be strained relation betweeh the two because of illicit
connection of accused with deceased's wife—Discovery of articles belonging to deceased and weapon of
assault at the instance of the accused—Accused guilty of offence of murder. A IR 1980 SC 1708.
(4) Mere possession of the property of the murdered person would not be enough to conclude that
the person in possession is the murderer and that to convict him of murder, there must be evidence to
810 Penal Code Sec. 300
connect him with that offence and eliminating the possibility of his being an innocent receiver of the
property from the murderer. AIR 1966 SC 821.
(5) These ornaments were therefore established to be the ornaments worn by the deceased and the
accused was not in a position to give any satisfactory explanation as to how he came to be in
possession of the same on the very same day on which the alleged murder was committed. The
circumstantial evidence was therefore sufficient to hold the accused responsible for the murder of the
• deceased. AIR .1978 SC 522.
(6) The presumption permitted to be drawn under S. 114, III. (a), Evidence Act has to be read
along, with the important time factor. If ornaments or things of the deceased are found in the possession
of a person soon after the murder, a presumption of guilt may be permitted. But if several months
expire in the interval, the presumption may not be permitted to be drawn having regard to the
circumstances of the case. A IR 1954 SC!.
(7) Murder taking place at night—Early next morning accused disappearing from his house—After
his arrest accused producing articles which were removed from body of deceased from his house—
Inquests made shortly after dawn and not late in day—Accused held was not merely receiver of stolen
property but murderer. A IR 1954 SC 704.. . .
79. Sufficiency of evidence.—(I) To justify a conviction in a criminal case the evidence of guilt
must not be a mere balance of probabilities but must satisfy the Court beyond reasonable doubt that
the accused is guilty. AIR 1979 SC 1382. . . . .
(2) The prosecution had to stand on its own legs . ; it could not take advantage of the weakness of
the defence. A IR 1974 SC 1550.. .
(3) Where the evidence is unsatisfactory it would be unsafe to convict the accused of murder. AIR
1980 SC 102. . .. .
• . (4) Cases of homicide cannot be decided by adherence to mechanical rules ;..he decision must
depend upon the particular circumstances of each case. Where a case depends entirely upon
circumstantial evidence, in order to justify the inference of guilt the facts found must be incompatible
with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than
that of his guilt. AIR 1977 SC 1063. . . . •••
(5) Where the murder committed is cruel and revolting it is necessary to examine the evidence
with more than ordinary care, for, the shocking nature of the crime might induce an instinctive reaction
against a dispassionate judicial scrutiny of the facts and law. AIR 1952 SC 159.
(6) The fact that blood-stained clothes were recovered from the accused or blood stained knife or
the head or cloth of the deceased or the corpse is recovered at the instance of the accused or the fact that
some blood-stains were found on his clothes is not sufficient for convicting the accused of murder: A IR
1977 SC 135. .
(7). When the evidence of a sole eyewitness is full of discrepancies it is unsafe to act upon his
evidence. In such a case, it is always wise to seek corroboration from other prosecution witnesses. AIR
1983 SC 810.
(8) Unless the prosecution
' has positively proved its case to the Court's satisfaction, the accused
cannot be convicted by reason of the weakness and unsatisfactory nature of the defence. .AIR. 1957
SC 614.

(9) It is unsafe to convict a person of murder upon the interested testimony of witnesses. AIR 1973
Sc 944. .
Sec. 300 Of Offences affecting the Human Body 811
(10) The maxim "falsus in uno falsus in omnibus" is merely anile o.caution and not a rule of law
and the Court is entitled notwithstanding the maxim, to convict the accused when the commission of
the, offence is clearly established. AIR 1974 SC 1096.
(11) Inconsistency in F.I.R. and evidence by eye-witnesses due to officer's remissness at the time
of F.T.R.—No prevarication or improvement by witnesses—Evidence held reliable. AIR 1974 SC 220.
80. Value of évidence.—(1) When a person sees a murder committed and gives no information
thereOf his evidence is little better than that of an accomplice; AIR 1923 Lah 391.
(2) The fact that the eye-witness does not divulge the name of the murderer to any of the several
persons to whom he is likely to mention it, casts a doubt on his evidence. A IR 1974 SC 284.
(3) The mere fact that the accused belong to a high caste and that the witnesses value the lives of
the accused more than the life of the deceased person is not a sufficient reason for rejecting their
evidence when they are prima facie reliable. AIR 1923 La/i 436.
(4) The finding of blood-stains on nails though it may be of value as circumstantial Or
corroborative evidence. AIR 1950 Lah 149.
(5) Absence of bloo4-stains on clothes of - witnesses who claimed to have held accused does not
disprove their evidence. AIR 1979 SC 1831.
(6) Prosecution under Ss. 302/34 and 342, P.C.—Witness resiling from statement in committing
Court—Stich statement admitted under S. 288, Criminal P.C.—Conviction for murder based on such
sole uncorroborated evidence—Not proper. AIR 1964 SC 1357.
(7) Murder case—Injured prosecution witnesses illiterate rustics cannot be discarded simply
because of their inability to describe vividly location of enclosure relating to which altercation ensued.
1983 AIILJ 652.
81. Statement on oath.—(l) The ordinary presumption is that a witness speaking under oath is
truthful unless and until he is shown to be untruthful or unreliable in any particular respect. Witnesses
solemnly deposing on oath in the witness box during a trial upon a graver charge of murder must be
presumed to act with a full sense of responsibility of the consequences of what they state. It may be that
what they say is so unlikely or unnatural or unreasonable that It is safer not to act upon it or even to
disbelieve them. AIR 1974 SC 1168.
82. Circumstantial evidence.—(1) Circumstantial evidence consists in various links in a chain, -
which, if complete, leads to the undoubted conclusion that the accused and the accused alone could
have committed the offence with which he is charged. AIR 1979 SC 1711. .
(2) It is a .fundamental principle of criminal jurisprudence that circumstantial evidence should point
indubitably to the conclusion that it is the accused only who is the perpetrator
' of the crime, and that
such evidence should be incompatible with the innocence of the accused. A IR 1978 SC 1544
(3) Where the circumstantial evidence was absolutely incompatible with the innocence of the
accused, the mere failure of the prosecution to prove, the exact spot where deceased was killed or fact of
recovery of only . some ornaments from the body of the deceased after it was taken out of the well when
large part of ornaments were proved to have been removed by the accused before throwing the body of
the deceased in the well, could not fault the prosecution case. AIR 198.1 SC 361
• (4) The fact that the accused was alone in the house with his wife , when she was murdered and the
fact that the relations between the two were strained would in the absence of any cogent explanati6n by
the accused point to his guilt. AIR 1972 SC 2077.
812 Penal Code - c. 300

(5) If the evidence though circumstantial brings home the guilt of the accused, the conviction for
murder would be proper. A IR 1979 SC 716
(6) If the evidence is consistent with any other natural explanation there is an element of doubt of,
which the accused must be given the benefit. AIR 1955 SC 792. . .
(7) It is trite law that when the evidence against an accused person, particularly when he is charged
with a grave offence like murder, consists only of circumstances and not direct oral evidence, it must be
qualitatively such that on every reasonable hypothesis, the conclusion must be that the accused is
• guilty, not fantastic possibilities nor freak inferences but rational deductions which reasonable minds:.
make from the probative force of facts and circumstances. AIR 1974 SC 1144.
(8) Mere suspicion arising from circumstantial evidence is not sufficient. AIR 1974 SC 1193.
(9) Where the circumstantial evidence is unsatisfactory the accused must be given the benefit of the
doubt. A IR 1979 SC 1382.
(10) Whether circumstantial evidence establishes the guilt of the accused is a question of fact and
• not a question Of law. A IR 1937 PC 179.
(ii) The absence of motive does not establish innocence of the accused when there is strong
evidence to the contrary. AIR 1974 SC 1193.
(12) Where the various links have been satisfactorily made out and the circumstances point to the
accused as . the probable assailant with reasonable definiteness, and in proximity to the deceased as
regards time and situation and he offers no explanation, which if accepted, though not proved, would
afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence
of explanation or false explanation would itself be an 'additional link which completes the chain. AIR
1955 SC 801.
(13) In a case where writing made by the accused on the night of the murder was found on
deceased's table and watch' belonging to thedeceased was got recovered by the accused it was held that
in the absence of any acceptable explanation by the accused, the circumstances coupled with recovery
were sufficient to hold the accused guilty of murder. AIR 1980 SC 531.
• (14) In evaluating the circumstantial evidence, each circumstance is not to be considered in
isolation ; various circumstances have to be viewed conjointly and an overall picture of the affair has to
be drawn from them. AIR 1974 SC 631.
(15) Ordinarily, when a person is accused of committing murder 'of another, the fact that the
accused and the 'deceased were last seen alive in company of each other and failure of the accused to
satisfactorily account for disappearance of the deceased is considered a circumstance of an incriminating
nature. A IR 1979 SC 1949.
(16) The circumstance of the case are so telling that the only conclusion reasonably possible is the
one that the wife did not commit suicide by hanging herself but was done to death by being brutally
assaulted and thereafter hung by neck with a rope by her husband and mother-in-law. Medical evidence
also shows that hanging herself was not possible because of severe injuries on her person. Conviction
of husband and mother-in-law is confirmed. AIR 1983 SC 1002.
(17) The fact that the accused did not surrender and was not traceable for one year does not by itself
justify a conviction. A IR 1974 Sc 1193.
(18) Dead bodies in a decomposed state—Doctor did not send them to anatomy expert—Accused
would be entitled to get benefit of any gap or lacuna in prosecution evidence. AIR 1975 SC 258. '
Sec. 300 Of Offences affecting the Human Body 813

(19) Evidence showing motive for the crime, conduct of accused immediately before and after
incident to be unreasonable and unnatural refusal of accused to participate in identification parade and to
give specimen of his footprints—These circumstances, held to have bearing on guilt of accused. A IR
1973 SC 264.
83. Injuries on the accused.—(l) The presence of injuries on the person of the accused may be a
circumstance against him. A IR 1976 SC 2263.
(2) In a case of throttling causing death, the absence of injuries on the person of the accused would
not go to show that he was not the person who had throttled the deceased to death because resistance
by the deceased resulting in injuries to the assailant is not a necessary feature to every act of throttling.
A IR 1972 SC 677.
84. Time of death.—(l) The question as to the time of death cannot be decided Only by taking
into consideration the fact that faecal matter was found in the intestines of the deceased though it may
be one of the factors to be considered. 1970 SC CrIR 209.
85. Absconding of accused.—(l) The act of absconding is a relevant piece of evidence to be
considered along with other evidence but its value would always depend on the circumstance of each
case. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. It
cannot be held as a determining link in completing the chain of circumstantial evidence consistent only
with the hypothesis of the guilt of the accused. A IR 1971 SC 1050.
(2) Absconding of accused is a relevant piece of evidence. (1971) 37 CutLT 698 (DB).
86. Dying declaration.—(1) It is generally unsafe to convict a person of murder on the mere
dying declaration of the deceased without satisfactory and sufficient corroboration. 1980 CriL.J (NOC)
30 (DB) (Gauhati).
(2) A conviction based on a dying declaration which is found from the circumstance and evidence
to be credible is not wrong. A IR 1980 SC 358.
(3) Once the Court comes to the conclusion that the dying declaration was the truthful version of
the circumstance of the death and .the assailants of the victim there is no question of further
corroboration. A IR 1958 SC 22.
(4) It is not prudent to base conviction on a dying declaration made to Investigating Officer,
particularly when it is not signed by the declarant.or the witnesses. A IR 1979 SC 190.
(5) Dying declaration giving detailed account of occurrence though made in serious condition—
Declaration not attested by deceased's wife or doctor present there—It smacks concoction and cannot be
relied on. A IR 1981 SC 1578.
(6) Where the person is not proved to have died as a result of the injuries received by him in an
incident his dying declaration containing a complete account of the occurrence and the assailants as
seen by him cannot be said to be . a statement as to the cause of his death or as to any of the
circumstances of the transaction which resulted in his death so as to become relevant under S. 32,
Evidence A ct. A IR 1964 SC 900(903) : 1964 (1) Cr1LJ 727.
87. Murder by poisoning.—(l) Where A administers poison to B with the intention of causing
death or of causing bodily injury such as is ' likely, to cause death or with the knowledge that he is
likely by such act to cause death and B dies as'a consequence the offence would amount to culpable
homicide and may amount to murder. A IR 1957 Pat 462
814 Penal Code Sec. 300

(2) Where the evidence is circumstantial, the prosecution has to establish in addition to motive.
three facts in a case of poisoning: (i) that death took place by poisoning ; (ii) that the accused had the
poison in his possession; and (iii) that the accused had the opportunity to administer the poison. it is
only where there is motive that these facts will enable the Court to draw the inference that the poison
• was administered by the accused to the deceased Tesultingin his death. A IR 1972 SC 656
(3) The mere fact that the accused had no intention to cause death is not sufficient to take the case
out of S. 300. If it was done with the intention of causing such bodily injury as is sufficient in the
ordinary course of nature to cause death, the case satisfies the requirements of S. 300. A IR J954
HimPra 11. . . .
(4) In the case of Dhatura poisoning, it is alwayi necessary to ascertain the object with which the
• Dhatura was administered and the best indication- of the intention of the offender can be gathered from
the amount of'Dhatura administered. A IR 1957 'A ndhPra 456 5

(5) Where the accused, who was registered as a homoeopath, administered to the patient suffering
from guinea-worm 24 drops of stramonium and a leaf of Dhatura wjthout studying their probable effect,
but the poisonous contents of the leaf were not satisfactorily established, it was held that the accused
was guilty under S. 304k and not under S. 302 as it could not be held that the accused administered,''
the stramonium drops and Dhatura with the knowledge that he was likely by such an act to cause the
death of the deceased. AIR . 1965 SC 831,
(6) Accused administering poison—Death—He is guilty of murder as he must be held to have
: i jntended death or to have known that death would be the imminent result. A IR 1959 ffimPra 3.
88. Drunkenness.—(l) Voluntary intoxication of the offender at the time of the offence does not
excuse the offender. Under S. 86 ante' he is liable to be dealt with as if he had the same knowledge as
he would have had if he had not been intoxicated. The section does not, hOwever, say that he is liable
to be dealt with also as if he had the same intent as he would have had if he had not been intoxicated.
A IR 1956 SC 488.
(2) Where A in a state of drunkenness fired his gun in the air to scare away the opposite party and
in that act a stray 'pellet wounded the deceased, it was held that A can, under the circumstances, be
attributed the knowledge referred to in S. 299 but not the knowledge referred to in clause 4 of Section
300 and so was punishable under the second 'part of S. 304. AIR 1955 Punj 13.
(3) Where the drunkenness has led to insanity of course, the offender will not be guilty. AIR 1957
A ll 667.
(4) Presumption that the accused intended natural consequences of his act in stabbing the, deceased
is not rebutted where there is nothing to show that his mind was so affected by the drink he had taken
that he was incapable of knowing that what he was doin ,g was dangerous. AIR 1916 Low Bur 114.,
(5) Accused and deceased attending a marriage dinner—Accused who was intoxicated asking.
deceased to step aside so that he might occupy a convenient seat—On his refusal accused shooting
deceased in abdomen and causing his death—Accused found to be not so much under influence of drink,
as to be incapable of forming required intention—Accused was guilty of murder. AIR . 1956 SC 488:
89. Act done to person believed, to be dead.—(1) A causes bodily injury to B without any of
the intentions referred to in clauses 1, 2 and 3 of S. 300 or the knowledge referred to in 'cl. 4 of S. 300.
B falls down unconscious; A believing that B is dead but with thç intention of causing the
disappearance of the evidence of his act hangs' B's body or sets fire to it Or throws it into a well or
Sec. 300 Of Offences affecting the Human 'Body 815

places it on the Railway track. It is established that the first bodily injury' did not in fact cause death,
but only the subsequent act of hanging, etc. It seems to be clear that the offence does not constitute the
offence of culpable homicide nor can it consequently amount to murder. AIR 1920 Mad 862.
• (2) A causes bodily injuryto B as a result of which B falls unconscious A does not know whether
B is dead or alive but does the further act in order to be sure of killing B if he is still alive and death is
caused only by the further act. Held that this would be murder. A IR 1949 Mad 648 (649).
90. Practice and procedure.—(.1) When a person is attacked and killed it must be decided,,'.'.
whether the assailant is guilty of culpable homicide and if so whether it amounts to murder or not. If it
is held that it does not amount to murder, it must further be made clear-whether the offence falls under
Part I or Part H of S. 304. AIR 1928 Lah 868.
(2) As a.rnatter of practice, Courts prefer, not to act on plea of guilty in order to ascertain the,
accused's state of mind and see whether or not he acted under provocation sufficient to reduce the
offences to culpable homicide or only sufficient to affect the sentence. Aa IR 1935 Rang 49. .
(3) Plea of guilt only amounts to an admission that the accused committed the acts alleged against
him and not an admission of the guilt under a particular section. AIR 1932 La/i 363.
(4) Where there is ambiguity in the law of procedure it should be resolved in hisfavour. AIR 1941
Nag 94. . •. . . .
(5) In capital cases it is important that the more important of the witness should be examined in
such a way as would enable the Court to properly appreciate the evidence.. The evidence should be led
in sufficient detail and with due regard to the sequence of events, the facts which the witness saw or the
acts which they did and also the reasons which actuated them therein to the acts, being narrated in an
intelligent fashion. It is only by this means that a clear and consistent account of the whole affair may
be presented to the Court. AIR 1935 Cal 184.
(6)' First conviction for attempt to murder—Subsequent trial on death of victim for murder not
barred. AIR 1935 Pesh 18.
(7) Where a case is put up under S. 302 in the Magistrate's Court for inquiry it is advisable to
commit under S. 302 instead of under S. 304; whether the offence falls under S. 302 or. S. 304 should
be left to the Sessions Court. AIR 1953 Bhopal 1.
(8) Six named accused charged under Section 302/149—Fact as to who gave the fatal blow' not
known—Acquittal of four of them—conviction of remaining two—Legality—Conviction under Ss.
302/34, Penal Code, not illegal. AIR 1968 SC. 43. .
9I.BaiI..-41).Persons accused under S. 302/115 of the Code are not entitled to bail as a mater of
right. AIR 1940 Oudh 8.
(2) Person wanted for a murder is also entitled to get an anticipatory bail under S. 438 Cr. P.
Code. 1982 Cr1LJ 508..
92. Duty and powers of Court in undefended capital cases.—(1) Indeed the right gives to a
judge under S. 165 of Evidence Act is so wide that he may "ask any question he pleased in any form,
at any time of any witness, or of the parties about any fact, relevant or irrelevant". S. 172(2) of the
Criminal P.C. enables the Court to send for the police diaries in a case and use them to aid in the trial.
The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge
to further aid him in the trial. (1972) 1 AnWR 340.
816 Penal Code Sec. 300

93. Appointment of amicus curiae.-.-{1) The Court may appoint counsel to act as amicus curiae
even if the accused refuses to be defended by a counsel engaged by Court. But such counsel does not
represent the accused and cannot cross-examine witnesses since cross-examination must be by the
adverse party. The only way in which the Court may protect the accused in such situation is to put
necessary question itself to the prosecution on witnesses in all matters requiring clarification. (1972) 1
Andh W R 340.
94. Court's duty generally in capital cases.—(l) In capital cases; it is the duty of the Court to
sift the evidence carefully and try to find the truth. It should appreciate the evidence carefully without
resorting to unwarranted surmises and conjectures and should not avoid responsibility by merely
observing that prosecution has not come with clean hands. 1972 CriLl 182 (A ssam).
(2) Court while holding an accused guilty of murder shouldalso enter a finding that he did the act
with the requisite intention or knowledge. 1981 Crili 451.
(3) Where two views one indicating conviction and the other supporting acquittal are equally
possible High Court should not disturb the finding of the trial court. AIR 1982 SC 1224.
(4) In cases of rnjrder High Court must give reasoned judgment indicating application of mind to
question of fact and law. AIR 1981 SC 645.
95. Corpus delicti.--(1) The minimum evidence necessary to prove that a person is dead is either
the dead body being found or somebody's evidence that he saw the body lying dead or that he had seen
• the deceased being done to death. AIR 1953 Pepsu 17.
(2) If the body is not forthcoming, the strongest possible evidence as to the fact of murder should
be insisted on before the accused can be convicted. AIR 1925 All 627.
• (3) Fact of death can be proved like any other fact from circumstantial evidence. AIR 1957 SC .381.
(4) The fact of death can be proved like any other fact from circumstantial evidence but it must be
proved by the prosecution. AIR. 1935 Lah 805.
(5) Prosecution is required to give satisfactory proof corpus delicti—Then it has to prove that
accused is the person who murdered the deceased and no one else. AIR 1967 Goa 21.
(6) Murder—Corpus delicti—not found —Conviction can still be based on circumstantial
evidence. AIR 1981 SC 738.
.96. Framing of charge.—(l) An alternative charge of murder or culpable homicide not amounting
to murder is not permissible. 1887 Pun Re No. 11 P. 19.
(2) Where A and B were jointly tried for the offence of murder and/or aiding and abetting one
another in the commission of that offence, it was held that they are tried for two separate and distinct
offences and that the charge framed in the case mentioning only S. 302 read with S. 109 and not also
S. 302 separately was defective in view of S. 221, Criminal P.C. (5 of 1898).. AIR 1947 Born 146;
(3) A conviction under S. 325 and S. 304, Part 11 in the alternative cannot be made. AIR 1933 Lah
865(865) : 34 CriL.J 1210. . . . . .
(4) A person may be tried at one trial both under S. 302 and S. 201. A IR 1940 Pat 289.
(5) Where a person is acquitted of the charge of murder and other cognate offences with which he is
charged, his conviction under S. 201 of the Code not illegal. AIR 1952 SC 159.
(6) Where the accused is charged under S. 302.read with S. 34 his conviction for the substantive
offence under S. 302 is not bad in the absence of prejudice. A IR 1956 SC 116'
Sec. 300 Of Offences affecting the Human Body 817

(7) Where the accused persons have been charged under. S. 302 but they have notice that they are
being charged with the offence of committing murder in pursuance of their common intention, their
conviction under S. 302 read with Section 34 is not bad. AIR 1958 SC 672.
(8)'Although there is a difference between common object and common intention, they both deal
with combination of persons who become punishable as slfarers in an offence and a charge under S.
149 is no impediment to a conviction by the application of S. 34 if the evidence discloses the
commission of the offence in furtherance of the common intention of all. AIR 1958 SC 672.
(9) A charge under S. 149 is no impediment to a conviction by the application of S. 34 if the
evidence discloses the commission of the offence in furtherance of common intention of all and no
prejudice to the accused is caused. A IR 1974 SC 1256
(10) It is not permissible to charge a man with murder on the ground that he himself has caused
the death and at the same time to charge him with constructive liability for murder on the assumption
that someone else has caused the death. AIR 1955 Assam 226
(11) when the case of the prosecution is that the person abducted has been murdered by the
abductor there is no scope for further charge under S. 364, Penal Code for kidnapping or abducting in
order to murder. AIR 1964 .Assam 53.
97. Charge should be explained to the accused.—(1) When arraigning an accused and before
receiving his plea, the Court should be careful to explain the charge to the accused in a manner
sufficiently explicit to enable the accused to understand thoroughly the nature of the charge to which he
is called upon to plead. (1880) ILR 5 Cal 826.
• 98. Charge for murder—Conviction for hurt or grievous hurt or for other offences.—.(1)
Where death is caused by an injury inflicted by the accused and the case does not fall within S. 299, he
may be convicted of hurt. AIR 1971 Mad 259.
(2) A person who voluntarily inflicts injury such as to endanger life must always, except in the
most extraordinary and exceptional circumstances, be taken to know that he is likely to cause death. If
the victim is actually killed, the conviction in such cases ought ordinarily to be of the offence or
culpable homicide. AIR 1930 Born 483.
(3) A person can be guilty of voluntarily causing grievous hurt who does not intend to cause
grievous hurt but only knows himself likely to cause grievous hurt; and it would appear that if he did
not intend to cause grievous hurt, it would probably not fall under any of the clauses of S. 300 and so
would not be murder. AIR 1937 Mad 792.
(4) The line between culpable homicide not amounting to murder and grievous hurt is a very thin
and subtle one. In the one case the injuries must be such as are likely to cause death; in the other, the
injuries must be such as endanger life. AIR 1946 Born 38.'
(5) Where death was the result of the injury caused, it was held that the elements necessary to
constitute an offence of culpable homicide under S. 299 were absent but the culprit was liable to be
convicted of the offence of causing grievous hurt. AIR 1979 SC 2755.
99. Several charges—Judge's duty.—(f) A Judge is bound under S. 235 of the Criminal P.C.
to pass a sentence on each of the charges of which the accused is found guilty. Where, therefore, a Court
has convicted the accused under Ss. 302, 304 and 324 of the Code his refusal to prescribe the
punishment under Ss. 304 and 324 is illegal. A IR 1939 Pesh 23.
100. Charge for murder—Conviction under S. 194 or 201.—(1) Where a person is charged
CD
with murder, his. conviction under s. 194 of the Code is not illegal but the accused should have been
called upon to plead to the charge under Ss. 194 of fabricating false evidence. AIR 1933 All 30.
818 Penal Code , Sec. 301

(2) Where the accused, was charged with offences under Ss. 302 and 201 and he was convicted of
the offence under S 302 it does not necessarily follow that he should be acquitted of the offence under S.
201. A IR 1957 Orissá 216
101. Charge for murder and kidnapping.—{l) Where the offence of kidnapping is part of the
transaction which led to murder, a separate conviction and sentence could not be maintained. (1920) 2
LahLJ 653.
102. Charge under S. 302/34—Conviction under S. 302.—(1).The omission to frame separate
charge under S. 302 is curable irregularity and it can be condoned if it is shown that no prejudice is
caused to the accused by way of failure of justice. IL),? (1969) Cut 887.
(2) Where P and other persons were charged under Section 302 read with Section 34, but the other
persons were acquitted, it was held that the liability of P had to be established individually and not
conjointly before he is convicted under S. 302 simpliciter Such liability should be fixed on him
conclusively and not by conjectures or presumptions only. AIR 1974 SC 778.
103. Charge under S. 302/34—Conviction under S. 302/149.—(1) In some cases the common
object of an unlawful assembly may coincide with the common intention of the members of the
assembly committing â.crime and that in such a case both Ss. 34 and 149 may apply. in such cases a
charge under Ss. 302/34 may be altered to one under S. 302/149 and the accused convicted under the
altered charge when no prejudice is caused thereby to the accused. 1970 UJ (SC) 866.

Section 301
301. Culpable homicide by causing death of person other than person whose
death was intended.—If a person, by doing anything which he intends or knows to
be 'likely to cause death, commits culpable homicide by causing the death of any
person, whose death he neither intends nor knOws himself to be likely to cause, the
culpable homicide committed by the offender is of the description of which it would
have been, if he had caused the death of the person whose 'death he intended or knew
himself to be likely to cause.
Cases
1. Scope.--(]) Section 301 PC applies only to a case where an act falls to have intended or known
to be likely effect on the victim aimed at, but has that very effect upon another unintentionally. The
accued's intention or knowledge of the effect of his act in relation to the unintended or accidental
victim is presumed not to exist at all in a case to .which section 301 can apply.' When a person
intending to kill one person kills another person by mistake, he is guilty of murder as if he had killed
the person whom he intended to kill (1967 A l/U 631). Homicidal intention cannot be restricted to the
life of the person intended to be killed. Once ' the criminal intention to destroy human life is
established there appears to be no reason to restrict by limiting the scope of its operation only to the
person who is intended to be killed (29 CriL.J 280). Illustrations to sections 34 and 149 of the Penal
Code cannot be invoked in the provision of this section. (AIR 1965 (SC) 1260.)
'(2) Section 301 embodies the principle that where a blow' aimed at one person alights upon
another and kills him, the offence committed by the assailant is the same as it would have been if the
blow had struck the intended victim. This is based on the well-established principle of criminal'
jurisprudence known as the doctrine of "transferred malice." AIR 1928 Lah 344.
Sec. 302 Of Offences affecting the Human Body .19
(3) Section 301 embodies what the . English authors describe as the doctrine of transfer of malice or.
the transmigration of motive To invoke S 301, the accused shall not have any intention to cause the
death or the knowledge , that he is likely to cause the death of the victim. A IR 1965 SC 1260. .
(4) If an accused person could be convicted of murder of another by reason of this section in the
event of death, he could be convicted of attempt to murder if death has not resulted. S 308, Penal
COde provides for the punishment of a person who intends and attempts to commits mur4er, but fails in
achieving his object. The.effect of the two sections read together is that an accused who shoots at A and
wounds B by mistake could be guilty under S 307, although he has not been able to get the person
whom he intended to' injure.. AIR 1935 Pèsh 74. .
(5) If the case is not one of culpable homicide this section has no application thus whelé the
accused had only the intention of causing hurt to A in aiming a blow with a strike at him and the blow
fell on the child in arms of the intervening woman and resulted in its death, he is guilty only under
Section 323, Penal Code. (1969) 2 MadLJ 109; A IR /920 Born 224. .
(6).The essential pre-requisite for an offence under this section. is the commission of an offence Of
culpable homicide as defined in S. 299 with reference to sómeperson. Once that is established and a
person dies as a consequence of the act intended for a different person there is an offence of culpable
homicide with reference to the person whose death was caused.. AIR 1979 (NOC) 157..
(7).In order that the section May apply the accused's guilty intention or knowledge must have no
reference to the actual victim but to some other person. A IR 1965 SC 1260.. ...
(8) Where the ulpable homicide is not committed in respect of the intended victim but of some
one else, the quality of the homicide, this is whether it amounts to-murder or not, will be determined
by a. consideration of the intention or knowledge of the offender in respect of the intended .victim In
other , words, if the offence would be murder in respect of the intended victim the same would be the
nature ofthé offence in respect of the actual victim. Thus if the offender intended to kill A but killed B
in mistake for A the offence is murder. A IR 1979 (NOC) 157..
(9) Where A aims a.blow with a stick at B knowing that the blow was likely to cause B's death,
but the stick, instead of hitting B, hits C who dies in consequence of the blow, A will be guilty of
culpable homicide not amounting.to murder. The reason is that even if 'B had been hit and was killed.
A would have been only guilty of the offence of culpable homicide not amounting to murder. AIR 1957
MadhPra 217. . .. .
(10) The requisite intention or knowledge to cause death of the actual victim though in fact absent,:
is ascribed to the person causing the death and not to other. Thus if a member of rioting assembly in
attempting to kill A actually killed . , his mother (who intervened) whose death he neither intended not
knew himself to be likely to cause, he would-be guilty of murder under S. 302 read with S. 301, but
the other members cannot be made liable under S. 302 read with S. 149, Penal Code as; for such
conviction, it has.to be proved that the offence was such that the members of the .ássemblyknew it
likely to be committed in prosecution of the common object. The offender could not have known that
he was likely to kill the person whom he actually killed. A fortiori. the other members. could not have
such knowledge. AIR 1963 AndhPra 146. . . . .. ..

Section 302
302. Punishment for Inurder.—Whoever commits murder shall be punished
with death or '[imprisonment] for life, and shall also be liable to fine.

I. Substituted by Ordinance, No. XL! of 1985. for "transportation".
820 Penal Code Sec. 302

Cases and Materials : Synopsis

I. Scope of the section. 38. Weakness of evidence.
2. Section 303 declared void-Effect. 39. Murder under threat of co-accused.
3. Extenuating circumstances-General. 40. Injuries on accused.
4. Murder by several persons-Sentence. 41. Killing. on obedience of illegal order.
5. A ge, or sex of accused, if an extenuating 42. Nature of attack by accused.
circumstance. 43. Accused, a pregnant woman.
6. A ge of victim. 44. Superstition.
7. ' Presence or absence of motive.
45. Deafness and dumbness.
& Provocation.
46. Other miscellaneous cases in which the lesser
9. Starvation. sentence was given.
10. Family considerations. -
47. Onus of proving mitigating circumstances.
ii. Feelings of relatives.
48. Custom of killing for unchastity.
12. Status of accused.
13. Murder committed at the instigation of others 49. Recommendation for clemency.
or for hire. ' SO. A betment of murder-Punishment.
14. A bsence of premeditation. 51. Benefit of doubt.
15. Suddenness of quarreL 52. Sentence-A ccused taking only secondary
16. Subsequent remorse. part in the crime.
17. Offence being brought to bay. 53. Interference by High Court Division.
18. Corpus delicti not-found 54. Interference by Supreme Court.
19. Lapse of time after commission of offence. , 55. Charge for murder-conviction for offence
under S. 201.
20. Infidelity of woman.
56. A lteration of charge from S. 302134 to S.
21. A bsence of intention to kilL 302/149.
22. A cquittal of co-accused. 57. This section and S. 396.
23. A cquittal of A for murder of X .-Subsequent 58. Charge for murder and for 'other offence
trial of for the same offence. forming part of same transaction.
24. Intoxication. 59. Fine.
25. Communal excitement 60. Charge under S. 302-Conviction under
26. confession. Section 302 read with S. 34.
27. Plea of guilty. 61. Form of sentence
28. Enmity. , 62. Double murder-Sentence.
29. Guilty found on circumstantial evidence. 63. Procedure.'
30. Mental condition of the accused. 64. Form of charge.
31. Exceeding right of private defence. 65. Hearing before passing sentence.
32.. Possibility of commutation by Government. 66. Appreciation of evidence.
33. Delay in execution of sentence of death- 67. Practice.
- Effect. 68. Confessions, motive and dying declaration.
34. Difference of opinion between Judges of the
Bench. 69. Poisoning.
35. A ccused persons exceeding the number of 70. Onus of proof
victims. 71: Medical evidence.
36. A ccused, a person who has done service to 72. Sentence
public. . 73. Circumstantial evidence-murder charge-no
37. Rashness of deceased. eye-witness.
Sec. 302 Of Offences affecting the Human Body 821
(1) There is no homicide unless both A and B are human beings. The proper definition of human
being depends upon the answers to three questions: when a living organism becomes ahuman being;
what living creatures are properly classifiable as human beings; and when a person ceases to be a
human being. The first of these questions deals with birth, the second with monsters and the third with
death, The general rule in criminal law is that C cannot be convicted of the offence with which he is
charged unless D has proved the commission of that offence by C as charged beyond reasonable doubt.
This means that in criminal cases normally carries thç burden of proof and that the quantum of proof
is beyond reasonable doubt. In a case involving capital punishment it is essential that all material
evidence should be placed before the court particularly if that evidence would go in favour of the
accused. Where the murder committed is a particularly cruel and revolting one, it is necessary to
examine the evidence with more than ordinary care least the shocking nature of the crime might induce
an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. The prosecution
must prove the circumstances which ordinarily constitute the offence of murder. The burden is not cast
upon an accused person of proving that no crime has been committed though it has been established
that the accused has special knowledge of the point whether a crime was committed or not (41 CriLJ
369). The onus of proving grave and sudden provocation, such as would reduce the offence of murder to
one of culpable homicide not amounting to murder, is on the accused. The accused on his trial is
merely on the defensive and-owes no duty to any one but himself; He cannot be convicted because he
has not tried to explain to the court how a death has occurred or by what means. It is the duty of the
advocate in defending an accused to point out that the evidence is quite consistent with an explanation
which fits in with accused's innocence. In a case of murder it is unsafe to relay upon the evidence of
witnesses who have resiled from their previous statements. The silence of the accused and failure to
produce evidence are not consequence and cannot relieve the prosecution of the duty to bring home the
guilty to accused (A IR 1975 SC 573). Where the accused was seen running away from the scene of
murder with hood-stained clothes and a knife in his hand it was held that this evidence along with his
subsequent conduct was sufficient to prove his guilty (1974 CriLJ 36 SC). Whether a particular injury
is fatal or non-fatal is a question of fact to be determined with reference to the circumstances of each
case. Discovery of dead body at the instance of accused is not conclusive proof of an offence of murder
(A IR 1966 SC 821). But that evidence though conclusive proof of an offence under section 201, PC is
not sufficient to sustain a charge of murder. The conduct of an accused charged with murder, in running
away from the scene of occurrence and in absconding for a period of four months, though it may raise
some suspicion against him, does not necessarily .suggest guilty mind when he happens to be an
uneducated person living in a village. The fact that the murder was committed at accused's house
raises a strong suspicion of guilt against him but any amount of suspicion cannot take the place of
proof. In cases of murder it is not only desirable but necessary that the identity of the spot murder
should be fixed by collecting the blood-stained earth, if and when available, and forwarding it to the
Chemical Examiner and the Serologist for analysis of the blood. Mere presence of serious injuries on
accused is no ground for acceptance of defence version. Where it was a sudden fight which took place
in the heat of passion upon a sudden quarrel, and a person died, lesser penalty of imprisonment for life
can be rightly awarded (1978 P CriLJ 772). Where the provocation caused to the accused is very grave
though not sudden the court is justified in not inflicting sentence of death (35 CriLJ •476).
Provocation, which is not sufficient to reduce an offence of murder to that of culpable homicide, may be
taken into consideration together with other circumstances, in passing the alternative sentence of
imprisonment for life. The accused is ordinarily responsible for his own acts and is not responsible for
the acts of others unless law specifically makes him responsible for the acts of others. Whether any
particular conduct amounts to provocation is a question of fact for the court to decide. The ordinary rule
has several aspects. First, it refers to the question whether an ordinary man would have lost his self
822 Penal Code Sec. 302

control under the provocation offered. Secondly, "the mode of resentment must bear a reasonable
relationship to the provocation." The third aspect of the ordinary rule requires the length of time
elapsing between provocation and . relation to be taken into account. The ordinary rule depends
implicitly .on the existence of a homogeneous society adhering to well-recognised custom, and
standards of behaviour. .
(2) Offence under the section—Evidence—Assessment of—High court Division disbelieved the
evidence of prosecution witnesses in respect of the charge against two co-accused, but on the basis of
the self-same witness upheld the conviction of the petitioner—Appellant Division declined to interfere
on the question of assessment of evidence. The trial Court convicted and sentenced the petitioner along
with three others u/s 302,134, P.C. On appeal High Court found the evidence against the two co-
accused to be discrepant and not trustworthy as such acquitted them but relied upon the remaining part
of the evidence which was consistent with the dying declaration of the deceased and upheld the
conviction of the petitioners U/s. 302 P.C., which was under challenge before the Appellate Division
Held,: The 'High Court having reasons for discarding a part of the evidence and for accepting the
remaining part of the evidence, the point raised was essentially a question of assessment of evidence.
Nuru Jamman alias Jama Vs. The State, I BSCD 242. . .
(3) Death sentence- .-recognition—T.I. parade—not held excluding the, possibility of collusion—
charge of abetment—statement of accused pointing out the house of deceased out of apprehension of.
being killed by kidnappers all armed—not sustainable—High Court arrived at the finding upon due
consideration of evidence, facts and circumstances and there having been no contravention of any legal
principle—no justification for interference with the order of acquittal. The Solicitor, Govt; of
Bangladesh Vs. Makbul Hossain & others, I BSCD 242. .
(4) Material allegations constituting an offence under this section, examined. The allegation in . the
F.I.R. was that while "A" was taking his bath in the river, the accused persons surrounded him' im' and
then caught hold of him and thereafter, forcibly dragged him towards their house. At this point A's
Sons along with others come to the rescue of his father and the accused persons to release A which was
not denied requested the accused dealt On falta blow on the person of "A" who died on the spot. Held
:--This allegation by itself is an offence under this section of the Penal Code. FOrhad Hossain Vs. The
State & ors., 2 BSCD 139.
(5) Prosecution case was that the accused respondent murdered his wife by throttling—Defence
contended that it was suicide by insecticides—Medical evidence clearly supported the prosecution case
that death was due to throttling—the doctor in details explained the nature of the injuries found by him
in post mortem who did not find-any trace of any poisonous substance in the stomach nor its effect in
the liver and lung—trial Court held the accused to be guilty—High Court set aside the conviction on
thO ground that chemical examination of the 'liquid contained in the bottle .' produced before Police
Station and viscera of the deceased was not done—absence of chemical examination of the liquid
contained in the bottle produced before the police Station and viscera of the deceased, did not in any
way render the trial defective in the face of sufficient evidence to lend support to the prosecution case
chemical examination as stated by the High Court was not at all necessary—High court's Judgment
reversing that of the trial Court is against the weight of the evidence and as such not sustainable. The
State Vs. A ltazur Rahinan, 2 BCR 1982 A D 264. .
(6) Conviction u/s. 302 by invoking aid of Sec.34—S. 34 does not say ' ,common intentions of
all" nor, does it say "an intention common 'to all"—It emphases the doing of criminal act in furtherance
of such intention—out of three accused persons—two acquitted by different forum—conviction of the
accused petitioner notwithstanding the acquittal of his co-accused—held, sustainable. Lutfor Rahman
Vs. The State 4BSCD 25.
Sec. 302 Of Offences affecting the Human Body 823
(7) Assembly of ev i dence—eye-witness's—testimony of solitary eye-witness whether can be relied
upon informing the order of conviction in a case involving Sec. 302/34 and 201/34, PC—nothing was
on record showing that eye-witness had any special grudge or enmity to falsely implicate the accused
persons in murder case—evidence of eye-witness corroborated by other prosecution witness and
established beyond all reasonable doubt that the accused committed the - murder in furtherance of their
common intention—their conviction u/s. 302/34 upheld—conviction u/s. 201/34 set aside as there is
no evidence to sustain the charge—death sentence committed to life term. Lia/cat A li Chakiader &
others Vs. The State BCR 1984 AD 114.
(8) Conviction based on confessional statement of accused-appellant and dying declaration of one of
two deceased persons—No eye witness in the case—confession voluntary and true—Witnesses who
deposed about dying declaration of the deceased found to be competent and reliable—Prosecution case
was established beyond reasonable doubt—No interference by the Appellate Division. Suk/al Sdrdar
Vs. The State BCR 1985 AD 283.
(9) Conviction for murder—Assessment of evidence—Recognition of the accused—Use of black
face cover—Benefit of doubt—Whether the conviction of the appellant for murder has been grounded on
correct assessment of evidence on record—Recognitions of the accused cannot be excluded—Due
omission of . P.W. 6 before lodging the Ejahar or by.fac.e cover of the-accused—There is hardly anything
to show that the possibility of recognition of the known persons like the accused was excluded by such
cover—Both the trial Court and the appellate Court accepted the prosecution's explanation as to non-
mentioning of the accused by P.W. 6 before the FR was lodged—Deceased's minor son's recognition
of the accused though disclosed later cannot be assailed—Excepting a little delay is in making the
disclosure there was nothing against their evidence—Considering all the facts and circumstances to the
case Appellate Division held that the finding as to recognition was on proper assessment of the
evidence leaving no scope for giving benefit of doubt to the accused. Ekiasuddin Ahmed Vs. The State,
8CR 1986 A D 59.
(10) The Accused—Appellant faced trial u/s. 302/34, PC and were found guilty of the offence of
committing murder in furtherance of their common intention and sentenced to transportation for life—
Their appeal before the High Court Division also failed—question as to the character of the Entry—
Whether Second Information Report which was lodged. 6 hours later should be treated as FIR in the
case. G.D. Entry giving the board facts of the case was the basic prosecution story and further the
names of the accused were also mentioned in the G.D. Entry. The subsequent FIR lodged within 6
hours gives the trials of the prosecution case and introduced the story of the eye witnesses but basically
there is no difference between the G.D. Entry and the FIR as the prosecution case is still based on the
broad facts given in both the information. Habibur Rahman & ors. Vs. The State, BCR 1986 A D 218.
(13) Murder—No eye-witness—Investigation Officer who made the G.D. Entry and he filed a suo
motu FIR, not examined in the case to prove statement of the prosecution witnesses as to the points on
which their attention was drawn u/s. 162, Cr. P.C.—No evidence that inquest was held on the
deadbody of the victim—No inquest report produced by the prosecution—Neither the postmortem
report was produced not the Doctor who held the autopsy of the deadbody was examined—All accused
persons convicted and sentenced to transportation for life—In the absence of any direct evidence,
conviction based only on circumstantial evidence, whether sustainable in law—Criminal Appeal—No
lawyer appeared to represent the convicts before the High Court Division in Criminal Appeal—There.
were witness who stated that they saw marks of injuries on the victim's deadbody—Where all the
824 Penal Code Sec. 302

evidence is circumstantial, it is necessary that cumulatively its effect should be to exclude any
reasonable hypothesis of innocence of the accused—To give a favourable verdict it will be necessary for
the accused to set up facts on which he may rely as exculpatory circumstance sufficient to cast a
reasonable doubt on the prosecution case—Circumstance of the case incompatible with the innocence
of the accused appellant and sufficient to exclude all possibility of their being innocent of the murder—
Conviction and Sentence based on circumstantial evidence not interfered with by the appellate
Division.. Kashab Chabdra Mistry Vs. The State, 1985 BLD (A D) 301'BCR 1985 (A D) 298.
(12) The trial court. acquitted the accused persons who were charged u/s. 302/34/148, & 323/48
PC—High Court Division in criminal revision in a Cryptic Order discharged the Rule by observing
the trial Court's judgment was quite elaborate on consideration of evidence on record—The High
Court Division did neither consider the evidence nor applied its mind as to whether the facts and
circumstances warranted the order of acquittal passed by the trial Court—State counsel before. the
Appellate Division submitted that the High Court Division's judgment did not meet the requirement
of law—Cases sent back to the High Court Division for disposal on merit Md. Majibur Rah man Vs.
Ivfathabuddin & ors., BCR 1987 (A D) 150. .
(13) Acquittal—when interfered with by the Appellate Division—Victim beaten to death—No eye-
witness—Accused's close relations decelerated hpstile witness—The trial Court on the evidence of the
complaint, Medical Officer holding the deadbody's autopsy, Police Officer and the circumstantial
evidence held that the murder could not have been committed by any one except the accused persons in
their own parlour and accordingly held the accused guilty u/s. 302/34, PC—High Court Division
passed an order of acquittal and set aside trial court's order of conviction and sentence—Appellate
Division examined merit of the case—Contrary findings of the High Court Division found perverse
being not consistent with the facts and circumstances of the case—High Court's order of acquittal set
aside—In view of the nature , of injuries causing the Victim's death, conviction altered—Sentence
modified. The State Vs. A fsar A ll Khan & ors., BCR 1987 (A D) 87.
(14) Death sentence—Question of commutation—Inordinate delay in execution, of sentence may be
a ground for commutation in some cases but the delay which is not due to any laches of the
prosecution should not be considered to be a ground for commutation—This section does not specify
in which ease death sentence should be given and in which case transportation for life to be awarded but
leaves the matter to the direction of the court—Bitter matrimonial , relationship played a part in the
nefarious situation and the same cannot be overlooked—Ends of justice will be met if the appellants are
sentenced to transportation for life instead of death. Nowsher A li Sardar V s. The State, 1987 BLD
(A D) 324=39 D:.R (A D) 194=BCR 1987 376 .
(15) Culpable homicide—When it does not amount to murder—M was not struck on any vital
part of his body nor any lethal weapon used to chastise him—Doctor found only abrasion and swelling
of M's six legs and arms and haematoma on the left side of the scrotum—There is evidence that a
'doctor was called in by the accused to treat the victim—The immediate purpose was to give a bit
smart beating and in the process some excess was committed—It was a case of culpable homicide not
amounting to murder—Conviction is accordingly modified. Mohiruddin & ors. V s. The State 1986
BLD (AD) 318.
(16) Murder charge—Accused person's mercy 'petition before the trial Court on conclusion of Trial
admitting their guilt and praying for lenient punishment—Accused persons held guilty of the Offence of
culpable homicide not amounting to murder—Conviction based on good evidence but no extenuating
Sec. 102• Of Offences affecting the Human Body 825

circumstance calling for lenient punishment—On conclusion of the trial the only course left for
the court is to pronounee judgment—No scope for filing any Mercy petition by the accused before
the trial Court—No scope for the trial court for entertaining any Mercy Petition from the accused—
Light punishment awarded on the mercy petition from the accused not proper—High Court Division
rightly enhanced the sentence in Criminal Revision. Murtoza Hussain & ors. V s. The Slate & ors.
6 BSCD 32.
(17) The Trial court on evidence found 25 accused including the present appellant guilty U/ss.
148, 164/149 & 302/109, PC and acquitted the other accused including "MS" of the respective
charges—The Trial court found that the offence U/S 364 was in respect of S M & MK and the offence
U/S 302 was in respect of committing murder of i—The sentence of life term was awarded U/s 302/109
but no separate sentence was passed U/Ss 148/364/149—On appeal the conviction and sentence of the
present appellants were upheld by the High Court Division and the rest were acquitted—The Court,
however, set aside the conviction even of those 10 persons U/ss . 3641149—Out of the 1 ,0 accused
persons eight were in appeal before the Appellant Division—Acceptance of evidence without scrutiny
on Correct principle of assessment of evidence resulted in wrong finding—Evidence and circumstances
cast doubt on the prosecution case—None of the witnesses informed any authority until a certain date
about the place of occurrence although the Occurrence took place some days earlier—The finding of the
trial court upon appreciation of evidence of some of the prosecution witnesses casts a long shadow on
the subsequent proseCution case of alleged killing of J—Evidence on record does not justify the order of
conviction U/S 302/109 and 148 upheld by the High Court Division—Conviction and sentence set
aside. Jamal & ors. Vs. The State, 40 DLR (A D) 38=BCR 1988 (A D) 1 7
• (18) Acquittal—Order of Acquittal—Supreme Court's (High court Division's) power to review
such order—No limitation could be placed upon that power unless it is found expressly ,stated in the
Criminal Procedure Code—Consideration must always be whether in relation to the proved facts and
circumstances, justice has been done in accordance with law. 42 DLR (AD) 31=1990 BLD (AD) 25.
(19) Conviction of all the appellants u/s. 302/34 set aside Appellant No. 5 convicted uis. 302,.
PC—Appellants I and 6 convicted under section 323—Appellants 2-4 convicted under Section 324—
Sentences passed accordingly. Md. Chand Mia & ors. Vs. The State, BLD (A D) 155=42 BLD (A D) 2.
(20) Bail— Prima facie case made out under this Section—Petitioner not entitled to bail. Shah
A lam Chowdhury Vs. The State, 42 DLR (A D) 10 = 1989 BLD (A D) 127.
(21) Incitement when it amounts to abetment to murder, the deceased was chased by persons
armed with knives and when the deceased fell down, the order to beat was given by Abdul Bepari who
had been convicted under sections 320/109 ly the Sessions Judge. It was contended on behaofAbdul
Bepari that he by giving an order. 'to beat' cannot be said to have abetted the murder of the deceased.
Held:- Order to beat had been passed when the assailants were all armed with knives and Abdul Bepari
must have known what the consequences of his order would be. It cannot be urged on his behalf that
when he gave the order to assault he did not intend the murder of the deceased. State V s. Bahar A li ii
DLR 258: 1959 PLD (Dac) 832.
(22) Several persons charged under sections 302 and 302/34, P.C. were acquitted—Two charged
under sections 302/109 cannot.be convicted for abetment of murder by unknown persons. Sekandar Au
Vs, Crown2 DLR 158. • . . .
(23) Charge under section 304/49 but convicted u/s. 304(1)134—Valid. Charge was framed under
section 302, read with section 149 P. Code. But conviction was founded on section 304(1), read with'
section 34 P. Code. Conviction valid in law. A h,nad A ll Vs. State (1960) 12 DLR 365.
826 Penal Code Sec. 302
(24) Charging severally under section 396 and alternatively under sections 302/120B would vitiate
the trial on account of misjoinder of charges. crown Vs. -A Quddar 5 DLR 52.
(25) Charge. framed was under sections 302/149—Con yictjon and sentence under sec. 302. Where
it has been found that each of 'accused was individually guilty of murder, the Court is competent to
convict each one of them for murder under section 302, notwithstanding that the charge preferred
: against them in . respect of the murder was under section 302 read with section 149, P.C.
Sardar A ll
Vs. crown 9 DLR (FC) 7.
(26) Person charged under sections 302/149. Where a person is charged under sections 302/149,
there is no necessary implication that he himself committed the murder unless in the charge it is so
alleged. The primary basis of .a constructive charge under section 149 is the existence and membership
an unlawful assembly and the commission 'of an offence by a member ' thereof, in prosecution of .a
common object or such as the members knew it to be likely tobe committed in prosecution of such
object. Rahmqn Sardar Vs. Crown .7 DLR 572.
(27) Confessional statement shows that one accused held the victim down while the other accused
cut his throat. Held Conviction of both the accused under section 302, P.C.—Ocular evidence wanting
not possible. The two gccuseds were charged and convicted under sections 302 and 364 of the Penal
- Code and sentenced respectively to transportation for life and R.I.'for 5 years each. The conviction of
the appellants under both sections 302 and 364 the Penal Code is untenable inasmuch as the two
offences are mually exclusive. It was contended that the prosecution has succeeded in bringing home
the charge. -under section 302 of the Code .to the appellants. It May be observed here that on the
evidence on record there cannot be any conviction of both the appellants under section 302 of the Penal
• Code. There is no eye-witness to the occurrence and - as such evidence is lacking as to who caused fatal
injury to the deceased. According to the confessional statement, Tapa cut the throat of the deceased
while Haria held him. If the entire prosecution would be based on this confession then Tapa could be
held guilty under section 302 and Haria under sections 302/109 of the Penal Code, the conviction of -
both the appellants under section 302 of the Penal Code is not maintainable. Hari Pada Debnath Vs.
The State, 19 DLR 573
(28)' Death sentence commented to transportation for
life— Circumstances—The accused was
charged under sections 302/34 and convicted and sentenced to death, The High Court in commuting -
the death sentence to transportation for life. It appears from the written statement put in the suit that
deceased complainant had made imputation against the chaste of the mother of the accused prisoner and
the legitimacy of the accused prisoner itself. It is not unlikely that such denunciation of the character
--at .a time when the feelings between the parties were running high over the dispute of the property
might have disturbed the equanimity of the accused prisoners particularly Suren who is the eldest
child. It further appears that the deceased complainant was trying to posses the disputed property
which apparently was in the possession of the accused prisoner. These are the circumstances which,
in our opinion, should be regarded as extenuating ones which should weigh in favour of reduction
of the extreme penalty of law. We, therefore, think that the sentence of death passed upon the
condemned prisoner Suren should be commuted to transportation for life. The State Vs. Suren Das
Korn, 21 DLR 604.
(29) When a person inflicts hatchet injuries on a-dead man, he cannot be charged for the offence of
murder. Feroz Khan Vs. State 13 DLR (SC) 266.
(30)
Knife aimed at mother caused stab wounds to a child resulting in its death—Offence under
- section 302. PLD 1955 (La/i) 63.
Sec. 302 Of Offences affecting the Human Body 827
(31) Where gun-shots were directed towards the lower part of a victim's body who died
subsequently and the injury was not shown to be one which was sufficient in the ordinary course of
nature to cause death . Held : It could not be said that the offence committed was one of murder. .Tra
Mia Vs. Crown. 7 DLR 539. . .. .
(32) Charge for murder and abduction for murdr should be kept distinct, and the evidence bearing
on each should be separately summed up. Sher A ll Biswas V s. State 10 DLR 374. .'
(33) Murder by poisoning—Points that have to be established In a case of murder by poison, the
following points have to be proved Firstly, did the deceased die of the poison in question, secondly,
had the accused got the poison in question in his or her possession and thirdly, had the accused an
opportunity to administer the poison in question to the deceased. If these three . points are proveda
presumption may under certain circumstances be drawn by the court that the accused did administer'
poison to the deceased and did cause the death ofthe.deceased.It is not usual that reliable direct:
evidence is available to prove that the accused did actually administer poison to the deceased. Ayes ha
Khatun Vs The State 19 DLR 818
(34)Murder , Mere absence of accused's intention in a murder , case does not take the case out Of.,
the purview of the offence of murder where the accused had knowledge that his attack on the deceased
was likely to cause death Khanwada Vs State 28 DLR (W P) 15
(35) Conviction on circumstantial evidence alone—Facts proved must be incompatible with the
innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of
his guilt Mst Sairan V s The State 22 DLR (SC) 35
(36) Murder—Husband can not be held responsible for the murder of his wife merely because they
used to quarrel occasionally. As regards conviction based on circumstantial evidence alone the rule is
that the facts proved must be incompatible with the innocence of the accused and incapable of
explanation upon any other reasonable hypothesis than that of his guilt. Murder—Husband cannot be
held responsible for the murder of his wife merely because they used to quarrel occasionally. It is not
unusual for husband and wife to quarrel over various matters occasionally when they have to live.
together. From that fact alone a husband or a wife cannot be , held responsible when his or her spouse
happens to be murdered. Kasiruddin Sarkar Vs. The State, 24 DLR 164. .
(37) Punishment for murder is death or transportation for life which is at the discretion of the court
in consideration of the facts and circumstances of the case. Nausher All Vs. State, 39 DLR (AD) 194.
(38) Culpable conduct of the accused that he made no attempt to look for his wife since she was
missing is explicit, which is confirmatory of his involvement in the murder of his wife. Normally an
accused is under no obligation to account for the death for which he ison trial, but this isboOnd U be
different. Dipok Kumar Sarker Vs. The State 40 DLR (AD) 139, .
(39) In the present case the offence followed a brief tenure of a rancorous married life between the
appellant and the deceased. It was admitted by the prosecution that it was not a blissful union from the
beginning Circumstances would have been taken notice of while inflicting proper punishment
prescribed under the law. DipokKumar Srkar Vs. The State 40 DLR (A D) 139.
(40) Motive is though a piece of evidence' and may not be a sine qua non for bringing offence home
to accused, yet it is relevant and important on the question of intention. The existence of motive has a
great significance in a criminal trial. The State Vs. Mizanul Islam.. 1988 40 DLR 58.
(41) The credit to be given to the statement of witness is a matter not regulated by rule Of
procedure. The credibility of a' witness depends upon his knowledge of fact to which he testifies his
disinterestendness, his integrity and his - veracity. State Vs. Mizanul Islam, 40 DLR 58.
828 •. . Penal Code . Sec. 302

(42) Evidence of a witness is to be looked at from a point of law of its credibility. Appreciation of
oral evidence depending as it does on such, variable inconsistent factor as human nature cannot be
reduced to a set formula, State Vs. Mizanul Islam, 40 DLR 58.
(43) Common intention—Offence committed—Moral and legal responsibility to . be shared by all
the accused equally. When all the accuseds have fully contributed to the death of the victim in a joint
venture and it is diffcult to weigh and ditinguish their respective contribution on a charge under
section 302 read along with section 34 of the P. code, they. are equally guilty in the eye of law and
their moral responsibility is also the same. State Vs. Nawab B/was 13 DLR 646
(44). For producing a cumulative effect—all persons taking share, responsible—While in
circumstance of a case the fact that a particular accused has not given the fatal blow or that his liability
is only vicarious, may be a good ground for imposing the lesser penalty, in, a case like the, present
where a number of persons inflict a large number of injuries with the intention of causing death so that
each is contributing towards the death Of the deceased, it is not necessary for the purpose of imposing
maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the
Court attributes the intention of causing death in a brutal manner should (in the absence of some other
circumstances justifying the imposition of the lesser penalty) be awarded the maximum penalty.. Fateh
Khan V s. State, 15 DLR (SC) 51.. . . .
(45) Where charge has been established against all the appellants, they are equally guilty in the
eye of law irrespective oftheir contribution in the death of the victim. Majibur Rahman Vs. State, 39
DLR 437. . .
(46) Evidence adduced 'b P.W .1. was corroborated by P.Ws. 3, 17 and 18 who were eye
witnesses—Whether benefit of doubt can be given. Nurul Islam Vs. The State, 40 DLR 122.
(47) Common intention to murder the deceased Kanchan having been established by the
appellants' participation in the offence, they were rightly convicted. Nurul. Islam V s. State, 40
DLR 122.
(48) Common intention—Whether the evidence of P.W.J. ad P.W.II, two eye-witnesses, shows
that the appellant Nos. 24 had shared common intention to cause the death of Nandalál along with the
appellant No. 1—There was no proper evidence to make such an inference . A mar Kumar Thakur Vs.
The State, 40 DLR (A D) 147.
(49) Deceased was seen in the company of the accused at 10 p.m. followed by discovery of his.
body at noon next day—No presumption, without further materials, that the accused was concerned in
the murder of the deceased—Circumstantial evidence being not incompatible with accused's innocence.,
Ismail Scirkar V. State, 33 DLR 320.
(50) Evidence on record does not justify the order of conviction under sections 302/109 and 148 of
the Penal Code upheld by the High Court Division—The learned Judges did not at all consider the
evidence relating to the alleged abduction of Sohiab, Mahtab and Mobarak for which the appellant ,were
convicted. also under sections 362/149, Penal Code. Jamal Vs. State, 40 DLR (A D) 38.
(51) Common object was to abduct a girl—Accused were armed with deadly weapons—In course
'of carrying out their common object one of the. accused fired a shot and killed a person—Held , : all the
accused guilty of capital charge under sections 302/149. Original common object of the accused was to
abduct a girl and in furtherance of this object, they, armed with deadly weapons, broke open the door of
dwelling house and one of them fired a shot -killing a woman (and not the girl). The Trial Judge
Sec 302 Of Offences affecting the Human Body 829
acquitted them of the capital charge under sections 302/149 holding that the object of the unlawful
assembly was to abduct and not to kill anybody and that there was no evidence as to which particular
person fired the shot. The conviction and sentences were upheld by the High Court on appeal. In a
petition for special leave to appeal the Supreme Court, Held The courts below fell Into an error,i
acquitting the iccused of the capital charge, even if no reliable evidence was available as to which of the
particular persons killed the woman yet all the accused charged were burdened with vicarious liability
under section 149 P.C. notwithstanding that the original common object was to forcibly abduct the
girl. The accused being armed with deadly weapons, the intention to use these arms in case of
resistance was, therefore, manifest. The petitioners were, therefore, guilty of the offence under sections
302/149 Samman Vs. The State, 22 DLR (SC) 127.
(52) Where a number of accused participated in beating a man to death under circumstances which
amount to murder under section 302/109 of the Penal Code, the conviction should be under some
lesser section than section 302. Section 149 does not create a new offence but provides for vicariou9
liability for offences committed by others in furtherance of the common object. Under this section the
liability of the other members except those who assaulted the deceased for the offence committed during
the continuance of the occurrence rests upon the fact whether they knew beforehand that the offence
actually committed was likely to be committed in prosecution of the common object. Such knowledge
may be reasonably inferred from the nature of the assembly, arms or behaviour at or before the scene of
action. A bdus Subhan alias Motirbap Vs. The State, 19 DLR 927.
(53) The common object in the charge was stated to take forcible possession of plot A. Evidence
established that though there was an occurrence over plot A in the morning it came to an end soon after
K of the complainant party was surrounded and attacked when he subsequently went to plot B. Held
When once the occurrence with regard to plot A had come to an end, the 'common object. which
motivated the accused persons to surround K on plot B was not to take forcible possession of plot A..
The common object of the assembly having been erroneously given in the charge the conviction both
under sections 147 and 302/149, P.C. could not be sustained. Hakim A li Vs. Crown, JDLR 139.
(54) Joinder of charges under sections 302/149 and 201 is permissible in cases coming under,
section 236 of the Code of Criminal Procedure. Rahman Sardar Vs. Crown 7 DLR 572.
(55) Death due tobroncho-pneumonia developing independently of burns caused by accused's
act—Accused not guilty of murder. 1956 PLD (Lah) 453.
(56) Loss of self control under provocation—However unexpected the occasion for striking in self
defence and whatever the loss of self control under provocation might be, a person who causes the death
of another by smashing his skull with repeated blows on the head must be taken to intend causing
death or such injury as is likely to cause death. Qadir Baksh Vs. Crown 5 DLR (W PC) 82.
(57) Charge and conviction u/ss. 302 and 201, if legal. A man can be charged both under sectionS
302 for murder as well asunder section 201 for causing disappearance of the evidence of murder but in a
case of this description it is proper that the charge under section 2Q1 should be made in the alternative.
Where charge under section 302 fails it is nothing illegal to convict a person under section 201, if the
offence under this section is established against him. This is permissible even though the charge under
section 201 was not in terms framed against him as such a course is permissible under the provision of
section 237 of the Cr. P. Code. .A fsaruddjn Choukidar Vs. State, 21 DLR 783.
(58) Where the finding is that the accused has the guilty intention of causing such injury as is
likely to cause death the offence cannot be converted into one under part I of section 304 of the Code,
830 Penal Code Sec. 302
unless it is brought to an of the 5 Exceptions of section 300. Govt. of Bangladesh V s. Siddique
Ahmed, 31 DLR (AD) 29.
(59) Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordinance—Effect of
change on sentencing—Previously death sentence was the normal sentence for murder and the court was
required to give reasons if the lesser sentence of life imprisonment was given—After the substitution
now reasons have to be given in either case—A death sentence is to be justified in as much in the same
way as in the case of lesser sentence of life term imprisonment. Abed All Vs,State, 42 DLR (AD) 171.
(60) Sentence—Commutation of death sentence—Delay of about two years or so in the disposal of
the Death Reference case and the Jail appeal in the High Court Division cannot by itself be a ground for
awarding lesser sentence. Abed A ii Vs State, 42 DLR (AD) .171.
(61) Culpable conduct of the accused that he made no attempt to look for his wife since she was
missing is explicit, which is confirmatory of his involvement in the murder of his wife. Normally an
accused is under no obligation to account for death for which he is on trial, but this is bound to be
different. Dipok Kumar Sarker Vs. State, 40 DLR (AD) .139.
(62) In the present case the offence followed a brief of a rancorous married life between the appellant
and the deceased. It was admitted by the prosecution that -it was not a blissful Union from the
beginning. Circumstances would have been taken notice of while inflicting proper punishment
prescribed under law. Dipok Kumar Sarker Vs. State, 40 DLR (A D) 139.
(63) The question is whether the materials on record warrant conviction of the appellant Momin
Malitha under section 302 of the Penal Code. We have carefully examined the evidence on record from
all aspects and we are of the opinion that the offence committed by this appellant does not come within
the scope of section 302 of the Penal Code. Momin Malitha Vs. State, 41 DLR .3 7.
(64) Commutation of sentence—extenuating circumstances for commutation—condemned
prisoners are under peril of death sentence for almost 3 years suffering agony and torments thereby
partially purged their guilt. Their life may be spared. Sentence of death commuted to one of
imprisonment for life. A bdul Kashem Vs. State 42 DLR 378.
(65) Submission of sentence for confirmation—the order of conviction under Section 302, Penal
Code by the Sessions Judge on the basis of part of the evidence recorded by an Assistant Sessions
Judge, who is not competent to hold trial under that section, is illegal. The death reference is rejected
and the case sent back for re-trial of the condemned prisoner in accordance with law and in light of
observation made. State Vs. ImdadA li Bepari, 42 DLR 428. .
(66) Motive is though a piece of evidence and may not be a sine qua non for bringing offence home
to accused, yet it is relevant and on the question of intention. The existence of motive has a great
significance in a criminal trial. State Vs. Mizanul Islam 40 DLR 58.
(67) The credit to be given to the statement of witness is a matter not regulated by rule of
procedure. The credibility of a witness depends upon his knowledge of fact to which he testifies his
disinterestedness, his integrity and his veracity. State Vs. Mizanul Islam, 40 DLR 58.
(68) Evidence of a witness is tq be looked at from point of law of its credibility. Appreciation of
oral evidence depending as it does on such variable inconsistent factor as human nature cannot be
reduced to a set formula. State Vs. Mizanul Islam, 40 DLR 58.
(69) Common intention—Whether the evidence of PW I and' PW II, two eye-witnesses, shows
that the appellant Nos. 2-4 had shared common intention to cause the death of Nandalal along with the
appellant No. 1—There was no proper evidence to make such an inference. Amar Kumar Thakur Vs.
State, 40 DLR (A D) 147.
Sec. 302 Of Offences affecting the Human Body 831

(71) Evidence adduced by PW I was corroborated by PWs 3, 17 and 18 who were eye-witnesses.
Nuru/ Islam Vs. State 40 DLR 122.
(72) Common intention to murder the deceased Kanchan having been established by the
appellant's participation in the offence, they were rightly convicted. Nurul Islam Vs. State 40 DLR 122.
(73) Sessions Judge did not take any step for proper arrangement of defending the condemned
prisoners who were denied the substantive right of being defended through a lawyer at the cost of the
State—Conviction not sustainable in law. State Vs. Jahaur A li 42 DLR 94.
(74) Conviction of co-accused who had not confessed—Circumstances show the accused
Shahajahan Manik had intimacy with accused Rina and this put them to visiting terms and the visits
had strengthened his intimacy with Rina. Their guilty conscience is also evident from the false plea in
their statements made under section 342, CrPC that they did not know each other. Shahjahan Man/k
Vs. State 42 DLR 465.
(75) The confession is sufficient to find accused Rina guilty of the charge under sections 302/34
Penal Code inasmuch as she participated in the murder starting from hatching of conspiracy for killing
her husband in order to many accused Manik to allowing the latter to bring in poison and mix it with
the drinking water of her husband's jug and then to see the husband drinking that water; then after his
death to hang the body and raising a feigned cry. Besides, the circumstances showed there was no
scope for anyone to enter the room to kill her husband without her co-operation. Shahjahan Mank Vs.
465
State 42 DLR
(76) Inconsistent evidence of PWs 2 and 4—Omissions and contradictions in their depositions
were not given consideration by the Courts below—Defence case appears to be more probable than that,
of the prosecution "as it fits in human nature and conduct". Appellants entitled to acquittal as a matter
of right. Abul Kashem Vs. State 41 DLR ('AD) 152. .
(77) No hint having been given to her during her examination under section 342 of the Code of
Criminal Procedure as to the disappearance of evidence of crime she was prejudiced in her defence, and
her conviction under section 201, Penal Code is not sustainable. A bdul, Khaleque V s. State 41
DLR 349.
(78) Confession—ConvictiOn on confession alone—Relying on his incriminating statements that
he made conspiracy with co-appellant Abdul Khaleq to murder his step-mother and when from his
statement it appears that he was very much present standing outside the hut at.the time of the murder,
appellant Hazrat Ali can be safely convicted for abetment of murder. Hazrat A u & others Vs. State 44
DLR (AD) 5.1.
(79) Evidence on record does not justify the order of conviction under sections 302/109 and 148 of
the Penal Code upheld by the High Court Division—The learned Judges did not at 'all consider the
evidence relating to the alleged abduction of Sohrab, Mahtab and Mobárak for which the appellants
were convicted also under sectio,ns 362/149, Penal Code. Jamal Vs. State 40 DLR (A D) 38.
(80) Conduct of the accused—No evidence to suggest the intention of the . accused to kill the
victim while taking him along with them—Facts, evidence and circumstances do not bring the case
under sections 302/109, Penal Code. Soleman Vs. State 42 DLR 118.
(81) Abetment—To sustain a charge of abetment of an offence it is necessary that there must be
some evidence of overt act or omission so as to suggest a pre-concert or common design to comt+iit a
particular offence. So long as the design rests in intention short of overt act directed to the commission
of the offence it is dot indictable in law. Ali Ahmed Malaker Vs. State 43 DLR 401.
832 Penal Code Sec. 302

(82) Culpable homicide not amounting to murder—From the circumstances of the case and the
nature of injury that resulted in the death of victim after 11 days after the infliction of the injury, the
appellant cannot be held guilty of murder. Conviction altered to section 304, Part I. Lal Miah alias
La/u Vs. State 41 DLR (A D)J.
(83) Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court
will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration,
specially when the case is based on circumstantial evidence. State, represented by the Solicitor;
GOvernment of the People's Republic of Bangladesh Vs. Giasuddin and others 51 DLR (A D) 103.
• (84) The High Court Division affirmed the order of conviction and sentence as passed by the trial
Court forgetting altogether that the conviction of the appellant was recorded by the trial Court' under
section 302/149 of the Penal Code which is a completely different kind of conviction from one under
section 302 directly where the liability is personal and in the former case the liability is vicarious.
A ltafHossain Vs. State 50 DLR (A D) 120. .
(85) Though the appellate Court including this court may enlarge a convict on bail for reasons to
be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer
imprisonment for life. Appellate Division in some cases opined that a convict may be enlarged on bail
if there i no chance of disposal of the appeal within the period of his sentence. A convict-who is
sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division.
Bail granted to appellant-opposite party Abdul Momin Sarder on 11-1-96 is cancelled and he is
directed to surrender to his bail bond forthwith, State Vs. A bdul Momin Sardar 50 DLR 588.
(86) Without a proper finding that the accused had a common object, conviction with the aid of
section 149 of the Penal Code is illegal. State Vs. Raisuddin and others 48 DLR 517.
(87) Though the appellate Court including this court may enlarge a convict on bail for reasons to
be recorded by it such a convict is not entitled to be released on bail if he is-sentenced to suffer
imprisonment for life. State Vs. A bdul Momin Sardar 50 DLR 588.
(88) The accused was free to inflict as many blows as he liked—That he dealt merely one blow
shows that he did not intend to kill the victim. The killing cannot be termed murder. State Vs.
Khalilur Rahman 48 DLR 184.
.. he
There was none' to stop Rashid to deal repeated blows if had the intention to kill—he
merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is
lacking—It is not a case of culpable homicide amounting to murder but a culpable homicide not
amounting to murder. A bdul Khaleque and others Vs. State 48 DLR 446
(90) By inclusg jon of the offence of the above Ordinance in the schedule to the Special Powers Act
the. jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand
of dowry, the present case is sent back to the Sessions Court for trial. Firoz Miah V .. State 51 DLR
37. . '.
(91) The accused persons might have given the deceased a serious beating to effect divorce of his
second wife and this resulted in his death. The offence committed by them does not attract sections
302/109, it attracts provision of section 304 Part II of the Penal Code. Shahajahan Talukder @ Manik
and otheFs Vs. State 47 DLR 198.
(92) Though the appellate. Court including this court may enlarge a convict on bail for reasons to
be recorded by it such a convict is not entitled to be released on bail if he is sentenced, to suffer
imprisonment for life. State Vs. A bdul Mom/n Sardar 50 DLR 588.
Sec. 302 Of Offences affecting the Human Body 833

(93) The injury inflicted did not cause instant death. The victim was alive for about 11112 months
at the hospital. This shows the injury inflicted was not likely to cause death, but it endangered the life
and ultimately resulted in death. The appellant therefore is guilty under section 326 of the Penal Code.
Humayun Matubbar Vs. State 51 DLR 433.
(94) ORM 'II1Ica I TM '5rMF M13 7qM ic.i .1 IF351Z1 'f f Higiii ¶j1i9
I 415igiii VAM 11 b- TI* 1t 13 ?'Iau l'IT WRZ iiii ZM 9W, :T

''iilci Iica jg' rnTi °fI zok Em il OR Am f Iii cm 's zitq

7119t e vm 7zffz fWq I ZT M WM ft iR bli1' icicu.i I Sabur
A lam and others Vs. State 51 DLR 16. .
(95) Although charge was framed against the accused under Sections 302/34 of the Penal Code,
conviction of the appellant under Section . 20 of the Penal Code is, not illegal—Code of Criminal
Procedure (V of 1898) Ss. 236 and 23.7. Kalu and another Vs. The State . 1 BLD (A D). 299.. .
(96) Culpable homicide when not murder—There is no evidence on record to show that the
accused had any intention to cause the death of his wife or to cause suchbodi.ly injury as was ordinarily
sufficient to cause death—The accused struck his wife without any premeditation with hands and feet
on the spur of the moment and being deprived of the power of self-control—The assault upon the wife
must have come about suddenly following certain instant incident—The injuries are prima facie not
fatal—It is not unusual in our society for the spouses to be involved in occasional fits of violence,
sometimes transgressing the limits of common rudeness—For all these reasons the offence committed
by the accused appellant is a culpable homicide not amounting to murder—Since an exasperated
husband caused some injuries to his wife without any weapon on the heat of the moment the question
of criminal liability and sentence has to be considered with a sense of compassion—The conviction of
the appellant is altered to the 2nd !art of Section 304 of the Penal Code and he is sentenced to suffer R.
I for 4 years only. Shafiullah alias Kala Mia Vs The State 5 BLD (HCD) 129
(97) Culpable homicide when does not amount to murder—Victim Mahiruddin was not struck on
any vital part of his body nor any lethal weapons was used to chastise him—The doctor found only
abrasions and swellings on Mahiruddin's legs and arms, and haematoma on the left side of the
scrotum—There was no fracture or dislocation in the body of the victim—There is evidence, that doctor
was called in by the accused to treat the victim—The immediate purpose was to give a smart beating
and in the process some excess was committed—It was a case of culpable homicide not amounting to
murder—The conviction of the appellants, is altered to one under Section 304 part H & 109 of the
Penal Code and they are sentenced to R I for 5 years. Mahiruddin and others V s. The State 6 BLD
.....
(AD) 318. . . ,. . . . . ....
. ..
(98) The lathi blows were inflicted, on the vital parts of the body of the victim such as the temporal
regions of the head, the chest and the abdomen—There was, of course, no fracture of bones caused by
the assaults and the doctors found swelling injuries---The victim survived for more than two
the circumstances it is reasonable to hold that the injuries caused by the appellants wete "riót iic'ed
Of
with the intention of causing the death of the victim—Nevertheless, froni that the Oe the lathies On the
vital parts of the body of the deceased it can be reasonably inferfed th aüed had átEleast the
intention to cause such bodily injuries as were likely to cause déâth--Thebffénce cóiimittedb3t the
L appellants therefore, falls under the First Part of Section 304 of the Penal Code'-'The Conviction of the
C appellants is altered from Section 302/34 of the..Penal Codeto;one 'U/s. 304 Part ^,I and eh of them is
sentenced to suffer R.I. for ten years. A b'uiKashém and Others V s. The State 10 BLD.(A D2J0..
834 Penal Code Sec. 302

(99) Offences of murder and kidnapping are co-extensive and there can be no conviction for both the
offences—If abduction is followed by murder no charge can be framed under Section 364 of the Penal
Code—In such a case the charge must be under Section 302/109 of the Penal Code or for murder pure
,
and simple.
(100). Murder and its abetment—Ingredients of—Mere taking away of the victim from his house
without any overt act or animus in the form of any hostile attitude or initial intention to kill will not
justify a conviction for such offences. Soleman and others k's. The State 10 BLD (HCD) 179.
(101) Circumstantial evidence—Ordinarily an accused has no obligation to account for the death
for which. he is placed on trial—But in the instant case murder having taken place when condemned
prisoner was living with the victim, who was his wife, in the same house he was under anobligation
to explain how his wife had met with 'death—In the absence of any explanation coming from his side,
coupled with his confessional statement it seems that none ' other than the condemned prisoner was
responsible for causing the death of Mamtaj Begum. The State Vs. Kalu Bepari . 1O BLD (HCD) 373.
(102) Lone eye-witness to. the occurrence disclosed for the first time the names of the assailants in a
salish held 28 days after the occurrence-- Confessional statements 'of the appellants were found to be
not voluntary—The beled disclosure of the names of the accused in the village salish does not inspire
any credence— The conviction is set aside. A bu Taker and others Vs. The State 11 BLD (AD) 80.
(103) Accused charged under Sections 302/149 may be convicted under Sections 302/34 of the
Penal Code when evidence on record justifies it. So-wa i alias Md. Hussain and others Vs. 'The State 11
BLD (HCD) 495.
(104) Principle for appreciation of circumstantial evidence—Each circumstance relied upon by the
prosecution must be established by cogent, succint and reliable evidence and the proved circumstances
must unequivocably point to the guilt of the accused and must exclude any hypothesis inconsistent
with the innocence of the accused—In examining the evidentiary effect of the circumstances, the Court
has to guard itself against any tendency to substitute suspicion and supply links which are missing to
constitute the necessary guilt of the accused—!n a case involving capital sentence the' Court should be
more scrutinising in reaching its conclusion—The appeals are allowed and the rëférence is rejected.
Mostain Mollah and others Vs. The State 11 BLD (HcD) 552.
(105) It is not safe' to convict an accused on a charge of murder on dubious, tainted and interested
evidence. A bdul Gafur Vs. The State 12 BLD (A D) 90.
(106) Motive—In a criminal trial the prosecution is not bound to prove the motjve—If, however,
any motive is ascribed, the prosecution is to prove it but failure of the prosecution to prove the motive
does not necessarily destroy the prosecution case. I bid
(107) Section 364 is not a minor offence to the offence under Section 302—The offence under
Section 364 is a distinct and specific offence recognised by authoritative judicial pronouncements—An
offence to be a minor offence to a major one must be a cognate offence to a major one, having the main
ingredients in common—The ingredients of the offence of murder and those of the offence of abduction
for murder or putting the abducted person in danger of being murdered are not common. Hence the
offence under Section 364 of the Penal Code is not a cognate offence to the offence under Section 302 of
the Penal Code. Ibid.
(108) "Last seen together"—It is a weak type of circumstantial evidence on which a conviction can
be based. The State Vs. Sree Ranjit Kumar Pramanik 12 BLD (HCD) 284.
Sec. 302 Of Offences affecting the Human Body 835

(109) In a case where two persons have been murdered at dead of night, it is but natural to inform
the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the
F.I.R. Shahjahan Sardar and others Vs. The State 13 BLD (A D) 58.
(110) In case where allegation had been made that a husband had murdered his wife, whether the....
husband had a duty to explain how and by whom she was murdered—the Public Prosecutor, whether
is supposed to know the law and has a responsibility to work with devotion. In case where the
allegations had been that a husband had murdered his wife and then absconded, the husband in such a
situation had a duty to explain how his wife was murdered and by whom she was murdered and in case
of non-explanation by the husband or his silence in the matter or he having absconded immediately
after the murder, would be considered to be a good ground for a finding that the husband is guilty of
murder of his wife if, however, there is no suggestion or circumstances to show to the contrary that
other inmates of the house also used to beat her and killing her in the process. The Public Prosecutor
is supposed to know the law and has a responsibility to work with devotion keeping in mind that he is
representing not a party, but the people in the administration of criminal justice. The State Vs. Nurul
Huq 13 BLD (HCD) 99. .
(111) Circumstantial vidence—Chain of circumstances wanting—presumption that deceased was
last found in the company of aocused—ihether the accused is the killer of the deceased. The
circumstantial evidence found against the accused is incapable of explanation on any reasonable theory
except that of the guilt of the accused his persons. Accused presumed to be innocent of the charge till
guilt is established by legal evidence. Principle to be followed in criminal case based on circumstantial
evidence. It is the fundamental principle of criminal jurisprudence that circumstantial evidence should
point inevitably to the conclusion that the accused and accused only was the perpetrator of the offence
and such evidence should be incompatible with the innocence of the accused. Last seen theory—in the
absence of any eye-witness to the murder and in the absence of any positive evidence that appellant
Malai was found following deceased Siddique Ali with sharp cutting weapons in hand and in the
absence of any overt act on the part of the deceased it cannot be said with reasonable certainty that
appellant Malai was responsible for the murder of deceased Siddique Au. Litigation—litigation
existing between the accused and some of the witnesses is not enough to bear grudge by the accused so
as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false
implication. Malai Miah Vs. The State (1993)13 BLD (HCD) 277.
(112) When admittedly a wife sleeps at night with the husband in a room or hut not approachable
by others, whether the husband is rightly convicted under section 3D2 of the Penal Code on the basis of
indubitable evidence on record? When admittedly a wife sleeps at night with the husband in a room or
hut which is not approachable by others and there is no probable circumstance explaining the cause of
death of the wife and she is found to have been killed in a brutal manner by strangulation, the husband
is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record
against him. A bdul Hamid Sofaruddin V s. The State, 13 BLD (HCD) 563.
(113) Motive—When there is sufficient direct evidence to prove an offence, motive is immaterial
and has no importance. While trying a case under S. 302 of the Penal bode or hearing an appeal
involving S. 302, the Court must not consider first the motive of the murder, because motive is
a matter of speculation and it rests in the mind and special knowledge of the accused persons.
Motive is not a necessary ingredient of an offence under Section 302 of the Penal Code. The Court will
see if sufficient direct evidence is there or not. If not, mtive may be a matter for consideration,
836 Penal Code Sec. 302

specially when the case is based on circumstantial evidence. The State Vs. Giasuddin and others, 18
BLD (AD) 254.
(114) Plea of alibi—in a wife killing case it is always presumed that the husband was with the
deceased-wife At the time of occurrence, unless any alibi is set up by the defence. in that case the burden
of proving such plea rests on the husband in order to absolve him of any criminal liability. A bdus
Salarn Vs. The State, 19 BLD (HCD) 98.
(115) Since the sentence prescribed under section 302 of the Penal Code is death or imprisonment
for 'tife, the Court before recording a conviction must be satisfied beyond reasonable doubts about the
guilt of the accused persons on careful scrutiny of the evidence on record. A conviction even on grave
suspicion and high probability is not tenable in law. Md. .Jiaur Rahman V s. The State, 15 BLD
(HCD) 459.
(116) Sentence—Sentence is a complex matter which needs special considerations in the context of
proved facts. In the instant case the broad facts that stare at the face are that there were hot altercations
and exchange of hot words between the parties immediately preceding the occurrence and there was
grappling by Salam and2 Others on one side and victim Jalal on the other and in the course of such
quarrel and on the heat of passion condemned prisoner Abdul Aziz.Mina inflected dagger blows on the
victim. Under such circumstances, it is to be found that the condemned prisoner had no premeditation
for killing victim Jalal and he acted on the heat of passion. The sentence of death is therefore commuted
to a sentence of imprisonment for life. The State Vs. A bdul A ziz Mina, 16 BLD (HCD) 183:
(117) In view of the fact that the condemned prisoner did not inflict any injury on victim Hazera,
althOugh he was a silent spectator to the cruel and gruesome murder of his wife by his companions,
who- were acquitted for want of legal evidence, it is reasonable to hold that he could not be convicted
under section M2-of thePenal Code but shOuld be found guilty for abetment under sections 302/109 of
the Penal Code. A bdul A wdi Vs. The State, 14 BLD (AD) 224.
(118) There is complete chain of circumstances that the appellants assaulted deceased victim
Biswajit severely and dealt fatal blow causing his death when appellant Gulzar participated in the
occurrence most actively and he was found by PW4 for the last time with the deceased victim when
Gulzar was chasing by the easternside of the khal and the circumstances of the case taken cumulatively
are forming a claim so complete that there is no escape from the conclusion that the murder of victim
• Biswajit.was committed by the appellant Guizar and his associates and none else. Guizar Biswas and
others Vs. The State, 20 BLD (HCD) 550.
(119) The wife of the deceased deposed in Court that she had recognised the assailants of her
husband and accused Akkel Ali gave channy blow, Deiwar gave dao blow, accused Omar AU gave
Láthi blow and accused Quasem gave rifle blow on her husband who succumbed to the injuries on
15.6.1989 in the hospital which is corroborated by PWs. 1,2,3,4.6 and 8 and the dying declaration
and there is nothing to disbelieve the credibility of their evidences and hence the prosecution proved
the case beyond all reasonable doubt and therefore the conviction and sentences under section 302/34 of
the Penal Code against the condemned convict is sustainable. The State Vs. Akke/ Ali and ors; 20 BLD
(HCD) 484.
(120)Non-recovery of the deadbody—Even in a case Of non-recovery of the deadbody of a victim a
conviction can be secured for an offence of murder under section 302of the Penal Code if there be legal
and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear
evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his
Sec. 302 Of Offences affecting the Human Body 837
person and the subsequent removal of the deadbody by the accused persons for the purpose of causing
disappearance thereof, conviction of the appellant under sections 302/34 of the Penal Code is justified.
There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely
because the dead body was not recovered Shaha and others Vs. The State 17 BLD (A D) 241.
(121) A conviction, under section 302 of the Penal Code and a conviction under sections 302/149
of the Penal Code are different kinds of conviction as section 302 of the Penal Code involves direct and
personal liability of the accused whereas sections 302/149 of the Penal Code involve a vicarious
liability. The trial Court convicted the accused-appellant under sections 302/1,49 of the Penal Code and
as such the High C p urt Division was wrong in affirming the order of conviction and sentence under
section 302 of the Penal Code. A ltafHossain Vs. The State, 18 BLD (A D) 231.
(122) The line of demarcation between culpable homicide and grievous hurt is rather thin. In the
former case injury must be such as is likely to cause death whereas in the latter case that is likely to
endanger life. Offenc of culpable homicide pre-supposes an intention or knowledge of likelihood of
causing death. In the absence of such intention or knowledge the offence committed may be a grievous
hurt notwithstanding death being caused. Humayun Matubbar Vs. The State, 18 BLD (HCD) 492.
(123) Right of self-defence against murder charge—Section 100—Reduction of charge into section
304-1—Permissible when there is land dispute between parties—Right of private defence extending to
voluntarily causing the death can be taken in appropriate case: when reasonable apprehension of death or
grievous hurt exists. Where the deceased was not armed With deadly wepon there cannot be reasonable
apprehension of death or grievous hurt providing the right of self defence. In an occurrence taking place
on land dispute the conviction and sentence under section 304 Part I is justified. Khondaker SafuI
Islam Vs. The State-3 MLR (1998) (A D) 117.
(124) Conviction on circumstantial evidence—In a case of murder in order to base conviction on
circumstantial evidence it must be free from doubt. In criminal case guilt of each and every accused
must be proved beyond all reasonable doubt. Where there were fourteen inmates in the house in the
fateful night in which the murder was committed, the prosecution must prove beyond all reasonable
doubt that such and such inmate or inmates of the house or one or two or more inmates jointly or
separately committed the murder. If any doubt arises in the mind of ajudge, it is difficult to convict an
accused who must always be given the benefit of doubt. Zahirul A /am Kamal and two others Vs. The
State / MLR (1996) (HC) 122. . .
(125) Motive in murder case—Not always to be established—The discovery of motive is not
imperative in every, case of murder. If motive is not established even then that does not throw the
prosecution case over board. The abscondence of the accused soon after the crime by itself is not an
evidence. At bess it may lend weight to other evidence. A shraf A li Munshi V s. the State— ] MLR
(1996) (HC) 10.
(126) Absence of intention-mitigating factor—The absence of intention to commit murder brings
the culpable homicide outside the ambit of section 302 which is an offence punishable under section
304 of the Penal Code. Baharuddin Vs. The State— ] MLR (1996) (HC) 159. -
(127) Suspicion is not proof—It is well-settled that susjicion however strong is not substitute for
proof of a murder charge which must be proved beyond , doubt by independent positive evidence.
Swapan Vs. The State— ] MLR (1996) (HC) 205.
(128) Proof of charge beyond doubt—Charge of murder must be proved to the hilt beyond doubt
by consistent and reliable evidence. When there is departure from the manner of the occurrence as
alleged by the prosecution found in the evidence during trial the prosecution case becomes doubtful and
838 Penal Code Sec. 302

in such a case conviction and sentence cannot be sustained in the eye of law. K.U. Hamaytuddin @
A waranga Vs. The State— I, MLR (1996) (HC) 280.
(129) Charge cannot be reduced merely because deadbody was not recovered—Conviction under
section 302/34 can well be maintained when based on legal and sufficient evidence even if the deadbody
cannot be recovered. There is no warrant to reduce the charge from Section 302 to 364 merely because
the deadbody was not recovered. Shaha and others Vs. The State-2, MLR (1997) (A D) 162.
(1 30)Evidence of a child witness corroborated by circumstantial evidence including the absconsion
of the accused immediately after the occurrence can well form the basis of conviction in a case involving
murder charge under section 302 of the Penal Code, Md. Siraj Mia V s. The State-2, MLR (1997)
(NC) 66.
(13!) Nature of proof of charge—When land dispute exists—The charge under section 302 of the
Penal Code must be proved to the hilt by consistent evidence of independent witnesses by way of
corroboration to inspire confidence in the mind of the court in a case where enmity arising out of land
.dispute admittedly exists between the parties. A mir Hossain Dhali V s. The State-2, MLR (1997)
(HQ. 100.
(132) Delay in lodging FIR—When not fatal—When satisfactorily explained, delay in lodging the
F.1.R. is not fatal for thb prosecution. Minor contradictions in the evidence of the P.W.s in relation to
their statements recorded under section 161 Cr.P.0 are immaterial when the charge against the accused
appears to have been established by the consistent evidence of reliable witnesses and the chain of
incidents pointing the finger at the accused. Jahangir Howiadet" and Habib Mallik alias Kalu Vs. The
State-3, MLR (1998) (HG) 62.
(133) Charge of murder—Motive of murder—where there is direct evidence—The settled position.
of law is that the prosecution is not bound to prove the motive of murder where there are ocular
evidence, because motive is not a necessary ingredient of the offence under section 302 of Penal Code.
The failure of the prosecution to prove motive even though taken; does not render any ground to
disbelieve the prosecution 'case where there are material evidence of direct nature. Motive may be a
matter for consideration specially when the case is based on circumstantial evidence.. In a case of
gruesome murder scrutiny of evidences on record must be made with great care. Reducing the sentence
of death into R.I. for 10 S'ears under section 304 in a case involving four murders in lighthearted
manner attended with non-application of judicial mind, surmise and conjecture, contradictory and
incoherent findings unrelated with the evidence on record are held to be perverse occasioning failure of
justice. State represented by the Solicitor of the Government of Bangladesh V s. Giasuddin and
others-4, MLR (1999) (A D) 29. .
(134) Conviction and sentence passed on proper appreciation of ocular evidence cannot be interfered
with. Sentence reduced by the High Court Division cannot be further reduced. Babul Farajee Vs. The
State 4, MLR (1999) (A D) 149. -
(135) Delay in furnishing post mortem report—Effect of—Delay of 7 days in furnishing post
mortem report is no ground for interference with the conviction and sentence. There is no scope to
reduce the sentence of life imprisonment- under section 302. Sabiruddin Mondgl V s. The State-4,
MLR (1999) (AD) 151.
(136) Commutation of sentence—The prosecution is not required to prove motive in all cases.
Where there is direct evidence motive is immaterial. Motive may be for consideration where the case is
Sec. 302. Of Offences affecting the Human Body 839

based only on circumstantial evidence. Imprisonment for life need not be ordered to be served for 30
years which has no legal basis. Commutation of sentence is provided for under section 57 of Penal
Code. Farid A li Vs. The State-4, MLR (1999) (HC) 23. -
(137) Recording of confessional Statement of accused—In plain paper—Not inadmissible—
Section 304—Husband is to explain circumstances under which his wife died—When the confessional.
statement of an accused is recorded by a competent Magistrate after due caution to the accused about the
consequence and compliance with the requirements of section 164(3) Cr.P.C. such confessional
statement cannot be inadmissible in evidence merely by reason of its being recorded in plain paper and
one of its sheet not signed by the accused. The husband is under the legal obligation to explain the
circumstances under which his wife died while they were living together in the same house. A bul
Kalam Mo//ak Vs. The State-4, MLR (1999) (HC) 225,
(138) Murder of wife—Husband's liability—Husband while living with wife at the time of
occurrence in the same house owes an explanation as to under what circumstances his wife died.
Absence of any such plausible explanation coupled with long absconsion of the husband from
immediately after the occurrence constitute strong circumstance as to the guilt of the accused husband.
Faze, PK. alias Fazer A l , (Md.) Vs. the State-5 MLR (2000) (HC) 351.
(139) Murder charge—Use of F.I.R. and power of comparison by the court when informant gives
different version during trial—F.1.R. is not a substantive evidence. It is important that it gives . the
information about the occurrence first in point of time. Court has power to compare the recitals of the
F.I.R. when the informant gives different version during trial. Khorshed (Md.) Vs. The Stare-4, MLR
(1999) (HQ 217. . . .
(140) Murdercharge—Délay is not always a ground for altering sentence of death—Delay by itself.
is not extenuating circumstance for commutation of the sentence of death into imprisonment for life.
The condemned prisoner suffering from a bitter sense of being wronged by his wayward wife together
with delay merit such commutation. Zahiruddin Vs. The State— I, MLR (1996) (A D) 248.
(141) Murder—Culpable homicide not amounting to murder—mitigating circumstances—Absence
of intention to commit murder, lack of premeditation and causing injuries on sudden provocation are
the elements which reduce the offence one from section 302 to 304. A bul Hashem Mollah Vs. The
State---1, MLR (1996) (HC) 99.
(142) Murder of wife—Huband's liability—Burden of proof—Alibi as defence—Nature of proof—
Burden of proof of prosecution case entirely lies upon the prosecution .. In .a wife killing case while
residing in the same house with the husband, the husband is under the liability of explaining the
circumstance under which his wi,fe was murdered. The burden of proof of alibi as to the husband's
remaining somewhere else when his wife died lies upon the husband. This burden is somewhat lighter
than that of the prosecution which means that the burden of the husband is discharged when he has
given a reasonable explanation in favour of his innocence but the prosecution in discharging its burden
has to prove the charge with cogent and consistent evidence. State V s. Mofazza/ Hossain Pramanik-
43 DLR (D) 64. . . . .
(143) Charge when can be altered—When there is no derict evidence that the convict-appellant
inflicted the fatal injury to the deceased, the charge under section 302 of the Penal Code is altered into
one under section 302/109 for abetment. Billal Vs. The State-5, MLR (2000) (A D) 244.
(144) Calling and taking away of the victim by the appellant Billal and coconvict Saiful from his
residence half an hour before his murder, recovery of the body of the victim. Billal's offer of love and
840. Penal Code Sec. 302

threat to the PW 2 Mokseda, and abscondence of Billal immediately after the occurrence are
circumstances to lead to the conclusion that he abetted the murdór. Billal Vs. State (Criminal) 52 DLR
(A D) /43.
(145) The Trial Court committed mistake in sentencing the appellant to suffer rigorous
imprisonment for 30 years but section 302 of the Penal Code provides punishment for imprisonment
for life. Bhola Vs State (Criminal) 55 DLR36.
(146) , Mere absence at the spot during the occurrence cannot provide the accused with grounds to
escape liability under sections 302/109 Penal Code. A lam Kabiraj and others Vs. Stale (Criminal) 55
DLR 273.
(147) Convictions under section 302 read with section 149 of the Penal Code are distinct and
different kinds of conviction under section 302 of Penal Code involves direct and personal liability of
accused or a group of accused whereas section .149 of Penal Code involves constructive or vicarious
liability In order to find the accused guilty of the offénceunder section 302 read with section 149 of the
Penal Code the prosecution must establish that the offence was committed by any member of unlawful
assembly in prosecution of the common object of the assembly. The State v. A .S.1. Md. A yub A ll
Sardar & anr. 23 BLD (HCD) 181.
(148) In a murder case, when the . dead body of a person is handed over to the concerned doctor for
post mortem examination along with the inquest report, the doctor is required to check out whether the
injury or injuries mentioned in the inquest report are all there in the dead body. If any major injury, as
mentioned in the inquest report, Is not foundin the deadbody the doctor must not undertake the post
mortem examination without first seeking clarification in this regard from the 1.0. Similarly when the
post mortem report is silent about an injury which is mentioned in the inquest report, the 1.0. must
.seek clarification from the concerned doctor and give an explanation in the charge sheet. The State V.
Mainul 1-faque @ Mainal. 23 BLD. (HCD) 220,
(149) Confessional statement of one co-accused cannot be used for corroborating the confession of
another co-accused, as both are tainted evidence, much more so when they are retracted. The learned
Additional Sessions Judge solely rqlied upon the alleged confessional statements of thà co-accused in
convicting the accused-appellant under section 302/34 of the Penal Code • and thereby committed
illegality. Md. Rezaul Karim alias Rezaul A /am Rikrhawala v. The State. 23 BLD (HCD) 255.
• ' (150) The law is well settled that mere relationship of the *itnesses and/or relationship with the
victim do not make them unreliable. The. court can rely On the evidence of a witness who is related to
the victim if it considers the same reliable and that evidence is corroborated by other reliable witnesses
who are not related to the victim. Zahed A ll Foreman (Driver) & ors. v. The State. 23 BLD (A D) 182.
(151) Conviction and sentence when based on consistent evidence—Calls for no interference—
Where the conviction and sentence are based on concurrent findings of the trial court and the High
Court Division upon proper appreciation of evidence and when no legal infirmity could be pointed out,
the leave petition is rejected. Abu Jamal & another Vs. The State. .6 MLR (AD) 29.
(152) Altering the charge into one under section 304 part I and reducing the sentence to 10 years
R.I. In a case of murder where the convict-petitioner was sentenced to imprisonment for life by the trial
court which has been reduced to 10 years R.I. upon altering the charge into one under section 304 part
I by the High Court Division in appeal in view of the mitigating circumstance, the occurrence taking
place in a bid to resist the taking away of pulse grown by the convict-petitioner, there being no
illegality committed in the. impugned judgment and order warranting any interference leave to appeal is
refused. Erndadul Haque Vs. The State 6 MLR 'AD),98.
Sec. 302 Of Offences affecting the Human Body 841

(153)Nature of proof—The well established principle of law that in order to sustain conviction the
prosecution must prove the charge against the accused by consistent and reliable evidence. When there
is no legal and reliable evidence on record as to the proof of charge beyond doubt accused cannot be
convicted on any other hypothesis. The State Vs. A zim Sarder and another 6 MLR (A D) 103.
(154)Charge of murder–Nature of proof—Contradictions on material points by eye witnesses make
the prosecution case doubtful—Contradictions in the evidence of the eye witnesses on material points
as to the manner of occurrence make the prosecution case doubtful. When the decision and findings of
the High Court Division do not suffer from any misreading of the evidence, the impugned judgment
and order of reversal of conviction and sentence does not call for any interference. The State Vs. Nasir
A hmed @ Nasiruddin and another 6 MLR (A D) 194.
(155) Charge of murder–Legal requirement as-to proof of—Evidentiary value of confessioiiàl
statement—The well settled principle of law is that the confessional statement of one accused cannot be
used against the other co-accused. Moreover the confessional statement recorded under section 30 is not
an evidence within the meaning of section 3 of the Evidence Act, 1872. When none of the eye
witnesses of the occurrence said a single word against the convict-appellant, this is factually a case of
no evidence. Therefore the impugned order of conviction and sentence which is not based on any legal
evidence is set aside with a serious stricture against the learned trial Court Judge. A bu Syed Vs. The
State 6 MLR (HC) 237.
(156) Charge of murder—Onus of proof lies upon the prosecution—No hard and fast rule as to
number of witness to be examined–Partisan witness need not always be discarded—The cardinal
principle of criminal jurisprudence is that the onus entirely lies upon the prosecutiorl to prove the
charge against the accused. to the hilt beyond all reasonable doubt. There is no hard and east rule as to
the number of witness ' the prosecution has to examine. In a case where there are huge number of
witnesses the prosecution is not required tb examine each and every of them. It is enough to secure
conviction if the material witnesses are examined. Partisan witnesses where in the circumstances are
probable and reliable cannot be discarded merely on the ground of their being partisan. Suffering the
pangs of death for long time pending disposal of reference and appeal are considered to be good ground
for altering the sentence of death into one of imprisonment for life. The State Vs. Md., Monir Ahmed @
Moñir Hossain 6 MLR (HC) 243.
(157) Motive as to murder is not always necessary to be proved—When there are sufficient reliable
evidence establishing the charge beyond doubt, motive for the murder need not .be proved. Inquest
report being the part of investigation alongsfde the post mordem report can well be used by the court as
to the condition of the dead body. A nisur Rahman Chowdhury Vs. The State 7 MLR (A D) 119.
(158) Murder of wife by husband—Circumstantial evidence.—When life is murdered in the house•.
of the husband while living together, the husband has the liability to explain under what circumstances
his wife died. When ocular evidence is hardly possible from the neighbours or inmates of the house
circumstantial evidence can well form the basis of conviction against the husband-accused--
Reasonable doubt has to be adjudged commensurate to the nature of the offence. A lfazuddin Khan
(Md.) Vs. The State 7 MLR (HC) 73.
(159) Motive when to be proved.—In murder trial motive is not always essential and need not be
proved by the prosecution. But when motive is alleged then the prosecution has to prove it Salim
(Md.) Vs. The State 7 MLR (HC) 20.
(160) Charge of murder—Acquittal on . ground of insanity.—Defence of insanity if taken shall have
nobe proved by the'defence. Legal insanity when proved can be the ground of acquittal Of the accused;
842 Penal Code Sec. 302
Criminal lunatic may be detained in asylum till cure. Nikhil Chandra Haldar Vs. The state 7 MLR
(HC) 115.
(161) Commission of theft is pre-requisite of an offence—Non appealing convict may be allowed
the benefit of acquittal.—lJnless there,is a case of theft with preparation to cause death or hurt to escape,
section 382 of the Penal Code is noj/attracted. When the prosecution case is found wholly not proved,
the non-appealing convict may also be given bcnefit of acquittal. MojIzul Islam Vs. The State 7 MLR
(HQ 108.
(162) Charge of murder—Dying declaration—Evidentiary value for conviction.—Dying declaration
has a special sanctity in view of the fact that a dying man as expected cannot tell lie and as such a•
dying declaration when considered true can alone form the basis of conviction. Order of acquittal which
is perverse and is based on findings on improper appreciation of evidence need be set aside. The High
Court Division in such a.case is required to interfere with the order of acquittal which is shockingly
unconscionable. The State Vs. Rashid Ahmed and others 7 MLR (HC') 147.
(163) Charge of murder—proof by circumstantial evidence—. Séntence for 30 years is not
authorised—Imprisonment for life is the proper term of sentence.—When chain of events are proved by
consistent witness and-the calling of.the deceased by the accused and the trial of marks blood found
from the P.O.. house to the place where the dead body was detected constitute most strong
circumstantial evidence irresistibly leading to the conclusion as to the guilt of the accused beyond all
reasonable doubt. Bhola Vs. The State 7 MLR (HC). 224.
(164) Motive—circumstantial evidence—When the wife of convict appellant died with marks of
injuries where her husband and minor children were present but the husband neither informed the police
nor did he give any explanation as to the cause of her death and the facts and circumstances are such
that the death could not be caused by any other person except the husband and in such circumstances
motive is not necessary, Farid A ll Vs. State (Criminal) 4 BLC 27.
(165) The blow of accused Jahangir and chora blow of accused Habib MallIck had resulted in the
death of victim Belayet on the date, time, place and manner as alleged by the prosecutionand learned
Sessions Judge had correctly found that these two accused-appellants were guilty of the charge brought
against them under sections 302/4 of the Penal Code and had rightly convicted and sentenced them
requiring no interference. Jahangir Howlader and another Vs. State (Criminal) 3 BLC 164.
(166) The evidences as to the order to kill victim Kastura Bibi by convicted Abdul Jabbar are
inconsistent and also suffers from contradictions and the prosecution failed to prove the case beyond
all reasonable doubt and as such the conviction and sentence passed upon him under sections 302/34
of the Penal Code cannot be sustained in law. A bdul Jabbar and another V s. State (Criminal) 3
BLC 231.
(167) Death would not have occurred if accused Abdul Hoque would not have played the part of
pressing victim on her neck. Accused Shamsul Huq had no premeditated intention to kill the victim
and the intention to kill is lacking in the instant case. Although, he had no intention to kill the
victim, it must be held that he had the knowledge that such throwing of brick was likely to cause her
death and the act done by him was both rash and indiscreet and as such accused Shamsul Huq is liable
to commission of offence punishable under section 304 Part II of the Penal Code. A bdul Jabbar and
another Vs. 51at (criminaO 3 BLC 231.
(168) Death caused by lathi on the head—The accused petitioner assaulted with a lathi on the head
of the deceased Md. Nurul Howlader as a result of which he died when PWs 3 1 4,5, and 9 all testified
Sec. 302 Of Offences affecting the Human Body 843
about the inflicting of the injury on the head by the accused-petitioner corroborated by the P.W. 13, the
doctor who was not cross-examined by the defence. The High Court Division rightly upheld the
conviction and sentence of the petitioner. Kabir Hbwlader , Vs. State (Criminal) 5 BLC (AD) 12.
(169) The learned Signal Judge has failed to consider the material aspect that the first information
report was lodged within one and a half hour of the occurrence and all the four eye-witnesses proved the
participation of the accused in inflicting one dagger injury in the body of deceased, Abu Taher Abu
When the learned Signal Judge considered sore very minor and insignificant circumstances which are
not at all relevant in this case as the case was well proved by as many as four eye-witnesses of the:
occurrence and hence the accused-rspondent is. found guilty under section 302 of the Penal Code and
he is sentenced to suffer imprisonment for life. State Vs. Ful Mia (Criminal) 5 BLC (A D)41.
(170) The trial court as well a.the High Court Division thoroughly considered the evidence
adduced by the prosecution and_cme to the concurrent finding that the petitioneWalong with others
were instrumental in causingmurder of Mokles when there is no denial of the factum Of murder of
Mokles at the time place and in the manner as alleged by the prosecution, the Courts below committed
no illegality and wrong in finding guilt of the petitioners. A bu Jamal and another V s. State (civil)
BLC (AD) 157. . . .
(171) The way the condemned convict took the rifle and the live cartridges from his superior
officer, went out, returned and then shot at his superior officer leaves no room for doubt that the gun
shot taken by him was the result of premeditation and cool calculation with the intention to cause
death and thereby committed murder rendering him to be convicted under section 302 of the Penal
Code and that there is-no extenuating circumstances to alter the sentence. State Vs. Siddiqur Rahman
(Criminal) 2 BLC 145. ...
(172) As the solitary, eye-witness PW 3, who is found to be fully trust-worthily and reliable and
has been corroborated by PWs. 1-2 and 4-7 and the strong circumstances arising out of the conduct of
the condemned-accused for his attempt of running away from his house and the place of occurrence and
his long continuous absconsion during trial and even thereafter whiôh has proved the charge of murder
beyond all reasonable doubt. State Vs. Ranjit Kamur Mallik (Criminal) 2. .BLC 211. ..
(173) Although there was altercation between the appellant and the deceased at the time of
occurrence which was corroborated by the PWs I and 2 but this case does not fall under section 304 of
the Penal Code as the appellant caused fatal injury on the vital part of the deceased and it was. an
offence of culpable homicide amounting to murder. Siraj Miah' Vs. State (Criminal) 2 BLC 402.
(174) Common intention not proved—although the six accused persons surrounded the victim and
five of them dealt blows by different weapons but the Doctor opined that the death was caused not by
the cumulative effect of the injuries but by the injury on the back of the deceased for which it cannot
accepted that all the accused persons had intention of causing death as the five accused persons dealt
one blow each by their respective weapon which would suggest the lacking of intention to kill the
deceased A shabuddin by all. Madris Miah and others Vs. State (Criminal) 2 BLC 249.
(175) It is well settled that the statement recorded under section 164 CrPC is not substantive
evidence, but is only corroborative evidence Or it can negative the evidence of the witness as given
before the Court. As the prosecution has failed to adduce any positive evidence against the appellants
implicating them or any or more of them in the commission of the murder in question, they .are
entitled to be acquitted. A shu and 3 others Vs. State (Criminal) 2 BLC 465.
(176) Death by the violent act of the accused Shawkat Iqbal whose conductas.revealed form the
materials on record and the injuries as noticed by PW 13 if considered in juxtaposition then it would
844 Penal Code Sec. 302

be understood that death had occurred to Renu owing to the injuries as noticed by PW 13 who held
postmortem examination and because of that accused Shawkat ?qbal made all attempts including
procuring of certificate from accused Dr. AKM Akhter Azam and that completed burial without
informating Renu's husband and that upon making entries in the death register of Azimpur graveyard
giving incorrect information and hence there is no reason to interfere with the impugned judgment of
conviction and sentence of the appellants. Dr. 4KM A khter A zam and others Vs. State (Criminal.) 6
BLC 231.
(177-178) Trial Judge carefully considered and assessed the evidence of PWs 1,2,4, and 5 and
recorded positive decision that Reza and Akkas were directly involved in the killing of Maqbul and
accused Reza killed the victim Maqbul taking dagger from accused Akkas and as such they were rightly
convicted under section 302/34 of the Penal Code as the testimony of PW 1 having got credibility and
ring of truth and such conviction could very well be based on her solitary testimony but there is no
evidence either ocular or circumstantial connection the convict-appellant Helaluddin in the commission
of the alleged offence and the learned Trial judge awarded conviction and sentence upon him without
any legal evidence; Rezaül Hoque (%i Reza and others Vs. State (Criminal) 6 BLC 501.
(179) In the instant case PW 2, daughter of the deceased, is the sole ocular witness and there is
admitted enmity between the parties where the prosecution has failed to examine any distrusted and
independent witnesses, rather their testimonies being hearsay evidence has no evidentiary value and as
such they are incapable of corroborating the evidence of PW 2 whose evidence was also not
corroborated by inquest report as well as post mortem report, even the prosecution has failed to prove
by the testimony of any witness to the fact that PW 2 was in fact in the company of the deceased at
or about the time of occurrence and hence in the absence of such evidence the testimony of PW 2 as
lone witness to the occurrence is not at all acceptable. Mukta Miah & others Vs. State (Criminal) 6
BLC 211. I
(180) In the instant case the victim died in hospital after 9/10 days of her assault by the appellant
party. The injury inflidted on her was grave and homicidal and ante-mortem in nature. The impact of it
was so grave that the same severed and tore Out the spinal cord of the victim when the evidence of
PW II in cross is that it is possible for a person to live for 15/20 days with such injuries and hence .a
premium should not be given to the appellant on the ground that the victim having died after
/10 days in hospital his offence should be regarded as an offence under section 304 Part II of the
Penal Code. The appellant is guilty, under section 302 of the Penal Code and it is maintained as if the
same has been pas'sed'by the competent court' in Sessions case. State Vs. Man,ian Gazi (Criminal) 6
BLC 187. ..... . - . .. ..
(181) High Court Division on consideration of the evidence found that the petitioner had killed
• two victims without any provocation whatsoever and the killing was a result of premeditation and that
the petitioner who has taken two lives should give his own life and the sentence of death was not
commuted to imprisonment for life. Mofazzal Hossain Pramanik Vs. State (Criminal) 6 BLC (A D) 96.
(182) The victim was kidnapped by the accused Heinayet and done to death in a beel by the said
accused with the help of the . petitioners and others and his body was recovered from the said beel on the
showing of one of the accused and only eye-witness of the occurrence is PW 25 who has no enmity
with the, accused persons including the petitioners: Only because the hurricane lamp was not seized by
the Investigation Officer his evidence cannot be doubted and High Court Division committed no
illegality in relying upon his evidence and also on the confessional statement of the co-accused persons
Sec. 302 Of Offences affecting the Human Body 845

to uphold the conviction of the petitioners. Chowdhury Nuruzzaman & another Vs. State (criminal) 6
BLC (AD) 58.
(183) As no one identified the respondents as assailants or persons responsibleTor the commission
of dacoity and murder and no confessional statementwas made by the respondents and there is no
evidence implicating them in the commission of dacoity and murder, no interference with impugned
judgment and order of the High Court Division is called for. State V s. A zim Sardèr and another
(Criminal) 6BLC(A D) 124.
(184) Considering the fact that the accused person in order to save their crops resisted the deceased
which ultimately caused his death at the blow of the petitioner and the medical evidence shows that
there was a penetrating wound in the back of the gluteal region damaging the internal organs of the
deceased as a result of which he died within a few hours of the occurrence and before inflicting the said
injury the deceased was pressed on the ground and he was unarmed, the High Court Division has
rightly altered the conviction form 302 to 304 (part-1 of the Penal Code, reducing the sentence from
imprisonment for the life to 10 years rigorous imprisonment. Emdadul Hoque Vs. State (Criminal) 6
BLC (AD) 125.
(185) The condemned.husband was convicted under section 10(1) of the Nari-o- Shishu Nirjatan
(Bishes Bidhan) Am. 1955 and sentenced to death by the Nati-o-Shish.0 Nirjaton (Bishes Bidhan )
Adalat but if appears from the evidence on record that charge under section 10(1) of the Ain of 1995
was not proved when the High Court Division relying upon an unreported decision of the Appellant
Division without sending the case for trial afresh considered the case on merit in the interest of justice
and it was found the circumstances are not capable of any other explanation or hypothesis other than the
guilt of the husband who is responsible for killing his wife as he failed t6 explain the reasons for the
death of his wife and accordingly the accused husband is found guilty under section 302 of the Penal
Code and convicted thereunder and sentenced to suffer imprisonment for life. Stale Vs. Eunus Khan
(Criminal) 5 BLC 353.
(186) In view of the confessional statement coupled with circumstantial evidence and the evidence
of the PWs the prosecution has proved the case of committing double murder by the condemned
prisoner which she did intentionally and such intention is apparent from the nature of the injuries
proved by PWs 9 and 10 and hence the accused has rightly been convicted tmder section 302 of the
Penal Code by the trial Court. State V s. Romana Begum Nomi(Criminal) 5 BLC 332.
(187) The murder of the wife Of the accused having taken place in the house of the accused who
was living with his wife in the same house and he having an obligation to her death made a ;plea of
snake biting but the same has found to be travesty of truth in view of the evidence of witness including
PW 2 the explanation given by the accused being found to b ,e.fa.lse and in the absence of any other
satisfactory explanation from the defence the accused is responsible for the death of his wife and the facts
and circumstances revealed through the evidence of witnesses are incompatible of explanation upon any
other reasonable hypothesis than that of guilt of the accused. State V s. A .bul Kalam (Criminal) 5
BLC 230.
(188) Since there is evidence of killing of the wife of the accused, lodging ejahar under sectioti 302
of the Penal Code, submission of charge sheet under section 302 of the Penal Code and there is no
cogent evidence as to the demand of dowry by the accused, no evidence to prove immediate cause of
committing the offence, no. cogent evidence as to committing the murder for dowry and no evidence as
to the real cause of killing of the wife by the husband, the case does not come under section 10(1) of the
846 Penal Code Sec. 302

Nari-o-Shishu Nijatan Daman (Bishesh Bidhan) Mn, 1995, but it comes under section 302 of the
Penal Code when the accused is responsible for causing death of his wife. State Vs. A bul Kalam
(Criminal) 5 BLC 230.
(189) The wife was in custody of the husband and the death was caused while she was in the
custody of her husband who has failed to explain the cause of death of his wife, the husband is liable for
the cause of death of his wife and hence the appellant was rightly convicted under section 302 of the
Penal Code and sentenced to suffer imprisonment for life. Shah A lam (Md.) Vs. State (Criminal) 5
BLC 492.
(190) No reliance can be placed on the evidence of PWs. 3. and 4 for holding that the witness saw
the condemned prisoner and his wife in the right of 16-5-95 going inside the but and that they slept
inside the hut in the night following the morning of which condemned prisoner's wife was found dead
and hence it cannot be said that it was the condemned prisoner who caused death of his wife.. Since the
prosecution has not been able to establish the case by reliable witness the condemned prisoner is
entitled to be acquitted. State Vs. A zizur Rahman alias Habib (Criminal) . 5 BLC 405.
(191.) The prosecution having proved the presence of the convict husband at the place of occurrence
house on the night of occurrence, husband of the deceased owes an explanation as to how his wife met
her death at his house. Neither the husband called in a physician for treatment of his wife nor did he
inform his father-in-law nor any other near relations regarding the occurrence nor was he present at the
time of burial of the deceased, he remained absconded even after the delivery ofjudgment without any
cognt explanation is a relevant fact under section 8 of the Evidence Act to show his conduct and it is
also a circumstance indicating his complicity in the crime. Fazer Pk. (Md.) alias Fazer A ll V state
(Criminal) 5 BLC 542.
(192) It appears that the prosecution has failed to establish the existence of preconcert intention
even by proof of acts performed by each individual accused at the time of commission of the main
crime: Several persons can simultaneously attack a man and each can have the same intention, namely,
the intention to kill, and each can individually inflict separate fatal blow and yet none would have the
common intention required by the section because there was no prior meeting of minds to form a pre-
arranged plan. In a case like that, each would be individually liable for whatever injury he caused but
none could be vicariously convicted for the act of any others and if the prosecution cannot prove that
his separate injury was a fatal one, he cannot be convicted of the murder, however clearly an intention
to kill could be proved in his case. Babul Mia and 2 others Vs. State (Criminal) 5 BLC 197.
(193) There is complete chain of circumstances that the appellant assaulted deceased victim
Biswejit severely and dealt fatal blows causing his death when appellant Guizar participated in the
occurrence most actively and he was found by PW 4 for the last time with the deceased victim when
Guizar was chasing by the estern side of the khal and the circumstances of the case take cumulatively
are forming a chain so complete that there is no escape from the conclusion that the murder of victim
Biswajit was committed by the accused appellant Guizar and his associates and none else. State
Biswas and others Vs. State (Criminal) 5 BLC 278.
(194) The wife of deceased deposed in Court that she had recognised the assailants of her husband
and accused Akkel AlL gave channy blow, Delwar gave dao blow; accused Omar Ali gave lathi blow
and accused. Quassemgave rifle blow on her husband who succumbed to the injuries on 15-6-89 in the
hospital which, is corroborated by PWs 1, 2, 3, 4, 6 and 8 and the dying declaration and there is
nothing to disbelieve the credibility of these evidences and hence the prosecution proved the case
S. 302 Of Offences affecting the Human Body 847

beyond all, reasonable doubt and therefore the conviction and sentence under sections 302/34 of the
Penal Code against the condemned convict is sustainable. State Vs. 'A kkel A li and others (Criminal) 5
BLC 439.
• - (195) It is not correct to say that the case as made out in the FIR has been given a go-bye and a
new case developed during the trial and the learned trial Court most illegally discharged the evidences
of 8 eye-witness and hence the findings and decisions of the learned trial Court are not supported by the
evidence on record and as such by the impugned judgment and order of acquittal are 'considered to be
perverse and it is set aside. Accordingly, accused Mahir Motlah, Shamsuddin Molla and Rafiquddin
Molla are found guilty under sections 302/34 of the Penal Code but considering the lapse of 23 years in
disposing of the 2 appeals each of them is convicted andsentenced to suffer imprisonment for life and
accused Nurul Molla, Joynal Molla, and Mokbul Hossain Molla are found guilty under section 304/34
of the Penal code and they are sentenced to suffer RI for 10 years. Mahir Molla and others. Vs. State.
(Criminal) 5 BLC 386
(196) Charge can be altered at any time before delievery of judgment-as. per provisions of section
227 of the Code of Criminal Procedure. After framing a charge under sections 304/34 of the Penal
Code, there is no legal bar to. -find the accused guilty under lower sections 304/34 of the Peial , Cpde.
tvlahir Mo/la and others Vs. State (Criminal) 5 BLC 386
• (197) Wife klling Case—Death by throttling—High Court Division was correct in acquitting the
husband due to lack of legal evidence—Question arose from consideration was whether the prosecution.
was able to prove conclusively that the husband alone killed his wife—Reappraisal and scrutiny of
evidence by the Appellate Division—It will be improper to substitute moral conviction for legal
evidence—No interference with the acquittal order passed by the High Court Division The State Vs.
Khadem Mondal 10 BLD (A D) 229.
(198) Evidence as to causing the death of the victim as unimpeachable High Court Division
upheld the conviction—The injuries ascribed to appellants 8 to 10 were not supported by medical
evidence—No inference by the Appellant Division. Md. A bdul W ahab & ors. Vs. The State BCR 1990
A D 329. . . . .

( 1. 9 9 ) Trial court convicted and sentenced the accused appellant to death for committing a double
Murder—High Court Division confirmed the sentence in a Death Reference case and dismissed the Jail
.Appeal preferred by the condemned prisoner—Appellate Division examined whether there was any
extenuating circumstances the lesser sentence of imprisonment for life instead of death under sec. 300 of
the Penal Code and sustained the conviction and sentence as there was nothing in the facts and
circumstances of case and in the conduct of the accused to take a lenient view. A bed A li Vs. The State
10 BLD (AD) 89=42 DLR (AD) 171.
(200) Murder in December 1971—Delay of Fifteen days in lodging the FIR—Sentence of life
term—Victim's burial without Post Mortem—I/O not examined as he died before trial began—High
Court Division affirmed the Trial Court's order of conviction and sentence of the same evidence of the
eye-witness whom the Trial Court disbelieved with regard to the acquitted co-accused—Validity-
Claim for acquittal on benefit of doubt when cannot be given—l/O's evidence before the committing
Court was brought on record u/s. 33 of the Evience Act on posecution's prayer. Delay is lodging th
F.I.R. and absence of any post mortem examination on the dead body of the victim are great defects but
reason for having no post-mortem examination was due to abnormal situation prevailing in the locality
at the relevant time. High. Court Division rightly upheld the trial Court's acceptance of the informant's
848 Penal Code Sec. 302

explanation as to delay and commission as satisfactory. No scope for taking a different view in the
matter—The part played by the appellants in committing the offence has been amply corroborated—
The defects pointed out by the defence inthe prosecution case not materially prejudiced the accused nor
do they raise any benefit of doubt for which the appellants could claim acquittal on the ground of
benefit of doubt. Kismat Moral & anr. Vs. The State BCR 1990 A D 331.
(201) Bail in a murder case—No allegation in the FIR and also in the statements of the witness
recorded u/s. 161. Cr. P.C. that the appellants committed murder—Statements recorded u/s. 161
Cr.P.C. were placed before the High Court Division but nothing was stated with regard to them—
Considering the statements recorded by the police u/s. 161 Cr. P.C. wherein no special event, act or
direct allegation involving the appellants with the killing of the victim is found. Appellate Division
granted bail to the appellant—Appellants will, continue on the same bail granted by the Appellate
, .Division earlier—If the trial starts in the meantime, trial Couft will be free to take them into custody
during trial. A bdul Matin & ors Vs. The State 44 DLR (A D) 8.
(202) Lathi blows were inflicted on the victim's vital parts, the tempotal region of the. head, chest
and abdomen—Autopsy revealed only swollen injuries. The Victim did not immediately succumb to
the injuries but was alivq for more than two days. The injuries were not inflicted with the intention of
causing victim's death. From the successive lathi blows on the victim's vital parts, it is inferable that
the accused had at least the intention to cause such bodily injuries as were likely to cause death. The
offence committed falls under the first part of section 304—conviction and sentence altered from Sec.
302 to Part I of Sec. 304; A bul Kashem & ors, Vs. The State. 10 BLD (A D) 210=43 DLR (A D) 77.
(203) Victim of murder—a minor boy was called away and lastly seen in the company of two
accused persons before disappearance—Principle relating to circumstantial evidence—Circumstantial
evidence, when cannot be conclusive as to the guilty of the accused persons—Question as to motive—
No material to show that the accused harboured evil motive in calling away the Victim boy whose
father suggested the motive was to give him sorrow for the rest of his life but did not say why the
young accused persons would like to cause him pain and sorrow—This is no motive. The State Vs.
Khasru & .ors. 43 DLR (A D) 182. .
(204) This section provides the punishment in cases where the accused is found guilty of murder.
Where there is a doubt as to the guilt of the accused he must be acquitted, and not be given the lesser
pUnishment of imprisonment of life. AIR 1975 SC 654.
(205) Under S. 367(5) of Criminal P. C. 1898 the primary or normal sentence in cases of murder
must be a sentence of death and the lesser sentence can be given only if extenuating or mitigating
circumstances are established. AIR '1957 SC 614.
(206) The question of awarding the lesser sentence is a matter ofjudicial discretion even apart from
the existence of any extenuating or mitigating eircurnstances. AIR 1955 SC 216.
(207) The choice' of the alternative punishment in cases of murder is a matter of judicial discretion.
A IR 1974 SC 1039. . . .
(208) Life imprisonment for murder is ' the rule and capital sentence the exception..AIR 1974
SC 799.
(209) Special reasons must be given while imposing death sentence. Fact of murder being terrific
is not an adequate reason. AIR 1981 SC 1220.
(210) While murder in its aggravated form and in absence of any extenuating factors connected
with crime, criminal or legal process, still is condignly visited with death penalty, a compassionate
alterative of life imprisonment in all other circumstances is gaining judicial ground. AIR 1974 SC 677.
Sec. 302 Of Offences affecting the Human Body 849

(211) Death sentence must be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime. A IR 1983 Sc 957.
• (212) The proper exercise of the discretion in respect of the punishment, as in all cases of exercise
of discretion be exercised judicially on a proper consideration of all the relevant facts and circumstances
of the case, keeping in view the broad objective of the sentence namely that it is neither too severe nor
too lenient. A IR 1974 SC 1901. . ...
(213) The relevant considerations, in the exercise of the discretion will include the motive for the
crime, the magnitude of the offence and the manner of its commission. AIR 1977 SC 703.
(214) A sentence of death will be proper where the case is one of cold-blooded, callous, and
vindictive character. A IR 1975 sc 573. . . . ... '.
(215.) Murder of Amin; a Government Servant, for effecting sale of lands of accused in discharge of
his ministerial duty—Sentence of death confirmed by observing that crimes committed against public
servants for reasons arising out of performance by them of their public duties must be discouraged and
put down with firm hand AIR 1981 SC 1160
• (216) The conferment of the power on courts to exercise the discretion without laying dOwn any
standard to guide them cannot be said to be an excessive delegation by the legislature of its power. AIR
1980 SC 898.
(217) A provision conferring power on Court to exercise discretion cannot be said t6 be violative
of the Constitution. AIR 1973 SC 947. . . .
(218) Section 302 of the Penal Code and the connected section of the Criminal P. C. are
constitutionally valid. AIR 1980 SC 898.
(219) A sentence of imprisonment for life can only be substituted if the facts jtstify the non
Imposition of the extreme penalty of the law. AIR 1965 SC 1467
(220) . The rule that normal sentence for the offence of murder is life , imprisonment should be
observed both in letter and spirit. Death sentence should be imposed in very extreme cases. AIR 1981
SC764
(221) Death sentence should not be passed except in rarest of rare cases. A IR 1983 Sc 446
(222) Judges are not bound to award the capital sentence simply because the murder is deliberate
or cold-blooded if circumstances exist where the principle of discrimination, should be applied as
among the several culprits. AIR 1975 SC 455.
(223) Capital punishment should not be regarded as per se unreasonable or as not being in public
.interest. Al)? 1973 SC 947. . , •
2. Section 303 declared void—Effect.—(1. ) Since S. 303 of the Penal Code is declared
unconstitutional and void, all cases of murder by life convict will now fall under S. 302 and there shall
be no mandatory sentence of death for the offence of murder. AIR 1983 SC 473.
(2) Murder by life convict during parole—accused sentenced to death on conviction under S.
303—co-accused awarded life imprisonment—s. 303 having been declared unconstitutional accused
held in the facts of case should be awarded sentence of life imprisonment. AIR 1984 SC 45.
3. Extenuating circumstances—General.—(1) In order to award the lesser sentence of
imprisonment for life there must be some extenuating circumstances—Some excuse which, though the
law does not consider sufficient to render the killing culpable homicide not amounting to, murder, is
still a consideration for dealing leniently with the accused. 1955 Madh BL.J (HCR) 2151 (2172,2173):
850 Penal Code Sec. 302
(2) The mere absence of aggravating circumstances is not the same thing as the presence of
extenuating circumstances. AIR 1965 SC 1467.
(3) It is , impossible to lay down any general rule de1ning the classes of cases in which the lesser
sentence may be imposed though, form time to time, teñain circumstances, have been recognised by
Judges as valid grounds imposing such sentence. AIR 1979 SC 1384.
(4) Where the murderer is too young or too old the clemency of penal justice helps him. Where
the offender suffers from sbeo-economic psychic or penal compulsions insufficient to attract a legal
exception or to dOWngrade the crime into a lesser one, judicial commutation is permissible. Other
general social pressures, warranting judicial notice With an extenuating impact may in special cases,
induce the lesser penalty. On the other hand, the weapon g used and the manner of their use, the
horrendous features of the crime and hapless, helpless state of the victim and the like steel the heart of
the law to r a sterner sentence. A IR 1974 S .799.
(5) Several extenuating circumstances may be present in a case and none of them taken singly may
be adequate to warrant the lesser sentence but where, in their totality, they tilt the judicial scales in
favour of life rather than putting it out the lesser sentence should be awarded. AIR 1974 SC 1039.
(6) Where not only there are no extenuating circumstances, but the crime has been committed
under circumstances of-revolting cruelty and ruthlessness and is of a nature and magnitude that cannot
fail to excite the pity and horror of any ordinary person, it is clear that the case calls for the imposition
of the extreme penalty of the law. 1978 CriLR (SC) 297.
4. Murder by several pers ons—Sentence.—(A. ) Sections
34 and 302.— (1) U/s. 34 of the Code
the blow given by one will be considered to be a blow given by all the persons actually giving the
blow being merely considered as the hand or instrument by which the others strike. A IR 1980 SC
/496..
(2) There can be no distinction made in the matter of punishment, on the ground that some of
them did not actually inflict any injury on the victim or that it is doubtful who gave the fatal blow.
A IR 1971 SC 132. .
(3) Where, in pursuance of the common intention, several persons caused several injuries and
either any one or all the injuries cumulatively, are sufficient in the ordinary course of nature to cause
death it cannot be urged that the common intention was only to cause injuries 'likely' to cause death.
Conviction should be therefore under S. 302/34 and not under S. 34 of the Code. AIR 1977 SC 1800.
(4) In a prosecution u/s. 302/34 where it is doubtful who gave the fatal blow or where the accused
is found not to have struck the fatal blow the lesser penalty should be given. AIR 1972 SC 1229.
(5) Aliunde and apart from the fact that it is not proved who gave fatal blow there may be
extenuating circumstances such as for example, acting under the baneful influence of another youth
making the lesser sentence more appropriate. A IR 1956 Mad 536
(6) Where the part played by the accused was only a secondary one the supreme Court gave him a
life sentence. AIR 1972 SC 811.
(7) There can be no objection to the accused being convicted and sentenced under this section
simpliciter (i.e.) without reference to S. 34 where there is substantial evidence against him. A IR 1977
SC 705.
(8) If there is evidence to show that other persons named or not in the charge-sheet or mentioned
by the prosecution witnesses took part in the crime there can be a conviction under Ss. 302/34. AIR
1979 SC 1344.
Sec. 302 Of Offences affecting the Human Body 85
(9)The common intention may develop on the spot. 1969 SCD 859 A IR 1978 Sc 14.92.
(10) A common intention on the part of the accused is essential to attract the applicability of S 34.
A IR 1977 sc 1821.
(B) Sections 149 and 302.— (1) Where the killing cannot be held to be in pursuance of the
common object, all the members of the unlawful assembly cannot be convicted under S. 302 by resort
to S. 149. A IR 1978 sc 1759,
• (2) By virtue of S. 149, every member of the assembly would be liable for the crime committed by
one of them. 41R 1980 SC 957.
(3) The liability is a vicarious one, and it has been held that in cases of vicarious liability for
murder, it is generally proper to pass only the leaser sentence on the accused who did not actually
strike the fatal blow. AIR 1976 SC 2197.
(4) Where A one of the members of an unlawful assembly, was responsible for the killing and was
given the capital sentence while the other members were given the lesser sentence and it was argued
that A should have also been given the lesser sentence, it was held that mere fact that leniency had been
shown the other appellants was ground for reducing the sentence on A. AIR 1957 SC 474.
(5) It cannot be said that in cases of all convictions under S. 302 read with S. 149, the appropriate
sentence must be imprisonment for life. AIR 1944 FC 35.
(6) As a mere prosecution of law it cannot be said that the sentence of death can be legitimately
imposed only where an accused is found to have committed the murder himself. Whether or not
sentence of death should be imposed on persons who are found to be guilty. AIR 1965 SC 202.
5. Age or sex of accused, if an extenuating circumstance.—(1) The mere fact that the accused
is a youth or an old man or a woman is not as such an extenuating circumstance justifying the
imposition of the lesser sentence of imprisonment for. life. 1970 SCD 52.
(2) The lesser sentence of imprisonment for life cannot be imposed in case of a cruel and cold
blooded murder. A IR 1983 SC 926
(3) Taken along with other circumstances age, sex of the accused has been considered by Courts to
amount to an extenuating circumstance which will enable the Court to mitigate the sentence. AIR 1980
SC 83.
(4) A young accused who has don6 the criminal act under the influence of elder persons, should be
awarded the lesser sentence. AIR 1971 SC 1388.
(5) Persons committing cruel, cold-blooded and premeditated murder should must be given the
capital sentence though they may be young. AIR 1973 SC 697.
(6) As to whether and when a youthful offender guilty of murder should or could be sent to a
Reformatory School. AIR 1978 SC 1091.
(7) A person who is under 16 years of age and accused of an offence murder is entitled to the benefit
of the Children Act. Therefore, his trial and conviction under Cr. P. C. is illegal. AIR 1981 SC 2037.
6. Age of victim.—(1) The age of the victim cannot have any effect on the punishment to be
awarded. Where a new-born child is deliberately murdered it is as serious an offence as the murder of a
grown-up person deserves to be punished as severely. 1980 Cr1LJ 235.
7. Presence or absence of motive.—(l,) The existence of a motive is not an extenuating
circumstance for awarding the lesser punishment for murder. AIR 1957 And/i Pra 899.
852 Penal Code Sec. 302

(2) The absence of a motive may, in a case based on circumstantial evidence, prove significant in
arriving at conclusion as to the guilty of the accused. AIR 1983 PakLD 198.
(3) Where the accused has been found guilty of murder the mere fact of absence of a motive for the
'crime or the inadequacy of the motive proved is not an extenuating circumstance for inflicting the lesser
sentence, AIR 1973 SC .337.
8. Provocation.—(1) Culpable homicide committed under "grave and sudden provocation" as
envisaged by Exception Ito S. 300 of the Code is not murder and is punishable under S. 304. 1975
Raj Cr! C 51 (DB).
(2) Culpable homicide committed under provocation not falling within the Exception I to S. 300
will not take the case out of the category of murder but the provocation may be an extenuating
circumstance justifying the award of the lesser punishment under this section. AIR 1976 SC 915.
(3) Where the provocation is grave but not sudden, Exception I to S. 300 will not apply so as to
reduce the offence of murder to one of culpable homicide not amounting to murder. In such a case the
accused will be liable to punishment under this section and not under S. 304. But the provocation may
be an extenuating circumstance so as. to justify the imposition of the lesser punishment of
imprisonment for life. AIR 1972 SC 2077.
9. Starvation.—(l) Where the accused owing to starvation intending to kill her child and herself
to commit suicide, killed her child, it was held that she was guilty of murder, but that a sentence of life
imprisonment would meet that ends ofjustice. AIR 1932 Cal 658,
10.. Family considerations.—(A) A ccused having young children.- .—(1) The fact that the accused
had young children who would become orphans and be left helpless if death penalty is imposed is not a
consideration for awarding the lesser sentence. AIR 1966 Born 179.
(B) Fact that family would be ruined.— (I) The fact that the family would be ruined b) the death
of murderer is not a circumstance for awarding the lesser punishment. AIR 1951 Pepsu 111.
(C) A ccused being only son of his widowed mother.— (l) The fact that the accused wa's the only
son of his widowed mother cannot be put forward as a reason for imposing the lesser sentence. AIR
1935 Cal 594. .
(D) Saving offamily honour.--(I) Fact that the accused committed murder for saving the honour
of his family is not a mitigating circumstance for awarding the lesser sentence. AIR 1960 Mad 218.
11. Feelings of relatives.—(I) The feelings of relatives of the deceased cannot be allowed to
influence the question of sentence. AIR 1949 Ajmer 54.
12. Status of accused.—(l) The following facts are not extenuating circumstances for awarding
the lesser punishment
(a) That the accused is a man of culture and education. A IR 1952 Tripura 16
(b) That he is a European British subject. A IR 1933 Nag 136
(c) That he is a successful budding lawyer. 1973 SC Notes 2.
(d) That the murder was committed in order to maintain the family honour. AIR 1960 Mad 218.
(e) That he belongs to a community which is singUlrly free from criminal proclivities. AIR 1932
La/i 500.
(2) Where one of the two accused convicted of murder is sentenced to life imprisonment, the other
playing a similar part, must not be awarded the capital punishment on the ground that he was the
leader of the party of the accused and a village pardhan. AIR 1974 SC 336
Sec. 302 Of Offences affecting the Human Body • 853
13. Murder committed at the instigation of others or for hire.—(]) A youth committing
murder under the influence of elders may be given, the lesser sentence of imprisonment for life. A IR
1971 SC 1388.
(2) Lesser sentence of imprisonment for life cannot be given to persons who are hired to commit
murder or who commit the murder in order to please the master or the landlord in order to oblige a
friend. AIR 1979 SC 871.
14. Absence of Premeditation.—(l) The mere absence of premeditation is not such an
extenuating circumstance as will constitute a ground for awarding.the lesser sentence on a conviction
for a cold-blooded murder. A IR 1967 Goa 40.
(2) The absence of premeditation take along with other circumstances such as provocation,, sudden
quarrel, sudden impulse or loss of mental balance caused by rage, anger etc. will be a ground for
awarding the lesser sentence. A IR 1975 SC 1703.
(3) In the case of a premeditated, cold-blooded and calculated murder, the accused must be given
the capital sentence. A IR 1975 SC 95.
(4) Premeditated murders of wife and daughter—Facts of case showing no sufficient grounds for
departing from rule of normal punishment and for imposing sentence of death—Sentence commuted to
life imprisonment. A IR 1983 SC 629.
(5) As a general rule there can be no extenuating circumstance in a deliberate act of murder. A IR
1968 Goa 21.
15. Suddenness of quarrel.—(l) The mere absence of premeditation is not an extenuating
circumstance. Therefore the mere fact that the quarrel is sudden will not necessarily be an extenuating
circumstance. A IR 1936 Sind 31.
(2) Murder by accused of his brother's wife and nephew—Murder committed under sudden
impulse in grave fit of rage—In ends of justice death sentence commuted into imprisonment for life.
A IR 1981 SC 1710.
(3) Where in a party fight which was not started by the accused and in which several persons took
part he thrust a knife in the abdomen of another, it was held that lesser punishment would meet the
ends of justice. A IR 1933 Loh 434.
16. Subsequent remorse.—(1) The fact that the accused displays, afterward, remise cannot be
considered at all in deciding upon the punishment for the murder. A IR 1949 Mad 8.
(2) What ought to guide the Court is the ascertainment of the state of mind-of the accused when
the crime was committed. A IR 1935 Cal 591.
(3) The fact that the accused stabbed himself after he had committed the murder was held not to be
an extenuating circumstance. A IR 1960 Mad 443.
17. Offender being brought to bay.—(l) The fact that the murder was committed when the
offender was brought to bay and in his desire to escape is not an extenuating circumstance, which will
be a ground for inflicting the lesser punishment. A IR 1932 Cal 818
18. Corpus delicti not found.—(l) That the body of the murdered person is not found is no
reason for not giving the sentence of death, when the guilt of the accused is established. A IR 1958
A ll 514.
(2) If, by reason of the fact the corpus delicti is not found a doubt is created as to whether the
murder has at all been committed, the proper course is to acquit the accused and not to change the
nature of the sentence from death to transportation for life. A IR 1925 A ll 637.
854 Penal Code Sec. 302

(3) Accused labouring under a hallucination—The body of the murdered person not found—
Impossibility of knowing the nature of the injuries—Difficult to classify the crime as burtal or
dastardly—S.C. preferred to lean on the side of leniency and commuted death sentence into one of life
imprisonment. A IR 1977 SC 1319.
19. Lapse of time after commission of offence.--(A) Lapse of time between date of crime and
date of apprehension of accused— (l) Where the accused was apprehended 6 years after the date of the
murder, it was held that the delay could not be considered as an extenuating circumstance for passing
the lesser sentence. AIR 1941 Mad 258.
(2) Where accused was under spectre of sentence for over 3 years and 7 months and evidence also
indicated that he committed the killing at the instance of some one else the sentence of death was
reduced to one for imprisonment for life. A IR t978 SC 1506.
(B) Lesser sentence passed by lower court— A pplication for enhancement— Lapse of time in
hearing.— (1) Where the Sessions Judge passed the lesser sentence when the case called for the,passing
of the capital sentence and an application was made to the High Court for enhancement of the sentence,
it was held that the delay in hearing the application (one year) was not a sufficient reason for not
passing the death sentence. AIR 1953 Raj 17
(C) Death sentence passed by lower Court— A ppeal decided after lapse of time.— (1) Where a
sentence of death had been passed and the appeal against it was heard after a long delay, the Supreme
Court reduced the sentence to one of transportation for life. AIR 1953 SC 131.
(2) Where the appeal by the accused against the death sentence passed by the Sessions Judge was
heard after an inordinate delay the Federal Court declined to reduce the sentence in one of transportation
for life. AIR 1944 FC 1.
(3) Where twenty month had elapsed since the accused was sentenced to death, the Supreme Court
held that this, by itself, does not suffice to reduce the sentence but the delay together with other factors
may tilt the scale in favour of a life term. AIR 1974 SC 677.
(4) The sentence of death can be altered to one of imprisonment for life owing to inordinate delay
in trial. A IR 1979 SC 1177.
(D) A cquittal by lower Court— Delay in hearing appeal.— ( I) Where in appeal the acquittal by
the lower Court i set aside, and there is a long interval, between the judgment of the lower Court and
that of the appellant Court, there is valid ground for awarding the lesser sentence. AIR 1978 SC 191.
CE) Death sentence by Sessions Judge— Acquittal by High Court set aside by Supreme Court.— ( 1)
Where the accused was sentenced to death by the Sessions Judge and the High Court acquitted him of
murder, the Supreme Court, though convicting the accused for murder passed the lesser sentence in
view of the long interval after the date of offence and also period of mental agony suffered by him till the
High Court acquitted him. AIR 1974 SC 1163.
20. Infidelity of woman.—(l) The mere suspicion of infidelity of the wife or concubine will not
ordinarily be an extenuating circumstance. AIR 1929 Mad 495.
(2) The actual infidelity may be an extenuating circumstance. AIR 1973 SC 2551.
21. Absence of intention to kill.—(l) Premeditation or intention to kill is not always necessary
for passing a capital sentence. A IR 1979 SC 1006
(2) The absence of intention taken with other circumstances has been regarded as an extenuating
circumstance for passing the lesser sentence. AIR 1939 Lah 245.
Sec. 302 Of Offences affecting the Human Body 855

(3) Where there was a slight quarrel between the accused and the deceased and the latter's buffalo
entered the former's field and the accused went at night to house of the deceased and struck him on the
head with an eke using it as a strike and did not use the sharp edge of the axe, the way the axe was
used did not show an intention to commit murder and a life imprisonment would be the appropriate
sentence to be passed on the accused. AIR 1969 SC 951.
(4) The question whether there was or was not an intention to kill depends upon the facts and
circumstances of the particular case and inference drawn therefore. 1980 Cr1LR (SC) 73.
22. Acquittal of co-accused..----(l) The fact that the accused who actually committed the murder
was tendered pardon and went free, cannot be a mitigating circumstance in awarding sentence to the co-
accused, who, through he did not actually commit the act, was the person who conceived and
instigated the murder. AIR 1941 Mad 358.
(2) Where the appellant was the actual murderer the fact that his co-accused was given a life
sentence is not aground forgiving the appellant lesser sentence. AIR 1977 SC 703.
(3) Out of several persons tried for murder ten were acquitted by Sessions Court—Two more
acquitted on appeal .by 1 1-ligh Court and only one convicted and sentenced to death—Held that his
conviction was not bad in law but-reduced sentence from life penalty of death to imprisonment for life
because a comparatively minor injury was attributed to the appellant and then too he was vicariously
held liable for the fatal injury. AIR 1975 SC 2211.
(4) Appellant tried for murder along with 10 others—Ocular evidence unreliable—Benefit of doubt
given to all except appellant—Case of appellant . not distinguishable from others—Benefit cannot be
refused to appellant—His conviction under S 302 read with S 34 set aside however that under S
326 confirmed. AIR 1982 SC 1022. . .
23. Acquittal of A for murder of X—Subsequent trial of B for the same offence.—( .l) The
acquittal of A for the murder of X in a prior and separate trial is no bar to the trial and conviction ofB
in a subsequent trial for the same murder. 1963 MPLJ (Notes) 14 (DB).
24. Intoxication.--(1) Voluntary drunkenness is not necessarily by itself, a sufficient ground for
not passing the sentence of death on an accused found guilty of murder, particularly when the accused
may have consumed alcohol to get into proper mood to commit the offence. AIR 1971 SC 1232.
(2) Prosecution of accused P for murder or his wife M—Accused addicted to heavy drinking—At
time of death of M, there was no one in house except P—Trustworthy medical opinion that death of.M
was due to asphyxea—Held it was P who murdered M—Sentence of imprisonment for life upheld. AIR
1982 SC 1217. . ..
25. Communal excitement.—(l) That the accused was an ignorant man excited by events of the
days when communal feelings were extreme is not an extenuating circumstance for reducing a sentence
of death for murder into one of imprisonment for life. (1849) 54 Mys HCR 237.
(2) The state of public feeling is not an admissible reasonTor not passing the sentence of death. It
is no part of the duty of a Judge to be influenced by public feeling. His duty is to administer the law.
AIR 1939 Mad 109.
26. Confession.—(l) The fact that the accused confesses his guilt is not an extenuating
circumstance for passing the lesser sentence. (1945) 46 CriLJ 357 (DB) (Nag).
(2) Accused in his statement under S. 342, Cr. P. C. admitted that after the deceased fell down he
ran away out of fear and did not see if the deceased was stabbed. To a direct question put to him, he
856 Penal Code Sec. 302
denied the crime and his responsibility. Held, that under these circumstances he could not be
convicted. AIR 1979 SC 1414.
27. Plea of guilty.—(1) It is not illegal to convict the accused of murder where he pleads guilty
though it is not in accordance with practice to accept the plea of guilty involving sentence of death. AIR
1923 Nag 251.
(2) A plea of guilty put forward to a charge of murder should not be accepted unless the meaning of
this technical term as defined in S. 300 of the Penal Code is explained to the accused and understood
by him. 1982 GriLl (NOC) 215. .
28. Enmity.—(l) The absence of enmity is not by itself an extenuating circumstance in favour , of
the accused. A IR 1923 Lah 326 .
(2) No acceptable evidence of eye-witnessçs to occurrence—Appeared that accused person's name
was inserted in F I R due to bitter enmity—Conviction under S 302 set aside A IR 1974 Sc 2394
29 Guilt found on circumstantial evidence.—(I) The fact that the finding of guilt of the
accused was based on circumstantial evidence cannot be a circumstance which would entitle the accused
to a lesser sentence. AIR 1968 Born 127. . . .
(2) The question of sentence is to be determined not with reference to the volume or character of
the evidence adduced but with reference to the fact whether there are any extenuating circumstances
which can be said to miti gate the enormity of the crime. AIR 1958 Mys 150.
(3) The Judge is. either satisfied that the accused is guilty or he is not. There can be only one of
the two positions. If he is satisfied that the accused is guilty the normal sentence should be given. If
he is not so satisfied, the accused must be acquitted. There is no middle course at all in judging the
guilt of the accused; A IR 1939 Pesh 47 .
30 Mental condition of the accused —(I) Where it was proved that the accused had been
suffering from an unbalanced mind and in committing the murder, though a brutal one he was
actuated by jealousy or by indignation either of which would have tended further to disturb the balance
of his mind, it was held that the lesser sentence would be the more appropriate one. A IR 1944 PC I.
(2) Where the mental condition of the accused is abnormal and unhinged from circumstances the
case is not one for capital punishment. AIR 1973 SC 806.
(3) Mere mental wrong is no extenuating circumstances. AIR 1952 Mad 289.
(4) Where the accused was not insane but clearly knew What he was doing, the mere absence of
motive and apparent senselessness of the murder can furnish no extenuating circumstances for awarding
the lesser punishment. AIR 1952 Mad 289.
(5) The following cannot be grounds for awarding the lesser punishment
(a) mere eccentricity and inadequacy of motive. AIR . 1931 Oudh 77.
(b) annoyance at the refusal of the woman on whom he had spent a large sum of money to go
with him. 1953 RajLW 82.
(c) the accused being abnormally sensitive. 1974 WLN 785 (Rai).
31. Exceeding right of private defence.—(l) Where the accused has a right of private defence of
body at the start, and he does not exceed that right he commits no offence at all. 1977
. CriLJ (NOC)
244 (Gauhati).
Sec. 302 Of Offences affecting the Human Body 857

(2) Where the accused was held not to have exceeded the right of private defence and had been
sentenced to death by the High Court, the Supreme Court reduced the sentence to one of imprisonment
for life. AIR 1963 SC 612. -.
(3) Where the case falls under Exceptions-2 to section 300 the offence would not be murder at all
but only culpable homicide not amounting to murder and punishable under S. 304. A IR 1979 Sc 44.
(4) Where, the accused is the aggressor and chases and attacks and causes the death of a person
with a sharp weapon, no question of self-defence arises and Exception 2 to S. 300 Will not apply and
the case will clearly be one of murder. AIR 1980 SC 108.
(5) Where tiie injuries were inflicted not by the deceased or his aids in a scuffles with the accused
but were received by the accused at the hands of the police when he was resisting with violence their
attempt to arrest him, may be no question of private defence and the applicability of Exception 2 to S.
300. AIR 1976 SC 1130. - -. -
-. 32. Possibility of commutation by Government.—(l) The fact that in similar cases the State
has corn-muted the sentence of death to the lesser sentence of transportation for life and that it is
possible that the Government may commute the sentence in the case on hand is no ground for the
Court itself to award the lesser sentence. AIR 1953 All 356
(2) Accused persons convicted and sentenced to death by common- judgment—Death penalty
commuted into imprisonment for life of one of co-accused—Other co-accused is also entitled to
commutation. AIR 1982 SC 849. - - -
(3) Where a death sentence was passed and confirmed by High court and there was considerable
delay in disposing the mercy petition filed by accused despite notice and reminder sent to Government,
the Supreme Court reduced the death sentence to sentence of life imprisonment.- (1983) 1 Crimes 796
33. Delay in execution of sentence of dëath—Effect.—(I) Commutation of death sentence to
one of life imprisonment—Delay in exceeding of death sentence exceeding two years that by itself does
not entitle person under sentence of death- to demand quashing the sentence and converting into
sentence of life imprisonment. AIR 1983 SC 465. - -
34. Difference of opinion between Judges of the Bench.—A question of sentence is, and must
always remain, a matter of discretion, unless the law directs otherwise. But where appellate Judges who
agree on the question of guilt differ on that of sentence, it is usual not to impose the death penalty
unless there are compelling reasons. AIR 1955 SC 216. - --
(2) The view of not awarding death penalty when appellate Judges differ on question of sentence
cannot be raised to the pedestal of rule for that would leave the sentence of the determination of one
Judge to the exclusion of the other. AIR 1955 SC 1467. -
35. Accused persons exceeding the number of victims.—(l) It is not permissible to refrain from
sentencing the murderers to death merely because their number exceeds the number of the victims.
Where a number of persons have together planned and executed the murder of a single person each of
them must be sentenced to death unless there are some legal reasons for not doing so. A IR 1939 Mad
109. -
(2) It would not be right to inflict the death penalty on a number of persons merely because a large
number of persons have been killed. AIR 1957 Born 226.
- 36. Accused, a person who has done service to public.—(l) Where the accused had done
public service in giving evidence for the Crown in other cases against other persons leading to their
858 Penal Code Sec. 302
conviction. It was held that he should be given the lesser sentence in view of such service. AIR 1921
A ll 220.
37. Rashness of deceased.—(1) Where the deceased had been warned of the possibility of robbery
and still took the risk, his rashness in taking the risk cannot constitute an extenuating circumstance in
favour of the accused for awarding the lesser sentence. AIR 1961 MadhPra 10.
38. Weakness of evidence.—(l) The strength or weakness of the evidence given is -a matter to be
considered before and not after conviction. Once the accused is convicted of murder, the sentence of
imprisonment for life instead of a sentence of death cannot be given merely on the ground that the
evidence was not of a sufficiently convincing character. AIR 1933 Pat 149.
(2) If there is doubt on the evidence as to the guilt, the accused should be acquitted and not given
the lesser sentence. AIR 1980 SC 1621.
39. Murder under threat of co-accused.- .---(1) The fact that the accused committed the murder
under threat of other persons who were co-accused is not an extenuating circumstance for passing the
lesser sentence on him. AIR 1938 Pat 258.
40. Injuries
on the, accused...—(l) Where the accused commits a deliberate murder the fact that he
himself receives severeinjuries is not a reason for mitigating the punishment. AIR 1979 SC 1828.
(2) Where the accused pleads that he acted in the exercise of his right of private defence such
injuries would be prima facie evidence in support of his plea and if the prosecution fails to displace the
presumption raised by the existence of such injuries, the accused would be entitled to a verdict of
acquittal. AIR 1977 SC 2252. .
41. Killing in obedience of illegal order.—(1) That the death was caused in obedience to an
illegal order is not an excuse for the commission of murder but will be a mitigating circumstance in the
matter of awarding punishment. AIR 1940 Lah 210.
42. Nature of attack by accused.—(I) The fact that death was caused by a single blow is not a
ground for passing tice lesser sentence, when such a blow was such as could be effective and fatal. It is
the intention behind the blow and other concomitant circumstances by which the sentence should be
determined, AIR 1,931 Lah 749. .
(2) When the solitary blow given by the accused to the deceased was on the left clavicle—a non-
vital part—and the accused did not know that the superior venacava would be cut as a result of that
wound, the injury though sufficient in the ordinary course of nature to cause death was not one intended
by the accused. In such a case accused could be convicted not under S. 302 but under S. 304 Part It. A
sentence of 5 year's R. I. held would meet ends of justice. AIR 1981 SC 1441.
(3) One of the injuries caused by the accused being on the chest cutting thoracicatorta and sufficient
in ordinary course of nature to cause death—Offence falls under S. 302. AIR 1980 SC 573.
43. Accused a pregnant woman.—(1) Where it is doubtful if the woman is pregnant or not the
capital sentence cannot be dxcused. (1912) 23 CriIJ 195.
44. Superstition..1) Where a person was killed by the accused who were of primitive belief and
low intelligence in the belief that the victim was a sorcerer, it was held that the extreme penalty of
death is not necessary. AIR 1932 Cal 815.
(2) Where an illiterate young woman living in the midst of environments reminiscent of the dark
ages caused the death of another woman's child under the belief that, that woman's evil shadow caused
Sec. 302 Of Offences affecting the Human Body 859
the death of the accused's children, it was held that the lesser sentence was sufficient. A IR 1933
La/i 718.
45. Deafness and dumbness.—(1) There is no provision , in the Code for exempting an accused
from punishment on the ground that he is deaf or dump. A IR 1959 Ker 165.
(2) Under the provisions of S. 318, Criminal P. C. the Court should not in a case of deaf and
dumb pass the sentence but forward the proceedings to the High Court for passing such sentence as it
thinks fit. In exercise of such powers under S. 318 the High Court can pass the minimum sentence.
A IR 1959 Ker 165.
46. Other miscellaneous cases in which the lesser sentence was given.—(1) Offence committed
during a family quarrel—Father and brother of accused murdered—Still in the circumstances of the
case, it was held that the extreme penalty was not called for. A IR 1979 SC 1177.
47. Onus of proving mitigating circumstances.--(1) The onus of proving the circumstances
showing that the accused deserves a mitigation of the sentence to one of imprisonment for life instead of
the extreme penalty of the law is on the accused. ILR (1979) 2 Punj 29.
48. Custom of killing for unchastity.—(1) A Baluch custom of killing a womarr for unchastitiy
cannot be taken into consideration as an extenuating circumstance for mitigating the sentence for
murder. A IR 1914 Sind 136 .
49. Recommendation for clemency.—(l) The Court convicting an accused of murder may
recommend to the Local Government that the sentence may under S. 432, Criminal P. C. be
commuted to a lesser punishment. A IR 1977 SC 349.
(2) The power of commutation of sentences under that section and S. 433, Criminal P. C. vested
in the Government is kept intact by the Constitution and the High Court cannot issue a writ of
mandamus against the State directing sentence given by the High Court to be carried out. A IR 1962
A ll 151.
(3) No mitigating circumstances—Sentence of death could not be reduced to imprisonment for
life—If there were any mitigating circumstances not brought on record proper course was to bring them
to notice of Government. AIR 1977 SC 349.
(4) There were any commiserative factors which could be taken into consideration by the executive
Government in exercise of its prerogative of clemency it was for the Government to do so. A IR 1975
SC 118.
50. Abetment of murder—Punishment.--(l) The abetment of an offence which is committed in
consequence of the abetment is itself an offence punishable under S. 109 with the punishment provided
for the offence. If the offence abetted is murder, the punishment for the abetment is same as that for the
offence Of murder, namely, death or imprisonment for life. No other sentence can be passed. ILR (1959)
Kr 319.
(2) It is not necessary that both the principal and the abettor should be awarded the same
punishment; The principal may be given the death sentence and the abettor, imprisonment for life. A IR
1926 All 737.
(3) In proper cases the abettor may be given the capital sentence. A IR 1933 Oudh 148.
51. Benefit of doubt.—See cases under Ss. 299-300
52. Sentence—Accused taking only secondary part in the crime.— .(I) Where the accused was
found to have taken only a secondary part in the crime in which several persons took . part it was held
by the Supreme Court that a life sentence Would be sufficient. A IR 1970 SC 1305.
,860 Penal Code Sec. 302

53. Interference by High Court Division.—(l) In dealing with appeals or reference proceedings
where the question of confirming a death sentence is involved, the High Court has also to deal with the
matter carefully and to examine all relevant and material circumstances before upholding the conviction
and confirming the sentence of death. All arguments urged by the appellants and all material infirmities
pressed before the High Court on their behalf must be scrupulously examined and considered before a
final decision is reached, AIR 1965 Sc 202.
(2) It is the duty of the High Court to consider the proceedings in all their aspects and come to an
independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so
doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the
provisions of the law it is for the High Court to come to 4n independent conclusion of its own. AIR
1957 SC -469. . .
(3) Where the trial Court has awarded the lesser sentence, the High Court will be reluctant to
interfere with it as the error, if any, is on the side of leniency. AIR 1967 Goa 21.
(4) An interference would be justified only when the inadetuacy of the punishment is manifest on
the facts and circumstances of the case. AIR 1971 SC 757. .
(5) While confirming the capital punishment the High Court has an obligation to itself consider
what Sentence should be imposed and not be content with the trial Court's decision on the point. AIR
1973 SC 2551.
(6),The mere fact that let to itself, the High Court would have awarded the capital sentence is not a
proper ground for enhancing the sentence given by the trial Court. A IR 1953 sc 364.
(7) Where the accused was acquitted by the SessionsJudge and no appeal was failed against the
acquittal, the High Court will not suo motu interfere, even if it would have confirmed the sentence of
death had the Sessions Judge convicted the accused and inflicted such sentence. AIR 1980 SC 1871.
(8) Appeal against acquittal—Murder case—Accused given benefit of doubt—Judgment of trial
court found reasonable and based on consideration of all evidence—Two views possible—High Court
not entitled to set aside acquittal giving importance to one aspect of evidence and failing to consider
integrity of evidence. AIR 1981 SC 733. .. . . .
(9) Accused sentenced to imprisonment for life—Direction by court that he shall in no case be
released unless he has undergone minimum 25 years' imprisonment is bad in law. 1982 CriLl 1762
(10) High Cowl after careful security of the evidence finding the prosecution evidence dependable
and reliable and also finding the injuries on the deceased were caused by the weapons used by the
accused—High Coirt reversed finding of acquittal—High Court's order held to be correct by Supreme
Court: AIR /979SC//16. . . .
54. interference by Supreme Court.—(l) Where the High Court, after full re-appraisal of all the
facts and circumstances of the case confirms the sentence passed by the Sessions Court or awards
sentence, the Supreme Court will not interfere with the sentence, AIR 1980 SC 1871.
(2) Where the High Court gave a finding that the evidence of eye-witnesses was consistent and
there was no reason for them to falsely implicate the accused but disbelieved the eye-witnesses on the
basis of some minor discrepancies and set aside the conviction of the accused it 'was held that the,
approval the High Court was clearly wrong and perverse judgment of the trial Court recording
conviction of the accused was therefore restored. AIR 1984 SC 452.
Sec. 302 Of Offences affectingthe Human Body 861
(3) Motive for murders was gain—Murders perpetrated in a cruel, callous and fendish fashipn—
Supreme Court -declined to interfere with sentence of death thought the accused was 22 years of age and
case rested upon circumstantial evidence. AIR 1983 SC 504:
(4) Where no right of appeal exists under the such law the Supreme Court cannot be treated as a
general court of review for correcting all errors in all criminal cases. But where great injustice is shown
to have occurred then the extraordinary power under the Constitution is meant to be exercised. AIR
1979 SC 1145.
(5) Where the death sentence of two co-accused was altered to life imprisonment, the death
sentence of the appellant was also convicted to life imprisonment as the testimony of eye-witness being
partially doubtful was not acceptable against the appellant in its .entirety. 1,983 SCC (Cr:) 65.
(6) Under this section on conviction for murder a sentence of death or imprisonment for life is
mandatory. In addition, the accused was also liable to fine. In such cases ., a sentence of fine is a matter
of discretion of the Court. But the discretion is subject to interference by a higher Court in appropriate
cases. 1989 CriLR (SC) 83. .
(7) Prosecution under S. 302/34—Evidence of Ws. duly corroborated by medical witness who
was an independent witness and by dying declaration of the deceased—The fact that the dying
declaration was produced only during the trial is immaterial—Conviction under S. 302/34 upheld. AIR
1980 SC 443. .
55. charge for murder—conviction for offence under S. 201.—(1) A person charged with an
offence of murder can be convicted under S. 201, without a further charge being made against him under
that section. Such a conviction is warranted by S. 221, Criminal P. C. AIR. 1926 Lah 88.
(2) It is unusual and undesirable to convict the accused under both the sections. A IR 1943
Mad 275.
(3) If the charge of murder is subsequently withdrawn no conviction can be sustained under-6. 201
when it is proved that the accused committed murder. AIR 1916 Cal 919.
(4) Where the accused knew that what was being disposed of by them was a dead body involved in
a murder although their involvement in the murder cannot be established, yet they can be found guilty
under S. 201/34. AIR 1979 SC 1534.
(5) As to whether separate sentences can be given in respect of both the offences. A IR 1916
Mad 1163.
56. Alteration of charge from S. 302/34 to S. 3021149.— (1) The alteration of a charge under
Section 302/34 to one under . S. 302/149 at the appellate stage, and conviction in the latter charge will
• not cause prejudice to the accused. (1972) 76'CalW N 901.
57. This section and Section 3.96.—(1) The provision of S. 396 cannot override those ofS. 302
so as to render a man liable to a le g s severe punishment under S. 396 than could legally be inflicted
under S. 302 (i.e. death or imprisonment for life) (1897) 10 CPLR (Cr1) 20. •.
(2) In acase falling under S. 396 and not falling under S. 302 the rule that an accused convicted
under S. 302 be granted only one of the two alternative sentences of death or imprisonment for life,
does not apply and the Court may grant any sentence of imprisonment extending up to 10 years. AIR
1964 Tripura 54 (57) : 1964 (2) Cr1LJ585. ..
(3) When the conviction of the accused under S. 396, Penal Code is not based on constructive
liability as membersof the gang of dacoits the offence under S. 396 is-no less heinous than an offence
862 Penal Code Sec. 302

under S. 302 and in such a case as in the case of conviction under S. .302 reasons for not awarding
death sentence must be given. AIR 1968 SC 1464.
58. Charge for murder and for other offénce forming part of same transaction.—(l) Where
a person is charged for murder and also for an offence forming part of the same transaction as the
murder, e g. kidnapping no separate sentence need be awarded for the latter offence as the sentence of
imprisonment for life Will be sufficient to cover every act of the accused done with the object of
committing the murder. AIR 1920 Lah 512.
59. Fine.—(l) The words "and shall also be liable to fine" has been used only in connection with
thosç offences where the Legislature has provided that a sentence of imprisonment is compulsory. In
regard to such offences the Legislature has left a discretion to the Court to impose also a sentence of fine
in appropriate cases in addition to the compulsory sentence. AIR 1968 Pat 287.
(2) A sentence of fine in addition to a sentence of death or imprisonment for life, is not considered
appropriate or desirable the murder has been motivated by monetary gain. AIR 1971 SC 2064.
(3) The sentence of fine is appropriate when the murder has been motivated by monetary gain. AIR
1957 A ll 317.
(4) The Court should state its reasons for awarding the excesspenalty of fine. AIR 1957 All 317.
60. Charge under S. 302—Conviction under S. 302 read with S. 34.—(1) .A, B and C were
charged and convicted under S. 302 read with S. 34' On appeal B and C were acquitted of that charge
but were convicted under other section and A was convicted under S. 302 simpliciter. On further appeal
by A, B and C, it was held that inasmuch as the State had not appealed against the acquittal of B and
C of charge under S. 302 read with S. 34, the Supreme Court could not white setting aside conviction
under S. 302 simplicter consider whether A was guilty under S. 302 read with S. 34. AIR 1971
SC 2064.
(2) Offences committed by A, C and U in concert, in pursuance of their pre-agganged plan and in
furtherance of common intention of all of them. For causing death of D while A was found guilty of
offence under S. 302, C and U were held guilty under S. 302/34—All the three accused were also held
guilty under. S. 302/34 for committing murder of N and G—Held there was no justification for
distinguishing the case of A with that of his co-accused C and U in the matter of sentence for the offence
of murder of D—Sentence of death awarded to A for that offence altered to imprisonment for life. AIR
1977 SC 1078.
61. Form of sentence.—(l) A 'sentence that the accused should be "hanged" is not the proper
form of sentence. The section does not prescribe the manner in which the sentence of death is to be
carried out. A IR 1955 Madh B 119.
(2) Life imprisonment, sentence of—High Court refused special leave application but as part of the
sentencing process directed that the Government and the Superintendent of the prison concerned would
ensure that the two prisoners are put to meaningful employment and if permissible, in open prison as
an experimental measure—The accused were of tender age. AIR 1979 SC 1595..
(3) Hanging convict by rope as proved under S. 354 (5) of Cr. P. C.—Provision, if violative of the
Constitution—As that question is not concluded by Supreme Court in AIR 1980 SC 896—Petitioner
questioning validity in maintainable. AIR 1983 SC 1155.
62. Double murder—Sentence.—(l) Where the accused is convicted at one trial for murder of
two persons, two consecutive sentences of imprisonment for life cannot be awarded. AIR 1971
MadhPra 116. '
Sec. 302 Of Offences affecting the Human Body 863
(2) Special leave in criminal cases—Interference with sentence of death—Accused having caused
brutal murder of two persons, sentence of death maintained. A IR 1978 Sc 1397.
63. Procedure.—(1) Because a counter case involving a murder was committed to Sessions
Courts for a trial, it will not be correct to commit the counter part of the case when none of the offences
involved makes out a case exclusively triable by Sessions Court. 1979 BLJR 209.
(2) Where the deceased was fired at by a revolver from a close distance and the accused were
enlarged on bail, it was held that having regard to the nature of allegations and clinching evidence of
eye-witnesses the Magistrate transgressed the limits of his jurisdiction in granting bail. 1983 Mah LR
407 (Born).
(3) In a case of rape on a minor girl aged . 8 and her subsequent murder, the case was transferred to
Sessions Court as it had created sensation in the town and the trying magistrate was giving short dates
so as to decide the case prior to his retirement which was impending. 1984 CriLR 221 (Raj).
(4) Two incriminating circumstances showing accused involved in the murder—Circumstances not
explained , away by the accused—There is prima facie case against the accused—discharge of accused
under S. 227 Cr. P C. held not proper. 1982 cr1 A pp R 386
(5) Cognizable—Warrant—Not—Bailable--Not compoundable—Triable by the. Court of Session.
64. Form of charge.—(l) Where no basic infirmity in approach adopted by the court was
discernible in the order framing a charge u/s. 302 P. C. against accused the High Court refused to
interfere with the said order. 1981 criLJ (NOr) 1$,7.
(2) Charges under Ss. 147, 148 and 302, read with S. 149, P. C.—No specific charge under S.
302 but conviction under S. 302. Held, conviction under S. 302 in absence of specific charge not
maintainable—However retria after framing of charge under S. 302 was ordered. 1982 criLJ 1477.
(3) The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—,at---did commit murder by intentionally (or knowingly)
causing the death of (specify the name of the deceased), and thereby committed an, offence punishable
under section 302 of the Penal Code, and within the cognizance of the Court of Session.
And I hereby direct that you be tried on the said charge.
65. Hearing before passing sentence.—(I) The right of the accused to address arguments on the
question of sentence will enable his counsel to point out the mitigating circumstances warranting the
imposition of a sentence of imprisonment for life instead of a sentence of'death. AIR 1977 Sc 949.
(2) In exercising its discretion, the Court should take into consideration the humanist principle of
indivivalising punishment to suit the particular person to be punished. A IR 1977 sc 949.
(3) Where an accused is convicted under S. 302 of the Penal Code and sentenced to imprisonment
for life, it is not necessary.to remit the case to, the trial court for giving an opportunity to the accused of
being heard on the question of sentence, as the sentence awarded was the minimum that could be
awarded under the law and there was no possibility of its reduction even if he was heard. A IR 1977
SC 1066.
66. Appreciation of evidence.—See cases under Ss. 299-300
67. Practice—Evidence—Prove: (1) That the death ofahuman being has actually taken place.
(2) That such death has been caused by, or in consequence of the act of, the accused;
864 Penal Code Sec. 302

(3) That such act was done with the intention of causing death Or
That it was done with the intention of causing such bodily injury as (a) the accused knew to be
likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death. Or
That the accused caused death by doing an act known to him to be so imminently dangerous that
it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the
accused having no excuse for incurring the risk of causing death or injury.
In case of Murder by Poisoning
Prove: (I) That the death took place by poisoning
(2) That the accused had poisoned the deceased. And
(3) That the accused had the opportunity to administer the poison to the accused.
68. Confession, motive and dying declaration.—Cónfession maybe either judicial or extra-
judicial. Judicial confession are those recorded by Magistrates in court and they being solemnly made
are sufficient to support a conviction. Extra-judicial confessions.are those made before others and the
• weight given to be attached to such confessions would depend upon circumstances. As regards extra-
judicial confessions, Ihe courts have held that it would be unsafe to convict a person on such
confessions unless there is corroboration (AIR 1959 (SC) 18). Extra-judicial confessions are not usually
considered with favour but that does mean that such a confession coming from a person who has no
reason to state falsely and to whom it is made in circumstances which tend to support his statement,
should not be believed (A IR 1967 (SC) 152; 1967 CrLJ 1321). A retracted confession requires
corroboration (AIR 1954 .(SC) 4). a confession of a co-accused is not substantive evidence at all. It
cannot be relied upon to supplement other evidence which is insufficient for conviction and cannot be
used to fill up gaps in the prosecution evidence. Where the motive as, set up by the prosecution has
been disbelieved, there must have been some other motive which either the prosecution has concealed
or it has not been on the record. In order words, the real motive for crime remained shrouded in
mystery. In such a case the sentence of l ath should be altered to imprisonment for life. Where the
prosecution fails to prove the alleged motive and there is a possibility of a reasonable cause for a quarrel
between the accused and the deceased, the extreme penalty of law is not called for (48 CrLJ 786).
Motive is the reason for prompting the intention which induces a person to do an act which he intends
to do. It is relevant and important when dealing with the question of intention, It is an essential
ingredient of an offence. The absence of motive may be a circumstance in favour of the accused. If the
commission of the offence is otherwise proved, no importance can be attached to the circumstance that
there is motive for the commission of the crime Motive will have an important part to play in
weighing the evidence of the prosecution witnesses (AIR 1960 Mad 532). Section 32(1) of the Evidence
Act deals with the admissibility and relevancy of a declaration where such a declaration is made dealing.
with the cause of his death or the circumstances related to his death. Such a statement is relevant
whether or not the person making it was at the time under expectation of death. The manner of
recording the statement whether as a narrative or in the form of question and answer or the actual words
used are all relevant. It is not safe to convict a man on the strength of mere dyiig declaration without.
any other corroboration evidence (AIR 1962 (SC) 168).
69. Poisoning.—In the case of a murder by administering position, the prosecution has, along
with the motive, also to establish that the deceased died of a particular poison said to have been
administered, that the accused was in possession of that poison and that he had the opportunity to
Sec. 302 Of Offences affecting the Human Body 865

administer the same to the deceased. the evidence of the motive which is frequently given in these cases
is of subsidiary importance, and the mere fact that the accused had a motive to cause death of the
deceased is not a fact which will dispense with the proof of the second and third points, namely that the
accused had the poison in his or her possession and that the accused had an opportunity to administer
the poison to the deceased (34 CrLJ 754). In a trial for murder by arsenic poisoning the prosecution
must prove that the deceased died of such poisoning; that the accused administered arsenic to the
deceased with intent to murder. If the prosecution wishes to establish the first proposition by means of
the Chemical Examiner, weight is to be attached to his evidence. In this connection, section 510 CrPC
as amended may be read. (30 DLR 288; 19 DLR 818). . .
70. Onus of proof.—The burden of establishing the guilt of the accused is throughout on the
prosecution and the prosecution must prove every link in the chain of evidence against the accused from
the beginning to the end. The above proposition regarding onus of proof is. subject to the exception
contained in section 105, Evidence Act. In a case involving capital punishment courts require even a
higher degree of proof and all material evidence particularly those in favour of the accused is placed'
before the court. The failure of the accused to produce evidence does not relieve the public prosecutor of
his duty to bring home the guilty to the accused. A plea of guilty means that the accused had admitted
all the facts on which a dharge has been founded. Where the 'accused had pleaded guilty to charge under-
section 302, a conviction of culpable homicide is - illegal (10 CrLf 5). It is a settled practice not to
accept a plea of guilty in a murder case unless the court is fully satisfied that the accused was fully
made aware of the implications thereunder (46 CrLf 357).
Presumption of innocence in a criminal case is the basis of our Criminal Jurisprudence; The
doctrine of the burden of proof in the context of the plea of insanity may be stated in the following
propositions: (a) The prosecution must prove beyond reasonable doubt that the accused had committed
the offence with the requisite mens rea and the burden of proving that, always rests upon the prosecution
from the beginning to the end of the trial; (b) There is a reputable presumption that the accused was not
insane, when he committed the crime, in the sense laid down in section 84 the accused may rebut it by
placing before the court all the relevant evidence; (c) Even if t he accused was not able to establish
conclusively that he was insane at the time he committed the offence, the evidence placed before the
court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as
regards one or more of the ingredients of the offence, including mens rea of the accused and in that case,
the court would be entitled to acquit the accused on the ground that the general burden resting on the
prosecution has not been discharged (A IR 1964 (SC) 1563). A conviction on circumstantial evidence
cannot be based unless and until all the inferences to be drawn from the whole history of the case point
• so strongly to the • commission of the crime by the accused that the defence theory appears on the face
impossible or highly improbable. The charge of murder, like any other charge of an offence, can be
established by inferences but when there is extremely little in the way of direct evidence it is due to the
accused that there should be no exaggeration of minor incidents in the case and that each inference.
against him should be verified with scrupulous accuracy (28 CriLJ 758). Circumstantial evidence in
order to furnish a basis for conviction requires a high degree of probability that is, sufficiently having
that a prudent man, considering all the facts and realising that the life or liberty of the accused depends
upon the decisions, feels justified in holding that the accused committed the crime (23 CrLf 40).
Circumstantial evidence must be consistent, and consistent only with the guilt of the accused; if the
evidence is consistent with any other rational explanation, that there is an element of doubt of which
866 Penal Code Sec. 302

the accused must be given the benefit. One of the circumstances which has to be taken into account is
the fact that the accused has offered no explanation, or has offered a particular explanation; but it must
be born in mind that the accused cannot go into the witness box, and is not bound to give any
explanation at all. The fact that he does not open his mouth cannot be used against him. In a word, the
circumstantial evidence should be such as to connect the accused with the crime. In a murder case when
the prosecution evidence is held to be untrustworthy or unsafe and the dying declaration has been
recorded in circumstances which do not inspire confidence, the court would be more reluctant to base
the conviction of the accused only on the recovery of the knife and the cloths particularly when the
investigation agency also does not appear to have conducted themselves in a straight forward manner.
Such recovery of articles should not be held to be a strong corroborative piece of evidence (A IR 1963
Punj 170). The mere fact that the dead body was pointed out by the prisoner or was discovered as a
result of a statement made by him would not necessarily lead to the conclusion of the offence of murder
Mere knowledge of facts such as the place where the blood-stained articles are found or the place where
the dead body is found does not conclusively establish that the person to whom such knowledge is
attributed is guilty of murder (Ref 1982 PCrLJ 1252).
71. Medical evidence.—The post-mortem report of a doctor or his opinion is normally
inadmissible in evidence. But in view of the incorporation of section 509A CrPC. Post-mortem report
may be used as evidence where the medical officer who made the report is dead or incapable of giving
evidence or is beyond the limits of Bangladesh and his attendance cannot be procured without an
amount of delay, expense or inconvenience which, under the circumstances of the case, would be
unreasonable, such report may be used as evidence. The doctor's deposition on oath when he is
examined as a witness will be substantive evidence. The post-mortem report may be used to contradict
the officer who prepared it. It may be used by the officer,when examined in court to refresh his memory.
In a case dependent wholly on circumstantial evidence, the court before recording a conviction, on the
basis therefore must be firmly satisfied: (1) that the circumstances from which the inference of guilt is to
be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (2) that
the circumstances are of a determinative tendency unerringly, pointing towards the guilt of the accused;
and (3) that the circumstances, taken collectively, are incapable of explanation on any reasonable
hypothesis save that of the guilt of the accused. In a case where death is due to injuries or wounds
caused by lethal weapon, it has always been considered to be the duty of the prosecution to prove by
expert evidence that it was likely or at least possible for the injuries to have been caused with the
weapon with which, and in the manner in which, they are alleged to have been caused. In all cases of
murder, where a person dies of injuries, it is the duty of the prosecution to put a question to the doctor,
when he is examined in court as to the nature of tte injuries, i.e. whether they were sufficient in the
ordinary course of nature to cause death, or likely to cause death, because the intention or the
knowledge of the persoii is to be inferred only from the nature of the injuries. Where the direct evidence
is not supported by the expert evidence, the evidence is wanting in the most material part of the
prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the
evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the
evidence of the ballistic expert this is a most fundamental defect in the prosecution case and unless
reasonably explained, it is sufficient to discredit the entire case (AIR 1975 (SC) 1727). If testimony of a
single witness is found by the court to be reliable, there is no legal impediment to the conviction of the
accused persons (29 DLR 211 A D. 38 CrLJ 299). Where persons offer themselves as eyes witnesses,
there are a number of ways to find out and check if they have actually seen the occurrence as alleged by
them. One of the tests is whether the evidence of such witnesses is corroborated by legal evidence.
When the evidence of eye-witnesses is inconsistent with the medical evidence it is unsafe to convict the
Sec. 302 Of Offences affecting the Human Body 867
accused (1953 PLR 463). While it is true that merely because a witness is declared hostile his evidence
cannot be rejected on that ground alone, it is equally well settled that when once a prosecution witness
is declared hostile the prosecution clearly exhibits its intenion not to rely on the evidence, of such a
witness and, hence his .version cannot be treated as the version of prosecution itself. The mere fact that
the body of the murdered person has not been found is not a ground for refusing to convict the accused
person of murder. To recoginse any such condition precedent, as being absolutely necessary for
conviction in all cases, would be to afford complete immunity and certain escape to those murderers
who are cunning or clever enough to make away with or destroy the bodies of their victims. Such a
principle once admitted would in some instances render the administration of justice impossible (Ref
1982 Pak CrLf 1237).
72. Sentence.—For the offence of section 302, PC death is the rule and imprisonment for life is an
exception. Death should ordinarily be imposed unless the trying Judge, for reasons which sentence
should normally be recorded, considers to award the .lesserpcnalty. Where the crime is deliberate and
there are no extenuating circumstances, death penalty should be imposed and the duty cannot be
shirked merely because discretion is vested in the court. The extenuating circumstances are as follows:
(1) Where there is a free fight and no unfair advantage is taken up by accused; (b) Where there is an
unjustified interference by the deceased with the possession of the accused (PLD 1964 SC 177). Death
was caused in an attempt by the owner to take possession by force; (c) When the murder was the result
of intimacy between the deceased and the accused's wife; (d) Where the accused committed the offence
when he was desperate and sick of life. But the fact that a rejected lover murdered his beloved in
desperation is not a mitigating circumstance; (e) When the accused acts on provocation, even if it is
not sudden provocation and even when the provocation has been offered by a person other than the
deceased's case has been pending for a very long time; (g) When there is no, motive; (f) Where a
motive was very definitely alleged but was not proved; (h) Where the accused was subjected to such
severe beatings at the hands of the crowd that he had to be admitted into jail hospitalfor treatment
which necessitated his detention in the hospital to six months; (i) Absence of premeditation and
murder on the spur of the moment and in heat of passion unless death was caused in a cruel manner; (j)
Where the deceased's father-in-law refused to return the wife of the accused in spite of his best efforts at
reconciliation; (k) Where death was caused out of religious zeals and a person of the other sect was
killed. Old age and sex by itself is not an extenuating circumstance. if an accused is a pregrant woman,
the execution of sentence may be postponed till after 'delivery. Section 401 of the CrPC empowers the
Government to suspend or remit sentence. In the case of remission the guilt of the offender is not
affected but the sentence alone is sought be reduced. Usually the court disposing of a matter may record
extenuating circumstance and recommend to the Government for the mitigation of the sentence. Choice
as to which of the two punishments prescribed by section 302, PC for murder is the proper one to be
awarded, will depend upon the particular circumstance of each case, but broadly speaking, murder
committed with unusual brutality and such murders that appear to be particularly heinous as to arouse
judicial indignation may be considered as some of the 'cases deserving the extreme penalty. Of course,
these are not , exhaustive, but merely illustrative. In the absence of any extenuating circumstances,
whatsoever, the sentence of death' would be the appropriate sentence. The court whose duty it is to
award punishment must exercise its own discretion; but the desecration must be-exercised judicially
and not arbitrarily (1963 CrLf 536). If the murder be not result of any premeditation. life
imprisonment is sufficient to meet ends of justice (1963 CrLJ 540).
This section for imposing sentence has been amended by Ordinance No XLI of 1985 dated 3-8-85
and the word 'transportation ' has been substituted by the word 'imprisonment' so now the
punishment prescribed for murder is either death or imprisonment for life. Imprisonment for life must
prima-facie be treatedas imprisonment for remaining period of the convict's natural life. The question
868 Penal Code Sec. 303

• of remission of sentence lies entirely with the Government under section 401 of the CrPC. The Rules
framed under the Prisons Act or under the Jail Manual will not affect the total period, which the
• prisoner has to suffer but merely amount to administrative instruction regarding the various remission.
to be given to the prisoner from time to time in accordance with the Rules (42 DLR 378).
• 73. Circumstantial evidence—murder charge-no eye.—witness against husband for killing
• his, wife in his .house.—Only circumstantial evidence found against husband was that death occurred
in the night of occurrenqe in the house of accused husband and the defence did not give satisfactory
explanation, that fact alone does not conclusively fix the liability of the husband to the charge of
murdering his wife. In a charge of murder moral condition is no substitute for legal evidence. The only
fact that the girl was found lying dead in the room of her husband, although very grave and definitely
incriminating susceptible to give rise to genuine moral conviction as to the guilt of the accused, in the
absence of other incriIninating conduct of the accused, is not sufficient to convict and sentence him
under section 302 of the Penal Code. It is improper to substitute moral conviction for legal evidene.
(Ref JO BLD.373).

Section 303
303 Punishment for murder by life convict.—Whoever, being under sentence
of '[imprisonment] for life, commits murder shall be punished with death.
Cases and Materials
1. Scope.—(1) 'Death punishment awarded under the Penal code under nine sections namely
sections 121,132, 194,302, 303, 305, 307, 364A and 396, ' PC. Section 303 has, no application to
the case of persons other than the actual murderer who are liable to enhanced punishment for the act of
one of their associates under section 396. Section 303 is expressly limited to the case of a person or
persons who beirg under sentence of imprisonment for life, commit murder A IR 1933 Lah 977. If a
person, who has been sentenced to imprisonment for life and whose sentence (after he had served a part
of it) has been remitted under section 401, CrPC by the Government lipon conditions, commits murder
after his release, he must be considered as 'being under sentence of imprisonment for life' within the
meaning of this section. Contrary view has been taken in AIR 1943 Sind 114 and 1977 CrL.J 1121 SC.
According to, those decisions, section 303 is not attracted to the case when the accused was sentenced
to imprisonment for life but the same was remitted under section 401, CrPC and the court must pass a
sentence of death upon him. This 'section makes capital sentence compulsory in the case of a convict
ho commits murder while undergoing a sentence of imprisonment for life A IR 1963 SC 118. A IR
1973 SC 786 .
(2) Section is Violative of the Constitution A IR 1983 Sc 473.
(3) Murder trial—Accused convicted and sentence to death under S. 303-5 303 having been
struck down by Supreme Court as violative of the Constitution conviction of accused under S 303.
altered to one under S. 302. A IR 1983 SC 838.,
(4) Where charge framed is under Section 302 with the aid of section 34 or 149. Conviction under
section 302 alone' legal. The State Vs idris Pandit, (1973) 25 DLR 232.
2. Practice.—Evjdence :—Prove: (1) That the accused was undergoing sentence of imprisonment
for life.
(b) That while so undergoing the sentence he committed a murder. . -
Sec. 304 Of Offences affecting the Human Body 869

3. Procedure.-Cognizable-Warrant-Not bailable-Not compoundable-Triable by Court of

Session. .
4. Charge.-The charge should run as follows
1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That while under a sentence of imprisonment for life on or at-about you committed murder by
intentionally (or knowingly) causing the death of (name of the deceased) and thereby committed an
offence punishable under Section 303 PC and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 304
304. Punishment for culpable homicide not amounting to murder.-Whoever
commits culpable homicide not amounting to murder, shall be punished with
'[imprisonment] for life, or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of causing such bodily injury as
is likely to cause death; . .
or with imprisonment of either description for a term which may extend to ten
years, or with fine, or with both, if the act is done with the knowledge that it is likely
to cause death, but without any intention to cause death or to cause such bodily injury
as is likely to cause death.
Cases and Materials Synopsis
1. Scope of the section. 16. Cases falling under Exception 4 to Section
2. Distinction between parts I and II of this 300-Sudden fight.
section. 17. Onus of proof
3. "A ct by which the death is caused. " 18. Effect of acquittal under this section.
4. "Is done with the intention 'of causing death.' 19. Benefit of doubt.
5. Intention to cause such bodily injury as is 20 A ppreciation.
likely to cause death. 21. Jurisdiction.
6. "W ith the knowledge that it is likely to Cause 22. Judgment-Judge's duty.
death-Part , 11 of the section. 23. charge.
7. This section and S. 326. 24.. Confession-Conviction on.
8. This section and S. 304A -Death caused by 25. Sentence.
rash, or negligent act.
26. Culpable homicide under superstitious belief.
9. This section and S. 460. .
27. Interference by High Court.
10. A ttack by several persons-Liability.
28. Interference by Supreme Court.
11. Blow aimed at one Causing death of another.
29, Procedure.
12. A betment of offence under this section.
30. Section 304 read with section 149.
13. Cases falling within Exception 1 to Section
300.' 31. Section 304 read with section 34.
14. Cases falling under exception 2 to section 32. Right of private defence and death causd
300. under provocation.
15. Cases falling under Exception 3 to Section 300. 33. Practice. . .
870 Penal Code Sec. 304
1. Scope of the section.—(1) This section of two parts depending upon the gravity of the offence.
The more serious offence being those depending upon the two types of intention mentioned in the first
two clauses of section 299 and the less serious not being dependent upon intention but dependent only
upon guilty knowledge. Part I applies where the act by which death is caused is done either with the
intention to cause death or with the intention to cause such bodily injury as is likely to cause death.
This section will apply to the following classes of causes : (a) when the case falls under one or the
other of the clauses of section 300 but it is covered by the Exception to that section; (b) when the
injury caused • is not of the higher decree of likelihood which is covered by the exceptions "sufficient in
the ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally
spoken of as an injury "likely to cause does not fall under clause (2) of section 300; (c) when the act is
done with the knowledge that death is likely to ensure but there is no intention to cause death or any
injury likely'to cause death. In such case there may be either no intention to cause any injury at all, or
there may be an intention to cause simple or grievous hurt but not an injury likely to cause death (AIR
1953 A ll 203). The first part of section 304 applies when there is guilty intention and the second part
applies where there is no such intention but there is guilty knowledge (A IR 1931 Cal 345, 32 CrLJ
594). Intention always conpotes a conscious state of mind of a wrongdoer, when the mental faculties of
a culprit, are roused into activity and summoned into action for the deliberate purpose of being directed
towards a particular and specified end then, he is said to have acted intentionally. Intention can be
inferred from act as every man is presumed to intend the natural consequences of his act A IR 1983
SC 529.
(2) This section prescribes the punishment for the offence of culpable homicide not amounting to
murder, which in English law is known as manslaughter. (1881) ILR 3 A ll 776
(3) If the offence is not culpable homicide at all this section does not apply. Thus, fOr example, if
A intentionally causes hurt to B- but has no intention of causing his death or of causing such bodily
injury as is likely to cause death or has no knowledge that his act is likely to cause 's death. A is not
guilty of culpable homicide punishable under this section though B dies as a result of the injuries
caused. But A would be liable for the act intended by him which was to cause hurt to B and he would
accordingly be liable to punishment under SS. 323, 324, 325 or 326 as the case may be. A IR 1979
SC 1434.
(4) Before an accused can be said to have committed culpable homicide, it must be found that he
did the act with the intention or knowledge referred- to in Section 299, namely intention to cause death
or such bodily injury as was likely, to cause death or knowledge that his act was likely to cause death
and it must further be found that death was caused by the injuries inflicted. A IR 1979 SC 1525.
(5) Where the culpable homicide falls within any of the four clauses of S. 300 but is covered by
any of the Exception to S. 300 the offence is brought back or reduced to the offence of culpable
homicide not amounting to murder. A IR 1953 A ll 203.-
(6) There are thus two and only two clauses of culpable homicide not amounting to murder:
(a) Culpable homicide not falling within any of the four clauses of S. 300 will not amount to
offence of murder. (1965) 67 PunLR 1204.
(b) Culpable homicide falling within any of the four said clauses of S. 300 but falling also under
any of the Exceptions to S. .300 will amount to the offence of culpable homicide not
amounting to murder. A IR 1954 SC 36.
(7) Section 304 must be interpreted as providing punishment for the offence of culpable homicide
in all cases where the accused cannot be convicted of murder. A IR 1932 Nag 121.
Sec. 304 Of Offences affecting.the Human Body 871
(8) Where the culpable homicide falls under any of the four clauses of S .300 and none of the
Exceptions applies, the culpable homicide is murder and is punishable under S. 302 and not under this
section. 1976 CriLR (SC) 582.
(9) Features of two parts of the section—Applicability. Held :—Sec. 304 of the Code which
consists of 2 parts, does not create offence but provides for the punishmeht of manslaughter or culpable
homicide not amounting to murder. The section makes a distinction in the word of punishment. Under
the 1st part of the section if the intention to kill is present, and the act would have amounted to murder
or the act is done with the intention of causing such bodily injury as is likely to cause death but the act
having fallen within one of the five exceptions in S. 300 of the Code the offence will fall within its
ambit. The 2nd part of the Section is attracted to a case where the act is done with the knowledge
likely to. cause death but without any intention of causing death or to a case where such bodily
injury is caused as is likely to cause death. The first part applies to a case where there is guilty
intention and the second part where there is no such intention, but there is guilty knowledge. The Supt
& Remembrance of Legal A ffairs, Govt. of Bangladesh Vs. Siddique A hmed 3 BSCR 91 = 31 DLR
(A D)29.
(10)Right of private defence and property—complainant party unarmed—Appellant exceeded right
of private defence of property by inflicting more harm than it was necessary—accused-appellant intended
to cause such bodily injuI-y as was likely to cause death—(leja blow causing death)—T--sentence of 7
years R.I. not excessive as provided u/s. 304 part I of the Penal Code. A rnulya Kumar Biswas &
others Vs. The State I BSCD 243.
(11) Sentence of 3 years' RI—Self-same witness—benefit of doubt—No material discrepancy
between the Medical Evidence and the Eye-witness Benefit of doubt given to one Co-accused. Held:-
(i) That by itself can hardly be any reason for the petitioner also to claim benefit of such a doubt, (ii)
Charge against the petitioner was established by evidence there is reason to interfere with the
petitioner's conviction and sentence. A bdul Majid Vs. The State I BSCD 243.
(12) Where the conviction of an accused u/s. 304 is sustainable in law when there was neither any
charge framed against him nor was his attention drawn, while examined u/s. 342 Cr. P. C. to the fact
that he was put on trial on that charge—Where it appears that failure ofjustice has been occasioned due
to omission to frame charge under a particular section of the Penal Code, conviction thereunder cannot
be maintained. .Joiynal A bedin & ors. V s. The State BCR 1985 A D 272 = 37 DLR (A D) 115 14
BLR (AD)- 176
(13)Culpable homicide not amounting to murder, offence of—Punishment to be awarded when the
injury is made with the intention of causing death—From the , material, on record and nature of injuries
caused it is not difficult to hold that the accused persons assaulted with intention of causing death and
as such the cause falls clearly under Part I of Sec. 304, Penal Code—The conviction of the respondents
is altered from Part II to Part I of Sec. 304 and their sentence is enhanced from 5 years' R. 1. to 7
years' R. I. each. The State Vs. Abdul Aziz & ors. 1985 BLD (AD) 176.
(14). Criminal Cases u/s 304/34 BPC—Order allowing withdrawal of a criminal case under this
section of Code—To give consent to withdrawal for prosecution is a judicial act and not a matter
procedure—Neither the trial Court's order nor the application of the Public Prosecutor disclosed any
ground for withdrawal—Order of Withdrawal from the prosecution, not proper. A nwara Bewa Vs.
Razzalc & ors. 5 BSCD 42.
(15) The cases of present appellants who had not moved the Appellate Division earlier never
considered—Since the Court maintained the Conviction of the co-accused persons who applied in
872 Penal Code Sec. 304

Criminal Appeal No. 44 of 1984 and reduced the sentence to ten years' R. I. each the conviction of the
present appellant was maintained and reduced to ten years' in line with the decision in Criminal appeal
No. 44 of 1984. A fsar A li and another Vs. The State. BCR 1947 A D 359.
(16) Culpable homicide—When it does not amount to murder—There was a confrontation
between the accused and the deceased on the land of that occurrence—From the circumstances of the
case and the nature of injury that resulted in the death of eleven days after it was inflicted the appellant
cannot be held guilty for murder but he must bear in the death of the victim—Accordingly the
conviction for culpable homicide amounting to murder. Lah Mian Labu V s. The State 1988 BLD
(A D) 107 = 41 DLR (A D) 1.
(17) Case involving this section on accused's mercy petition—the Trial Judge gave light
punishment—Punishment commensurate with the gravity of offence—Sentence of 1 5 days' R.I. along
with fine of Tk. 5001- grossly inadequate—High Court Division rightly enhanced the sentence in
Criminal Revision. Murroza Hussain & ors. Vs. The State & ors. 6 BSCD 33.
(18) Under the first part of the section, if the intention to kill is present, and the act would have
amounted to murder or the act is done with the intention of causing such bodily injury as is likely to
cause death, but the aet having fallen within any one of the five Exceptions in section 300 of the Code,
the offence will fall within its ambit. The second part of the section is attracted to a case where the act
is done with the knowledge likely to cause death but without any intention of causing death or to a
case where such bodily injury is caused or is likely to cause death, The first part applies to a case
where there is guilty intention, and the second part where there is no such intention, but there is guilty
knowledge. Govt. of Bangladesh Vs. Siddique A hmed 31 DLR (A D) 29.
(19) Conviction under both the charges of sections 304/149 and 304/34—Illegal. The accused
having been charged under sections 304/149 cannot again be charged under sections 304/34 because the
sane persän cannot be convicted twice for the same act. Akbar Vs.. State 8 DLR 378.
(20) It is not illegal for a Court, after framing a charge under section 304/34 against certain accused
persons, to record a conviction under sec. 304 itself, apart from sec. 34. Muzaffar Sarker Vs. Crown 2
DLR 90.
(21) Charge under section 302/49 but convicted under sec. 304 (1)134—Valid. Held Both
sections 34 and 149, P. C. deal with constructive liability, and it is to be considered whether the
accused who have been convicted under sections 304 (1)/34.P. C., have been prejudiced in the absence
of a charge under that section. A slight variation in the facts established from the facts alleged in the
charge and conviction for an offence on the facts established would not render it by itself bad in law in
view of the provisions of section 236, read along with illustrations as well as section 237 of the Code
of Criminal Procedure. Ahmed All Vs. State 12 DLR 365.
(22) In furtherance of common intention of all. The words "in furtherance of common intention of
all" in section 34 of the Penal Code do not require that in order that the section may apply. all
participants in the joint act must either have common intention of committing the same offence or the
common intention of producing the same result by their joint act. It is enough if all of them intended
that the joint act be performed. Section 34 can, therefore, be applied under the second part of S. 304,
• P. code. Where three accuseds were tried under section 304 Part 11 rad with section 34. P. C.. for
causing the death of one M—Two of the accused being armed with sharp weapons, the third accused
can be found guilty under section 304 (Ii) read with section 34 P. Code. Fazar V s. Crown 4
DLR 99. • . .
Sec. 304 Of Offences affecting the Human Body 873

(23) Culpable homicide under grave and sudden provocation—intention to kill negatived by
emotional state of accused—Nevertheless knowledge of likelihood of death resulting from his act may
be imputed—Accused may be convicted under Part II of section 304. 1954 PLD (Lah) 11.
(24) Accused finding his mother unequally matched in afight among womenfolk of the accused
and complainants' parties, stabbed and killed a woman of the other party—Right of the private
defence—Conviction altered from section 302, P. C. to section 304 Part II P. Code. 1954 PLD
(Lah) 155.
(25) Grave and sudden provocation caused by adultery—Appropriate sentence. A sentence of three
to five years' rigorous imprisonment is the appropriate sentence in cases of grave and sudden
provocation caused by adultery. The measure of sentence is largely a matter of judicial desecration but
as a working rule, a sentence nearer three years than five where only one person is killed and nearer five
than three where two are killed is the appropriate one Fatehan Vs. Crown (1953) 5 DLR (W PC) 103.
(26) Rash and negligent driving.—Responsibility cast on the driver of a vehicle is greater than that
cast on pedestrian. A bdur Rashid Vs. State 9 DLR 207.
(27) Death of man due to gunshot injuries fired at the victim out of nervous apprehension does not
make out a case of rash or negligent act under section 304A, P. C. A man who was indeed insane was
found at the dead of night standing almost necked on the roof of the accused's kitchen. The accused
took up his shotgun and fired at the man at the lower part of his thigh; the victim fell down and rolled
to the ground and shortly died thereafter. The trial Court convicted the accused under section 304 (II)
P. C. and sentenced him to 4 years' R. I. On appeal the High Court converted the offence under section
304 (II) to one under S. 326 P. C. holding that the evidence disclosed neither an offence under section
304 (II) nor under section 304A but it was an offence under section 326 P. C.; convicted him
thereunder and sentenced him to the period of imprisonment already undergone and further imposed a
fine of Rs. 2,500/- to be paid to the widow of the deceased. Ráshidullah Vs. The State 21 DLR 709.
(28) One of the accused was charged with many others under sections 147 and 448 of the Penal
Code, with an additional charge u/s. 304 of the Code but. when he was examined u/s. 342 Cr. P. C he
was not told that he was facing trial u/s. 304 in addition to common charge under sections 147 and
448–As such his conviction u/s. 304 is illegal. JoynalA bedin Vs. The State 37 DLR (A D) 113.
(29) Culpable homicide not amounting to murder-1.n the absence of any conspiracy, pre-plan or
premeditation on the part of the accuseds while inflicting injuries resulting in the death of the victim 4
, days after the. occurrence,. the accuseds did not intend to cause. his death but they caused culpable
'Fiomicide not amounting to murder. Dalilur Rahrnan Vs. Stale 44 DLR 379.
(30) Joint action—Omission may also render an offender liable for punishment—If a man joins
with another to assault a person, even though the original intention was mere to inflict relatively.
harmless injuries, but if he sees his companions in course of the action giving serious beating which is
likely to cause his death, but he does not take any step to interfere and the victim dies, such omission
may render him liable under section 304. Shaikh Baharul Islam Vs. State 43 DLR 336.
(31) Since accused Abdul Bari merely in an innocent manner brought the victim in obedience to
OC's order he is not involved in any criminal act. Shaikh Baharul Islam Vs State 43 DLR 336
(32) Culpable homicide not amounting to murder—From the facts proved it is clear that the
victim did not die immediately after assault by her husband. There is no evidence of ill-feeling between
the two, rather it is in evidence that he enticed her away and then married her. In the circumstances the
874 Penal Code Sec. 304
accused-husband is not guilty of murder but of culpable homicide not amounting to murder. A bdul
Khaleque Vs. State 45 DLR 75.
(33) The immediate cause that triggered off serious violence and resulted in the loss of four lives
though calls for the maximum punishment being shrouded in mystery a lesser punishment may meet
the ends of justice, State Vs. Giasuddin 45 DLR 267.
(34) Culpable homicide—Intention to cause death—From the evidence there can be no manner of
doubt that the assault was done with the intention of causing such.bodily injury as was likely to cause
death. The accused-husband was not content by striking his wife with a branch of a tree but was
reckless enough to kick her in the tender part of her body which immediately caused bleeding. It was
not a case of mere knowledge only (to constitute offence under section 304 Part 11) that such act was
likely to cause death but that the intention to cause death such injury as is likely to cause death was
very clear. It is true there is no finding as to "intention" either in the impugned judgment or in the
judgment of the trial Court. This is certainly not desirable because the law requires a clear finding as to
"intention" before recording a conviction under Part I of section 304. Notwithstanding the absence of
the requisite finding as to intention the appellant-husband was rightly convicted. Jatin Chandra S'I Vs..
State 43 DLR (A D) 223.
(35) Attack on the deceased by the appellant in an infuriated state—Imposition of 5 years
• imprisonment is a proper sentence. The criminal and not the crime must figure prominently in shape in
the sentence. Reform of the individual in the society and other necessities to prevent recurrence are right
factors. Heinousness of the crime is a relevant factor in the choice of sentence. Santosh Mia Vs. State 42
DLR 171.
(36) Culpable homicide—Committed under provocation—Even if the appellants were provoked,
the nature of the injuries shows that they assaulted the deceased with the intention to kill and in that
view of the matter the offence committed falls under Part! of Section 304 of the Penal Code. Md. Shah
A lain and others Vs. The State 5 BLD (A D) 198.
(37) Culpable homicide not amounting to murder—From the materialon record and the nature of
the injuries caused it is not difficult to hold that the accused persons assaulted the victim with the
intention of causing death and as such the case falls clearly under Part I of Section 304 of the Penal
Code—The conviction of the respondents is altered from Part II to Part I of Section 304 of the Penal
Code and the sentence is enhanced from 5 years' R. I. to 7 years' R. I. each. The State Vs. Abdul Aziz
and other 5 BLD (A D) 176
(38) Culpable homicide—when it does not amount to murder—There was a confrontation between
the accused and the deceased on the land of the occurrence—From the circumstances of the case and the
nature of injury that resulted in the death of Yasi.n 11 days after it was inflicted, the appllant cannot be
held guilty for murder but he must bear the consequences for causing the bodily injury that resulted in
the death victim—Accordingly the conviction is altered from the offence of murder to one of culpable
homicide not amounting to murder under Part I of Section 304 of the Penal Code. La! Miah alias
Labu V s. The State 8 BLD (A D) 107. .
(39) Homicide not amounting to murder—The assailant had given manual pressure on the throat
of the victim but he withdrew his hand realising that he was going to die—The intention to kill is
therefore lacking in this case and as such the charge of murde 'r must fail—Although the assailant had no
premeditated intention to kill the victim he appears to have the knowledge that such pressure as he had
exerted was likely to cause her death and in fact the victim succumbed to her injuries—latter—.The
Sec. 304 Of Offences affecting the Human Body . 875
order of conviction is altered from Section 302 to that Section 304, Part II of the Penal Code.
Afazuddin Pramanik Vs.. The State 8 BLD (HCD) 282.
(40) In the absence of any conspiracy, pre-plan or premeditation on the part of the accused inflicting
injuries on the hands and legs of the victim by lathies, iron roads, shovels etc., resulting in the death
of the victim four days after the occurrence the offence committed is one for culpable homicide not
amounting to murder as the accused did not intend to cause death—The conviction of the accused is
altered from Section 302/34 to Section 304, Part I of the Penal Code and each of the accused is
sentenced to suffer R. I. for 7 years. DalilurRahman and others Vs. The State 12 BLD (HCD) 327.
(41) On scrutiny and careful analysis of the evidence of the P.Ws it appears that accused Shamsul
Huq did not foresee that throwing of brick towards victim Kastura Bibi would cause death to her. He
had no intention to cause death or to cause such bodily injury as was likely to cause death. Victim
sustained violent blow on the abdominal wall by the brick thrown towards her chest and got senseless
but death occurred when accused Abdul Hoque (since deceased) pressed her on the neck resulting in
her spontaneous death. Death would not have occurred if accused Abdul Hoque would not have played
the part of pressing the victim on her neck. Accused Shamsul Huq had no premeditated intention to
kill the victim and the intention to kill is lacking in the instant case. Although, he had no intention to
kill the victim, it must be held that he had the knowledge that such throwing of brick was likely to
cause her death and the act done by him was both rash and indiscreet and as such accused Shamsul
Huq is liable for the commission of an offence punishable under section 304, Part II of the Penal Code.
Abdul Jabbar and another Vs. The State 18 BLD (HCD) 109.
(42) Section 304 of the Penal Code, which consists of two 'parts, does not create any offence, but
provides for punishment of culpable homicide not amounting to murder. The first part applies to a case
where there is guilty intention and the second part applies where there is no such intention, but there is
guilty knowledge. Nibir Chandra Chowdhury and others Vs. State (Criminal) 53 DLR (AD) 113,
(43) Respondent by inflicting the injury on the chest resulting the death of the victim committed
an offence under section 304, Part-I of the Code for causing , the bodily injury as was likely to cause
death. State Vs. Abdul Barek and others (Criminal) 54 DLR (AD) 28.
(44) The injury caused was not on the vital part and there was no evidence that the accused knew
about the pregnancy of the victim. Under the circumstances the accused committed an offence
punishable under section 304, Part-11 of the Code. State Vs. Abdul Barek and others (Criminal) 54.
DLR (AD) 28.
(45) By the infliction of injury resulting in the death of the victim, he committed an offence under
section 304, Part-I of the Penal Code. As the injury inflicted by the other respondent was not on a vital
part of the other victim he committed an offence punishable under section 304 Part-11 of the Penal
Code. Stare Vs. Abdul Barek and others 22 BLD (AD) 38.
(46) Alteration of charge under section 302—where mitigating circumstances are present.—When
the victim died as a result of injury inflicted upon his person by the accused in occurrence arising out of
quarrel offering sudden provocation, the appropriate charge will be under section 304 Part II of Penal
Code for the offence of culpable homicide not amounting to murder. Accordingly the charge u/s. 302 is
altered and the sentence is reduced. Nabir Chandra Chowdhury and others Vs: The Stare 6 MLR
(AD) 256.
(47) Culpable homicide not amounting to murder—Procedure of sentencing in case of long
custody—In the absence of common intention to cause, death it is culpable homicide not amounting to
876 Penal Code Sec. 304
murder punishable under section 304 of the Penal Code. The custody of the accused for tong time
pending trial or hearing of appeal may be taken into account and deducted from the total sentence to be
awarded. State Vs. Abdul Barek and others 7 MLR (AD) 17.
(48) Charge of culpable homicide has to be established by cogent and acceptable legal evidence—
No moral conviction is sustainable—Conviction must be based on cogent and acceptable legal
evidence. There is no room in criminal jurisprudence for moral conviction. Habez Md. Peru Kazi V.
The State 7 MLR (AD) 333.
(49) As the medical evidence shows that there was a penetrating wound in the back of the right
gluteal region at the level of the sucaro cocoigial joint which damaged the internal organs of the
deceased as a result of which he died within a few hours of the occurrence and there is also evidence that
before inflicting the said injury he was pressed on the ground and he was unarmed when the petitioner
or any other.accused did not sustain any injury and hence the conviction under section 304 (Part-1) of
the Penal Code is in accordance with law. Emdadul Hoque Vs. State (Criminal) 6 BLC (A D) 56.
(50) Culpable Homicide—Intention to cause death—From the evidence there can be no manner of
doubt that the assault was done with the intention of causing such bodily injury as was likely to cause
death—The accused husband was not content by 1 striking his wife a branch Of a tree but was reckless
enough to kick her in the tender part of the body which immediately caused bleeding. It was not a case
of mere knowledge only (to constitute offence under section 304 Part H) that such act was likely to
cause death but that the intention to cause such injury as is likely, to cause death was very clear, It is
true there is no finding as to 'intention' either in the impugned judgment or in the judgment of the
trial Court—This is certainly not desirable because the law requires a clear finding as to 'intention'
before recording a conviction under Part of Sec. 304—Notwithstanding the absence of the requisite
• finding as to intention, the appellant-Husband was rightly convicted.. Jatin Ch. Si! & ors. V s. The
State 43 DLR (A D) 223. .
(51) Justifiability of awarding the maximum punishment of 10 years under second part of this
section—Appellant was convicted under second part of this section for-giving order to the principal
accused to flue from his rifle in the consequences of which the offence was committed—Principal
accused has not preferred any appeal and his substantive sentence of 10 years was upheld by the. High
Court. Division—It is difficult to 'reopen the question of sentence as u/s. 109, PC—Both the Principal
offender and the abettor are entitled to the same sentence—Since the appellant has served out the
sentence, no 'useful purpose, will be served in entering into the question of sentence in the case. Md..
Eshaque Tahshilder Vs. The 'State 43 DLR (A D) 2.03.
2.'Distincti6n between Parts I and II of this section.—(1) The fist paragraph of the section
applies to the .offences of culpable homicide not amounting to murder if the act by which the death is
caused.is'done—(a) with the intention of causing death, or (b) with the intention of causing such
bodily injury as is likely to cause death. Case (a) will be 'culpable homicide not amounting to murder
only if it falls within any of the exceptions to S 300 for otherwise it would fall under the first clause
of S 300 and would amount to murder. (1911) 12 CrzLJ 274
(2) If the offender intends to cause such bodily injury as he knows' to be likely to cause ' death the
case would fall under the second clause of S. 300 and would be murder, otherwise. not. AIR 1916
LowBur 32.'.
• (3) Par I of this section will apply to. case of causing such bodily injury as is likely to cause death,
if, either it is not covered by clauses two and three of s 300 or though so covered, falls within any of
the Exceptions. A IR 195,7 SC 324. , .
Sec. 304 Of Offences affecting the Human Body 877
(4) Part I of this section applies only to acts done with the intention to cause death or such bodily
injury as was likely to cause death. AIR 1975 SC 179.
(5) The second paragraph of the section which may be referred to as Part II applies to act which are
done without any intention to cause death or such bodily injury as is likely to cause death but which.
are done with the knowledge that they are likely to cause death. A/I? 1972 SC 955.
(6) An act done with the knowledge referred to as 'special knowledge' that it is so imminently
dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death
may fall within the 4th clause of S. 300 and constitute the offence of murder, If, however, the
Exceptions apply to the case, it would only be culpable homicide not amounting to murder, Part II
would apply to such a case also. AIR 1956 SC 116.
(7) Partl of this section deals with the first two clauses of S. 299 and Part II deals with the third
clause of S. 299. A IR 1969 Orissa 138.
3. "Act by which death is caused."—(l) An act cannot be said to be one which causes death
where its connection with the death is too remote and is not punishable under this section. 1978 Raj
CriC 376.
(2) Death which is du le to supervening causes and is not merely a natural consequence of the act of
the accused cannot be said to be caused by the act of the accused. AIR 1951 Raj 123.
(3) Where A joins with B in assaulting C and even though the original intention may be merely
to inflict relatively harmless injuries, sees B in the course of action which may reasonably be excepted
to bring about the death of C and takes no steps to interfere with that action or to assist the deceased,
such an act is an act of omission which renders him liable under this section. A IR 1929 Pat 65.
(4) It is the ultimate consequence of the act committed by the accused which should be considered
in convicting him. AIR 1927 Cal 73.
(5) Causing death means causing death of a human being. If a person assaults a person believing
him to be a ghost, he cannot be said to have intended to cause the death of a human being. Neither this
section nor Section 302 will apply to such a case AIR 1926 Lah 554.
4. "is done with the intention of causing death."—(l) An act causing death, and done with the
intention of causing death will be culpable homicide not amounting to murder punishable under Part I
of this section, only if it is covered by any one of the Exceptions to S. 300. A IR 1935 Rang 391.
(2) The ' proposition that every person intends the natural consequences of his act is offen a
coventient helpful rule to ascertain the intention of persons when doing a particular act. It is wrong,
however to accept this proposition as a binding rule which must prevail on all occasions and in all
circumstances. The ultimate question for decision being whether an act was done with a particular
intention all the circumstances including the natural consequence of the action have to be taken into
consideration. A IR 1964 SC 986
(3) The fact that the injuries, inflicted did, in fact result, in death will not justify the Court in
reasoning backward from the result, to an intention to cause death. What has to be seen is, firstly, what
degree of injury did the accused intend and secondly, what did he know of the consequences of such
injury. A IR 1931 Cal 261. .
5. Intention to cause such bodily injury as is likely to cause death.—(l) The causing of death
by an act done with the intention of causing such bodily injury as is likely to cause death falts.under
the First Part of this Section. AIR 1990 SC 267.
878 Penal Code Sec. 304
(2) Where the intention is to cause such bodily injury as is sufficient in the ordinary course of
nature to cause death, the case will fall under S. 300, Cl. (3) and hence the offence will be one of
murder punishable under S. 302 and not of culpable homicide not amOunting to murder punishable
under this section. A IR 1980 SC 573.
6. "With the knowledge that it is likely to cause death"—Part H of the section—(l) The
knowledge referred to in Part If of this section is of lesser degree than the special knowledge referred to
in the fourth clause of S. 300. A IR 1920 A ll 110.
(2) Where an injury caused is not intended to cause death and is not in normal conditions, likely
to cause death the offence cannot be culpable homicide not amounting to murder but may be an offence
of causing hurt. A IR 1917 Born 259.
(3) The question, whether the accused had the knowledge that his act was likely, to cause death is,
as in the case of intention, a question of fact depending upon the circumstances of the particular case,
the weapon used, the part of the body on which the injury was inflicted, the number of injuries caused,
the deliberateness of the act etc. A IR 1979 SC 1532.
(4) Where injuries are inflicted and the victim dies but the case cannot be brought under either part
of this section. (for want of the requisite mens rea as described in this section or S. 299) the accused
can be convicted only for the injury caused under Ss. 323 to 326 of the Code and not for culpable
homicide. A IR 1923 Oudh 97.
(5) A person will be presumed to have knowledge of the natural consequences of his act. A IR 1979
SC 1708.
(6) As a general rule a person who.voluntarily inflicts injury on another so as to endanger his life,
must always, except under extraordinary circumstances, be taken to know that his act is likely to cause
death. A IR 1979 SC 1532.
(7) If a man really believed that a certain result will not follow his act he cannot be held to know
that it is likely to follow. A IR 1921 LowBur 26
7. This section and S. 326.—(1) The line between culpable homicide not •amounting to murder
and grievous hurt is a very thin and subtle one. In the former case the injuries must be such as are
likely to cause death while in the latter-they must be such as endanger life. A IR 1946 Born .38.
(2) A person who voluntarily inflicts injury and the injury is such as to endanger the victim's life
must always, except in extraordinary cases, be taken to know that he is likely to cause death and if the
victim actually dies as a result of the injury, the conviction must be for the offence of culpable homicide
not amounting to murder. A IR 1938 Mad 723.
8. This section and S. 304A—Death caused by rash or negligent act.—(1) A voluntary
commission of an offence cannot be a rash or negligent act. If a man intentionally commits an act and
consequences beyond his immediate purpose result, it is for the Court to deterMine how far he can be
held to have knowledge that he was likely by such act to cause the actual result. If such knowledge can
be imputed, the result is not to be attributed to mere rashness. If it cannot be imputed, still the wilful
offence does not take the character of rashness because the consequences have been unfortunate. In such a
case th&offence will fall under this section and not under S. 304A. 1976 W LN (UC) 425 (Raj).
(2) The words "not amounting to culpable homicide" seem only to repeat the meaning of "a rash
or negligent act" causing death. Such a construction may seem to make the words "not amounting to
culpable homiëide" a mere surplusage—a mode of construction which is to be adopted only as a last
Sec. 304 Of Offences affecting the Human Body 879,

resort. But when the alternative is to reduce the section to nonsense and absurdity such a construction
is unavoidable. A IR 1976 SC 1012.
9. This section and S. 460.—(I) Where a person is convicted of an offence under S. 460 a
separate conviction on a charge under S. 304 read with S. 34 is not justified as this is only a
repetition of one of the ingredients of the charge under S. 460. A IR 1951 A ssam 60.
(2) If a person causes the death of another at the time of committing lurking house trespass by
night or house breaking by night it does mean that he escapes being tried under S. 302 or S. 304,
Penal Code, as the case may be, and that he can only be tried under S. 460 Penal Code. A IR 1940
Lah 281.
10. Attack by several persons—Liability.--(I) A number of provisions have been enacted in the
Code designed to prevent loopholes of escape to guilty persons. One of these provisions is S. 34 of the
Code. Another provision is S. 149 of the Code. A IR 1979 SC 1259.
(2) Where one member of an unlawful assembly commits culpable homicide not amounting to
murder, in furtherance of the common objective of the assembly to commit such offence every member
will be liable under S. 304 read with S. 149 irrespective of the question as to who gave the fatal blow.
A IR 197 SC 1525.
(3) Where the common object to commit culpable homicide is not established and it is not
established further that any particular member or members of the assembly individually committed
culpable homicide, none of them could be convicted either under Sections 304/149 or 304 only. A IR
1958 A ssam 44.
(4) Where several persons attacks A with the common intention to cause his death and the case is
one of culpable homicide not amounting to murder they will all be liable to punishment under S. 304.
Part I read with S. 34 A IR 1972 SC 254.
(5) Where there is no such common intention and there is no evidence as to which of them gave
the fatal blow none of them can be convicted under this section. A IR 1951 A ssam 65.
(6) If there is evidence that any of the accused persons caused injuries, they will be liable
individually for causing such injuries under Ss. 323 to 326, as the case may be. A IR 1971 SC 1847.
(7) If any of the accused person's caused injuries they will . be liable collectively for such injuries
caused by one of them in pursuance of their common intention. A IR 1961 Guj 16
• (8) Where two groups of persons indulged in afree fight resulting in the death of two persons, only
those persons who are proved to have caused the death can be held guilty of the offence individually
committed by them. A IR 1970 SC 219.
(9) Where several persons make an unpremeditated joint attack against a person and each
individual beats with a stick anything more than knowledge that their joint attack, in its cumulative
effect, is likely to cause death, cannot be imputed to them collectively. They will be liable under Pan
11 of this section. A IR 1976 SC 2499.
11. Blow aimed at one causing death of another.—(l) Where A intended to cause death to X
and the death of Y is caused, A will be liable under S. 302 read with S. 301 and not under S. 304. 4!!?
1972 SC 502. *
(2) If the degree of injury intended to be inflicted on the person aimed at was to cause hurt only,
the accused will be guilty only for causing hurt, although the blow falls on another resulting in his
death. A IR 1957 A ll 132.
880 Penal Code Sec. 304

12. Abetment of ocffence under this section.—(l) Where X instigaed B to beat C and caused
the death of C thereby committing the offence of culpable homicide, and this act done by B was not a
probable consequence of the abetment. x is not liable for the culpable homicide committed by B. AIR
1962 MdhPra 91.
13. Cases falling within Exception I to S. 300.—(1) Where a case of murder falls within
Exception Ito S. 300 the offence of murder will be reduced to the offence of culpable homicide not
amounting to murder and then it will be punishable under this section, the act intended to cause death
or bodily injury being governed by Part I of the Section and acts done without such intention but with
the knowledge of likelihood of death, being governed by Part II. AIR 1977 SC 1801.
(2) Verbal abuse may amount to grave and sudden provocation. 1982 Cr1LJ 1691.
(3) Verbal altercation—Accused assaulting deceased with great force—Nothing to show that
altercation was of suàh serious nature which could cause sudden provocation—Injury on chest and heart
was most cruel according to medical evidence—Held that the case fell squarely under S. 302 and was
not covered by S. 304 Part H. AIR 1983 SC 361.
14. Cases falling under Exception 2 to S. 300.-.---.(1) Death caused in the exercise of the right of
private defence within-the limits prescribed by Ss. 96 to 103 is no offence at all and no question of the
applicability of this section arises in such cases. AIR 1972 SC 244.
(2) Where a person exceeds the right of private defence and causes death the case may fall within
Exception 2 to S 300 and he will be guilty of culpable homicide not amounting to murder and will be
punishable under this section. AIR 1980 SC 660.
(3) Where the identity of the particular person who caused death by exceeding the right of private
defence is not established by evidence none of the members of the assembly canbe made liable under
S. 304. A IR 1954 A ll 771:
(4) Where there is no question of the exercise of any right of private defence at all, all the members
of the assembly would be liable for the acts of one of them in pursuance of the common object. AIR
1955 NUC (A ll) 2713.
(5) There can be no common intention to commit culpable homicide by exceeding the right of
private defence. AIR 1976 SC 2273.
(6) A person exceeded the right of private defence and causing death may be liable under Part I of
this section if he did the act with the intention of causing the death. But if there is no such intention
but knowledge that his act is likely to cause death, he would be liable under Part HJ?fhis section. AIR
1979 SC 577. .
(7) As to when a person can be said to exceed the right of private defence. 1983 PakLD 251.
(8) Where the lower Court accepted a part Of the statement of the accused namely that he inflicted
the injuries on the deceased but it had declined to place reliance on that part of the statement of the
Accused which explained the circumstance under which the fatal blow was given it was held that where
there is a solitary evidence of the accused and no other evidence then the whole of the statement must
be taken into consideration. On consideration of the whole statement of the accused it was held that the
accused was entitled to right of private defence. His conviction under S. 304, Part 11 was set aside.
1983 CriLINOC 211.
15. Cases falling under Exception 3 to S. 300.—(I) Police officer shooting at unlawful
assembly without arresting leaders or giving pervious warning—Act hot in good faith—Death
caused—Case did not fall under Exception 3 to S. 300. 1 Weir 310.
Sec. 304 Of Offences affecting the Human Body 881

16. Cases falling under Exception 4 to S. 300—Sudden fight.—(I) The following are cases in
which Exception 4 to S. 300 was held to apply and the offence held to be one falling under this
section. A IR 1978 SC 315.
(2) In a case the Exception was held not to apply and the offence was held to be one of murder. AIR
1980 SC 448.
(3) Sudden fight without premeditation—Accused alleged to have inflicted injuries cn the
deceased—Accused causing one injury each to two victims and receiving six injuries on various parts
of his body—Prosecution neither in FIR not in their statement ever claimed to have caused injuries on
the person of the accused—For such a lapse, it is the prosecution who has to suffer—Accused, held to
have acted in self-defence and acquitted. 1983 Chand CriC 441 (P&H).
(4) When the accused while dispossessing others from their land behaved in a cruel or unusual
manner by causing multiple injuries on vital part of those persons and claimed protection of Exception
4.of S. 300, it was not granted and they were convicted under S. 304. 1981 Cr1LJ 516
17. Onus of proof.—(I) The burden is on the prosecution to prove that all the gredients of the
offence are satisfied in the particular case. 1979 RajL W 214.
(2) It is not the duty of the accused to show how the death was caused. Rat 686 UN CrC.
(3) Where the accused pleads that the death was. due to accident and there is nothing to show that
the suggestion is unfounded he cannot be held liable under his section. (1953-1954) 12 J & KLR 58.
18. Effect of acquittal under this section.—(1) Earlier acquittal u/s. 303/34, Penal Code—
Conviction u!s. 304/34, Penal Code by Appellate Court not hit by former acquittal. AIR. 1969 Cal 28.
(2) Where A was charged under S. 323 of the Code of 1898 and the case was compounded, but
subsequently the victim died as a result of the injury, it was held that there was nothing to prevent the
accused being charged for an offence under this section. (1914) 15 CriL.J 64 (DB) (All).
19. Benefit of doubt.–(1) Where the evidence is conflicting the benefit of dOubt, must be given to
the accused. 1982 SCC (Cri) 134.
(2) Where it is difficult to determine whether the offence is one of murder or of culpable homicide
not amounting to murder the proper course is to convict the accused only for the lesser offence. 1982
Cr1LJ (NOC) 107.
20. Appreciation of evidence.—(1) Attack by several accused—Medical report stating 'injuries
caused could have been fatal independently but not -necessarily'---Conviction of one accused under S.
302—Not valid. AIR 1977 SC 699.
(2) Accused throwing brickbats on the person of the deceased—Deceased aged about 65 years—No
injury, wound or abrasion on body of deceased—Medical report showing diseased heart of deceased—
Opinion of Doctor performing post mortem that death could have been due to heart failure—No offence
was committed by the accused and their acquittal was justified. (1982) 2 Chand LR (Cr1) 107.
(3) Asto cases relating to appreciation of evidence.. A IR 1982 SC 1021; A IR 1976 SC 912; A IR
1970 SC 826. . ..... .
21. Jurisdiction.—(1) The offence under this section is triable only by a Court of Session
(1903) 8 Mys CCR No. 419 Page 358.
(2) The offence under this section cannot be tried by an Assistant Sessions Judge. (1980) 1
CaIHN 504. .. . ..
882 Penal Code Sec. 304

(3) The offence under this section cannot be tried by a. Magistrate in charge of the Children Court.
A IR 1932 Cal 487.
(4) The accused believing that a woman had bewitched another gave the former a severe beating
and branded her in several places. Four or five days after this her back swelled and fever came on. She,
finally,took to her bed and died on the sixteen day after the beating. The accused were, on these facts,
tried by a Second Class Magistrate, who convicted them of offences under S. 323 and sentenced them
each to rigorous imprisonment for six months. It was held, reversing the conviction and sentence, that
the accused should be committed for trial on a charge of culpable homicide. (1902) 4 Born LR 879.
(5) Prosecution under S. 302—Magistrate should commit under that section and not under S. 304.
A IR 1953 Bhopal 1.
22. Judgment—Judge's duty.—( 1) Where a Judge convicts the accused on a charge of culpable
homicide not amounting to murder by reason of the Exception 2 to S. 300 he should record under
which of the Exceptions the case falls. 1870 Pun Re (Cri) No. 18 Page 32.
23. Charge.—(1)A person charged under S. 304 can be convicted under S. 325 without a specific
charge being framed thereunder. AIR 1934 Oudh 251.
(2) A person charged under S. 304 can be. convicted under S. 304-A without a specific charge
being framed under those sections. AIR 1924 Born 450.
(3) It is not illegal to convict -the accused. under S. 304/34 on a charge under Ss. 304/149 in the
absence of prejudice to the accused. AIR 1934 Mad 565.
(4) Where the accused was charged under Ss. 148, 304/149 and 326/149 and was acquitted of the
charge under S. 148 he cannot be convicted for an offence under S. 326 without the aid of S. 149 there
being no charge under,S. 326. AIR 1915 Cal 292.
(5) Where the facts of a case are such that the accused could have been charged alternatively, either
under S. 302 read with Section 149 or under S. 302 read with Sec. 34, the conviction of the accused
under S. 302 read with S. 149 can be altered by the High Court in appeal to one under Section 302
read with S. 34 upon the acquittal of other accused persons. AIR 1952 SC 167.
(6) Observation by High Court that charge should have been framed under section 304 while
confirming conviction under S. 304A—High Court however, had not stated that trial was illegal—
Held, conviction under S. 304A is not illegal. (1971) 2 SC CriR 511.
(7) The charge should run as follows:
I, (name and office of the Judge hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—committed culpable homicide not amounting to murder,
causing the death of—, and thereby committed an offence punishable under section 304 of the Penal
Code and within the cognizance of the Court of Session. And I hereby direct that the you be tried by
this court on the said charge.
24 Confession--Conviction on.41) The retracted confession of a co-accused carries practically no
weight. There could be no conviction of the accused on the basis of such confession without the fullest
and strongest corroboration of material particulars. 1968 CurLJ 244.
(2) Where corroboration to the confession of confession of co-accused present, the accused can be
convicted on the basis of such confession. (1974) 1 CriLT 107 (Him Pro).
25. Sentence.—(1) For an offence of murder only one of two alternative punishments can be
aw arded—death or imprisonment for life. In the case of culpable homicide not amounting to murder the
Sec.. 304 Of Offences affecting the Human Body 883

Court has a discretion to modulate the sentence according to the circumstances of each case. 1961
RajLW 6OI. .
(2) In exercising such discretion the principles governing the award of the lesser punishment for
murder by reason of extenuating circumstance, may usefully be followed in the matter of modulating
the sentence to be awarded under this section. AIR 1979 SC 577.
(3) Ordinarily the punishment should be sufficiently severe to be a deterrent on a repetition of such
offences. (1921) 22 CriLJ 341 (A li) (DB.
(4) In cases governed by Exception I to S. 300 the sentence should be as tow as is commensurate
with the nature of the offence but should not be so low as to encourage the commission of homicide.
The nature and number of the injuries inflicted lose their significance in acts done under grave and
sudden provocation and cannot be a ground for , awarding excesive sentence. 1980 Mad Li (Cr1) 314.
(5) In a case falling under Part I of the section by reason of the accused having exceeded the right of
private defence it was held that a sentence of transportation for life was too severe. 1977 Raj CriC 352.
(6) As to other illustrations on point of sentence. AIR 1983 SC 652; AIR 1983 SC 162.
26. Culpable howicide under superstitious belief.—(l) Where A struck his uncle B under the
grievance that he had brought from her parent's house his wife who was alleged to be a witch and who
was responsible for the death of A's children it was held that the case fell under Part I of this section
and called for a severe punishment. AIR 1955 NUC (Born) 3660 (DB).
(2) Where the accused subjected a girl to a beating for the purpose 'of exercising the spirit with
which she was supposed to be possessed and it resulted in her death it was held that the accused was
guilty of culpable homicide not amounting to murder. Rat Un CrC 603 (DB).
27. Interference by High Court.—(I) As regards sentence passed by the trial Court the High
Court rarely interferes with the discretion of the trial Court as to the sentence, but it will not allow a
very inappropriate sentence to stand. AIR 1955 SC 778.
(2) As to other illustrations on point of interference by High Court. AIR 1979 SC 1114.
28. Interference by Supreme Court.—(1) Where there is evidence to support the findings of the
lower Court, the Supreme Court will not in an appeal by special leave, interfere with a conviction
under this section-AIR 1971 SC 2268.
(2) The Supreme Court declined to further reduce the sentence which was already reduced by the
High Court in exercise of its discretion on the ground that the accused was the sole bread earner in the
family. AIR 1980 SC 1315.
(3) When the accused have committed an act of butchery in murdering the victim, but in trial
escaped conviction under S. 302 and were convicted under S. 304 Part I and the Government had not
filed an appeal against the acquittal, the Supreme Court declined to interfere. AIR 1980 SC 1315.
(4) Accused in the dead of night going to the camp of mine labourers and asking his companions
to set fire to the huts of the labourers when P. W. I. came Out of his hut with a child in his hand the
accused gave a lathi blow which resulted in the death of the child. Accused was convicted under
Section 304 Part II. Supreme Court did not interfere as there was no law point and the decision was on
facts. 1983 SCC (Cri) 129.
29. Procedure.—(1) There is nothing in the Code which restricts the powers of Sessions Judge to
transfer a case where charge is under Section 304 Part Ito the Assistant Sessions Judge. Imprisonment
884 Penal Code Sec. 304

for life is the maximum sentence under S. 304 Part I. As soon as such a case is transferred to the
Assistant Session Judge, he cannot pass a sentence for more than 10 years. But only for that, it cannot
- be said that an Assistant Sessions Judge in such a case is without jurisdiction to try the case. (1980) 1
CaIHN 504.
(2) Murder—Sentence—Accused and deceased raw youngmen—A. day before the occurrence the
accused while passing by the shop of the deceased had coughed in an insolent manner—Deceased
giving irresponsible reply to an otherwise innocuous question prompted by earlier enmity between
them—Accused and deceased grappled together when blows were given to deceased—Held, in the facts
and circumstances of the case, that conviction of the a&cused could be converted from one under S. 302
to S. 304 Part 11. 1983 A ll CriLR 618.
(3) As regards bail. AIR 1969 Munipur 6(8).
(4) Procedure: Cognizable—Warrant--Not bailable—Not compoundable—Triable by Court of
Session. .
30. Section 304 read with section 149.—In the case of an unlawful assembly, conviction under
section 304 must depend upon one of the two alternatives, i.e. either that the persons convicted have
been proved individually to have committed the offence or that the person convicted has been a member
of an unlawful assembly, that is to say, of an association of persons having a common unlawful object
(43 CriLJ 654). Section 304 coupled with section 149 applies to such persons who, though not taking
an active part in an unlawful assembly, are liable to be punished by reason of their being members of
the unlawful assembly, if a person is killed in prosecution of the common object of the assembly,
unless any one of them can show that he had not the common object of the assembly in prosecution of
which death was caused. When five or more accused are found guilty under section 304, second part of
causing death by doing an act with the knowledge that they were likely.by such act to cause death,
they can be convicted under section. 304/149, because they knew that death was likely to result from
their attack (44 CriLJ 624).
• 31. Section 304 read with section 34.—Section 34 being based on common intention cannot go
with the second part of section 304 as common intention is excluded therefrom. Where an accused was
charged under Section 304 and 34 or 149 alternatively, the duty of the trial court was to decide
whether the assault resulting in the death was committed by the accused or any one of them in
prosecution of- a-common object or in furtherance of a common intention and whether the accused
formed an unlawful assembly with the common object of assaulting the deceased.
This section creates no offence, but provides the punishment for culpable homicide not amounting
to murder, and draws a distinction in the penalty to be inflicted, where an intention to kill being
present, the act would have amounted to murder, but for its having fallen within one of the Exceptions
of section 300, and those cases in which the crime is culpable homicide not amounting to murder (33
GnU 849). Both the parts of section 304 refer to distinct offences. Part I would be attracted to an
offence which was otherwise murder but was reduced to culpable homicide not amounting to murder by
reason of being covered by any of the Exceptions to section 300, Part 11 of section 304, would be
applicable if the fatal injury inflicted on the deceased was caused to him without any intention on the
part of the accused to cause death or such bodily injury as was likely to cause death but about which
the accused could be burdened with the knowledge that it was likely to cause his death (PLD 1971
Pesh 13). Where the case is on the border line between murder and culpable homicide not amounting
to murder, the accused is entitled to the benefit of any reasonable doubt and be convicted only under
'this -section (35 CriLJ 1112).
Sec. 304A I
Of Offences affecting the Human Body 885
32. Right of private defence and death caused under provocation.—The right of self-defence
arises only in cases where there is an apprehension of hurt or grievous hurt, but the right of private
defence in no case extends to inflicting of more harm than is necessary to inflict for the purpose of
defence. Where the right to private defence is being exercised and in the exercise of that right more
harm is caused than is necessary, the person exceeds the right of self-defence. In such a case Exceptions
2 to section 300 PC is available if there is no intention to cause more harm than . is . necessary for the
purposes of defence. Where the right of self-defence does not exist or has ceased to exist for it exists as
long as the apprehension lasts, as provided in section 102 PC there can be no right of self-defence nor a
situation leading to the exceeding of the right arises. Where a person causes fatal injury to another in
the defence of his property, the offence would fall under section 304. Part II PC (PLD 1954 La/i 602).
Where death is caused under grave and sudden provocation, conviction would be under section 304(1),
and not under section 302. Where the accused lost self-control because the deceased used highly
provocative language against him, a sentence of five years RI was held sufficient. Where death is caused
on a sudden quarrel in the heat of passion without any premeditation, the accused would be guilty of an
offence under section 304 and not under section 302 (AIR 1957 SC 324).
33; Practice.— Evidence,— p rove: (I) That there is the death of person in question.
(2) That such death was caused by the act of the accused
(3) That the accused intended by such act to cause death; or that he intended by such act to cause
bodily injury as was likely to cause death; or
(4) That he knew that such act of his would be likely to cause death.

Section 304A
2 [304A. Causing death by 1 negligence.—Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide shall be
punished with imprisonment of either description for a term which may extend to
3 [five] years, or with fine, or with both.]

Cases and Materials : Synopsis

1. Scope. 10. Vicarious liability.
2. "Any person". 11. Procedure.
3. Rash or negligence act. 12. Burden of proof
4. Rash or negligent act in driving or riding 13. Proof and conviction.
along a public way.
14. Charge under S. 302—Conviction under this
5. Rash or negligent act in medical treatment. section.
6. "Not amounting to culpable homicide"— 15. Plea of guilty.
Intentional violence not within this section. 16. Sentence.
7. Death must be the direct result. 17. Revision and reference.
8. Death due to accident. 18. Appeal.
9. Negligence—Difference between civil and 19. Charge.
criminal liability—Contributory negligence. 20. Practice.

2. 304A was inserted by the Indian Penal Code Amendment Act, 1870 (XXVII of 1870), section 12.
3. Subs by Ord. No. X of 1982, S. 4, for "two".
886 Penal Code Sec. 304A

1. Scope.—(l) The provisions of this section seem to apply to cases where there is no intention
to cause death and no knowledge that the act done in all probability would cause death. In order to
establish a charge of-negligence under section 304A of the Penal Code, it must be established that the
accident was the direct result of the negligence or rashness of the accident. This section does not apply
to cases where there is an intention to cause death or knowledge that the act done will in all probability
cause death. The term rash act' within the meaning of this section connotes want of proper care and
caution. In "negligence' there is failure to observe such care as the occasion demands, to protect interest
of other persons and in "rashness" there is failure to consider the consequences of an act with the result
that the act is devoid of proper care and caution. Negligence under this section does not mean absolute
carelessness or indifference but want of such a degree of care as is required in particular circumstances
(A IR 1944 Nag 285; PLD 1962 Lah 267). Mere carelessness is not sufficient for conviction under this
section like other 'sections of the Penal Code, require mens rea or guilty mind. To attract the
provisions of section 304A death must have occurred. A conviction can be sustained under section
304A of the Penal Code if death is the direct result of rash or negligent act of the accused. Contributory
negligence has no plea in criminal law. Plea of contributory negligtnce.on a victim's part is no defence
of itself to a charge of murder (A IR 1938 Sind 100, 39 GnU 566). Great care should be taken before
importing criminal negligence to a professional man acting in the course of his profession. A doctor is,
not criminally responsible for a patient's death unless his negligence or incompetence passed beyond a
mere matter of compensation and showed such disregard for life and safety as to amount to a crime
against the State.
(2) Non-consideration of important circumstances by the trial Court vitiates the judgment. Ahmad
A ll Vs State 26 DLR 182.
- (3) "Rash or negligent act'--Explained--impliCatiOfl thereof with reference to the facts of present
case. This section does not say the act must be rash and negligent; it says that the act must either be
rash or negligent. A rash act means hazarding a dangerous and wanton act with the knowledge that it is
dangerous or wanton act, and that it may cause injury but without any intention to cause injury or
knowledge that it will probably be caused. The criminality, in such a case lies in running the risk of
doing the act with recklessness or indifference as to the consequences. In the present case, we do not
think that the accused had acted either rashly or negligently. He certainly can be imputed with the
knowledge that his act, i.e., firing a gun at deceased Prashanna will cause injury to him. The injury
caused to Prashanna by the accused was certainly not an accidental one resulting from a rash or
negligent act, nor can it be said that in the facts and circumstances of the case in doing the act, the
accused intended to cause death of Prashanna or knew that his act was likely to cause the death.
Rashidullah Vs. The State 21 DLR 709.
(4) Death of a man due to gun shot injuries fired at the victim out of nervous apprehension does
not make out a case of rash or negligent act under section 304A PC. Section 304A does not say that
the act must be rash and negligent; it says that the act must either be rash or negligent, A rash act
means hazarding a dangerous and wanton act with the knowledge that it is dangerous or wanton or that
it may cause injury but without any intention to cause injury or knowledge that it will probably be
caused. The criminality in such a case lies in running the risk of doing the act with recklessness or
indifference as to the consequence. Rashidullah Vs. State 21 DLR 709.
(5) Driving a car recklessly until it comes so close to a pedestrian that it is impossible t6 save a
collision cannot but be characterised as rash and negligent driving. Mere negligence on the part of a
pedestrian cannot excuse negligence, on the part of a driver of such a fast and dangerous vehicle as a
Of Offences affecting the Human Body 887
Sec. 304A
motor bus. As between th.e pedestrian and a driver of a motor vehicle the responsibility of the latter is
greater. He has a duty to keep better lookout than a pedestrian. A driver of a motor vehicle who is
himself negligent cannot plead in his defence the negligence of a pedestrian whom he knocked
unconscious and killed. A bdur Rashid Mia Vs State 9 DLR 207.
(6) Even if an act by the accused resulting in death is admitted, there can be no presumption that
the fact. was voluntary and intentional, and these elements must be established by the prosecution, like
any other element of the offence charged. It is not correct to say that the accused must be found guilty if
he fails to show the circumstances necessary to establish the accident pleaded by him. Sultan Md. .Vs.
Crown 6 DLR 28 FC.
• (7) This section was added by an amendment of the Code in 1870. It does not create a new offence.
(1909) 9 CalL] 393 (Cal). -.
(8) This section is restricted to cases where a rash or negligent act results in the death of a person.
A IR 1965 A ll 196
• (9) This section is directed at offences outside the range of Ss. 299 and 300 and obviously
contemplates those cases into which neither intention nor knowledge of the kind dealt with by Ss. 299
and 300 enters. AIR 1976 SC 1012.
(10) This section does not say that every unjustifiable or inexcusable act of killing not hereinbefore
provided shall be punishable under the provisions of this section; but is specially and in terms limits
itself to those rash or negligent acts which cause death but fall short of culpable homicide of either
description. A IR 1966 A ll 196
(11) From the evidence as it is if it can be safely said that the accident was due to misjudgment of
the accused not due to rashness then conviction under S. 304-A cannot be said to be legally correct
(1980) 82 PunLR 293.
(12) Although the death of a person injured is a condition precedent to liability under this.section
the question whether an act is rash or negligent has to be judged independently of the fact that the death
was caused. 1977 Raj CriC 9.
• 2. "Any person."—(l) A child in the mother's womb, sufficiently developed to make it possible
to call it a child' is a person within the meaning of this section. A IR 1966 A ll 590.
(2) Where the accused kicked a woman in an advanced state of pregnancy with the result that the
child in the womb died, it was held that the accused was guilty under this section. AIR 1966 All 590.
3. Rash or negligent act.—(l) Under S. 32 act' includes an illegal omission. An illegal
omission may, therefore, come under this section if it is negligent. 1968 CriLJ 405 (Cal).
(2) Mere carelessness is not sufficient for a conviction under this section. This section like other
sections of this Code, requires a mens rea or guilty mind. The rashness or negligence must be such as
can fairly be described criminal. (1980) 49 CuLT 337.
(3) Criminal negligence or rashness should not be presumed merely on application of the maxim
resipsa loquitur which imports that the plaintiff had made out a prima facie case without any direct
proof of actionable negligence. 1980 CriLJ (IVOC) 132.
(4) Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and
that it may cause injury, but without intention to cause injury, or knowledge that it will probably be
caused. The criminality lies in running the risk of doing such an act with recklessness or indiffernce as
888 Penal Code Sec. 304A

to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury, either to the public generally or to an
individual in particular, which having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have adopted. AIR 1972 SC 685.
(5) The distinction between a negligent and a rash act is somewhat different namely that a
negligent act is an act done without doing something which a reasonable man would have done or an
act which a .prudent or reasonable man would not do in the circumstances attending it, and that a rash
act is negligent act done precipitately. 1971 A ll CriR 416
(6) Rashness and negligence are not the same. AIR 1966 Born 122
(7) In a rash act there is the consciousness or awareness of the mind with the reference to the act
done and the actor indulges in the act with the foolhardy hope or exception against anything untoward
happening. On the other hand, negligence presupposes a negative state of mind, an absence of
awareness or consciousness of what should be done or omitted to be done, such a state of mind being
consequent upon failure to apply or exercise the requisite caution or precaution. 1979 CriLJ 1258
(Gauhati).
(8) Merely becaose a person contravenes some rules and regulations he does not make himself
liable for rashness or negligence. 1980 SimLC 246
(9) The accused in order to make entry into his latrine dangerous to intruders fixed up .a live naked
eldctric wire in the passage to the latrine. There was no warning that the wire was a live one. A
trespasser managed to pass into the latrine without contacting the wire, but her hand happened to touch
the same while coming out and she got a shock as result of which she died soon after. It was held that
the act of the accused was a rash act within the meaning of this section, as it was done in reckless
disregard of the serious consequences to people coming in contact with it. AIR 1964 SC 205.
(10) An assistant station master gave a'line clear' signal to a passenger train with the knowledge
that a good .train was standing at a particular point where the train might collide with it, but hoping to
remove the goods train before the arrival of the passenger train. The goods train was not removed in
time and a collision occurred which was attended with loss of life. The assistant station master was
guilty of a rash act punishable under this section. AIR 1918 All 429,
(11) The accused administered a drug to her husband in the belief that it was a love potion which
would stimulate his affection for her. It was really a poison and the husband died from the effect of the
poison. The accused was held liable for an offence under this section. AIR 1915 Born 297.
(12) Accused who had a loaded pistol was demonstrating to the deceased by bringing the pistol
into different positions, as highway robbers held up way fares. There were facts showing possibility of
pistol exploding and it exploded killing the deceased. It was held that the accused was guilty of
causing death by a negligence act. AIR 1949 Lah 85.
(13) In an ordinary quarrel and fight between the complainant and the father of the acóused the
accused went to the help of his father. The complainant went into the fight with a child of two years of
age on his hip. The accused had a stick with which he struck a blow at-the complainant. The blow
missed the complainant and fell on the head of the child. The child died within about an hour
thereafter. The accused was liable for an offence under this section. AIR 1921 Lah 297.
(14)Victim, a lady sitting on puliya (culvert of 12 ft. width—Bus of 8 ft. width-dishing against
victim w h ile crossing the culvert—Bus driver held rash and negligent—Speed of bus was irrelevant
factor in such case. A IR 1982 MP 83. -
Sec. 304A Of Offences affecting the Human Body 889
(15) As to illustration of cases where the act was held to be rash and negligent. 1978 Cr1LR.
(SC) 642. .
4. Rash or negligent act in driving or riding along a public way.—(1) In judging whether a
driver of a motor vehicle is guilty of a rash of negligent act within the meaning of this'section,n
abstract standard can be laid down, and the Court has to judge what is the amount of care y and
circumspection which a prudent and reasonable man would consider it to be sufficient having regard,to
all the circumstances of the case. 1979 CriL.J 1258 (Gauhati). .
(2) A person who is driving a motor vehicle should always keep it in a state of control sufficient to
enable him to avoid dashing against any other vehicle or running over any pedestrian who may be on
the road. AIR-1979 SC 1327.
(3) In order to determine the culpability of driving of vehicle one has also to see his -conduct•
immediately before the occurrence. he'cannot create a situation in which the vehicle may go out of order
and then plead that because the vehicle -became out of control, the accident could not be avoided: f979
Cr1LR (Mah) 132.
(4) The speed with which a motor vehicle is driven has relevance only when taken in conjunction -
with other relevant facts, such as the condition of the road, the nature of the load carried by it, persons
likely to be affected • in case of accident, etc. AIR 1975 SC 1324. - -
(5) While in one case the fact that the vehicle was driven at a high speed may not constitute
rashness or negligence, there could be such rashness or negligence, in another where the speed is much
less. AIR 1971 Born 164. - - - -
(6) It is a sound rule that he who drives a mechanically propelled transport vehicle, or for the
matter any other transport vehicle, is under a duty to exercise that vigilance and care which is expected
of him so as to eliminate,- to the extent possible, danger and peril to others who have a similar right to
use a highway. A IR 1975 SC 1960. • - - --
(7) In cases of running over by motor vehicles, it is difficult • to keep out of one's mind the
prejudice that inevitably creeps in by reason of the fact that lives have been lost and the responsibility.
for the same ultimately rests on the accused. The task of keeping out such prejudice might be difficult -
but it has got to bvt performed by Courts. A IR 1967 Mad 365.
(8) In a prosecution under this section for causing death by rash or negligent driving the Court'
should not take into account the 1peed which the accused developed after the accident in order to judge
the speed at which he was driving prior to the accident. A IR 1954 A ll 186. * --
(9) Unless a passenger is conversant with the driving, it is difficult to rely upon the evidence of
such a passenger to determine whether the bus was driven at fast speed or otherwise. (1983) 1 -
BomCR 307.
(10) It is a common human failing, however reprehensible it may be, for a man to attempt to run
away after such an accident. 1979 CriLi 517 (All). - -- --
(II) A lorry was hired to fetch fire-wood. The driver, started in the evening and reached the place - -
where fire-wood was stored at about midnight. The lorry was immediately loaded. The driver the -
accused without waiting to take food or some rest again started on his way back. - On the way, he was
overpowered by sleep and lost control of the vehicle. The lorry swerved to the left as aresult of which
he woke up and turned the lorry to the right. It crossed-the road, went over the pavement and dashed - -
against a tree. A person in the lorry died as a result of the dashing. It was found that the lorry was --
890, Penal Code Sec. 304A

driven at a high speed and the brakes were also defective, the accused was held guilty of a rash act. AIR
1965 A ll 196. .
(12) A lorry laden with several bags of paddy was being driven along the center of a straight road
at a high speed in order to keep pace with a railway train running parallel to the road. The bullock carts
were coming in the opposite direction on the correct side of the road. First two carts passed without
any trouble. The third cart loaded with iron bars which protruded in front of the cart, suddenly turned
to the right. The accused the driver of the lorry, suddenly swerved to the right to allow the cart to pass
With the result that the lorry overturned causing the death of a person. The accused was held liable
under this section. A IR 1954 Tray-Co 25.
(13) Where the driver of a motor car, who is a novice and has no licence, ventures to drive in a
crowded thoroughfare a defective car having no horn and the brakes of which are entirely defective, his
act amounts to rashness. Where he in sich circumstances tries to overtake pedestrians and other
vehicles on the road his act amounts to negligence. AIR 1953 Sau 10.
• (14) A military .Captain had to inspect at night certain oil installations. For that purpose, he was
driving a car at about'2 A. M. on his way to the place of duty at a speed of about 25 to 33 miles an
hour. Due to A.R.P. Restrictions only one dim light was on his car and the streets were unlit. On his
way he knocked down a pedestrian who died. But the Captain went on not aware of this and when
subsequently he was told of this, he was surprised and expressed regret. The road was uneven and
bumpy. In the circumstances it was held that the Captain was not guilty of a rash or negligent act. AIR
1944 Sind 124.
(15) A road was partly under repair. A person drove his car along the road at night Some persons
who were sleeping on the road were run over and killed. A driver could look out for a vehicle or
• persons standing or walking on a road, but could not expect persons to sleep on the road. Hence, it
was held that the driver of the car was not liable under this section. AIR 1926 Cal 300.
(16) Negligence—Accused Asstt. Station Master—Collision between two trains resulting in death
of several passengers and damage io railway property—Held, mere direction to subordinate staff for
making due arrangement for arrival of trains was not sufficient—It was duty of accused to see that
arrangement were made in accordance with his directions and according to requirements of situation.
1984 CriLJ NOC 46 (Gau1iafi)
(17) As to illustrations where the act complained of was neither rash nor negligent.
AIR 1972 SC
221; AIR 1971 Born 164; AIR 1953 , Hyd 123i AIR 1950 All 300.
(18) As to further illustration whether or not the acts of the accused amount to negligence.
AIR
1971 Born 164; AIR 1971 Madli pra 145.
5. Rash or negligent act in medical treatment.—(1) Great care should be taken before imputing
criminal rashness or negligence to a professional man acting in the course of his professional duties. A
doctor is not criminally liable for a patient's .death unless his negligence Or imcompetence passes
beyond a mere matter of compassion and shows such a disregard for life and safety as to amount to a
crime against the State. A IR 1943 PC72.
(2) Where a doctor administers a proper medicine to his patient, but the quantity administered is
very considerably in excess of the prescribed quantity and the patient dies as result of such
administration it would be a case of murder under S. 302 ante or a rash or negligent act under this
section depending upon the circumstances of the case. AIR 1963 MadhPra 102.
Sec. 304A Of Offences affecting the Human Body 891
(3) If an unqualified person ignorant of the science of medicine or the surgery undertakes an
operation or medical treatment and it results in the death of the patient, it would be a.h or negligent
• act within the meaning of this section. A IR 1965 Sc 831.
• 6. "Not amounting to culpable homicide"—Intentional violence not within this section.—(1.)
Voluntary and intentional acts done with knowledge of the likelihood of the actual result caused are not
rash or negligent acts. 1955 MadhBLR (Cr1) 181. . . .. .
(2) The section does not apply to a case in which there has been a voluntary commission of an.
offence against a . person. 1988 BurLR 780.
(3) If a man intentionally commits an offence and consequences beyond his immediate purpose
result , it is for the Court to determine how far he can be held to have the knowledge that he was
likely, by such act, to cause the actual result. If such knowledge can be imputed, the result is not to be
attributed to mere rashness: if it cannot be imputed still the wilful offence does not take the character of
rashness, because its consequences have been unfortunate. AIR 1955-A11 626
(4) Where A, in the course of a dispute withB, struck at him with a lathi ánd..B.avoided that blow
which fell on the head of B's sister who had come up unpërceivèd by A and B and which fractured her
skull and resulted in her death, it was held that this section was inapplicable. 1975 KerLT 748.
(5) Where the accused professed to be able, by tattooing, to render the persons tattooed by him
immune from the effect of snakebite and tattooed a number of villagers nd..then allowed a poisonous
• snake, which he himself was handling, to bite one of them and the man bitten died at once, it was held..
that ifthe accused honestly believed himself to be able to produce immunity, he would be guilty of
• merely a rash and negligent act not amounting to culpable homicide; but otherwise he would be guilty
of culpable homicide not amounting to murder because he caused the death with the knowledge that it
was likely to cause death but had neither the intention nor the knowledge necessary to make his offence
murder. AIR 1921 LowBur26.. .. .. .• • ... . . .
(6) Accused forming unlawful assembly and attacking other party—Lifting a child of 4 year and
throwing him on ground—Child dying—Held, it was culpable homicide and neither murder nor
rashness within the meaning of S 304A AIR 1983 SC 529
7 Death must be the direct result —(1) In order to impose criminal liability under this section,
it is necessary that the death should have been the direct result of a rash or negligent act of the accused
• and that the act must be the proximate and efficient cause of the death. It must be the causa causans (the
immediate cause), it is not enough that it may have been the cause sine qua non (cause of which the
proximate cause is the effect) AIR 1968 SC 829
(2) There must be a direct nexus between the death of a person and the rash or negligent act of the
accused A IR 1972 SC 1150
(3) The accused a tractor driver was driving a tractor attached to a trailer loaded with materials
While negotiating an up-gradient of a ghat section, the engine stcpVed abruptly, a part of the trailer
broke at a point which was previously welded the trailer was detached and ultimately capsized in a
ditch killing two of the occupants in the trailer. It was held that there was no negligeCàe on the part of
the accused which was direct or proximate cause of the death. 1968 Crlfd-85.1.......... .. ....
(4) Where a truck, heavily loaded with logs of wood and twelve persons sitting over them contrary
to Motor Vehicles Rules was driven in heavy rains and cyclonic weather on a muddy, irregular and
zigzag forest cart tract at night and dashed against a tree stump and the resulting jerk broke the rope
892 Penal Code Sec. 304A

tying the logs which fell over and crushed under them one of the persons to death, it was held that the
death was the direct and proximate result of the negligent driving, (1973) 39 CutLT 13.43.
(5) As sustained serious injuries when a jeep driven, by B who had only a learner's licence struck
him. B tookhim to a doctor who refused to treat him saying it was.a medico-legal case and asked him
to take A to a Government dispensary. B instead of going there drove back to his village and A died
on the way. B was charged with an offence under this section. There was evidence that he had been
driving for about six months And that he had been driving the jeep the previous day in several places. it
was held that assuming that B was guilty of a rash act, the prosecution had not proved that it was the
rash act that caused the death of A. AIR 1968 SC 829.
(6) Where the driver of a bus was prosecuted 'under S. 304-A and S. 279 , P. C. for carrying on bus
roof certain corrugated iron sheets which fell down due to jolting while bus was driven on a kucha road
and the Investigating Officer made no attempts to find the said sheets nor the prosecution found who
the owner of the bus and who had loaded them the driver would not be liable to be convicted AIR
1972 SC 1485
(7) Where the three lower Courts gave a concurrent finding that the negligent driving of the
accused was the proximate cause of death the Supreme Court though doubtful about the same refused
to apprise the evidence for itself and upheld the, finding of the lower Courts AIR 1973 SC 2127.
8 Death due to accident.—(I) Where death is due to a mere accident this section can have no
application'. 1976 C'handLR ri) 290.
(2) Where the accused and the deceased went into , a jungle for hunting and they agreed to take up
positions in the jungle and wait for game and in the night the accused hearing a resulting sound and
believing that there was a wild animal, fired in that direction as a result of which his companion was
shot at and killed, it was held that the accused could not be convicted under this section A IR 1927
fah 880.
(3) The accused was striking a hammer on a shelf in order to frighten a boy who was pestering him
in his sleep. The hammer accidentally dislodged from his hand and hit the boy who died as a result of
the blow. It was held that the accused was not liable for negligent act. (1962)1 MadLJ 161.
9. Negligence-Difference between civil and criminal liability—Contributory negligence.-
() The principles of liability governing civil actions based on negligence differ from those governing
criminal liability in two particulars. The negligence of the accused in a criminal case must be such that
it goes 'beyond a mere matter of compensation and shows such disregard for life and safety of others as
to amount to a crime 1972 A11CriR 401.
(2) The negligence of the accused must be of a high degree and not of the type which gives rise to
a claim for compensation.• AIR 1980 SC 1354. . .
(3) The rule of contributory negligence which may be a good defence in a civil action has no place
in an indictment for criminal negligence. Once it is established that the accused has caused the death of
any person by a negligent act not amounting to culpable homicide, contributory negligence on the part
of the deceased is irrelevant. 1970 KerLT 828.
(4) Simple lack of care may give rise to a civil liability but without mens rea and such a .degree of
culpability as amounts to gross negligence there is no criminal liability. 1970 KerLT 828.
(5) Notwithstanding any rash or negligent cut, if the other side with its eyes open' was also
negligent and invited the calamity then the person who acted rashly or negligently cannot be held to be
criminally liable. (1984) 1 Crimes 505. .
Sec. 304A Of Offences affecting the Human Body 6 893
10. Vicarious Iiability.- .-.-(l) As the offence under this section one requiring mens rea the principle
of vicariotls liability does not apply to it. Hence, an employer cannot be held guilty under this section
where death has been caused by the negligence of his servant or employer. AIR 1970 Mad 198.
11. Procedure.—( I) An accused was prosecuted under this section before a Judicial Magistrate and
a complaint was also filed against him in the Sub-Division Magistrate's Court for an offence under the
Motor Vehicles Act. In the latter case some formal evidence was let in and the accused was acquitted; It
was held that the former trial was no bar to the trial of the offence under the section. AIR 1965 Raj 221.
(2) Magistrate alleged to have agreed to impose .lighter punishment, if accused pleaded guilty—
Accused pleading guilty—Imposition of lighter punishment—Trial held not fair. 1980 CriLR
(Guj) 415.
(3) The accused should not be released on bail when his identification proceedings are not yet
complete. 1970 A l/Li 631. . . .
• (4) A . panchanama of scene of offence is of significance in a trial for offence under Section 304A and
• therefore,'. it is desirable that the prosecution should examine at least one of the panchas to prove the
contents of the pánchanatha 1981 BomCR 7.
(5) Conviction of two accused by Sessions Court under S. 302/34—Appeal--One of accused
gifting land to deceased's window as compensation—High Court acquitting such accused and
converting conviction of another accused from S. 302 to S. 304-A—Acqufftal and conversion is illegal.
AIR 1984 SC 1029.
(6) Procedure— Cogni zable— W arrant— Baila b le— Not compoundable—Triable by Court of
Session. .
12. Burden of prdof.—(l) The section is no exception to the general rule that the burden of proof
is on the prosecution to establish the guilt of the accused beyond reasonable doubt. 1978 CriLi NOC
197 (Delhi).
(2) The onus on the accused is discharged on the theory of balance of probabilities as in a civil
suit. If the version of the accused may reasonably be true no conviction can lie. (1974) 40 CuILT 199.
(3) The driver of a jeep drove it at a reasonable speed and blew the horn when it passed a
stationary bus. The jeep, however, struck two boys, , thereafter, killing one on the spot. The only plea
of the driver was that he did not know how the accident occurred. He was convicted under this section
as the accident was due to his negligence. (1974) 40 CutLT 199.
(4) In a charge under this section, the prosecution must prove : (i) that the accused caused the
death of the person in question: and (ii) that such act of the accused was rash or negligent, although it
did not amount to culpable homicide. (1975) 41 Cut LT 245.
(5) Rashness and negligence in driving cannot be inferred from the mere fact that the crossing.
pedestrian was knocked down by the bus. (1983) 2 Born CR 729.
(6) The prosecution must establish beyond all reasonable doubt that the accused at the time and
place of occurrence , was driving his vehicle in such a manner as gives rise to an inference that he acted
with the consciousness of the risk of causing death or injury to any 'person. (1971) 2 CutW R 121.
13. Proof and conviction ..—(l) The question whether the conduct of an accused in a particular
case amounted to culpable rashness'or negligence will have to be judged from the circumstances of each
case and from the point of view of the amount of care and circumspection which a prudent and
reasonable man would consider to be sufficient in all the circumstances of the case. AIR 1979 SC 1848.
894 Penal Code Sec. 304A

(2) The offences under . S. 279 ante are minor offences in relation to the offence under this section.
Hence in a charge under Section 279 and this section a conviction under S. 279 also along with this
section would be redundant and unnecessary. AIR 1965 All 196.
(3) Almost all prosecUtion witnesses turning hostile—No contradictions brought on record—
Acquittal of accused—Held, in circumstances. proper. 1 .981 Cr1LJ (NOC) 201.
14. Charge under S. 302--Conviction under this section.—(l) A person charged under S. 302
for murder can be convicted for an offence under this section without specifically being charged for an
offence under this section. (1965) 1 MysLJ 647. .
15 Plea of guilty.—(l) An accused should know the substance of the charge before he can be in a
position to plead guilty. The statement of the accused, on a charge for rash driving of a motor car that
• the accident was-due to failure of brakes cannot be regarded as a plea of guilty. AIR 1969 Goa 39.
16. Sentence.—(.l) Sentence, in cases arising under this section is a matter of discretion of the trial
Court and the limits carrnot be fixed by judicial precedents for all times in the future. 1979 CriLR
(Born) 132.
(2) The Court must, in passing the sentence, keep out the prejudice that inevitably creeps in the
case of loss of life. A IR 1959 Mad 497 (501): 1959CriIJ 1344.
(3) Benefit of probation should not . be given to a person convicted under S. 304-A. (1984) 1
Crirne.t 768 (P&H). . . . .
(4) Though contributory negligence would not be a defence to charge under this section, it might
be a factor for consideration in determining the sentence. AIR 1927 La/i 165.
• (5) The imposition of one punishment on a driving of a motor vehicle under this section and .a
further punishment for the same offence under the Motor Vehicles Act for using a vehicle in an unsafe
condition is opposed to law. A IR 1955 Mad 548
(6) Where a truck and an- auto-rickshaw collided against each other due to the negligence of both
drivers the rickshaw dashed against a child killing it the trial Magistrate sentenced-the-rrckshw driver
to rigorous imprisonment for6mnths-and--afine - of RWeei 500 the dnver served . out three weeks
__.Irnprisonmenrand thse was finally. before the Supreme Court eight years after the accident, the term
of imprisonment was reduced. .tothe term already served out, in view of the harassment of a long
criminal trial and expenses incurred by the accused therefor..The fine was however increased to Rs 700
out of which Rs 500 were ordered to be paid to the mother of the deceased child AIR 1977 SC 892
(7) Accidental death-Sentence----On facts that deceased leaving family behind him and the accused
had already been in jail for four and half months sentence of imprisonment reduced to the one already
undergone—However, sentence of fine was raised from Rs. 2000/- to Rs. 10,000/- so that family
members of deceased be compensated from that amount. (1982) 2 SCC 439.
(8) Where human misery is pitted against operational negligence on the part of stage carriage driver
'the.Supreme Court declined to interfere with the decision of the lower court. AIR 1980 SC 1354.
(9) Where the rash and negligent driving of a truck driver result in a fatal accident, the Supreme
Court declined to reduce the-sentence of two years' R.I. and no compassion was showed. The Curt
however generally expressed a need to adopt a policy of correction; A IR 1980 sc 84
(10) Occurrence in 1969—Accused who had already suffered imprisonment for a period of over 2.5
months need not be sent back to jail after a period of 9 years—Sentence of accused Was reduced to
imprisonment already undergone but fine was maintained. 1979 Ui (SC) 131.
Sec. 304B Of Offences affecting the Human Body 895
(11) As to other, illustrations on point of sentence 1980 Chand C'ri C 56; AIR 1971 Guj 72.
(12) Conviction under S. 304-A---Accused first. offender, and occurrence taking place in 1979—
Sentence of imprisonment reduced from one year to six months. 1984 Chand.Cri Cas 117.
17. Revision and reference.—(1) The Court will not ordinarily interfere in revision with the
exercise of the discretion of the trial Court in the matter of sentence; but it may, if necessary, enhance a
sentence of fine into one of imprisonment. AIR 1966 Born 122.
(2) Where in the course of ,a trial on a charge under this section the Magistrate decided to commit
the accused to the Sessions under S. 304 the High Court held in revision that the trial should have
been only under this section. AIR .1949 Cal 302.
(3) The High Court can jnterfere with an ofder framing a charge under this section and discharge
the accused where it is found that no act of rashness or negligence could be imputed to the accused and
it was purely an accident. AIR 1927 Lah 731.
(4) Where the defence version that there were defects in vehicle was not acceptable and no different
view could be taken from the one taken by lower courts the conviction of the 'accused was maintained.
1984 Raj Cr! Gas 82.
18. Appeal.-(l) Where the lower Court'.s finding that the accused is not guilty of a rash and
negligent act is' supported by evidence in record, the High Court,' in appeal, will not lightly' interfere
with it. AIR 1969 G6a.87.
(2) Where the delay in' filing appeal was not condoned by the High Court. 1980 CriLR
(Ma!) 200.'''''
19. Charge.—(1) Observation by High Court while confirming conviction under S. 304-A that
Charge should have been framed under S. 304 L.As the High Court would have quashed proceedings if
it was of opinion that conviction under S. 304-A was illegal, conviction under S. 304-A upheld by
Supreme Court. (1971) .2 SC CriR 511.
(2) Lorry driver charged with offence under Road Traffic Ordinance,—Charge demanded to one
under Section 304A for causing death by negligence act—Essence of charge being negligent driving
particulars of negligence not necessary in the charge. (1967) 2 MalayanLi 252. .
(3) The charge should run as follows:
I, (name and office of the Judge) hereby charge you (flame of the accused) as follows:
That you, on or about the—day of—, at—, caused the death of—, by doing a rash Or negligent act
not amounting to homicide to wit—and thereby committed an offence punishable under section 304A
of the Penal Code and within the cognizance of the Court of Sessions.
And I hereby, direct that you be tried on the said charge.
20. Practice— Evidence---Prove: (1) That there is the death of the person in question.
(2) That the accused caused such death.
(3) That such act of the accused was rash or negligent, although it did not amount to culpable
homicide.

Section 304W
4 [304B. Causing death by rash' driving or riding on a public way.—Whoever
causes the death of any person, by rash or negligent driving of any vehicle or riding on
4.
Section 304B was inserted, ibid. s. 5.
896 1Penal Code " Sec. 3048

any public way, not amounting to culpable homicide shall be punished with
imprisonment of either description for a ten-A which may extend to 5 [three years], or
with fine, or with both.]
Cases and Materials
1. Scope.--(I) This section deals with the causing of death by a rash and negligent driving.
Driving motor cars and vehicles have become an essential part of human activities, and it is. impossible
to avoid a certain number of accidents. There is no criminality .attached to the section but is made
punishable by reason of death having resulted. Here there is no intention to cause death or knowledge
that the act done will in all probability cause death. It only applies .to cases where there is neither
intention nor knowledge but death is caused by reason of a rash and negligent driving on public way.
A person driving a motor car is under a duty to control it. Therefore it is for the person driving a car to
explain the circumstances how the accident took place. The prosecution has the obligation of proving
relevant facts from which the inference of negligence can be drawn (1968 P CrLf 1438). Conviction
under section 204 requires that some rash or negligent act on the part of accused must be conclusively.
established by direct evidence. It must be established by evidence that at time of the accident the driver
was driving the car at uncontrollable speed and was therefore guilty of a rash or negligent act (PLD
1959 Kar 30). priving a carat high speed cannot be considered as a rash and negligent act as modem
technology provides for, reasonable safeguard or stopping the vehicle within known distance and time.
In order to prove rashness and negligence by the driver the prosecution had to establish that he failed to
take proper care by omitting to take some action through vhich he could have avoided the accident
(1980 PCrLJ 103). Driving a car recklessly until it came so- close to .a pedestrian that it became
impossible to save the collision, cannot but be characterised as rash and 'negligent driving. The driver
of a vehicle must drive at a speed that will permit of his stopping or deflecting his course within the
limits of his vision. It is the duty of the driver to drive his vehicle at a speed which will not impart the
safety of others using the road. The driver is under a duty of using whatever means are at hand to avoid
a threatened collision. In considering the question of enhancement of sentence under this section, one
has to consider whether the rash and negligent act of, the accused which has occasioned the death,
shows callousness on his part as regards the risk to which he was exposing other persons. The severity
of the sentence must depend, to a great extent, on the degree of callousness which is persent in the
conduct of the accused (A IR 1937 Born 96,30 CrLf 660). In regard to the sentence the court must keep
out false prejudice in cases of accidents.
(2) Effect of amendment on the sentence to be imposed in a criminal case—Where a right .has
accrued or a liability incurred under the original statute its repeal cannot affect a vested right or an
incurred liability—Although ex-post facto law is not generally retrospective in its operation yet the
matter may be approached from another angle viewed from the changing social condition and legislative
intent—The rule of construction of a penal statute is that where the law makers intend to mollify the
rigour of the law and make amendment of the existing law accordingly, the law applicable would be the
law which stands modified in favour of the accused-In the instant case Section 304B was amended
reducing the sentence to a term of three years' rigorous imprisonment during the pendency of the
appeal—There being no saving clause on the amended Ordinance, the appellant is entitled to invoke
the provisions of Section 304B of the Penal Code as amended providing for three years' irgorous

5.
Subs, by Ordinance No. XLVIII of 1985. for "seven years".
Sec. 304B Of Offences affecting the Human Body 897

imprisonment—Penal Code (Second Amendment) Ordinance, (XLVIII of 1985) S. 2. "Sekander Au

Howlader Vs. The State 8 BLD (HCQ) 296..
(3) There is absolutely nothing on record to disbelieve the consistent and corroborative evidence of
competent witnesses proving the guilt of the driver Eakub All and his guilt under sections 338A .and
304B of the Penal Code has been proved to the hilt by most cogent and consistent evidence. Eakub Au
Khan (Md.) and anr Vs State (Criminal) 6 BLC 558.
(4) Death by rash and negligent driving. Deceased coming from a said road to main road riding on
motor-cycle. His motor-cycle colliding with car of accused which was going on main road. Car not
colliding with motor-cycle. Mere fact that accused w as driving car at a fast speed would not make him
liable for rashness and negligence if road was dear. Duty of a person coming driving from a side road
towards main road, to see that main road was clear before entering same. It was held doubtful if death of
deceased was due to any rash and negligent, act of accused. Accused given benefit of doubt and
acquitted. 1985 PCrLJ2794.
(5) Causing death by .pegligence. Deceased, while sitting in front of truck hit by iron bar projecting..
out of truck driven by accused as a result of collusion. No sketch prepared or position given to enable
Court to ascertain as to which truck was on right, side and 'which was on .wrong side. Close
examination of evidence showing that connection of accused with incident as well as his illeged rash
driving and negligence were both doubtful; Driving at high speed on national highway by itself riot
rendering action of accused driver rash or negligent. No allegations made that accused was driving on,
wrong side; that headlights of his truck were not on; that he was driving with knowledge of such
mechanical defect in his vehicle which could have resulted in any accident and that he was intoxicated
at the time of accident. None of the vehicles examined by Investigating Officer or got examined by,
Motor Vehicles Inspector to prove mechanical defect. Courts below in circumstances, held, did not
appreciate evidence properly nor applied correct law to facts of case. Conviction and sentence set aside.
1984 PCrL.J 1470.
(6) Rash and negligent driving. Magistrate instead recording admission of accused in words used
by him merely recording his own words that"accused pleaded guilty". Plea of guilty and conviction.
Weld, properly recorded by Magistrate and conviction rightly based on such plea; Dismissal of appeal of
accused by Sessions Judge upheld and conviction maintained. 1984 PCrLJ 1525.
(7) Rash and negligent driving—Abetment--No prima facie evidence that accused was sitting in
truck and urging or egging driver to drive rashly or negligently, Accused, held, not abetted offence or
committed offence in same transaction, Coupling accused with driver vitiates trial on grounds of
misjoinder of charges. 1983 PCrLJ 1298.
(8) Rash and negligent act—Death caused by—Post-mortem examination report not forthcoming
and doctor who conducted examination not produced. No positive proof available to hold with
certainty that injuries suffered by victim were direct cause of his death. Conviction under , section 304B
held, cannot be sustained in circumstances. 1983 PCrL.J 1095.
(9) Rash and negligent driving.. Evidence, appreciation of possibility that in order to give way to
an on-coming vehicle with dazzling headlights, accused driving his bus toward his left' but going too
close to a trolley already parked on that side and by time recovering from blinding effect of flash-light,
o colliding with such stationary trolley, exists. Collision, held, conviction and sentence set aside. 1983
PCrLJ 2024.
898 Penal Code Sec. 305
2. Practice.—Evidence:—Prove: (1) That there is the death of a human being.
(2) That the accused caused the death.
(3) That the death was caused by the doing of a rash and negligent act of driving though it did not
amount to culpable homicide.
3. Procedure.—Cognizable—Warrant—Bajlable--Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I,. (name andoffice of the Magistrate) heieby charge you (name ofthe accused) as follows:—
That you, on or about the—dày of—, at—caused the death of—by doing rashor negligent driving
of (kind of vehicle) on—a public way, not amounting to culpable homicide and thereby committed an
offence punishable under section 304B of the Penal Code and within my cognizance.
And -I hereby direct that you be tried on the said charge.

Section 305
305. Abetment of suicide of child or insane person.—If any person under
eighteen years of age, any insane person, any delirious person, any idiot, or any
person in a state of intoxication commits suicide, whoever abets the'commission of
such suicide shall be punished with. death or '[imprisOnment] for life, or imprisonment
for a term not exceeding ten year, and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) Suicide is sell' murder. This section will apply to abettors of suicide committed by
persons under eighteen years, and person under disability such as a delirious person, an idiotic person
and intoxicated person. This is another section where death sentence has been provided.
(2) Deceased intoxicated with bhang. Throwing out challenge to deceased to take a certain pill
(found to be arsenic) if he did not feel sufficiently intoxicated—Offence under section 305. (1954) PLD
Lah) 103.

2. Practice.—Evjdence---Prove: (1) That there is the commission of suicide by a person.

(2) That the person who committed suicide was under eighteen years of age, or was insane or
delirious, or an idiot, or intoxicated.
(3) That the accused abetted the commission of suicide.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by the Court
of Session.
4. Charge—The charge should rim as follows:
I (name and office of Judge) hereby charge you (name of the accused) as follows:
That you, on or about—, at—, abetted the commission of suicide by—, a person under 18 years of
age (or an insanie person or an idiot) and thereby committed an offence punishable under section 305 of
the Penal Code and within the cognizance of this court.
And I hereby direct that you be tried on the said charge.
Sec. 306 Of Offences affecting the Human Body 899

Section 306.
306. Abetment of suicide.—If any person commits suicide, whoever abets the
commission of such suicide shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
Cases and Materials : Synopsis
I. Scope. . 5. Practice.
2. "Whoever abets". 6. Procedure.
3. Evidence. . 7. Charge.
4. Sentence.
1. Scope.—(1) Committing suicide though incapable of being punished is yet an act forbidden by
the Penal Code as attempt to commit suicide is punishable under section 307 and abetment of suicide
is punishable under section 306 PC. The section may be read with section 108 PC.
(2) Section 306 of the Penal Code provides for punishment to the person only in the case where a
suicide is abetted and intended but unfortunately, there in no provision in our laws to punish such a
person whose cruel behaviour drags a married woman to commit suicide but section 113A of the
Evidence Act and section 498A of the Indian Penal Code provide punishment in such cases and it is
expected our Parliament will enact similar laws. State V s. Y ahiya alias Thandu & ors (Criminal) 1
BLCI85. . . .. . .
(3) As there was no alleged intention on the part of the petitioners that Shimu Akter alias Kulsum
committed suicide and no charge can be framed against the petitioners under section 306 of the Penal
Code even on the basis of allegations made against them and as such the proceeding against the
petitioners is quashed. A bdul Khaleque Howlader and ors Vs. State (Criminal) 3 BLC 591.
2. "Whoever abets".—(l) Suicide has not been declared as a crime by the Code. An attempt to
commit suicide is punishable under S. 309 and abetment of suicide is made punishable under this
section. ILR (1972) 1 Ker 589.
(2) Where the accused were members of the crowd who had joined the funeral procession from the
house of the deceased to the cremation ground, while the widow of the deceased was walking in front of
the procession with the intention of committing suicide (sati). It was held that all those pesons who
joined the procession were aiding the widow in committing sati and that deterrent punishment was
necessary for such a brutal act. AIR 1958 Raj 169.
(3) Where the accused with the common object of abetting "sati" by a woman induced her to get
herself burnt along with the body of her deceased husband, made her sit on the pyre with the husband's
body on her lap and foiled her attempt to save herself and also the attempt of the police to save her, it
was held that the accused were guilty under this section. AIR 1928 Pat 497.
(4) Where some people gave ghee to thewidow which she poured over the fire and burnt herself,
they were held guilty under this section. AIR 1914 All 249.
(5) Where a widOw burnt herself on the funeral pyre of her husband on his death and it was
indicated that the accused desired that the woman should become "sati" and arranged for cremation
of the dead body in the village itself and not at the usual cremation ground and that several villagers
had assembled to see "sati" and the first accused was head of the deceased's family and the others,
his relatives, it was held that the offence of abetment of suicide was committed by the accused. AIR
1933 All 160. . . ..
900 . Penal Code Sec. 306

(7) Where a leper wante4 to commit suicide b throwing himself in a sacrificial pit and burn
himself and the-accused assisted him in bathing prior to suicide, and accompanied him to the sacrificial
pit and garlanded him it was held that the accused were guilty of abetment of suicide. (1867) 2 A gr
11CR (Criminal) 21.
(8) Where the accused charged with abetting suicide of the wife of one of them, failed to dissuade
the lady from committing suicide when she threatened to commit suicide and actually committed
suicide by setting fire to her clothes after sprinkling kerosene on them the accused could not be guilty
of illegal omission contemplated by St. 3 of Section 107. 1983 CriLi 706
(9) Where the wife of the accused died by consuming arsenic even if the accused had said to her in
anger that she could die by taking poison if she liked, it would not tantamount to any such instigation
for commission of suicide which could be culpable. (1983) 1 ChandLR (cr1) 123.
(10) Suicide by newly married girl, pregnant between 3 to 5 months—Girl not taking meals for
three or four days before committing suicide—Atmosphere in the house prior to suicide tense due to
certain disturbances—No act or illegal omissions attributed to husband or parents-in-law--On basis of
mere not taking food and her husband and parents-in-law not persuading deceased to take food, the
latter cannot be held guilty of abetting the crime of suicide. 1981 CriLi (NOC) 178 (Pun)).
(11) Where the wife of the accused died of the burn injuries, the fact that the accused had mal-
treated the wife and thereby created circumstances which made the deceased wife to end her life would
not amount to abetment within the meaning of the word 'abetment' as defined in S. 107, consequently
there was no material justifying the framing of charge under S. 306 against the accused. 1983 Chand
Cr! C 350 (Delhi).
(12) Where the deceased, a girl, who was forced by the accused to get herself photographed with
one of the accused in poses which showed intimacy between them and who was threatened to marry.the
accused or else would be kidnapped, committed suicide to save her father from shame the accused could
not be convicted for abetment of suicide. 1983 CriLJ 'NOc 35 (Punj).
3. Evidence.—(1) Where the ingredients of abetment by instigation are proved from the evidence
adduced, the accused can be convicted even if the charge under S. 34, P.C. fails provided no prejudice
is caused to accused. (1977) 81 CaIW N 713.
(2) Where the offence is not proved beyond reasonable doubt the accused is entitled to be
acquitted. 1978 ChandLR (Cr!) 224.
(3) Where there was no evidence that the accused at the time of commission of suicide by the
deceased in any way instigated or abetted her to commit the suicide and there was also no evidence to
the effect that they were present at the time the deceased committed suicide, the accused could not be
convicted under S. 306. (1983) 2 ChandLR (Cri) 391 (P&H).
(4) Death by burns—Dying declaration categorically stating that accused mother-in-law maltreated
deceased and taunted her for bringing less dowry and that accused was responsible for extreme step
taken by deceased—Conviction upheld. 1983 CrILJ (NOC) 230.
4. Sentence-41) Conviction and sentence under S. 306--Accused alleged to be belo' 18 years
• of age on the date of commission of offence—Probation Officer reporting that accused was person of
• good character and religious bent of mind—Ne evidence led by prosecution to prove his age to be
above 18 years—Accused given benefit the of Probation of Offenders Act and acquitted. 1981 ChandLR
(Cri) 147 (P&H)..
Sec. 307 Of Offences affecting the Human Body 901
5. Practice—Evidence—Prove: (I) That there is the commission of suicide by a person.
(2) That the accusedabetted the commission thereof.
6. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Trjable by the Court
of Session, Chief Metropolitan Magistrate, Additional District Magistrate, Magistrate ofthe first class
specially empowered.
7. Charge.—The charge should run as follows:
I (nameand office of the Judge/Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the--day of—, at—, one XY committed suicide, and that you abetted its
commission by—(specify the act), and thereby committed an offence punishable under section 306 of
Penal Code within the cognizance of this courf. And I hereby direct that you be tried on the said
charge.

Section 307
307. Attempt to murder.—Whoever does any act with such intentioi or
knowledge, and under such circumstances that, if he by that act caused death, he
would be guilty of murder, shall be punished with imprisonment of either description
forI a term which may extend to ten years, and shall also be liable to fine ; and, if hurt
is caused to any person by such act, the offender shall be liable either to
'[imprisonment] for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts._ 6[ When any person offending under this section is
under sentence of t [imprisonment] for life, he may, if hurt is caused, be punished with
death.]
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that if death
ensued, A would be guilty tf murder, A is liable to punishment under this section.
(b) A with the intention of causing the death of child of tender years exposes it in a
desert place. A has committed the offence defined by this section, though the death of the
child does not ensue.
• (c) A , intending to murder Z, buys a gun and loads it. A has not yet committed the
offence. A fires the gun at Z. He has committed the offence defined in this section, end, if
by such firing he wounds Z he is liable to the punishment provided by the latter part of
7[the first paragraph of] this section.
(d) A , intending to murder Z by poison, purchases poison and mixes the same with
food which remains in A 's keeping; A has not yet committed the offence in this section. A
places the food on Zs table or delivers it to Zs servants to place it on Zs table. A has
committed the offence defined in this section.

6. Inserted by the Indian Penal Code Amdt, Act. 1870 (XXVII of 1870), S. II.
7. Inserted by the Amending Act, 1891 (XII of 1891), Sch. II.
902 Penal Code Sec. 307

Cases and Materials : Synopsis

1. Scope of the section. death.
2. Act must be one capable of causing death. 11. Attempt and preparation.
3. "If he by that act caused death ". 12. Act of several persons.
4. Section if exhaustive of all cases of attempt to 13. Burden of proof—Sufficiency of evidence.
murder. 14. Charge and conviction.
5. This section and S. 301. IS. Sentence.
6. Causing Injury, If necessary. 16. Procedure.
7. .'Such Intention" 17. Bail.
8.. "Or knowledge". 18. • Juvenile offenders.
9. 'Under such circumstances ". 19. Practice.
10. "Act" If should be the penultimate act causing 20. Charge.
I. Scope of the section.--(I) In an attempt to murder all the elements of murder exist except the
fact of death. The cause of the want of success is immaterial. It may be due to timely escape, the
missing fire of the gun or recovery from a wound. To determine whether an act falls within the ambit of
section 307, on the wording of this section, three considerations appear to be essential: (a) the nature of
the act done, (b) the intention or knowledge of the agent, and (c) the circumstances under which the act
is done (A IR 1943 Nag 145). In cases of attempt to commit by firearms, the act amounting to an
attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he
fires, he does not do any act towards the commission of the offence. But once he fires and something
happens to prevent the shot taking effect, the offence under section 307 is made out. To justify a
conviction under this section it is not essential that bodily injury capable of causing death should have
been inflicted. Although the nature of injury actually caused may often give considerable assistance in
coming to a finding as to the intention of the accused, such intention may also be deduced. from other
circumstances, and may even in some cases, be ascertained without any reference at all to actual
wounds (31 CrLJ 782). Under this section the intention precedes the act and is to be proved
independently of the act, not merely gathered from the consequences that ensue. An attempt to commit
a crime is an act done with an intention to commit that crime and forming part of a series of acts
constituting its actual commission. The distinction between preparation and attempt to commit a
crime is whether the last act if interrupted and successful would constitute a crime (A IR 1961 SC
1698). Mens. rea is the second essential element in an attempt to murder. The intention may be of any
of the kinds referred to in .section'300. Knowledge being the alternative to intention in section 300
Cl(4), if established, will be sufficient (33 CrLf 613). To constitute an attempt to murder
contemplated by section 307 there must be an overt act combined with evidence of mens rea, the
burden is on the prosecution to prove both (A IR 1954 Pat 350). Under section 34, the act committed
by a number of persons in furtherance of common intention shall be deemed to be the act . of every
one and each of them shall be held to have committed the offence even if the act is only an attempt
to murder (A IR 1965 SC 132). The object of the assembly cannot said to be frustrated in the
commission of an offence by some unforeseen event prior to the commission of the offence (53 CrLJ
78). Death sentence can be awarded when the accused, who has been sentenced to imprisonment for life,
causes hurt.
(2) Ingredients which must be proved.—Two contending parties opposing cach other came to
certain plot of land. The accused party had two guns in the hands of two accused persons .. The dispute
Sec. 307 Of Offences affecting the Human Body 903

was with regard to certain piece of land growing paddy. When the accused party started reaping paddy
therefrom the complainant party protested. Whereupon two shots were fired from two guns which hit
one of them in the arm, thigh and leg and other person was also similarly injured. Shots extracted from
the affected part of the bodies were found to be small pellets. The accused were found guilty and
convicted and sentenced under section 307 for, attempt to murder by the Sessions Judge. Held: In the
circumstances of the case the accused cannot be held guilty under section 307. A siruddin Parcimanik
(1961) 13 DLR 46.6= 1962 PLD (Dac) 7.
(3) In a charge under section 307, it is not necessary that the injury inflicted should in itself be
sufficient in the ordinary course of nature to cause death. The section will apply even if no hurt is
caused, if the circumstances disclose that the intention of the assailant was to cause the death of his
victim. Intention or knowledge and the nature of the circumstances are the chief factors to be 'looked
into in determining whether a particular case comes within the mischief of section 307. Muhammad Vs.
Crown (1955) 7 DLR 430.
(4) Difference between sections 307 and 511 explained. There is a clear difference between the
definition of attempt in ^ section 511 and that given in section 307 of the P. Code.. To convict a person
of an attempt to murder under section 307, it must be shown that accused has done some act which
was capable of causing death and that act must also be the last proximate act necessary to constitute the
completed offence, while under section 511 the act may be any act done in the course of the attempt
towards the commission of the offence. There must, however, be some act done towards the
commission of the offence. A shaq Hussain Vs. Crown I PCR 121.
(5) The intention or knowledge referred to in section 307, p .c can hardly be inferred from a mere
recourse to a gun. Md. Y akub A ll. Vs. State, (1968) 20 DLR 881.
(6) Suspicion is not substitute of evidence. A faint doubt means a doubt without any reasonable
basis. No benefit of doubt is contemplated in. law. Reversal of the appellate Court's finding will not
bring the case within the ambit of murder u/s. 302 P.C. Trial Court arrived at the finding that these
injuries constitute murder. It is the degree of probability of death from certain injuries which determines
whether the injuries constitute murder or culpable homicide not amounting to murder. Stare Vs. Tayeb
A li and others (1988) 40 DLR (A D) 6.
(7) Conviction and sentence, alteration of, on technical ground by the appellate Court—Conviction
by the Trial Court u/s. 326/34, PC and sentence of 5 years' R. 1.—On appeal the High Court Division
altered the conviction to that u/s. 324/34, PC and reduced the sentence to 3 years' R.1.—The
conviction was altered just on a technical ground, discrepancy. in the evidence of Medical Officer—
Altered conviction challenged before the Appellate Division on the ground that no charge was framed
u/s 324 but the charge was framed u/s. 307, PC—No illegality in conviction u/s 324, PC—Though
the charge was framed u/s. 307, PC—No interference by the Appellate Division. A bdul Gafur & anr.
Vs. The State. 5 BSCD 43.
(8) In order to constitute an "attempt" two elements are necessary to be satisfied namely, mens rea
(guilty intention) and actus reus (act of the person complained against). 1979 RcJLW 254.
(9) In order that an attempt may fall under this section a third element besides two elements of
mens rca and actus reus (act of the person complained against) is necessary, namely, that ' the act
was done' with such mens rea as would have constituted the act a murder if death had occurred. 1980
Al/Li 337.
(10) In an attempt to commit murder, all the elements of murder exist except the fact of death.
(1974) 76 PünLR 345.
904 Penal Code Sec. 307

(11) Where the prosecution had failed to prove that injuries inflicted where sufficient in the
ordinary course of nature to cause death and also the intention of accused was not established, the
accused could not be convicted under S. 307. 1983 MahLR 529 (Bron).
(12) The distinction between an offence under Ss. 324 and 307 is well established. In order to
bring the offence under S. 307 home to the accused the prosecution must establish that his intention or
knowledge was of the description mentioned under S. 300. Where evidence is not sufficient to establish
with certainly the existence of the requisite intention or knowledge he could only be convicted under S.
324. 1984 UP Cri Ru! 70 (A ll).
(13) In civil 'law the attempted doing of an act which, when completed, is actionable is not
actionable at all,. On the other hand, the attempted commission of an offence is taken serious note of by
the criminal law, and attempts are punished with great severity. AIR 1961 Mad 498.
(14) It is not necessary for the offence of attempt under this section that any hurt or injury should
have been caused by the act. AIR 1970 Ker 998.
(15) For the attempts under this section the intervening , cause of the want of success of the
intention is not a relevant factor. Whatever theintervening obstacle to the success may be, the accused
cannot plead it in his aid if it was not known to him. 1*976 Raj Cr1 C 343.
(16) When the shots could not be effective from the either side then question of commission of
offence under S. 307 does not arise. 1984 CriLR 40 (Raj).
2. Act must be one capable of causing death.—(1) The act which would amount to an attempt
under this section must be one which is capable of causing death. AIR 1970 Ker 98.
(2) In order to amount to an attempt under this section the act must be such that if not prevented
or interrupted, it would be sufficient to cause the death of the victim. AIR 1972 SC 1764.
(3) The words undersuh circumstances' posit the view that if the act done is intrinsically or
inherently incapable of causing death, as where a man intending to murder X gives him a cup of milk
which he erroneously believes to be poison, this section willnot apply. (1956) 9 SauLR 307.
(4) An injury caused by the accused was rupture of the lung described by the doctor as "dangerous
to life if not treated". Such an injury is certainly not of a type as would attract S. 307. It would be
covered by S. 326. 1978 ChandLR (Cri) 76 (Punj.).
(5) Quarrel between D and G—J coming to rescue on hearing D's cries—i aged about 70—
Beating of J by handle side of kassis consequently J fell down—Fractures of ribs of i—Evidence of
doctor that fractures of ribs could be possible due to the fall—Held, ingredients of S. 307 were not
made out. (1983) I Crimes 305 (Raj).
(6) Evidence showing that deceased not entirely died due to assault by accused though they were
found to have exceeded their right of private defence—Charge under S. 307 was altered to one under S.
308. (1983) I Crimes 721 (MP).
3. "If he by that act caused death"..—(l) Where the accused inflicted several injuries on a
person but none of the injuries was singly or cumulatively dangerous to life, it was held that the
requirement that the act must be done with such intention or knowledge or under such circumstances
that if death be caused by that act the offence of murder would emerge, was not fulfilled, .and the
conviction of the accused under S. 324 of the Code was correct. 1968 SCD 208 (209).
(2) Accused using sharp-edged weapons with which causing of death could not be ruled out—
Held, accused cannot escape punishment under S. 307. 1981 Cr1LJ (NOC) 60,
Sec. 307 Of Offences affecting the Human Body 905

4. Section if exhaustive of all cases of attempt to murder.—(l) This section is exhaustive of

all cases of attempt to murders (1892) ILR 14 All 38:
(2) An act which is not capable of causing death but done with the intention to commit murder
does not fall under this section, but may be punishable under S. 512 read with Ss. 299 and 300.
(1867-68) 4 Born HCR (Cr) 17. -.
5. This section and S. 301.—(1) If this section applies to a person who intends to commit
murder but fails in achieving his object. The effect of the two sections read together is, that a person
who shoots at A and wounds B by mistake would be guilty under S. 307 although he has not been
able to get the person whom he intended to kill. A IR 1979 (NOC) 157.
6. Causing injury, if necessary.--(I) it is not necessary for the applicability of the section that
any injury should have been caused to the person whose murder is attempted. 1979 CriLJ 400 (Born).
(2) The fact that only minor injuries resulted from the act or that no injuries resulted at all is not
relevant for the purpose of deciding whether the act of the. accused is or is not an attempt to commit.
murder. 1968 CriLJ 134 (Raf). .
(3) If, injuries are caused due to the act, the accused would be liable to enhanced punishment under
the tatter part of the section. The effect ofjhe act is thus only relevant as a measure of the sentence ,to be
awarded. 1969 KerLT 488.
(4) When an injury has been caused by . the accused, but there is no evidence as to the nature of the
injury caused, the accused cannot be convicted under this section. A IR 1971 SC 335.
7. "Such intention".—(l) The words 'such intention' refer to the intention referred to in S. 300
namely : (a) intention to cause death, or (b) intention of causing such bodily injury as the offender.
knows to be likely to cause death of the person to whom the harm is caused, or (c) intention of causing
bodily injury to any person, where the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature, to cause death. 1978 Raj Cr1C 432. . .
(2) The intention precedes the act and is to be proved independently of the act. All that is
necessary to be established is the intention and if that, is, established the nature of the act will be
immaterial. (1976) 78 PunLR 867; . . .
(3) Where intention is not proved the accused cannot be convicted under this section. (1979) 81
PunjLR 444.
(4) A result cannot be said to be intended where the act is a rash, negligent or reckless one. A state
of mind which amounts to mens tea is that of a man who conceives the future event and believes that
there is a chance of its following his volition or act. AIR 1955 Pat 330.
- (5) The wife of the accused was strangulated by the accused when she was sleeping on the roof and
threw her down from the'roof—Evidence that accused used to beat and illtreat his wife—Accused was
held guilty under S. 307. CrP.C..1981 UP (Cr.) C 66 (A ll).
(6) Under the English law there must, in order to constitute the offence of attempt to murder, , be a
specific intention to cause death. The intention or knowledge referred to in clauses secondly, thirdly,
and fourthly of S. 300 is not enough; A IR 1970 Ker 98.
(7) The question whether, the accused had the intention referred to in the section . must depend
upon the facts and circumstances of the particular case. 1977 Raj Cri C 244(244).
(8) Where the-accused caused only one injury on the deceased and the occurrence took place all of a
sudden and on the date. of occurrence. The doctor did not opine that it was grievous and there was no
906 Penal Code Sec. 307
previous enmity between the parties it was held that the accused held no intention to commit murder of
the deceased, he could not be convicted under S. 307 but he was convicted under S. 324. P.C. (1980)
7 Cr1LT 154 (P & H). -
(9) Quarrel case—Accused No. I convicted under Section 307 for causing injury to A which was
proved by medical evidence to be of grievous nature which might have resulted in death of A--Other
evidence produced proved that there was no direct enmity between Accused No. 1 and A—Assault was
made on A only because he tried to intervene in the, matter—No attempt by accused No. Ito murder A
can be inferred—Conviction under S. 307 is altered to that under Section 326 of Penal Code. (7984) 1
Crimes 29 (MP).
(10) The nature of the weapon used, the expressed intention of the accused at the time of the act,
the motive of the accused, and where injuries are caused, the nature of the injuries and severity and
persistence of the blows given may all be taken into consideration in coming to a conclusion on the
question of intention. AIR 1965 SC 843.
(II) Attempt to mirder—Accused causing injury by penknife—Medical evidence showing that the
injury was sufficient in the ordinary course of nature to cause death—Merely . because weapon was
penknife and there was only one injury it cannot be concluded that accused had no intention to cause
death. 1981 CriLJ 1724 (Born).
(12)T . . he intention referred to in the section cannot be inferred merely from the nature of the injuries
in the absence of other circumstances. 1979 W LN (VC) 456
(13) In the absence of proof of other circumstances, the accused must ordinarily be deemed to have
intended to cause only that kind of injury which has been actually caused. AIR 1970 Raj 220.
(14) The benefit of doubt as the nature, of the injury intended to be caused must be given to the
accused 1979 SimLC 238.
(15) Firing with gun—Prosecution must prove that it was intended, to be fired at some one—As it
is possible that the shot may have been fired in the air merely with a view to create panic. (1971) 3
SCR 674... .
(16) Where in pursuance of a conspiracy to murder the Governor of Bengal, one of the conspirators
armed with a loaded revolver attempted to fire with such revolver at the Governor with intent to murder
him—Held, that the offence came under S.307. AIR 1935 Cal 361.
(17) Intention must be inferred from the circumstances in the case. AIR 1970 Ker 98.
(18) . P, when pursued as a thief by B; firing at B, and hitting him not in vital part of body—
Offence, held fell within S. 307. AIR 1944 Sind 83.
8. "Or . knowledge".—(I) Even if the accused had no intention to kill but had the knowledge
referred to in Section 300 'fourthly', which would make his act an offence of murder if deathhad'been
caused by his act, and had done the act with such knowledge, then he would be guilty of an offence
under this section. 1975. CriL.J 1337 (Goa). .
(2) So far as a conviction is to be based on knowledge as distinguished from intention, the act
(not necessarily the injury caused) must be likely to cause death and this section or S. 308 will
apply according to the degree of likelihood and the knowledge of the assailant established. AIR 1943
Nag 145.
(3) Where theaccused threw an acid on the victim but had no knowledge that his throwing of the
acid was likely to cause the death of the victim and the medical evidence was , contradictory on the
Sec 307 - Of Offences affecting the Human Body 907

death being directly due to bums it was held that the offence was under S. 324 only and not under S.
302 or under this section. (1976) 3 Cr1LT 47.
(4) Mens rea—Accused chased by police party—Accused firing shot from 23 feets at police
party—Knowledge that such shot may hit or kill police official can be attributed to accused having
regard to the close range from which shot was fired. 1982 Cr1LJ (NOC) 140.
(5) Where the accused caused two head injuries to the victim by wielding his axe it was held that
the accused could be saddled with the knowledge that by this act in all probability , death would be
caused and consequently the accused was guilty under S. 307. P.C. 1981 Raj CriC 177.
9. "Under such circumstances".—(l} The words "under such circumstances posit the
requirement,thát the act to which the section applies must be one capable of causing death. (1956) 9
SauLR 407.'
(2) The words "under such circumstances" have nothing to do with the question whether the act
committed by the accused could or could not cause death, but relate to the nature of the offence which
the accused would have ' committed if his act did cause death, that both in this section and in S. 308
the phrase 'under such circumstances' does not stand by itself and that it has to be read in conjunction
with 'such intention or knoWledge'. AIR 1952 Pepsu 138.
(3) The words 'under such circumstances' have been used to distinguish attempted murder from
attempted culpable homicide not amounting to murder. A IR 1943 Nag 145. . .. .
(4) The expression 'under such circumstances' refers to facts which would introduce a defence to a
charge of murder such as for instances, that the accused was acting in self-defence or in the course tf
military duty. AIR 1932 BOrn 279. ...
(5) Where private persons tried to arrest the accused on information that they (accused) had
committed dacoity and were running away and in their attempt to resist their arrest some persons from
the aresting party were killed, it was held that the arresting party had no right to attest the accused in
the absence of any evidence that the offence was committed or that the accused were wanted by a person
in whose presence the offence was committed and the accused could forcibly resist the attempt to arrest
them and in doing so they could use fire arms etc.-Accused acquitted. 1980 LuckLJ 215 (All).
(6) The expression 'whoever attempts to commit an offence' under S. 511 can only mean whoever.
intends to do a certain act with the intent or knowledge necessary for the commission of that offence.
The same is meant by the expression 'whoever .does any act with such intention or knowledge and.
under such circumstances that if he, by that act, caused death he would be guilty of murder' in S. 307.
This simply means that the act must be done with 'the intent or knowledge requisite for the
commission of the offence of murder. AIR 1961 'SC 1782. . .
(7) Where the act of the accused under this section is in defence of property or person conviction
under this section is unjustified. 1974 ChandLR (Cr1) 146 (Punj). .
10. 'Act' if should be penultimate act causing death.41) The 'act' referred to in the section
is not necessarily the last or penultimate act which would have caused death. AIR 1961 SC 1782.
(2) If the culprit attempt to commit murder ' by fire-arm it is clear that he does not do any act
towards the commission of the crime till he fires, but once he fires, and something happens to prevent
the shot taking serious turn, the act would be an attempt to commit murder within this sect i on . 1970
CriLJ 653 (Raj). .- . .
11. Attempt and preparation.—(1) An attempt to commit 'a crime, is more than a mere
preparation and must be a move directly towards the commission of the crime. AIR 1961 Mad 498.
908 Penal Code Sec. J07

(2) Attempt to commit an offence, can be said to begin when the preparations are complete and the
culprit commences to do something with the intention of committing the offence and which is a step
towards the commission of the offence, the moment he commences to do an act with the necessary
intention, he commences his attempt to commit the offence. AIR 1961 SC 1698.
12. Act of several persons.—(l) Where the act is done by one of several persons in pursuance of
the common intention of several persons, the legal position is that each person must be held to have
committed the entire criminal act and can be convicted under S. 307 read with S. 34, if the .act done is
an attempt to murder. AIR 1978 SC 1604.
(2) The conviction of the accused was under S. 307/34, P.C. It was however found that there was
no prior enmity that the accused came at the spot together by chance and in an altercation that ensued
the victim was injured. On appeal it was held S. 34 will not apply and each accused would be liable
for what he did. 1984 CriLi 201. .
(3) When a number of persons armed with dangerous weapons lay in wait and one of the members
of the assembly caused-death but it could not be found who caused the death and it could not be said
that the common object of the accused persons was to cause death, it was held that this section did
not apply and that the case fell under S. 326 of the Code, read with S. 149 of the Code. A IR 1979
SC 1509.
(4) In the FIR there was absolutely no mention of the motive leading to occurrence—It was also
not mentioned in the F.I.R. that one of the accused was initially armed with a gun which he passed on
to the other and exhorted him to fire at the victim and alsothat the other two accused were armed with
lathis—Held it was highly improbable and strange that all the accused were lying in wait for the
complainant to arrive—Held conviction was liable to be set aside. 1982 UP Cri R 265.
(5) Assault taken in the phases—First phase restricted only to involvement of three accused
causing injuries to R and C—Death of R cannot be attributed to these three accused who made assault
on R at a lesser extent only at first phase of incident—Concerted assault on R proved common
intention for causing grevious hurt—Concerted assault on C with Pharsa and iron rods by accused
attributes to them similar common intention—They are liable to be convicted under Section 326/34 of
Penal Code and not under Section 307 ofPenal Code with respect to grevious hurt caused to R and C
by means of lethal weapons. (1984) 1 Crimes 392 (MP).
(6) Members of unlawful assembly armed with deadly weapons—Only one of them firing shots
resulting in injuries covered by Section 307—No proof that other accused used weapons during
assault—They were, still, liable to be convicted under Ss. 307 and 149—However, they did not use
their weapons was a mitigating circumstance—Their sentence was reduced to rigorous ' imprisonment
for two years. A IR 192 SC 59.
(7) Five members forming an unlawful assembly alleged to have attempted to murder the
complainant—Name of one of the co-accused not mentioned in the F.1.R.—No participation in the
act shown by him—Accused held, entitled to benefit of doubt and was acquitted. (1983) 2 Crimes
112 (MP). . .
(8) Where the evidence of the prosecution was thrown away with respect to the four acquitted
accused, the High Court threw away the same evidence with respect to the rest four accused who were
convicted under S. 307—Prosecution held failed to prove its case and the accused were acquitted. 1981
LuckLJ 47(50) (A ll). .
Sec. 307 Of Offences affecting the Human Body 909

(9) The fact that a large number of accused have been acquitted and the remaining who have beefl..
convicted are less than five cannot vitiate conviction under S. 149 read with the substantive offence if
there are other persons who might not have been identified or convicted but were party to the crime and
together constitute the statutory number. AIR 1974 SC 1567.
(10) Offence of attacking with sua, dang resulting in injuries sufficient to cause death proved
against two accused—Other accused acquitted—Prosecution case cannot be doubted though some of the
accused were acquitted and accused could be held guilty of offences under Ss. 307, 325, 323, 34. 1982
CriLi (NOC) 36
(11) Even though in a case under S. 307 read with Ss. 147, 379, accused was acquitted of offences
under Ss. 307 and 379 yet if the common object was proved, a conviction under S. 147 can be
sustained. 1981 BLJ 329.
(12) The deceased and accused persons A and B were abusing each other while drunk—The
deceased proceeded towards A with a stick and gave a blow on A's head—A retaliated in the heat of
passion, but without premeditation by firing one shot at the deceased and injured him—B, who was
also standing by, fired one shot at the deceased and injured him—Injuries resulted in the death of the
deceased, but it was not known who caused the fatal injury—Held that A's case fell under S. 308 as he
was entitled to the benefit of Exception 4 to S. 300 and hence if it was proved that he caused the fatal
injury the offence committed by him was only culpable homicide not amounting to murder—Held also
that B was guilty of an offence under this section for he was not entitled to the benefit of Exception 4 to
S. 300. A IR 1955 NUC (Peps. u) 3280.
(13) Offence under S. 307, P.C—Proof—Premeditated and unprovoked attack by several persons
on victims with deadly weapons and with persistent ferocity—Which individuals gave fatal blows need
not be proved—Conjoint complicity is presumed. 1982 A /ILl 519(523, 4525) : 1983 A ll Cri C 118.
(14) Two. assailants, were held, had inflicted three knife injuries on the victim. There was no
evidence as to who inflicted an injury on the abdomen of the victim. The possibility of the associate of
the appellant accused causing that injury could not be ruled out. There was no evidence, to show that
the appellant showed a common intention with his associate to cause grievous injury. The appellant
accused was therefore held guilty uls. 324 and not u/s. 307/34, P.C. 1982 UP (Cr) C 46(49) (A ll).
(15) Where two accused persons made attempt to murder K one inflicted injuries with lathi and
other with pharsa and their presence at place of incident was proved beyond doubt, they both had gone
to place of occurrence in furtherance of their common intention to murder K. It would be sufficient to
hold them guilty of an offence under S. 307, read with S. 34, of Penal Code notwithstanding fact that,
injuries caused by lathi were not fOund on person of complainant. (1984) 1 Crimes 214 (MP)
13 Burden of proof—Sufficiency of evidence.—(l) The burden is always on the prosecution
to prove first, the actus reus', that is, the act which, in point of law, marked the commission of the
offence and secondly the 'mens rea' that is the intention to go on to reach a definite objective which
would constitute a specific offence. 1979 UJ (SC) 281.
(2) In a case under S. 307, evidence of instigation was a weak type of evidence. (1983) 1 Crimes
420 (All).
(3) Where the version of the incident given by the eye-witnesses cannot, be relied then possibility
that the accused acted in self defence cannot be ruled out. (1983) 1 Crimes 671 (All).
(4) H was charged for attempting to kill his wife W by poisoning. In her statement recorded by
police officer W stated that H mixed some greenish powder in the milk and forced her to drink the milk
910 : Penal Code Sec. 307

by slapping across her face. The blood test of W revealed no trace of poison, but there were traces of
barbiturate a white substance, found in the urine of W. There was delay in recording statement of W
after she had recovered consciousness and the delay was not explained. Held, in the circumstances of
the case that prosecution had failed to establish its case beyond reasonable . doubt. 1983 .Raj CriC 388.
(5) Where in the course of a fight, the two accused inflicted upon each other injuries so serious that
in both cases their dying declaration had to be taken and there were no eyewitnesses to the occurrence
and in separate trials, the evidence in each trial consisted of the evidence of the complainant and the
admission of the accused that he himself had been injured in the occurrence, it was held that the
conviction of each for an offence under this section was bad; because if either of the persons had died of
the wounds, the other would be entitled to the benefit of Exception 4 to S. 300 and therefore the offence
would not be murder. The proper section applicable was S. 326. AIR 1925 Rang 133.
(6) Accused challenging the convictions and sentence under S. 307 of Penal Code and under S. 27.
of Arms Act—Accused inflicting. injuries with knife on the chest of the complainant—Doctor opined
that the injuries were grievous—Held that in the absence of relevant medical record and without
knowing the reasons which led doctor to give him opinion, it was not safe to hold that the injuries
inflicted by the accused were grievous. (1980) 82 PunLR (D) 71(73): 17 DLT297
(7) Prosecutrix, a near relative of accused raped and given 22 injuries on neck and other vital parts
of the body with a sharp edged weapon—Doctor's evidence corroborating said injuries and rape—
Testimony of victim could not be disbelieved only because she was prosecutrix—Accused convicted of
an offence of attempting to commit murder. (1983) 2 Crimes 641 (643) (Raj).
(8)Wherethe Investigating Officer did not care to send the ,un and its pellets to the ballistic
expert it cannot be with certainty that the accused had fired the gun the pellets of which hit the wall of
the complainant's 'padwa'. Held that the prosecution had not been able to bring home the guilt
against the accused beyond doubt and the accused was acquitted of the charge under S. 307. 1982
Rajasthan . Cri Cas 409
(9) Dark night—Accused identified merely from his voice—Conviction cannot be based on such
identification for an offence under S. 307. 1981 CriL] 1060.
(10) In spite of two gun shots injuries, the complainant managed to escape up to 1.5 furlongs and
ultimately fell in that field and there was no blood at that well or in the Way up to that field. Held,
prosecution failed to prove that the crime was.committed by the accused and that, he deserved to be
acquitted. 1.982 (UP) Cri R 104 (A ll).
(II) Where name of the accused was not mentioned before the police shows that the complainant
was not able to identify the accused. To base a conviction under S. 307 on such evidence is wrong.
1981 Cr1LR ('SC) 304.
(12) Evidence of eye-witness found convincing and is corroborated by FIR and one other witness—
Minor discrepancy in the FIR and evidence of witness, held, would not ., discredit his testimony and
conviction was upheld. (1983) 1 Crimes 717 (MP).
(13) Conviction of appellant under S. 307 based solely upon evidence of complainant and his
brother—Independent Witnesses turned hostile—Non-examination of independent witnesses is a
material circumstance and conviction cannot be based ' on their police diary statements—Conviction
was set aside. (1983) 2 Crimes 865 (MP).
(14) Where the conviction under S. 307 was based solely on two witnesses and they were found to
be interested% witnesses, benefit of doubt was given to the accused. 1981 Chand CriC 172 (Punj).
Sec. 307 Of Offences affecting the Human Body 911

(15) Accused were charged under Ss. 148 and 307, 149 P.C.—Prosecution give only t'o police
sub-inspectors .as eye-witnesses—No indepndent witness was produced. There was no corroboration to
the evidence of police sub-inspectors. The Court was not satisfied with the uncorroborated testimony of
police officers. Benefit of doubt was given and accused acquitted. 1981 UP CH C 35 (All).
(16) Where there was no corroboration to the sole testimony of the victim andother eye-witneses
who could corroborate him were not cited as they were not prepared to support the case of the
prosecution other witnesses were either inimical or interested, it was held that it was not proper to base
conviction u/s. 307 on the sole uncorroborated testimony of the victim. 1982 UP (Cr1) C 38 (All).
(17) Presence of eye-witnesses found doubtful and injured not examined—Non-examination of
injured held fatal and conviction set aside. (1984) 11 Cr1LT 61 (Pun))..
(18) Trucks loaded with rice going from Rajasthan to Gujarat—Despite efforts by police, trucks
did not stop—Police firing at the tyres of trucks and in return some one from the truck firing at police
causing injury to the elbow of a constable—Accused charged under S. 307/34—Held that the
prosecution evidence being vague conviction of accused was not justified. 1982 Raj Cr1 C 125.
14. Charge and con.viction.—( 1) Once it is found that the act done by a person was in furtherance
of the common intention of number of persons the legal position that results is. that each person 'must
be held to have committed the entire criminal act; and that, therefore, a charge for an offence under this
section read with Section 34 is sustainable in law. AIR 1985 SC 132.
(2) Complainant stating in FIR that he was shot by three persons, whose identification was done
by complainant after 1 .5months from date of incident—Evidence of witness, unreliable—Contradictory
statements made by complainant regarding the number of accused by increasing that to 5 with passage
of time—Conviction of accused under S. 307/34, not sustainable. (1984) 1 Crimes 428 (MP).
(3) Where the accused are charged for an offence under this section read with S. 34, one of the
accused can be convicted for an Offence under this section simpliciter' when no prejudice has been caused
to him by the absence of a separate charge for an offence under this section. (1973) 1 SCW 9 738.
(4) The, conviction of accused persons for an offence under this section read with Ss. 34 or 114 is
legal though they were charged only with offences u/ss. 304, 148 and 149 of.the Code. A IR 1924
Born 502.
• (5) Where the 'accused has been charged for an offence under S. 302 read with S.34, he cannot be
convicted for an offence under this section without a specific charge therefor. AIR 1948 Mad 293.
• (6) No infirmity about the appraisal of testimony of eye and prosecution witnesses , about the
complicity of accused in crime under S. 302 read with S. 34 P.C.—Conviction recorded under S. 307
read with S. 34 though specific charge was drawn under Section 302 against accused —Convicted
altered to S.302 simpliciter. 1983 A11LJ 1044.
(7) Where the material facts constituting the charge for an offence under this section have not been
stated in the charge., the conviction of the accused for an offence under S. 387 is bad. A IR 1960
MadhPra 11.
(8) The prosecution evidence showed that only one injury was inflicted by the accused-appellant
during the course of an altercation with the complainant, and if the injury caused had resulted in death
of the complainant, the accused could only have been convicted under S. 304, Part I. It was therefore
held that since the injury did not result in death of the complainant the accused can only be convicted
of the offence of attempt to commit culpb1e homicide punishable under S. 308 only and not under S.
307. 1982 Raj Cr1 C 167. , •
912 Penal Code Sec. 307

(9) Where evidence showed that accused A and D inflicted injuries on the victim on parietal side of
the head and were convicted u/s.. 323, P.C. then when one witness for the 'first time stated that accused
M inflicted injury on the victim on the same side M cannot be convicted under S. 307 but deserved to
be treated alike with others and convicted under S. 323 P.C. 1982 W LN (UC) 272 (Raj).
(10) Conviction of a desolate woman jumping into a well with her two children u/ss. 307 and
309—Release on admonition for offence u/s. 309 but imprisonment for offence u/s. 307—Distinction is
without valid reasons—Accused released on admonition for both offences. AIR 1981 SC 1776.
(11) A conviction for an offence under this section read with S. 149 can be converted, in appeal, to
one for an offence under this section read with' S. 34, when the common object charged and the
common intention are identical and the acëused is not prejudiced. A IR 1961 SC 1787.
(12) Though the accused is convicted for an offence under this section read with Section 149, if,
from the details given in the charge, an alternative charge for an offence under this section is permissible
then, the accused can be convicted for an offence under this section simpliciter. AIR 1968 All 49.
(13) In a case under S. 307/149, P. C. where all accused were college students between the age
group of 19-20, the Supreme Court altered the conviction to S. 324 and allowed the compounding of
the offence. AIR 1981 SC 1240.
(14) Upon a charge for an offence under Ss. 302, 362 and 364, the trial Court acquitted the accused
of the offence of murder but convicted him for offences under Ss. 362 and 364, it was held that the
accused was not liable for conviction under Ss. 362 and 364, but held that he could be convicted for an
offence' under this section even though he was not separately charged under it. AIR 1936 Oudh 44.
(15) A conviction for an offence under this section can be altered in appeal to one under S. 328.
A IR 1931 Pat 346
(16) Accused were charged under S. 307 for stabbing the injured with a knife in the abdomen.
Neither was the injury was opined as dangerous nor was the knife recovered. As the injury was not
found to be grievous the High Court altered conviction to S. 324, P.C. and as the accused when he
committed the Offence was about 20 years old High Court released him on probation. (/983) 2
ChandLR (Cri) 33 (Delhi).
(17) Accusedin 'a scuffle with policemen on duty caused them simple hurts while accused also
sustained injuries in the scuffle. On these facts a conviction under S. 307 held was not maintainable
and was altered to one under S. 332 & 34 P.C. (1982) 2 ChandLR (Cri) 291 (Delhi). -
15. .Sentence.—(l) It is only in exceptional circumstances that imprisonment for life should be
awarded for an offence under S. 307. It is crnly when in cases of heinous type the life of victim is saved
by sheer chance such sentence be awarded. 1984 Raj cr1 C 58.
(2) The question Of sentence would depend upon the facts of the particular case. Where an attack
was severe and unprovoked and the victim's hand has been maimed, a sentence Of 5 year's rigorous',
imprisonment was held not to be too severe. AIR 1923 Lah 236. -
(3) In .the case of a conviction under S. 307 it is bad in law for a Court to direct that the accused
when it had convicted should in no case be released till the accused has undergone a minimum period
of 25 years in jail. 1982 CriL.J 1762 (Born).
(4) The following facts may be taken into consideration while awarding the sentence: -
(a) that the accused was a man of advanced years ... weak mind and had contracted the morphia
habit. (1912) 13 Cr IL] 197 (Lah). -
Sec. 307 Of Offences affecting the Human Body 913

(b) that he was in a drunken state. (1965) 2 CriLi 158 (Orissa).

(c) that the matter was compromised by the parties. (1974) 1 Cr1LT 555 (Punj).
(5) The fact that the accused were in a position to pay some compensation to the injured can be
taken into consideration for determining the question of sentence. 1981 CriL.J 840 (842) (P & H)
(6) Where the accused fired shot at police party but no member of the police party was actually hit
by it, the sentence was reduced. 1982 CriLJ (NOC) 140.
(7) Sentence of rigourous imprisonment for three years and fine of Rs. 100 for an offence under S.
307, P.c was not severe. AIR 1979 SC 699.
(8) Accused had already served more than 7 years in jail. Accused was convicted under S..307 and
had caused injury no. 2 on the person of the victim. Sentence was reduced to period already undergone
while maintaining conviction under S. 307. 1979 Ui (SC) 281.
(9) On peculiar facts and circumstances of the case reduction of sentence to two years' R.I. held
would meet the ends of justice. AIR 1977 SC 1338.
(10) Where the accused was not a previous convict and there was nothing agai fl st his character and
antecedents and he was only 17 years of age at the time of occurrence his sentence of 5 years for an
offence under S. 307 was reduced to the period already undergone and his fine was raised from Rs. 500
and Rs. 5000.00 (1983) 2 ChandLR (Cri) 488 (Punj and Har).
(11) Murderous assault by accused on his own brother—Held, that in the interests of justice the
sentence should be reduced to one year, since a longer sentence would lead to renewal of old feud. AIR
1944 Pat 37.
(12) Where a person aimed his gun at another and tried to shoot him, but the gun went off and the
person was grievously wounded, it was held that the conviction for an offence under this section and S.
326 was not improper, but that only one punishment should be awarded. AIR 1937 Sind 61.
(13) Where the accused were punished for specific act which constitutes the object of the riot,. i.e.,
• S. 307, it. was held unnecessary in the circumstances of the case to convict them for rioting and S.. 148,
Penal Code both, though it might not be illegal. Theirconviction under S. .307/149, Penal Code, was
held sufficient. AIR 1952 Manipur 2. .
(14) Wherer the force or violence used in the offence under S. 307 constituted the unlawful
assembly a riotous assembly and the accused are convicted and sentenced u/s. 307 by reason of the
application of S. 149, there is no room for a separate sentence u/s. 147 or S. 248. AIR 1943 Sind 212.
16. Procedure.—(1) Complaint against accused persons including police Officer for offences under
Section 302, 326 and 307—Offence under Section 302 confined only against police officer—Cognizance.
of offence against police officer not taken for want of sanction—Prosecution for offences under Ss, 326
and 307 can proceed against remaining accused. 1981 CriLi 541.
(2) Where accused was convicted under S. 307 for causing injuries with a gun which was recovered
during investigation its (guns) confiscation wider S. 452 at the conclusion of the trial, is legal Ss.-4(2)
and 5 Cr.P.C. are not attracted. 1983 CriLJ.1511. ..
(3) Where the case was registered under S. 307, P.C. and before acceptance of the final report
submitted by the police, the informant had filed a protest petition and the Magistrate after considering
the same had passed the order that the ac.usedersons be summoned that part of the order whereby the
. Magistrate took cognizance was valid but as the case was exclusively triable by Sessions Court that
part of order which s)raightway directed summoning of the accused was not valid. 1983 Al/Li 254.
914 Penal Code Sec. 307

• (4) During an appeal against a conviction and sentence under S. 307, the record was burnt in a fire,
and could not be re-constructed and there were some loopholes in prosecution case, appellate Court
held would not confirm the conviction nor could a retrial be ordered. (1983) 1 Crimes 831 (All).
(5) Where the accused was convicted under S. 307 but the case record was burnt out beyond
reconstruction in a fire in the Court, though the incident took place 1 .1 years before, it was a.fit case for
retrial which can be ordered under S. 482 to serve the ends of justice. 1981 CriLi 67.
(6) Pr ocedure--Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of
Session, District Magistrate, Additional District Magistrate, Chief Metropolitan Magistrate or
Magistrate of the first class, specially empowered by the Government in that behalf (first paragraph)
District Magistrate or Additional District Magistrate specially empowered by the Government in that
behalf. Chief Metropolitan Magistrate (second paragraph); Court of Session (third paragraph).
17. Bail.—(1) Where the names of several persons charged under Ss. 302, 304 and 307 were
mentioned in the F.1.R and by the injured persons, and some of them were released on bail, it was held
that the others too should be granted bail except those persons against whom there was reasonable
ground for believing th they were guilty of an offence punishable by death. A IR 1969 Manipur 6
(2) When accused a liquor vendor who was found keeping liquor containing pyridine for sale
which was opined as unfit for human consumption, the accused would be entitled to bail as prosecution
did not positively urge that pyridine was poison. 1981 CriL] 461 (Punj).
(3) Conviction under S. 307—Sentence for imprisonment for four years and a fine of Rs. 400
imposed—Appeal not likely to be listed for hearing in the near future—Appellants in jail for seven
months—Appellants were granted bail by High Court. (1983)1 ChandLR (Cri) 143 (P & H.
(4) As many as 17 injuries found on the victim—All injuries simple—No injury recorded as
grievous—Application for bail granted by the High Court. 1981 LuçkLJ 261 (All).
(5) Informant as well as investigator, were not examined in a trial under S. 307/34. Held
Withholding of such witnesses had materially prejudiced accused. 1,984 CrILJ('NOC)95.
18. Juvenileoffenders..—(I) As to the applicability of the section to offenders aged 15 and 18..
A IR 1979 SC 1509.
19. Practice.---Evidence: Prove: (1) That the death of a human being was attempted.
(2) That such death was attempted to be caused by, or in consequence of, the act of the accused.
(3) That such act was done with the intention of causing death ; or that it was done with the
intention of causing such bodily injury as (a) the accused knew to be likely to cause death : or (b) was
sufficient in the ordinary course of nature to cause death ; or that the accused attempted to cause such
death , by , doing an act known to him to be so imminently dangerous that it must in all probability
cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for
incurring the risk of causing such death or injury.
20. Charge.—The charge should run as follows:
I (name and office of the Magistrate/Judge etc.) hereby charge you (name of the accused) as follows:
That you, on or about—at—did an act namely—with such intention or knowledge and under .such
circumstances that by that act you had caused the death of X, you would have been guilty of murder
(and that you thereby caused the hurt to the said X) and that you have thereby committed an offence
punishable under section 307 Penal Code and within the cognizance of this court..
And I hereby direct that you be tried oü the said charge. '
Sec. 308 Of Offences affecting the Human Body 915

Section 308
308. Attempt to commit culpable homicide.—Whoever does any act with such
intention or knowledge and under such circumstances that, if he by that act caused
death, he would be guilty of culpable homicide not amounting to murder, shall be
punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both; and, if hurt is caused to any person by such
act, shall be punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
Illustration
A , on grave and sudden provocation, fires a pistol at Z under such circumstances
that if he thereby caused death he would be guilty of cul,able homicide not amounting to
murder. A has committed the offence defined in this section.
Cases and Materials
1. Scope.—(1) This section is substantially the same as section 307 the only difference being that
this relates to an attempt to commit culpable homicide while section 307 relates to an attempt to
commit murder;
(2) A perusal of the provisions contained in S. 307 and 30 .8 show that they makes provijon for
punishment of an attempt to commit certain offence and that while S. 307 is linked with the offence of
murder punishable under S. 302, S. 308 is linked with the offence of culpable homicide punishable
under S. 304 Part 1. 1982 Raj Cr1 C 167. .
(3) This section and S. 307 are expressed in similar language and should bd interpreted in the
same way. AIR 1961 SC 1782. .
(4) This section applies to attempt to commit culpable, homicide not amounting to murder, S. '299
defines the offence of culpable homicide and S. 300 states in what cases culpable homicide is murder•
and in what cases it is not murder. Culpable' homicides not covered by S. 300 'secondly', 'thirdly' or
'fourthly', and culpable homicides so covered by falling within the exceptions to S. 300 are all
culpable homicides not amounting to murder. The illustration of this section does not warrant the
conclusion that the type of cases mentioned in the illustration is the only type of cases falling under
this section. A IR 1943 Nag 145. .
(5) X, deceased, and .A and B were abusing each other all in a state of drunkenness, X struck A on
the head with a stick A retaliated without, premeditation by firing at X, B standing by also fired a shot
at X, X died, but whether A or B caused the fatal injury was not known. It was held that A's case fell
under Exception 4 to S. 300 and that he was guilty under section of an attempt to commit culpable
homicide not amounting to murder. AIR 1955 NUC (Pepsu) 3280 (DB)..
(6) A and B inflicted two injuries on the head of X. Neither of the injuries was, by itself, likely to
cause death. It was not established which of the two injuries was caused by A, and which by B. The
two injuries together were likely to. cause death. Held that the Court could not consider the cumulative
effect of the two injuries and hold both the accused responsible for the offence under S. 308, of the
Code, but that they may both be convicted under S. 308 read with S. 34 or S. 1. 49 of the Code. AIR
1961 Raj 24.
916 Penal Code Sec. 309

' (7) Conviction of accused under Ss. 302/34 set aside due to doubt as to his participation in the
occurrence and use of gun by him—His conviction under S. 308. P. C. and 25, Arms Act has also to
be set aside: A IR 1983 SC 748.
2, ( I) That the accused did an act.
(2) That he did the said act (A) with the intention of (i) causing such bodily injury as is likely to
cause death, or (ii) causing death on—(a) grave and sudden provocation or (b) in the exercise of right of
private defence which was exceeded,r (c) believing in the lawful discharge of the public duty, or (d)
by consent of the deceased; or () with the knowledge that the act was likely to cause death.
3. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first Class (first paragraph); Court of Session, Chief Metropolitan
Magistrate, District Magistrate, Addl. District Magistrate or Magistrate of the-first class specially
empowered (second paragraph).
4. Charge.—The charge should run as follows:
I (name and office 'bf the Magistrate/Judge etc.) hereby charge you (name of the accused) as follows:
That you, on or about—at did an act, to wit . —, with such intention (or knowledge), and under
such circumstances, that if by that act you had caused the death of—, you would have been guilty of
culpable homicide not amounting to murder (and you caused hurt to the said—by the said act,) and
thereby committed an offence punishable under section 308 of the Penal Code and within the
cognizance of this court.
And I hereby direct that you be tried on the said charge by that court.

Section 309
.309. Attempt to commit suicide.—Whoever attempts to commit suicide and
does any act towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year, 8 [or with fine, or with both].
Cases and Materials : Synopsis
1. Scope. . . 5. Punishment.
2. "Attempts to commit sücicide." 6. Practice.
. Threat to commit suicide. . 7. Procedure.
4. Evidence and proof 8. Charge.
I. Scope.---(l) This is the only instance in which an attempt to commit an offence is punishable
but where actual commission cannot be punished. Attempts to commit suicide are of three classes:.—(a)
Persons who are driven to attmpt to commit suicide by real intent suffering either mental or physical.
Even instance of this kind should be treated according to its peculiar features; (b) Where suicide is
attempted in a moment of passion, with little or no reflection, and not very definite motive,
punishment, though not severe, should be inflicted; (c) Where the suicide partakes of the nature of
poison, severe punishment may be inflicted. .
(2) Attempt to commit suicide is made puiiishable under this section, but there is no provision in
the Penal Code making suicide itself and offence, obviously because there would be no offender who
could be brought within the purview of the law. (1911)12 CriLi 425 (Lah).

8. Subs, by the Indian Penal Code Amendment Act, 1882 (VIII of 1882), section 7, for "and shall also be liable to fine".

Sec. 309 Of Offences affecting the Human Body 917

2. "Attempts to commit suicide."—(l) An "Attempt" must be distinguished from "preparation."

It is the next stage after preparation and is a direct movement to the commission of the intended act.
Rat Un Cr C 188 (189).
(2) Mens rea, etc. involves some conscious effort to achieve a particular result. In order to
constitute attempt under this section the particular result intended to be achieved should be to destroy
oneself, 1963 MPLJ (Notes) 194.
(3) Where the accused jumped into well to avoid police and afterwards came out of the well of his
own accord, it was held he could not be convicted for an attempt to commit iuicide. (1912) 13 CriLJ
246.
(4) Where a woman, being driven almost frantic by prolonged labour pain, throws herself into a
well to take her own life, she will be guilty of attempting to commit suicide. AIR 1919 All 376.
(5) If a person openly declares that he will •fast unto death and then proceeds to refuse all
'nourishment until the stage is reached when there is imminent danger of death ensuing he would be
guilty of attempted suicide. AIR 1962 All 262.
(6) Where 'A' caused the death of his wife and also inflicted injuries on his person he would be
guilty of offences under S. 300 and S. 309. 1984 CriLi 124.
3. Threat to commit suicide.—(I) An attempt to commit suicide being an offence, 'it is clear that
suicide is an act forbidden by law. A threat to commit suicide. will therefore amount to 'coercion'
within S. 15 of the Contract Act. AIR 1969 Cal 293.
4. Evidence and proof.—(l) To base a conviction on circumstantial evidence, the evidence must
be such as to be incapable of any explanation except on the hypothesis of the guilty of the accused.
1979 W LN 445 (Pr 13) (Raj).
1.
(2) Where the accused categorically confessed that she had thrown children into well and she
herself jumped into it, and her confession was corroborated by the circumstance that she was taken out
of the well and by the recovery of dead bodies from well, , the accused was guilty of offences under S.
302 and S. 309. 1982 W LN (UC) 43 (Raj).
5. Punishment.—(l) The punishment prescribed by this section is either imprisonment extending
to one year, or fine or both. The law thus confers upon the Court a very wide discretion in the matter of
punishment. A IR 1934 Lah 514.
(2) It is not possible to lay down hard and fast rule in the matter of punishment but the court
must, in each case, consider the motive for the attempted suicide. A IR 1934 Lah 514.
(3) If from the circumstances in which the accused attempted suicide he is to be pitied rather than
despised, the punishment for such offence should not be severe. AIR 1967 Goa 138.
(4) Where a woman convicted under Section 309 and S. 307 has been released on admonition for
the offence under S. 309 she 'should also be released on admonition for the offence under S. 307. AIR
1981 SC 1776. . .
6. Practice.--Evidence—Prove: (1) That the act amounted to an attempt to commit suicide.
(2) That the attempt was complete by doing an act towards the commission of suicide.
7. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first or second class.
8. Charge.—The charge should run as ' follows: -
I, (name and office of the Magistrate)—Thereby charge you (name of the accused) as follows:
918 Penal Code . Sec. 310-311

That you, on or about the day of—, at—, attempted to commit suicide and did an act, to wit—,
towards the commission of it, and you thereby committed an offence punishable under section 309 of
the Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 310
310. Thug.—Whoever, at any time after the passing of this Act, shall have been
habitually associated with any other or others for the purpose of committing robbery
or child-stealing by means of, or accompanied with, murder, is a thug.
Cases
(1) This section defines "a thug" and S. 311 provides the punishment for being a thug: Constant
association by the accused with a gang which commits robbery or child stealing by means of or
accompanied by murder is sufficient to establish an offence under this section. It is not necessary that
the he must actually commit the act. 1881 Pun Re No. 28, Page 59.

Section 311
311. Punishment.—Whoever is a thug, shall be punished with '[imprisonment]
for life, and shall also be liable to fine.
Cases and Materials
I. Scope.—(1) Thugs are robbers and dacoits, but robbers and dacoits are not thugs. Thugs
committed robbery or dacoity or kidnapping always accompanied with murder.
(2) Habitual association with various persons, after passing of the Code, for the purpose of
committing robbery by means. of the administration of a preparation of dhatura, with admixture of
opium, amounts to being a thug within the meaning of S. 310 of the Code. 1881 Pun Re No.
28 P. 59.
(3) In these cases, whether any act is done or not or offence committed in furtherance of the
conspiracy, the conspirator is as such punishable; he will also be punishable separately for every offence
committed, in furtherance of the conspiracy. (1901) ILR 24 Mad 523.
2. Practice —Evidence—Prove: (1) That the accused was associated with other persons or persons.
(2) That such person, including the accused, were associated for the purpose of committing
robbery, or child-stealing, by means of, or accompanied with murder.
(3) That such persons were habitually associated for that purpose.
3. Procedure.—Cognizable----Warrant—Not bailable—Not compoundable—Triable 'by Chief
Metropolitan Magistrate. Additional District Magistrate of the first class specially empowered by the
government in that behalf.
4. Charge.—The charge should run as follows:
That you, on or about—at—, were a thug and you thereby committed an offence punishable under
'section 311 of the Penal Code and within the cognizance of this Court.
And I hereby direct that you be tried on the said charge
Sec. 3 1 Of Offences affecting the Human Body 919

Of the Causing of Miscarriage, of Injuries to Unborn Children, of the

Exposure of Infants, and of the Concealment of Births.
Section 312
312. Causing miscarriage.—Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of
saving the life of the woman, be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with both; and, if the woman
be quick with child, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.
Explanatiôn.— A woman, who causes herself to miscarry, is within the meaning of
this section.
Cases and Materials
1. Scope.—(1) This section may be read along with sections 52 and 39. The section deals with
the causing of miscarriage with the consent of the woman. The expression "with child" means
pregnant. Quickening is the name applied to peculiar sensations experienced by a woman about,the
fourth or fifth month of pregnancy. The expression "causing miscarriage" would include anything done
or given to a woman to procure abortion. Prevention of conception is not an offence.
(2) A woman is with child as soon as gestation begins. (1886) ILR Mad 369.
(3) "Quickening" is perception by the mother that the movement of the foetus has taken place or
the embroya has taken a foetal form. 1971 MadLW (Cr1) 240.
(4) The stage of "quickening" is more advanced stage.of pregnancy. AIR 1955 Mys 27.
(5) The section applies also to the pregnant woman herself who causes her own miscarriage.
(1886) ILR9Mad 369.
(6) The term 'miscarriage' is not difined in the Code. In its popular sense it is synonymous with
abortion and consists in the expulsion of the embryo or foetus i. e. the immature product of conception.
(1886) ILR 9 Mad 369.
(7) The expression "voluntarily causing a woman to miscarry" includes any act such as delivery of
medicine which causes abortion. Where the accused merely pledged the ornaments of the pregnant
woman and thereby raised money intentionally to aid and facilitate the miscarriage of the woman he
would not be liable under this section but could properly be charged with abetment of the offence under,
S. 312 read with S. 109 of the Code. (1909) 10 Cr1LJ 19.
(8) Administering a harmless substance which cannot cause miscarriage cannot be to be
an act towards the commission of the offence which is a necessary element in an attempt. A IR 1933
Cal 893.
(9) Acts of doctor and nurses which facilitate or accelerate delivery cannot be treated as offences
under this section merely because the delivery would have otherwise been delayed and particularly
where the child is born alive and no injury is caused to the mother or the child. AIR 1955 Mys 27.
(10) Where a woman almost frantic by pains of prolonged labour attempted to take her own life
and in so doing gave birth to a dead child, it was held that she was guilty of attempting to commit
suicide but not of attempting to voluntarily cause miscarriage. A IR 1919 A ll 376
920 Penal Code Sec 313
(II) Where the allegation was regarding offence of accusing miscarriage of a child the date of
alleged adultery was not of much importance as causing miscarriage is an offence. Hence non-
mention of the date of adultery in the complaint under S. 312 is of no much significance. (1984) 88 =
Cal W N325.
2. Practice.—Evidence—Prove: (1) That the woman was with child; or (if under the second
clause) that she was quick with child.
(2) That the accused did some act likely to cause a miscarriage.
(3) That she did so voluntarily.
(4) That such woman did miscarry in consequence.
(5) That such miscarriage was not caused in good faith in order to save the. woman's life.
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class (first paragraph); Court of Sessions.
Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or Magistrate of the
first class specially empowered (second paragraph).
4. Charge.—The charge should run as folIows
1, (name and office of the 'Magistrate/Judge etc.,) hereby charge you (name of the accused) as
follows
That you, on or about the—day of—, at—, voluntarily caused (name of the woman) then being'
with child to miscarry, such miscarriage not being caused by you in good faith for purpose of saving
the life of the said—, and you have thereby committed an offence punishable under section 312 PC and
within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 313
313. Causing miscarriage without woman's consent.—Whoever commits the
offence defined in the last preceding section without the consent of the woman,
whether the woman is quick with child or not, shall be punished with '[imprisonment]
for life, or with imprisonment of either description for a term which may extend to ten
- years, and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) This:section may be read along with sections 90 and 312 PC. This section deals
with a case where the miscarriage is done without the consent of the woman.
(2) PW 2 Hosne Ara deposed in court that the accused Abul Kalam developed camel relation with
her against her will as a result of which she was carrying a baby but the accused Kalam and others took
her to a doctor and caused her miscarriage and delivery of six months' old dead baby which was
corroborated by the medical , certificate and the evidence of PWs l, 5 and 8 and hence the charge under
section 313 of the Penal Code is proved beyond all reasonable doubt against the convict appellant Abul
Kalam Gazi when the other four convict-appellants are entitled to be acquitted. A bul Kalam & others
Vs. State (Criminal) 5 BLC 270: . . .
(3) The Sessions Judge cannot direct the Magistrate to take cognizance of the offence and the
impugned order so far it relates to such direction is set fis.ide and quahed. A bdul Rouf and others Vs.
Stare and another' (Criminal) 5 BLC 178.
Sec. 314 Of Offences affecting the Human Body 921
2. Practice.—Evidence—Prove: (1) That the woman was with child;
(2) That the accused did some act to miscarry was caused;
(3) That he did so voluntarily;
(4) That as a result miscarriage was caused;
(5) That he did not do so in good faith in order to save the woman; and
(6) That the woman did not consent to such abortion.
3. Procedure.—Not cognizable—Warrant---- .-Not bailable—Not compoundable—Triable by the
Court of Session.
4. Charge.—The charge should run as follows:
1, (name and office of Judge) hereby charge you (name of the accused) as follows:•
'That you, on or about the—day of—, at—voluntarily caused X (name of the woman) then being
with child to miscarry withoUt her consent, such miscarriage not being caused by you in good faith for
the purpose of saving the life of the said woman X afOresaid and thereby committed an offence
punishable under section 313 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 314
• 314. Death caused by act done with intent to cause miscarriage.—WhOever,
with intent to cause the miscarriage of a woman with child, does any act which causes
the death of such woman, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine;
If act done without woman's consent —and, if the act is done without the
consent of the woman, shall be punished either with '[imprisonment] for life, or with
the punishment above-mentioned. •.•
Explanation —It is not essential to this offence that the offender should know that
the act is likely to cause death.
Cases and Materials
I. Scope.-.—(1) This section provides for the case whore death has occurred in causing miscarriage.
The first part of the section deals presumably with cases where the woman has consented to miscarriage
being effected. The second part of the section, however deals .with a case where the act is done without
her consent. Consent may be expressed or implied. This section may be read along with section 90 of
this Code.
(2) A conviction under this section cannot be based on the uncorroborated testimony of an
accomplice. (1970) 74CaIW N 378.
'. (3) Where medicine was administered in - the womb of a woman with child to induce abortion and
there was enough medical evidence to pove that the woman died due to : shock and severe clostridial
infection producing jaundice as a result of the medici ne,: it was held that the offence was proved and that
non-preservation of uterus and its fluid for chemical analysis did not at all create any suspicion about
the cause of death. 1972 CriLJI4S8(Mad).
. : .• .
(4) Where there is no proof that the death was the result of the miscarriage, the offence of causing
the miscarriage would fall under S. 313 and not this section. 1979 KerLT 550.
922 Penal Code Sec. 315
(5) Where the appellant was charged and tried for the offence of abetting R to cause abortion of the
child in the womb of the deceased but was convicted only for abetting the deceased to cause
miscarriage, it was held there was prejudice to the appellant inasmuch as he was not notified, that he
was to meet the charge of abetting the deceased and the conviction of the appellant was set aside also
on the ground that the charge of abetment failed when the substantive offence against the principal R
was not established. A IR 1970 SC 436.
(6) Where the death was the result of miscarriage, but after considering the peculiar circumstances
of the case viz, the accused being the father of victim must have suffered from a real sense of disgrace
when he came to know that his unmarried daughter was running illicit pregnancy and had he taken the
victim to some Govt. hospital recognised by some Act he could not be put up for trial, but was facing
trial on account of getting abortion by crude method and also considering the mental torture of the loss
of his own daughter suffered by the accused the sentence of five year's R. I. was reduced to 18 Months
R. 1. 1981 LuckL.J 7.
2. Practice.—Evidence—p rove: (1) That the woman was with child.
(2) That the accused did an act to cause miscarriage.
(3) That he did so with that intention.
(4)That such act caused the death of woman.
(5)
That such act was done by the accused without the consent of the woman.
3. Procedure.—Not cognizable—Warrant_- . ot baliable—Not compoundable—Triable by the
Court of Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered (first paragraph) or Court of Sessions (second
paragraph).
4. Charge.---The charge should run as follows:
1; (name and office of the Magistrate/Judge etc.) hereby charge you (name of the accused) as
follows: .
That you, on or about the--day of—, at—, with intent to cause the mjscarriage (name of the
woman) did certain act to wit -, which caused the death of the said—, and thereby committed an
offence punishable under section 314 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by the said court on the said charge.

Section 315
315. Act done with intent to prevent child being . born alive or to cause it to
die after . birth.—Whoever before the birth of any child does any act with the
intention of thereby preventing that child from being born alive or causing it to die
after its birth, and does by such act prevent that child from being born alive, or causes
it to die after its birth, shall, if such act be not caused in good faith for the purpose of
saving the life of the mother, be punished with imprisonment of either description for
a term which may extend to ten years, or with fine, or with both.
Cases and Materials
.1. Scope.—(l) In Bangladesh, abortion or any Other act described in this section can be
committed with impunity only to save the life of the mother. The offence which this section punishes
is the injury to the child's life.
Sec. 316 Of Offences affecting the Human Body 923
(2) Where there was no evidence to show any act or omission on the part of the child after its birth
but charge under S. 315 could not be framed against the accused. 1982 CrILJ27.
(3) Prosecution for cheating—Plea of civil liability—The sum and substance of the complainant's
case is that the accused realised a total sum of 1k. 50,000.00 from the complainant on a promise to
secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of
his application under section 561A CrPC was that the liability, if any, was of a civil nature for which
no prosecution would lie. Since, according to the petition of complaint, the accused totally denied
receipt of any sum from the complainant, the question of civil liability does not arise. A bdur Rahim
Vs. Enamul Haq 43 DLR (AD) 173.
2. Pract jce.—Evidence_prove: (I) That the woman was with child.
(2) That the accused did an act before the child was born.
(3) The he did so to prevent the child from being born alive or to cause it to die after its birth.
(4) That such act was done by the accused with that intention.
(5) That such act wa not done in good faith to save mother's life.
(6) That the child was born dead or died after its birth.
(7) That such death was caused by the aforesaid act of the accused. .
3. Procedure.—Not cog nizable—Warran ..... o bailable—Not compoundable—Triable by Court
of Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrte of the first class specially empowered.
4. Charge.—The charge should run as follows:
I, (name & office of the Magistrate/Judge etc.) hereby charge you (name of the accused) as follows:
That you, en or about the—day of—, at—, did an act, twit—, to— (name of the woman) before
the birth of her child with the intention of thereby preventing that child from being born alive (or
causing it to die after its birth), and by that act did prevent that child from being born alive (or cause it
to die after its birth) and the said act was not done in good faith for the purpose of saving the life of the
mother, and thereby committed an offence punishable under section 315 of the Penal Code and within
the cognizance of this court.
And I hereby direct you be tried by this court on the said charge.

Section 316
316. Causing death of quick unborn child by act amounting tq culpable
homicide.—Whoever does any act under such circumstances that if he thereby caused
death he would be guilty of culpable homicide, and does by such act cause the death of
a quick unborn child, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine,
Illustration
A , knowing that he is likely to cause the death q.f pregnant woman, does an act which.
if it caused the death of the woman, would amount to culpable homicide. The woman is
injured but does not die; but the death of an unborn quick child with which she is
pregnant is thereby caused. A is guilty of the offence defined in this section.
I
924 S Penal Code I

Sec. 317

Cases and Materials

Scope.—(I) This section punishes the causing of death of a quick unborn child by an act
amounting to culpable homicide. If a person strikes a pregnant woman and thereby causes death of her
quick unborn child, he will be guilty of the offence defined in this section, if the blow was intended by
him to cause the woman's death or was one which he knew or had reason to believe to be likely to
cause it. Where the accused is sentenced under section 302 for causing death of a pregnant woman, even
if a separate conviction under section 316 is not objectionable, separate punishment therefore offends
against section-71 PC.
(2) In order to constitute offence underthis section it must be proved that such act did cause the
death of quick unborn child. The unborn child should already have been quick inside the womb of the
mother. (1970) 36 Cut LT 711.
(3) From the act of the accused, it must be possible to state that he had the necessary mens rea
which renders him liable for punishment for culpable homicide. Such an act must result in the death of
a quick unborn child. Then this section is attracted. 1971 Mad LW (Cri) 240.
(4) In order to constitute offence under this section the act complained of must be done with the
necessary intention or knowldge which is specified in S. 299 P. C. Merely because the death of the
quick unborn child has resulted, the act would not amount to an offence under this section; the accused
must be shown to have acted under circumstances from which it can be inferred that he had the
necessary intention or knowledge to cause death of the victim of his assault and which would amount
to the offence of culpable homicide. AIR 1966 All 590.
(5) If the act of the accused does in fact result in the death of the victim then the offence committed
will be something else.AIR 1953 Tray-Co 374.
(6) Separate pünishthent for offences under Ss. 302 and 316 will offend the provisions of S. 71.
A IR 1953 Tray-Co 374.
2. Practice.—Evidence—Prove: (I) That the woman was quick with child.
(2) That the accused did an act to cause the death of the child.
• (3) That the circumstances under which theaet was done were such as to make the accused guilty
of culpable homicide if death had been caused.
S. (4) That such act caused the death of the quick unborn child:
3. Procedure.—Not cognizable—Warrant—Not bailable—Not compoundable—Triable by the
Court of Session,
4. Charge.—The charge should as run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
• That you on or about the day—of—, at—, did act, to wit—, under circumstances that if you
thereby caused death, you would be guilty of culpablehomicid, and did by such act cause the death of
a quick unborn child, and you thereby committed an offence punishable under section 316 Penal Code
and within my cognizance. . .
And I hereby direct you be tried by this court on the said charge.

Section 317
317. Exposure and abandonment of child under twelve years, by parent or
person having care of it.—Whoever being the father or mother of a child under the
Sec. 317 Of Offences affecting the Human Body 925

age of twelve years, or having the care of such child; shall expose or leave such child in
any place with the intention of wholly abandoning such child ., shall be punished with
imprisonment of either description for a term which may extend to seven years, or
with fine, or with both.
Explanation. —This section is not intended to prevent the trial of the offender for
murder or culpable homicide, as the case may be, if the child die in conseqtience of the
exposure
Cases and Materials
• 1. Scope.—The offence under this section may be done by parents of bastard children or patents in
distress and the gist of the offence is the exposure or leaving of such child in any place with the
intention of abandoning it. In other words it is the desertion of the child by persons bound to support
and protect it or by one who has taken up on himself the duty of protecting it eitb .er by adoption or
otherwise (18 CriLJ 98). There must be an intention of wholly abandoning the child. Where a mother
exposed an infant child liowing that such an abandonment by her was likely to cause its death and the
child died, it was held that section 304 PC and not section 317 would apply.
(2) This section is meant to protect children below 12 years of age who are unable to take care of
themselves. Abandonment and exposure of such children by their patents or by persons under whose
care they are have therefore been made penal. (1871) 16 SurhW R 12(12) (DB).
(3) Where a woman immediately after giving birth to an illegitimate child threw it into a thorn-
bush and concealed the act without showing any solicitude for the child, she was held guilty under this
section. A IR 1914 Upp Bur 22.
(4) This section applicable only where child is exposed alive. If the child is dead or if the person
exposing remains with the child till it is dead or if the person exposing murders the child and then
leaves its body, a case under this section is not made out, but the case may -fall under S. 302 or 304 of
the Code as the case may be. A IR 1951 Raj 123.
(5) A person who receives the child from the mother on condition of her not desiring to have it
back must be deemed to be a person having care of the child, until he entrusts it to some other person
or institution. If the person so receiving the child abandons or exposes it he will be guilty under this
section though his custody of the child may have been only temporary or for a short period. If the
mother had handed over the child for abandonment she will also be liable under this section read with
S. 109 of the Code. A IR 1916 Born 135.
- (6) In order to constitute offence under this section the intention must be to wholly, abandon the
child: A temporary neglect of or separation from the child is not sufficient. A IR 1920 Nag 181.
(7) The section does not cover a case where, the child is -left in the care or custody of a person.
1970 CurLJ 625.
- (7) Where a pregnant widow who was travelling by train had labour pains at the station, went to
the close-by public latrine on the platform delivered an illegitimate child and returned to the adjacent
bridge for rest it was held that her conduct was consistent with innocence and she was given benefit of
doubt. A IR 1920 Nag 181.
2. Practi ce.—Evidence—Prove: (1) That the child is under twelve years of age.
(2) That the accused is the father or mother, or the person having the care of that child.
926 Penal Code Sec. 318
(3) That he exposed or left such child at the place in question.
(4) That he so exposed or left the child with the intention of wholly abandoning it.
3. Procedure.—Cognizable—Warrant---Bailable---Not compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I. (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, being the father (or mother or having the care of acertain) child under the age of twelve
years, to wit—of the age of years, did expose or leave the said child in a certain place, to wit—with the
intention of wholly abandoning the said child, and thereby committed an offence punishable under
section 317 of the Penal Code, and within the cognizance of this court.
Andl hereby direct that you be tried by this court on the said charge.

Section 318'
318. Concealment of birth by secret disposal of dead body.—Whoever, by
secretly burying or otherwise disposing of the dead body of a child whether such child
die before or after or during its birth, intentionally conceals or endeavors to conceal the
birth of such child, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Cases and Materials Synopsis
1. Scope. 7. Charge and conviction.
2. Dead child. 8. Pyoof.
3. Endeavour to conceal. 9. Practice.
4. Intentionally. 10. Procedure.
5. Concealment—Illustrative cases. 11. Charge.
6. Secret disposal.
1.Scope.—(l) This section is designed to punish a person for intentionally concealing the birth of
the child from the public. It punishes a person for secretly burying or otherwise disposing of the dead
body of the child and so intentionally concealing or endeavouring to conceal the birth of a child is not
concealed from the world at large, no offence under section 318 is made Out (AIR 1935 Cal 489).
(2) Concealment or endeavour to conceal must be by secretly burying or otherwise disposing of the
dead body. 1960 MPLJ (Notes) 227.
(3) The words "whether such child" show that it is not necessary that the child should have been
born alive. (1889) 2 CPLR 153.
(4) The section contemplates that the child must have reached such a stage of development and
maturity that it may be born alive and be capable of living. (1906) 3 CriL.J 432.
(5) The concealment of the birth of the foetus after reaching stage where it has assumed human
shape would be an Offence under this section. (1892) 5 CPLR 21.
2. Dead child.—(1)The child in relation to which the offence is committed should have been
dead at the time of concealment. 1973 RajLW 684.
(2) Where the body of a newborn child was found thrown in an open pit and the evidence was
conflicting as to whether it was alive if dead at the time it was so thrown the Court held that the case
Sec.' 318 Of Offences affecting the Human Body 927

should be considered as falling under this section and not under Section 302 which would have been
applicable if the child had been alive when it was thrown in the pit. (1906) 3 CriLi 317.
3. Endeavour to conceal.—'(l) The word "endeavour" has been understood as meaning the same
thing as "attempt." (1895) 8 CPLR (Cri) 5.
4. Intentionally.—(1) The intention to conceal or endavour to conceal the. birth is a necessary
ingredient of the offence under this section. 7905) 2 CriLJ 667 (Nag)
(2) Where there is no such intention to conceal the birth of the child the fact that the body was
disposed of secretly will not constitute an offence under this section. (1895) 8 CPLR (Cr) 5.
5, Concealment----Illustrative cases.—( 1) Where the birth of the child is not concealed from the
world at large no offence under this section. is made out. 1960 KerLJ 1497.
(2) Merely disclosing the fact of the birth to some confident and the latter disposing of the dead
body secretly, will not absolve the accused of the penal liability under this section. AIR 1955 Ca! 489.
(3) Where the birth of twins took place in the hospital which was known to the nurses who
attended the delivery ancLalso to others in the hospital, and was also known to two women whom the
nurses tried to persuade to adopt the children and another relative of the woman (also charged) knew
about the birth, it was held there was no concealment within the meaning of this section. A IR 1935
Cal 489.
(4) Where the evidence does not show that there was any concealment or that there was an
endeavour in that direction one of the most important ingredients of this offence is not established.
1959 NagLJ (Notes) 40.
6. Secret disposal.—(I) In order to constitute an offence under this section, there must be a secret
disposal whether of a permanent or of a temporary character of the dead body: (1900) 13 CPLR (Cr)
188. . . . . .
(2) Mere intention without the act giving effect to her intention will not amount to an offence under
this section. 1960 MPL.J (Note) 227 page 78.
(3) Leaving the dead body of child in a public place near a number of houses does not amount to
ecret disposition of the body within the meaning of this section; (1913) 14 Cr1LJ 525 (La/i).
7. Charge and conviction-41) Where the prosecution seeks to prove both the offences of murder
and concealment of the birth of the child by secretly disposing of the dead body to the child, charges
should be framed under two heads and not in the alternative and when the accused is found guilty of
both the offences, he should be convicted under both S. 302 and this section and not in the alternative.
AIR 1941 Pesh 22.
(2) An accused charged under S-318 read with S. 34 may be convicted under S. 318 simpli.citer
where no prejudice to the accused is caused. 1972 A/ILl 958(963).
8. Proof.—(l) In order to convict a woman of attempting to conceal the birth of her child, the
dead body must be found and as that of the child of which she is alleged to have been delivered. AIR
1935 Cal 489.
(2) The same evidence which has not been believed for an offence of murder should not be relied on
for an offence under this section where there is no eye-witness who can depose to the fact that the
accused came to the place of concealment and secretly buried the body of the child there. A IR 1953
IvfadhB224 (224): 1953 CriL.J 1383..
928 Penal Code Sec. 319

(3) If a conviction is to be based solely on the statement of the accused it is fair that the statement
should be taken in its entirety. (1911) 12 Cr1LJ 142 (142) (DB) (Mad).
(4) Where the evidence points to a disposal (though not secret) of the dead body, by the father of
the girl, who gave birth to an illegitimate child, but there is no direct evidene against the girl, she
should not be convicted for an offence under , this section. 1958 All WR (HG) 761(764).
(5) Where the conduct of the girl in trying to conceal the birth of the child Is capable of a number
of explanations which might be the offspring of an innocent intention , the mere fact that she
subsequently tried to conceal the birth of the child would not be enough to bringthe charge home to
her. 1958 A11LJ 703. . .
(6) Where the accused a teenage tribal girl was convicted for off'ence under S. 318 but no witness
deposed to have seen the accused carrying or giving birth to child or wrapping and concealing it, nor
there was any compact by accused of any pain in her, private parts during, medical examination
indicating recent delivery and her judicial confession was also not voluntary, her conviction would not
be sustained in spite of plea of guilty with prayer for clemency as the same might, be result of plea
bargaining by someone 1981 CriLJ 522 (Gauhat,)
(7) Death of new born child—Accused found with dead body—Statements of chance witnesses
regarding recovery of child—Not reliable—Conviction of accused u/s 318--- m-Invalid. 1982 CriLi 27
9 Practice—Evidence—Prove (I) That there was the birth of the ch4.—'
(2) That the child die I either ,before, during, or after its -birth. . . .• . .
(3) That the accused buried or otherwise disposed of the dead body. . ..
(4) That such burial or disposal of the body was secretly done. ...
(5)"That the accused thereby intentionally concealed, or endeavored to conceal, the birth of such
child.
10. Procedure.—Cognizable—Warrant—Bailable—Not compoundable—Triable by any
Magistrate.
11 Charge —The charge should run as follows
1, (name and office of the Magistrate) hereby charge you (name-of the accused) as follows:
That, you, on or about--day of—, at—, by secretly biirning the death body of a certain child, to
wit—, the child of XY, intentionally concealed (or endeavoured to conceal) the birth of the said child
and thereby committed an offence punishable under section 318 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried by this court on the said charge.

Of Hurt
Section 319'
319. Hurt.—Whoever causes bodily pain, disease or infirmity to any person is
said to cause hurt. -
Cases
1. Scope.--(I) Sections 319 and 338 deal with hurt in various forms. This section defines hurt as
causing bodily paiti, disease, or infirmity and. section . 351 'deals with the smallest offence connected
Of Offences affecting the Human Body 929
Sec. 320
with infliction of bodily injury or harm so slight that no person of ordinary sense and temper would
complain of it, is excluded by section 95 Severe bodily pain will fall within the definition, no matter
whatever may be the duration of such pain. Hurt need not be caused by direct physical contact between
accused and the victim. Serious mental derangement by causing shock amounts to hurt. Where the
accused, with intent to frighten victim, presented himself in a sudden and horrified manner, intention to
cause hurt can be presumed (AIR 1944 Sind 19)The term infirmity is used to denote the inability of an
organ to perform its normal function .which may be temporary or permanent (26 CrLJ. 413). Where a
husband caused hurt to his wife by giving a blow with a stick it was held that the husband was liable
for causing hurt to his wife.A husband has no right to punish his wife by beating her for imprudence
and impatience (37 CrLJ 1153).
(2) Causing hurt and "using force" are not the same thing and the word force does not appear in
the definition of "hurt." The use of criminal force may fall, short of causing bodily pain in which case it
will not amount to "causing hurt" within the meaning of this section, but will be a separate offence.
AIR 1928 Mad 18. . .
(3) The offence of causing hurt cannot be said to be included in the offences involving the use of
criminal force, such as rioting (1937) 38 CriLJ 442 (Nag).
(4) To constitute hurt injury need not be received by physical contact. If bodily pain is caused by
some voluntary act, a hurt is caused. 1970 RajLW 135.
(5) Causing of bodily pain is sufficient to constitute offence of hurt under this section. It is not
necessary that any visible injury should be caused on the person of the victim. AIR. 1967 AndhPra 206.
(6) Where a person was dragged by hair and fisted, it was held that hurt was caused irrespective of
the fact whether any visible injury Was caused to the victim thereby. A IR 1967 A ndhPra 208.
(7) The term "infirmity" has been interpreted by judicial decisions to mean inability of an organ to
perform its normal function which may'either be temporary or permanent. AIR 1924 All 215.
(8) Infirmity denotes an unsound or unhealthy state of the body and clearly a state of temporary
mental impairment or hysteria or terror would constitute infirmity within the meaning of this section.
AIR 1944 Sind 19. .
(9) There is nothing in this section to suggest that hurt should be caused by direct physical
contact between the accused and his victim. A person causing serious mental derangement by some
voluntary act causes hurt; for instance, a person who deliberately sets out to cause a shock to a person
with a weak heart and succeeds in doing so causes hurt. AIR 1944 Sind 19.
(10) Where poisonous drug is administered to another with the result that the person to whom the
drug is administered is thrown into a delirium with the possible risk of falling into a coma and
becoming unconscious for the time being it is clear that both bodily pain and infirmity are caused. AIR
1924 All 215. ..

Section 320
320. Grievous hurt.—The following kinds of hurt only are designated as
"grievous"
First. —Emasculation.
Secondly.— Permanent privation of the sight of either eye.
Thirdly.— Permanent privation of the hearing of either ear.
930 Penal Code Sec. 320
Fourthly.—Privation of any member or joint.
Fifthly.— Destruction or permanent impairing of the powers of any member or
joint.
Sixthly.—Permanent disfiguration of the head or face.
Seventhly. —Fracture or dislocation of a bone or tooth.
Eight hly.— Any hurt which endangers life or whióh causes the sufferer to be
during the space of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.

Cases and Materials Synopsis -

1. Scope. 5. "Fracture or dis(ocathm of bone or tooth"-
2. Grievous hurt caused to onese'f - Clause sevenlhly
3. 'Emasculation 11.
6. "Hurt which endangers life" etc. Clauses
elghthly.
4. "Disfiguration "—Clause sixthly.
7. Medical evidence as to nature of hurt.
1. Scope.—(l) This section defines grievous hurt. Only those injuries are grievous hurt which
have been specifically stated in this section. Eight kinds of hurt are designated in the section. and they
are defined as grievous and the class , if cations are not exclusive or exhaustive. Injury to the nerves is
not covered by any one of these eight conditions which are necessary in order to designate a hurt as
grievous (PLD 1960 W P Lahore 62). Similarly, injuries inflicted with the help of a burning firewood
cannot be considered as grievous hurt as they do not come within the specific items of the injuries
mentioned in the definition of grievous hurt. The meaning of "fracture" is breaking and on the question
whether the crack of the bone should extend to the inner surface also, there is conflict of judicial
opinion (38 CrLJ 1960).The term "member" as used in the Code means a limb or an organ being a
part of man capable of performing a distinct offence. As such it may include eyes, ears, nose, mouth,
hand and feet. It is the privation of any of these limbs or organs or the destruction or permanent
imprisonment of their powers that has been made punishable asgrievous hurt under the Code (1971 P
CrLf 1075). Injuries inflicted by a sharp edged Weapon on the head, neck, chest and abdomen are
always regarded as dangerous to life. Injuries inflicted on other parts of the body such as forearm even if
it becomes fatal may fall only under this section and not under murder or culpable homicide not
amounting to murder (40 CrLf 308). Before a conviction can be had for an offence as defined under
section 320, one of the injuries defined in this section must be strictly proved. The court should come
to a finding of its own as to whether the hurt was grievous or simple. The court can examine medical
officer to ascertain whether the injuries are of any of the kinds mentioned in section 320. Where the
complainant had not proved that he had remained in severe bodily pain for 20 days or that he was not
in a position to follow his ordinary pursuits, his merely remaining in the hospital for 33 days does not
mean automatically that he is unable to follow his ordinary pursuits unless a statement to that effect is
made and it is supported in that respect by the doctor. Proof of mere residence in hospital for 20 days is
not conclusive evidence: The term 'emasculation' means depriving a person of masculine vigour.
castration. Injury to the scrotum would render a man impotent. A person emasculating himself cannot
be convicted under this section. The word 'disfigure' in this section means to do a man some external
injury which detracts from his personal appearance, but does not weaken hiinas the cutting off aman's
nose or ears. .
See; 320 1 . Of Offences affecting the Human Body 931
(2) The expression "grievous hurt"—Explained if any injury endangers. life, it is also a grievous
hurt. The complainant while returning from field was suddenly attacked by the petitioners who
assaulted him mercilessly causing as many as five injuries with sharp cutting weapons on different parts
of his body. Filing of a pre-emeption case by the complainant against the petitioners was proved to be
the motive of the crime. The charge was proved on the basis of the evidence of 11 witnesses for the
prosecution including two Medical Officers. The petitioners were convicted by the trial Court u/s.
326/34, PC and sentenced to five years' rigorous imprisonment. On appeal their conviction was altered
to that u/s. 324/34 of the Penal Code and sentence was reduced to three years' rigorous imprisonment.
The conviction was altered by the High Court Division just on a technical ground that is, there was a
discrepancy in the evidence of Medical. Officer Of the Thana Health Complex, who gave him treatment
earlier. Observ&d—The complaint has stated that he has given treatment in the hospital for 26 days,
but in the discharge certificate the period has been stated to be 16 days, but his certificate was given
five months, after the treatment. Whereas in the earlier certificate given by him the normal course Of
discharging his function 30 days' time was mentioned including 15 days for complete rest. This
witness was declared hdstile by the prosecution. The High Court Division taking the view that the
complainant's evidence as to 26 days' treatment in hospital did not corroborate, altered the conviction
to remain on the safe side. Held:—It may be further mentioned that "bodily pain for 20 days or a
person's inability to attend to his normal work during this period, as referred to in Sec. 320 of the
Penal Code, is not the only requirement of brining a hurt within., the definition of "grievous hurt." If
any injury endangers life it is also a "grievous hurt." The question should have been approached from
this angle also. Be that as it may, the altered conviction is being challenged now on the ground that no
charge was framed u/s. 324 but the charge framed was u/s. 307 of the Penal Code. We find no illegality
in convicting the petitioners u/s. 324 of the Penal Code though he was charged u/s. 307 of the Penal
Code. The sentence is also not severe A bdul Gafur & anr. Vs. The State, 5 BSCD 43:
(3) There is no evidence that any of the injuries endangered the life of any of the victims. There
was no fracture, the victims were discharged from the hospital after treatment of several days. There is
no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days unable to
follow his ordinary pursuits. So the conviction under sections 326 and 325 of the Penal Code is not
proper and legal. Baziur Rahman Howlader alias Jitu and 3 others V s. State represented by the
Deputy Commissioner 51 .DLR 457.
(4) Although the doctor deposed that the injuries he found were grievous in nature but those
injuries are not grievous as contemplated under section 320 of the Penal Code. A minul Islam alias
Ranga and others Vs. State (Criminal) 5 BLC (A D) 179.
(5) PW 2, the Medical Officer, examined injuries and issued medical certificates. But while
deposing in court he did not state whether any of these injured persons had any "grievous hurt" as
defined in section 320 of the Penal Code. The trial Court, however, referred to the medical certificate
in respect of PW Taifur and observed that the injury in his hand was a 'grievous hurt'. Fracture or
dislocation of a bone is one of the eight kinds of grievous hurts described in section 302 of the Penal
Code; but the doctor did not depose in this case saying that there was any fracture of bone in the hand
of Taifur. His deposition on oath is a substantive piece of his evidence, whereas his medical certificate
is a corroboration of his evidence on oath. The corroborative evidence cannot be considered without the
substantive evidence unless the substantive evidence is dispensed with wider any provision of law such
as section 5 10A CrPC which makes a post-mortem report admissible when the maker of the report
932 Penal Code Sec. 320

cannot be available for examination in court. The learned trial Court assigned the fracture as grievous
hurt to appellant Hadi; but the evidence is that Hadi had caused the head injury of Taifur; there is no
evidence as to who caused the injury in his hand which resulted in the fracture if there was any such
fracture at all. As such appellant Hadi could not be connected with the fracture and in the absence of any
charge for grievous hurt caused in furtherance of a common intention under section 34 of the Penal
Code, his conviction under section 325 is not sustainable in law. But as to the charge under section
323 of the Penal Code against all these four appellants it is found to have been clearly established by
direct evidence supported by . evidence of the expert PW 2, Mr. TH Khan contends that the appellants
have been collectively convicted and sentenced under sections "148/323/325" without specifying
whether all of them were held guilty of all these offences or whether separate sentences were passed on
each count. It is true that for each offence as charged with there shall be distinct conviction if the charge
is proved, but as to punishment, ex parte sentences need not be passed on each count; or if separate
sentences are passed, they be direct to run concurrently. The impugned order of sentence .is not specific
on these points. This is however a mere irregularity which is curable under section 537 CrPC. In the
result, the appeal is allowed in part. The conviction under section 148 is altered to that under section
147 the conviction under section 325 is set aside and all the appellants are, convicted under sections
147 and 323 of the Penal Code; they are sentenced to rigorous imprisonment for six months and fine of
Tk. 5001- only, in default to rigorous imprisonment for 2 months more under section 147 of Penal
Code, no separate sentence is passed under section 323 of the Penal Code. The appellants who are on
bail are directed to surrender to their bail bonds to serve out the remaining part of their sentence as it
stands. now. Mere assembly of five persons or more is not an unlawful assembly. An assembly of five
persons or more is an unlawful if it has as its common object any of the unlawful acts which have been
specifically described in section 141 of the Penal Code. When force or violence is used by an unlawful
assembly or any of its members then the offence of "rioting" is committed. 7 BCR 6 AD.
(6) This section designates or specifics only certain types of hurt as grievous. 'A person cannot
therefore be said to cause grievous hurt unless the hurt caused is one of the clauses thus specified. AIR
1953 Orissa 308.
(7) Where a person is charged with having caused grievous hurt the Court must decide on evidence
whether the hurt caused is one of the clauses specified in this section. (1906) 4 CriLi 202 Low Bur)
(8) A wound is a break in the continuity of th.e whole skin. It is not enough that there has been a
rupturing of a blood vessel or vessels internally for there to be a wound. (1983) 3 WLR 537.
2. Grievous hurt caused to oneself.—(1) A man cannot commit the offehce of causing grievous
huh on his own persbn. 1875 Pun Re 22 (Cr1) Page 59.
3. "Emasculation."—(l) The term emasculation means the depriving a man of masculine vigour
by castration or - by cutting off his private parts 1878 Pun Re (Cr:) No. 22 Page 59.
4. "Disfiguration"—Clause sixthly.—(1) Where in order to punish a child, the accused branded
her cheeks with hot iron, it was held that if the scars left by the hot iron were of a character to cause any
permanent disfiguration, then the offence would amount to grievous hurt. (1862-63) 1 Born Hi.1R 101.
(2) Where a person causes a cut on the bridge of the nose of another with a sharp weapon like a
razor or a knife, this amounts to permanent disfiguration within the meaning of the 6th clause, even
though the internal wall separating the two nostrils is intact. AIR 1950 Ajmer 13.
5 "Fracture or dislocation of bone or tooth"—Clause seventhly.—(1) It is not necessary that
the bone should be cut through and through or that the crack. must extend from the outer to the inner
Sec. 321 Of Offences. affecting the Human Body 933

surface or that there should be any displacement of any fragment Of the bone. If there is a break by
cutting or splintering of the bone or if there i g a rupture or fissure in it, it would amount to a fracture
within the meaning of S. 320. A IR 1970 Sc 1969.
(2) A cut may be a grievous hurt even if the bone is not cut through. AIR 1963 Mad 10.
6. "Hurt which-endangers life." etc.—Clause eightly.—(l) The phrase "hurt" which endangers
'life' in this section, must be applied with reference to normal conditions; any hurt which endangers
human life also be one "likely to cause death" within the meaning of S. 290 of the Code. A IR 1927
Born 259.
(2) •Where a person dies as a result of his testicles 'being squeezed for a long time with
considerable. force and the medical evidence showed that under normal conditions it would not
endanger life, held that the offence amounted only to simple hurt, since the offence did not know that
the injury would endanger life or cause death under normal conditions. AIR 1917 Born 259.
(3) Where the wound itself is not dangerous to life, but death was caused within 20 days due to
tetanus which supervened held that the injury did not amount to grievous hurt. AIR 1925 Lah 297.
(4) The thrusting of a lathi into the arms of a man causes injury which endangers life. A IR 1934
Oudh 87.
(5) A blow on the head with an axe which penetrated half an inch into the head is an instance of
injury which endangers life. AIR 1955 SC 216
(6) Proof of being in a hospital for the space of 20 days cannot be taken as equivalent to proof of
grievous hurt. AIR 1969 Guj 337.
(7) Where, though the complainant has to be kept treated in,the hospital as an inpatient for 45
days, the medical evidence showed that after 14 days the complainant could have been discharged and
that after that period he was in a position to attend to his ordinary pursuits it was held that the injury
suffered only simple hurt. AIR 1958 Ker 8.
7. Medical evidence as to nature of hurt.—(l) In order that the injured had a grievous hurt the
prosecution must prove from medical record relating to the treatment given to the injured and also by
producing doctor who attended on him, nature and extent of the injury. 1980 Chand LR Cri C 62.

Section 321
321. Voluntarily causing hurt.—Whoever does any act with the intention of
thereby causing hurt to any person, or with the knowledge that he is likely thereby to
cause hurt to any person, and does thereby cause hurt to any person, is said
"voluntarily to cause hurt".
Cases and Materials
1. Scope.—(l) "Intention" is a necessary ingredient of an offence und& this section. This section
defines the offence of voluntarily causing hurt made punishable under section 323 while section 319
defines the nature of the act which would constitute the offence of voluntarily causing hurt. The two
together constitute the offence of voluntarily causing hurt and punishment therefore is provided in
•section 323. The word "voluntarily" which is defined in section 39 read with this section shows that
the offence is done with the intention to cause hurt or with the knowledge that it is thereby likely to
cause hurt and does cause hurt
934 Penal Code Sec. 322
(2) This section defines the offence of "voluntarily causing hurt." There cannot be a 'voluntarily'
causing of hurt unless there is an intention of causing hurt or knowledge that hurt is likely to be caused
by the act. A rash or negligent act which causes hurt is not within this section but may come under S.
337 or 338.1955 CriLJ 173 (Madh B). -
(3) Voluntarily to cause hurt—Burns received by the victim while escaping through fire caused by
the accused—Accused held guilty of voluntarily causing burns. 1955 PLD (Lah) 453.
(4) Intention or knowledge is the main ingredient of the offence. Not only must the act have caused
hurt, but the offender must have intended to cause the hurt or must have had knowledge that hurt was
likely to be caused by the act.(] 962) I MadLJ16I.
(5) Where the accused fired a shot towards the ground in a direction where no one. was standing
with the object of scaring away his pursuers, but the bullet rebounded from the ground and struck a
person who died as a result of the injury caused, it was held that as the accused had no intention of
causing hurt to any one, he was not guilty of voluntarily causing hurt. AIR 1933 Oudh 269.
(6) If the accused-had intended to cause only hurt, then, notwithstanding the fact that death has
occurred, his act will only be an offence under this section. Thus, where victim was suffering from
enlarged or diseased spleen and the blow given by the accused in or near the region, without
knowledge of the condition of the victim's spleen, ruptured the spleen and brought about the death of
the victim, the case was held to be only one of causing hurt. AIR 1952 Assam 110.
(7) Deceased owed accused one anna. When payment was demanded he said that he had no money,
then and he would pay later. Accused thereupon kicked'him twice on the stomach. Deceased collapsed
and died soon after—Death was due to shock and there was no mark of injury external or internal—It
could not be held that accused intended or knew that by kicking in the abdomen, he was likely to
endanger life. He could be convicted only under S. 323 and not S. 304.(2) AIR 1953 Madh B 262.

Section 322
322. Voluntarily causing grievous hurt.—Whoever voluntarily causes hurt, if
the hurt which he intends to cause or knows himself to be likely to cause is grievous
hurt, and if the hurt which he causes is .grievous hurt, is said "voluntarily to cause
grievous hurt". .. . . . .
Explanation.— A person is not said voluntarily to cause grievous hurt except when
he both causes grievous hurt and intends or knows himself to be likely to cause
grievous hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing
himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt
of another kind.
Illustration
A , intending or knowing himself to be likely permanently to disfigure Zs face, gives Z
a blow which does not permanently disfigure Zs face, but which causes Z to suffer severe
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.
Cases and Materials •.
1. Scope.-(1) Section 320 describes that the nature of the act. This section describes the mens.rea
to constitute the offence which is made punishable under section 325. In order to find out if the offence
Sec. 322 Of Offences affecting the Human Body . 935

has been committed, both the nature and extent of the hurt caused and the intention or knowledge of
the offender in causing injury have to be taken into account. In the nature of things, it is difficult to
obtain direct proof of what the offender thought vas likely to happen. In all cases it is really a question
of inference from the nature of the act committed by the offender, his conduct and the surrounding
circumstances of the case, the requirement of explanation to this section will be satisfied if the offender
of know ledge that by his act he was likely to cause grievous hurt. Such knowledge can be infened from
the part of the body chosen for inflicting violence and the severity of that violence as, shown by injuries
on the body of the victim.
(2) This section defines the offence of "voluntarily causing grievous hurt". Causing of grievous
hurt as defined in S. 320 coupled with the intention to cause such hurt or with the knowledge that such
hurt is likely to be caused, constitutes the offence of voluntarily causing grievous hurt; there must be
correspondence between the result and the intention or knowledge of the accused. AIR 1958 Pat 452.
(3) If the offender intended or knew himself to be likely to cause simple hurt only, he cannot be
convicted of causing grievous hurt even if the resultant hurt was grievous. AIR 1914 Upp Bur 26.
(4) Simple fracture of radius of arm by stick—No evidence whether the hurt intended or known to
be likely to be caused was grievous—Accused liable u/s. 323 and not u/s. 326. A IR 1989 Mad 507.
(5) Fist blow on diseased spleen—Rupture of spleen which amounts to grievous hurt—Death
ensuing—No evidence of intention or knowledge of causing grievous hurt—Offence under S. 323 and
not under S. 304 committed. AIR 1959 Ker 372.
(6) When the act that caused the hurt is such that
it any person of ordinary prudence 'may be held to
know that it is likely to cause grievous hurt, then may safely be taken that the offender intended to
cause grievous hurt or at least to have knowledge that grievous hurt was likely to be caused. AIR 1958
Pat 452.
(7) A person who forcibly thrusts a lathi into the rectum of another must be taken to know that he
is likely thereby to cause grievous hurt. AIR 1935 Oudh 468,
(8) It cannot be said that anyone who assaults another with a làthi must be presumed to intend to
cause grievous hurt. An assault with a lathi is not inconsistent with an intention of causing simple hurt
only. AIR 1949 All 89.
(9) When a man hits another over the head with a stick hard enough to fracture his skull and
endanger his life, he must be held in the circumstances to have either intended to cause grievous hurt or
to have known that he was likely to cause grievous hurt. (1912) 13 CriL.J 471.
(10) If an accused in striking another with a rod had no intention to cause or knowledge of his
being likely to cause grievous hurt, but grievous hurt was caused by the victim • falling down after the
blow, the accused is not liable for the offence of causing grievous hurt. AIR 1952 Cal 481.
(11) If a person is attacked by several persons numbering less than five and grievous hurt is caused
all of them can be convicted of causing grievous hurt, if the criminal act was done in furtherance of the
common intention of all, irrespective of the fact that the grievous hurt was caused by one of them only
known or not known. AIR 1951 All 21.
(12) A, B and K assaulting J, A hitting with lathi on legs, K stabbing with spear near ear, and B
stabbing with spear on left jaw and extracting spear blade from jaw by putting legs on his chest—J
dying immediately—Common intention to cause grievous hurt to J was inferred—B alone liable under
S. 302. A IR 1954 SC 706.
936 Penal Code Seô. 323

(13) Accused giving ' a blow to his wife with great force—Victim dying shortly—No intention or
knowledge that death would occur—Accused was guilty of causing grievous httrt- and not of death.
(1881) ILR 3 A ll 776
(14) As result of boyish quarrel accused hitting another boy behind from with granite stone on his
temple—Depressed fracture and death resulting—S. .326 applied. AIR 1960 Ker 301.
(15) Accused inflicting two blows on wife's neck for abusing his mother—Hurt endangering life—
Death resulting—S. 325 applied. A IR 1953 Him Pro 1.
(16) Sudden altercation between accused and deceased l.er•having plucked sugarcane from
fol-mer's field—Accused striking two blbws, one causing rupture of enlarged spleen—Accused not
knowing of such condition of spleen—S. 302 did not apply. A IR 1953 Punj 173.

Section 323
323. Punishment for voluntarily causing hurt.—Whoever, except in the case
provided for by section 334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which may extend to one year, or with
fine which may extend to one thousand 9[taka], or with both.
Cases and Materials : Synopsis
I. Scope. 9. Abetment of offence under this section.
2. Proof. 10 Act of several persons.
3. Master and servant 11. Joinder of charges.

4. Husband and wife. 12. Composition.

5. Teacher and pupil. 13. Sentence.
6. Offence may be one of causing only simple 14. Interference in revision.
hurt even though death occurs. 15. Death of complainant—Abetment.
7. Hurt caused In exercising right of private 16. Procedure.
defence. 17. Charge.
8. Act justified by law. 18. Practice.
I. Scope.—(1) Acriminal prosecution under section 323 will not abate by reason of the death of
the complainant (25 CrLf 1007, A IR 1943 Pat 370, 20 CrLf 717). When a complainant dies after
summons is served the procedure under section 247 CrPC may be followed. An offence under section
323 is compoundable without the permission of the Magistrate. It is also triable by the Village Court.
Where in the case of an offence under section 323 PC, both the complainant and the accused filed a
joint petition of compromise and it is accepted by the Magistrate and he acquits the accused under
section 345(6) of the CrPC. The complainant cannot, thereafter, withdraw from the compromise and as
such his subsequent withdrawal can neither effect the acquittal nor revive the jurisdiction of the
Magistrate or Village Court or proceed with the trial of the case. The offence of hurt is included in the
offence of attempt to commit murder. Therefore, where there is a charge under section 307, the court has
jurisdiction to conviction the accused of voluntarily causing hurt without a specific charge in that behalf
(38 CrLf 442). In a case where the happening of the incident is admitted and both panes have received

Substituted by Act VIII of 1973, s. 3 and 2nd Sch, for rupees".
9.
Sec. 323 Of Offences affecting the Human Body 937

injuries. the only question which falls for consideration is as to which of the two parties was the
aggressor. The nature and the number , of injuriesreceived by the parties is one of the factors which has
to be taken into account in deciding the question of aggression. Where a person causes hurt in private
defence of person or property, he cannotbe convicted under this section (1965 PLD Kar 485).An
offence under section 323 of the Penal Code which has been mentioned in Part I of the Schedule to the
Village Court Ordinance (Ord. No. LXI of 1976 dated 20-10 76) is triable exclusively by Village Court
and the ouster of jurisdiction of the criminal court in this respect is complete except in a case where
under section 15 of the Ordinance, the Upazila Magistrate or the Village Court 'being of the opinion
that the circumstances of the case are such that public interest and ends of justice demand its trail in a
criminal court, transfers the case from the Village Court to a criminal court. A criminal court derives its
jurisdiction from the original allegation made in the petitioner of complaint and not from the ' facts and
materials subsequently brought on record during the trial. The forum of trial is to be determined upon
the. basis of allegations made at the initial stage and not upon ultimate findings reached at thO trial.
Where in cases of rioting and unlawful assemblies the accused are charged generally undersections 325
and 326 PC read with section 149, there is no necessity to charge particular accused with particular
offence under sections 32, 324, 325 and 326 PC. Accused can be convicted on individual acts.
(2)Causing hurt, by teeth-bite is not causing hurt by a dangerous weapon or means and
consequently will be punishable under the section and not under S. 324. (1972) 13 Guj LR 848.
(3) Rash or negligent act causing hurt is not an act "voluntarily causing hurt." Such an act is
provided for in S. 337. Personal injury if intentionally caused is neither a rash nor a negligent -act and
constitutes an offence under this section. 1955 CriL.J 173 (Madh B)..
(4.) Where the accused who had a quarrel with his debtor over the debt, pelted brick bats at his
house, knowing that there were occupants in it, and hurt one of them, it was held that the accused had
committed an offence under his section. AIR 1916 Low Bur 98.
(5) Hurt need not be caused by direct physical contact between the accused and the victim. AIR
1944 Sind 19.
(6) Where the accused allowed his dog to bite the complainant, it was held that his conduct was
not punishable under thissection but under S 289 of the Code (negligent conduct with respect to
animal). AIR 1923 Rang 147.
(7) Causing hurt to a public servant while the latter is acting in the discharge of his official duties
is punishable under S. 332 and not under this section'. A IR 1970 Mad 359.
(8) An alteration of charge under sections 147 to 323—When illegal. If the common object of an
unlawful assembly had been to beat the complainant and his party men' and if evidence establishes that
the accused did so beat them, it might have been argued that the alteration of the conviction form
section 147 to 323 ofThe Code was not illegal because section 323 may then be held to be Covered by
the common object of the assembly, but when the charge recites the common objcct of the assembly as
merely to steal' away paddy seedlings the alteration of the section from 147 to 323 of the Code was
illegal and has prejudiced the accused. Jaifar Vs. Idris A li (1951) 3 DLR 144.
(9) Sentence of 2 years' rigorous imprisonment under section 323 was illegal, though' it was to run
concurrently with a like sentence under section 147, P.C. Sultun Ahmed Vs. Crown (1950) 2 DLR 30.
(10) Misreading of a word in a document after closure of evidence and using it against the accused
without drawing his attention to it, is not only illegal but also 'militates against the principle of
938 Penal Code Sec. 323
justice—A fit case for remand but in its facts and circumstances, it was too late—Misreading vital part
of evidence prejudiced the accused—Benefit of doubt given—Acquittal ordered by the Appellant
Division. A ftabuddin Vs. The State BCR 1986 A D 236.
(11) Compromise—An offence under this compoundable u/s. 345(1) Cr.P.C. and an offence. u/s.
379 of the. Penal Code has now been made compoundable, with Court's permission u/s. 345(2), Cr. P.
C. by a recent amendment of law—In view of the reasons given in the joint petition of the parties that
they, in the interest of both, compromised the matter, permission may be given for compounding the
offence—Accordingly, the joint application for compounding the offence accepted and the accused-
appellants acquitted u/s. 345 of the Criminal-Procedure Code. Nasiruddin & another BCR 1987 AD 92.
( .1. 2) In a border line case between sections 323 and 325 of the Penal Code, the accused would be
entitled to the benefit of doubt and be convicted under section 323 of the Penal Code and not under
section 325. A mar Kumar Nag Vs. State 41 DLR 134.
(13) Conviction of the appellant on the evidence of interested witness. Appellant No 2 entitled to
benefit of doubt. We, therefore, hold that the prosecution has failed to established the charge under
section 323 of the Penal Code against the appellant No. 2 beyond reasonable doubt and hence he is
entitled to benefit of doubt and the impugned order of conviction and sentence under section 323 of the
Penal Code against this appellant cannot be sustained in law and the same is liable be set aside.
Momin Ma/it/ia Vs. State 41 DLR 37. . .
(.14) As the offence of culpable homicide supposes an intention or knowledge of likelihood of
causing death but in the absence of such intention or knowledge the offence committed may be grievous
hurt or simple hurt. Liakat Hossain (Md) Vs. State (Criminal) 1 BLC 196.
(15) Two separate petitions of complaint were failed by the persons who received injuries and the
first one was compounded but the second, one was pending. As the offences under sections 323, 324
and 325 of the Penal Code can be compounded by the person or persons to whom the hurt is caused,
the order of composition of the alleged offence suffers from legal infirmity and cannot operate as an
acquittal of the accused persons as far as the second complainant is concerned and the doctrine of double
jeopardy enunciated in section 403, CrPC is hardly applicable in this case. Nurul Islam and others
V s. Ma. V elon Mia and another (Criminal) 1 BLC 252. .
(16) 'Although the learned Sessions Judge has convicted , the accused appellants but did not award
separate sentence under sections 326 and 323 of the Penal Code, the appellate Court can award sentence
under, such sections if the prosecution is able to substantiate the charges. Babul Mia and 2 others Vs.
State (Criminal) 5 BLC 197.
2. Proof.—( 1) No medical evidence is required to prove an offence causing hurt. 'Causing any
physical pain even momentarily is sufficient. 1973 ChandLR (Cri) 339 (Punj).
(2) It is improper to arrive at a finding of guilty under this Section, unless there is a clear finding
on , evidence although . an enmity and fight have been proved and serious
. injuries have resulted. AIR
1921 Lah 214. .
(3) The conviction for an offence under this section is bad where the complainant merely mentioned
that accused used abusive language and did not make any mention of any assault. AIR 1916 Lah 406.
(4) Where the court finds that there probably was only an alteration and squabble between the
parties and that only a technical offence was committed the accused should be acquitted. AIR 1919
La/i 128. ' ,
See 23 Of Offences affecting the Human Body 939
(5) Where the injured person does not enter the witness box nor are his injuries proved, conviction
under this section is unjustified. AIR 1974 SC M.
(6) Where the major portion of the prosecution evidence is found to be false it is not cqr pect to
build up a case of hurt out of the mass of the lies told by the prosecution witnesses. AIR 1934 Oudh 124.
(7) Where in a case of dacoity the evidence is totally unbelievable the Court cannot convict the
Accused of an offence under this section simply because the complainant's party had received injuries.
AIR 1945 All 87. .
(8) As to apreciation of evidence. A IR 1979 SC 1494; A IR 1979 SC 1261; A IR 1979 Sc 1010;
AIR 1976.SC 199,
1. Master and servant.—(l) The law does not give any sanction to a master to commit assault
on his servant even by way of reprimanding him. Therefore, the-master will be guilty of an offence
under this section if he voluntarily causes hurt to the servant. (1963) 5 Orissa.JD 65,
4. Husband and wife..—(l) A husband has no, general or unqualified right of punishing his wife
by beating her for impudence or impertinence. A husband causing simple hurt voluntarily to the wife is
liable to be punished under this section. AIR . 1936 Mad 783.
5. Teacher and. pupil.—(1) SchOol teachers inflicting corporal punishment on students in order
to enforce school discipline would be protected by Sections 79 and 89 of the Code. The extent of a
school-master's right to inflict corpóral punishment depends on the circumstances of each case. AIR
1926 Rang 107.
(2) It is necea,ary that the school teacher must act in good faith while inflicting corporal
punishment. AIR 1949 Born 226..
6. Offence may be one of causing only simple hurt even though death occurs.—(l') Nature of
crime must be judged by the intention of the offender and not by the result. 1898 AI1WN 109.
(2) What the accused person must be punished for is the hurt which he intended to cause or which
he might reasonably have known to be likely t9 cause by the act done. He should not be punished for
an unfortunate and entirely unforeseen result of the act done by him. (1978) 5 CriLT 427 (Punj).
7. Hurt caused in exercising right of private defence.—(l) A person exercising his right of
private defence is not guilty of any offence if he caused , hurt to a person while exercising such right. AIR
1979 SC 1259.
8. Act justified by law.—(1) Where, in execution of a civil process for deliver of possession to a
party the officer pushes out the party bound by the order when he refused to vacate the property, the
officer cannot be held guilty of an offence under this section. 41R 1936 Oudh 379.
(2) A decree-holder though entitled to recover possessioli in execution , cannot himself, of his own
accord forcibly remove the judgment-debtor or any other person claiming the right to be in possession,
and if in the process he causes hurt to the judgment-debtor he will be guilty under this section. AIR
1930ICa1 720. . .. .. .
9. Abetment of offence under this section.—(l) Abetment exhorting the assailant to attack must
be proved by clear cogent and reliable evidence in order, to sustain the conviction for abetment of an
offence under this section. AIR 1974 SC 45.
10. Act of several persons.—An unlawful assembly may have a common object of committing
hurt or grievous hurt and when such an assembly uses force or violence to any extent, or of any degree.
940 Penal Code Sec. 323

the members of the assembly are guilty of rioting punishable under S. 147. If, however, their common
object is accomplished by causing hurt or grievous hurt they would be liable to be convicted for the
further offence under S. 323 or 325, as the case may be. AIR 1958 All 348.
(2) If the victim is attacked and hurt is caused in furtherance of the common object of the assembly,
every member would be guilty under S. 323 when it is proved that they were present in the assembly
at the place of occurrence. A I R 1953 All 778.
(3) In the absence of a charge under Section 149 (or 147) it is only the person who caused the
injuries that can be punished for his individual acts under S. 323. A IR 1959 A ndh Pra 102.
(4) Where there can be no common objects as in the case of sudden mutual fights, there can be.no
conviion under S. 32i read with S. 149. Ali? 1976 SC 2423.
(5) When there is absence of evidence to show as to which of the accused caused grievous hurt, and
there is no common intention or object to causègrievous'hurt, then the accused can be held guilty only
of an offence under this section. AIR 1955 All 230. .
(6) Where out of.the several . accused .acting with the common object of beating the complainant,
beat him but they did not act with the common object- of causing grievous hurt and they did not even
know that one of them would cause grievous hurt, in the èourse of the beating; it was held that they
could not be held guilty of the grievous hurt caused to the complainant but, could be held guilty of
causing simple hurt only. AIR 1914 Mad 280. . .. . .
(7) Where some of the rioters threw stones causing injury and the persons who did so could not be
known, the conviction should be under this section read with S 149 and not under this section. 'AIR
1942 Pat 319.
II. Joinder of charges.— (a) Joinder of charge—'-General—(l) Joinder of charges under Ss. 147,
323 and under Prohibition Act is bad. (1954) 2 MadLJ 431.
(2) Member of unlawful assembly committing riot by one act and causing hurt to another person
by separate act—Offences of rioting and hurt can be. tried jointly. AIR 1917A11 11
(b) Charge for rioting— Conviction for hurt.— ,(1) Held, where a charge was framed under S. 147,
P. C., a separate charge under Section 323, P. C. would be in the circumstances mere surplusage. .1976
RajdhaniLR 183 (Delhi).
(2) Charge against accused under S. 302 and S. 323 read with S. 149—No direct and individual
charges, against the accused for offences under Ss. 302 and 323—Section 149, held did not apply under
the circumstances—conviction of accused under S. 302 and Section 323 cannot be maintained. AIR
1956 A11529.
(c) Charge of hurt included in major offence-4 1) The offence of hurt is included in the offence of
the attempt to commit murder. The Court has jurisdiction to convict the accused of voluntarily causing
hurt without a specific charge in that behalf. (1937) 38 CriLJ 442. .
(2) Several blows struck—One or more of blows proving fatal—Charge under Section 304 for such
fatal blows and tinder Section 323 for other—Held; separate charge under S. 323 was uncalled for and
conviction on that charge unsustainable. AIR 1959 Ker 372.
(3) Offence under S. 323 is not included in offence under the Municipalities Act—Both Offences
could be separately charged. AIR 1946 Mad 102
(d) Charge for one offence— Conviction for another.— (1) In the absence of specific charge under
S. 323 conviction of accused under Section 323 is bad in law especially when all other accused were
acquitted under S. 395/397 P.C. 1979 BomCR 125.
Sec. 323 Of Offences affecting the Human Body 941
(2) Charge only under S. 323—Conviction under S. 323/109 bad if accused had no notice of fact
constituting abetment. A IR 1970 Orissa 10.
(e) A lteration of charge.— (1) Conviction under S. 332 by trial Court alter to one under S. 323 in
revision. 1968 MaJLW (Cri) 217.
(2) Conviction of Y and Z by trial Court under S. 324/34—Appellate Court could not alter their
conviction to one under S. 323 in absence of separate charge under that section. 1959 NagLJ
(Notes) 38. . .
Miscellaneous.— (l) Common object of unlawful assembly armed with.deadly weapons being
to cause grievous hurt—Some causing grievous hurt and others simple hurt—Conviction 'underSs.
324 and 33 read with S. 149 not sustainable. AIR 1907 Punj 278.
(2) Accused charged of having committed dacoity in general terms should not be convicted under
Ss. 323 and 452. A IR 1945 A ll 87. ..
12. Composition.—(l) An offence under this section is compoundable (see S. 320, Criminal P.
C.) The person who can compound. an offence of hurt is the person to whom hurt is caused and not the
person who causes the hu"rt. Hence, where there is a fight between two groups of persons in which some
of them are hurt and this is followed by a criminal .case in the Court hurt in which some persons.
involved in the fight and charged with the offence of causing hurt of the offence cannot be compounded
if one of the persons hurt is not party to the compromise. AIR 1947 Cal 31.
(2) There can be an acquittal with reference to that complainant alone who has compounded the
case. Accused cannot be acquitted of the offence in respect of the person who has not compounded the
offence with the accused AIR 1923 Cal 168.
(3) Once a case has been lawfully compounded complainant cannot withdraw from the composition
so as to revive the jurisdiction of the Court to try the case once again. A IR 1962 Pat 316.
13. Sentence.—(1) The accused found guilty under this section can be punished with a sentence of
imprisonment of either description which may extend to one year or with fine which may extend to one
thousand 'rupees or with both. A sentence of two years' imprisonment would be illegal. A IR 1955
N(JC (Him Pra) 1302. .
(2) Whether the sentence should be severe one or a light one would depend .upon the facts of-the
particular case. Where a police constable was attacked while he was in uniform (i. e., on duty), it was
held that the matter should not be treated lightly. AIR 1939 Nag 93.
(3') When it is the police officer who causes hurt to a person taken into custody by him, the
maximum sentence of one year ought to be awarded to him. A IR 1959 Ker 372. .
(4) The act of owners of cattle recurring the same by force and causing hurt to the complainant
driving the cattle to the pound was a serious offence and sentence of one year's R. I. imposed on the
accused was maintained. AIR 1953 All 358.
(5) Where the accused was found guilty only of hurt though death resulted in a maximum sentence
of one year is not excessive. AIR 1955 NUC (Assam) 5540.
(6) When the accused was in remand for a period of nine months pending trial, the sentence was
reduced to 6 months R. I. A IR 1955 NUC (Him Pra) 1302. -
(7) Where the injuries inflected were of a minor nature and were detected only after 4 or 5 days. a
sentence of 6 months and 3 months R. 1. was considered excessive. The Lahore High Court reduced it
to 1.5 months. A IR 1933 Lah 311.
942 Penal Code Sec. 323

(8) The appellate Court will reduce the sentences if the accused has acted on grave provocation.
A IR 1914 Lah 551.
(9) See also the following cases relating to sentence : 1983 Chand Cr1 C 390 (P&H); (1984) 1
Crimes 217 (MP); (1983) 2 ChandLR (Cr1) 555 (P&H); (1982) W LN 272 (Raj); 1982 W LN (UC) 48
(Raj); 1982 Raj G'riC 200.
(10) Separate sentences.— A n offence under this section is not included in the one punishable
under S. 452, Where, therefore, the accused is convicted for offences both under this section and S. 542
committed on one and the same occasion, aseparate sentence can be passed for each offence. A IR 1938
Rang 114.
(11) The offence of causing hurt is a separate offence from that of rescuing cattle and separate
sentence may legally be passed M1"each offence. AIR 1928 Mad 18.
(12) When the accused are convicted under Ss. 147 and 323, it was held in the following cases,
that separate sentences can be awarded. AIR 1955 All 282 AIR 1953 All 726; AIR 1952 All 92.
(13) When the accused are convicted under Ss. 323and 325, separate sentences cannot be awarded.
A IR 1968 Guj 218.
14. Interference in revision.--(I) Where the accused has been convicted and there are concurrent
findings by the lower Court, the High Court would not interfere in revision unless there are compelling
reasons to differ from such finding. 1974 ChandLR (Cr1) 167.
15. Death of complaint—Abatement^ -(I) Criminal proceedings once instituted whether upon a
complaint or , otherwise do not exterminate or abate merely by reason of the death of the complainant or
the person injured. A prosecution under this section does not abate on the death of the complainant or
the persons injured. A IR 1943 Pat 379.
(2) The acquittal of the accused under section 256 Criminal Procedure Code on the death of the
complainant is illegal. 1916 Pat 152.
16. Procedure.—(]) A conviction under S. 75, Police Act is bar to a subsequent trial and
conviction under S. 323 or S. 352. AIR 1940 Mad 224.
(2) A conviction for affray is no bar to a subsequent trial and conviction for causing hurt in that
affray. AIR 1955 Mys 138.
(3) Where a person is assaulted by a police officer in order to coerce him to give statements under
S. 164, Criminal P. C., a complaint made against the Police Officer for an offence under this section is
not bad for want of sanction under S. 197, Criminal P. C., because in assaulting the complainant the
Police Officer cannot be said to be acting in connection with his official duty. AIR 1967 All 519.
(4) Upon a conviction under this section no order under S. 106. Criminal P. C., can be passed
unless there his a finding of fact that in causing hurt a breach of peace was involved. AIR 1927 All 157.
(5) Upon a conviction under this section and S. 147 an order under S. 106, Criminal P. C. 6an be
passed. A IR 1938 Oudh 195.
(6) Procedure— Not cognizable—Summons—bailable—Compoundab le—Triable exclusively by a
Magistrate, Village Court.
17. Charge.--( 1) In the absence of charge under this section, the conviction of the accused under
the section cannot be sustained unless such charge can be spelt out from the words of the charge
relating to some other sections included in the charge. 108 W LN (UC) 401.
Sec. 324 Of Offences affecting the Human Body 943
(2) The charge should run as follows:
I, (name and office of Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, voluntarily caused hurt to X and thereby committed an
offence punishable under section 323 of the Penal Code and within my cognizance.
.And I hereby direct that ydu be tried on the said charge.
18. Practice.—Evidence—Prove: (1) That the accused ' by his act caused bodily pain, disease or
infirmity to the complainant.
(2) That he did not act intentionally or with knowledge that if would cause hurt, etc.

Section 324
• 324 Voluntarily causing hurt by dangerous weapons or means. Whoever,
except in the case provided for by section 334, voluntarily causes hurt by, means of
any instrument for shooting, stabbing or cutting, or any instrument which, used as a
weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance; or by means of any
explosive substance, or by means of any substance which it is deleterious' to the
human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
Cases and Materials .: Synopsis
1. Scope. 9. Sections 34, 326 and 307— distinction
2. "Except in the case provided for by S. 334." between.
3. Burden of proof—Evidence. JO. This section and S. 325.,
4. Right of self-defence. 11. Charge and compounding.
5. "By means of any Instrument for shooting, 12. Procedure.
stabbing, or cutting. 13. Sentence.
6. "By means of any poison" 14. Interference by High Court..
7. Hurt resulting in death. 15. Practice.
8.. A ttack by several persons 16. Charge.'
1. Scope.---(1) This section may be read along with sections 39 and 47 'PC. This section deals
with the case of causing voluntary hurt by 'means of an instrument which, used as a weapon of offence,
will cause death. The instrument must be one which is likely to cause death, the instrument must be
one, not which is likely is 'liable' but which is likely to cause death. It must be one of which one can
predicate that the probable result of its use will be one of virtues of its very nature, death. Poison is
"that which when administered is injurious to health or life." The term "corrosive" substance means
any substance which irritates the system, e.g. sulfuric acid, corrosive sublimate, etc. Where the offence
under this section was committed by college students, it was held . that whether more serious injuries
than those caused could have been caused or not is wholly immaterial. However, if the students have
acted like ordinary criminals, they would not be entitled to special treatment. The fact that the accused
is a student is not mitigation of the offence of causing hurt with a knife (A IR 1941 Pat 129). The burden'
is on the accused to prove that he had a right of private defence. 'There is no presumption that the party
944 Penal Code Sec. 324

receiving more injuries was aggressed against. The right of private defence has to be proved with
reference to all the facts of the case (1974 C'riLJ 301.L,). Where the accused has not exceeded the right of
private defence, they cannot be convicted under section 324 simply because death was caused. The
charge should state that the weapon used as one of the kinds mentioned in the section Merely
describing it as a "dangerous weapon" is not sufficient. The offence under this section is
compoundable. The composition of offences under sections 324 and 325 PC has the effect of acquittal of
the accused. Where there was a complaint under S. 324 P.C. and the allegations therein made out a
prima facie case under that section. The Magistrate had jurisdiction to try , the case and thus jurisdiction
did not cease if, afterwards, during the trial, the case transpired to be one under section 323 PC which
was exclusively triable by Village Court (1970.) PCr1LJ 1878).
(2) Appellate division reluctant to grant leave for compromising offence under the section. Offence
under the section though compoundable, Appellate Division of the Supreme Court declined to grant
leave for compromise when the petitioners have. beeti convicted of the offçnce under the section and no
law-point agitated before the Court for grant of leave. The petition was dismissed. :Jiban A li Bepari &
another Vs. The State b BSCD 243.
(3) Conviction and sentence, alteration of on technical ground by the Appellate Court—Conviction
by the trial Court u/s. 326/34 and sentence of 5 years' R.I.—On appeal the High Court Division altered
the conviction' to that u/s. 324/34 and reduced the sentence to 3 years' RI—The .conviction was
altered just on a technical ground, discrepancy in the evidence of Medical Officer—Altered conviction
challenged before the Appellate Division on the ground that no charge was framed u/s. 324 but the
charge was framed u/s. 307—No illegality in conviction u/s. 324, PC, though the charge was framed
u/s 307—No interfere by the Appellate Division. A bdul Gafur& A nr. Vs. The State 5 BSCD 44.
(4) Separate sentence under sections 147 and 324 P.C. not illegal. Safar A li Vs. State, (1972) 24
DLR 207.
(5) No charge against the accused under sections 324 and 325 but the charge was under sections
322/149 and 325/149—No prejudice to him on his conviction u/ss. 324 and 325. Ali Akbar khan. Vs.
State (1982) 34 DLR 94. . . .. . .
(6) The question of prejudice to the accused has to be judged by the facts and circumstance of each
case. A li A kbar Khan Vs. State (1982) 34 DLR 94.
(7) High Court relucntant to give permission for compromising offences under the sections.
Offences under the sections though compoundable, High Court under its revisional jurisdiction is
reluctant to grant leave for compromise when the accused. persons have been rightly convicted. The
High Court can record the compromise only in suitable cases in revision but this exceptional power
should not ordinarily be used in a. case where the proceedings disclose no irregularity or impropriety.
Hafizuddin Vs. State, (1969) 21 DLR 172. . .
(8) Simple hurt and medical evidence—The evidence of a medical expert is merely an opinion
which only lends support to the direct evidence of witnesses—If there are other evidences to prove the
offence the medical evidence is not indispensable for proving a charge under Section 324 of Penal Code.
Mofazzal alias Mofazzel Hossain and another Vs. The State 7 BLD (HCD) 406
(9) The law is now settled that a fugitive has no right to seek any kind of the redress as against his
grievance, if any, against the judgment and order of a court convicting him. Md. Monsur A li and
others Vs. The State 23 BLD (A D) 208. . . . .
Sec. .24 .Of Offences affecting the Human Body 945

(10) As the convict-Appellant having not given the final blow (injury No. 1) he cannot be
incriminated for the offence of section 326 of the Penal Code but he must be found guilty under section
324 of the Penal Code as he had inflicted one of the other two injuries which is simple in nature. Abdul
Jalil Vs. Stale (Criminal) 4 BLC (A D) .12.
(11) For voluntarily causing hurt by dangerous weapons we convict appellant Nos. 2, 3, 4 Dulu
Mia, Hamidul Haque. Mustafizur Rahman respectively under section 324 of the Penal Code and
sentence each of them to suffer rigorous imprisonment for three years. 42. DLR 3 AD.
(12) Members of unlawful assembly—Rioting committed in prosecution of their common . object—
Accused Tayeb All assaulted PW i—conviction of both the accused under section 148 PC and Tayeb
Al's conviction under section 324 PC based :on good evidence--But their conviction under sections
302/149 not sustainable as their participation in assault upon deceased Baziur Rahman doubtful ('Ref
10 BCR (AD) 86. 41 DLR (AD) 147. . .
(13) It clearly appears that neither party was in actual possession. of the land but both the parties
were tying to establish their possession by criminal force. In such asituation neither of them, is entitled
to protection of law. In such cases the participants will be liable individually for their respective acts.
In view, of the peculiar facts and circumstances of the case, the sentence of the appellants should be
reduced. 7 BCR (AD) 71. . .
(14) The accused and the prosecution witnesses are inimical to one another. There is not a signal
independent .disinterested witness in thó case. Non-examination of any member of these families, in my
opinion, makes the prosecution case a suspect, and entitles the appellants to benefit of doubt. In view
of the expert opinion expressed in the Medical Jurisprudence it may safely be held that the gun shots
having been fired from a di stance of 40/55 cubits according to the evidence there could be no scorching
around the wound. Therefore the doctor's evidence as regards the injury alleged to have been accused
by gun shot fire is doubtful and the appellants have been acquitted. 6 BCR 75.
(15) Prosecution proved the occurrence at the time and place it had occurred—accused took the
plea that the place of occurrence was the disputed plot Nos. 848 & 849 and invoked the principle of
right of private defence in exercise of the bonafide claim of right to the disputed lands—High Court
Division elaborately discussed the evidence and found that there is neither any oral nor any documents
evidence that there was any mark of violence in the field in the disputed lands. Conviction was upheld
but the sentence was modified to serve the ends of justice. Appeal Dismissed. 4 BCR.(AD) 438.
(16) Separate sentences under sections 147 and 324 PC are not illegal. 24 DLR 207.
(17) An offence under section 324 PC is not exclusively triable by the conciliation Court. The
criminal court which had initial jurisdiction to deal with the matter has right to proceed with the trial
of the case. 20 DLR 1076
(18) Care may be compoundable by person who received injuries not by complainant. 1 BLC 252.
(19) This section prescribed a severer punishment for hurt caused by the instruments or means
specified in the section. Where there is no finding that the instrument used was of the description
referred to in the section a conviction under this section is not sustainable but the accused may be
liable under S. 323. 1954 MBLJ 3 (HCR) 1065.
(20) Where a dangerous weapon has been used this section will apply even if simple hurt is caused
. 2 CriLT 524.
by such instrument. (1975) .
• 2. "Except in the case provided for by S. 334."—(1) Section 334 o-vides for a lighter
punishment for the offence of voluntarily causing hurt on grave and sudden provocation. A case falling
946 Penal Code Sec. 324

under that section is excepted from the operation of this section as is indicated by the words "except in
the case provided for by S. 334." AIR 1981 All 189.
3. Burden of proof—Evidence.–(l) The prosecution must prove that the accused voluntarily
caused hurt, and that such hurt was caused by means of an instrument referred to in the section. In the
absence of satisfactory evidence on this point, the accused cannot be convicted under this section. AIR
1979 Sc 1510.
(2) In the absence of satisfactory evidence that the accused voluntarily caused hurt and that such
hurt was caused by means of an instrument referred to in this section, the accused cannot be convicted
under this section merely on the ground that the complainant had received certain injuries. 1978. Ui
(SC) 924(929).
(3) The non-examination of the Investigation Officer is a serious infirmity causing prejudice to the
accused by depriving him of the opportunity to show the unreliability of witnesses by proving
contradiction in earlier statements. 1972 CriLJ 976(977) (Mys).
(4) Medical evidence is not essential for a conviction under the section where the Court has before
it sufficient other evidence of a reliablie nature. 1978 Cr1LJ 1204 (Ker).
(5) Injuries on accused not explained by prosecution—Prosecution case is rendered doubtful—
conviction liable to be set aside. (1983) 1 Chand LR (Cr1,) 282.
(6) Because of non-examination of the investigation officer, some documents were not proved it
was held that . the accused in some measure were prejudiced. The conviction of the appellants was
therefore set aside: 1982 UP (Cr0 C 57 (A ll).
(7) Where there was a great variance between the oral and the medical evidence and the F,I.R. I.R. was
lodged after a great delay the oral evidence was held unreliable and the conviction under S. was
set aside. 1982 UP (Cr1) C 50 (All).
(8) The acquittal of the accused under S. 452 Penal Code would root out his conviction under S.
324 when the story of prosecution was that the accused had entered the house and then fired because if
the story of entering the house was disbelieved then the other part of the story, namely, the firing inside.
the house would also to some extent receive a set back. (1983)1 crimes 659(661) 1983 A ll Cri LR
760 (All). .
(9) Conviction under S. 148 and S. 324 read with S. 149—Witness testifying that accused were
armed with spear and pharsas—Evidence given by victim that these weapons were used by accused—
Doctor opining that injuries could be caused by sharp weapon-Conviction is proper. 1982 A/lU
(NOC) 90. . .
4. Right of self-defence.--(1) A conviction under this section is not proper where the injuries
were caused by the accused while exercising the right of self-defence. 1970 SC Cri R 27.
5. "By means of any instrument for shooting, stabbing, or cutting.—(1) Instruments not
designed to cause bodily injury, or death may, however, under certain circumstances, be capable of
being used as weapons. Thus a crowbar or spade is not designed to cause bodily injury but may be
used to cause bodily injury of death. A common bamboo strike is not dangerous weapon within the
meaning of this section. AIR 1937 Rang 8.
(2) A lathi mayor may not be a dangerous weapon. It depends upon the size, thickness etc., of the
lathi which when used as a weapon of offence is likely to cause death. AIR 1950 East Punj 209.
-.. (3) A dao has been held to be a deadly weapon. (1865) 2 Suth WR (Letter Cr1) 20.
Sec. 324 Of Offences affecting the Human Body 947

(4) A broken soda bottle is a dangerous weapon. (1981 CriLJ (NOC) 115.
(5) Though evidence cannot sustain conviction for grievous hurt, yet, there . may be conviction
under this section for causing hurt with a sharp weapon,. etc. 1974 Rajdhani LR 54 (Delhi).
(6) Accused inflicting burn injuries with the help of a burning fire wood—Offence committed is
under S. 324 P.C. A IR 1953 Orissa 308.
(7) To drive out evil spirit from victim R and P beating victim with hot chimta and wooden.
chapti—After P went away, R beating victim for 15 or 20 minutes more—Conviction held proper.
1976 CriLi 818 (Punj). . . .
6. "By means of any poison."—(l) Poison is defined as that which when administered is
injurious to health or life. Some things administrated in small quantities are innocuous; but,
administered in large quantities are harmful An such cases it is not sufficient to show that the thing was
administered with an intent to cause harm but there should be evidence that it was administered in
such quantity as is noxious. (1890) 5 QBD 307.
7. Hurt resulting in -- There was nothing to establish that the accused intended to kill
his father or that he intended to cause such bodily injury as was likely to cause his death. He hit his
father in a fit of rage, possibly on account of the father's denial to pay his money. Held, that the
accused could not be charged under S. 304 but that the offence fell under S. 324. AIR 1958 Mys 48.
(2) In absence of proof of common intention, accused Other than the one who actually causes the
death cannot be convicted under S. 302/34. 1977 CriL.J 421 (Mad).
(3) When only one stick blow was given on the head of the deceased and this head injury
ultimatIy led to death of the victim, the offence committed by the accused would be under S. 324 and
not under S. 304, Part II, Penal Code. 1981 BomCR 27.
8. Attack by several persons.—(l) Where the .deceased was attacked by several persons and it is
not possible, on the evidence, to infer any such common intention as is mentioned in S. 34, or such
common object as is mentioned in S. 149, each of them will be responsible for his individual act only.
A IR 1975 S C 12..
(2) Where death is caused and there is no evidence to show which of the accused inflicted the fatal
blow and S. 34 is not applicable, the accused can be convicted only under this section and not of
murder or culpable homicide. A IR. 1954 Punj 16
(3) When the medical evidence is uncertain as to which of the blows was the fatal blow, only the
minimum intention should be attributed to the act of the accused and the conviction can be only under
this section. AIR 1966 Guj 221.
(4) Where the common object of an unlawful assembly is established it is not necessary for the
prosecution to prove that a particular accused caused a particular injury. AIR 1956 Born 183,
(5) Accused B gave fatal blow, while accused C gave Takwa blows on the arm of the deceased
causing simple injuries. As blows given by C were not on vital parts it could not be said that he had
shared the intention of 'B' to cause death. So while 'B' was given life imprisonment 'C' held was
guilty only under S. 324, P.C. AIR 1977 SC, 705.
9. Sections 324, 326 and 307 —Distinction between.—(l) There can be no presumption that the
accused intended to cause death merely because he used a firearm to cause hurt. The intention of the
accused person has to be established from the nature of the act actually committed by him and form
other surrounding circumstances. 1969 CriLi 252 (Delhi).
948 Penal Code Sec. 324

(2) In order to bring the offence under Section 307 home to the accused the prosecution must
establish that his intention or knowledge was of the description mentioned in S. 300. Where evidence
is not sufficient to establish with certainty the existence of the requisite intention or knowledge he can
only be convicted under this section. A IR 1965 SC 843.
(3) The act contemplated by S. 370 is an act which, by itself, must ordinary be calpable of causing
death. The act of the accused falling short of this specification will amount only to an offence under this
section or S. 326. A IR 1965 SC 843.
(4) Where from the act of the accused, an intention to cause death or knowledge that death . is likely
to be caused can be imputed to the accused, then the offence is one under Section 307 and not under
this section. A IR 1944 Sind 83. .
(5) Injury caused by thrust of spear—Injury not on the lungs or on any other vital organs of the
body—it was doubtful if the hurt caused was of a nature endangering life—Proper section for conviction
was S. 324 and not S. 326. A IR 1963 A ssam 151.
10. This section and S. 325.—(1) The offence under this section is a minor form of the offence
under S. 325 and if the accused is convicted under S. 325, a conviction under this section as well is
superfluous. A IR 1964 MadhPra 182.
11. Charge and compounding.—(1) The charge must mention the word "voluntarily." (1865) 2
SuthW R (Letter Cri) 20.
(2) The fact must state that the hurt was caused "by means of an instrument which used as a
weapon of offence is likely to cause death" namely......; for then, attention of the .Court would be
attracted to the essential part of the offence viz., that the instrument used was such as was likely to
cause death. (1897-1901) 1 UppBurRul 318.
(3) Where the accused are charged under Sections 148, 149 and 324 and the Court acquits them
on the charge under S. 148 (rioting) they cannot be convicted for an offence under this section read with
S. 149. the effect of acquittal under s. 148 amounts to a finding that either there was no unlawful
assembly or that the hurt was not caused in pursuance of the common object of the unlawful assembly.
A IR 1966 Mys 53. .
(4) Where the accused are charged with being members of an unlawful assembly whose common
object was to cause grievous hurt and the evidence shows that some of the accused have caused only
simple hurt with dangerous weapons, such accused cannot be convicted under 324 read with Sec. 149.
A IR 1957 Punj.278. .
(5) A conviction under S. 109 for abetment of an offence under S. 324, would be illegal when the
accused had not been charged with such abetment but only charged under S. 307. A IR 1948 All 168.
(6) An offence under this section can be compoundable with the permission of the Court. A IR 1974
SC 1744.
(7) Quarrel between college students—All accused with age group of 19-20 years—Conviction
under S. 307 read with S. 149 altered to conviction under S. 324—Permission to compound offence
accepted in view of happy relationship established in student community. A IR 1981 SC 1240.
12, Procedure .—(1) An offence under this section is not triable summarily. (1887) 10 Mys LR
No. 330 page 1053.
(2) Iica prosecution instituted upon information received from any person other than a police officer
or upon the Magistrate's own knowledge or suspicion or on receiving a complaint, the procedure
prescribed by S. 244 of the Criminal P.C. should be followed. 1968 A 1ILR 768.
Sec. 324 Of Offences affecting the Human Body . 949
(3) Pr ocedur—Cognizable_S.ummons__Baj labIe_compoundab IeTriable by Metropolitan
Magistrate or Magistrate of the first or second class.. .
13. Seiitence.—(1) Where the accused are found guilty under Ss. 147 and 324 read with S. 149
separate sentences for the two offences can legally be given, to the accused. AIR 1914 Oudh 205.
(2) Where the accused, are convicted of offences under Ss. 324, 325 and 326, P.C., it is improper
to give one sentence for all the offences, but if the cumulative sentence is such that it could be passed
by the Magistrate in respect of any of the offences, there is.no.ground for interference in revision. AI-R
1942 Oudh 444. . .. . .
(3) The fact that the , accused is a student is no mitigation of the offence of causing hurt with a
bhala. A IR .1941 Pat 129 (130) :42 CriLJ36I;'j941 CrILJ84O(842)(P&H),
(4) The fact that the injuries were simple or that five years had elapsed since incidence is no
ground for reducing the sentence. 1, 974 CriLJ234(237) '(Raj). . .
(5) Accused cut open the abdomen of the injured with a razor and was sentenced to one year's R.I.
Held in appeal that there was no scope for reducing of sentence. AIR 1979 SC 1703.
(6) Where there is no evidence that the accused a , lad of 18 began the assault or that the assault was
vindictive the High Court held that sentence of R.l. for one year was sufficient. AIR 1955 Pat 161.
(7) Accused convicted under Ss. 324, 326 for throwing acid on face of girl—As the accused was a
student and he had spent 14 months in prison. His sentence was reduced to the period already suffered
and his fine was enhanced from Rs. 2500/- to 75001-. (1982) 2 SCC 395.
(8) Murder case—Neither pre-concert nor meeting of mind between I and S—Conviction of'!'
under S. 302/34 not sustainable—'I' merely giving a takwa blow on ear causing simple hurt—'
Conviction of 'I' altered to one under S. 324, P.C.—'I' already in jail for 2.5 years—Sentence reduced
to period already undergone. AIR 1982 SC 70.
(9) Conviction under Ss. 324, 325, 326, P.C.—Appellant surrendered and agreed to pay the fine
on that day—The sentence imposed was reduced to six months' imprisonment and a fine of Rs. 7000/-
to be paid to two injured persons equally. (1982) 3 SCC 197.
(10) Accused was convicted by trial Court u/s. 302 and under S. 324 and under S. 324 he was
fined for Rs. 2000/- to be. paid to the family of the bereaved. High Court recorded a . finding that there
was no premeditation. Supreme Court changed the conviction under S. 302 to one.undér S. 304 Part I.
AIR 1983 SC 652. .
(Ii) An accused convicted under this section can be put onsecurity under S. 106 of the Criminal
Procedure Code. AIR 1932 Lah 435. ..
14. Interference by High Court.—(l) Where convincing reasons are given by the lower Courts
for relying on the prosecution witnesses, the High Court will not interfere with the concurrent findings
of fact. A IR 1969 Orissa 36(37): 1966 CriLJ 397; 1984 RajCri C .58(62)(DB).
(2) Eye-witnesses giving graphic details regarding assault by accused and supposing deliberately
the injuries on the person of the injured persons—Evidence on record ' consisting of evidence of
interested, and inimical w'itnesses—Unsafe to rely, on such evidence--Conviction set aside. (1984) 1
Crimes 478 (P&H).
15. Practice.—Evidence--p rove: (1) That the accused caused by his act bodily pain, disease, or
infirmity to the complainant. "
950 Penal Code Sec. 325

(2) That he did such act intentionally or with a knowledge that it would cause the hurt.
(3) That it was unprovoked.
(4) That the accused caused it by means of an instrument for shooting, stabbing or cutting; or by
means of any substance which it is deleterious to the thuman body to inhale, etc. or by means of any
animal. .
16. Charge.—The charge should run as follows:
I, (name and office of the Magistrate)hereby charge you (name of the accused) , as follows:
That you, on or about the day of—, at—, voluntarily caused hurt to A by means of—which is
an instrument for shooting (or stabbing etc.) and thereby. committed an offence punishable under section
324 of the Penal Code, and within my cognizance.
And I hereby direct you be tried by this court on the said charge.

Section 325
225. Punishment for voluntarily causing grievous hürt.—Whoever, except in
the case provided for by section 335, voluntarily causes grievous hurt, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
Cases and Materials : Synopsis
1. Scope. 6. Proof—Evidence.
2. Grievous hurt resulting In death; 7. Conviction.
3. Attack by two or more persons—Liability of 8. Sentence.
assailant. 9. Conipundaing.
4. Grievous hurt and right of private defence. 10. Revision and appeal.
5. Charge. 1.1. Procedure.
12. Practice.
1. Scope.—(1) An act which is not likely to cause death amounts to grievous hurt even though
death is caused (A IR 1953 Tn 9). The accusation of grievous hurt must be either in contemplation or
must be likely result of the act done. It is manifest in the nature of things, it is difficult to obtain direct
proof of what the offence thought was likely to happen. In all cases it is really a question of inference
from the nature Of the act committed by the offender, his conduct and the surrounding nature of the
circumstances of the case. This section prescribes the punishment for grievous hurt. The offence under
this section is intermediate between hurt and homicide. Where the accused had neither intention to
cause death nor knowledge that his act was likely to cause death, but that was caused by his act, he
cannot be convicted for murder or culpable homicide not amnunting to murder. If the injury inflicted is
grievous he can be .convicted under section 325 (1981 P CriLi 498). If a large number of persons
participate in a sudden fight arising from a land dispute, it would be really difficult for any one to state
that any particular injury was caused by a particular person. Where the accused was mentioned as one
of the assailants of the deceased in the FIR but the grievous hurt found on the person ofthe latter was
not attributed to him, his conviction under section 325 PC cannot be maintained (52 CrLJ 209).
• Where an injury has been caused by one of several persons and it is not known which of the persons
concerned actually struck the fatal blow, it is not possible by the application of section 34 to convict
any of the persons taking part in an offence under the second part of section 304, and the appropriate
See. 325 -6f Offences affecting the Human Body 951

section in view of the wording of section 34 is section 325 (A IR 1929 La/i 456). When one man takes
away the life of another, he should prove circumstances, which justify his doing so. Even assuming
that he did so in his right of private defence, it still lay upon him to show that he did not exceed the
right and the one us lay upon him to prove the circumstances from which the court might conclude that
he was justified in going to such extreme length as causing grievous hurt by killing a man (8 CW N
714). It is not the duration under which victim remains under treatment, but the duration in which the
victim remains in severe bodily pain or is unable to follow his ordinary pursuits which make the hurt
grievous one (A IR 1931 Lah 280). In view of evidence in the case and the finding arrived at by the
court it is open to the court to alter the conviction under section 325 read with section 149 to that
under section 325 read with section 34 provided that such alteration does not cause any prejudice to the
accused (AIR 1952 All 941)
(2) Conviction and sentence u/s 325,; 323 & 148—conviction u/s 148 set aside but that u/s
325/323 was maintained in appeal—Petitioner charged for and conviction of the principle offences u/s
325 and 323, PC but the trial and the appellant court found on evidence that he himself did not
commit the offences, butpereIy abetted it—As there was no charge for abetment u/s 109 whether he
could be convicted for abetment—Whether his conviction for the principal offence was sustainable—
Omission or defect in the charge is curable u/s 537—Omission supplied by the Appellant Division at
Special Level stage. Petition and his co-accused wereconvicted u/s 325, 323 and 148, PC and sentence
to R.I. for six months—On appeal, the conviction u/s 148 was set aside but that u/s 325/323 was
maintained at leave stage it was contended that the petitioner was charged for and convicted of the
principal offence u/s 325 and 323, PC but the trial court and the appellate court found on evidence that
the petitioner did not himself commit the offences, but merely, abetted them and as such, conviction for
the principal offences is not sustainable in law—As to the abetment, it was contended that he could not
have been convicted for the abetment either as there was no charge for the abetment u/s 109 PC—The
High Court Division in Criminal Revision before which the same arguments were raised took into.
consideration this aspect of the matter, but u/s. 537 Cr.P.C. Held: This view is correct, but neither the
High Court Division nor the learned Appellate Court modified the conviction—Omission to frame an
alternative Charge for abetment of the offences in this case does not stand in the way of convicting the
petitioner for the abetment it is established on evidence—In this c.se abetment has been established on
evidence. The appellate Court should have altered the order of conviction accordingly; however, this
omission may be supplied by the Appellate Division—but it is not a ground for setting aside the
conviction as a whole. The conviction of the petitioner is altered to.that U/s 325/323ofthe Penal Code
read with section 109—The sentence is maintained—with this modification, the petition is dismissed.
Eiar A li Shaikh & ors Vs The State, 6 BSCD 34. . .
(3) Imprisonment should be imposed on conviction. A conviction under section 325 ought to have
involved a sentence', however short, of imprisonment. In a conviction under sectién 325, a mere
sentence of fine is not legal and the High Court, in the exercise of its revision jurisdiction, is bound to
see that a legal sentence is imposed. W a/i Bauiya Vs. A hizuddin (1953).5 DLR 557.
(4) Sections 325 and . 326 distinguished—From a reading of the judgment, in the instant case it
appears that the learned court blow after examining the testimony of the witnesses came to a finding
that the prosecution had been able to prove beyond all reasonable doubts that the accused Amar Kumar
Nag alias Ratu Nag caused grievous hurt to the complainant, and as the evidence does not show that it
was casused by any instrument of shooting, stabbing or cutting or any instrument used as a weapon of
offence, found that the accused could not be said to have caused grievous hurt by any instrument of
952 Penal Code Sec. 325
stabbing, punishable under section 326 of the Penal Code but as he had caused grievous hurt he.would
be found guilty under section 325 of the Penal Code and hence liable to be convicted not under section
326 but under section 325 of the Penal Code. For a person to be convicted for causing grievous hurt,
he must not only have caused the grievous hurt in fact but also intended or knew that his action would
be likely to cause grievous hurt, as any other reasonable man would know. A mar Kumar Nag Vs.
State, 41 DLR 134.
(5) In case of provocation an accused is entitled to leniency in punishment and for the contribution
of the complainant in the incident or -the accident, a sentence of.fine would meet the ends of justice. In
the instant case, the entire incident was not only one-sided but in it the complainant had also
contribution to a great extent by calling a man a thief in presence of others. In such a case of
provocation an accused is entitled to leniency in punishment and for -the contribution of the
complainant in the incident or the accident, a sentence would meet the ends of justice (Refer. PLD
1981 SC 127). A mar Kumar Nag Vs. State, 41 DLR 134.
(6) Lumping together of several distinct charges in one trial is not permissible. charge under
section 395 and 397 o1 ,the Penal Code relates to distinct offence for commission of daáo ,ity. As soon as
the accused appellants and others retreated from the said house, the commission of offence is complete.
Thereafter on the following date when Nasiruddin, Fakhrul Ahmed were assaulted in the police
station, charge under section 325/34 of the Penal Code, 362/34 of the Penal Code alleged to have been
committed by accused appellants and others on the next morning when they committed murder of
Gous by assaulting and charge under section 302/34 was also drawn against them. Piecing these
distinct charges together against the accused appellants and others in one trial is not permissible under
the provisio.ns of the Code o:f Criminal Procedure. Adopting of a procedure prohibited by Code of
Criminal Procedure is not accruable by section 537 CrPC. 40 DLR 377.
(7) Disputed land—Order of Injunction granted by the trial Court was set aside by the lower
Appellate Court—High Court Division stayed the said order—Appellants chased and attacked the
informant and their party who were ploughing the disputed land—Question of possession raised—Non
consideration of the effect of the stay order in determining the question of possession has caused failure
of justice—Appeal allowed but case sent back on remand to the High Court Division for disposal of the
Revision case in the light of the observations made. 7 BCR (AD) 162.
(8) No charge against the accused under sections 324 and 325 but the charge was under section
324/149—No prejudice to him on his conviction under sections 324 and 325 (Ref 7BGR A D 6; 34
DLR 95). Offences under sections 324 and 325 compoundable. The High Court should record
compromise. Separate -sentences for offences which are not completely distinct offences but component
part of another offence, are bad in law. But they can be legally awarded where distinct offences not made
up of parts are proved to have been committed by one member was drawn for the said alleged offence.
21 DLR 172. .
(9) When 'evidence established that the case was one falling under section 325 Penal Code, but the
Magistrate framed a charge under section 323 PC that will not make the case triable by a Conciliation
Court. 18 DLR 725.
(10) An officer to be worth his salt is expected to act strictly in discharge of his duties and has a
right to do so but he must act within the bounds of the law. He cannot, however, claim to act
tyrannically even in discharge of his official duties. To concede such a right would bring about disorder
where order should be the goal of everybody. 14 DLRZ4&
Sec. 325 Of Offences affecting the Human Body 953

(11) In order to sustain a conviction under this section, it must be shown that not only. grievous
hurt as defined in S. 320 has been caused, but also that the accused intended or knew himself to be
likely to cause grievous hurt. 1978 GnU. 1485.
(12) The mere fact that death ensued as a result of the hurt will not be sufficient to hold the accused
guilty of culpable homicide or causing grievous hurt as the victim might have been suffering from some
latent disease or infirmity of which the accused was not aware. A IR 1937 Mad 321.
(13) Where accused did not inflict any injury on any vital part of the body of the victim and
according to eye-witnesses he used the handle of The six in committing the assault and there was
nothing to show that accused was inspired by the intention to commit the murdérof the victim, only
an offence under S. 325, could be said to be made out and not the offence of attempt to commit murder.
1981 Cn1LJ 1787.
(14) In view of the distance from which the stone was thrown it could not be said that at the time
when the accused threw the stone, he was aware that the stone would hit the deceased on the temple or
any vital part of his body. On the basis that the accused threw the stone, it could not be said that he
had knowledge that the said stone which hit would cause such an injury as was likelyto cause his
death. In the circumstances accused's conviction under S. 304 Part Ii P.C. could not be sustained the
only offence for which the accused could be held guilty is the offence for causing grievous hurt
punishable, u/s. 325 P.C. 1983 W LN (UC) 292 (Raj). . .
(15). Both S. 324 and this section are subject to the provisions Of Ss. 334 and 335 respectively and
hence, where the hurt or grievous hurt has been caused under grave and sudden provocatiOn, the
accused will be liable only to the lesser punishment under those sections. Under those sections,
however, the provocation has to be both grave and sudden. 1978 CrILJ 411.
2. Grievous hurt resulting in death.--(I) The second para. of S. 304 provides that whoever
commits culpable homicide not amounting to murder, if the act is done.' with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause such bodily injury as is
likely to cause death, shall .bepunished under that section.-. Where death has resulted it appears to be
unsatisfactory to find a man guilty of grievous hurt, but the Legislàtuer seems to consider that the
intention to cause grievous hurt may be a more serious moral offence than the one committed with the
knowledge that death is likely to occur, isasmuch as imprisonment is obligatory under this section and
not under the 2nd part of S. 304. A IR 1943 A ll 344.
(2) Where the deceased had injury on the leg causing 'a fracture and some more on the head, and
death resulted as a result of hemorrhage, the offence falls under S. 304 Part 11 and notunder S. 325. AIR
1982 SC 1183. '• .' '
(3) The line of demarcation between the offence falling under the second para, of S. 304 and the
category of grievous hurt mentioned above is , a very thin and subtle one. A IR 1946 Born 38,
(4) In normal conditions any hurt which endangers human life must also be likely to,cause death.
AIR 1917 Born 259.
(5) If death' occurs after a grievous hurt and death is the 'result under normal conditions of the
injury intended to be inflicted, it cannot be a case of grievous hurt.. A IR 1974 SC 1803.
(6) Where the accused were armed with lathis and gandása and assaulted the deceased on whose
body grievous injuries were detected as disclosed by the post-mortem report and serious injuries, to
others as confirmed by medical report they were convicted because, of the fact that a blow with a weapon
Ln
like gandasa or lathis given without the intention or knowledge necessary to constitute homicide or
954 Penal Code Sec. 325
culpable homicide not amounting to murder and it accidentally falls on the vital part and proves fatal
the case falls under this section. 1983 All Li 55.
(7) Accused convicted under Section 304 Part 1 of Penal Code for having intentionally and
knowingly, caused death of victim—Appeal against .—Appreciation of evidence—Evidence showing that
only one blow was given on chest with a lathi—No intention of causing death of deceased or intention
to cause dangerous injury proved—Blow had been dealt on spur of moment and after sudden quarrel
with a blunt weapon only—By dealing blow on chest of victim there was fracture of rib and which
unfortunately pierced into spleen and ruptured it resulting in death of victim—Conviction altered from
under Section 304 Part I to one under Section 325 of Penal Code for having caused grievous hurt.
(1984) 1 Crimes 722. .
(8) Where a person dealt a blow to another who fell down unconscious, the former thinking him to
be dead, hung him a rope with a view to make it appear that it was a case of suicide and the victim.
died as result thereof it was held that the offence would be one of causing grievous hurt and not.
culpable homicide. A IR 1953 Mad 239. . . . ..
(8) The assailant will be liable only under the section where a person voluntarily causes grievous
hurt to another and the victim dies subsequent to the hurt:-- . .
(a) a result of a fall. A IR 1949 Mad 648(649): 50 CriLi 896 (DB). -
.(b) on account of some internal bodily defect not known to the assailant. AIR 1932 Oudh 279.
(c) as a result of negligent or wrong medical treatment. AIR 1935 Oudh 446
3, Attack by two or more persons—Liability of assailants.—(1) It two or more persons attack
another and cause several injuries one of which alone is grievous hurt and it is not possible to say
which of the accused caused the injury which amounts to grievous hurt none of the accused can be
convicted for any offence other than simple hurt, unless .there is material to show that thç grievous hurt
he
was caused in furtherance of common intention to inflict an injury of that kind. 1979 (UC) 480.
(2) Injuries causing death—Injuries caused by two persons--Common intention not proved—One
of the accused given benefit of doubt—Other cannot be convicted under s. 302 unless specific injuries
caused by him proved—Accused, held, could be punished under S. 325 as all injuries cannot be said
to have been inflicted by him. 1980 chandcric 144 (P&H). .•. ..
(3) If two or more persons join together and in furtherance of common intention to cause grievous
hurt attack another and cause grievous hurt, all of them can be convicted under this section read with S
34 irrespective of the identity of the person who caused the grievous hurt. AIR 1976 SC 1537.
(4) Where the common intention of the accused is to cause grievous hurt and on j of the assailants
gives a blow which proves, fatal and the evidence does not disclose which of the assailants dealt the
fatal blow; the accused cannot be convicted of culpable homicide, but are liable only under this section.
A IR 1972SC2056 . . .

• (5) Where there was no common intention to kill the deceased and when it was not clear as to who
inflicted the serious injury which was in the ordinary course of nature sufficient to cause death it was
held that. the accused could only be convicted u/s. 325 P.C. 1983 Raj Cr1 Cas 75.
(6) Where the accused, more than five in member are exercising their right of private defence of
property, but one of them exceeds the right of private defence and causes g r ievo us hurt, he alone can be
punished under thig section and not the others. AIR 1919 La/i 458.
Sec. 325 Of Offences affecting the Human Body 955
(7) A hit the deceased with back side of axe—Death of the deeäsed—M ib causing injuries
which were not such as to cause death- .--Conviction of A for murder upheld--conviction of M Under S.
302 read with Sec. 34, P.C. altered to one under S. 325 as there:was no, common intention to cause'
death. A IR 1975 SC 1506
(8) The mere fact that four persons who had comparatively, assigned lesser parts have been
acquitted is.no reason to doubt the prosecution case. 1982 CrILJ (NOC) 36 .,
(9) Fight between two parties With free exchange of stone&—A and B of accused party causing one
injury each to C of complainant party with stones—Injuries resulting in C's death for want of proper
medical care—A and B are guilty under S. 325 and not under S. 300.. 1979 Cr1LJ 558. (J&K).
(10) Accused demolishing obstruction placed. in their path—No unlawful assembly—Individual
members causing grievous hurt liable. 1979 CrILR (SC) 398. . ..
.4. Grievous hurt and right of private defence.—(1) Superficial injuries on person of accused—
Not caused at time of occurrence—No obligation on prosecution to show how the injnriPs occurred.
AIR 1979 SC 1010.
(2) Where the accused had a right of private defence and evidence did not show which of the
accused gave a fatal blow and 'thus exceeded the right, none can be convicted either under S. 304 or
under S. 325. 1979 WLN (UC) 23. .
(3) When the accused was attacked while he was active to maintain his possession of the portion of
the house in his possession he and his associates were held.within their right to inflict injufy in
exercise of his right of defence of his person or property. Their conviction under S. 323/149 set aside
and they were acquitted. 1983 RajCriCas 227.
5. Charge.--(1) Where an accused is convicted under this section by the application of S. 234 the
absence of a specific' mention of S. 34 in the charge sheet does not make the conviction and sentence
invalid, if no failure of justice has been occasioned by the omission. 1961(1)CriL.J 625 (Assam).
(2) Charges under Sec. 147, 323 and 447 P.C. against eight accused including petitioner—separate
charge u/s. 325, P.C. against petitioner—Charges u/ss. 147. 323 and 447 not proved and acquittal of
all accused—Held when evidence in regard to other accused was disbelieved, same evidence cannot be
accepted for convicting petitioner alone u/S. 325 on same facts particularly when he was acquitted u/s.
447 P.C. 1984, CriLl 203.
(3) Where 'a complaint contains charges under this section as well as under S. 323' and the
Magistrate frames a charge under . S. 323, he can at later stage of the trial add a new charge tinder this
section in addition to the charge already framed. AIR 1968 Guj 218. .
(4) There is no illegality in an accused being charged under S 147 and also under this section,
inasmuch as an offence under the former section is a substantive one A IR 1938 Oudh 95
(5) An accused charged under this section can alsO be charged with the auxiliary offence underS•.
367. A IR 1962 A ndhPra 267.
(6) The charge should run as follows:
I (name and office Of the Magistrate) hereby charge you (name of the accused) as follows
That you, on or about the—day of—, at—, voluntarily caused grievous hurt to—, and thereby
committed an offence punishable under section 325 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
956 Penal Code Sec. 325
6. Proof—Evidence.—(l) Before a conviction could be recorded for an offence under this section,
strict proof must be adduced to show that the injury falls under any one of the eight categories
mentioned in S. 320 (1894) ILR 19 Born 247.
(2) Offence under—alleged weapons of offence not recovered from accused—Hence, no direct
evidence to connect accused with alleged offence through the weapon—Accused could not be convicted
under S. 325. 1982CriL.J254.
(3) Where it was alleged that one of the two accused gave one blow with a kassi, a sharp-edged,
weapon, in natural course it would have to be presumed that the accused would use the sharp-edge of
the weapon first and when the post-mortem report did not indicate any injury caused by a sharp-edged
weapon, the accused would be taken not to have caused any injury at all in the absence of evidence to
show that the accused used the reverse blunt edge of the weapon in assaulting the deceased. 1981
A /iLl 972.
(4) Where the medical report showed that the wounds or injuries were of grievous nature and there
was satisfactory evidence of the assault and the injuries were recorded by the doctor in the injury
register of the hospital the accused was liable to be convicted under this section. 1982 CriL.J 1420.
(5) Doctor opining wound was stitched when the victim was admitted to hospital—Prosecution
not explaining as to when'and how the wound was stiched prior to the admission of the injured in the
hospital—Police not lodging F.I.R. thought it has knowledge of the incident—Prosecution evidence
nor reliable—Held it was unsafe to rely on the prosecution evidence and the .accused was entitled to
benefit of doubt. 1983 chandcric 503 (506, 507) (Delhi).
(6) Grievous hurt—Proof—altercation between deceased and relatives of accused—Deceased beaten
by them by kicks and fists—Accused on hearing call of his brother coming out of house and hitting
deceased on head with lathi resulting in fracture of skull—Conviction of accused under S. 325, held
'proper. 1982 A l/Li (NOC',) 55..
(7) Police pursuing suspects on apprehension of offence with respect to opium—Suspects causing
injuries—question whether opium belonged to assailants is of no significance. AIR 1974 SC 1156
• (8) Conviction could not be sustained once it was held that there was a free fight between both the
parties and the accused were not aggressors. (1982) ChandLR (C'ri,) 295 (Delhi.
2

(9) Where the petitioner asked the accused not to damage his standing crop and they began to
abuse him and one of the accused gave a blow with the wooden piece while others held him and
twisted his 'finger thus fracturing it, it was held that evidence should not be evaluated and it-should
only be considered whether the evidence adduced was enough for the commission of the offence. 1983
C'hanci Cri C 457 (P&H).
(10) Complaint under S. 325—Delay in making solemn affirmation of what is stated in
complaint—Absolutely no evidence on record to show that the medical report was in any way
incorrect—No reason given for disbelieving prosecution witnesses—Order of acquittal by Magistrate set
aside. 1981 BLJR 129 (133, 134): 1980 Cr1LC 472.
(II) Conviction under S. 325—Evidence--Inconsistent statements of alleged eye-witnesses even
regarding the time of occurrence (morning or evening)-Inordinate and unexplained delay in filing
F.LR.—Attempt of relatives to bury the dead body of victim without filing any report-All these
throw doubt on the truthfulness of prosecution case—Accused acquitted. 1980 WLN (UC) 144 (Raj).
• (12) Where the accused caused injuries to the victim and the injuries had been proved in
accordance with law by the production of the doctor concerned and the victim was in factory
Sec. 325 Of Offences affecting the Human Body 957

for about 22 to 24 days it was held that the accused was not liable for conviction as it was not proved
by produéing the hospital nurse or attendant that the victim was in severe bodily pain for 20 days and
that he was unable to follow his ordinary pursuits. 1982 A1ILJ 1209.
(13) Conviction of accused under S. 325—Accused, science teacher in govt. High School—
Evidence Of Head Master that accused was on duty on date of occurrence—Benefit of doubt should be
given to the accused—conviction set aside in revision. (1984) 1 Crimes 476 (P&H).
(14) Throwing, a stone at the face of complainant with force—Intention presumed. A IR 1942
Mad 550. .
(15) Where the accused was alleged to have abducted his former wife and caused burn injuries on
vital parts of the body and the wife gave contradiotory statements befo. re police and Court about rape by
many persons and the accused was proved, by documentary and other evidence,, to be in bank at the
time of occurrence, the plea of alibi held, deserve to be accepted and conviction was liable to be set
aside. (1984) 1 Crimes 787 (P&H).
(16) Where in a free fight between two groups injuries were sustained by both parties during the
fight but the injuries, some of them serious, sustained by the accused party were not explained
satisfactorily and also motive seemed to be on the side of complainant party, benefit of doubt would be
given to the accused and their conviction under S. 325 would not be maintainable. (1984) 1 ChandLR
(Cr1) 512 (516, 517) (P&J-1);
(17) Where a group of persons armed with deadly weapons attacked the deceased and caused
serious injuries to the deceased but the witness was unable to identify the, accused persons who
participated in the occurrence the accused could not beheld guilty under S. 325. 1983 WLN (UC) 369.
(18) Where a group of persons armed with weapons caused injuries to the deceased and out of the
injuries to the deceased and no specific grievous injury is attributed to any specific person, none of the
accused could be said to be guilty under S. 325. 1984 A 11r1LR 187 (P&H).
7. Conviction.—.-{I).Where an accused caused grievous hurt and also simple hurt to a person on
the same occasion and is, charged under this section and S. 323, and is convicted under this 'section, he
cannot be convicted separately under S. 323. AIR 1968 Guj 218.
(2) Where a person is charged and convicted for murder, he cannot also be convicted and sentenced
for causing grievous hurt caused in the course of the same Act. AIR 1931 Lah 27.
(3) Where the accused is charged for a major offence and such offence is not proved, he can be
convicted for a lesser or minor offence if the evidence warrants such conviction. AIR 1946 Born 38.
(4) In a case under S. 325 read with S. 149 If the common object of the unlawful assembly was not
proved only that accused who inflicted the injury could be convicted. 1983 UPCr1R 96 (All).
(5) Where several persons are charged with being members of an unlawful assembly whose
common object is to cause grievous hurt and grievous hurt is caused by some of them but rioting is
not proved, the accused cannot be convicted under , this section in the absence of a separate charge as
required by of the Code of Criminal Procedure; AIR 1955 SC 274.
(6) When a Court draws up a charge under this section, it clearly intimates to the accused that,
whether they caused hurt or not, they are guilty by implication of such offence and when they are
acquitted of rioting, all the offenses which they are said to have committed' by implication also
disappear and they cannot be convicted under this section. AIR 1977 SC 709.
8. Sentence.—(l) It is not legal to pass separate sentences where the accused 'are charged both
under Section 147 and S. 149 read S. 325. 1901 PunLR (Cr1) No. 52; P. 111.
958 Penal Code Sec. 325

(2) The punishment provided for an offhce under this section is a sentence of imprisonment
extending up to seven years and a "séntenceof fine can only be in addition to such sentence of
imprisonment which is obligatory. .'Hence, a sentence of fine only under the this section is contrary to
law. A IR 1972.Pat 50.
(3) In awarding a sentence, the Court should take into account the weapon used, the manner in
which the offence was committed and the consequence that ensued. AIR 1956 MddhB 269.
(4) Voluntarily causing grievous hurt—Sentence—Accused was alleged to have caused fracture to
the index finger—Other accused had also suffered injuries in the occurrence—Accused who had caused
the fracture with the blunt end of the gandasa was sentenced to 2.5 years' R.I. Court reduced the
sentence to 6months' R.I. looking to various.circumstances of the case. A IR 1982 SC 1466
(5) Where action of accused was wholly unjustified, no lenient view in the , matter of sentence could
be taken and imprisonment for 5 years was held to be justified. 1981 Al/Li 280.
(6) In view of the facts and circumstances of the case, the nature of the injuries, the young age of the
assailants and the matter relating to 6 years back, a lenient view was called for. 1982 WL.N (UC) 365.
(7) In cases nof falling under S. 335 but coming under S. 325 a substantive sentence of
imprisonment is necessary. A IR 1972 Pat 50.
(8) No premeditation—Heavy sentence need not be passed . AIR 1953 All 491.
(9) Accused 'adopting atrocious torture—Maximum punishment given. AIR 1951 Tray-Co 159.
(10) Probation of offences Act (1958), S. 4--L.-Conviction under S. 325; Penal Code—Having
.:regard to the circumstances of the case, nature of the offence and character of offender, held it was
expedient to release offender in probation of good conduct for period of one year. AIR 1977 SC 1991.
(1 , 1) Criminal .P.C.—Accused young boy on spur of moment causing grievous hurt to victim
resulting in death—Accused already in detention in connection with case—Period of detention of 4
months could be set off under Cr.P.0 1984 CriLJ 833.
9. Compoundaing.—(l) An offence under this section is compoundable with the permission of
the Court. But where the person to whom grievous hurt is caused is dead, the case is not
compoundable by the heirs of the deceased AIR 1915 A11443.
(2) When there is no valid reason for refusing permission to compound an offence under S. 325
offence should be allowed to be compoundable. (1984) 1 Crimes 453 (P&H).
(3) If the accused and, the complainant are willing to compromise,-the refusal of a third party
(master of the complainant) is no sufficient reason to refuse compounding. AIR 1914 Oudh 167.
(4) An accused was convicted under Ss. 325/324. Later parties compounded the case, after High
Court had confirmed the conviction. Parties filed the compromise deed in Supreme Court after
obtaining special leave. Supreme Court allowed the compounding and acquitted the accused thus
reversing the High court judgment. AIR 1981 SC 2008.
(5) Where the injured filed an affidavit that he wanted to compound the offence under section 325
the Supreme Court allowed the compromise and acquitted .the accused of the charge under S. 325, as
regards other offences the conviction was upheld. AIR 1981 SC 1775.'
10. Revision and appeal.—(l) Where a Magistrate convicted an accused under S. 323 and pased
a sentence of fine and the Sessions Court in appeal held that the offence fell under this 'section but
maintained the sentence for the reason that it had no power to enhance the same, it was held by the
High Court that the sentence was not legal as under this section the Court had to pass a sentence of
Sec. 326 Of Offences affecting the Human Body 959

imprisonment and that the proper course for the Sessions Court would be to refer the matter to the
High Court for making the sentence legal. 1955 A 1IW R (HC) 304.
(2) The High Court has a discretion to interfere with the sentence passed by the lower Court, in
proper cases. A IR 1972 Pat SO. .
(3.) In a proper case the High court can reduce the sentence of imprisonment in revision. A IR 1964
Orissa 251.
(4) Where, in a case under this section a sentence of fine only is passed, the High Court will not
interfere in revision and pass a sentence of imprisonment especially in cases where there has been great
delay. A IR 1953 Punj 201. . . ..
(5) Where an accused was charged and sentenced under this section read with S. 149. ante instead
of under S. 333, the High Court did not interfere in revision on the ground that the sentence was not
• manifestly inadequate. A IR 1931 Lah 31. .. ..
(6) Supreme Court in appeal did not interfere with appraisal of evidence. A IR 1974 SC 1156
11. Procedure.—(l)-Where accused were acquitted on a charge under S. 3 .25, simply because
another view could be taken to. the evidence acquittal should not be changed into conviction. 1983 UP
('ri R 79. . . .
(2) F.I.R. showing that accused along with three others had caused dang injuries on the head of the
deceased but in their statements u/s. 161, CrP. Code, the witnesses attributed dang injuries only to
the petitioner and one more and to none else. Post-mortem report showing only one head injury which
proved fatal. Held accused was entitled to bail. 1984 C'hand Cr! C 36.
(3) Procedure—Cognizable---Surnmons--Bailable---comoundable--Triable by the Metropolitan
Magistrate or Magistrate of the first class.
12. Practice.--Evidence--Prove: (1)That the accused caused hurt of any of the kinds described in
section 320.
(2) That the accused intended or knew that he was likely to cause grievous hurt of any kinds so'
described. .. . . . .. .
(3) That the accused did so voluntarily.

:Secfion 326

326. Voluntarily causing grievous hurt by dangerous weapons or means.—

Whoever, except in the case .provided, for by section 335 voluntarily causes grievous
hurt by means of any instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by means of fire or
any heated' substance, or by means of any poison or any corrosive 'substance, or by
means of any explosive substance,' or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to receive into the blood, or
by means of any animal,' shall be punished with '[imprisonment] for life, or with..
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
960 Penal Code Sec. 326

Cases and Materials Synopsis

1. Scope. 9. Procedure.
2. Corrosive substance. Ui. Evidence and Proof.
3. Grievous hurt resulting in death. 11. Conviction.
4. "VoluntarIly". 12. Sentence.
S. Attack by several, persons—Common 13. Appeal,
Intention. . 14. Revision.
6. Unlawful assembly and grievous hurt. •. 15. Charge.
7. Instrument. used as a weapon of offence. 16. Practice.
8. Right of private defence and grievous hurt.
1. Scope.-1),'The provision of this section can only apply to a person, who does a substantive
act himself, namely, Inflicts a blow,which causes grievous hurt (6 CW N 98). The act of the offender
must have been done voluntarily; Unless the weapon used is deadly and the hurt intended or known
likely to be caused'wets grievous there can be no conviction under this section AIR 1939 Mad 507). In
all cases of voluntarily causing grievous hurt the evidence of the medical officer who examined and
attended on the person to whom the hurt was caused should, ' if obtaiiable without unreasonable
expense or delay, invariably be taken; Although section 326 provided for injury, by corrosive substance,
the nature, of corrosive substance and the quantity of it and result following from it have always to be
the determining factors in finding out whether or not the act complained of was likely to cause death.
Tooth is an instrument for cutting and serves as.a weapon of offence and defence and, consequently, an
injury caused , by teeth bite would be an offence under section '324 or 326,. depending upon whether the
injury is simple or grievous. The biting off on the tip of the nose, by teeth would be an offence under
section' 326 (1970 Cr1LJ 1235). Nose cutting is a very serious offence and sentence.of six months'
rigorous imprisonment under this section cannot be said to be excessive. When one person was killed
and several others were injured in a fight between two parties, there was no proof as to which party was.
the aggressor. It was held that all the accused must be acquitted, because in the absence of a finding as
to who was the aggressor the accused was entitled to acquittal (PLD 1 .977 Quetta 32). The primary
meaning of the word 'fracture' is 'breaking'. Unless a bone is cut through a mere cut in the bone
would not make the injury grievous, it is the fracture or dislocation of a bone which falls under the
definition of grievous hurt (38 CrLf 960). Cases of rioting in which a plea. of private defence is raised
'should be decided strictly on their own facts and prèvioCs decisions are only useful in so far as they
indicate the general, principles which may apply to approximately similar set of facts (19 crLf 983).
For an offence under this section, a sentence of mere fine is not permissible. Normally, in cases, of
grievous hurt, where deadly weapons are used, the proper sentence to be imposed is a sentence of
imprisonment. In order to believe the story of an apparently unjustified attack, it must be supported by
an unambiguous and unimpeachable evidence. Where there is considerable 'unexplained delay in FIR
prosecution witnesses 'change their statements from time to time, endeavouring to patch up weak link
in prosecution case and resile from their statements and no material corroboration of earlier statements
is available, the accused must be given benefit of the doubt and acquitted (1969 PCrLJ 1453).
(2) The bare fact that the complainant's left thumb was chopped off is enough to sustain the
conviction of the appellants—complainant haying been corroborated by his earlier statement in the
F.I.R. and other witnesses—there is no necessity of looking for the medi9al evidence as to the injuries
on the buttock. The prosecution simply produced the Admission Register to prove that the
0101 nees affecting the human Body 961
Sec. 326
complainant was admitted in the hospital and that he was there for 25 days. This Register, again,
entered only one injury. No other injury was mentioned in the admission Register. Osman All Ilepari
& anoilwr Vs. The Stale. I BSCD 244.

(3) Conviction and sentence u/s. 326 read with Sec. 114, PC—When both the parties took-part in
the assault the sentence, whether may be reduced to the period already undergone—This period
appeared to be two years—In view of the nature of the injuries and the weapons used by the appellants,.
for ends of justice sentence was reduced from six years to four years and six months by the Appellate
Division (other things remaining the same). Md. Rezaul and ors. Vs. The State. BCR 1985 AD 415.
4 f'.. . . ....
(4) Offences under the section—Bail not a matter of right. Since an offence under section 326 is
punishable with transportation for life, the accused could not claim to remain on hail as of right.
Go/am Haider Vs. Karim Baksh (1963) 15 DLR (SC) 2.

(5) Accused causing death, acting in the right of private defence of property. Intention to kill

cannot be attributed to the accused though knowledge that he was likely to kill could be so
attributed—Charge under section 302, P.C. but conviction undersection 326—In the absence of appeal
by the Crown, conviction under section 326 maintained and sentence enhanced under section 439 Cr.
PC Boga Vs Crown (1954) 6 DLR (W PC) 130
(6) Appellant Nos. 2-6 cannot be convicted under section 326 of the Penal Code without framing
any charge under section 34 or 149 of the Penat Code and without leading any evidence as to their
acting in concert or in pürsuänce of any common object. Ibrahim ' Mo/lab Vs. State (1988) 40 DLR
(AD). 216. .,. .

(7) Appellant Nos t-6 cannot be convicted tinder ecti6n 326 of the Penal Code without framing
any charge under section 34 or 149 of the Penal Code and without leading any evidence as to their
acting in concert or in pursuance of any common object. Ibrahim Mo/lab ' Vs. State 40 DLR (AD) 216.
(8) Whether grievous hurt caused by the blunt side of the spade falls under Section 326 of the
Penal Code—If the weapon of Qflence is likely to cause death the olThncc shall come within the
mischief of.Section 326 of the Penal Code irrespective-of the fact that the injury was.caused by the
blunt side of the weapon or by its sharp side—Spade is an instrument which, if used as a weapon of
offence, is likely to cause death. Moftizzal alias Md. Mofazzel Hossain and another Vs. The Slate 7
BLD 'HCD) 406. .. .

(9) Ingredients of offence u/s 326—A hurt must conform to the ingredients. of section 320 of the
Penal Code in order to be grievous and punishable under section 326. When the evidence on record are
not clear and specific as to the inflicting of the injury by the particular accused and the Medical Officer
while examining the hurt did not mention as to the ingredient of the eighth clause of section 320, the
sentence under section 326 of the Penal Code does not appear to be perfectly justified and accordingly
the sentence is reduced under the circumstances from one u/s. 326 to that u/s.. 324 of the Penal Code
with the sentence already served. Abdul Jalil Vs. The State—'4, MLR (1999) (AD) 262.
' ections 326 and 353
(10)ConvictionSustaiflabilitY_The Conviction and sentence passed under .
• ofthe Penal Code on the basis of consistent oular' evidenc Of the occurrence taking place in broad day.
light cannot be interfered with by any other liberal construction not warranted by thç facts and evidence
on record. Nura Miajee Vs. The State 2, MLR (1997) (AD) 86.
(11) Distinction between the demarcation line between the culpable homicide not amounting to
murder and grievous hurt is thin. In the former case the knowledge or intention as to the likelihood of,
death and in the later the knowledge as to endangering life of the victim is the essence which makes
962 'SPenal Code Sec. 326

the difference between section 304 and 326 of the Penal Code. Hurnayun Maizibbar Vs. The Staie-4.
MLR (1999) (HG) 176
(12) Neither the victim nor the doctor has told that victim sustained grievous hurt nor a scrap of
paper has been brought on record to show that victim had been in hospital for more than 20 days in
severe bodily pain or unable to follow his ordinary pursuit, the injuries sustained by the victim do not
come under the mischief of section 326 and 326A of the Code. A naddi alias A yenuddin and ors Vs.
State ('Grim/na!) 6 BLC 310.
(13) As the convict-appellant not given fikal blow, he cannot be found guilty under section 326. 4
BLC (AD) 12.
(14) Section 325 and 326 distinguished. In a border line case between section 323 and 325 of the
Penal Code the accused would be entitled to the benefit of doubt and be convicted under section 323 of
the Penal Code and not under section 325 (Ref I BSCD 244). 41 DLR. 134.
(15) Principle of trial of counter-cases by the same court—Whether the same principle is applicable
to the appellate court—Disposal of appeals by the same court for better appreciation of evidence
preferable. High Court Division's observation is not founded upon correct appreciation of the principle
governing the counter-cases. Neither of the parties in the case and counter-cases are entitled to
protection of law as none of them were in actual possession. In view of the peculiar facts and
circumstances of the case, the sentence of the appellants should be reduced, 7 BCR 71 AD.
(16) Prima facie case against the accused persons on the basis of examination of 7 witnesses
through ajudicial enquiry by a Magistrate to whom the case was sent by the SDM after examination of
the complainant. No exception can be taken to this. The observation by the High Court Division is
unwarranted. No interference is called for. 7BCR 168 AD.
(17) Conviction of accused under section 148, 324, 149 and 3261149 of the Penal Code cannot be
sustained merely on the basis of omnibus statement of the witness that they and several others came
armed with weapons like leja and.sacid. For coming to a definite finding whether each of the accused
persons were members of the unlawful, assembly and did commit the offence of rioting in prosecution
of the aforesaid common object of the assembly, overt act of each accused and weapon used byách
accused have necessarily to be considered. 34 DLR 94.
18) Court's primary duty is to find out as to whether evidence led by the prosecution is true and
• substantially proved the occurrence and the persons charged actually participated in the same. I BCR
70. SC. .
'. (19) Medical evidence seriously in conflict with ocular testimony and confirmatory circumstance
available' on record to suggest participation of accused in occurrence. One of two independent witnesses
simply not supporting prosecution case while other given up as having been won over. Accused, held
entitled to benefit of doubtful circulnstances—Conviction and sentence set aside. 1982 PC'rLJ 485.
(20) In order to impose enhanced punishment under this section for causing grievous hurt such
hurt should have been caused by any of the means mentioned in this section. (1906) 7 Cr1LJ36Z
(2 1 ) This section does not apply:—
(a) Where the hurt caused is not a grievous hurt. AIR 1980 SC 106.
(b) Hurt is not voluntarily caused or is caused by means other than those refirred to in this
section. 1967 KerLT 223. -
• Sec. 326 Of Offences affecting the I luman Body 963
(22) Where in consequence of the injuries caused on the lower jaw by the spear, the victim was
neither disfigured nor any deformity came on the jaw of the victim, the accused could he convicted
only under S. 326 and not under S. 307. 1980 411Li 890.
(23) Accused giving blow with knife' on abdomen of victim—Doctors who had examined kind
treated the victim not produced being unavailable—Nature of injuries proved to be grievous from
medico-legal certificate and case sheet prepared by doctors in discharge of official duties—Victim not
capable of following his ordinary pursuits for a month—Conviction of accused under S. 326, valid.
1982 CrIL.J (NOC) 98.

• (24) Where the accused caused grievous hurt in a murderous attack to a victim (a &iend) taken out
for an evening stroll by abusing trust reposed by him and the grievous hurt resulted in permanent loss
of the left hand index finger and fingers of right hand the accused were liable to be convicted under this
section. 1981 C'riL../ 840 (P & H).
2. Corrosive substance.-.()) A causing of grievous hurt by throwing Sulphiric acid will conic
within this .section. (1970) 1 Malayan LJ49.
• 3. Grievous hurt resulting in death,--(I) Where the grievous hurt causedhas resulted in the
death of the Victim the question whether. the case falls under. this section or S. 29 or 300 depends
upon the intention or knowledge of the accused. If the grievous hurt was caused with the intention of
causing death, but death has not actually resulted the accused should be found guilty under S. 307
rather than under this section. AIR 1941 Mad 489(491) : 42 CriLJ 821 (DB):
(2) Both accused convicted for murder simplicitcr but acquitted of charge of S. 300 nw S. 34—
Injuries caused by one only sufficient in ordinary course of nature to cause death—No appeal preferred
against acquittal of accused, injuries caused by whom were not sufficient in ordinary cour$e of nature
to cause death, on charge of S. 300 nw S. 34—Held, accused, injuries caused by whom were not
sufficient in ordinary course. of nature, to cause death, could he convicted with aid of S. ,34 in appeal
filed by accused. Accused, however, was convicted of oflcnce under. S. 326 nw S .34. 1983
Cr1LJ 1411. . . ..
(3) Where there is no intention to cause death or knowledge that the gnievoushurt would be likely
to cause death this section will apply. AIR 1977 SC 893. ..
4. "Voluntarily".--7(I) The nature of the instrument and of the injuries will be valuable evidence
in ascertaining the intention of the accused in using the instrument. 1955 Madh fiLl 'HCR) 1239.
(2) Accused had, thrown bomb at deceased as a result of which she . died—Held that the act done,by
accused was with the knowledge that it was likely to cause death but without any intention to cause
such bodily injury as was likely to cause death and hence he was guilty under S. 304, Part II and not
under S. 326. 1982 CriLJ (NOC) 94 (Orissa). . .
5. Attack by several persons—Common intention.-.—(l) Where two or-more persons join
together with the common intention of causing grievous hurt only to another person and one of them
armed with a deadly weapon attacks him in pursuance of the common intentiort,and causes grievous
hurt, all the accused will be liable only under this section, even if death ultimately results. AIR /979
SC 1755.
(2) Where the common intention is to cause death, and death has resulted and the crime amounts
to murder, the accused cannot be convicted under this section read with S. 34. AIR 1954 SC 706.
(3) Where one of the assailants exceeds the common' intention, to cause grievous hurt only and
,
inflicts a fatal injury he may be liable individually for culpable homicide. AIR /935 Rang 299.
964 Penal Code Sec. 326
(4) Attack by several persons—Only one of them intending to cause grivous hurt—Others cannot
be convicted of grievous hurt but only of simple hurt if their common intention was to cause such
hurt. AIR 1977 SC 619.
(5) Where in a murder case the eye-witnesses did not clearly state that accused continued to hold
the deceased till assault was over by another accused and the evidence only showed that accused
(appellant) had caught hold of deceased and had scuffled with him while the other accused had taken
out knife and commenced assault, it was held that it could not he said that the accused (appellant)
shared intention of.the other accused to murder the deceased but the appellant was vicariously liable for
offence under S. 326 read with S. 34. AIR 1982.-SC 1228.
6. Unlawful assembly and grievous hurt.—(l) Where the common object of an unlawful
assembly is to cause grievous hurt and a member of the unlawful assembly causes grievous hurt, all
the members of the unlawful assembly are liable under this section read with S. 149. AIR 1972
SC 860.
(2) If any member of an unlawful assembly whose common object is only to cause grievous hurt,
actually causes the death of the person attacked and it is not possible to ascertain who caused the death,
all the members of the assembly will he liable only under this section nw S. 149. AIR 1967 All 437.
(3) Where the accused are charized under S. 149 read with this section and there is no proof of the
existence of the unlawful assembly, the accused cannot be convicted under this section. AIR 1915 Cci!
292; AIR 1981 SC 1219.
(4) Persons charged under this section can be convicted under this section read with S. 149 if no
prejudice is caused to the accused. AIR 1956 Orissa 171.
(5) Where the offence of grievous hurt is not committed in furtherance of the common object of
the unlawful assembly, the other members of the assembly will not be liable under this section. AIR
1972 SC 1221. . . . . ..
(6) Charge against members of unlawful assembly under Ss. 326/149—Some members acquitted
of that charge—Remaining members would also have to be acquitted of the same charge as otherwise it
would be unair and delf-contradictory to convict others. AIR 1978 SC 1647.
7. Instrument used as a weapon of offence.—(I) Grievous hurt caused by the following
instruments used as weapons of offence has been held to be offence within the
the meaning of this
section:— .
(a) Axe. AIR 1955 SC 216.
(b) Dao or chavi or sharp weapon. AIR 1953 Assam 28.
(c) Knife or razor blade. 1969 CriLl 691. .
(d) Revolver or gun. ILR (/963)15 Assam 552.
(e) Hot ladle. AIR 1935 A/1282.
(I) Arrow. 1954 MaJhBLJ ([ICR) 1314.
(g) Jumper or cudgel or iron-shod stick. AIR 1961 Mvs 74.
(3) A blunt piece of wood is not a dangerous weapon or one which, used as a wapoii of offence,
is likely to cause death. AIR 1951 Trav-Cn159.
8. Right of private defence and grievous hurt.—(l) A person is entitled to resist and repel
aggression against him or his property in the exercise of his right of private defence. AIR 1976
SC 2423.
Sec. 326 Of Offences affecting the Human Body 965

(2) Under S. 97 the right of private defence extends not only to the defence Of one's own body but
also to that of the defence of any other person. AIR 1969 NSC 134.
(3) Charge of murder—Admitted enmity between two factions—Injuries on both sides—Nature of
injuries on prosecution party and gunshot injuries on accused party suggesting that attack by accused
party,followed firing of pistol though nothing could be determined with certainty—Injuries on
prosecution party inflicted after pistol was snatched resulting in death of one of them-1-ield accused
hd exceeded their right of private defence and were guilty under S. 326 nw , S. 149 though charge
under S. 302 nw S. 149 was not proved. AIR 1980 SC 864.
(4) A plea of private defence is not barred merely because accused also raises a plea of alibi. AIR
1961 Mys 74.
9. Procedure.—(1) In i case under this section, a Magistrate should• or'dindiIy cOrithit the
accused to the Court ofSession for trial, as the offence is punishable with a sentence of Imprisonment
for life or imprisonment up to tenyears and fine. (1892) ILR 16 Bom580. .
(2) A magistrate of the first class empowered under S. 30 of the Code of Criminal Procedure to try
such cases was held competent to try the case if he thought that a sentence ofiess than , two years was
sufficient; but if hethought that a heavier sentence was called for, he should commit the case for trial
to the Court of Session. .41R 1959 Pun! 98.
(3) Although offence under Sec. 326 is not compoundable yet when the parties are related and
come to a compromise though the offence cannot be compounded yet the compromise can be taken
into consideration in awarding a sentence In instant case accused 's sentence was reduced to period
already undergone 1983 ChandCriC 390 (P&H)
(4)Where several, accused including a police officer were prosecuted under Ss. 302, 326 and 307,
and the offence under S. 302 was confined only against police officer, in the absence of sanction under
S. 132, Cr.P.C., cognizance against police officer could not be taken and as such though there was no
scope for taking cognizance of offence under S. 302 against remaining accused, prosecution for offences
under Ss 326 and 307 could proceed against them 1981 CrzL.154!
(5) Procedure—Cognizable—Summons—Not bailable—Not compoundable—Triable, by. Chief
Metropolitan Magistrate, District Magistrate or Additional District Magistrate specially empowered.
10. Evidence and proof.—(I) As a general rule, in all cases of grievous hurt, the evidence of the
Civil Surgeon who examined the injured person, if available without delay or expense must be taken.
If not taken, the accused will be entitled to the benefit of the presumption which would arise from the
prosecution withholding the best evidence. (1872-1892) Low Bur Rul 292. -
(2) Assault by several persons—Victim receiving injuries caused by axes and spears including a
fracture of frontal bone—Victim stating in F.I.R. that accused A had given him one blow with his
(A's) stick on his head—In his evidence in trial Court victim stated that he was hit with axe on
forehead by accused A and another accused—Only one incised injury found on forehead of victim—
Serious infirmity in evidence of victim—Held in the facts and circumstances of the case that accused 'A
could not be convicted for offences punishable under S. 326 read with S. 34. (1983) 1 BomCR 476.
(3) Injuries—both simple and grievous hurts were caused by sharp-edged weapon. Two of
the injuries were declared grievous by probing into them by fingers without getting the injuries
X-rayed. Held under these circumstances a charge u/s. 326 was unsustainable. (1984) 1 ChandLR"Cri
I (P& II).
966 Penal Code Sec. 326
(4) Where two gunshot wounds one in eye and another on abdomen were found on victim's body,
the wound on abdomen only was attributable to shot fired by accused, and the same was not sufficient
to cause death according to Doctor's opinion, the abdominal wound could be described as grievous
injury, and the accused, could therefore, be held guilty under S. 326. AIR 1981 SC 451.
(5) Where in the First Information Report, it was specifically mentioned that the accused had
during the course of fight left the place of occurrence and brought an axe from his home and gave a
blow to the victim with it on his head and the statements in this regard were also corroborated by the
medical evidence and the statement of the doctor also disclosed the injury to be of grievous nature, the
conviction of the accused wider. S. 326 would be maintainable. 1982 Cr1L.136,
(6) Where the accused was convicted under S. 326, and he was alleged to have given 'gandasa'
blow on the right forearm of the injured, whose testimony was discarded by the trial Court in tote, one
of the co-accused was acquitted by the trial Court, injury on the person of the co-accused Was
unexplained, inordinate delay occurred in lodging F.I.R. in such circumstances it would not be safe to
maintain the conviction of the accused. 1984 ChandcriC 65 (P & H).
(7) Charge of offence under S. 326/34—Prosecuti9n failing to explain injuries sustained, by
accused which were no less serious than injuries sustained by prosecution party—F.i.R. not specifying
the role of accused persons--Independent witnesses cited in report were not examined—Held, in the
facts and circumstances of the case that the accused was entitled to acquittal. 1982 A//Li 530.
(8) In a dispute over theft of crop, the accused, armed with pharsas and lathis, beat the victims
who died. There was a single blow on head and other injuries, mostly on limbs and on non-vital parts
as disclosed by post-mortem by doctor. The head injury was grievous. Considering the evidence and
the circumstances it was held that the object was to cause grievous injury with dangerous weapons.
1983 RajLW 656.
(9) An accused can be punished for an offence under S. 326, P.C. Where he is charged under S.
307 and though he is not originally charged under S. 326, P.C. 1984 Delhi Rep J351.
11. Conviction ^ ( 1) If a person is charged under S. 397. and also under this section and if the
charge under the former section is not proved the accused can be convicted under this section, provided
the 'facts prove the offence. AIR 1914 Mad 425 (428) 13 Cr/LI 730 (DB).
(2) Where an accused is tried for murder, he can be convicted in the same trial for the minor
offence under this section for causing grievous hurt. AIR 1939 Par,61I.
(3) As an offence under this section is not minor offence in relation to an offence under S. 307
and hence ordinarily a person charged under S. 307 cannot be convicted under this section. AIR 1956
Raj 39.
(4) An accused can be charged with an auxiliary offence under S. 367 along with the main offence
under this section; but as the offence under S. 367 cannot be tried by a Magistrate, committal by the
Magistrate after framing of charges is justified. AIR 1962 And/iPra 267.
12. Sentence.--(I) In considering the sentence to be passed the nature of the injury, weapon used,,
and the part of the body on which the injury was caused are important factors to be considered. AIR
1970 Guj 186.

(2) Looking to the nature of the offence and the manner in which it was committed and also the
nature of injuries and that it was not premeditated, the benefit of probation was granted to the
petitioner. 1983 Raj Cr/C 315.
Sec. 326 Of Offences affecting the Human Body 967
(3) An order to give security is uncalled for where a sentence of transportation or imprisonment is
passed for an offence under this section. (1909) 10Cr/U 69(76) (FB) (LowBur).
(.j) Where an accused person is convicted under S. 397 for dacoity of which grievous hurt is an
intclart, separate sentences under S. 397 and this section should not be awarded in view of S. 71.
A IR J916 Mad 582.
(5) An offence under S. 328 being part of the offence under this section, separate sentences under
the former and this section are not proper. AIR 1949 Oudh 48.
(6) Separate sentences cannot be passed under this section and S. 323 in a case of grievous hurt to
a single person. A IR 1927 Oudh 313.
(7) Where an accused, a boy of 15 years was convicted under S. 326 nw S. 149, only for being a
member of unlawful assembly which chased the deceased but, no overt act was alleged on its part,
sentence of 2 years' R. I. was imposed having regard to his age. AIR 1980 SC 1716.
(8) The fact that a quarrel which resulted in grievous hurt was a sudden one arising in the heat of
passion or was due to provocation is a mitigating circumstance in favour of the accused in passing the
sentence. A IR 1943 Mad 68/;
(9) Accused throwing acid on the face of a young girl—Held accused committed a ghastly crime
ruining the life of the girl—Conviction under Ss, 326 and 324—Accused . a student and already in jail
for 14 months—Imprisonment under S. 326 reduced to already suffered and fine enhanced from Rs.
2500/- to Rs. 7500/-. (1982) 2 SCC 395.
(10) Where an accused attempts to cause grievous hurt with.a deadly weapon, the offence is
punishable under this section read with Section 511. (1904) I CriLl 1078 (1082) (La/i).
(11) Though an offence under this section is not compoundable, the fact that the parties who
belong to one family have settled their dispute and compromised, may be considered in determining
the quantum of the sentence and lesser sentence awarded. AIR 1973 SC .2418.
(12) Both the hands of the victim were almost maimed by the shots fired by the accused—Held
that there was no scope for reducing the sentence of three years' R. I. AIR 1979 SC 1432.
(1. 3) Assault resulting in death ofvictim—Boy of 14 . years of age participating in a moment of
excitement and some provocation—Conviction under Ss. 326 and 323—Sentence of imprisonment for
a period of two years and three months rôspctively reduced to the period already undergone. (/969) 2
SCW R 9/.
(14) In view of the fact that the accused had already suffered imprisonment for about four years
held that ends of justice would be served if accused was let off with the term already suffered. 1966
Cr! App Rep (SC) 303. ,.. ..
(IS) Conviction . of accused under S. 302/149 altered to one under Ss. 326/149 by High Court in
respect of accused other than actual assailant—Accused released on bail after he had already undergone
sentence or about 2.5 years—Case pending in Supreme Court for about 6 years—Sentence reduced to
period already undergone in respect of those accused. AIR 1983 SC 166. .
(16) Occurrence took place 4.5 years back—Accused suffering from shock of alleged murder of his
son that occurred a lw days before occurrence—Accused 72 years old—Sentence of imprisonment for
7 years reduced to 2 years. 1984 CriIJ.t7'IOC) 45 ('Gauhali).
(17) Sentence—Occurrence taking place about 3 years back—Sentence of one year reduced to 6
months—Fine of Rs. 400/- imposed in addition to the fine imposed by trial Court and in defiult in
payment of fine to suffer further R.I. for 6 months. 1984 AlIlmi CriLR 193 (P&H).
968 Penal Code S. 326A

(18) Conviction uftaer Ss. 324, 325 and 326 P.C.—Appellants surrendering and agreeing to
deposit fine in the Court on the same day—Sentence reduced to six , months rigorous imprisonment
and a fine of Rs..5OO.00 to be paid by cash—Fine directed to be paid equally to two injured persons.
(1982) 3CG197.
13. AppeaL—(l) In an appeal against the-acquittal of' the accused oil charge under this section,
the accused is not precluded from putting forward a ease inconsistent with the finding leading to the
conviction'. (1951) 2'buf LR 274.
(2) Where, while granting special leave for appeal, the scope of the appeal was limited to the
applicability of the Prôbatidn of Offenders Act to the case, the Supreme Court refused to go into the
question of the sufficiency of the evidence for a conviction under this section. AIR 1973 Sc 2427.
14.Revislon.—(I) Where in convicting an accused under this section. the Sessions Court relies
upon the testimony of certain witnesses, it is not the province of the High Court, in a criminal
revision to dispute the findings of fact fairly arrived at by the trial Court. AIR 1919 Pal 534.
(2) In art occurtence both complainant party and party of petitioners received injuries—Cross
t

cases—Magistrate ecorded conviction of petitioners and acquitted complainant side—Revision
against—Held, both courts below cannot reject version of prosecution and introduce a new version of
free fight which was case of neither of the parties—Benefit of doubt given to petitioner, their sentence
and conviction set aside (1984) 1 Cranes 663 (P&H)
15 Charge —(1) Grievous hurt caused by sulphuric acid—Charge under Corrosive and Explosive
Substances and Offensive Weapons Ordinance, 1958—Held charge should have been laid under S. 326,
Penal Code (7970) 1 tMalayan Li 49
:
(2) The charge should run as follows:: : •. :
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the day oc— at—voluntarily caused grievous hurt by means i1' wlich is an
instrument for shooting or stabbing etc, and thereby committed an offence punishable under section
326 Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
16. Practice.—Evidence—Prove:(l)That there was the causing of grievous hurt by the accused.
(2) That is was caused voluntarily.
(3) That the accused received no provocation for the same.
(4) That such grievous hurt was caused by means of an instrument for shooting, etc, or by means
of any instrument which is used as weapon of offence, is likely to cause death or by means of fire, etc,
or by means of any poison, etc or by means of any substance which it is deleterious to the human
body to inhale, etc, or by means of any animal.

• . .
Section 326A .

10
1 Voluntarily causing grievous hurt. in respect of both eyes, head or
326A. .

face by means of corrosive substance, etc.—Whoever, except in the-case provided

for by section 335, voluntarily causes grievous hurt of the kind mentioned in—

;.........,1 I... (..,1..,,,..,. S YI •V ,.*' IOQ.1

Sec. 327 Of Offences affecting the Human Body 969

(a) clause 'secondly' of section 3 .20 in respect of both the eyes either by gouging
out the same or by means of any corrosive substance; or
(b) clause 'sixthly' of section 320 by means of any corrosive substanáe,
shall be punished with death, or '[imprisonment] for life, and shall also be liable to
fine.].
Cases and Materials
1. Scope.—(1) This section is new and inserted by Ordinance No LXIX of 1984 dated 1-28-84.
This is one of the sections where there is provision for death sentence as in sections 121, 132, 194,
302, 303, 305, 307, 326A, 364A, 396 PC.. This section applies only to the person who does
substantive act himself namely, throws acid or corrosive substance which causes grievous hurt or death
as defined in the section. The weapon used must be corrosive and the limit-intended or known to be
likely, to be caused should be grievous. Althpugh section 326A provided for injury by corrosive
substance the nature of the corrosive substance and the quantity of it has not been mentioned.' This
section has been inserted because there was amenace of acid throwing throughout the country, go this
legislation has been made to meet the seriousness of the offence and to curb the same. In organic acids
like sulphuric, hydrochloric and nitric kid have a ideal chemical action of corroding and destroying the
tissues they come into contact with coagulation, necrosis is produced by the precipitation of protein
and may produce fatal consequences, if extensive. They act as irritants. Malicious persons occasionally
resort to strong sulphuric.acid to disfigure the face or ruin the person by throwing a quantity of it. Old
electric bulbs or bottles filled with acid are often thrown in dustbins of the cities or thrown when the
victim sleeps,. or may be thrown at a beautiful young woman in zealous pursuit. Death may occur from
the severe ' burn inflicted on the skin Where the accused threw acid on his victim's face, eyes and other
parts of the body which resulted in total blindness for life, the accused should be given death sentence.
(2) The offerce of gouging out eyes falls with section 326A of the Penal Code. Dilu alias Deiwar.
Hossain Vs State, represented by the Deputy Commissioner, 48 DLR 529.
(3)"A plain reading of the section shows that all kinds of grievous hurts are not included in this
new Section—Of the 8 kinds of hurts specified in Section 320 of the Penal Code only the 2nd and the
6th kinds of the grievous hurts caused in a particular manner and in particular parts of the body of the
victim by particular means have been made offensive and punishable under Section 326A of the Penal.
Code, which if proved, the accused may be awarded the highest punishment of death—The offences
under Section 326A are quite specific and distinctive having specific ingredients--in the absence of
any finding that the victim sustained any permanent deprivation of his eyes either by gauging out the
same or by means of any corrosive substance or that the victim suffered any permanent disfiguration of
his head or face by any corrosive substance, the conviction under SectiOn 326A of the Penal Code is
not sustainable. A lamgir and another Vs. The State 12 BLD (HCD) 472. .
2. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable Triable by Court of
Sessions. .

Section 327
327. Voluntarily causing hurt to extort property or to constrain illegal act.—'
Whoever' voluntarily causes hurt, for the purpose of extorting from the sufferer, or
970 Penal Code Sec. 328

from any person interested in the sufferer, any property or valuable security, or of
constraining the sufferer, or , any person interested in such sufferer to do anything
which is illegal or which may facilitate the commission of an offence, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
Cases and Materials
1. Scope.—(1) This Section may be read along with section 30, 39, 40 and 44 of the Penal Code.
The word 'constraining' has been inserted with a view to make the section applicable to all cases
where, ii-extortion' could not be proved, a compelling or constraining against the sufferer's consent
would equally be an offence
(2) The word 'property' must be taken to mean both movable and immovable property, and
therefore the voluntarily causing of hurt to a person to compel him to give to the accused their shares
in immovable property will be an offence under this section on the ground that the word 'property' was
defined in General Clauses Act, as including both movable and immovable property. A IR 1951 Hyd
91.
(2) Accused charged with forcibly obtaining one thumb impression of complainant on plain sheet
of paper—Discrepancy in the prosecution evidence regarding plain sheet of paper—Recovery of
promissory note and certain receipts bearing two thumb impressions of complainant from accused
immediately after the alleged occurrence and dated earlier to the date of occurrence. Held, that acquittal
of accused under S. 327 P.C. was fully justified. 1983 Raj Cri Gas 166.
2. Practjce.—Evidence_.prove. (1) That the accused caused hurt.
(2) That The accused caused such hUrt in order to extort from the sufferer, or person interested in
him, some property or valuable security; or that the accused caused such hurt in order to constrain the
sufferer, or a person interested in him to do something illegal, Or to facilitate the commission of an
offence.
3. Pro cedure.—Cognizable—Warrant—Not bailable_—Compoundable—Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate or Magistrate of the first class specially
empowered by the Government.
4. Charge.—The charge 'should run as follows:
I, (name and office of the Judge/Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—Voluntarily caused hurt to—for the purpose of extorting
from the said—(or from a certain person interested in the said), to wit—a certain property, to wit—,
and thereby committed an offence punishable under section 327 Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 328
328. Causing hurt by means of poison, etc. with intent to commit an
offence—Whoever administers to or causes to be taken by any :person any poison or
any, stupefying, intoxicating or unwholesome drug, or other thing with intent to cause
hurt to such person, or with intent to commit or to facilitate the commission, of an
Sec. 328 Of Offences affecting the Human Body 971

offence or knowing it to be likely that he will thereby cause hurt, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine..
Cases and Materials Synopsis
1. Scope. 8. . Attempt. .
2. "Administers". 9. Sections 307 and 328.
3. Supplying drug at the instance of the victim 10. Liability where death occurs.
himself. . 11. Onus of proof
4. Mens rea. . - 12. Procedure.
5. Poisbn, etc. 13. charge.
6. "any person". 14. Sentence.
7. "Facilitate the commission of an offence". 15. Practice,
1. Scope.—(l) This section is intended to punish persons who, rob or ravish peoile by putting
them out of their sensesl,y means of stupefying drugs, which facilitates the crime and prevents its
detection. Where the poison is administered under 'a misconception and without the knowledge that it
is a poison, the section does not apply. An offence under section 328 is a part of the offence under
section 326. Where, therefore, an accused has been sentenced under section' no separate sentence
under section 328 can be passed in view of section 71 (47 CrL.J 66). .
(2) This section and not S. .326 applies to acts not endangering life. (1865) 4 Suth W R 4(5).
2. "Administers".—(l) It is not necessary, in order to constitute an administering, that there
should be a delivery by the hand. (1830) 4 C and 369.' .
(2) Where a servant puts poison into the coffee pot and tells the mistress that she has put the
coffee pot for her breakfast and the mistress drinks it, it would amount to administering poison (1830)
4 C&P 369. . ., . .
(3) Where the accused employed a 'Medicine man' for detecting the culprit who had stolen his
cash and the latter administered poisonous substance to all the villagers stating that it would cause the
belly of the thief to bulge and three persons exhibited .syniptoms of poisoning and suffered for a
fortnight, it was held that the accused was rightly convicted of administering an unwholesome drug
likely to cause hurt. 1 Weir 335(336). . .
3. Supplying drug at the instance of the victim himself.--(I) Where a pregnant woman asked
the accused to procure for her a drug for causing miscarriage and the accused procured it and gave it to
her and she took it and had miscarriage, it was held that the accused was guilty of administering the
drug with the intent of causing miscarriage. (1856) 169 ER 945. .
(2) Supplying or procuring poison at the instance of the person desirous of taking it does not
Amount to administering the drug. (1862) 31 LJMC 145 (146) .
4, Mens rea.--41) For an offence under this section that the accused should have intention or
knowledge referred to in the section. 1957 Jab LJ 841 (845). .
(2) In the absence of proof of knowledge or intention referred to in the section the accused cannot
be found guilty under this section. AIR 1955 Ajmer 48. .
(3) Where a boy of l6 persuaded another boy of 12 to give sweetmeats containing 'dhatura to a girl
of 13 in order to make the girl interested in him and the girl took it and became delirious, it was held
972 Ok Penal Code Sec. 328
that the accused had no intention to cause hurt or to commit a crime or to facilitate the commission of
a crime but that he must be presumed to have had the knowledge that he might cause hurt thereby and
hence was guilty of an offence under this section. AIR 1924 All 215.
5. Poison, etc.--(I) The thing administered must be capable of causing hurt. Where A gave her
husband what she thought was poison, but whióh was really a harmless substance she cannot be held
guilty of an offence under this section or of an attempt to commit an offence under this section. (1896)
9 CPLR (Cri) 14.
(2) The words 'or other thing' occurring in this section must be referred to the preceding words and
betaken to mean 'other unwholesome thing' and not 'other thing' simply. (1864) 1 Suth WR 7(7).
(3) Compounder dispensing deleterious substance to his own doctor—Held, High Court rightly
convicted accused. AIR 1975 SC 241.
6. "Any person".—( 1) Where the accused with the object of detecting and punishing the stealers
of his toddy, mixed a poisonous drug-with it supposing that they might drink it and some soldiers
who purchased the toady from an unknown person drank it and got injured, it was held that the
accused was guilty under this section. (1868-69) 5 Born HCR 59.
7. "Facilitate the commission of an offence".—(l) Where A administers an intoxicating
substance to B with a view to rob him while B is unconscious or stupefied it would be an instance of
administering of poison, etc., for facilitating the commission of an offence. A IR 1926Bom 518.
8. Attempt.—(l) The putting of poison in a place where it is likely to be found and taken will
amount to an attempt to administer poison. (1852) 6 Cox Cri C 14.
(2) Where the accused was proved to have put some powder in the food which was found by the
Chemical Examiner to contain poison but there was no evidence as regards the quantity of poison or of
its probable effects on any one who might have taken it, the accused could only be convicted of an
attempt to commit an offence punishable under this section. (1909) 10 Cr1LJ 363 (Low Bur).
9.Sections 307 and 328.—(1) Where the accused gave arsenic poison intending to cause death
but through some cause or other the person to whom he administered the arsenic recovered, it was held
that the accused was guilty of an attempt to commit murder under S. 307. AIR 1921 Lah 108.
(2) Section 307 postulates that the intrinsic capacity of the act must be to cause death. Where the
accused administered a small dose of poison (opium) which was not a fatal dose, the offence made out
is one under this section and not under S. 307. (1970) 74 Cal W A' 424.
10. Liability where death occurs.—(I) Where the accused deliberately added,an oleander to a
bottle of liquor and gave it to the deceased which the latter sipped in small quantity and died in
consequence, it was held that the accused, must have either intended to cause the death of the deceased
or to have known that his act was so imminently dangerous as to make death a most probable result of
his act and hence was guilty of murder. AIR 1957 Pat 462.
(2) Where the accused administered Dhatura poison in large quantities and caused the death of the
victim, it was held that he must have known that his act was likely to cause death and so the accused
was guilty of murder. AIR 1918 All 283.
(3) Where the intention is not to cause death or such bodily injury as is likely to cause death or
which is necessarily fatal, etc., the act of the accused will amount to an offence under this section only
even though death occurs. Thus; where a woman gave aconite powder to her husband by mixing it
with his food, not with the intention of causing his death but with the intention of making him 'mad',
it was held that the woman was guilty only of an offence under this section. A IR 1943 Mad 396
I

Sec. 329-330 Of Offences affecting the Human Body 973

(4) Where the Chemical Analysis did not disclose how much arsenic was found and there was no
other evidence, it was held that it was doubtful whether the case would come under S. 302 or under
this section or would amount to an offence at all. AIR 1916 Cal 352.
• (5) Where the death was due to pneumonia caused by exposure and not due to the poison
administered by the accused, the offence does not fall under S. 302 but only under this section. AIR
1942 Mad 100. . .
• '(6) Where the evidence was not sufficient to establish that the poison administered was a lethal
dose, conviction of the accused was altered from S. 302 to this section. A IR 1957 A ndh Pra 456
• 11. Onus of proof.—(l) The prosecution must, as in all criminal cases, prove beyond doubt the
guilt of the accused otherwise the accused must be acquitted. 1963 All WR (NC) 711.
(2) Where accused was prosecuted under S. 328 for mixing endrine with milk and it was found
that all persons who consumed the milk did not suffer from poisoning while the medical evidence and
post-mortem examination also did not show that deceased died due to endrine poison alone, in absence
of proof of intention to cause hurt accused could not be convicted u/s. 328. 1980 GriLl (NOC) 167.
12. Procedure.—(r) Offence u/s. 328 is triable by the Sessions Court, therefore neither the
superintendent of the Central Jail not the Inspector General of Prisons was competent to punish the
petitioner prisoner in respect of the said charge of making over "Jamal Gota" to another convict for
mixing the same with the food-stuff served to the prisoners and jail officials. (1981) 1 Cal HN 34.
(2) Procedure— Cognizable-Warrant—Not bailable—Not compoundable—Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered. .
13. Charge.—(1) Revision against refusal to frame charge under—Accused alleged to have sold
methyl alcohol to P who on consuming the same became serious and removed to hospital—Chemical
Analysis report stating that what was purchased by P from the accused was power alcohol and not
methyl alcohol as alleged—In the circumstances refusal to frame charge under S. 328 was proper. 1980
Raj CriC 145. *
(2) The charge should run as follows:
I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:•
That you, on or about the— day—of—at—with intent to cause (or knowing it to be likely that you
will thereby cause) hurt to—, (or with intent to commit or to facilitate the commission of the offence)
of—upon the said—administered to (or caused to be taken by) the said—a certain poison (or a certain
stupefying, intoxicating or unwholesome drug) to wit—and thereby committed an offence punishable
under section 328 PC and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
• 14. Sentence.--(I) Where accused was a young boy of 19 years, as the accused had undergone
imprisonment for a period of 14 months the Court reduced the sentence of imprisonment to one
already undergone, the sentence of fine was maintained. 1978 Raj CriC 163.
15. Pr actice.—Evjdenc ._p 0 . ( I) That substance in question is poison or any stupefying,
intoxicating, or unwholesome drug etc. • .
'
(2) That the accused administered or caused the complainant to take such substance. •
(3) That he did as above with intent to cause hurt or knowing it to be likely that he would thereby
cause hurt or that the accused intended to 'commit or facilitate the commission of an offence.
U

974 Penal Code Sec. 330

Section 329
329. Voluntarily causing grievous hurt to extort property, or to constrain to
an illegal act.—Whoever voluntarily causes grievous hurt for the purpose of
extorting from the sufferer or from any person interested in the sufferer any property
or valuable security, or of constraining the sufferer or any person interested in such
sufferer tdo anything that is illegal or which may facilitate the commission of an
offence, shall be punished with '[imprisonment] for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) This section is similar to section 327 and the difference between the two being that
the offence under section 329 is grievous whilethe one under section 327. is simple. This section will
'pply only when the sufferer is constrained to do an illegal act (52 CrLJ 704).
(2) The extortion referred to in this section has the same meaning as the word 'extortion' in S.'
383. (1908)8CriL.J383 (Mad). -
(3) Where the purpose of causing grievous hurt is to constrain the victim to do an act which is not
illegal, this section will not apply. Thus, where by causing grievous hurt, a person is constrained to
write off a debt or withdraw a suit, the writing off or the withdrawal of the claim not being an illegal
act, the causing of grievous hurt will not amount to an offence under this section but may fall under S.
325. A IR 1951 Sau 40.
2. Practice.—Evidence—Prove: (1) That the accused caused grievous hurt.
(2) That it was done voluntarily.
(3) That if the accused caused it to be done with a view to extort from the sufferer or any person
interested in him or to constrain the sufferer or any person interested in him to do an illegal thing or to
facilitate the commission of an offence.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable-* Triable by Court of
Session..
4. Charge.—The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
• That you, on or about the--day of—at—voluntarily caused grievous hurt to X for the purpose of -
extorting from the said X or (from a person interested in the said X) namely a property (describe it) and
thereby committed grievous hurt punishable under section 329 PC and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 330
330. Voluntarily causing hurt to extort confession or to compel restoration
of property.—Whoever voluntarily causes hurt, for the purpose of extorting from the
sufferer or any person interested in the sufferer, any confession or any information
which may lead to the detection of an offence or misconduct, or for the purpose of
constraining the sufferer or any person interested in the sufferer to restore or to cause
the restoration of any property or valuable security or to satisfy any claim or demand,
or to give information which may lead to the restoration of any property or valuable
Sec 331 Of Offences affecting the Human Body 975

security, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
Illustrations
(a) A , a police-officer, tortures Z in order to induce Z to confess that he committed a
crime. . A is guilty of an offence under this section.
(b) A , a police-officer, tortures B to induce him to point out where certain stolen
property is deposited. A is guilty, of an offence under this section.
(c) A , a revenue officer, tortures Z in order to compel him to pay certain arrears of
revenue due from Z A is guilty of an offence under this section.
(d) A ; a Zamindar, tortures a raiyat in brder to compel him to pay his rent. A is guilty.
of an offence under this section. ...,
Cases and Materials
1. Scope.---(I) This section may be read along with section 30, 39 and 327. The principal, object
of this section is to prevent torture by the police but the section covers every kind of torture for
whatever purpose it may be intended. This section requires that the assault should be proved to be
solely for the purpose of extorting confession on restoration of property. Offences under this section are
most difficult to detect (37 CrL.J 811).
(2) The essential ingredient of the section is that the accused should have voluntarily caused hurt.
('1870)4Suth,W R(t'r)59. . .
(3) In the absence of proof that the accused have voluntarily caused hurt for the purpose specified
under S. 330 no offence will be made out. 1978 W LN (UC) 364 (Raj).
(4) Illustrations (c) and (d) of S. 330 show that it is immaterial whether the claim ot' demand be
legal or illegal. The claim or demand should 'be one which the victim owes to the accused and not one
which the accused.owes to the sufferer. AIR 1951 Sau 40.
(5) What must be extorted is a confession of an offence, 'or misconduct. Mere extortion of a.
promise is not sufficient. AIR 1924 Lah 167. .
(6) Extorting a promise from the complainant to restore the woman that was alleged to have been
abducted does not fall within the purview of S. 330. A IR 1924 Lah 167. .
(7) Deterrent and exemplary sentence is called for, when once an offence under this section is
satisfactoril' established. AIR 1936 Lah 471.
(8) Where the boy was tortured by his hands being tied together, wrapped with cloth and kerosene
oil poured over it and set fire to, in order to extort from him a confession of theft, the sentence was
raised to one year's rigorous imprisonment. AIR 1955 Mad 424.
(9) The assault on the deceased did not take place while he was trying to swallow up the currency
note and the assault took place some time after that. It was a cool and calculated act on the part of the
appellants to punish him for an act of indiscretion—Conviction under section 330, maintained. 14
DLR 248.
(10) The accused who were police officers were placed on their trial under sections 330 and 323
PC for beating a man assaulting a woman in connection' with a theft. They were found guilty of the
charges. Held Sanction under section 197 CrPC for the prosecution of the appellant was not at all
necessary. 9 DLR 594. ,.
976 Penal Code Sec. 331
(A )Sanction:— ( I) If a person accused of an offence under this section is a police officer and facts
come to light subsequently in the course of evidence at the trial which establishes thi necessity for
obtaining sanction of the Government, as the case may be (vide S. 197, Criminal P. C.), in that event
the Court must dismiss the complaint on the ground-that the accused could not be prosecuted without
sanction of the Government concerned. AIR 1967 All 519.
(B) Taking cognizance:— (1) There is nothing debarring a Magistrate from exercising his
jurisdiction to take cognizance of private complaints made against a police officer for an offence under
this section. 1968 CriL.J 1240(1250) (Orissa). .
(C) Compounding.— ( I) The offence under S. 330 is not dompoundable. Acquittal of the accused
for an offence under Ss. 323 and 504 on composition, is not a bar for his, further trial for an offence
under this section. 1957 CriLi 158 (Raj).
(2) A police officer torturing a suspect in his custody, though inspired by the admirable motive of
,discovering the truth, is guilty of an offence under this section. 1978 CriLJ (NOC) 286 (All).
(3) A. policeman who stands by acquiescing in an assault on a prisoner committed by another
policeman for the purpose of extorting a confession is guilty of abetment of an offence under this
section. A IR 1940 Nat186
(4) Where a policeman takes active pail in The assault, he would be guilty of the substantive
offence itself. AIR 1940 Nag 340.
(5) Where the accused had no intention of causing death or knowledge that his act was likely to
cause death, his offence would only be one under this section even though • the sufferer dies
subsequently. A IR 1964 A nd/i Pra 548.
2. Practice.—Evidence—Prove: (I) That the accused caused iurt. -
(2) That the accused caused such hurt in order to extort from the sufferer, or a person interested in
him, a confession or some information.
(3) That such confession or information was required., as possibly leading to the detection of an
offence, or of some misconduct.
3.- Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (name and .office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—voluntarily caused hurt to XY for the purpose of
extorting from the said XY (or from a certain person interested to the said XY, to wit—) a certain
confession (or information) to wit—which might lead to the detection of the offence of—(specify the
person in respect of whom and the place where, the offence was committed) and thereby committed an
offence punishable under section 330 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 331
331. Voluntarily causing grievous hurt to extort confession or to compel
restoration of property. —Whoever voluntarily causes grievous hurt for the purpose
of extorting from the sufferer or any prson interested in the sufferer any confession or
any information which may lead to the detection of an offence or misconduct, or for
the purpose of constraining the sufferer or any person interested in the sufferer to
Sec. 332 Of Offences affecting the Human Body 977

restore or to cause the restoration of any property or valuable security or to satisfy

any claim or demand or to give information which may lead to the restoration of any
property or valuable security, shall be punished with ,imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine
Cases and Materials
1. Scope.—(1) This section and section 330 are similar, the only difference being that this is an
aggravated form and the hurt caused is grievous. This section seeks to punish if suspect is tortured
• causing him grievous hurt.
(2) Where the accused (Police Officers) tortured B to extort a confession and the torture resulted in
the death of B, and the case is not one falling under S. 299 or 300 of the Code, they will be liable
under S. 331.A IR I917Lah 342.
(3)In .a trial on a charge under this section, it would not be safe to rely upon the uncorroboräted
testimony of the complainant and convictthe accused on that testimony. A IR 1955 NUC (Punj) 2528.
(4) Section 53 of the District Police Act provides that all prosecutions whether against a police
officer or a person other-'than a police officer (e. g., a member of the Fire Service above the rank of a
fireman must be commenced within 3 months after the act complained of, if the act is one which has
been done or intended to be done under any of the provisions of the Police Act. The protection of the
Act also extends to acts done or intended to be done under the provisions of any other law conferring
powers on the police in respect of arrests, search and investigation. A IR 1964 SC 33.
(5) Conviction under section 302 changed to one under section 331. Accused charged and
convicted by Sessions Court under section 302—GrievOus injuries caused by hands and striking with
shoes to make the deceased confess and restore stolen property—Conviction changed on appeal to
section 331, and sentence reduced. (1952) PLD (La/i) 275..
2. Practice.—Evidence—Prove: (1) That the accused voluntarily caused grievous hurt.
• (2) That the accused caused such grievous hurt to extort from the sufferer or other person interested
inhim— . .
(a) a confession or information leading to the detection of an offence or misconduct; or -
(b) to constrain such person or restore, or to cause the restoration of, any property or valuable
security; or
(c) to discharge any claim or demand; or
(d) to give information regarding restoration of any property or other valuable security.
3. Procedure.—Cognizable—Warrant —Not bailable—Not compoundable—Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered.
4 Charge.—The charge should run as follows: -
1, (name and office of the Judge/Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day—of—at voluntarily caused grievous hurt to X for the purpose of
extorting from him (or from a person interested in him) a confession. or information, which may lead
to the detection of the offence or misconduct or for the purpose of constraining the said X to restore or
cause to be restored any property or to give information which may lead to the restoration of any
property or valuable security and you have thereby committed an offence punishable under section 331
-
co of the Penal Code and within my cognizance.
And 1 hereby direct that you be tried by this court on the said charge. . -
978 Penal Code

Section 332
332. Voluntarily causing hurt to deter public servant from his duty.—
Whoever voluntarily causes hurt to .any person being a public servant in the discharge
of his duty as such public servant, or with intent to prevent or deter that person or
any other public servant from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by that person in the lawful
discharge of his duty as such public servant, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with
both.
Cases and Materials : Synopsis
L Scope.
7. Appreciation of evidence.
2. "Voluntarily causes hurt". 8. Burden of proof—Benefit of doubt.
3. "Public servant" 9. Charge and conviction.
4. "in the discharge of his duty as such public 10. Sentence. -
servant".
11. Procedure.
5. "With intent to prevent or deter'
12. Practice.
6. "in consequence of anything done".
13. Charge.
1. Scope.—(1) This section may be read alone-with sections 21 and 39 of the Penal Code. The
words "in the discharge of his duty as such public servant" in this section mean in the discharge of a
duty imposed by law on such-public servant in the particular case and do hot cover an act done Fy him
in good faith under , colour of his office. A public servant arresting a person under an invalid warrant is
not so acting (34 CrLf 460). The protection is afforded to public servant under three classes of cases:
(a) where he is engaged in the discharge of his duties as such Government servant; (b) when hurt i
caused to prevent a public servant from discharging his duty as such public servant; (c) when hurt is
caused in consequence of anything done or attempted to be done by that person in the lawful discharge
of his official duties as such public servant. The protection given is confined to lawful duty performed
by a public servant and not in respect of all his acts. The duty must be lawful. Illegal searches, arrests
without warrant, acts flagrantly illegal are not protected (AIR 1941, 345, 34 Oudh CrLf 460).
(2) DESA Employee is public servant—Victim Abdul Malek an employee of DESA is a public
servant within the meaning of section 21 clause 12(b) of the Penal Code and as such the charge under
section 332 of the Penal Code has been perfectly justified warranting no interference. Taleb' Hossain
Abu Taleb Hossajn Vs. The State. 6 MLR (AD) 219.
(3) The essential ingredients of the offence under S.332, P.C. are:—
(1) Hurt must have been caused to a public servant; and '(2) It must have been caused—
(a) while such public servant was acting in the discharge of his duty as such, or
(b) in order to prevent or deter him from discharging his duty as public
' servant, or
(c) in consequence of his having done or attempted to do anything in the lawful discharge of his
duty as public servant. (1983) 5,6 Cut LT 231 (Orissa).
.. "Voluntarily causes hurt".—(l)
Push on neck given to 'public servant—Held, assuming that
push was no hurt, accused would still be punishable under S. 353. (1965) 31 CuILT 851.
Sec. 332 . Of Offences affecting the Human Body 979
3. "Public servant".—( I) The following are public servants within the meaning of the section:
(a) An Octroi Officer. A IR 1935 Sind 245.. .. . . . .
(b) A Village Talayari. AIR 1944 Mad 183.
(c) A Commissioner of Court. ILR (1947) 1 A ll 187:
(d) An Amin of Court. 1934 Mad W N271..
4. "In the discharge of his duty as such public servant".—(l) In order that this section may
apply, the public servant must have been acting in the discharge of his duty as such public servant.
(1975) 41 Cut LT 167. .
(2) A Police Constable attempting to arrest a person without a warrant in a case in which he has
no power to arrest .without warrant cannot be said to be acting in discharge of his duty as such public
servant in the particular case. A IR 1941 Oudh 385: 42 CriLJ 501 ** 1977 RajCriC 216(218) (D B).
(3) Where a Police Constable engaged in maintaining law and order at a wrestling match was
hustled by the accused, while discharging his duty, the accused were held guilty under this section.
AIR 1926A11168. . . .
(4) A public servant does not cease to be a private citizen and hurt caused to him, even if he was
not acting in discharge of his duties as public servant would be punishable under Section 323 or 352
as the case may be. AIR 1921 Sind 51. .• .
(5) The words "duty as such public servant" mean duty imposed by law, on such public servant in
the particular case and do not cover acts done by him in good faith under colour of his office, but not
imposed on him by law, 1955 Madh BLR (Cr1) 393.
(6) It is necessary for the Court to consider whether, in the particular case, the public seriánt.acted
in the discharge of his duties or not. If he was so acting, this section will apply. A IR 1967'Orissa 1.
(7) It is the duty of Patwari not to make entries in the official records, which ought not to be
made, and if he refuses to do so, he can be said to be discharging a negative duty. If the accused causes
hurt to him in order to compel him to make such entries, the offence will fall under the section. AIR
1941 0udh267.
5. "With intent to prevent or deter".—(l) Where the intention in causing hurt to a public
servant is not to prevent or deter him from discharging his duty but to dishonour him, as where an
Inspector of Police was struck by the accused while he was giving evidence, it was held that thi
section did not apply but that the case fell under S. 355 of the Code. (1907) 6 GriLl 22 (A ll). .
(2) An intention on the part of the accused namely, to prevent or deter the public servant from
discharging his duty is an ingredient of the offence. AIR 1978 SC 1441. .
(3) If the accused was aware of this fact then he cannot resist the act of the public servant and will
be guilty of an offence under this section. 1968 SCD 477. . . . .
(4) An assault on a public servant While in office as a sequel to a previous private quarrel is not
covered by this section. AIR 1978'9C 1441. .
.6. "In consequence of anything done".—(l) Where a Naib-Tahsildar had made a report against a
Patwari in the discharge of his duty and, as a consequence, was assaulted by the accused, the case was
held to fall within this section. AIR 1952 All 933. . . .
(2) The expression "in consequence" includes the motive which actuates the accused to cause
voluntary hurt to the public servant. 1964 (1) CriL.J 254 (Raj).
980 Penal Code Sec. 333

7. Appreciation of evidence.---(I) Accused abusing and assaulting with chappal a Govt. servant
doing official work—Testimony of eye-witnesses consistent and convincing—Medical evidence fully
corroborating the assault—Held offences were fully proved. 1978 Cr1LJ 734 (Kam).
8. Burden of proof—Benefit of doubt.—(1) Burden of proof is on the prosecution to satisfy the
Court that the facts of the case are such as to fulfil the requirements of this section. AIR 1917 All 54.
(2) Where it was not clear that the complainant was being beaten either in consequence of
something done .in his official capacity or to deter him from performing his official duty, the accused
was given the benefit of doubt and was convicted not under S. 332 but under Section 323 of the Code.
AIR 1955 NUC (Ajmer) 4753.
9. Charge and .conviction.—(1) When the main incident of rioting consisted in causing hurt to
the police constable, it was held that there need not be a separate charge and conviction for an offence
under this section. (1912) 13 CriLi 460 (461) (Lah).
(2) None of the accused were chargcd for having formed an unlawful assembly with the common
object to give beating to Patwari. Evidence showing only L caught hold of .Patwari and tried to snatch
away the muster rolI.' HeId that he alone was guilty under S. 332, P.C. 1981 Ra1CrIC 372.
(3) Where the accused to resist arrest caused simple injury by a knife on the left side of the chest
of the police constable he was held guilty of offences under Ss. 324 and 332, P.C. but not under S.
307, P.C. (1984) 25 (1) GujLR 188.
10 Sentence.—(1) A. deterrent sentence should be given for an offence under this section. 1893-
1900 Low Bur Rut 192. .
(2) Separate sentences under this section and under S. 147 are not illegal in view of amendment of
S. 35 of the Criminal P. C. A IR 1926 Lah 521.
(3) Accused convicted .of an offence uls. 332, P.0 and sentence to rigorous imprisonment for three
months and fine of Rs. 500.00—On appeal sentence modified to R. I. of 29 days already undergone
converting unexpired portion into additional fine of Rs. 1500.00 to meet the ends. of justice. (1981) 4
SCC 507. . .
(4) Accused not a previous convict hence his conviction under S. 332, P.C. was reduced in
revision by High Court from three months R. I. to two months R. I. maintaining fine of Rs. 200.00.
1982 UPCriR 298 (A ll).
11. Procedure—(1) No sanction under S. 195(1), Criminal P. C .., is required before taking
cognizance of an offence under this section. ILR (1962) Cut 610.
(2) ConvictiOn under Ss. 302, 332, P.C.—Case committed to and partially tried by one
Additional Sessions Judge—Conviction recorded by another Additional Sessions Judge—Trial by
another Additional Sessions Judge is no trial in view of S. 409(2), Cr.P.C.—Conviction not
maintainable—However, offence being grave retrial ordered. 1982 CriLi 90.
(3) Cognizable—Warrant—bailable—Not compoundable—Triable by Metropolitan Magistrate or
Magistrate of the first and second class.
• 12. Practice.—Evidence—Prove: (1) That the accused hurt.
(2) That the person so hurt was a public servant.
(3) That such public servant was then discharging his duty as such.
13. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
Sec. 333 Of Offences affecting the Human Body 981

That you, on or about the day of—at—voluntarily ,caused hurt. to X a public servant, in the
discharge of his duty as such public servant, and thereby committed an offence punishable under
section 332 of the Penal Code and within my cognizance.
And I here by direct that you be .tired by this court on, the said charge.

Section 333
.333. Voluntarily causing grievous hurt to deter public servant from his
duty.—Whoevèr voluntarily causes grievous hurt to any person being a public, servant
in the discharge of his duty as such public servant, or with intent to prevent or deter
that person or any other public servant from discharging his duty as such public
servant, or in consequence of anything done or attempted to be done by that person in
the lawful discharge of his duty as such public servant, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
Cases and Materials
1. Scope.--(I) Where a public servant exceeds his powers and illegally puts man in danger of
life.or limb, the victim has a right of private defence. Thus where a constable was vohgly handled by
way of self-defence while he exceeded his lawful right by firing upon the accused and caused serious
injury to prevent him' from doing further harm, no offence was made out (A IR 1932 Lah 75). The hurt
caused under it must be grievous. This section provides for the aggravated form of the offence which
the preceding section deal with. Under this section whoever causes grievous hurt to a public servant he
can be convicted: (I) when grievous hurt is caused while the public servant is acting in the discharge of
his lawful duty as such public servant; (ii) when he is prevented from performing his duty as such
public servant; and (iii) when the public servant is assaulted in consequence of anything done or
attempted, to be done in the discharge of his duty as such public servant.. The motive and object of the
accused in preventing or assaulting the Government servant are irrelevant if the public servant exceeds
his jurisdiction.
(2) Under this section a person who causes grievous hurt to public servant can be convicted under
three circumstances: (1) Where grievous hurt is caus ed while he is acting in the discharge of his duty as
such public servant; (2) Where he is prevented or deterred from discharging his duty as such public
servant; (3) Where he is assaulted in consequence of anything done or attempted to be done by him in
the discharge of his duty., A IR 1935 A ll 563.
(3)An accidental causing of hurt is not an offence under S. 333. A IR 1972 SC 1273.
(4) When the public servant is acting in the discharge of his duty, then' grievous hurt caused to
him will amount to an offence under this section. A IR 1979 SC 1706. . •, ,
(5) Where interference with discharge of duty by public servant was from another public servant,
setting aside of sentence of imprisonment by taking lenient' view was not called for. A IR 1979
SC 1706.
2. Practice.—Evidence—Prove: (1) That the accused voluntarily caused grievous hurt.
(2) That the person who was grievously hurt was a publicservant.
(3) That when the grievous hurt was caused (a) the public servant was discharging his duty as such
public servant; (b) that the grievous hurt was caused with the intention of preventing. him or deterring
*
982 Penal Code Sec. 334

him from discharging his duty as such public servant; (c) the said grievous hurt was caused in
consequence of anything done or attempted to be done by the public servant in the lawful discharge of
his duty.
3. Procedure..—Cognizable---Warrant—Not bailable—Not compoundable—Triable by Court of
Session, Chief Metropolitan, Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered.
4, Charge.—The charge should run as follows-
1; (name and office of the Judge/Magistrate) hereby charge you (name of the accused) as follows;
That you, on or about the—day of—at—oluntarily caused grievous hurt to X, a public servant in
the discharge of his duty as' such public servant and thereby committed an offence punishable under
section 333 of the Penal Code and within my cognizance. .
And Ihereby direct you be tried by this court on the said charge.

Section 33.4
334. Voluntarily causing hurt on provocation.—Whoever voluntarily causes
hurt on grave and sudden provocation, if he neither intends .nor knows himself to
be likely to cause hurt to any person other than the person who gave the provocation,
shall be punished with imprisonment, of either description for a , term which
may extend to one month,, or with fine which may extend to five hundred 9 [taka], or
with both. , .. . . .
Cases and Materials
1. Scope^ : -(I) This section deals with voluntarily causing hurt on a. grave and sudden
provocation. Grave and sudden provocation mutilates voluntarily causing of hurt if the offender does
not intend or himself knows that he is not likely 'to cause such hurt or grievous hurt to any other
person. The provocation received must be both sudden and grave. It must be received from the person
assaulted and the blow should be directed against his provocation.
(2) If the provocation is only sudden but not grave the offence will not be one punishable either
Under this section or S. 335. So also, if the provocation is only grave but not sudden, the act will not
amount to an offence under this section or S. 335. AIR. 1953 Orissa 308.
(3) Where the provocation is neither grave nor sudden, then clearly there will be no offence Under
this section or S. 33. A IR 1939 Pesh 230.
(4) Where there is considerable interval of time between the provocation and the assault by the
accused, then the accused will not be entitled to the benefit of plea of grave and sudden provocation.
AIR 1. 929 Lah 739. .
(5) Where the act attributed to the accused is a deliberate and pre-designed one, then, it rules out
the existence of grave and sudden provocation. A IR 1915 Born 120. .
(6) Where the accused was slapped and abused by his father on a complaint having been made to
him by the complainant and 2-3 hours later the accused went to the shop of the complainant and gave.
him repeated dagger blows which were aimed at his neck, a very delicated and valuable partof human
body, it was held, that it would not, by any stretch of imagination, be'called grave provocation. Hence
the offence did not fall under S. 334 but was under S. 307. 1983 PakLD 32 (SC).
Sec. 335 Of Offences affecting the Human Body 983

2. Sentence.--(I) Where the Magistrate imposed a sentence of fine of Rs. 10/- and in default R I..
for 10 days . he committed an error, because the imprisonment in default of payment of fine ought not
to exceed one-fourth of the maximum imprisonment provided for in the section (1884) 7MysLR No.
251, p. 330. .
3. Plea—Onus.—(1) Where there are sufficient materials in the prosecution evidenôe from which
the Court can come to the conclusion that the accused had acted on grave and sudden provocation, it
can hold so irrespective of whether accused sets up that plea or not. 1957 NagLJ 184.
4. Practice.—Evidence—Prove: (1) That the accused caused bodily pain, or infirmity.
(2) That he did so voluntarily.
(3) That he caused it on account of grave and sudden provocation.
(4) That he neither intended nor knew himself to be likely to cause hurt to any person other than
the person who gave the provocation.
5. Procedure.—Not—Cognizable—Summons—Bailable—COmPoUfldable—Triable by any
Magistrate, Village Court. . .
6. Charge.—The charge should run as follows ... . .
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, On or about the—day of—at—voluntarily, caused hurt to X, on grave and sudden
provocation given to you by X and not intending to or knowing it to be likely that you would thereby
cause hurt to X and you have thereby committed an offence punishable under section 334 Penal Code
and within my cognizance.
And I hereby direct that you be tired by this court on the said charge.

Section 335 .
335. Voluntarily causing grievous hurt on provocation.—Who eyer
1 causes grievous hurt on grave and sudden provocation, if he neither
intends nor knows himself to be likely to cause grievous hurt -to any person other than
the person who gave the provocation, shall be punished with imprisonment of either
description for a term which may extend to four years, or , with fine which may .extend
to two thousand 9[taka]., or with both... .
Explanation.— The lasttwo sections are subject to the same provisos as Exception
1, section 300. . . ..
Cases and Materials
1. Scope.—(1) An offence falls under this section only when the injury caused is a grievous hurt
as defined in the Penal Code. The provocation and its effect must be sudden as wellas grave, and the
deprivation of the power of self-control must continue in order to benefit a man who kills another
under circumstances of grave provocation. Where the deceased makes indecent assault upon accused's
minor sister-in-law, the provocation is grave and sudden and the accused can rightly be convicted under
section 335 Penal Code. Injuries inflicted with the help of burning fire-wood cannot be considered as a

II. Inserted bythe Indian-Penal Code Amendment Act, 1882 (VIII of 1882), S. 8.
984 Penal Code Sec. 336

grievous hurt as they do not come within the specific items of the injuries mentioned in the definition
of grievous hurt nor do they endanger life (1953 CrLf 1713). The onus of proving sudden provocation
lies on the accused.
(2) Assaulting dafadar—If the accused can be convicted under section.—A dafadar, being a public
servant, only for the limited purposes of section 68(2) of the Code of Criminal Procedure, cannot be
regarded as a public servant when he is going to remove a nuisance under orders of the President of
Union Board and, therefore, the people who assaulted him cannot be convicted under , section 353.
Chand Khan Vs. Crown 1 PCR 21.
(3) Where the accused persons found the wife of one of them in company of another person in her
own house it was held that the accused person had grave and sudden provocation as a result of which
they cut the noses of the wife and that other person and hence they were liable to be convicted under S.
335/34 instead of S. 326/34. AIR 1972 SC 1273. .
• 2. Practice.—Evidence—Prové: (1) That the accused. caused bodily pain, or infirmity to . another.
(2) That he did sowith the intention or knowledge of cauing grievous hurt.
• (3) That the grievous hurt was, in fact, caused.
• (4) That the accused did it when he was under grave and sudden provocation.
(4) That he neither intended nor knew himself to be likely to cause grievous hurt to any person
other than the person who gave the provocation. . .
3. Procedure.—Cognizable—Summons—Bailable—Compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows: . .
I (name and offiöe of the Magistrate) hereby charge you (name of the accused) as follows:.
That you, on or about the----day of—at—voluntarily caused grievous hurt to X on grave and
sudden provocation given to you by the said X on .grave and sudden provocation given to you by Y
and not intending to pause hurt to X , and thereby committed an offence punishable under section .335
of the Perial Code and within my cognizance. .
And I. hereby direct that you be tired by this court on the said charge.

Section 336
336. Act endangering life or personal safety of others.—Whoever does any act
so rashly or negligently as to endanger human life or the safety of others, shall be
punished with imprisonment of either description for a term which may extend to
three months, or with fine which may extend to two hundred and fifty 9[taka], or with
both.
Cases and Materials : Synopsis
1. Scope of the section. . of others".
2. "W hoever does any act' 5. Procedure.
3. "Rashly or negligently". 6. Practice.
4. "As to endanger human life or personal safety 7. Charge. .
1. Scope.—(l) This section may be read along with sections 52 and 304A. This section refers to
acts done neither intentionally nor knowingly but rashly or negligently. Rash and negligent acts,
Sec. 337 Of Offences affecting the Human Body 985

which endanger human life or the personal safety of others, are punishable under this section even
though no harm follows. They are additionally punishable under section 337 if they cause hurt or
grievous hurt.
(2) Where rash or negligent act results in damage to property it gives rise to a civil liability in
damages. Where rash or negligent acts are such as to endanger human life or the personal safety of
others, it gives rise to a criminal liability. The rashness or negligence in such cases may be termed
criminal rashness or negligence. (1909) 9 CriLl 393 (Cal),
2. "Whoever does any act".—(l) It is only an act which is not unlawful but which is done with
criminal rashness or negligence that is punishable under this section. A IR 1925 A ll 396.
3. "Rashly or negligently".—(I) This section and Ss. 337, 338 and 304A do not apply to acts
which amount to offences and which are deliberately and intentionally committed. A IR 1966 Born 13..
(3) A person in charge of a temple omitting to enclose a well situated in the path which pilgrims
and devotees usually take to visit the temple by his licence and invitation is guilty of negligence
endangering the safety of a large number of pilgrims. A IR 1915 Cal 295.
4. "As to endanger Iuman life or personal safety of others".—(l) Where the defect is such as
will not materially affect his efficiency as a driver, the mere fact that he drove the car without
spectacles is not sufficient, by itself, to. amount to criminal rashness or negligence. A IR 1918
Born 230. . . . .
(2) Where accused threw stones on the iron roof of a house, it was held that the act was not one
endangering human life or safety and that this section did not apply. (1900-1902) 1 LowBurRul 45.
5. Procedure.--(I) Where during the course of the trial of the accused on a charge for an offence
under S.353 of the Code, the facts disclose an offence under S. 336;a charge under S. 336 could be•
added if the accused is not prejudiced thereby. ILR (1959) 11 Assam 470.
1916 Low
(2) .This section should not be applied where the facts constitute a grave offence A IR
Bur 98. . .. .. . .
(3) Cognizable—Summons—Bailable—Not compoundable—Triable by any Magistrate.
6. Practice.—Evidence—Prov e: (1). That the accused did the act in question.
(2) That it was done rashly or negligently. .
(3) That it was such as to endanger the life or personal safety of others. .
7. Charge.—The charge should run as follows:
• I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—acted (mention the rash or negligent act done) so rashly
or negligently as to endanger human life or the personal safety of others and thereby committed an
offence punishable under section 336 of the Penal Code, and within my cognizance.
• And I hereby direct that you be tired by this court on the said charge.

Section 337
337. Causing hurt by act endangering life or personal safety of others—
Whoever causes hurt to any person by doing any act so rashly or negligently as to
endanger human life or the personal 'safety of others, shall be .punished- with'
imprisonment of either description for a term which may extend to six months, or
with fine which may extend to five hundred 9 [taka], or with both.
986 Penal Code Sec. 337

Cases and Materials : Synopsis

1. Scope. 9. Sanction.
2. "Rashly or negligently". 10. Joint trial for offences under Ss. 279, 337 and
3. ."Hurt" 426. -
4. Accident distinguished from negligence. ii. Procedure.
5. "So as to endanger human life or the persona! 12. Burden of proof and evidence,
safety of others'.
13. Sentence.
6. Negligence by medical practitioner. -
7. 14. Practice.
Rash and negligent driving
8. Abetment of offence, under this section. 15. Charge.

1. Scope.-( 1) This section may be read with sections 33 and 304A. Mere negligence or rashness
is not enough to bring a case within the ambit of this section or section 338. Negligence or rashness
proved by evidence , ,must be such as would necessarily carry with it a criminal liability. Whether such
liability present may depend nthe•degree of culpabilityhaving regard in each case to the particular
time, place and circumstances. The causing of hurt by 'negligence in the use of gun .falls within the
purview of this section rather than ôf section 286.
(2) Acts done with the intention of committing a crime cannot, be said to be rash or negligent acts
but will be punishable under other sections. 1955 C'riLJ 173('2) (Madh Bha)
(3) The main ingredients of an offence under this section are:-
(a) the act of the accused must have been the cause of the hurt.
.1970UJ (SC) 845.
(b) the act nust have been done with, criminal rashness or negligence in the sense that rashness or
negligence is of such a degree as to endanger human life or personal safety of others. A IR 1962
Mad 362.
2. "Rashly or negligently".--( 1) A rash act is not the same thing as a negligent act. the two are
distinguishable and one is exclusive of the Other: 1975 Rajdhani LR 145 (Delhi).
(2) The same act cannot be rash as well as negligent. AIR 1970 Punj 137.
(3) Overspeeding of truck without sounding horn and without light-Collision withanother
truck-Former truck driver held guilty of rash and negligent driving. 1971Cri A pp Rap (SC) 244.
(4) A person who is charged with negligence cannot claim the benefit of an error of judgment
when he exercised none. AIR 1925 Sind 233.'
3. "Hurt".-(I) The hurt caused must be the direct result of the negligent or rash act. AIR 1970
• Mad 198.
(2) Where the accused, a snake charmer administered certain pills to his disciples and after an
interval they fell ill, there was no proof that they had not taken anything else in the interval-Held that
the illness could not be said to be the direct result of the eating of the pills and that the accused could
not be held guilty under this section. A IR 1964 Orissa 173.
(3) The negligence to be imputed depends upOn the probable and not the actual result.
PC 72. AIR 1943

4 Accident distinguished from negligence.--( 1) A bigparty of about hundred members went

for shooting pigs-Suddenly a boar rushed towards the accused-The accused fired at the boar but
missed the boar and the shot struck the leg of a member of the party-Held that the case was one of
accident and not of rash or negligent shooting and that the conviction under this section could not be
sustained. A IR 1931 Lah 54. ' " ,
Sec. 337 Of Offences affecting the Human Body 987
5 "So as to endanger human life or the personal safety of others".—(I) The rashness or
negligence must .be. such as to "endanger human life or the personal safety of others" for criminal
liability. The rashness or negligence must show a disregard for human life or personal safety of others.
AIR 1962 Mad 362. . ... . . . . .
(2) The law distinguishes between negligence which originates a civil liability and the One on
which a criminal prosecution can be founded. In criminal cases there must be means rea or guilty
mind, i.e. rashness or guilty mind of degree which can be described as criminal negligence; mere
carelessness is not enough. AIR 1970 Punj 137. . ...
(3) Criminal is the gross and culpable neglect or the failure to exercise that reasonable and proper
care and precaution to guard against injury either to the public or to an individual in particular .which,
having regard to all the circumstances out of which the charge has arisen, it was the imperative dutyof
the accused person to have adopted: AIR 1968 SC 1319. . .
(4) Lorry negotiating down gradation turns on right side—Driver failing to drive in proper manner
considering the situation, topography and circumstances existing at that time—Dashing against car—
Held, driving was rash and negligent. 1973 CrILJ 1682 (7684) (Mys.).. ..
(5) Driver owes a duty to the public to keep a lookout on the road, especially when approaching a
pedestrian crossipg. AIR 1966 Born 121 . ...
6. Negligence by medical practitioner.—(l) A doctor is not criminally responsible for injury
suffered by the patient as a result of the medical or surgical treatment by the doctor unless the doctor's
negligence or incompetence passed beyond a matter of compensation and showed such disregard for life
and safety as to amount to a crime against the State. AIR 1943 PC 72. . . .
(2) Where an eye operation, causing injury, was alleged to have been made by an unqualified
medical practitioner, it is the Court's duty to call for evidence on the question whether he was
qualified by his certificate to perform the operation. AIR 1964 Raj 242.
7. Rash and negligent driving.—(1) An offence under S. 279 is distinct from an offenCe under
this section or under S. 338 and a person convicted of an offence under this section or S. 338 can also
be convicted of an offence under S. 279. AIR 1956 Mad/i B 141. .
(2) A person can be convicted for offences, both under S.337 and under S. 279, AIR 1969 Gui 62.
• (3) An offence under S. 279 is a noncompoundable offence while that under S. 337 i
compoundable. The acquittal of a person Charged with both offences under S. 279 and this section, by
reason of the composition of the offence under S. 337 does not result in the acquittal of the accused for
the Offence under S. 279. AIR 1960 Born 269. . •.. . . . . .. .
(4) If the two offences are committed in the same transaction S. 71 will govern the case. AIR 1956
Mad/tB 141. . . .
(5) Section 71 cannot be applied to offnces under Ss 279 and 338 AIR 1.968 Guj 240
8. Abetment of offence under this section..—(1)Amotor driver allowed an Onlicensëd person to
drive the motorcar—He upset the car injuring the passengers thereby—Held that the, unlicensed person
would be guilty under this section, but that the driver , could not be convicted of abetment of the
offence inasmuch as he never intended that the car should be driven rashly or negligently. A IR 1930
:.•S1nd64. .. . .
9. Sanction.—(1) Where a telegraph messenger of the Government, rode his bicycle rashly and
negligently and knocked down a girl, it was held that the accused was riding the bicycle in execution
988 Penal Code Se. 338

of his duty and that the accused could not be prosecuted without the sanction of the Government as
provided by S. 270 of the Government tf India Act, 1935. A IR 1948 Nag 274.
10. Joint trial for offences under Ss. 279, 337 and 426.--fl) Where the series of acts that took
place were: (i) rash and negligent diving of the bus by the driver, of the bus; (ii) rash and'negligent
driving of the car by the driver of the car; (iii) consequent collision and damages to the bus and the car
and injuries to the driver of the car—Held, that though all the three acts were independent they formed
a series in one transaction within the meaning of S. 22.0, (1), Criminal P.C. The of-fences committed
were under . Ss. 337, 426 and 279, P.C. and the connection between them was established by the result
that followed. The drivers of the two vehicles could be tried together. AIR 1962 .R aj 155.
11. Procedure.—(I) Where the accused was charged under Ss. 304A, 337 and 338 and under Ss.
.465, 471 or 193. P.C. in the alternative for forging entiies in order to conceal his offence of criminal
neglect, there was misjoinder of charges. AIR 1925 Sind 233.
(2) Not cognizable—Summons—Bailable----Cornpoundable—Triable by any Magistrate, Village
Court.
12. Burden of proof and evidence.--(I) Where the identity of the offending driver was not
established beyond dispute and all witnesses were interested, accused was not liable to conviction
having been given benefit of doubt. 1979 Chand LR (Cr0 119 ('Pun). .
.(2) In case under S. 337 where an injury is caused injured witnesses are the best witnesses and
conviction can be recorded on their evidence if it inspires confidence. 1983 Cur Li (Civ& Cr0 .279.
13. Sentence.—(1) The High Court found that the driver was drunk and drove the vehicle rashly,
negligently and at an excessive speed but as there was not enough proof of being drunk the sentence of
18 months' R. I. was reduced by the Supreme Court to term undergone. (1971) 1 SC W R 99
(2) Where an accused was convicted under Ss. 279, 337 and 338, for causing hurt due to rash and
negligent, driving, on his pleading guilty to the charge but,it was found that the accident was caused
due to some other reason and could not be attributed directly to accused, in view of the age of accused
(28 years) and the fact that it was his first offence, sentence of fine only, was sufficient instead of jail
sentence. 1980 Born CR 351.
14. Practice.—Evidence—Prove: (I) That the accused did an act.
(2) That he did so rashly or negligently.
(3,) That it was such as to endanger human life or personal safety of others.
(4) That the hurt was actually caused.
15. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of accused) as follows:
That you, on or about the—day of—at--caused hurt to X by doing an act (describe the act) rashly
or negligently so as to endanger human life or personal safety of others and 'thereby committed an
offence punishable under section 337 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 33,8 . .
338. . Causing grievous hurt by act endangering life or personal safety of
others.—Whoever causes grievous hurt to any person by doing any act so rashly or.
Sec. 338 Of Offences affecting the Human, Body 989

negligently as to endanger human life or the personal safety of others, sha1I be

punished with imprisonment of either description for a term which may: qXfellcrto two
years, or with fine which may extend to . 12 [five thousand taka], ox with both.
Cases and Materials Synopsis
1. Sèope. 8. Sentence.
2. Abetment of rash driving. 9. Burden of proof.
3. Rash and negligenl act. 10. Composition.
4. Intention. . . IL Procedure.
S. Offence under 5s. 279 and 338. 12. Practice.
6. Contributory negligence. 13. Charge.
7. "Grievous hurt".
1. Scope..-.-(1) Section 338 is aggravated form of the offence from section 337. Where the driver
of a motor. car while drunk drove his car on the wrong side rashly, he is negligent in, not seeing a cart
in front of -him collided with it. The accused was held guilty under this section (35. CrLJ.296). Where
a motor driver is being prosecuted for an offence under this section it cannot be said that the car has
been used by the accused for the commission of the offence within the meaning of section 5 16A CrPC
and it is illegal for a Magistrate to detain the motor car pending conclusion of the trial (32 CrL,J 347).
(2) Rash and negligent act. Death and grievous hurt caused by—Ample evidence available to prove
that besides deceased, prosecution witness also suffered grievous hurt in occurrence. Petitioner
convicted under section 338 Penal Code. 1983 P CrLJ 1095.
2. Abetment of rash driving.—(l) A, a truck driver allowing B to drive truck with full
knowledge that B had no licence—B causing grievous hurt by rash and negligent driving—A sitting
by side of B when offence was committed—A, held wa g rightly convicted under S. 338 read with Ss.
107 and 114, Penal Code. AIR 1947 Nag 113.
3. Rash and negligent act.—(l) The words "does an act so rashly or negligently" occurring in S.
338 have the same meaning as the words "rash or negligent act" used in S 304A. (1909) 9Cr1LJ 393
(Cal).
(2). Where the accused owning a paddy field in a jungle tract, discharged a gun in the direction of a
footpath close to his field, along which the complainant was passing, and the shot hii him in the leg
which had to be cut off, and the accused knew thatthe foot-path was generally used by the public, the
accused was guilty of culpable negligence within themeaing of this section. (1912) 13 CrILJ 703.
(3) Where a hakim advertising himself as skilful in eye operation, performed an operation with a
pair of tailor's scissors and needle and sutured the wound with.ordinary thread and the most ordinary
precautions were neglected, the hakim was guilty of a rash and negligent act endangering human life.
AIR 1915 Born 101.
(4) Where a motorist hits against a person walking along the road, no presumption can be drawn
that the accident was due to the motorist's negligence. Such presumption may arise if the motorist was
driving at an excessive speed. AIR 1939 Rang 209.
(5) Where a truck loaded with timber was parked at night on the road with logs projecting beyond
the limits but without red flag. anddanger light, and an accident occurred resulting in death of

12. Subs, by Ord. No. X of 1982, s. 6. for "one thousand taka."
990 Penal Code Sec. 338

passengers of a bus coming from behind at reasonable speed and hitting against the projecting logs at
midnight, the accident was not directly referable to the rash and negligent driving of the bus driver.
ILR (1982) 1 Ker 359.
4. Intention.-(1) In absence of a criminal intention a conviction under S. 338 is not justified.
(1950) 16 CutLT 181.
5. Offence under Ss. 279 and 338.-(l) A person not guilty of dangerous drivingunder.S. 116
of the Motor Vehicles Act cannot be guilty under S. 338. AIR 1950 Mad 71.
•- (2) The fact that the accused had already been convicted of an offence under S. 121 of the Motor
Vehicles Act is no bar to a conviction under the Penal Code. A IR 1953 Pat 56.
6. Contributory negligence.-(1) If the accused was guilty of negligence, he cannot plead in
defence that others also were guilty of negligence. (1847) 2 C and K 368.
(2) When an accident resulted in an injury to the cyclist who himself was negligent and it was also
noticed during investigation that there was a little mechanical defect. in the vehicle for which the•
vehicle driver was not found responsible the driver was acquitted on a charge under S. 338. 1978
ChandLR (Cr1) 136.
7. "Grievous hurt".-(I) Where a hakim performed an eye operation on a patient rashly and
negligently but there was no complete loss of sight, the hakim was guilty of an offence under S. 337
• and not under S. 338, as the hurt was not grievous. AIR 1915 Born 101.
(2) This section Will apply only where the grievous hurt caused is the direct result of the rash or
negligent act, and not a remote result of the act. A IR 1970 Mad 198(200) 1970 CriLi 705.
8. Sentence^-(I) Where an act constitutes an offence both under S. 279 (rash driving) and also an
; offence under this section it is illegal to award two separate sentences. 1935 MadWN 924 (924).
(2) Where the accused driver of a motor vehicle was drunk and was rash and negligent in his
• driving, and thereby caused grievous hurt to a person, the award of 3 months' rigorous imprisonment
was excessive but that a fine of Rs. 100.00 or in default 3 months' rigorous imprisonment would meet
the ends of justice. A IR 1933 Oudh 568.
9. Burden of proof.-(1) Where there is no definite evidence of rash or negligent driving the
driver cannot be convicted under this section or S. 299 or 304A. AIR 1933 Oudh 391.
(2) Injured witnesses are the best witnesses and conviction can be recorded on their evidence only
if their evidence inspires confidence. 1983 Cur LI (Civ & Cr1) 279.
(3) Accused charged for causing injury by firing gun-Dark night-Accused identified merely
from his voice-Conviction cannot be based on such . identification. 1981 Cr1L.J 1060.
10. Composition,-( 1) The offence of causing grievous hurt is not compoundable unless it falls
under S. 335 or 338. (1884) Oudh SC 74, p. 85.
11. Procedure.--(I) Where an accident took place when the two lorries were coming in opposite
direction collided together, then the persons involved in the accident could be tried together in one and
same case for offences under Ss. 279, 337, 338 and 304A. 1982.MadLJ (Cri) 273.
(2) Cognizable-Summons-Bailable---Compoundable-Triable by any Magistrate.
12. Practice.-Evidence-Prove: (1) That the accused did an act rashly and negligently.
(2) That such act endangered human life or personal safety of others.
- (3) That such act caused grievous hurt.
Sec. 338A Of Offences affecting the Human Body 991
13. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--caused grievous hurt to .X, by doing an act (describe it)
so rashly or negligently as to endanger human life or the personal safety of others and thereby caused
an offence punishable under section 338 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 338A
• 13 [338A. Causing grievous hurt by rash,driving or riding on public way.—
Whoever causes grievous hurt to any person by driving any vhicle Or riding on any
public way so rashly or negligently as to endanger human life or the personal safety of
others, shall be punished with imprisonment of either description for a term which
may extend to 14 [two years], or with fine, or with both].
Cases and Materials
1. Scope.---(l) For giving adequate punishment fri cases of rash and negligent driving of vehicles,
this provision has been made. Section 338A is a minor offence of section 304B. Therefore, if the
accused isconvicted of an offence under section 304B he cannot be convicted also under section 338A
Speed by' itself, on an open public highway where a vehicle is not crossing another vehicle or animals,
where, there are no travellers or obstructions so long as the vehicle is under control may not amount to.
a rash act but it is the duty of drivers of public vehicles to slow down in crowded highways and
thoroughfares and when crossing animals, to see that the road is clear and visible when overtaking and -
passing other vehicles, to keep the vehicle under control, and to give way to other vehicles to pass or
cross. A driver of a bus who was driving. the bus with defective brakes and other defects at such a high
speed that in trying to stop the vehicle, on being signaled to stop he was unable to control the vehicle
which capsized as a result of which one passenger was killed and another severely injured, was guilty
under this section . (PLD 1966 Lah 745). Where the motor driver is being prosecuted for an offence
under this section it cannot be said that car has been used by ' the.accused for the commission of that
offence within the meaning of section 516A CrPC and it is illegal for a Magistrate to detain the car
pending conclusion of the. (33 CrLf 347).
2. Practice.—Evidence—Prove: (1) That the accused drove rashly and negligently on any public
way. .
(2) That such act endangered human life or personal safety of others.
(3) That such .act caused grievous hurt. . . . .
.3. Procedure.—Cognizable—Warrant—Bailable—Not cornpoundablç—Triable by Metropolitan
Magistrate or Magistrate of the first class.
• 4. Charge.—The charge should run-as follows: .•
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at--caused grievous hurt to X by doing an act (describe) so
rashly or negligently on a public way (name of the way) as to endanger human life or the personal

B. Inserted, ibid., after section 338 s. 7...
I4 Subs, by Ord, No. XLVIII of 1985, s. 6. for "five years".
992 Penal Code Sec. 339

safety of others and thereby committed an offence punishable under section 338A of the Penal Code
within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Of W rongful Restraint and W rongful Confinement

Section 339.
339..Wrongfül restraint.—Whoever voluntarily obstructs any person so as to
prevent that persofrom proceeding in any direction in . which that person has a right
to proceed, is said wrongfully to restrain that person.
Exception.-The obstruction of a private way over land or water which a person
in good faith believes himself to have a lawful right to obstruct, is not an offence
within the meaning of this section.
Illustration
A obstructs a path along which Z has a right to pass, A not believing in good faith
that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully
restrains Z. . .
Cases : Synopsis .
1. Scope. . . 9. Obstruction to . carrying corpse along public
2. "Voluntarily road.
10. "Proceed"
3. Right to proceed—General.
11,. "Obstructs".
4. "In any direction ' . ...
12: Exception.
S. Right to proceed in a public street or place.
13. Sections 79 and 341.
6. Landlord and tenant. 14. Hurt and restraint.
7. Obstruction to vehicle in which or animal on 15. Mischief and restraint.
which a person proceeds. 16. Robbery and restraint.
8. Obstruction to person proceeding with animal 17. Magistrate's power to order removal of
but not riding on it. . obstruction.
1. Scope.—(1) This section defines wrongful restraint. Wrongful restraint means.keeping a man
out of a place where he wishes to go has a right to be. This section requires two essentials: (a)
Voluntary obstruction of a person; and (b) The obstruction must be such as to prevent that person from
proceeding in any direction in which he has a right to proceed. This slightest unlawful obstruction to
the liberty of the citizen to go when and where he likes to go provided he does so in a lawful manner,
cannot be justified and is punishable under this section. . .
(2) Exception to the section. Obstruction over land or water not an offence when it is caused in
good faith. Exception to section 339 of the Penal Code which defines wrongful confinement which is
punishable under section .341, provides that obstruction of a private way over land or water which a
person in good faith believes himself to have a lawful right to obstruct is not an offence within the
meaning of section 339 of Penal Code. Kabir A hmed Vs. S.D. 0. Chittagong Saa'ar. South, (1967) 19
DLR 623.. . . .
(3) Every subject has the liberty to go when and where he likes to go provided he does so in a
lawful manner. Every impediment offered to t14 exercise of such liberty would, subject to some
I
Sec. 339 Of Offencesaffecting the Human Body 993

exceptions, be unlawful and may constitute the offence of wrongful restrain, under S. 339 or S. 340.
AIR 1954 Mad 247.
2. "Voluntarily".—( I) Where the accused locked the outer door of a house in the occupation of
the complainant during the temporary absence of the complainant and his family, the accused have
"voluntarily" obstructed the complainant from entering the house. (1910) 11 CriLJ 708 (Mad).
3. Right to proceed—General--(1) A person cannot be convicted for the offence of wrongful
restraint if he has not a right to proceed in the direction in which he was proceeding at .the time of his
restraint. A IR 1916 Mad 696 .
(2) That the complainant had. the right to proceed must be proved by the prosecution. (1910) 11
CriL.J 495 (La/i)... . . ...
4. "In any direction" ^ —(I) The words "in any direction" would include a vertical direction and
that if A had a right to go up to the roof of his house or comedown from the roof or to go up a
mountain or to get up a ladder and he was wrongfully prevented from doing so by B, B will be guilty
of an offence under this section. AIR 1927 Born 369.
5. Right to proceed in a publk. street or place.--(1) An obstruction by a person of one
community to a person of another community from passing by a public way is an offence under this
section. AIR 1927 Mad 938. . . . . . .
(2) A religious procession of one community cannot be stopped by another, when the same is
proceeding along a public road. A IR 1925 PC 36 . . .
6. Landlord and tenant.—(1) A tenant is entitled to be in possession of the demised premises,
even though he may be a tenant holding over. AIR 1919 Born 97.
(2) A landlord who prevents a tenant from entering a privy and bath room of which he is a tenant
by locking their doors technically commits an offence under S. 339. A IR 1950 Cal 157.
(3) Where the accused was convicted under S. 341 for wrongfully restrainifig the complainant, who
was his tenant from going to a certain urinal, the conviction could not stand unless it was proved that
the cothplainant had a right to use the urinal. AIR 1930 Cal 760.
(4) A fisher woman who Occupies, on payment of rent, a particular stall in a fish market has a
right to be at that stall and cannot be thrown out of it without due process of law. Hence preventing
her from exercising her right to go to the stall is an offence under this section. A IR 1954 Cal 192.
7.. Obstruction to vehicle in which or animal on which a person proceeds.--(I) Where A is
travelling in a vehicle In a particular direction in which he has a right to proceed, B cannot compel him
to get down from that vehicle or walk or proceed in any other manner or in any other direction. If B
does so, it will amount to a wrongful restraint within the meaning of this section. A IR 1964 Cal 286
(2) A person who is travelling, riding on an animal and proceeding in particular direction cannot
be compelled by -another ,to get down or walk or proceed in any other manner or in any other direction..
AIR 1950 Mad 233. . . . . . .
8. Obstruction to person proceeding with animal but not riding on it.---(I) Where a person is
proceeding with animals, as where he takes bulls with him for ploughing, and the animals are beaten
and driven away by the accused, it was held, that the accused were guilty of wrongful restraint. AIR.
\ 1954 Mad 247. ., . .
(2) Where the accused prevented the complainant from using a mot to which he had yoked his
bullocks on the slope to a well which existed for that purpose—Held, that the accused were guilty,
,uider this section. AIR 1926 Born 118. . ..
994 Penal Code Sec. 339
• 9. Obstruction to carrying corpse along public road.—(15 Where certain persons carried 'a
corpse along a public road and the accused obstructed the carrying of the corpse along that way, they
were guilty of an offence under this section. The fact that the obstruction was only to corpse being
carried along the road and not to the persons carrying it is no defence: (1963) 2 MadLJ 80..
1. "Proceed".—(l) "Proceed" includes proceeding by outside agency. the word is not limited to
proceeding on one's own legs or by physical means within one's power. (1935) 39 Ca1WN 396
11. "Obstructs".—(l) In order that A may be said to obstruct B from proceeding in a particular
direction, it is not necessary that A should physically prevent B when B is impeded in his progress.
A IR 1954 Mad
(2) It is necessary that a person should be physically impeded by the act of accused. In 'other
words, the obsfrution must be physical. AIR 1954 Mad 247.
(3) The "obstruction" must be to a person proceeding in a certain direction. Mere obstruction to
his carrying out certain works such as white-washing or repairing .a wall, etc., is not enough. AIR 1927
Born 369.
(4)Where a licence or passport is necessary under the law for a person to proceed to a particular
place, a refusal by the officer who is to issue the licence or passport, to issue it or the delay caused by
him issuing it, is not an offence within this section, if the officer did not physically prevent him from
going without a licence or passport. AIR 1954 Mad 247.
(5) A menace or threat creating a fear of physical obstruction would be within this section.
AIR
1959 Punj 134.
(6) Where A broke open the lock and entered into the house of 'B during his absence, and on his return
,
B went to the house and was prevented by A from entering it, it was held that thedate of the
obstruction must be taken to be the date when B was prevented from entering thO house and not when
A had entered the house in the absence of B. AIR 1960 Born 139.
12. "Exception."--(I) Where A claims a private right of way over B's Property and B. in good
faith believes that A has no such right and obstructs him in his attempt to proceed on that way, the
proper remedy of A in such a case lies in the Civil Court. AIR 1964 J and K 4.
(2) For the sake of the preservation of peace, any individual who sees it broken, may restrain in
liberty 'of him whom he sees breaking it so long as his own conduct shows that the public peace is
likely to be endangered by his acts. In truth, whilst those are assembled together who have committed
acts of violence and the danger of their renewal continues, the affray itself may be said to continue. AIR
1921 Mad 458.
(3) Failure of the accused to plead that his case comes under the Exception does not deprive him
of his right to show, on the evidence, that he is entitled to the benefit, of the Exception. A IR 1950
A ssam 82;
(4) Where A obstructs B so that B may be attacked by C, A cannot be considered to
have acted in
good faith. A iR 1964 Cal 286
13. Sections 79 and 341.—(1) Where a police officer acting under S 129, Criminal P. C., is
"ititled to take into custody 1 those who form themselves into an unlawful assembly and cause a
disturbance of the public peace, he cannot be held liable for wrongful restraint in view of S. 79 of the
Cod.1937 Mad W N1243
Sec. 340 Of Offences affecting the Human Body 995
14. Hurt and restraint.'—( 1) In every case of assault of hurt certainly, there will be a momentary
restraint of the person injured; but the gist of the offence under S. 341 is that there must be restraint
when there is a desire to proceed in a particular direction. AIR 1957 Orissa 130.
• 15. Mischief and restraint.—( 1) Servants of the complainant loaded certain things in their cart in
order to remove them from one hat to another hat—Accused who were the servants of the person to
whom the hat belonged asked the cartmen not to remove the things and on their refusal turned the carts
upside down and things fell down to the ground where they remained for some days—Held that the
offence made out is one under S. 425 of .the Code and not under S. 339 (1886) ILR 12 Gal 55.
16. Robbery and restraint.—(1) Where the accused stood before the victims of theft armed with
lathis but without using any force removed the ornaments from the victims the mere presence of the
accused armed with lathis in front of the victim is not sufficient to constitute wrongful restraint in law.
A IR 1959Orissa 171.
17. Magistrate's power to order removal of óbstruction.—(l) A Magistrate has no power to
pass an order under S. 341 of the Code that the obstruction should be removed. 1954 CriLJ 1005.

Section 340
340. Wrongful confinement.—Whoever wrongfully restrains any person in such
a manner as to prevent that person from proceeding beyond certain circumscribing
limits, is said 'wrongfiul1y to confine" that person
Illustrations
(a) A causes Z to go within a walled space, and locks Z in. Z is thus prevented from
proceeding in any direction beyond the circumscribing line of wall. A wrongfully
confines Z.
(b) A places men with firearms at the outlets, Of a building, and tells Z that they will
fire at if Z attempts to leave the building. A wrongfully confines Z.
Cases : Synopsis
1. Scope. 8. Malice or intention.
2. Physical presence of confiner not necessary. 9. W rongful confinement when there is already a
3. Wrongful restraint, an element of the offence legal confinement.
4. DuratIon of confinement. 10. Sections 342, 347, 365 and 368.
5. Imprisonment and confinement. 11. Attempt.
6. Arrest.. 12. Illustrative cases.
7. Confinement justifiable by law.
1. Scope.—(1) Wrongful confinement is a species of wrongful restraint. The essential ingredient,
of this offence is physical obstruction to the movement of a person. The mere keeping of a watch on a
person without in any way hindering his movement by physical impediments in his way does not fall
under this section. .: . .
(2) "Wrongful confinement" is a wrongful prevention of a person from proceeding beyond certain
circumscribing limits. Where there was no desire to proceed, in a certain way on the part of the
complainant it cannot be said that 'there was obstruction though the accused may have intended and
even expressed his intention to restrain the complainant should he move from his present position. A IR
1957 Orissa 130. .
996 k'enai.Code See. 340

• (3) Wife not detained against her will and without her consent by her parents—Wife completing
21 years of age during pendency of appeal before Supreme Court—Petition for writ of Habeas Corpus
by husband for production and release of his wife—Petition must fall. A IR 1982 Sc 938,
2. Physical presence of confiner not necessary.—(1) Physical presence of the obstructor isnot
necessary to constitute the offence of wrongftil . confinement. AIR 1924 Mad 31.
3. Wrongful restraint, an element of the offence.—(I) There must not only be a wrongful
restraint but the victim must also be kept in the confinement, so that he would not be free to move out
of the confinement. (1898) 3 Mys CCR No. 140, page 484.
(2) A mere temporary detention of persons at a police station by the police for the purposes of
search or investigation or generally for the purpose of enquiry into a crime does not amount to an
offence of wrongful confinement but that it may amount to such an offence where the detention is
serious and protracted enough to amount in law to a real and unauthorisd prevention from proceeding
beyond certain circumscribed limits. 1930 MadWN 723.
4. Duration of confinement-41) The duration of the confinement is immaterial except from the
purpose of determining hé gravity of the offence so as to affect the sentence to be passed. 1.894 Upp
Bur Ru! 172. . .
5. Imprisonment and confinement.—(1) The words false imprisonment as used in the law of
torts would include a confinement anywhere. (1865) 2 Mad.HcR 396
(2) A person cannot be said to be confined where there is a way of escape open to him. AIR 1951
Orissa 142. . ... .
6. Arrest.--(1) Submission by the complainant to the arrest does not detract from the accused's
acts or diminish its legal. effect. The compelling of a person to go in a particular direction by force of
an exterior will overpowering or suppressing in any way his own voluntary action is imprisonment on
the part of the person who exercise the exterior will. AIR 1929 Cal 730.
(2) If a process-server arrests a person who is exempted from civil arrest under Section 135 of
Civil P.C. believing himself in good faith to be justified in doing so, no offence under this section is
committed. A IR 1940 Rang 112. . .
7. Confinement justifiable by law..--(1) Where a police officer enters a house for search without
a vaid warrant for the purpose, he will be a trespasser and if there is any incidental confinement of the
officer, it would not be illegal. (1955) 59 Cal W N649.
(2) Where the confinement of public officer is continued beyond need it will be a wrongful
confinement. 1952 CriLJ 1023 (Mad).
8. Malice or intention.—(1) A person may be guilty of wrongful confinement though he acts
.
without malice but the restraint must be voluntary. (1889) JLR 13 Born 376.
(2) Mens rea does not enter into an offence under S. 342 at all. AIR 1929 Cal 730.
9. Wrongful confinement when there is already a legal confinement.—(1) If a prisoner is
confined in a particular part of a prison without legal authority for such confinement, that confinement
is a wrongful one, notwithstanding that his confinement in the prison at large may be legal. (1902) 6
CaIWN 511. • .. . .
10. Sections 342, 365 and 368.—( 1) Where in a case relating to the abduction of a minor. girl,:
the principal accused were acquitted of the offence of wrongful confinement, it is illegal to fine the,
others guilty of the offence under S. 368 read with S. 109. AIR 1.929 cal 767.
Sec. 341 Of.Offences affecting the Human Body 99"

11. Attempt.—( 1) Where, during the course of an assault the complainant was pushed and dragged
towards the pial of his house there was no attempt to wrongfully confine the complainant. (1893) 16
MysLR No. 253, page 397.
.12. Illustrative cases.—(l) Police Officer entered into the. house itf the joint possession of the
complainant and the accused, with their consent in order to prevent a breach of the peace—He was
beaten and confined by the accused—Held that the accused was guilty under Ss. 332 and 342 of the
Code. AIR 1951 Ajmer 37. .
(2). First accused brought the complainant (his mistress) to a brothel house kept by the second
accused and left, her there—Second accused kept guard over her and allowed her to go out on rare
occasions and under proper control—First accused was aware of the conditions under which the
complainant—Living in that house—Held that both accused were guilty of the offenc p of wrongful
confinement. AIR 1917 Born 2. .. ..
(3) Where the accused confined a girl of 9 years in a room made her lie on a bed sat on her and
undressed himself the accused was rightfully convicted under Ss. 342 and 354. AIR 1953 MadhB 147.
(4) Person likely to commit breach of public peace and tranquillity—His arrest without warrant is
not justified—The constable who arrested a person without warrant because in his opinion the action of
the person would result in breach of peace was held to be punishable under S. 342 Penal Code. AIR
1965 All 164. . . . . . .

Section 341
341. Punishment for wrongful restraint.—Whoever wrongfully restrains any
person, shall be punished with simple imprisonment for a term which may extend to
ne month, or with fine which may extend to five hundred 9[taka], or with both.
Cases and Materials
1. Scope.—(l) This section prescribes the penalty for an offence under 339.
(2) Unless a cognizable offence, such as one under section 341 Penal Code has been investigated
into by the police and report thereof submitted to the Magistrate, the Magistrate cannot simply,
because it is a cognizable offence, try the offence himself—such case in ordinary course is triable by
the Conciliation Court. Jamshed A li Vs. The State 20.DLR 503. .
(3) Where a police officer summons witnesses to be questioned during investigation and keeps'
them under restraint and there is no evidence regarding wrongful confinement, he will be guilty under
S. 341 and not under S. 342.1970 SCD 449. .
(4) Accused the boarder of the car, assaulted R and did not allow him to get up after he had fallen
down, held, committed an offence under S. 341. 1983 WLN (UC) 311.
(5) Prosecutrix knowing accused not only by face but also by name—Accused not specifically
incriminated in her F. I. R.—Other evidence to show that accused were fictitiously implicated—
Accused entitled to acquittal .1983 CriLJ 607. .
(6) Accused acquitted from charge under S. 341—No error committed by trial. Court in
appreciating the evidence of eye-witnesses further the conditions necessary for interference by,High
Court in revision wanting, held, not a fit case for interference. 1983 MahLR 589 (Born).
(7) Where, on a complaint against the accused for an offence under Ss. 342 and 392 of the code,
the Magistrate proceeded to take evidence according tO the procedure in warrant cases, but .after
998 .. Penal Code Sec. 342

recording the evidence thought that the offence was one under S. 341 and convicted the accused under
S. 341 without framing a charge, the pocedure was irregular. AIR 1927 All 270.
(8) An offence of wrongful restraint is compoundable by the person restrained and, it is not
necessary that a composition should be arrived at after a complaint was flied into Court. AIR 1927
All 375. .
(9) An accused can be convicted for an offence under S. 341, on a charge under Section 448 of the
Code, if the accused had not been prejudiced by such alteration. AIR 1937 Rang 250.
(10) Where the accused are charge-sheeted under S. 341 of the Code, the Magistrate after hearing
the evidence is entitled to frame an additional charge under S. 506 of the Code. AIR 1931 Oudh 73.
(11) Where the offence under S. 341 is involved in the offence of unlawful assembly a separate
sentence of fine undei S. 341 is not called for. AIR 1961 Mys 57.
(12) Where evera1 persons commit an offence under this section and the crime would not have
been committed but for thó presence and support of one of them a higher punishment in his case is
justified. A IR 1951 A ll 504.
12. Practice.—Evidence—Prove: (1) That the accused obstructed a persqn.
(2) That such Obstruction was voluntary.
(3) That such obstruction prevented him from proceeding in the direction in which he had a right
to proceed.
13. Procedure.—Cognizable---Summons—Bailable--Compoundable—Triable by Magistrate,
Village Court. .
14. Charge.--The charge should run as follows!'
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—wrongfully restrained X (name of the person) and thereby
committed an offence punishable under section 341 Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 342
342. Punishment for wrongful confinement.—Whoever wrongfully confines
any person, shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to one thousand 9[taka],
or with both.'
Cases and Materials Synopsis
1. Scope. 7. Sanction for prosecution of public servant
2. Wrongful confinement. committing offence under this section.
3. Charge. 8. Sentencè
9. Separate sentences. 1 -
4. Trial.
5. Compounding. ' ' , 10. Procedure.
6. Evidence—Proof. ' , 11. Practice.
1. Scopé.—(l) This section provides for punishment for the offence of wrongful confinement
defined under section 340 Penal Code. Duration of confinement is a relevant consideration to be takn
into acco nt in awarding punishment. Delay in making complaint is almOst fatal.
s. 342.. Of Offences affecting the Human Body . 999

(2) An offence under section 342 of the Penal Code which is not included in the schedule of the
Special Powers Act cannot be the basis of conviction as the same is non-scheduled offence. Had the
• original offence charged been one under Penal Code then the learned Judges by application of section
238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that
view could have convicted the appellant under a minor offence, but here the original offence charged
was exclusively .triable by the Special Tribunal andin that view the alteration of the conviction from a
scheduled offence to an offence which is only referable under Penal Code is not legally permissible.
Abdur Rahman and others Vs. State 51 DLR (AD) 33. .
(3) Petitioners convicted and sentenced udder sections 342 and 395 P.C. separately by trial Court;
sentence imposed under section. 342 P.C. being found illegal on appeal that does not affect . the
sentence imposed under section 395 P.C. Md. Ismail Vs. State, (1969) 21 DLR (SC) 161.
(4) Misjoinder of charges under sections 147 and 342 Penal Code—Trial vitiated. 10 DLR 134.
(5) This section is not confined to offences against public servants but is a general section and
makes a person who wrongfully confines another guilty of the offence under this .section. AIR 1972 SC
886. . . •• . .,
(6) Where the confinement is for .3 days or more the offence will fall under S. 343. But where the
confinement is for 3 nights which is not more than 2 day s' the offence is one under this section and not
S. 343. 1967 JabLJ 234 (SC) . . .
2. Wrongful confinement.–(I) An accused who forcibly brings baák the searching officer, after he
had conducted the search and left the place and threatens him with assault unless he writes a memo
recording the search, commit an offence under this section, even if the search was in violation of law.
A IR 1972 SC 886 . . . .. . . .
(2) 'Gherao' will amount to wrongful confinement under certain circumstanàes. AIR . 1968 C91 407.
(3) .The Court can in its discretion allow the, accused to sit behind or near his counsel but if for -
certain reasons the Court withdraws the privilege no offence tinder S. 342 can be made Out because all
that, is done is in good faith. (1980) 1 calHN 276. . .
(4) Where a police officer keeps persons under wrongful restraint, though there is no evidence of
wrongful confinement he is guilty of offence under S. 341 and not under S 342. 1978 SCD 449.
3. Charge.—Making .a false charge of wrongful confinement (the offence being a .cognizable
offence) falls within the purview of S. 211 of the Code. A IR 1930 Cal 711.
(2) Order framing charges under. Ss. 342 and 365—Statement of accused under S. 161, Cr. P.C.
disclosing that after taking complainant to the Police Station, the S. H. 0. asked accused to take away
complainant with him. Who then confined the complainant at certain place and afterwards released him
after tying his hands ad blindfolding him—Held, in view of statement of accused it could not be said
that offence under S. 342 was not disclosed but statement did not disclose offence under S. 365–Order
framing charge upheld to the extent it d 1rected framing of charge under S. 342. 1983 RajLW 360.
(3) The charge should run as follows: • . . . .•
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at wrongfully confined X, and thereby committed an offence
punishable under section 342 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this court on the said charge;
1000 . . Penal Code Sec. 342

4. Trial.—(1) An offence under S. 342 is not triable summari1y. (1969) MadLi (Cr) 287 'Ker).
(2) The offence under S. 342 being triable as summons case, if the Magistrate discharges the
accused after taking evidence the order of discharge should be treated as an acquittal of the accused.
1969 CurLJ 732. . .
5. CompoUnding.—(1) Where a petition of compromise is filed under S. 342 the Magistrate.
should accept it, and if it is rejected and accused convicted the conviction is illegal. 1883 A11WN 245.
6. Evidènce—Proof.---(1) Mere ownership of a house where a person was wrongfully confined
dosà not render the owner of the house liable to be punished under S. 342 unless there is evidence to
the effect that he took part in the wrongful confinement or abetted it; AIR 1951 All 637.
(2) Where the testimony of the prosecution was corroborated by other evidence in respect of some
of the accused while it was not corroborated in respect of others the former accuse d were convicted
under S. 343 while the latter were acquitted. 1973 A11CrIR 391(394).
(3) Charge that girl was kidnapped and wrongfully confined by the accused—Girl found to be, 16
years of age (major) on medical examination—Evidence as regards her confinement absent--Held,
accused could not be convicted. 1982 UP (Cr1) C 35.
(3) Complainant alleged to have been tied with rope , by. accused—Medical evidence and another
prosecution witnesscorroborating story of prosecution in all material particulats—Offence. under S.
342 held proved. (1983) 2 Crimes 701.
(4) Complainant foroffenee Under S. 342—com0ainant alleging that she was not allowed by the
accused to move out of her hOuse—No evidence to show that she made attempt to move out of her
house when the accused were there and they 'really obstructed her—NO statement of her husband to that
effect either—Accused cannot be convicted for offence tinder S. 342. (1984) 1 BomCR 466.
7. Sanction for prosecution of public servant committing offence under this section.—(1) If
an offence Under this section has been committed by a public servant actingas .uch, he cannot be
prosecuted for the offence unless a sanctionu/s. 197 Cr. P. C. is obtained. 1966 'CrLJ 269 (Puni).
(2). Where accused—Government officers were proceeded against for offenees under S. 342 read
with Ss. 147, 144, 330 they can raise a preliminary objection that they were protected under the
Customs Act. Section 155 and Section 197 Cr. P. C. 1978 MadLW (Cr1) 199.
8. Sentence.—(l). Where the judgment-debtor was evading the execution of the decree for two
years and the decree-holder was afraid to ' go to the village of the judgment-debtor and hence the
judgment-debtor was arrested while returnig from Curt, the decree -holder was sentenced to pay afine
of Rs. 2O only. AIR 1916Lah 318.
(2) Where it appeared that the accused, a Police Sub-Inspector, in effecting the arrest without a
warrant acted without malice and had relied on the word of the Sub-Magistrate, an imprisonment of
one day was considered to be sufficient punishment. AIR . 1942 Sind 106.
(3) Accused convicted under Ss. 342 and 376 P.C.—Accused is 15 years of age at the time of
occurrence—Benefit of Children Act, given to accused and he was released on probation of good
conduct. 1983 A IICr1R-536. . . .
(4) Appeal against sentence—Occurrence taking place in 1 975—JIost of accused persons being of
age about 60 years at time of appeal—Benefit of S. 4 of Probation of Offenders Act given to accused.
1982 Raj CriC 80. . . . .. . . . -
Sec. 343 Of Offences affecting the Human Body ; 1001

9. Separate sentence.---(I) Where the offences of wrongful confinement and dacoity committed
by the accused were not parts of the same transaction S. 71 of the Code is not applicable and separate
sentences are not illegal. AIR 1962 Manipur 7.
(2) Section 106, Criminal P. C. is applicable to offences under Ss. 147,324, 375 and 342 read
with S. 149, (order to execute bond for keeping the peace), but separate sentences are not legal. AIR
1939 Mad 787.
10. Procedure.—(1) Seven persons charged for offence under Ss. 342, 3.95—Six of them
acquitted as no case made out against them—Conviction of seventh accused could not be sustained for
both the offences. 1980 Cr1LJNOC 83 (Gauhati). .•
(2) Accused (a police officer) keeping the victim prosecutrix in police post on ground of
èompeleting certain investigation—Accused not allowing victim to go with her father—Victim not
allowed to talk with any person—Conviction of accused under S. 342—Appeal by accused dismissed.
(1984) 1 Crimes 193 (DB) (P&H).
(3) Cognizable_warrant_Summons_Bailable—CompoUfldab leTriable by any Magistrate,
• 1
Village Court. -
11. Practice-Evidence-Prove: (1) That the accused obstructed the complainant.
(2) That such obstruction was voluntary.
(3) That the effect of such obstruction was to restrain the person from proceeding beyond a certain
limit. . .
(4) That the restraint was wrongful.

Section 343,
3. 43. Wrongful confinment for three or more days.—Whoever wrongfully
confines any person for three days or more, shall be punished with imprisonment of
either description for a term which may .extend to two years, or , with fine, or with
both. . . . . .
Cases and Materials . .
1. Scope-41) The period of three days will be coUnted from the time that the co-complainant is
illegally confined. . .
(2) The essence of an offence under Ss. 343 and 365 is wrongful confinement. 1980 A11LJ 101.
(3) A confinement for three nights which is not more than 2 days is not under S. 343 but will fall
under S. 342. 1967 JabLJ 234. (SC).
(4). An accused found guilty of the offence of abetment of abduction of a woman under Ss. 109
and 498 and of the offence of wrongful confinement cannot be sentenced for both Offences as they are
not distinct offences. 1864 Suth WR (Cr) 11.
2. Practice.—Evidence—Prove: (1) That the accused obstructed the complainant.
(2) That such obstruction was voluntary.
(3) That the effect of such obstruction was to restrain that person from proceeding beyond a
certain limit.
(4) That the restraint was wrongful. -
(5) Thatsuchrestraint was for a period of three or more days. .
1002 Penal Code See. 344

3. by any Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the----day of—at--wrongful confinement X, for—days and thereby
committed an offence punishable under section 343 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 344
344. Wrongful confinement for ten or more days.—Whoever wrongfully
confines any person for ten days or more, shall be punished with imprisonment of
either description for a term which may extend to three years, and shall also be liable
to fine.
Cases and Materials.
1. Scope.—This section deals with wrongful confinement for ten days and more.
(2) As the victim Hosne Are had been confined in Khulna for 7/8 days when section 344 of the
Penal Code requires wrongful confinement for ten days or more, the conviction and sentence under
section 344 of the Penal Code is not sustainable in law. A bul Kalam & others Vs. State (Criminal) 5
BLC 270.
(3) Wrongful confinement necessitates proof of physical obstruction or that the person wrongfully
confined would have been physically prevented if he had tried to go out; Samundar Khan Vs. The
State, 15 DLR 115 W P.,.
(4) A was arrested under S. 478 of the Civil P.C., 1882 (corresponding to 0. 38 R. 1. of the
present Code) and brought before the Court—Judge orally ordered the Bailiff to keep him in custody—
Bailiff in turn orally ordered • a process server to take charge of A—Process server detained A in his
own house from 26th June to 28th July—In a prosecution of the Bailiff and the process server, held
that the oral order of the .' judge was without authority, that S. 78 of the Penal Code did not apply to
the case and that as the mistake, if any, of the officers was one of law and not of fact. S. 79 also did
not apply and that they were therefore guilty under this section. (1908) 8 CPiLJ 68. (Low Bur)
(5) As the offence is punishable with imprisonment as well as fine a sentence of fine only is not a
legal one. (1862-1863) 1 Born HCR 39. .
2..Prac tice.__Evidence_Prove; (1) That the accused obstructed the complainant.
2) That such obstruction was voluntary.
(3) That the effect of such obstruction was to restrain that person from proceeding beyond a certain
limit.
(4). That the restraint was wrongful.

3. by Metropolitan
Magistrate or Magistrate of the .frst or second class.
4. Charge.— .The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—wrongfully confined X for—day and thereby committed
an offence punishable under section 344 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
Sec. 345-346 Of Offences affecting the Human Body 1003

Section 345
345. Wrongful confinement of person for whose Liberation writ has been
issued.—Whoever keeps any person in wrongful confinement, knowing that .a writ
for the liberation of that person has been duly issued, shall be punished with
imprisonment of either description for a term which may extend to two years in
addition to any term of imprisonment to which he may be liable under any other
section of this Chapter. .. '
Materials
1. Scope.--(I) There must be knowledge on the part of the accused that a writ of liberation has
been issued. Mere belief is not sufficient. . .
2. Practice.—Evidence—Prove: (1) That the accused kept a person in confinement.
(2) That such confinement was wrongful.
(3) That a writ of liberation had been duly issued. .
(4) That the accused knew of such writ when he kept the person wrongfully confined.
3. Procedure.—Cognizable—Summons—Bailable—Not compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:

I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—wrongfully confined X, at the time, of such wrongful
confinement that a writ for the liberation of the said X had been duly issued, and thereby committed an
offence punishable under section 345 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this court on-the said charge.

Section 346
346. Wrongful confinement in secret.—Whoever 'wrongfully confines any
person in such manner as to indicate an intention that the confinement of such person
may not be known to any person interested in the person so confined, or to any
public servant, or that the place of such confinement may not be known to or
discovered by any such person or public servant as hereinbefore mentioned, shall be
punished with imprisonment of either description for a term which may extend to two
years in addition to any other punishment to which he, may be liable for such
wrongful confinement.
Cases and Materials
1. Scope.—(l) To render a person liable under this section it must be shown that wrongful
confinement was of such a nature as to indicate an intention that the person confined should not be
discovered.
,(2) A person is only liable under this section if t is shown that the wrongful confinement was of
such a nature as to indicate an intention that the person confined should not be discovered. (1882) ILR
9 Cal 221. ' '
1004 Pehalçode Sec. 347

(3) The dismissal of the case against the accused under S. 347 amounts to an acquittal and a
subsequent complaint for the same offence is not maintainable. 1973 All CriR 101.
2. Practice.—Evidence—Prove: (1) That the accused wrongfully confined a person.
• (2) That the accused prevented him from proceeding beyond a limit imposed.
• (3) That such confinement was secret (a) so as not to be known to any person interested in the
confinee or to any public servant, (b) so that the place where the confinee was confined may not be
known to or discovered by any such person or a public servant.
3. Procedure.__Cognizable_SummOflS_Bai1able_C0mPounde_T le by any Magistrate.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate)hereby charge you (name of the accused) as follows:
• That you, on or about the—day—of at—wrongfully confined X in such a manner that the
confinement may not be known to any person or to any one interested in the confinee or any public
servant or that the place of confinement may not be known to or discovered by any person or public
servant and you have thereby committed an offence punishable under section 346 Penal Code and
within my cognizance. .
And I hereby direct that you be tried by this court on the said charge.

Section 347
347. Wrongful confinement to extort property or constrain to illegal act.—
Whoever wrongfully confines any person for the purpose of extorting from the person
confined, or from any person interested in:the person confined, any property or
valuable security or of constraining the person confined or any person interested in
such person to do anything illegal or to give any information which may facilitate the
commission of an offence, shall be punished with imprisonment of either description
for a term which may. extend to three years, and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) This section may be read along with section 30, 40, 329, 330 and 342 of the Penal
Code. Where under fear of injury a person was made to put his thumb impression on a paper becomes
a valuable security the accused was held guilty of the offence under this section (34 CriL.J 81).
(2). The offence under S. 347 includes the offence of wrongful confinement punishable under S.
342. A IR 1941 Sind 36.
(3) Accused charged complainant with theft of an article belonging to a certain person---
complainant denied .the charge—Accused threatened to take him to the police station, tied him with a
turban cloth and took him towards the police station—On their way they detained him in an orchard
whèré they made a proposal for payment of Rs. 50 for his release—The complainant then got himself
released by making the payment—Held that the action of the accused in keeping the complainant tied
was an act which amounted to wrongful restraint and the threat to take the complainant to the police
station on a charge of theft thus putting him in fear, of injury and the obtaining of the amount from him
under' such threat amounted to a wrongful confinement for the purpose of extortion. AIR 1952 Pat 379.
(4) Where the accused were found to have intentionally put the old man in fear of injury to himself
and thus to have dishonestly induced him to place his thumb impressions on the pieces of paper, the
accused were guilty under S. 347. A IR 1932 Pat 335. . ,
Sec. 348 Of Offences affecting the Human Body 1005
(5) Where it was alleged that a Police Officer illegally detained a person with the object of
extorting money but the Court found that no money passed the elements of an offence under S. 347
were wanting. AIR 1930 Oudh 505. .
(6) Where from the complaint, the allegations of the offence under Ss. 220 and 347, Penal Code,
attract the. application of S. 197, Criminal . P. C. prior sanction is necessary for prosecution. A IR 1947
.Sind 60.
2. Practice.—Evidence—Prove: (1) That the atcused confined a certain person.
(2) That such confinement was wrongful. .
(3) That such confinement was of the purpose of (a) extorting from the óonfinee or any person
interested in him property or valuable security; or (b) constraining the doing of an illegal act by the
confinee or any person interested in him; or (c) giving any information facilitating the commission of
any offence. . . .
3. Procedure.—Cognizable—Summons—Ba j lable—Compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first or second class. '.
4. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
• That you, on or about the—day of—at--wrongfully confined X for the purpose of extorting from
the, said X (or from a certain person interested in the said X, to wit—Y) a certain property, to wit—,
and thereby committed an offence punishable under section 347 Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 348
348. Wrongful confinement, to extort confession or compel restoration of
property.—Whoever wrongfully confines any person for the purpose of extorting
from the person confined or any person interested in the person confined, any
confession or any information which may lead to the detection of an offence or.
misconduct, or for the purpose of constraining the person confined or any person
interested in the person confined to restore or to cause the restoration of any property
or valuable security, or to satisfy any claim or demand, Or to give information which
may lead to the restoration of any property' or valuable security, shall be punished
with imprisonment of either description for a term which may extend to three years,
and shall also be liable to fine.
Cases and Materials
I. Scope—(l) This section may be read along with sections 30, 40 and 330 Penal Code. This
section corresponds to section 330 substainally; the only difference being the nature of the act made
punishable. A police officer detaining a person not concerned with investigation for more than 24
hours is punishable under this section (43 Cr1LJ 3). A claim for restitution of conjugal rights falls
within this section (A IR 1936 Pesh 19). ' . ,•
(2) The formal arrest of a person is not necessary to constitute "wrongful confinement." It is
sufficient if a person is prevented form proceeding beyond certain limits. 1979 CriLi NOC 210.
1006 Penal Code Sec. 349
(3) Where the detention by the Police is serious and, protected enough to amount in law to a real
unauthorised prevention from proceeding. beyond certain circumscribing limits, it would amount to an
offence of wrongful confinement. 1930 MadWN 723.
(4) Police Officer detaining a woman not concerned with investigation for more than 24 hours is
guilty under S. 348. A IR 1941 Mad 720.
(5) The words "to satisfy any clairrt or demand" in this section cannot be limited to a claim or
demand to property. A claim to restitution of conjugal rights falls within these words of the section.
A IR 1936 Pesh 19(20): 1937CriL.J 344.
(6) Where the police had taken certain suspects to a place and made them stay there against their
will it was held that the restraint was unlawful. AIR 1940 Nag 186.
(7) Where police officers were prosecuted under Ss. 323, 330, 342, 194, 195 and 196, Penal Code,
and it was contended that a sanction under S. 197, Criminal P. C. was necessary before prosecution,
held that it was no part of the officer's duty to put a person under unlawful restraint in order to extort a
confession from him and a sanction for prosecution under S. 197, Criminal P. C. was not necessary.
AIR 1967A11 519.
2. Practice.—Evidence------Prove: (1) That the accused confined a person wrongfully.
(2) That such confinement was for the purpose of—(a) extorting a , confession from the confince or
any person interested in him; or (b) of obtaining any information leading to the detection of an offence
or misconduct; or (c) for the purpose of constraining the confinee or . any person in whom he is
interested to restore or to cause restoration of any property or valuable security or to satisfy any
demand Or claim; or .(d) to give information which may lead to the restoration of any property or
valuable security. . .
3. Procedure.__Cognizable_Summons_Bailable—COrnP Oundable—Triable by Metropolitan
Magistrate or Magistrate of the first or second class.,
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day---of at—wrongfully confined X. for the purpose of extorting from
him (or any one in whom he is interested) any confession or (any information leading to the detection
of any offence of misconduct) or for the purpose of constraining the confince or any person in whom he
is interested to restore or cause restoration of any property or valuable security or to satisfy any claim
or demand or to give information which may lead to the restoration of any property or valuable
security and you have thereby committed an offence punishable under section 348 of the Penal Code
and within my cognizance. .
And I hereby direct that you be tried by this court on the said charge.'

Of Criminal Force and A ssault

Section 349
349. Force.-A person is said to use force to another if he causes motion, change
of motion, or cessation of motion to that other, or if he causes to any substance such
motion, or change of motion, or cessation of motion as brings that substance into
contact with any part of that other's body, or with anything which that other is
Sec. 350 Of Offences affecting the Human Body 1007

wearing or carrying, or with anything so situated that such contact affects that other's
sense -of feeling:
Provided that the person causing the motion, Or change of motion, or cessation of
motion, causes that motion, change of motion, or cessation of motion in one of the
three ways hereinafter described:
First: By his own bodily power.
Secondly: By disposing any substance in such a manner that the motion, or change
or cessation of motion, takes place without any further act on his part, or on the part
of any other person.
Thirdly: By inducing any animal to move, to change its motion, or to cease to
move.
Cases
1. Scope.—(1) The 'force' used in this section is used in connection with human body (15 GnU
720). It does not relate to inanimate objects. Where the. accused raised lathis to strike a person who had
to flee to save himself, were guilty of using criminal force (15 CnIL.J 231).
(2-) Therj, a clear distinction between 'force' defined under S. 349 and 'criminal force' defined
under S. 350. 1982 C'nILJNOC 11..
(3) The, words "is said to use force to another" clearly imply that the person against whom the
force is said to be used is present. A cannot be said to use force against B while B is absent. A IR 1934
Lah 454. .
(4) The word "another" refers to a human being; A motion or change of motion or cessation of
motion caused to property without affecting a human being is not a "use of force to another" within the
meaning of this section. A IR 1969 Goa 45. 1
(5) Where the accused raised lathis to strike a, person who had to flee to save himself, they were
guilty of using force by their own bodily power. A IR 1923 A ll 333.
(6) Act of snatching away books of account which the Assistant Superintendent was, 'holding
amounts to 'use of force as contemplated by S. 349. A IR 1967 SC 170.
(7) Where force is .used against a person by X at a sign and signal from' Y, Y cannot be said to
have used force to such person. A IR 1939 Oudh 81.
(8) Inducing an animal to move may amount to using force under this section even though the
word "rescue" in S. 24 of the Cattle Trespass Act implies the use of force of violence. A IR 1923
Mad 608: '. .
(9) Where the accused caused the animals to cease to move they were using force as defined in this
section. A IR 1930 A ll 820. .
(10) A human being is not an animal and if A without moving himself induces B to move against
C, acannt be said to have used force against C. A IR 1939 Oudh 81.

Section 350
350. Criminal force.—Whoever intentionally uses force to any person, without
that person's consent, in order to the committing of any 'offence, or intending by the
1008 Penal Code Sec. 350

use of such force to cause, or knowing it to be likely that by the use of such force he
will cause injury, fear or annoyance to the person to whom the force is used, is said to
use criminal force to that other.
Illustrations
(a) Z is sitting in a moored boat on a river. A unfastens the moorings and thus
intentionally causes the boat to drift down the steam. Here A intentionally causes motion
to Z and he does this by disposing substances in such a. manner that . . the motion is
produced without any other action on any person part. A has therefore intentkonally.
used force to Z; and if he has done so , without Z's consent, in order to the committing of
any offence, or intending or knowing it to be likely that this use bfforce will- cause injury,
.fear or annoyance to Z, A has used criminal force to Z.
(b) Z is riding in a . chariot. A . lashes Z's horses, and thereby causes them to quicken
their pace. Here A has caused change of motion to Z by inducing the animals to change
their motion. A has therefore used force to Z, and if has done this without Z's consent,
intending or knowing it to be likely that he may thereby injure, frighten or annoy Z. A has,
used criminal force to Z.
'c) Z is riding in a palanquin. A intending to rob Z, seizes the pole and stops the
palanquin. Here A has caused cessation of motion to Z, and he has done this by this own
bodily power. A has therefore used force to Z; and as has acted thus intentionally
without Z's consent, in order to the commission of an offence. A has used criminal force to
Z. . .
(d) A intentionally pushes against Z in the street. Here A has by his own bodily power
moved his own person so as to bring it into contact with Z He has therefore intentionally
used force to Z, and if has done so without Z's consent, intending or knowing it to be
likely that he may thereby injure, frighten or annoy Z he has used criminal force to Z
(e) A throws a stone, intending or knowing it to be likely that the stone will be thus
brought into contact with Z or with Z's clothes, or with something carried by Z; or that it
will strike water, and dash up the water against Z's clothes or something carried by Z.
Here if throwing of the stone produce the effect of causing any substance , to come into
contact with Z Or Z's clothes, A has used force to Z, and if did so without Zs consent,
intending thereby to injure, frighten or annoy Z, he has used criminal force to Z.
(f) A intentionally pulls up, a woman's veil. Here A intentionally uses force to her, and
if does so without her consent intending or knowing it to be likely that he may thereby
injure, frighten, annoy her, he has used criminal force to her.
(g) Z is bath4ig A pours into the bath water which he knows to be boiling Here A
intentionally by his own bodily power causes such motion in the boiling water as brings
that water into contactwith Z or with other water so situated that such contact must affect
Z's sense offeeling; A has, therefore, intentionally used force to Z, and if has done this
without Z's consent, intending or knowing it to be likely that he may thereby cause injury,
fear or annoyance to Z, A has used criminal force.
(h) A incites a dog to spring upon Z, without Z's consent. Here if intends to cause
injury, fear, or annoyance to Z, he uses criminal force to Z. ' , -
Sec. 351 Of Offences affecting the Human Body 1009

Cases
1. Scope.—( 1) The criminal, force must be used against a person without his consent for the
commission of an offence, with the intention or knowledge or likelihood of causing injury, fear or
annoyance. .
(2) Where the use of force is without the consent of the person to whom the force is used the use
of force will become the use of criminal force. AIR 1968 Raj 241.
(3) A motion, change of motion, or cessation of motion caused to property or inanimate objects
cannot amount to "criminal force" as defined in this section though such causing was done with the
intention or knowledge referred to in S. 350. 1972 CriLJ 1212.
(4). 'Criminal force.' defined under S. 350 is intended to mean criminal force as applied to a person
and not as applied to an inanimate object or substance. 1982 GnU (NOC) 11.
(5) There is no element of criminal force as defined in S. 350 in requiring an accused to give his
specimen of hair for purpose of identification. 1971 CriLJ 1405. .
(6) Where A is carrying a pot of lahn and B strikes at the pot with the intentio n of causing injury,
fear or annoyance to A,13 must be held to use criminal force. A IR 1941 Lah 297.
(7) Where the complaina nt' s allegation is not that any, "force" or "show of criminal force" was used
to him, the remedy of the complainant lies in the Civil Court and an order under S 456, Criminal P.
C., would be illegal. A IR 1968 Raj 241.

Section 3$1
351. Assault.—Whoever makes any gesture, or any preparation, intending or
knowing it to be likely that such gesture or preparation will cause any person present
to apprehend that he who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault.
Explanation.— Mere words do not amount to an assault But the words which a'
person uses may give to his gestures or preparations such a meaning as may make
those gestures or preparations amount to an assault. . . .
Illustrations
'A shakes his fist at Z, intending or knowing it to be likely that he may thereby.
cause Z to believe that A is about to strike Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be
likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z.
A has committed an assault upon Z . . '.
(c) A takes upa strike, saying to Z "I will give you a beating". Here, through the
words used by A could in no case amount to an assault, and though the mere gesture.
unaccompanied by any other circumstances, might not amount to an assault, the gesture
explained by the words may amount to an assault.
Cases Synopsis
I. Scope 5.. Intention or knowledge.
2. Assault. 6. ' "Cause any person present to apprehend, etc."
w
N) 3. "Th. oever. " 7. Explanation.
4. "Gesture or preparation ' 8. Justifiable act.
1010 Penal Code. Sec. 351
1. .Scope—(1) A merLthreat to use force if a person persists in a course of conduct does ndt
amount to assault.*
2. Assault.—(1) The essential elenients in the definition of assault in this section are:
(a) that the accused made a , or preparation to criminal force;
(b) that the same was made in the presence of the person of whom the said gesture or preparation
was made;" :.
(c) that the accused knew or intended that such gesture, etc, would cause that other person to
apprehend that criminal force would be used against him, and
(d) that such gesture or preparation did cause in the mind of the other person that the accused
would use criminal force against him. (1974) 40 .CutLT 153.
(2) Whether a particular gesture or preparation amounts to an assault or not will depend upon the
facts of the case. A particular act may not amount to an assault iii one case, but the same act taken
along with other surrounding circumstances may amount to an assault in another case AIR 1935 Pat 214
(3) Where the two persons indulged, in a fight otherwise than in the course of sport, with the
common c qnsent and the bodily injury was caused to one of the participants the act of causing bodily
.injury Would amount to assault notwithstanding that there was common consent and the fact that
whether the fight took place in private or public place would be immaterial (1981) 3 WLR 125
3. "Whoever."—(l)A person in uniform be he officer N. C. 0. or private is no more than any
one else entitled to assault another subject of the King whether in peace or in time of war. AIR 1945
PC 46.
4. "Gesture or preparation"—(1) Apprehension created by the gesture or preparation of the
accused must be that the accused is about to use criminal force then and there 1970 CriL.] 264
(2) A preparation normally speaking consists in devising and arranging the means necessary for the
commission of an act. AIR 1962 All 22.
(3) The mere gesture or preparation with the intent or knowledge referred to in the section is itself
an offence. under this section. AIR 1962 All 22.
(4) Pointing of gun loaded or unloaded to a person at a short distance, will certainly create an
apprehension of violence unless done in protection of person or property. AIR 1946 PC 20.
(5) If the person threatened with gun knows that the gun is unloaded, it will not be assault.
AIR
1946 PC 20.
(6) Cases in which it was held that an assault would be committed:
(a) Forcing a person to medical examination without his consent. AIR 1932 All 524.
(b) Fetching a sword and advancing with it towards the complainant.
1882 Pun Re No. 45 Cr 75
(76)(DB). .
(c) Lifting one's Iota or a lathi. A IR 1951 MadhBha 42.
(d) Hitting the complainant. 1957 A /iLl 308. ..
(e) Throwing bricks into another's house. AIR 1932 All .322.
(f) Preparation to fight. AIR 1954 All 650.
(g) Advancing with a threatening attitude to strike blows. (1830) 4 C and 349.
5. Intention or knowledge.--(I) Where there was any intention to cause apprehension that
criminal force is about to be used or knowledge that the gesture is likely to cause such apprehension in
any particular case will depend upon the facts of the case. 1956 All WR (HC) 488.
Sec. 352 . Of Offences affecting the Human Body ioi 1
6. "Cause any person present to apprehend, etc."—( 1) Where A pointed a gun at .B which B
knew to be unloaded and bad no well groui ded fear.ofphysieal'harm. A was held not guilty of assault.
(1840)9 C and P 483. . .
(2) Where the offender who had a gun, ran away with it without attempting to aim at any person
no offence of assault can be, said to be committed:. AIR 1950 Kutch 23.
(3) Where apprehension, that arises is not from person making the gesture or preparation but from
somebody else, it does not amount to assault. A IR 1939 Oudh'8L
7. Explanation.--( 1)- Mere words unaccompanied by any gesture or , preparation suggesting an
intention to use criminal force is not an assault though it ma ramount to the offence of criminal,
intimidation within the meaning , of S. 503. AIR 1959 Mad 342.1
(2) An officer of Court attached ctrtain cattle belonging to B—B used abusive language to A. and
went away threatening to return 'and teach A a lesson—Soon after he did come back with a lathi and
with companions, sufficiently close of the Officer—Held, that B was guilty of assault. AIR .1935
Pat 214.
8. Justifiable act.—(.t) Pointing of a gqm in self-defence is not an offence. AIR 1948 Nag 28.

Section. M2
352. Punishment for assault or criminal frce otherwise than on grave
provocation.—Whoèver assaults or uses criminal force to any person otherwise than
on grave and sudden provocation given by that person, shall be punishe.d with.
imprisonment of either description for a term which may . extend .to three. months, or
with fine which may extend to five hundred 9[taka], or with both.
Explanation.— Grave and sudden provoôation will not mitigate 'the punishment for
an offence under this section, if the provocation is sought or voluntarily provoked by
the offender as an excuse for the offence, or.'
if the provocation, is given by anything done in obedience to the lthv,or' by a
public servant in the lawful exercise of the powers of such public servant, or
if the provocation is given by anything done in the lawful exercise of the ', right of
private defence.
Whether the provocation was grave and sudden enough to mitigate the offence, is' a
question of fact. ' . .. . .
Cases and Materials : Synopsis -
1. Scope. . ' 10., Charge.
2. Illustrative cases. ' JJ• A batement.
3. Cases falling under the General —Exceptions. 12 Sanction.
4. Husband and wife. 13. Effect of acquittal.
5. Criminal intimidation and as jault.
14. Procedure.
6. Rioting and criminal force.
15. Sentence.
7. Extortion and assault. '
i6. Interference in revision
8. Abetment.
9. Assault under grave and suddEn provocation. 17. Practice.
1012.. . . Penal Code . . Sec. 352

I. Scope.-.-(l) This section may be read along with sections 96 to 100 and Exception I of 300.
This section provides punishment for assault or use of criminal force when there are no aggravating
circumstances. Where two persons bring cases of mutual assault the Magistrate cannot use evidence
given, in one case as evidence in the other and a.conviction based on such evidence cannot be upheld
(41 CriLJ 247).
(2) Mere assault or use of criminal 'force would by itself, be an offence even if the assault is made
or the criminal force i8 ued for a most righteous purpose. 1889 Pun Re (Cr) No. 4. P. 7.
(3) Where the charge is under S. 354 but the evidence of the prosecutrix is exaggerated and the
truth •of'her story has- therefore to be doubted, the benefit of the doubt must be given to the accused and
he should only be convicted under this section for simple assault. A IR 1977 sc 1614.
2. Illustrative cases.-( I) Cases in which accused would beguilty under this section:
(a) Where the accused entered into a temple and assaulted its pujaris. (1897j 2 Mys CCR 341.
(b) Where the accused pushed the complainant and dragged him towards the pial of a house.
(1977)44CuILT194. . .
(c) Where the accused stopped the complainant and catching hold of her hand, threatened to snatch
her water pot. (1887) 10 MysLR 1049.
(d) Where the decree-holder raised the .purda of the door, in spite of protests by the judgment-
debtor's wife a purdanashin lady, and on the door being closed by the lady pushed the door
open violently. A IR 1934 Sind 52.
(e) Pointing a loaded pistol at any one is an assault under S. 352. 1979 CriLJ 1275.
(2) Cases in which the accused would not be guilty Under this section:
(a) Where the accused puts his hand on the shoulder of a vaccinator and asks him a legitimate
question. A IR 11 'MadhBha 33. . . .
(b) Where a Railway Servant removes a person who is obstructing other passengers from getting
,into the train. (1910) 11 CriLl 451. . .
3. Cases falling under the General Exceptions.-(1) Where the harm caused or likely to be
caused is a trivial one falling under S. 95 of the Code, the accused would not be liable to be punished
under this section. A IR 1914 Born 126 W N 73. .
(2) Where the Amin took into his head to arrest the accused without any rhyme or reason the
accused could justifiably assault and use criminal force to protect his liberty. The accused could not
therefore be convicted either under S. 332 or S. 352. 1982 UP (Cni) C. 60.
4. Husband and wife.-(1) If husband , uses criminal force in taking away his wife, he will be
guilty of an offence punishable under S. 352. AIR 1935 All 916.
5. Criminal intimidation and assault.-(1) A mere thereat, is not an assault but would however
fall under S. 503 of the Code. A IR 1959 Mad 342;
6. Rioting and criminal force.-(1) Persons may . riot without actually committing an offence
under this section and the theory that S. 'f47 embraces S. 352 is fallacious. A IR 1928 Mad 21.
7. Extortion and assauk.-(l) Where the victim is assaulted by the accused and his thumb
impression forcibly taken upon a blank piece of paper the offence falls only under S. 352 and not under
5. 383. A IR 1941 'Pat 129. '
Sec. 352 Of Offences affecting the Human Body 1013
8. Abetment^ -( 1) Master ordering servant to chastise or beat X—Servant holding X and master
instead of beating, and plunged X suddenly produced a spear-head and plunged it into X—Held, that
the servant was only guilty of abetment of ordinarily assault punishable u/s. 352. A IR 1935 A ll 346
(2) A person ordering the accused to beat the complainant without taking any part himself in the
beating is guilty of abetment of assault. AIR 1918 Mad 1038.
9. Assault under grave and sudden. provocation.—( 1) Accused holding certain celebrations , at
night of a recognised festival X, a neighbour who was disturbed by the noise took away one of their
drums—Accused thereupon assaulted X—Held, that the accused acted under provocation and was given
alight sentenc under S 352. AIR 1917 All 30.
10. Charge.—.-(1) Charged for assaulting a public servant while in discharge of his duty not
proved—Magistrate convicted accused under S. 352 for assaulting a witness—Held, that the conviction
was not sustainable as no further steps under S. 191, Criminal P. C. were taken before the Magistrate
convicted accusedfor assaulting a witness. (1902) 6 CaIWN 202.
(2) Where an accusal is sent up on a police report for trial for an .offence under the City Police
Act, the trying Magistrate can alter the charge and convict him of an offence punishable under this
section. A fl 1926 Born 255.
(3) In a charge under S. 147 of the Code (rioting) the accused can be convicted of an offence
punishable under this section but not for a charge for abetment Of assault. A IR 1922 Mad 110.
(4) 'Where the accused is tried and convicted on a charge under S. 426 his conviction cannot, on
appeal, be altered to one of assault punishable under this section. A IR 1936 Pat 536.
(5) The charge should run as follows:
I, (name and office of the Magistrate, etc.,) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—assaulted or used criminal force to X (the person
assaulte&or the person against whom criminal force was used) and thereby committed an 'offence
punishable under section 352 of the Penal Code and within my cognizance.
I
And hereby ,direct that you be tried by this court on the said charge.'
11. Abatement.—( 1) On the death of the complainant proceeding , in a complaint for an offence
punishable under S. 352 abates in view of Section 256, Criminal P. C. A IR 1915 Cal 708.
12. Sanction.—(l) Offence under S. 352 is not one mentioned under S. 195 of the Criminal P.
C., and therefore a charge for an offence punishable under this section does not require sanction under
S. 195, Criminal P. C., for the initiation of proceedings., (1904) 1 CriLJ 525 (Cal)
13. Effect of acquittal.—(l) Where a person charged with an offence under S. 352 is acquitted he
cannot be tried, on the same facts on a charge under S. 323 of the Code. A IR 1953 Cal 197.
14. Procedure.—(1) Where two persons bring cases of mutual assault the Magistrate is not
entitled to use evidence given in one case as evidence in the other case. A IR 1940 Cal 59.
(2) Offence of assault either committed in private room or in the open street it creates a breach of
the peace and Magistrate may take action against the person under S. 106, Criminal P. C. A IR 1933
All 609.
(3) Not Cognizable— Summons—Bailable--Compoundable—Triable by any Magistrate, Village
Court. ' '
1014 . Penal Code Sec. 353 -

15. Sentence.-( 1) Where Railway Servant's act was not only grossly illegal but also amounted
to casting aspersions on the lady passenger who was the victim of the assault, the maximum sentence
should be awarded. A IR 1954 SC 711. .
(2) Assault on a citizen for appealing to the Police needs a. deterrent sentence. A IR 1926 Born 255.,.
(3) Admonition was held sufficient in the interests ofjusti ,ce. A IR 1952 A jmer 13.
.16. Interference in revision.--(I) High Court will not interfere in revision with concurrent
findings of fact by the lower Courts arrived at on proper grounds A IlI 1969 Orissa 36
(2) Accused (a teacher) convicted under S. 352 for kissing a boy (student)----Revision—Allegation
of teeth bite on cheek contradicted by b.oy's brother and Investigating Officer—Boy's evidence found
wholly unreliable–Charge under S. 352 against accused not made out—Accused entitled to acquittal.
(1984) [Crimes 177 (P&G). .
17. Practice.—Evidence—Prove: (1) That the accused made a gesture or preparation to use
criminal force. . .
(2) That the same as made in the presence of the complainant. -
(3) That he intended, or knew, that it was likely that such gesture, etc., would- cause that
complainant to apprehend that such criminal force would be used.
(4) That such gesture, etc. did cause the complainant to apprehend the same.
(5) That the accused received no grave or sudden provocatiOnfrom the complainant.

Section •353
353. Assault or criminal force to deter public servant from discharge of his
duty.—Whoever assaults or uses criminal force to any person being a public servant
in. the execution of his duty as such public servant, or with intent to prevent or deter
that .pérsoñ from discharging his duty as such public servant, or in consequence of
anything done or attempted to be done by such person in the lawful discharge of his
duty as such public servant, shall be punished with imprisonment of either
description for a term which may extend to 15 [three years], or with fine., or with both.
• . .. Cases and Materials : Synopsis
1. Scope of the section. 8. Other cases.
2. Assault must have been made or criminal 9. "To prevent or deter".
force .used . 10. "In consequence of anything done".
3. Assault or use of criminal force must be ii. Procedure.
against public servant. 12. Charge and conviction.
4. "In the execution of his du1y" 13. Prisons Act and section 353.
5. Execution of . warrant for arrest or 14. Bar of trial.
attachment. .. 15. Sentence.
6. Execution of search warrant. 16. Practice..
•7. cases relating to vaccination. 17. Charge.

15.
Subs, by Ord. No X of 1982, .s. 8, for "two years".
Sec. 353 -' Of Offences affecting the Human Body 1015

• 1. Scope of the section.—(1) This section may be read along with 'sections .21, 351 and 349. This
section is an aggravated form of assault or use of criminal force. The distinctions between assault and
affray are that assault may take place either in a public or private place but an affray must always be
committed in a public place. An assault is an 'offence against a person ' or of an individual but an affray
is an offence against the public place. An assault may be committed even by one person but an affray
must be committed by two or more persons. In the case of an assault the punishment provided is
slightly higher than that provided in the case of an affray. Assaulting or using criminal force is to deter.
a public servant from the discharge of his duty. The terms "prevention" and "deterrence" are not
synonymous.. In the first place, prevention does not mean only deterrence by physical force but by
other means as well. Secondly, the distinction seems to be with reference to the stage of interference by
the accused (A IR 1953 'Mad 936). 'In the execution of his duty as such public servant', means in the
discharge of a duty imposed by law on such public servant in the particular case, and does not cover an
act done in good faith under colour of his office (14. CrLf 512). Where the procedure for the search of a
house by the officer is not strictly legal, the accused cannot be punished under iection 353. A police
officer even if notunder duty is empowered to arrest an offender; and if assault inflicted with a knife
the accused can be held guilty (A IR 1954 A ll 368) A .charge under this -section requires no sanction for
initiation of proceedings (6 CWN 202).
(2) Elements of the offences--Mere refusal to 'omplywith the order of the public servant, not an
offence. Section .353, P.C. prescribes punishment for assaulting or using criminal force to any public
servant in the execution of his duty as such, public servant with intent to prevent or deter him from
discharging his'duty. Mere refusal to produce some documents as required by a public servant does not
come within the mischief of section 353 of the Code. State Vs, Bazlus Satlar (1967) 19 DLR 234.
(3) For offence falling under section 353, summons rather than warrant should be issued when the
party is a, respectable man. It may be observed here that the maximum punishment for an offence under
- ' section 353, P.C. is R. - I. fOr two years or fine or both.' In this -case the learned Sub-Divisionai
Magistrate appears to have gone rather too far in issuing warrants against the accused without
summoning them. The accused are respOnsible persons holding some position in society and the
learned Sub-Divisional Magistrate would have exercised his discretion properly if he had merely.
summoned them. The State Vs. Bazius Sattar, ('1967) 19 DLR 234. -
(4) A dafadar, 'being a public servant only for the limited purposes of.section 68(2) of the Code of
• Criminal Procedure, cannot be regarded as a public servant when he is going to remove a nuisance
under orders of the president of a Union Board and, therefore, the people who assaulted him cannot be
convicted under section 353 Penal Code. I PR 21. -
(5) 'Assault on public servant not committed in consequence of anything done or attempted to be
done as a ' public servant but due to personal grudge against him—Conviction under S. 353 not
sustainable. 1978 CrIL.J 1514 (Gau).
- 2. Assault must have been made or -criminal force used.—(I) Assault or use of criminal force
is a necessary ingredient of the offence under this section. 1 . 963 (1) CriLJ 559 (Tripura).
(2) Whether a particular act amounts to an assault or the use of criminal force depends upon the
facts and circumstances of the particular case. AIR 1935 Pat 214.
- (3) Where "[he accused picks up a gun and escapes from the house by running away without
attempting to shoot at the police or even aiming the gun at them, he cannot be said to have assaulted
or used criminal force to the police within the meaning of this section. A IR 1950 Kutch 23.
1016 . Penal Code Sec. 353

(4) Where at a gesture from the accused, his men move towards the public servant threateningly,
the accused is not guilty under this section. AIR 1939 Oudh 81. .
• (5) Police officer asking accused to stop his car—Accused fleeing away by driving the car with
speed and hitting motor cycle whereupon the police officer was sitting—Held no offence of assault , on
public servant or using criminal force so as to deter him from discharging his duties as public servant
was made out. 1984 CriL.127 (AP). . • .
• 3. Assault or use of criminal force must be against public servant.—(1) Invigilator is a public
servant—Assault on him while discharging his duties in examination hall—Accused is guilty under
this section. 1971 A ll CriR. 610. • • •.. •
-(2) A resistance to an arrest made by Civic Guard is not within this section un ,til an order calling
out the members of the Civic Guards to duty was notified in the Police Gazette. AIR 1944 Cal 79.
(3) It is no excuse for a person accused of assaulting a public servant that, he was not attired in his
departmental livery, if the person knew at the time that he was discharging his duties as a public
• servant. A IR 1951 Madh B 42. • •••
(4) Before proèeeThng to convict an accused under this section, a Magistrate should deal with the
question of guilty knowledge * on the part of the accused and the question as to whether he knew that
the person assaulted was a public ser'ant. AIR 1933,Sind 174. •. .
(5) A police constable must be considered to be always on duty as a police officer when interfering
with breaches of the public peace within his station limits and jurisdiction whether in mufti or in
• uniform. A IR 1950 Mad 365: . . • . ..
• 4. "In the execution of his duty".—(l) The words duty as such public servant mean duty
imposed by law on such public servant and do not include acts done in good faith and under colour of
his office. 1955 Madh BLR 393. • • •••.. •
(2) The words "in the execution of his duty" in this section can apply only when the public
servant is discharging his duty imposed on him by virtue of his office Duty imposed on him by
virtue of his office will include the performance of all acts which are so integrally connected with his
duty attached to his office so as to form part Of it. AIR .1 975 SC 1685. .
(3) Where a Co-operative Extension Officer returning to his hedquarters after attending a Co-
operative Society Meeting, he was not doing an act connected with his duty and a person assaulting
him is not guilty of an offence punishable under this section. A IR 1960 Ker 200.
(4) A policO constable doing guard duty in judicial lock up is discharging his duty imposed on
him by law. A IR 1924 Lah 257. • . • -
(5) A sales tax officer is entitled to search for and take possession of the account books of the
assessees and if in the exercise of such duty, he is assaulted, by the accused, the latter will be guilty
• under this section. (1970) 2 SCR 151.
5. Execution of warrant for arrest or attachment.--(I) Where A public servant is acting under a
legal warrant and his act cannot be said to be not justifiable in law an assault on him or the use of
criminal force to him is an offence punishable under this section. 1966 All LI 91,4.
(2) A resistance to an arrest or attachment which is illegal as being without jurisdiction is not an
• - offence either under S. 353 or S. 352. 1979 S1mLR 233. .
(3) Where the public servant attempts to effect an arrest or attachment in the exercise of
jurisdiction, but his act is not-strictly justifiable by law, he cannot be said to be acting in "execution
Sec. 353 Of Offences affecting the Human Body 1017

of his duty" within the meaning of this section, and a resistance to it is not an offence under this
section. (1973) 2 MysL.J 17.
6. Execution of search warrant,—(I) Where a search is made by a public servant under legal
authority a resistance, to it is an offence under S. 353. (1970) 2 SCR 151. .
(2) Where public servant acts in the exercise of jurisdiction but the act is not justifiable by law,
even then S. 353 will not apply as he cannot be said to be acting in "execution of his duty" in doing a
thing not justified bylaw. AIR 1960 SC 210. .. . .
(3) Where the public servant has acted in good faith under colour of his office, he will be protected
by S. 99 of the Code and a resistance to his act would be an offence under S. 183 or S. 352 or any
other section as the case. May be. AIR 1946'Nag 261. .. .
• 7. Cases relating to vaccination.—(l) Avaccinator insisting on vaccinating a child' in opposition
to the wishes of its parent or.guardian is not acting in execution of his duty. The. Vaccinator renders
himself liable to a charge of assaulting the child, if he insists on vaccinating it and the parehts of the
child have got'a right of private defence and if they assault the vaccinator and do not exceed the right
of private defence, they Jo not commit an offeiweunderthis section. (1941) ILR 28 All 481.
(2) Even in place where vaccination has been made compulsory, if the vaccinator vaccinates a child
without the consent of the father of the child he cannot be said to be discharging his duty as such
public servant and therefore if he is assaulted in such act the person obstructing. Or assaulting cannot be
said to have committedanoffence,under S. 353. AIR 1954 MadhB 33, 531. .
8. Other cases.—(1) Sales tax officer trying toget hold of account books which were being
clandessneLy removed is acting within the execution of his duty—Use of criminal force to prevent him
from getting hold of the aceouit books is an offence within this scetion. (1970) 2 SCR 151.
(2) Constables taking accused to dispensary—Assault on constable—Right of private defence—No
offence under S. 352 or 353 committed. AIR 1959 Born 284.
9.. "TO prevent or deter".--(1) The accused under this section must have acted 'with the intention
of prevetiting or deterring the public servant from discharging his duty as such public servant (1972) 1
CutLR (CrV 422.
(2) The terms 'prevention .' and 'deterrence.' are not synonynious. In the first place prevention does
not mean only deterrence by physical force but , by other, means as well. Secondly, the distinction
seems to be with reference .tQ the stage of interference by the accused. AIR 1973 .Mad93,6
10. "In consequence of anything done".—(l), Expression "in consequence of anything
done "as used in S 332 and this section includes the motive which actuates the accused to puse
the voluntary hurt or commit, the assault as well as the cause of such assault. 1964 (1). CriLJ
.254(Raj. . ., . .. .,. '. . . ...
(2) Where a searching officer had conduàted a search and left the place and the accused nore than
one in number, forcibly brought him back and threatened him with a lathi to write and give a memo
that he had searched the premises, they were guilty under S. 342 and S. 353. AIR 1972 SC 886.,.
11. Proc edure.—(A) Sanction: (1) Where, in the course of the same transaction, offences under S.
353 as well as under S. 228 of the Code are committed, they cannot be split up and the accused cannot
be. tried for an offence under this section alone by-passing the provisions of S. 195. Criminal P.C. A IR
1968 All 342.
(2) Where the accused, committed an assault while obstructing a Sales Tax Officer from carrying
out a search and he was prosecuted for an offence punishable under S. 353 only, and not tried for an
1018 Penal Code
Sec. 353
offence under the Sales Tax Act for causing obstruction, since it required sanction of the Collector, the
trial for an offence under this section alone is not improper. A IR 1967 Sc 170.
(.3) Where the accused was prosecuted for an offence .under S. 353 and S. 186, the offences were
distinct and the prosecution under S. 353 was not invalid though that under S. 186 was barred for
want of sanction under S. 195, Criminal P.C. A IR 1966,W '1775
(4) Congnizable-_Warrant—Not able—Not compoundable—Tirable by Metropolitan
Magistrate or Magistrate of the first or second class. -
12. Charge and conviction.—(a) Where a conviction under S. 353 is found to be not sustainable
on the ground of the illegality of the act of the public servant, the conviction could not, in appeal, be
altered to one under S. 323 of the Code. AIR 1964 Pat 493.
(2) .A conviction for an offence under this section by a trial Court can be altered in appeal to the
lesser offence under S. 189 of the Code. A IR 1927 Oudh 26
(3) Where charge was for an offence u/s. 147 and no charge was framed for an offence u/s.
353 High
Court set aside conviction for an offence under this section and ordered a retrial. AIR 1915 Cal 181.
(4) Where the acts committed by accused persons constitute different offences they can be
convicted for each of the offences. AIR .1928 Pat 115.
13. Prisons Act and Section 351--4I) An offence by a prisoner falling under S. 353 is
cognizable and police can investigate into this offence and submit a charge-sheet and the Court can take
• cognizance of the offence on such a charge-sheet. AIR 1960 Raj 288.
14. Bar of trial.—(l) Acquittal of the accused in a trial for an offence under S. 353 is no bar to a
subsequent trial on the same facts for an offence under S. 186. 1962 KerLT 493. .
(2) A n offence under the Prevention of Food Adulteration Act is distinct from an offenée under S.
'353 committed by pushing out the Food Inspector from the accused's shop and the pendency of a
prosecution for the former offence is no bar to a prosecution for the latter offence. 1979 cr1/Li 414.
15. Sentence.—( I) Public servants are entitled to such protection as the criminal Courts can afford
by passing. deterrent. sentences in cases where gross personal violence is offered to them in the lawful
execution Of their duty. (1961) 63 BomLR 294.
•. . .
(2) When the resistance offered to public servant is in a technical assault heavy punishment.is
not required. A IR.1931Pat .342. .. . .
(3) Accused alleged to have pushed Food Inspector—No corroboration from the record—Accused
acquitted of the charge under Food A dulteration ci—Concurrent finding of conviction under S. 353
by .three lower Courts—Supreme Cfrt did not interfere but held that no substantive sentence was
n e ce ssary—Accused ordered to be released on bond of good conduct for one year.
1982 sCC (cr1) 131
(4) A sentence orfR. I. for 3 months was not considered to be harsh in a case of assault on a Tax
Officer. A 1R/%5 p. . . .
' 5) Offemes under S 225 d under Section 353 were committed in the course of the same
t a flsction—Court sentenced the accused only with fine under S. 225 and imposed imprisonment for
thbffence under S. 353—Held, that if the Magistrate felt that a sentence of imprisonment was
Ilecessary, the proper course for him would have been to inflict a sentence of imprisonment for each
offence and to direct them to run concurrently,:41R 1954 HimPra 68.
(6) Famine work—Patwari supervisor refusing to mark a person present who was in fact absent—
Patvari while going home assaulted by accused 'A' along with 6 others—Participation of other
Sec. 354 Of Offences affecting the Human Body 1019

accused except A doubtful—Charge under S. 147 not framed against accused—Accused 'A' held alone
was guilty under Ss. 332 and .353 .. P.C.—However sentence of fine under S 332 only was passed
against him.. 1981 RajCrIC 372. . .
16. Practice.—Evidencè--Prove: (1) That the person assaulted, etc., was a public servant.
(2) That the accused assaulted, or, used criminal force to such public servant.
(3) That when the accused assaulted, etc., him, he was acting in the execution of his duty as such
public servant. Or
That such assault, etc., was committed with intent to prevent or deter such public servant from
discharging his duty, as such. Or .
That such assault was committed in consequence of something done, or attempted to be done, by
such public servant in the lawful discharge of his duty. .
17.. Cbarge.—The charge should run as follows: .
I, (name and office of The Magistrate) hereby charge you (name of the accused) as follows:
That you, on or abbut—the day—of at—assaulted (or used criminal force to) X, a public servant,
to wit—in the execution of his duty as such public servant (or with intent to prevent or deter the said
X from discharging his duty as such public servant), and thereby committed an offence punishable
under section 353 of the Penal Code and within my cognizance. .
And I hereby direct that you be tried by this court on the said charge.

Section 354 ..• ..

354. Assault or criminal force to woman with intent to outrage her.
.modesty.—Whoever assaults or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby outrage her modesty, shall be
purshed*ith imprisonment of either description for a term which may extend to two
years, or with fine, or with both. .
Cases and Materials Synopsis
1. Scope. . . commit rape.
2. "W hoever". 9. Burden of proof—Evidence.
3. W omun "; . 1 0. Joinder or alteration, of charge.
4. . Section does not offend the constitution. . 11. Sentence. . .
5. Assault or criminal force. 12. Procedure. -
6. Intention or knowledge. 13. Interference in revision.
7. Outraging the modesty of a woman. . 14. Practice. . .. .
8. Assault under this section and attempt to 15. charge.
1. .Scope.—(f) Woman is defined as a female human being of any age (Section 10). What
constitutes an outrage to female modesty is nowhere defined. This will, differ according to the country
and the race to which the woman belongs. Women of one nationality may have different standards of
modesty from women of another nationality. This section deals with an aggravated form of assault or
use of criminal force and is enacted in the interests of decency and morals. In order to constitute
offence under this section there must be an assault or use of criminal force to any woman with the
intention or knowfledge that her modesty will be outraged. The charge under this section is one which
1020 Penal Code •. Sec. 354
is very easy to make and very difficult to rebut, and when such a charge is made it is necessary to see
whether it is supported by independent evidence besides that of the woman herself, or is corroborated
by her conduct and the surrounding circumstances and is consistent with ordinary probabilities.
2.. "Whoever".-( 1) An offence u/s. 354 can be committed by any manor woman if the assault or
use of criminal force is made with the necessary knowledge or intent. AIR 1953 Mad/i Bha 147,
3. "Woman".-41) The word "woman" denotes a female human being of any age. (1912) 13
CriLJ 858 (Born). . .
4. Section does not offend the Cónstitution.—(l) Section 354 does not offend against the
Constitution. A R 1953 MadhBha 147. .
5. Assault orcriminal force.—(1) Mere exposure by the accused of his pilvate parts to a woman
would not be sufficient to constitute an offence under S. 354, though it may amount to an indecency.
1963 (1) CriLJ 391 ('Tripura). . .
(2) If the accused took liberty with the girl with her consent, then he is not guilty as it would not
amount to an assault or use of criminal force with an intention to . outrage her modesty. (1913) 14
CKLJ 149. . . .
(3) The fact that a person is in love with a woman does not authorise him to pull that woman by
the hand and . hair in the presence of others and such an act amounts to an assault outraging the
modesty of the woman. (1912) 13 GriLl 53. •' . ..
6. Intention or knowledge-41) Where an accused is tried for an offence under S. 354 and an
assault is proved the next question to be considered is whether he did so with intent to outrage the
woman's modesty or with knowledge that it would be outrage. AIR. 1954 . SC 711.
(2) Where the dress of a woman gets loose in a scuffle, and not due to any deliberate act on the
part of the accused, but as a direct result her own violence during the struggle the accused cannot be
convicted of an offence under S. 354 as there is no such intention or knowledge on the part of the
accused as is mentioned in the section. AIR 1936 Oudh 379.
7 Outraging the modesty of a woman.—(1) With intent to outrage her modesty commits an
offence punishable under S. 354. The culpable intention of the accused is the crux of the matter. The
reaction of the woman is very relevant, but its absence is not always decisive. AIR 1967 SC 63.
(2) The best witness in a case of outraging the modesty of a woman is the woman herself. AIR
1955 NUC (Raj) 996
8. Assault under this section and attempt to commit rape.—( I) Whether a particular act done
(with the requisite intention) towards the commission of an offence is sufficiently proximate to its
commission to constitute an attempt or is so remote as to constitute only a preparation for its
commission depends upon the facts and circumstances of each case. AIR 1925 Rang 247.
(2) For an offence of an attempt to commit rape, the prosecution must establish that it has gone
beyond the stage of preparation. The difference between mere preparation and actual attempt to commit
offence consists chiefly in the greater degree of determination. 1984. CriL.] 786
(3) Where the accused felled the prosecutrx on the ground, made her naked, exposed his private
parts and actually laid himself on the girl and tried to introduce his male organ in her private parts the
act amounted to an attempt to commit rape. AIR 1967 Raj 149.
9. Burden of proof—Evidence.--(l) The best witness in a case under this section is the woman
herself against whom the offence is said to be committed and there is no warrant for laying down the
Sec. 354 Of Offences affecting the Human Body 1021
wide proposition that in a case under S. 354 or for the 'matter of that in any case relating to a sexual
offence, excepting rape, independent . corroboration of the prosecutrix's evidence can be insisted upon,
A IR 1953 Pepsu 155
(2) What she said at or about the time of occurrence being part of res gestae can be corroborative
evidence of her evidence and conviction can be based on such testimony. AIR 1953 Gal 332.
(3) Prosecutrix somewhat ecaggerating the story—Benefi.t of doubt must go to the accused—Held,
it was appropriate to alter conviction from S. 354 to S. 352. A IR 1977 SC 1614.
(4) Where two accused were prosecuted under S. 354 and S. 366, one cannot be convicted on the
same evidence on which the other was acquitted 1983 SCC (Cr:) 316
10. Joinder or alteration of cha,rge.—(1) Where the complainant's evidence showed that the
accused was attempting to commit rape, the case, should not be dealt with as a ease under S., 3 .54.
1962(7) CriLJ 343 (MadhPra). . S

(2) Where the 'accused was charged for house .trespass with intention to commit an offence under
this section and the accused admitted that he had illegitimate intimacy with, the woman and had gone
there on her invitation, the accused could be convicted under S. 451 for house trespass with intent to
commit adultery though he was not originally charged for it A IR 1960 MadhPra 375
ii. Sentence.–_( 1) Criminal assault on an innocent woman or small defenseless girl with in
to outrage her modesty public1 and in open daylight in a high-handed
manner: merits a substantial
sentence of imprisonment. A IR. 104 Lah 36
(2) An accused who was about 21 years of age and a first' offender and was on bail for . three years
was released on probation of good conduct instead of being sent to jail. .1.980 C'handLR mr:). 29.
12. Procedure-fl) Bench Magistrates have no. ,juriSdictio.n.to try the offence under S 354
summarily. (1900-1902). 1 LowBurRul 63. .. .. '. '.. . .
(2).table --Compoundable-Tri able by Metropolitan ' Magistrate or
Magistrate of the first or second class..
13. Interference in revision.—(J) Concurrent finding by two Courts below on the basis of
evidence on record maintaining conviction under Section 354—N 'lady Will come forward to level
false allegations—Conviction rightly recorded—No case for interference in revision. 1984 A ll Ind
Gr1LR 163 (P&H).
14.Practiee._Evj dence__prove: (1) That a woman was assaulted orcrim'inal force used.
(2) That an assault or use of criminal force was made on her.
(3). That the accused intended to outrage her modesty or that her midesty was likely to be
outraged. . . . .
15. Charge.—The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—assaulted (or used criminal force to) X, a woman,
intending to outrage (or knowing it to be likely that you would thereby outrage) the midesty of the
said X by such assault (or criminal force), and' thereby committed an offencc punishable under section
354 of the Penal Code and within my. cognizance.
And I hereby direct that you be tried by this court on the said charge.
1022 Penal Code Sec. 355356

Section 355
355. Assault or criminal force with intent to dishonour person, otherwise
than on grave provocatioii.—Whoever assaults or uses criminal force to any person,
intending thereby to dishonour that person, otherwise than on grave and sudden
provocation given by that person, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Cases and Materials
1. Scope.---(I) The offence under this section is to dishonour by means of assault or use of
criminal force. This section makes an exception in the case of an assault or use of criminal force on
grave or sudden provocation. The intention to dishonour the person assaulted or to whom criminal
force shown is an essential ingredient of the offence (27 CtLJ 1003). Assault with a shoe and kicking a
person, are offences under this section.
(2) A mere wordy altercation in the absence of gesture on the part of the accused will not fall
within the ambit of S. 355 (1970) . 2 MadLJ 442.
(3) Where an assault was on a senior by his subordinate in the office during office hours and in the
presence of others the circumstances do not lead to an inference that there was any intention to
dishonour; 1978. BLJ 824.
(4) In order to bring the case under S. 3 55 the, burden of proving the absence of grave and sudden
provocation is on the prosecution. A IR 1927 Nag'47'
(5) Sanction under S. 197, Criminal P.C., is not necessary forproscutin'g. a'publi.c servant for an
offence under S. '355. A IR 1947 Sind 60.
(6) Sepáratecharges and separate convictions for offences under Ss. 352 and355 are quitç legal but
there can be only one sentence and it should not exceed the maximum-sentence provided for the major
offence. AIR 1923 .Lah91. . . . ..
2. Practice.—Evidence--Prove: (1) That there was the assault .or. use of criminal force by the
accused. . . . . .
(2) That the accused intended thereby to dishonour the person .assaulted, etc..
(3) That he did not receive grave or sudden provocation from the. person so assaulted, etc..
• . 3. Procedure.—Not cognizable—Summons--Bailable—Com.poundable—Triable by
Metropolitan Magistrate or Magistrate of the first or second class.
4. Charge.—The charge should run as follows:
• . I, (name and office of the Magistrate etc.) hereby charge you (name Of the accused) as follows:
That you, on or about the—day—of—at assaulted (or used criminal force to) X, intending by such
assault (or criminal force) to dishonour that the said X and thereby committed an offence punishable
under section 355 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

.. . Section 356
356. Assault or criminal force in attempt to commit theft of property carried
by a person.—Whoever assaults or uses criminal force to any person in attempting to
Sec. 357 Of Offences affecting the Human Body 1023

commit theft on any property which that person is then wearing or carrying, shall be
punished with imprisonment of either description for a term vhich may extend to two
years, or with fine, or with both. -
Cases and Materials
I. Scope.--(I) This section may be read along with sections 378 and 511. This section generally
applies to pick pocketiers. The offence under thi section will be complete as soon as the person
attempting to steal touches the person to be robbed.
(2) This section is applicable to cases of assault or of using criminal force to a person while
attempting to commit theft and not to those cases in which theft has actually been committed.
Ras'UnCrC3. . .
(3) Assault on a woman with intent to steal her basket amounts to an offence under this section.
(1887) IOMysLR 1032. . ..
2. Practice.—Evidence—Prove: (1) That the accused assaulted or used criminal force to another
person. . .. . .
(2) That other person was wearing or carrying the property attempted to be stolen. .:
(3) That the accused committed assault in attempting to steal such property. ...
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by any.
Magistrate.
4. Charge.—The charge shöuld . run as follows: ..
1, (name and office of the Magistrate) hereby charge you(na1ne of the, accused) as follows:
Thatyóu, on or about •the--day—of—at assaulted (or used criminat force to) X in attempting to
commit theft of certain property—to wit, which the said Xws then wearing (or carrying),. and thereby
committed an offence punisbIe under section 356 of the Penal Code, and within my cognizance
And I hereby direct that you be tried by. this court on the said charged . . . .. .

Section 357 .
357. Assault or criminal force in attempt wrongfully to confine a person.—
Whoever assaults or uses criminal force to any person in attempting wrongfully to
confine that person, shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine which may extend to one thousand
9 [taka], or with both. . . .
Cases and Materials . .
1. Scope.—(l) This section' may be read with sections 340 and 511 Penal Code. This section
deals with an assault or use of criminal force against some person.
(2) Where the complainant was dragged and pushed towards the pial of a house during the course
of assault, the case fell under S. 352 and not under S. 357. (1893) 16 MysLR 397.
(3) Where the accused put safa round the neck of a boy on his refusal to accompany him and
dragged him for a distance with the result that the boy died the case fell within S. 357 and not under
S. 304. A IR 1931 La/i 275. .
I 024 Penal Code Sec. 358
2. Practice.—Evi.dence---Prove: (1) That the accused committed an assault or used criminal force
against some person.
(2) That he did so in attempting to wrongfully confine that person.
3. Procedure.—Cognizable-7Warrant—Bai1abIe-----COmpOUndable—Triable by any Magistrate.
4. Charge;—The charge should run as follows:
1, (name and office, of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day---of—at assaulted (or used criminal 'force to) . X, in attempting
wrongfully to confine the said X, and thereby committed an offence punishable under section 357 of
the Penal. Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 358
'358. Assault or criminal forte on grave provocation.—Whoever assaults or
uses criminal force to any person on grave and sudden provocation given by that
person, shall be punished with simple imprisonmentfor a term which may extend to
one month, or with fine which may extend to two hundred 9 [taka], or with both.
Explanation.— The last section is subject to the same Explanation as section 352.
Cases and Materials '
0

1. Scope.--(I) The word "last section" in the 'Explanation appears to be wrong, It should have
read as 'this section", and this section is also subject to the Explanation as contained in section 352.
(2) An exercise of the right of private defence cannot be a grave and sudden provocation. ('1893) 16
MysLR 39,0.
(3) Where the accused uses criminal force on gi-ave and sudden provocation given ' by the patrol,
who abused the accused-the accused .isliable,to be convicted üiiderS. 358. AIR 1934A11 872.
(4) Where a bill collector was distraining of doors Which are not moveable and was assaulted, the
accused was guilty under Section 358 and not . under S. 353 of the Code AIR 1915 Mad 501.
2. Präctice.—Evidence---PrQve. (.1) That the accused assaulted or used criminal force to any
person.
(2) That such person knew that such criminal force was intended to be used or knew that it was
likely, to be used.
(3) That the accused received grave and sudden provocation from the complainant.
3. Procedure.—Not cognizable—Summons—Bailable—Compoundable—Triable by Magistrate,
Village Court.
4. Charge.—The charge should run as follows: .
I,. (name and office of The Magistrate) charge you (name of the accused) as follows:
That you, on or about the—day--of—at assaulted '(or used criminal force to) to X•under grave and
sudden provocation. from the said X and you have thereby committed an offence punishable under
section 358 of the PenalCode and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
Sec. 359-361 Of Offences affecting the Human Body 1025

Of K idnapping,. Abduction, Slavery and Forced Labour

Section 359
359. Kidnapping.—Kidnapping is of two kinds kidnapping from 16[Bangladesh],
and kidnapping from lawful guardianship.
Cases
1. Scope.—(1) "Kidnapping" literally means child stealing. Under the Code the word means
carrying away any human being regardless of age or sex.
(2) The words 'kidnapping' and 'abduction' do not include the offence of wrongful concealment or
keeping in wrongful confinement a kidnapped person. AIR 1947 Pat.17.
(3) The expression "from lawful guardianship" means 'Out of the keeping or custody of the lawful
guardian". A IR 1926 Cal 467. . . .
(4) The offenèe of kidnapping from lawful guardianship is not a continuing offence.. As soon as
the minor is actually removed out of the custody of his or her guardian the offence is complete. The
offence .is not a contiii'uing one as long as the minor is kept out of guardianship. Abduction, on the
other hand, is a continuing offence. A person is abducted not only when he or she is first taken from
any place but also when he or she is removed from one place to another. Again, there may be an
abduction without the removal of a person from lawful guardianship. AIR 1931 All 55.

Section 360
360. Kidnapping from 16 11[3angladeshj.—Whoever conveys .any.pe.rson beyond
the limits of 16 [Bangladesh] without the consent of that person, or of some person
legally authorised to consent on behalf of that person, is said to kidnap that person
from 16 [Bangladesh]. . . .
Cases
1. Scope.—( 1) This section defines the offence of kidnapping from Bangladesh. The offence will
be complete only when the limits of Bangladesh are crossed.
(2) Where medical witness says that the age I of the child kidnapped was 13 years but offered no
reason—But according to the father's estimate the age was above 14 years----Father's statement
preferred. RaJiq Ahmed Vs. State (1961) 13 DLR . (W P) 65: 1961 PLD (Kar) 679.
• (3) Where there is no charge of kidnapping from lawful guardianship under S. 361, conveying a
minor above 12 years of age out of India, with his consent is not an offence. AIR 1918 Born 205.
(4) Where a woman raised an alarm while being kidnapped and narrated the story of rape
committed upon her, to a witness immediately after being released by the kidnappers the inference is
clear, that she did not give her consent and it is not negatived by the fact that she demanded money
after sexual intercourse. 1963(2) CriLJ 562.

Section 361
361. Kidnapping from lawful guardianship.—Whoever takes or entices any
L. minor under fourteen years of age if a male, or under sixteen years of age if a female, or

16. Substituted for 'Pakistan" by Act VIII of 1973, 2nd Sch w.e.f. 26-3-1971.
1026 Penal Code Sec. 361

any person of unsound mind, out of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.
Explanation.-The words "lawful guardian" in this section include any person
lawfully entrusted with the care or custody of such minor or other person.
Exception.-This section does not extend to the act of any person who in good
faith believes himself to be the father of an illegitimate child, or who in good faith
believes himself to be entitled to the lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.
Cases and Materials : Synopsis
1. Scope, object .qnd applicability of section. 20. Explanation-Relative rights of legal
2. This section and S. 360. guardian and person entrusted with care or
3. This section and S. 363. custody of minor.
4. This section and S. 366. 21. Guardian's consent.
5. This section and S. 498. 22. Consent of kidnapped minor.
6. "Abduction" and "kldnapping"-Dlsrinctjo,,. 23. Exception.
7. "Takes or entices "-General. 24. "Unlawful"-.Meaning of
8. "Taking"--Meaning of 25•: Meiss rea.
9. "Enticement"-.Meaning of 26. Kidnapping not a continuing offence.
10. Minor going of his or her own accord. 27. Kidnapping from kidnapper.
11. Accused inducing minor to leave guardian's 28. Abetment.
protection. 29. Marriage of minor girl by guardian against
12. "Minor" . her wishes.
13. Age of kidnapped person. 30. Evidence and onus of proof
14. Person of unsound mind. 31. Evidence and burden of proof-Age of
IS. "Out of the Keeping of the lawful guardian". kidnapped person.
16. "Lawful guardian". . 32. Procedure.

17. Guardianship-Hindu Law. 33. Place of enquiry.

18. Guardianship-Muhammadan Law. 34. Charge.
19. Explanation-Person entrusted with care or
custody of minor.
1. Scope, object and applicability of section.-(1) The expression "taking" in this section is not
confined to mere physical taking. The expression "taking out of the keeping of the lawful guardian"
must, therefore, signify some act done by the accused, which may be regarded as the proximate cause
of the person going out of the keeping of the guardian or, in other words, an act but for which the
person would not have gone out of the keeping of the guardian as he or she did. Where it was found
that one girl alleged to be kidnapped by the accused had written letters in which she was desperately
calling him to come and take her away and she was soon after discovered with the accused or under his
control, it is legitimately open to a Court of law to assume that he finally yielded to the solicitations
arid made it possible for her to getaway and that is sufficient "taking" in law for the purpose of section
363 of the Penal Code (29 CriL.J 635). Enticing is one way of "taking". It amounts to inducing the
Sec. 361 Of Offences affecting the Human Body 1027
minor.to go of her own accord to the kidnapper. The ward "entice" seenis to involve the idea df
inducement or allurement by giving rise to hope or desire on the other. This can take many forms
difficult to visualise and describe exhaustively. There is an essential distinction between the two words
"take" and "entice". The mental attitude of the minor is not of relevance in the case of taking.
Enticement need not be confined by any single form of allurement. Anything which is likely to allure
a minor girl will do. It need not be always sweetmeats or money, it can also be offer of sexual
intercourse. In order to support a conviction for kidnapping a girl from lawful guardianship the
ingredients to be satisfied are: (a) that the girl was under the age of 16; (b) that she was in the keeping
of a lawful guardian; (c) that the accused took.-or enticed such person out of such keeping and such
taking was done without the consent of the lawful guardian. The most essential ingredient of the
offence is that the minor should have been "taken" by the accused "out of the keeping" of his lawful
guardian. The word "taking" as used in this section does not mean a continuing or a continuous act.
The "taking" which constitutes an offence is complete as soon as the girl is removed from the keeping
of the lawful guardian. The mere fact that minor leaves the protection of the guardian does not put her
out of the guardian's keeping. The object of the section appears to be to protect minors and persons of
unsound mind from exploitation. All that is required under this section is that a minor, male or
female, must not be taken away or enticed from their guardianship. No intention need be established in
such cases (10 GrL.J 295). The words "lawful guardian" in section 361 are used in a wide sens.. They
are made by the explanation to that section to include any person lawfully entrusted with the care or
custody of a minor (A IR 1935 Pat 170). The consent of the minor to his being taken away or the
consent of the guardian of the minor given under a misrepresentation is immaterial and ineffective. In
the matter of age the statement of the doctor unsupported by any other reliable evidence iS of no value
(6 DLR 178 W P). The doctor has got to give valid reasons why he concluded that the girl was below
16 years (13 DLR 65 W e). Where the doctor without carrying out any Xray examination of the bones
of the girl, forms his opinion on other characteristics like height, breast, teeth, eta., the opinion of the
doctor is in no way better than the opinion of a lay man and is not entitled to the weight which the
court will attach to the opinion of an expert under section 45 of the Evidence Act. Examination by a
radiologist for the ascertainment of the age of the girl by an ossification test , gives some degree of
accuracy in finding out the approximate age of the girl (PLD 1964 Dac 228).
(2) Ingredients— The ingredients of this section are: -
(a) The accused committed the offence of kidnapping by taking or enticing.
(b) The person kidnapped at the time of the offence was.under 14 years if a male or under 16
years if a female; .
(c) Such person was in the keeping of the lawful guardian.
(d) Such taking was done without the consent of the lawful guardian.
(3) Intent, question of—Under Section 361 it is immaterial when a girl below 16 years is
kidnapped. For a charge under section 366 for kidnapping a minor with intent, that she may be
compelled to marry against her will, the age must be below 16 years. Charge must state from whose.
guardianship the minor was taken away, .without which the charge cannot be sustained. Raflq A hmd
Vs. State (1916) 13 DLR (W P) 651961 PLD (Kar) 679.
(4) For the purpose of the custody of the girl age of majority laid down in the Majority Act, 1875
read with the Guardians and Wards Act, 1890 i.e. the age of 18 years, is the determining factor to
decide whether the girl is to be given to the custody of the guardian—Reference to the age of 16 years
1028 Penal Code Sec. 361

in case of a female minor in section 361 is for the commission of the offence of kidnapping pu'nishable
under section 363 of the Penal Code only. Medical report is based on superficial observation and too
general in nature—The school-leaving certificate has been issued by the headmaster of the school and is
positive as to the date of birth of the girl and also as to the source thereof. Principle of admission by
non-traverse— A pplicability of—The age of the kidnapper not having been challenged the principle of
admission by non-traverse will apply. Krishna Pada Dutta Vs. Bangladesh 42 DLR 297.
(5) Determination of age of a person in custody for the purpose of her guard ianship--1Solated
statement of her father in such a case in respect of her age cannot be accepted as true unless it is
supported by corroborative evidence. If a girl is found below 16 and taken away without the consent of
the guardian then it will be an offence and the ' guardian. will be entitled to her custody. Even if it is
presumed that at time of occurrence of her kidnapping the deteu was minor but now when she is
found major the Court has no jurisdiction to compel her to . go with her father. Manindra Kumar
Malakar Vs. Ministry of Home 43 DLR 71.
() Age of victim in relation to offences under the Penal Code—The minor to be taken out of
custody of the lawful guardian as under section 366 must be a minor under 16, and 18 years would be
referable only to section 366A when she would be taken away from ' place to place by inducement with
intent that she may be seduced to illicit intercourse. Tapash Nandi Vs. State 45 DLR 26
(7) Age of majority and guardianship—Decision as to dustody of a minor pending criminal
proceedings—Neither personal tawnor Majority Act is relevant for the purpose. The statute that holds
good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose
of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however
the allegations are that of prreation of a minor girl, the court has to proceed on the basis that a girl is
a minor who is under 18. W ahed A li Dewan Vs. State and another 46 DLR (A D) 10.
(8) To constitute an offence of kidnapping the requirement, of law is that the person against whom
the offence is committed must be under. 16 years of age, if a male, and under 18 years of age if a
female. The consent of the minor in a case of kidnapping is a matter of no legal consequence. A bdul
Karim V The State. 22 BLD (HCD) 523.
(9) When the victim girl, Anjali Rani as Court witness says that she is aged 20 years and the
medical report dated 18-5-94 submitted on the basis of a report prepared by a Radiologist shows that
Anjali Rani was of 16.5 to 17.5 years of age which was proved by two doctors and as such on the
date of oct5urrence the age of Anjali Rani was about 16 years. Haren Holder Vs. Md. A kkas A u & ors.
(Criminal) 3 BLC 455.
(10)-Reference to the age of 16 in the case of a female minor in section 361 of the Penal Code is
only for the purpose of commission of the offence of kidnapping punishable under section 363 of the
Penal Code and not for the purpose of diciding whether the girl is sui juris (Ref 13 DLR 65 W P). 10
BCR 43.
(11) The age of the female minor child in section 361 Penal Code and in section 552 CrPC,
should be increased from 16 years to 18 years. 2 BCR 41.
(12) Determination of the age of a girl whether she is minor or not within the limit of the age
mentioned in section 361 of the Penal Code. Two doctOrs who examined the girl gave two different
ages as to her age. In such a case the matter should be reported to a third doctor for determination of
her age. In the meanwhile it is ordered that the girl may stay where she likes. 30 DL!? 187.
(13) Under Muhammedan Law the father is the legal guardian of the minor children. The legal
guardian has in law constructive custody of the minor children. He can also claim that he bonafide
Sec. 361 Of Offences affecting the Human Body 1029
believed himself entitled to their custody and thus not guilty of kidnapping his own children when he
removes them from the hizanat of the minor. 20 DLR 45 WP.
(14) Kidnapping from India or from lawful guardianship is made punishable by itself irrespective
of any particular intent with which the offence is committed. A IR 1964 Punj 83.
(15) The elements of the offence of "kidnapping" as defined in this section are as follows:
(i) The person kidnapped must be a minor or a person of unsound mind.
(ii) The age of the . kidnapped person must be under 16 years in the case of a male or under 18
years in the case of a female.
(iii) The minor or person of unsound 'mind must have been in the keeping of a lawful guardian.
(iv)The kidnapping must be from the keeping of the lawful guardian of the minor, or in the case of
a person of unsound mind, from the keeping of the lawful guardian of such person.
(v) The offender must have taken away or enticed a minor or a person of unsound mind from the
keeping oçthe lawful guardian.
(vi) Such "taking" oi "enticing" must be without the consent of the lawful guardian. A IR 1954
Mad 62.
(16) This section applies in the case of minor girls irrespective of the question whether the girl is
married or unmarried. A IR 1957 Him Pra 42.
2. This section and S. 360.—(1) The word "consent" must be understood in the light of the
explanation contained in S. 90. Hence, consent known by the kidnapper to be given under fear or
misconception, or consent of an insane person or of a person under 12 years of age, will be no consent
for the purpose of this section. A IR 1918 Born 205.
3. This section and S. 363.—(1) The mere fact that a person who is a minor, aàcording to the
legal age of majority, but is above the ages specified in this section, is kidnapped from his lawful
guardian will not make S. 363 applicable, although that section only uses the expression "whoever;
kidnaps from lawful guardianship" and does not specify that the person kidnapped must be below the
particular age stated in S. 361. A IR 1933 Born 417.
4. This section and S. 366.—(1) A charge of kidnapping a woman for the purpose of illicit
intercourse under Section 366 cannot be sustained unless it is proved that the kidnapped person was a
minor girl, below the age mentioned in this section and further was kidnapped from the keeping of her
lawful guardian. A IR 1965. SC 574.
(2) So far as this section is concerned the mere fact of the kidnapping of a minor girl from the
keeping of her lawful guardian, is an offence irrespective of any intention of the part of the accused to
have illicit sexual intercourse with her or to subject her to such intercourse. Such intention is necessary
only for a charge under S. 366 and not one under this section. A IR 1949 A ll 587.
(3)In the absence of an intention on the part of the accused to have illicit sexual intercourse with
the kidnapped minor girl the offence will fall under this section and not uls. 366. A IR 1969, A ll 216.
5. This section and S. 498.—(1) The object of S. 498 is the protection of the rights of the
husband rather than of the married woman herself. But the object of this section is the protection of the
minor. A IR 1965 sc 942 '944).
6. "Abduction" and "kidnapping"—Distinction.—(l) Under this section the consent of
kidnapped person (minor or person of unsound mind) will not legalise the kidnapping in the absence
of the consent of the lawful guardian. A IR 1953 Pun! 258.
1030 Penal Code Sec. 361

• 7. "Takes or entices"—General.--(l) The gist of the offence under this section is the taking or
enticing away of a minor within the specified age limits or a person of unsound mind out of the
keeping of the lawful guardian. AIR 1965 SC 942.
(2) The two words 'takes' and 'entices' as used in S. 361. P. Code are intended to be read together
so that each takes to some extent its colour and content from the other. The statutory language
suggests that if the minor leaves her parerital home completely uninfluenced by any promise, offer or
inducement emanating from the guilty party, then the latter cannot be considered to have committed
the offence as defined in S. 361, P. Code. But if the guilty party has laid a foundation by inducement,
allurement or threat etc. and if this can be considered to have influenced the minor or weighed with her
in leaving her guardian's custody or keeping and going to the guilty party, then, prima facie, it would
be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. The
question truly falls for determination on the facts and circumstances of each case. AIR 1973 Sc 2313.
(3) "Kidnapping" under this section is constituted not only by taking or carrying away a person,
but also by enticing him or her, i.e. alluring him or her to go away from the protection of the
guardian. A IR 1973 SC819.
(4) The taking or enticing under this section need not be by means of force or fraud in order to
constitute an offence under the section. AIR 1973 SC 2313.
(5) Merely taking care of minor boy who has been kidnapped by accused's brother and left
with him, when accused was no party to the kidnapping, is no offence under this section. AIR 1933
Lah 392.
S. "Taking"—Meaning of.--(I) "Taking" means causing to go, escorting, , or getting into
possession. A IR 1968 Punj 439.
(2) "Taking" does not require the use of force. A IR 1973 SC 2313.'
(3) There must be proof that the accused has played some active part in the minor leaving his or
her lawful guardian's house and taking shelter in his house. AIR 1968 Punj 439.
(4) If the accused actively brings about a minor girl's stay in his house while she is proceeding to
the'house of a near relation after leaving her husband's house of her own accord, by playing upon her
weak and hesitating mind, it amounts to "taking" the girl within the meaning of this section. AIR
1949 Orissa 22. .
(5) 'Where the accused came to the Kotha where the minor girl was sleeping, woke her and took her
away with them, it was held that they were guilty under this section. AIR 1968 Pun] 439.
(6) "Taking" means physical taking. AIR 1914 Oudh 126.
(7) Where there is no physical "taking" (or enticing) no offence can be committed under the
section. Thus, merely getting a girl married without the consent of the father of the guardian does not
amount to "taking" or kidnapping where the girl, at the time of the marriage has been staying with
some relations with the consent of the guardian and has not .been removed from there. A IR 1914
Oudh 126.
(8) The "taking" under this section need not be by a single act but may be by a series of acts and
will be complete with the last of such acts. A IR 1949 Orissa 22.
(9) The question at what point of time the act of "taking" or kidnapping is complete is a question
of fact in each case. A IR 1949 Orissa 22.
(10) The distance for which the kidnapped person was removed is immaterial in determining
whether he or she was kidnapped. AIR 1968 Punj 439.
Sec. 361 Of Offences affecting the Human Body 1031
(11) The mere fact that the accused was present at the door of the house from which a girl was
kidnapped by another person does not mean that the accused participated in the act of kidnapping in
the absence of any overt act by such person in furtherance of the act of kidnapping or of anything
which could show his complicity in the crime. AIR 1933 Oudh 62.
9. "Enticement"—Meaning of.—(1) The distinction between the two words "taking" and
"enticement" may be stated thus: "Taking" is independent of the mental attitude of the kidnapped
person. "Enticing" means inducing a person by some inducement to leave the guardian's home. AIR
1955 AndhPra 59.
(2) The inducement need not be immediately prior to the person leaving the custody of'his lawful
guardian. It is sufficient if the, accused had at some earlier stage solicited or persuaded such person to
do so. AIR 1973 SC 2313.
(3) Enticement need not be confined to any single form of allurement. Anything which is likely to
allure the minor girl will do. It need not be always sweetmeats or money. It can also be offer of sexual
intercourse. AIR 1969 All 216
10. ' Minor going of his or her own accord.—( I) Where a minor who is of the age of discron
leaves the parent's or the guardian's home of his or her own accord and goes with the accused, the
accused cannot be charged with the offence of kidnapping under this section, as in such a case the
accused cannot be said to take or entice the minor from the keeping of his or her guardian merely
because the accused has not restored the minor to' the guardian or tried to persuade the minor to go
back to the guardian. AIR 1973 SC 819.
(2) Where a parent or guardian tries to thrust an unwanted husband on a minor girl and she runs
away from the parent's or guardian's house and seeks the protection of strangers who give her such
protection, they do not commit the offence of "kidnapping". The dividing line between taking a minor
girl from the keeping of the lawful guardian and helping a run-away and abandoned minor may be fine
but is real. AIR 1967 All 158.
(3) Gist of offence under this section is removal of ihe minor from the guardian's keeping without
the guardian's consent and consent of the minor himself or herself is immaterial except for the purpose
of showing whether the accused was responsible for the removal of the minor. AIR 1973 SC 819.
(4) Even where the accused did nothing immediately before the girl's departure from her guardian's
place to induce her to leave the home, the accused would be guilty under this section, if prior to the
girl's leaving her guardian's home he had played on her mind and induced her to run away from her
home. AIR 1973 SC 2313.
11. Accused inducing minor to leave guardian's protection.—( 1) Although the section speaks
of "taking" or "enticing" from the keeping of the guardian, the section is not inapplicable merely
because the minor has left the . guardian's home and is .away from the home. It cannot be presumed
merely from the fact of the minor having left his parent's or guardian's home that he has no intention
of going back and in such cases it must be presumed that he is still in the guardian's keeping and to
take him away when he is in that condition would clearly amount to an offence under this section.
(1970) 72 PunLR 943.
12. Minor..—(1) The age of minority must be determined according to the Majority Act, 1875.
Thus, a Muhammedan girl, who has attained puberty, is not regarded as a minor under the
Muhammedan Law. But, if she is a minor according to the Majority Act of 1975, she will be regarded
as a minor for the purpose of.this section and if she is below 18 years., "taking or enticing" her from
the keeping of her lawful guardian will be an offence under this section although she is not a minor
according to the Muhammedan Law. AIR 1915 Mad 636.
1032 Penal Code Sec. 361

13. Age of kidnapped person.—(1) Under this section two conditions are necessary before an
accused can be convicted of an offence: (i) the person kidnapped must be a minor according to law, and
(ii) he or she must be below the age specified in the section. A IR 1933 Born 417.
(3) Kidnapping a boy above the age of 16 years from his guardian's keeping is not an offence.
Similarly, kidnapping a girl above 18 years of age from her guardian's keeping is not an offence under
this section. A IR 1955 SC 574.
14. Person of unsound mind.—(1) An unconscious girl is not a person of unsound mind and
kidnapping of such a girl does not fall within this section, unless she is a minor and also under the age
of 18 and the kidnapping is shown to be from-the keeping of her guardian. A IR 1939 Lah 224.
15. "Out of the keeping of the lawful guardian".—(l) The word "keeping" connotes the fact
that it is compatible with the independence of action and movement of a minor. The relationship
between the minor and the guardian is not dissolved so long as the minor can at will take advantage of
the guardian's protection and come back to it. So long as the minor is in such a situation, taking away
the minor would be aif offence under this section. A IR 1957 Orissa 29.
(2) The word "keeping" in the section implies, neither prevention nor detention but rather
maintenance, protection and control manifested not by continuous action but available on necessity
arising. A IR 1955 A ll 78. . .. .
(3) To constitute an offence under this section the "taking" need not be from house of the
guardian. A IR 1955 A ll 412. . . . . .
(4) Even where the minor girl is kept by her father at the house of a relative and she is kidnapped
from that house, the kidnapping will be from the keeping of the father or the guardian as she must be
deemed to be continuing under the guardianship of her father and to be in his keeping even when she is
staying in the friend's house. A IR 1965 SC 942.
(5) It cannot be said in every case, irrespective of the circumstances of that particular case, that
merely because the father, mother or other guardian had driven out the minor from the house, the
driving out was of a permanent character and that the guardian had permanently abandoned the
guardianship. In such a case taking away or enticing the minor will be an offence under this section.
A IR 1958 Orissa 224. . . . . .
(6) Just as a guardian can abandon the guardianship, it is also open to a minor to leave the
protection of the guardian of his or her own accord. A IR 1957 Cal 589.
(7) The fact that a minor can abandon the protection of the guardian does not mean that he can
consent to being taken away from the keeping of the guardian so as to absolve the person, taking him
away, from liability for an offence under this section. A IR 1957 Cal 589.
(8) The tie between the minor and his guardian cannot be dissolved merely on the guardian being
suddenly struck with some disease or infirmity so long as the minor is within the protection or care of
the guardian or depends upon him for his or her maintenance. A IR 1955 A ll 78, 252 (DB).
(9) Removal by force against ,the will of a minor girl from one place to another in the same house"
by the accused will not amount to taking away the girl from the keeping of the guardian where the
protection of the guardian was at her disposal immediately she stood in need of it. Hence, this section
will not apply to such a case and the offence would only be one against the person of the girl. A IR
1955 NUC (A ssam) 5524. . .
Sec. 361 Of Offences affecting the Human Body 1033

16. "Lawful .guardian".—( 1) A lawful guardian will include the following categories:
(a) a natural guardian under the:1awapp1iable to the minor,
(b). a testamentary guardian, i.e; a guardian appointed by the minor's fathei by will,
(e) a guardian appointed by the Court under the relevant statutory provisions. 1891 AC 388.
• (2)'A'legal guai'dian'will clearly be a "lawful guardian" within the . ..eaning 'of this section and the
removal of'the minor or person of unsound mind from the keeping of such guardian will amount to an
offence'under'this'sêction. AIR 1954 'Born 339.
(3) A person appointed guardian by the Court will be a lawful guardian AIR 1919 All 36
(4) A minor boy cannot be the guardian of his minor sister, for the purpose of this section, even
though both the parents of the girl are no more A IR 1929 Lah 835
(5) Among Christians the father has no preferential right to the guardianship of children and their
removal by the mother from the custody of the husband, even after she had renounced the Christian
religion and become a Hindu, is not an offence under this section A IR 1927 Lah 496
11. Guardianship--Hindu law.—(1) Under the Hindu law the father of a minor, whethera boy
or a girl, is the natural guardian of the min9r. A IR1 .9,55 A ndh, . 59.. .............'. , '
(2) After the husband's death, the guardianship of his minor widow will vest in the husband's
father in preference to her own mother and other maternal relations AIR 1960 A111479.
(3), The Hindu father of a minor girl, who becomes insane, does not thereby instantly cease to be
the lawful guardian of the, minor and, taking away . the minor, girl from his .guardianship will , be an
offence under this section. AIR 1955 All 78.
1 8. Guardianship— Muharnrna.dan law. 1) Under the Muhammadan law, the. rner. is
entitled to the custody (hizanat) of her male child until he has completed the age of 7 years arid of her
female child until she has attained, puberty. AIR 1968 Ker 21. ... .
The right of the Muhammedan mother continues e'n after she is . divorced by e, fathei
child. AIR 1934 All 722. . ........... .. . . ', , . , ,•.
(3) Under the Muhammadan. law,, the mother is entitled only . to the custody of thç person of her
minor child up to a certain age according to the sex of the child But she is not the natural guardian of
the child. The father alone, or, if he be dead his executor (under the Sunni law) is the legal guardian.
A 1R1918PC11. . . ...,, , ..... . . . . '.
(4) The custody by the mother of the child is only a custody held on behalf of the fati'ier Hence a
father who removes from the custody of the mother cannot be guilty of the offence of kidnappIng of
the minor child.frorn the . keeping ,of'his lawful -guardian under this sectionAlR 1968: Ker 21:
'(5) In the ease of a Muharnmádan minor girl theguardianship of the mother will côtinué ven
after her marriage till she 'attains puberty: 'AiR 1952. Tripura' 27.
(6) AfteAhe mother's death', the ñOthei"sinth'& becdn'es the gii'ardian of a minor girl till ifiegirl.
attains puberty, in preference to 'the 'girl's father and other pate'tbal relahn's. A IR 1959 MadhPra 99.
19. Explanation—Person entrusted with care or custody of rninór.—(l)The Explanatiôiidoès
notmean..that a.person.who would otherwise be álawful'guâfdianwouldcease'tO bealawful 'guardian
underthisectioii where there.i.s another person : tO .whon the areoreitody
entrusted. The. right of, lattr.peFsun'wil"l ai'wa'beübje to the - ,right of the iiätii#aY'gttaMiari.
A IR 1968Ker21.
1034 Penal Code Sec. 361
(2) Removal of the child from the custody of person to whom care and custody of the child has
been lawfully entrusted by the natural guardian will not be an offence. AIR 1968 Ker 21.
(3) If the removal is with the , consent of person lawfully entrusted with the custody of the child
there would be no offence under the section. AIR 1943 Pal 212.
(4) In view of the Explanation the words "lawful guardian" in this section will include not only
the de jure guardian of a minor but also the de facto guardian the object being the protection of
children and minors and to avoid exposing them to the danger and risk of being kidnapped by
unscrupulous persons and criminals merely because they are not in the keeping of persons who are
strictly their guardians in the eye of the law. AIR 1954 Born 339.
(5) Where the legal guardian of a minor entrusts the care and custody of the minor to another
person, such person would be a "lawful guardian" within the meaning of this section by virtue of the
Explanation as against the whole world except the natural guardian. AIR 1954 Born 339.
(6) Entrustment of the care and custody of a minor within the meaning of the Explanation may be
inferred from . a well-defined and consistent course of conduct governing the relations of the parties.
A IR 1962 Pat 121, .
(7) Proof of formal entrustment of the custody of the child is not necessary. AIR 1919 Pal 27.
(8) Any person, who is lawfully in charge of a minor, may be regarded as his lawful guardian
,
under the explanation to this section, even though there may be no formal entrustment of the minor to
such person by the minor's legal guardian. The words "lawfully, entrusted" only signify that the care
and custody of the minor should have arisen in some 1a'ful manner. AIR 1958 Born '381.
(9) Even a volunteer taking upon himself the duties of care and custody of a minor, who has no
one to protect him or her will be a lawful guardian for the purpose of this section and Explanation. AIR
1954 Born 339. -
(10) Children in an orphanage must be regarded as being under the lawful guardianship of the
Superintendent of the orphanage, and taking away a minor child from the orphanage without the
consent of the Superintendent would be an offence. AIR 1954 Born 339.
• (11) A person, who obtains the custody of a minor by unlawful means cannot be regarded as the
lawful guardian. AIR 1954 Born 339.
(12) The mere fact that a boy is employed by another does not make the latter the lawful guardian
of the boy in the absence of proof of entrustment of the boy to the employer by his father or guardian.
A IR 1919 Pat 27.
20. Explanation-Relative rights of legal guardian and person entrusted with care or
custody of minor.--( 1) Where a person other than the legal guardian is. treated as a "lawful guardian
under the Explanation to the section (by reason of being lawfully entrusted with the care or custody of
a minor) the rights of such person are subject to those of the legal guardian. AIR 1931 Cal 446.
(2) The effect of the Expnation to the section is only to extend the meaning of the expression
"lawful guardian". AIR 1943 Pat 108.
(3) The effect of the explanation is only to extend the meaning of the expression "lawful guardian"
for the greater protection of minors and children and not to limit or take away the rights of thelegal
guardian or to make them subject to the right of the person who had been given charge of;the.child for
the time being. A IR 1952 Tripura 27. • •. • ••
•Sec. 361 Of Offences affecting the Human Body 1035
(4) It is only the natural guardian of a minor who can claim a higher right to the custody of the
minor than the person who has been actually taking care-of her. Such right cannot be claimed by a
person merely on the ground of his being a relative of the minor unless he is the natural guardian. AIR
1962 Pat 121.
(5) Where the custody of a minor girl is handed over to her mother by decree or order of the Court,
the mother becomes the lawful guardian of the minor girl even against the father of the girl, and if the
father removes, by force the girl from custody of the mother, he would be guilty of an offence under
this section read with S. 363. A IR 1958 Born 381.
21. Guardian's consent.—(I) In order to constitute an offence under this section, the "taking" of
the minor or person of unsound mind, from the custody of the lawful guardian must be without the
consent of such guardian. (1913) 14,,CriL.J 149.
•(2) It is for the prosecution to prove that the "taking" from the guardianship was without the
consent of the guardian and not for the accused to prove that such taking was with the consent of the
guardian. 1968 Cr1LJ 832 (DB) (MadhPra).
(3) The word "consent" in this section must be understood in the light of S. 90, under which a
consent given under fear or misconception. will not be "consent" within the meaning of the Code.
Hence, a consent of a guardian given on a misrepresentation of facts being one given under a
misconception, is not valid for the purpose of this section. AIR 1916 La/i 414.
22. Consent of kidnapped minor.—(1) Under this section removing a minor from the keeping
of the lawful guardian without the guardian's consent is an offence. The consent of the minor himself
or herself is no defence to a charge under the section. 1976 GriLl 363.
(2) The underlying policy of the section is to uphold the lawful authority of parents or guardians
over their minor wards and to throw a ring of protection round the girls in their charge and to penalise
the conduct of persons whocorrupt or attempt to corrupt the morals of minor girls by taking improper
advantage of their immaturity and inexperience. 1980 A/IL..! 82.
(3) The mere fact that the minor girl, who is kidnapped, has consented to being taken away will
not exonerate the accused. AIR 1958 Orissa 224.
23. Exception.—( 1) The Exception, is that the section is not applicable to a case in which the
person who removes the child from another's custody believes himself, in good faith, to be entitled to
the lawful custody of the child. There is no question in whatever of any authority to remove the child
from his or her lawful guardian. A IR 1938 Cal 475.. .
(2) Where in a divorce suit a decree was passed dissolving the marriage and ordering the wife to
deliver up the son born Of the marriage to the husband and the decre was forwarded to the High Court
for confirmation under Section 17 of Act 4 of 1869 and the husband obtained custody of the son, but
soon after the wife removed him from the husband's house before confirmation of the decree by the
High Court, it was held that the wife could not be charged with kidnapping as, till the confirmation of
the, decree the parties would continue to be husband and wife, and the wife would continue to be
entitled- to. the custody of the child under the law. A IR 1914 Cal 609.
24. "Unlawful"—Meaning óf.—(I) Where the object of removing a child is to give her in
marriage to another in contrivention of the provisions of the Child Marriage Restraint Act, the object
will be an "illegal" one, as the carrying out of the object will be an offence under the above Act. AIR
1933 Rang 98..
1036 . PenalCode •. . See. 361.

• (2) The word "unlawful" is not confined to what is "illegal" under S; 43 ante but is a wider term
than "illegal". (j935).39 CaIW N 396 . . .
(3) 'In its general connotation the word "unlawful" means what is not justifiable by'law:' ndr'is it
synonymous with the word "immoral", as is shown by the fact that the section uses the words
"immoral or unlawful purpose". (1935) 39 Ca1W7V 396
25. Mens res.—(I) Under this section the mere fact that a minor boy or gitl was taken away or
enticed from the keeping of the-lawful guardian of the minor is sufficient to constitute'the offence: It is
not necessary that the accused must have done the act with any particular intent. AIR 1924 Oudh 335.
26. Kidnapping not a continuing offencè.—(l) The offence èf' kidñapping'from lawful
guardiansh ,p consists in the "taking" or "enticement" of a minor, within the specified age limits; from
the "keeping" of the lawful guardian and is complete the moment such "taking" or "enticement" is'
over and hence is not a continuing offence as abduction is; (1900) ILR 27 Cal 1041,
27. Kidnapping from kidnapper^ ( 1) This section deals with kidnapping from 'lawful
guardianship. Kidnapping from a kidnapper is not an offence under this section. Thus, where A 'kidnaps
a minor girl from the custody of her husband, the lawful guardian .under the law, and. B subsequently
takes away the girl from A. B's offence will not fall under this section. AIR 1961. Born 282.
(2) Where A kidnaps a minor girl from the keeping of B the lawful guardian, and C subsequently
kidnaps the minor girl from the keeping of A for the purpose of subjecting her to illicit sexual
intercourse. .0 will not be guilty of an offence under. S. 366. AIR .1961 Born 282. .. .•.
28. Abetment.—(1) Where A and B conspired to kidnap a minor from the keeping of lawful
guardian and in pursuance of the conspiracy actual kidnapping is done by A and B is not presentat' th
spot but is .watching at a distance at some other place, B is guilty of abetment of the kidnapping,
though he is not actually present at the, spot from where the , kidnapping is made.. (1904) 1 GnU
561 (All). . . ' . . .•. .. .
(2) Where once the kidnapping is over, i.e. where once the minor has been removed from the
the'
keeping of the lawful guardian, helping the kidnapper thereafter in any way will not amount to
abetment of the kidnapping, as.kidnapping is not a continuing offence. AIR 1916 All 210.
29. Marriage of minor girl.by guardian against her wishes.–'-.(l,) Where the legal guardian for
marriage of a Hindu girl gets her married, he will not be committing an offence, even if he takes some
money from the other side by consenting to.the marriage. AIR 1960 All 479. . ' ..
(2) The willingness or otherwise of a minor Hindu girl to marry a particular person is not a mattei
for consideration at the time of her marriage. So, it. will be difficult to make a distinction between a
marriage brought about by the agency of a kidnapper, and a marriage with the help of her relations so
far as her personal desire and consent are concerned. But, where the taking away of the girl from the
keeping of her lawful guardian without his consent is proved, the person so taking her away will be
guilty of kidnapping under this section and liable to punishment under. S. 363. AIR 1919 All 36.
30. Evidence and onus of proof.—(1) The burden of proving the intention of the accused to
kidnap from lawful guardianship is, as in every criminal case, .on the prosecution. The prosecution
must prove some kind of inducement of the accused or an active participation by him in theformation
of the intention of the minor to leave' the house of the guardian. 1990 Born CR . 744.
(2) The intention to take away ,or entice the boy or girl from the keeping of the lawful guardian has
to be proved by the prosecution, and the mere fact that a minor boy or girl is found in the company of,
Sec. 361 Of Offences affecting the Human Body 1037
the accused will not by itseI;f and without anything more prove that it was the accused's intention to
take away theminor from keepingof the lawful guardian. Direct evidence of a guilty intentioti on the
part of the accused is not necessary however and the intention can be proved . , from circumstantial
evidence, 41R 1955.A1/. 78,
(3) In cases of.doubt the benefit of doubt must be given to the accused. AIR 1967 All 523.
(4) In a prosecuti6nünderS:366, the evidence of the kidnapped or abducted girl who is nearly 18:
years ofage,mustbetaken with considerable caution. A IR 1957 HimPra 42.
.31. Evidence and burden of proof—Age of kidnapped person.—(1) Although the person
kidnapped may be below . the age of majority under the Majority Act the offence of kidnapping will not
fall under this section, if the minor is not also below the age specified.in the section. The burden of
proving that the. kid pped minor was below the age specified in the section is on the prosecution. AIR
1955 SC 574. . . .. .
(2) The evidence of the kidnapped girl herself is not inadmissible, and if credible, is legally
sufficient for conviction. 1967 MPL.J (Notes) 91; (1867) 7 Suth W R 68(i)(68);
(3) Where there is other evidence like extract from the school register, medical opinion testimony
of parents and relAtive`9 shó'',ing the girl to be below 18 years of age, the mere fact that the horoscope
was not put in evidenceis hO ground for holding that her age was not proved to be below 18 years.
1978 CriLJ 1494 (1495) (Cal); 1960 MadW N 674.
(4) Entry in the Kotwari book, if genuine, can be taken into consideration and will be strong
evidence in proof of the age of the girl kidnapped. (1968) 1 GriLl 686 (MadhPra).
(5) Although theopihion of the medical expert as to age is not inadmissible, yet in the absence of
any explanatory statement by the doctor as to the factors which individually or cumulatively Were
significant ,his opinion cannot early much weight. (1969) 7 GujLR 378.
(6) Whàtfs known as the "ossification" test is often applied for determining the age of minor girl.
1978 CHU 1494,L,
32 Procedure —(1) The offence of kidnapping from lawful guardianship not being a continuing
offence w'here a girl is kidnapped from the keeping of the lawful guardian in Kathmandu in Nepal and
'hen brought into India the offence is complete in Nepal itself, and therefore must be regarded as
having been committed out of India In such a case under S 188 of the Criminal P C., the certificate
of the Political Agent in Nepal was held to be necessary before an Indian Court can take cognizance of
the offence in India, notwithstanding the presence of the accused-as well as the kidnapped girl in India.
(1997) ILR 19 All 109. . '.
(2) In a case where there are several accused jointly tried, the evidence against, each accused should
be scrutinised to see what part was played by him in the "taking" or "enticing". A IR 1938 Cal 475.
(3) Where a nuthbei of alternative decisions are possible on the evidence, it is the duty of the
Judge to clear the ground and be quite sure that each accused or counsel clearly understands the case
that the particular accused has to meet. AIR 1923 All 285.
33.. Place of inquiry ^ ( 1) Where a girl kidnapped from place A is raped in place B it will be a
'transaction' within the meaning of S. 235 of the Cr;P.C. The offences are so interlined that the
inquiry can be had at either of the places. AIR 1970 Raj 250.
34. Charge.—(I.)In the charge of the offences of abduction and kidnapping, 'there must be
separate charges in respect of each of the offences inasmuch as the two offences are not identical but
different ones. AIR 1927 Cal 644.
1038 Penal Code Sec. 362
• (2) Where the Magistrate frames an additional charge under S. 363, when there was no material in
the evidence to support such charge, and convicted the accused thereon, the conviction was set aside.
A IR 1928 Lah 898.
(3) In the absence of prejudice the accused could be convicted under S. 366 though charged only.
under S. 361. A IR 1970 Guj178.
(4) The charge need not specify when the "taking" started and where add when it was completed,
provided it is clear from the evidence that there has been a "taking" of the girl from the keeping of the
guardian. "Taking" may be constituted by a series of acts. AIR 1949 Orissa 22.

Section 362
362. Abduction.—Whoever by force compels, or by any deceitful means induces,
any person to go from any place, is said to abduct that person.
Cases Synopsis
1. Scop e of the section. 7. "To go from anyplace".
2. "By force compels".' 8. Kidnapping and abduction—Distinction.
3. "By any. deceitful means induces". 9. Abduction and wrongful confinement.
4. Person going of his own free will, JO. Abetment of abduction.
5. "Any person". 11. Burden of proof
6. Abduction, a continuing offence.
I. Scope of the section.—(I) Abduction becomes a criminal act only when it is done with one or
the other of the intents specified in section 364, 365 and 366 Penal Code. Where no force or deceit is
practiced on the person abducted, a conviction cannot stand. The force or fraud must have been
practised upon the person—Actual force is required and not show or threat, offorce. "To induce" means
"to lead into" It connotes a leading of the woman in some direction in which she would not otherwise
have gone. There must be a change of mind caused by an external pressure of some kind, unlike
kidnapping, abduction is a continuing offence and a girl is being abducted not only when she is first
taken from any place but also when she is removed from one place to another. The deceit practised on
the mind of the girl in the start continues to work as she moves from one place to another, and
accompanies the accused in pursuance of the promises held out to her (25 CrL,J 1082). Abduction is a
continuing offence. Consent of the person "moved" if freely and voluntarily given, condones abduction
but in kidnapping consent of the person "taken" or "enticed" is wholly immaterial.
(2) Ingredients— This section requires two essentials:
(i) Forcible compulsion or inducement by deceitful means.
(ii) The object of such compulsion or inducement must be the going of a person from any place.
(3) The ingredients necessary to constitute an abduction of a person are-
(i) that the person must have been made to go from any place, and
(ii) that such going must have been—
(a) under compulsion by the use of force, or
(b) induced by deceitful means. AIR 1953 Punj 258.
(4) AbductiOn as such is by itself not punishable as a substantive offence. AIR 1959 Mad 274.
(5) There can be no abduction when no force is used, or inducement made by deceitful means in
taking away a person. A IR 1971 SC 2064.
Sec. 362 Of Offenced affecting the Human Body 1039

2. "By force compels".—( l) The word 'force' in this section means actual force and not merely
show of force or threat of force. AIR 1949 All 710.
(2) Threatening with a pistol is using force within the meaning of the section AIR 1972 SC 2661.
• 3. "By any deceitful means Induces".--(I) It is not necessary according to the definition of
abduction in this section that force must be used in every case. his sufficient if by deceitful means a
person is induced to go from any place. 1980 All Cr1 C 222.
(2) The expression 'deceitful means' is wide enough to include the inducing of a girl to leave her
guardian's house on a pretext. AIR 1951 Raj 33.
(3) "To induce" means 'prevail on', 'persuade'. There must be a change of mind caused by an
external pressure of some kind. AIR 1934 Sind 164.
(4) Where a young married girl, little more than a child was induced to go along with the accused
on the representatjon that she would be married to a rich man, it was held that even if the girl went
with the accused willingly she could not be said to, have done so with the knowledge that she would
be committing acriminál offence by undergoing a second marriage; thus her consent could only have
been under a misapprehension and therefore no consent in the eye of law, the element of deceit was
therefore present and so there was abduction within the meaning of this section A IR 1943 Pa: 212
4. Person going of his own free will.--4 1) Where the prosecutrix accompanies the accused of her
own free will without any inducement or use of force, no offence is committed either of kidnapping or
abduction. 1977 AndhLT 391.
(2)Most of the witnesses stated that on being persuaded by the accused persons the - victim went
inside his house and came properly dressed to accompany the group It could not, therefore, be said
that the victim was abducted by the accused persons. A IR 1984 SC 91L
5. 'Any person".—( I )The force or the deceitful, means should be employed towards the person
sought to be abducted and not towards any other person :1956A11LJ 849.
(2) Where the 'accused requested the complainant to send his daughter with him to cook food for
some guests and the complainant acceded to the request and sent his daughter with the accused, it was
held that there was no abduction within the meaning of the section as it could not be, said that the
complainant's daughter was taken away from his house by the accused by force or by deceitful means.
1956 A11LJ 849. .1
6. Abductioñ.a continuing offence.—(1) Abduction is "continuing offence" and a person is
being abducted not only when he is first taken away from any place but also when he is subsequently
removed from one.. place to another. AIR 1951 Raj 33. .
(2) Where it. was conceded by the counsel that charge under Section 148 related to murder taking
place at aplacé other than place of abduction subsequent to alleged abduction of victim and did not'
relate to abduction, the common object would not be available for sustaining conviction for abduction
AIR 1984 SC 911.. '• . .

(3) Court cannot charge a man with committing an offence de die in diem (= from day to day)
over a substantial period. AIR 1937 Born 1.
(4) Normallyan offence is committed only once But offen.^6 can be committed from day to day
and it is offences failing in this btter category that are described as continuing offences. A IR 1955
Born 161. :.
7. "To go fràm any place".—(I) An essential ingredient in the definition of abduction is that a
person must have been induced to go from any place In the absence of this eIemnt ththan e c be no
abduction' as defined in the section Where the accused came on to the roof of a house and Wakening
a woman who was sleeping there asked her to accompany them and on her refusal they lifi&l'li&'up in
1040 Penal Code Sec. 363

order to carry her away but dropped her and ran away on her raising an alarm, -it was held that the
action of the accused amounted only to an attempt to abduct. A IR 1925 La/i 5/2.
S. Kidnapping and abduction—DistinCtIOU.-41) Kidnapping differs from ab duction -in several
respects. A IR 1927 Cal 644.
(2) Kidnapping as defined in Ss. 360 and 361 is by itself a substantive offence. punishable under
S. 363 whereas mere abduction as defined in S. 362 is by itself not a substantive -offence. It is only
where the abduction is made in the circumstances stated in Section 364, 365,366, 167 and 369 that it
is an offence. AIR 1967 All 528. -
(3) In 'kidnapping' consent of the person enticed is immaterial. In 'abduction' consent of the
person removed, if freely and voluntar i ly given, condones it. In 'kidnapping' the intent of the offender
is irrelevant, but in 'abduction' it is the all important factor. A IR 1953 Punj 258.
9. Abduction and wrongful confinement.—(1) Where the accused along with other persons
forcibly entered a liquor shop and took away the shop owner and his colleagues in truck for some
distance and then dropped them, it was held that there was no wrongful confinement and thatthe
proper charge, should have been under S. 362 and not under S. 342. 1969 BUR 216.. -. -
10 Abetment of abduction.--(I) Actual abduction may be abetted, but when the offence is
complete, abetment cannot be proved against peisons who may have taken a subsequent part in the
proceedings of the parties. (1923) 24 CKLJ 921.
(2) Certain persons conspired to induce a girl to accompany them, their intention being to make
her over to the accused for marriage to his brother. She was brought to a place where the, accused
arrived according to a pre-arranged plan. The girl was not however made over to.the accused at that
place but they all started by train from that place to another place and there told the accused to take
charge of the girl. The girl was, however, not ready to accept 'tie company of the straitgër whereupOn
the accused caught hold of her hand and dragged her. It was held that the accuséd coi1ld not be
convicted of the abetment of the original offence of abduction; but th.i;s was, a separate offence of
abduction when he tried to compel the girl by 'force to go along with -him on her refusal to acôompany
him. A IR 1925 Oudh 328.
11 . Burden of proof.—(1) The burden of proof is oh the prosecution to prove a-'forcible
compulsion. It cannot be presumed that the accused must have had a guilty intention unless thëyprove
that-they were innocent. AIR 1934 Sind 164.
(3) Inducement cannot be presumed from the mere fact that a minor girl is found , with'a 'man: AIR
1934 Sind 164.

Section 363
363. Punishment for kidnapping.—Whoever kidnaps. any person frdm
16 [Bangladesh] or from lawful guardianship, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be, liable
to fine..
Cases and Materials : Synopsis
I. Scope. 7. Charge and conviction.
2. Lawful guardianship, 8. Sentence.
3. Consent of the minor. 9. Procedure.
4. Kidnapping— W hen complete. - . - "
•' -
5. , Evidence and proof.., ,''-'-' ' - i-i. -ciiarje. - - -
6. Abetment.,
Sec. 363 Of Offences affecting the Human Body 1041

1. Scope.--(I) This section should be read with section 361, and the offence of kidnapping from
lawful guardianship penalised by this section Is the officer which is defined by section 361. The
offence of kidnapping under section 363 consists soly In the taking of a minor from the keeping of a
lawful guardian (34 CrLJ 1239). Certain principles have been involved in finding out what acts will be
deemed sufficient to constitute abandonment of a guardian by a minor girl. Although a minor may -not
be competent to give her consent to her taking she is competent to leave the protection of the guardian
• of his or her own accord (51 CrLJ 1486, A IR 1954 Mad 62; A IR 1950 Cal 406). If it was proved that
at the instigation of the accused the minor left her father's guardianship, the accused cannot be
• • convicted under this section (AIR 1. 961 MP 104; 1961 CrL.J 513). For the purposes of this section, the.
intention of the offender, his motive, the means employed by the accused; and the consent of the girl,
are all irrelevant. Kidnapping is an offence against guardianship and the moment the minor is taken or
enticed away out of the keeping of her lawful guardian the offence is complete. In a prosecution of
kidnapping the age of the person has to be proved by the prosecution. This section may be read with
the Cruelty to Women (Deterent Punishment) Ordmance No LX of 1983 dated 3-10-83.
(2) Kidnapping girl under sixteen years of age leaving parent's house of herown accord and going
over to her paramour—Paramour taking girl to accused and seeking his assistance in getting married
with girl—Mere taking of girl in circumstances of case, does not establish removal of girl by accused
frnrlgal guardianship of parents. Banney Khan V s State. (1966) 18 DLR (W P) 28..
(3) Kidnapping from lawful guardianship. The offence under section 363, p, is not a continuing.
offence– A minor is deemed always to be under lawful guardianship, within the freedom which is
allowed to him e.g., such as he can be shown to be accustomed to practice Thus for instance, if he
had been left by the others on Ayub Park, it would not be possible to say that the persons responsible
for taking him to Ayub Park were guilty of kidnapping him from lawful guardianship, since it would
have been possible for the boy to return home the same evening. , But when he was taken from Ayub
Park to the bus-stop; that being a place from which movement was possible to a, number of places
outside Rawalpindi, an action may be seen of which the result was likely to be and eventually was that
the boy would not be allowed, to return home the same evening. At this stage, it would be possible to.
say that the boy was taken out of the lawful guardianship of his father. Muhammad Razzaq Vs. State,
(1967) 19 DLR '(SC) 379.
(4) Ascertainment of the age' of the girl, on a charge of kidnapping, the question td be duly .' one
into upon due consideration of all 'facts and circumstances'.' Gannendra Nath V s. A bdul. Khaleque
(1963) 15 DLR 272.
(5) Physical examination for verification of girl's age can only be with her consent. (1963) 15.
DLR 272.
(6) A father being a' natural guardian of the, minor child, according to some judicial authorities,
cannot be held guilty of kidnapping, for his taking away the 6hi1d from the custody of the mother
without the consent of the mother. Kazi Mohammad Elias Vs. FerdousA ra 41 , DLR 516.
(7) A minor to be taken out of the 'lawful custody of her guardian as under section 363 must be a
minor under 16. A minor under 18 would be referable to section 366A. She cannot be allowed to go
whether she attains the age of 18 years. Dr. Bimal Kanti Roy Vs. Stale and Others 46 DLR 541,
(8) Custody of .a victim girl, if the allegations are that of kidnapping of a minor girl out of. the
keeping of the lawful guardian. Kidnapping of a minor girl out of the keeping of the 'lawful guardian is
L. an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may
be prayed for in the criminal Court in a pending proceeding, -the Court has to proceed on the basis' that
the female is a minor under.sixteen years of age as laid down in section 361 of the Penal Code. For
M

1042 Penal Code Sec. 363

proving the offence of kidnapping the minority of the victim will have to be established at the trial.
Md. W ahedA lj DewanV. The State and another, 14 BLD (4D) 32.
(9) Offence of Kidnapping---Cnset of minor is, immaterial—When it is proved by consistent
evidence that the minor victim girl was kidnapped by enticement, the conviction and sentence awarded
upon the accused are perfectly justified. The consent of the minor is immaterial and is of no legal
consequence. Abdul Karim Vs. The State 7 MLR (HG) 341.

(10) The essential ingredients of the offence of kidnapping a minor from lawful guardianship are:
(i) that the age of the minor is less than 16 years if the minor is a male and less than 18
• years if the minor is a female;
(ii) that the minor was taken or enticed away;
(iii) that the minor was in the keeping of his or her lawful guardian; and'
(iv) that the guardian did not consent to his or her removal. 1975 W LN(UC) 113.
(11) This section can have no 'application to a case where the person alleged to be kidnapped from
the lawful guardian is not a minor or where the case is not of taking away the person from India to a
place outside India. AIR 1959 Mad 274.
(12) Person in public custody—Determination of age for guardianship—The isolated statement of
the father in such a case in respect of age of the detenue (his daughter) cannot be accepted as true unless
it is supported by other independent. corroborative evidence—The petitioner prayed for declaration of
illegal detention and claimed custody of the girl on the ground of minority—This he could be entitled
to if the, girl was found below 16 and if she was taken away .without the consent of the guardian.
Examination by court—Examination for ascertaining detenue's age—We examined the girl personally,
and from our knowledge, experience and human perception we felt that the detenue is quite major and
was not below 16 when she left her father's house. Person in public custody—Question of giving her
to father's custody. Even if it is presumed that at the time of occurrence (alleged kidnapping) she was
minor but now, if she is found major, the court has no jurisdiction to compelthe major girl to go .with
her father. 10 BLD 85.
(13)Detention of a girl in custody, she not being an accused and may at best be a witness, is
illegal. Report of the Investigation Officer , regarding the age of the girl supported by the horoscope and
other material evidence, goto prove that the girl was a minor has been preferred over the report of the
Civil Surgeon tà the effect that the girl's age is' over 18 years and as such, she was a major. Rani Bala
is a Hindu girl. Although there is .a claim that she has embraced Islam yet that claim is to be proved at
the regular trial. 17 DLR 544..
(14), Nor will the section apply where neither taking away nor enticement is established., (1971) 2
SC CrIR 16
(15) In order to constitute an offence of kidnapping simpliciter under this section it is not
necessary that there 'should be an intention on the part of the accused to make an unlawful use of the
minor. 1980 A11LJ 101.
(16) This section, as well as 'S. 37,2 (selling minor for purposes of prostitution, etc.) is applicable
to married as well as unmarried female minors. A IR 1957 Him Pra 42.
2. Lawful guar4ianshjp.(1) Where an orphan girl was maintained by one X, but to whose care
she had not been confided by her parents, X cannot be considered as her lawful guardian. (1894) 17
Mys'LR No. , 475p. 716.
3. Consent of the minor.—(1) Consent of the minor to the act of the accused in taking or
enticing the minor. Out of the keeping of the lawful guardian is no defence to it charge' unset this
section.(1974) 1 .CriLT 485 (Him Pra).
Sec. 363 Of Offences affecting the Human Body 1043
(2) A distinction must be made between those cases where the accused takes or entices a minor out
of the keeping of the lawful guardian with the minor's consent and those cases in Which the minor has
of her QWfl accord without any inducement offered by accused abandoned the guardianship of her
parents, without any 'animus revertendi' ('the intention of reluming) and joins the accused, and in the
latter case, no offence under his section is made out. AIR 1967 All 158.
(3) Where the minor alleged to have been taken by the accused had left her father's protection;
knowing and having capacity to know the full import of what she was doing and voluntarily joined the
accused, the accused could not be said to have taken her away from the keeping of the lawful guardian.
Something more has to be established by the prosecution viz., that some kind of inducement was held
out by the accused person or he took an active part in the formation of the intention of the minor to
leave the house of the guardian. AIR 1965 SC 942.
(4) What. will be sufficient to constitute an abandonment of a guardian by the minor depends upon
the facts and circumstances of each case. AIR 1954 Mad 62. .
(5) It is not necessary for a conviction under S. 366 that the accused should know definitely who
the guardian of minor girl is whom he finds wandering about and makes use of her for his own ends.
AIR 1937A11 182.
4. Kidnapping—When complete.—(l) The offence of kidnapping from lawful guardianship is
complete when the minor is actually taken from the .keeping of the lawful guardian. It is not an offence
continuing so long as the minor is kept out of such guardianship. (1900) ILR 27 Cal 1041.
(2) Whether the kidnapping is complete or not is a question of fact and must in each case be
decided upon the evidence. AIR 1928 Pat 159.
(3) The question whether the kidnapping is complete or not cannot be raised for the first time
before the High Court. A IR 1915 Mad 636 .
(4) Minor girl first removed from uncle's house to his threshing floor and next day removed from
village by accused—Held taking was not complete till her removal from village. AIR 1916 Lah 230.
5. Evidence and proof.—(l) In law, no corroboration of the evidence f the minor girl kidnapped
is necessary to substantiate the charge. But where her story is of an unnatural, character and is self-
contradictory, it is not safe to place reliance on the testimony unless it is corroborated by independent
evidence. AIR 1956 Nag 74. . ...
(2) Where it was not stated in the complaint that the girl alleged.to be kidnapped was a minor nor
were other necessary ingredients of the offence disclosed in the evidence, it is illegal for the Magistrate
to 'suo motu' (=: of his own accord) frame a charge for an offence under this section. A IR 1928
Lah 98. . . . .. . . .
.
(3) Where there was extraordinary delay in laying information before the Police and there.was also
a possibility that the minor gid said to be kidnapped was over 16 years of age, it was held that the
probabilities were that the minor went away of her own accord and hence the offence was not made out.
AIR 1918 Lah 37. . . .
(4) Mere knowledge on the part of the accused that his brother had kidnapped the minor could not
make the accused liable under this section or under S. .368. A IR 1933 Lah 393.
(5) In order to hold that the accused "enticed" away the girl, it is necessary to have some evidence
to the effect that the accused had given her some temptation or promise or assurance or allurement
which had the effect of an irresistible force upon the girl. 1983 çriLj 1819. .
(6) Where testimony of the prosecutrix clearly established that she was treated kindly by the,
accused and it was of her own vocation and perhaps out of fear of disgrace at the hands of the family,
1044 Penal Code Sec. 363

which subsequent events established, that she chose to remain with the accused. Held, the accused were
entitled to benefit of doubt. 1983 Ghand GriGas 379. . .
(A ) Proof as to age.— ( .'1) To constitute the offence of kidnapping from lawful guardianship it
must be proved that the girl kidnapping. is under 18 years of age and the burden is on the prosecution
to prove it. 1977 Raj Gri C.362. .
(2) A doctor's estimate about the age does not amount to proof but is merely anopiniôn. AIR
1916 PC 242. .
(3) Investigation under S. 363 against accused for abduction of girl—Determination of age of
girl--Educatiorial Institute's Certificate produced by accused showing age of girl was above 18 years-
Iny éstigation agency neither ascertaining age of girl from educational institute or any other place not
ascertaining whether date of birth as certified by them and produced before court was genuine or false—
Prima facie, age of girl as disclosed by the certificate of educational institute is to be taken as correct.
• 1982 GnU (7STOC) 24. . ...
(4) Accused charged under Ss. 363, and 366 P. C. 'Accused pleading that victim was 21 years of
age on the date of alleged offence and that they had married each other and living as husband and
wife—Accused placing on record Photostat copy of Matriculation Examination Certificate of girl
• issued by the School Education Board and also fixing photographs showing the girl garlanding him.
This certificate had not been controverted on behalf of the .prosecution. Held, the proceedings were
liable to bç . quashed. 1983 A ll CriLR 750. . .
(5) Overwriting in the entry without proper attestation regarding sex of the child in the birth
register ofthe Municipal Committee. Radiologist not examined to prove the skiagrams taken by him.
• Adverse inference was drawn against him—Possibility of prosecutrx being over 18 years of the age
could not be ruled out and since she was a consenting party, the conviction of the accused deserved to
• be set aside., 1982 Chand Cri,C 76 ,.
(6) If two inferences are possible about the age of the minor, one that she was more thaU ..8 years
and the other that she might be below 18 years, the benefit of doubt should go to the accused. 1966
A ll Cr1 R 348. . . . . .. . . . ... . .
6. Abetment.—(1) Kidnapping is not a continuing offence and there could be no abetment of it
after minor had been taken completely out of the keeping Of guardian. (7911) 12 CriLJ 94 ('Lah).
7. Charge and conviction.—(1) A persom charged of an offence of kidnapping cannot be
convicted for abetment of kidnapping where such alteration of the offence charged would prejudice the
accused. .195 7 briL.J 688 (Raj). .
(2) Where two separate charges have been framed against accused person—One under this section
and another under S. 366—And he is acquitted of the charge under S. 366, he can nevertheless be
convicted, for the offence under this section. AIR 1951 Assam 168.
(3) Where the accused kidnapped a five year old girl out of the keeping of her guardian and
subsequently committed rape on her, but there was no proof of any intention of committing rape at the
time of the kidnapping, it was held that the convictions under S. 375 and under this section were
valid. A IR 1969 A ll 216(220): 1959 CriLJ 585 (2). .. . .
8. Sentence.—(I) Sentence is a matter of discretion with the trial Court unless, the sentence
"awarded is so grossly inadequate; the High Court normally win not interfere and particularly so where
the State has not chosen to apply for enhancement of sentence. 1966 GriLl 210. . .
Sec. .363 Of Offences affecting the Human Body 1045
(2) Where the lower Court had passed a lenient sentence in consideration of facts not appearing in
evidence, it was held that the offence should be viewed with sternness and the offenders should not be
lightly dealt with. AIR 1965 Raj 90. . .
(3) On a conviction, for an offence under this section a sentence of fine is not essential along with a
sentence of imprisonment. But a sentence of fine alone is illegal. AIR 1949 All 587.
(4) Court reduced the sentence from 2 year's R. I. to one year's R. I. where the motive of the
accused was honorable (in that he wanted to marry the girl). A IR 1928 Pat 159.
(5) Where the girl was a willing party to the kidnapping by the accused who were a middle aged
couple, the sentence of 7 year's and 4 year's R. I. respectively imposed by the trial Court were reduced
to 3 years and 2 years S. I. by the Court. A IR 1948 Oudh I
(6) The girl kidnapping was on the verge of eighteen years of age. Accused kidnapping her and got
married with her. They were also in correspondence with each other prior to that. The accused was
sentenced by the trial court. After having suffered three months' R. I, he was released on bail. In
appeal Supreme Court held that sentence already undergone was enough. 1966 CriApp Rep (SC) 421.
(7) Three accused convicted for kidnapping and sentenced—Circumstances of the case and
evaluation of the role of accused justifying modification---Conviction maintained but sentence
modified. 191 CrILR (SC) 229. . . .
(8) Where it was proved that the accused took a minor girl with him from a shop where she was
left by her father without the consent of her father on the pretext that she was called by her father the
accused was convicted under S. 363 P. C., instead of S. 366 and looking to his tender age of 1 years,
without any previous conviction to his discredit and the fact that the lapse occurred due to farhliarity
with' ..the girl and her parents was replaced on probatiónof good conduct for 2 years after 7 years'
proceedings. 1982 WLN (UC) 389.
(9) If a person abducts woman with intent to rape her, and then commits rape on her, he cannot be
awarded separate sentences Under S. 376 and under this section. AIR . 1926 Lah 212.
(10) Person taking part in process with criminal knowledge of kidnapping—he is guilty to same
extent as first man who initiates process of kidnapping. 1983 GnU (NOC) 81 (Gauhati).
9. Procedure.—(1) A minor cannot be the guardian of his sister. So he cannot institute a
complaint of kidnapping of his sister. A IR 1921 La/i 316 .
(2) A person charged with having committed the offence of kidnapping at a place outside British
India, cannot be tried, by a Court in British India though the person kidnapped may be concealed or
detained in British India. A IR 1917 Cal 612.
(3) Kidnapping—Girl foud major—Held, direction regarding handing over her custody on
superdari to her father was unwaITanted—She ought to have been allowed to go where she liked. 1982
CriLJ(NOC) 125;
(4) Petitioners/Accused chllenging F. I. R., registered under Sections 363/366 P. C.-
Prosecutrix starting before the High Court that she was wife of one of the petitioners—F. I. R. not.
disclosing any offence—Held, it was harassment of citizen and Court could exercise -its inherent
powers to quash the F. I. R. & subsequent proceeding. 1983 C'hand Cr1 Gas 264.
(5) Magistrate should not assume jurisdiction by trying cases for an offence under this section,
which really fall under S. 366. AIR 1924 La/i 718.
1046 Penal Code Sec. 364

(6) Cognizable—Warrant--Bailable---Not compoundable—Triable by Metropolitan Magistrate or

Magistrate of the first class.
10. Practice.—(A) For kidnapping from Bangladesh—Evidence—Prove: (I) That the person
kidnapped was at the time of the offence in Bangladesh.
(2) That the accused conveyed such person out of Bangladesh.
(3) That he did so without his consent or the consent of another person legally authorised to
consent on behalf of that person.
(B) Kidnapping from lawful guardianship.— Evidence— Prove: (1) That the person kidnapped
was then a minor under fourteen years of age if a male, sixteen years of age if a female, or was insane.
(2) That such person was in the keeping of a lawful guardian..
(3) That the accused took and.enticed such person out of such keeping from lawful guardianship.
(4) That the accused did so without the consent of the lawful guardian.
11. Charge.—The charge should run as follows:
(A) I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about—the day—of—at— kidnapped X out of Bangladesh without the consent of
that person (or some person legally authorised to so consent on his behalf) and thus kidnapping the
person from Bangladesh and thereby committed an offence punishable under section 363 Penal Code
and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
(B) I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you,.on or about the---day of—at—kidnapped X a minor (below 14 years of the age if a male
or 16 years of age if a female) or any person of unsound mind or took or enticed out of keeping of the
lawful guardianship without his consent and thereby committed an offence punishable under section
363 Penal Code and within my cognizance.
And I hereby direct that you be tired by this court on the said charge.

Section 364
364. Kidnapping or abducting in order to murder.—Whoever kidnaps or
abducts any person in. order that such person may be murdered or may be so disposed
of as to be put in danger of being murdered, shaiF be punished with '[imprisonment]
for life or rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to fine. .
- Illustrations
(a) A kidnaps Zfrom 16[Bangladcsh], intending , or knowing it to be likely. that Z may
be sacrflced to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or enti'ces B away from his home in order that B may be
murdered. A has committed the offence defined in this section.
Cases and Materials : Synopsis
1. Scope. 5. Charge.
2. "Kidnaps." : 6. ' Sentence.
3. "Abducts." 7. Procedure.
4. "In order that." 8. Practice.
see. 34 Of Offences affecting the Human Body 1047

1. Scope.—(.I) This section provides for the punishment of a specific offence and is not intended
as an indirect method of punishing persons who are suspected bdt not proved to have committed
murder. Before a court can act on circumstantial evidence the circumstances proved must be complete
and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not
explainable on any other hypothesis except the guilt of the accused. As there was sufficient interval
between the death of the boy and the recovery of the body, the link in the chain of the circumstantial•
evidence does not appear to be fully complete. In this circumstial evidence, the accused was entitled, to
benefit of doubt under sections 302 and 364. On a plain reading of the section it appears that it has no
application to case. where the object of the kidnapper is to hold the person kidnapped for
ransom (14 CrILJ 167, 27 GnU 64). In order to bring a case under this section it would be
necessary to establish that the abductor at the time of abduction intended to put the abducted
person in danger of being murdered (AIR 1940 Cal 561). There can be no kidnapping of a dead person
. SC 1252).
(AIR 1975
(2) Ingredient of the offence u/s. 364—Provisions of the section, when attracted and when riot—
Dead body of the abducted person found—Charge u/s. 364, if permissible—Charge framed u/s.
302/34, PC and conviction u/s. 364/34 whether Valid—Sec 236.Cr. P. C. whether applicable. Held:—
Conviction u/s. 364/34 is illegal and Sec 236, Cr. P. C. cannot be invoked in aid of conviction u/s.
364 if charge u/s. 302 or u/s. 302/109 fails. Hafez A bul Khair & another . Vs. The Stare, 6.BLR (A D)
67=1 BSCR 3429 DLR (SC) 2.
(3) Whether an offence u/s. 364 is congnate to an ofrence u/s. 302 or a minor offence in relation to
sec. 302. Held:—An offence u/s. 364 is not a minor offence to the offence u/s. 302. , The offence u/s,
364 is a distinct and specific offence.. Hafez Abui Khair Vs. The. State, (Ibid).
(4) Abduction followed by murder—Question as. to frame of charges—The law, in respect of the
charge of the offence of abduction 'followed by murder and recovery of dead body. A, the deceased
with others were taken to Razakar camp, and on the next day one D under the order of the petitioner
killed the deceased by a Rifle shot. The trial ended in their conviction under the 1st and 2nd charges
and each of them were sentenced to one year's R. I. under the 1st charge and transportation for life
under the 2nd charge. They were, however, acquitted , of the charge u/s 302/34. On appeal Dwas
acquitted while the conviction & sentence against the petitioner was maintained by the High court.
Held:--fl When the prosecution case was abduction of the deceased followed by. murder and the,
recovery of the dead body, the only appropriate charge should have been u/s. '302 if the abductors were
murders themselves, if not then u/s. 302/109. After the recovery of the dead body there was no scope
for a charge t1s. 364, because the offence of abduction culminated in the offence of murder. The said
offence merged into the graver offence of murder for the commission of which the deCeased was
abducted. Alternative charge u/s. 302/109 was framed along with a charge u/s. 302, but no order' was
passed with respect to the alternative charge 302/109,' (ii) When the direct charge of murder failed but
the abduction followed by murder was proved, the petitioner should be convicted u/s. 302/109, instead
of u/s 304. The sentence passed should be read as one passed u/s 302/109 PC', instead of u/s 304 Penal
Code. A fsar A ll Moral Vs, The State, 29 DLR (SC) 269. . .
(5) Abducted person, when murdered, the charge should be under section 302. When the person
abducted. was in fact murdered, there can be no scope for a charge under section 364. The abductor.
should be charged either with murder pure and simple or at least with abetment of murder. Mazaharul
.
I'fuq Vs. Crown (1949) 1 DLR 173.
1048 Penal Code Sec., 364

(6) Charge of abduction for murder—Circumstances to be proved. In order to establish a charge of

abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough
for the prosecution merely to prove certain circumstances under which the abducted person was induced'
to go, nor even to prove a mere misrepresentation. The prosecution must prove that there was a
misrepresentation, that the particular misrepresentation was the result of a plan to murder and that it
was one by which the abducted person was himself deceived and was induced to go. 53 CW N
(]DR) 169.
•(7) A charge for abdUcting in order to murder will not be legal when dead body Of the abducted
man has been found. Sher A li Biswas Vs. State, (1958) 10 DLR 374.
(8) Charge for murder and abduction formurder should be distinct. Sher A li Biswas Vs. State.
(1958) I0DLR374.
(9) In a case under section 364, it is necessary that the prosecution must prove not only that there
was a misrepresentation but they must also prove that this misrepresentation was in furtherance of a
plan to murder. Sher A ll Biswas V s. State, (1958) 10 DLR 374....
(10) Section appliablà when abduction in order tà murder is proved even though the murder is
not proved. Accused was charged under sections 302/109 P. Code. Murder not having been proved, the
charge of abetment of murder failed. Question arose whether, if the evidence of abetment is accepted,
the accused can be held guilty under section 364. Held: Section 364 provides for the punishment of
specific offence which does not depend upon the ultimate result of the abduction mentioned in the
section. The person abducted may or may not be murdered or the prosecution may not succeed in
proving murder; but, if other facts and circumstances prove that a conclusion can safely be drawn that
the purpose of abduction was to murder Or so dispose of the victim as to put him in danger of being
murdered, the offence under section 364 stands established. To substantiate a charge under section 364,
the murder of the abducted person is not necessary to be proved. If murder by the abductor is proved,
he is guilty of.murder, or if the victim has been murde'red by any person other than the abductor, then
the latter: is guilty of abetment of murder. If the facts and circumstances prove that the purpose of
abduction was either to murder or to so dispose of the victim as to put him in danger of being
murdered the charge under sec. 3.64 stands substantiated. The proof of the intention is- indeed difficult
and this must be carefully kept in view .in drawing a conclpsion from thefacts and circumstances of
each. case. The intention spoken of in this section is referable 'to the point of time when abduction takes
place. A kaluddin Vs. State, (1963) 15 DLR 466 . . . .
(11) This section not attracted where death of the abducted person only is proved but tjee is
nothing to show that abduction was for the purpose of murder. It was contended that where murder was
not proved but death of abducted person is proved 'the abductor is punishable under section 364. Held:
This view cannot be accepted. If only the death of the abducted person is proved and no opinion , can be
given as to the cause of his death then it cannot legally be presumed that there was abduction for the
purpose contemplated in section 364, as death might occur due to various reasons and in that case
section 364 is not attracted because this section contemplates abduction for the purpose of murder or
putting the victim in danger of being murdered. Hafez A bul Khair Vs. State, (1977) 29 DLR (SC) 2.
(12) This section is attracted where after abduction the abducted person is not heard of and the fear
is he might be murdered—Where the abducted man is indeed murdered and the body. has been found
then the proper charge that can be laid is under sec. 302 or sec. 302 read with sec. 109 against the
abductor- according to the state of evidence. Hafez Abul Khair Vs. State (1977) 29 DLR (SC) 2.
Sec. 364 Of Offences affecting the Human Body 1049

(13) Abduction followed by murder—Charged under section. 364 not maintainable. Baripada
Debnath Vs. State, (1967).19 DLR 573.
(14) Elements that a charge to be established on a charge of abduction in order to murder under
section 364. Abduction is of itself not an offence and to be punishable it must be accompanied by a
mens rea described in section 364 of the Code. Such mens rea, intention or purpose can be referable
only to the point of time when abduction or kidnapping allegedly took place. This primary object can
be gathered from the facts and circumstances of each ease as such an intention or purpose or object
may not be susceptible of direct proof which nevertheless must be proved to substantiate a charge
under section 364 of the Penal Code. In the absence of direct proof the prosecution must prove such an
impeachable fact and circumstance which would lead a reasonable man, a man of ordinary prudence, to
the irresistible conclusion that the object orthe purpose of the alleged abduction or kidnapping was
that the victim may be murdered or with the knowledge that murder would be the likely result though
actual murder need not be proved. Any fact or circumstances lacking in those essential particulars as to
mens rea would not substantiate a charge under section 364 of the Penal Code. Shahjahan V s. State
(1981) 33 DLR 97.
(15) The proved criminal acts constitute an offence of abduction for murder, State V s. Fazal,
(1987) 39 DLR (AD) 166 -
(16) If at the trial the story as given against the alleged offender is omitted from the one given in
F. I. R. it has always been viewed with great suspicion. Md. A ll Haider Vs. State. (1988) 40 DLR 97.,
(17) F I R enables the Court to see what was the prosecution story at the initial stage and to
check up the subsequent embellishment. Md., A ll Haider Vs. State, (1988) 40 DLR 9.7.
(18) There is no rule of law that once a witness has been discredited on one point, no credit '.is. to
be given to another. If a natural witness is declared hostile, his evidence may be accepted if
corroborated The evidence of boatman P W 2 cannot be discarded Md. A li Haider Vs State, (1988)
4ODLR 97
(19) Murdered man abducted alive and subsequently a few days later found dead Charge falls
appropriately under section 364 .rather than sec. 302/109 (10 DLR 374 distinguished). The case
reported in (1958) 10 DLR 374 cannot be treated as an authority for a wide and general proposition that
whenever abduction is followed by murder , no charge under section 364 of the Penal Code can be
framed against the accused and that the charge must, of necessity, be one under sections 302/109 of
the Penal Code Nur Muhammad Vs State (1964) DLR 228
(20) Abduction of the deceased followed by murder, proved Charge should be u/s 302, if the
abductors were murderers, if not, the charge should be u/s 302/109 In such 'd case no scope for laying
a charge u/s 364 A fsar A li Vs State (1977) 29 DLR (SC) 259
(21) A charge under section 364 against an accused who is also charged under . sections 302 or
sections 302/109 is condemned. Application of sec. 364 as distinguished frOm' the ingredients :"S
302 or Ss. 302/109—Difference between the two should be kept apart. , HafezA bull Khair V s. State
(1977) 29 DLR (SC) 2
(22) Offence a1 s 364 is a lesser offence than offence u/s 302 but it cannot be said that offence u/s
364 is a minor offence compared to offence--Ws. 302 —Offence u/s 364 not cognate to offence u/s
302 Hafez A bul Khair Vs State (1977) 29 DLR (SC) 2
(23) It cannot be said to be a minor offence to the offenceof muider u/s. 3.0. S. 364 deal wih a
specific and distinct offence by itself and without framing a charge u/s 364 a conviction thereunder will
1050 Penal Code Sec. 364
not be valid—Where dead body of the abducted man is found and it is further found that he has been
murdered then proper charging will be u/s. 302. or Ss. 302/109, as the case may be. Hafez A bdul
Khair Vs. State (1977) 29DLR (SC) 2.
(24) Charge u/s. 364 having fallen through—the accused shoujd in this state of evidence be tried
ulss. 302/ 109. The pertinent question that arises for consideration is whether the appellants should be
set at liberty as their conviction and sentence under sections 364/34 with the aid of section 238 Cr. P.
C. have been set aside or there ought to be an or.der for their retrial on an appropriate charge under
sections 302/109 when on a misconception of law they were convicted under sections 364/34. We have
given our anxious consideration to this aspect of the case and We are of the view that in the
circumstances of the present case there ought to be an order for retrial of the appellants on a proper
charge under sections 302/109. Hafez A bul Khair Vs. State (1977) 29 DLR (SC) 2.
(25) When the body of the deceased is found and the offence of murder is established, it is section
302 or ss. 302/109 of the Penal Code that . is applicable and no charge u/s. 364 can, in such case, be
laid. Shahjahan Vs. State (1981) 33 DLR 97.
(26) Offences of murder and kidnapping are co-extensive and there can be no conviction for both
the offences, If abduction is followed by murder no charge can be framed under section 364 of the
Penal Code and the charge must be one under sections 302/109 or for murder pure and simple.
Soleman Vs. State 42 DLI? 118.
(27) [fat the trial the story as given against the alleged offender is omitted from the one given in
FIR it has always been viewed with great suspicion. Md. A li Haider Vs. State 40DLR 97
(28) FIR enables the Court to see what was the prosecution story at the initial stage and to check
up the subsequent embellishment. Md. A li Haider Vs. State 40 DLR9'
(29) There is no rule of law that once a witness has been discredited on one point, no credit isto
be given to another. If a natural witness is declared hostile, his evidence may be accepted if
corroborated. The evidence of PW2 cannot be discarded. kid. A li Haider Vs. State 40DLR 97.
(30) It was not denied by the appellant that victim Shefali was his wife and living with him in the
same house just before her alleged missing If that be so, he is under the obligation to explain what
has happened to Shefali who was with him beforehei missing. A bdul Majid Vs. State (Criminal) i55
DLR 486. -.
(3 1) It is a well settled law thht the theory of "last seen together' .' is a weak type of circumstantial
evidence on which a conviction can be based—In the absence of any evidence establishing a link
between the accused and the murder, an order of conviction for murder is not sustainable. The State Vs.
Srree R6. pijjt Kumar Pramanjk 12 BLD (HC'D) 284.. .
(32) Offence under this Section is attracted even though the victim was not in fact murdered in
consequence of the abduction with the intention of murder. A l-haj A bdul Gani Vs. The State 12 BLD
(HC'D) 490. .
(33) Last seen—If the evidence of PWs I and 2 are read along with the evidence of PW 5 it is
found that the victim Seru Mia was last found in the company of the accused persons including the
appellant Md. Salim which amply proves strong circumstantial evidence pointing to the guilt of the
accused persons for committing the offence of kidnapping of the victim. Md. Selim V s. State
(criminal) 4 BLC 261. .
(34) So far as kidnapping for the purposes mentioned in the section is concerned, it is an
aggravated form of the offence under Section 363. AIR 1957 SC 381.
Sec. 34 Of Offences affecting the Human Body 1051

(35) This section deals with a special case of enhanced punishment for a particular type of
abetment of murder. AIR 1947 Cal 35.
(36) The section provides for the punishment of a specific offence and is not intended as an
indirect method of punishing person who are suspected but not proved to have committed murder. AIR
1937 Cal 578.
(37) Murder and Kidnapping—The two offences are co-extensive. There can be no conviction for
both the offences in the same trial—If abduction is followed by murder no charge can be framed for
abduction. Murder and its abetment—Ingredients of mere taking away of the victiin from his house
without any overt act animus in the form of any hostile attitude or initial intention to kill will not
justify conviction for such offences—The theory of last seen must carry along with it a high degree of
probability excluding all other theories save and except the hypothesis or the guilt of the accused.
Criminal Trial—Theories of both guilt and innocence—In the face Of two theories, one against the
accused and the other favouring them, the one that favours the accused must be accepted (Ref 42 DLR
118). JOBLD 179.
(38) A number , of criminal eases pending between the parties on the day of occurrence eye-
witnesses were sitting in the hut and discussing the case but in the ejahar the eye-witness PW 2 stated
that he had brought PW 4 for the talk while he had been returning from the bazar, he omitted this part
of the story while deposing in Court. Inconsistent statements in the evidence of two eye-witness has
exposed the utter improbability of the prosecution case. The only reason for the murder as attributed by
the PWs. 2 & 4 is that he came to rescue PW 4 and offered resistance to the abduction of PW 4. The
defence evidence of PW 4. and his Bhaira is not worthy of credit. The defence case appears to be more
probable as it fits in human ihanure and conduct and as such appellants are entitled to acquittal as a
matter of right in the facts and circumstances of the case. 10 BCR 45 AD.
(39) A clear case of benefit of doubt emerged in favour of the accused—Dead bodies were not
proved—No disinterested witness examined. There is direct, positive and impregnable evidence that
the accused persons along with others tied the deceased Khijir with a rope, assaulted and dragged him
all the way to the ditch after which his whereabouts were not known. The accused cannot be acquitted,
straight acquittal caused gross miscarriage ofjustice. The respondents are convicted udder section 364
of Penal code (Ref 39 DLR 166 AD) 7 BCR 253 AD.
(40) Prima facie case against the accused persons on the basis of examination of 7 witnesses
through a judicial inquiry by a Magistrate to whom the case was sent by the SDM after examination of
the complainant. No exception can be taken to this; The observation by the High Court Division is
unwarranted, no interferenôe is called for. The accused will face the trial and it will be decided on
evidence. 7BCR 168 A D.. . . .
(41) If cognizance of a case had not been taken when the law changing the forum of trial' come. into
force. Mere fact that FIR had been lodged or charge-sheet has been submitted before the change of
forum will not make the case triable under the repealed law. 38 DLR 86
(42) Special Tribunal has no jurisdiction to try the accused petitioners under section 364 of Penal
Code and any attempt to continue to try petitioners is an abuse of the process of the court. 5 BCR 17.
(43) The prosecution obviously was anxious to suppress the FIR from the court. It seems probable
that the prosecution has made a substantial departure from the FIR story and has introduced a fresh set
of witnesses who were not named in the FIR. Accused acquitted. 2 BCR 230.
(44) No scope for a under section 364 of the Penal Code in case of abduction followed by murder.
Abduction should be charged either with murder or with abetment of murder. Abducted person when
found murdered trial should be under section 302/109. A fugitive from justice is not entitled to any
protection of the court. I BCR 13.
1052 Penal Code Sec. 364
• 2. "Kidnaps."—(l) If a person who is not a minor as defined in S. 361 ante is conveyed from
one part of the country to another it is not "kidnapping" within the meaning of Section 360 or 361,
but it may amount to abduction of the person if he is induced to go from one place to another within
the country by deceitful means. (1932) 33 CrILJ 514 (Oudh).
3. "Abducts."—( 1) Where a perosn is charged with abduction by deceitful means in order to
murder, it is not enough for the prosecution merely to prove certain circumstances under which the
abduôted person was induced to go, nor even to prove a mere misrepresentation, The prosecution must
be proved not only that there was a misrepresentation, but that the particular misrepresentation was the
result of a plan to murder and that it was one by which the abducted person was himself deceived and
was induced to go. AIR. 1949 Dacca 21.
(3) Where the only evidence is that the accused accompanied the boy alleged to be abducted and
that the boy was subsequently found to have been murdered there js no legal evidence that the boy was
abducted much less that the object of abduction was to get him murdered. AIR 1939 Mad 593.
4. "In order that."—.-.M There must therefore be an intention on the part of the offender either to
murder or to have the kidnapped or abducted person murdered, or to dispose of or to have him
disposed of with the knowledge that such disposal will put him in danger of being murdered. AIR
1963 SC 1074.
(2) The intention to the accused at the time of kidnapping of abduction is a matter of inference
from the acts done at the time of kidnapping or abduction or thereafter. AIR 1979 SC 1410.
(A ) Illustration.— ( 1°) A abducts a boy and sends repeated letters to the father of the boy
demanding ransom and threatening murder of the boy if the ransom is not paid. A commits an offence
under this section. AIR 1957 SC 381.
(2) A and B were proved to have left together and were last seen together, A alone returned
without B, B was not seen or heard of thereafter. It was held that this was not sufficient to show that
A abducted B in order that he might be murdered, there being many possible explanations of B's
disappearance. AIR 1927 Lah 658.
(3) A was abducted by B and beaten with his hands tied behind his back. A was found shot dead
next morning. It was held that the object of abduction was to murder. AIR 1954 Hyd 88.
(4) A was abducted by B and otheis. They had weapons with them at the time of abduction. A
was found murdered the next day, Held, that taking into consideration the previous history of the
quarrels between the parties, the circumstances raised a presumption that B and others abducted A with
the intention of murdering him A IR 1933 Lah I035
(5) A was assaulted by B and his body was dragged towards a certain place. There was no evidence
to show whether A was dead or alive at the time he was dragged. The assault was made before
abduction. There was possibility that A might have been dragged to another place for concealment of
his body held that B could not be convicted under this section. A IR 1936 Oudh 44.
(6) Accused acquitted under Ss. 302 and 364 but convicted under S. 201—Approver's evidence
treated as unreliable in regard to the former two offences, but as reliable for the purpose of the
conviction under section 201 as it was corroborated by the evidence as to the discovery of the dead
body at the intance of the. accused. AIR 1979 SC 1280.
(7) Charge under S. 148 related to murder taking place at place other than place of abduction
subsequent to alleged abduction of deceased and did not relate to abduction—Common object as
stated, would not be available for sustaining conviction for abduction. AIR 1984 SC 911.
Sec. 364A Of Offences affecting the Human Body 1053
S. Charge.—( 1) When the case for the prosecution is that the person abducted has been murdered
by the abductor or other person there can be no scope for a charge under S. 364. The abductor should
be charged with murder pure and simple (S. 302) or with abetment of murder (S. 302/109). However,
in such cases where the evidence to establish the charge of murder is weak or inconclusive, the
prosecution is prone to adopt this device of adding or preferring a charge under. S. 364 in the hope that
a jury which may hesitate to find the accused guilty of murder on such slender evidence, may be
induced to find against him on the lesser charge, but such procedure is unfair and improper and should
not be adopted. A IR 1953 Hyd 249. . .
(2) Where the charge described the offence as falling under the first part of the section and in the
sumniingup to the jury the Judge repeatedly explained the offence as falling under the second part and
also concluded his charge by referring to both parts of the section it was held that the conviction was
bad for want of proper charge. AIR 1949 Dacca 2L
(3) The charge should run as follows:
1, (name and office of the Judge) hereby charge you (name of the accused) as follows:,
That you, on or about the—day of—at—kidnapped (or abducted) X in order that the said X might
be murdered (or might be so disposed of as to be put in danger of being murdered), and thereby.
committed an offence punishable under section 364 of the Penal Code and within my cognizance..
And Ihereby direct that you be tried by this court on the said charge.
6. Sentence.—( 1) Where two persons are equally liable for the offence under the section there is
no justification for awarding different sentences to the accused. AIR 1957 SC 381.
7. Procedure.-L (I) Where one of the offences complained of in the case was under S. 364 triable
exclusively by Court of Session, the Magistrate's action summoning the accused, after recording the
statement of the complainant only was quashed. S. 202(2) of Criminal P. C. being mandatory, the
Magistrate ought to examine on oath all the witnesses of the complainant before summoning the
accused if the offence complained of was exclusively triable by a Court of Session. 1982 Cr1LJ 1270.
(2) Cognizable—Warrant----Not bailable—Not compoundable—Triable by Court of Session.
8. Practice.—Evidence—(A) Prove: (I) That there was the kidnapping by the accused.
(2) That he so kidnapping the person in question in order (a) that such person might be murdered;
or (b) that such person might be so disposed of as to be put in danger of being murdered.
(B) Prove for abduction—
(1) That the accused compelled the person to go from the place in question.
(2) That he so compelled that person by force or that he induced that person to do so by deceitful
means.
(3) That he so abducted the person in question in order that (a) such person might be murdered, or
(b) such person might be so disposed of as to be put in danger of being murdered.

Section 364A
' 7 [364A. Kidnapping or abducting a person under the age of ten.—Whoever
kidnaps or abducts any person under the age of ten, in order that such person may be

17. Section 363A was inserted by the Criminal Law Amendment Act, 1958 (Act XXXIV of 1958), s. 2.
1054 Penal Code Sec. 365

murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may
be so disposed of as to be put in danger of being murdered or subjected to grievous
hurt, or slavery, or to the lust of any person, shall be punished with death or with
l [imprisonthent] for life or with rigorous imprisonment for a term which may extend
to fourteen years, and shall not be less than seven years.]
Cases and Materials
1. Scope.—( 1) Evidence, appreciation of—Incident a broad day light occurrence, seen by natural
witnesses and further supported by medical evidence—Victim a minor girl of 6 and possibility that
father of girl would give consent to infamy of his infant daughter to oblige landlord allegedly.
interested to eject accused, ruled out—conviction and sentence maintained in circumstances. Fazal Din
Vs. The State, 1983 PCL.J 932. ..
(2) This section may be read with sections 361 and 362. The object of the section is to punish
child lifters. It is difficult to comprehend truly in itsentirety the continuous mental torture and the
agony of the poor pareilts whose minor girl had been abducted or kidnapped and they had no clue of her
for a long period. Every moment of their life must have been miserable and the deterrent death sentence.
is the only sentence which is called for in the particular circumstances of the case and. for curbing such
social evils for dealing with such type of criminals (PLD 1979 Lah 695). Kidnapping may be
committed without assault or wrongful restraint of confinement. A child, for example, who is decoyed
from its guardian, who soon forgets his home, and who consents to remain with the kidnapper, cannot
be said to have been assaulted or restrained. The age of the child must be proved by the prosecution.
2. Practice.—Evidence--Prove: (I) The person in question is under the age often years.
(2) That such person was in the keeping of a lawful guardian.
(3) That the accused took such person out of such keeping.
(4) That the accused did it with the intention to commit murder or subject to grievous hurt or
slavery or to lust of any person or.may be so disposed of as to put in danger of being murdered or
subject to grievous hurt, or to salvery, or to the lust of any person.
3. Procedure.—Cognizable--Warrant—Not bailable—Not compoundable—Triable by Court of
Session.
4. Charge.-The chargé should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused). as follows:
That you, on or about the-day of—at--kidnapped (or abducted) X, a person under the age of ten,
in order that the said X might be murdered (or subjected to grievous hurt, or to slavery, or to the lust
of * any person) or might be so disposed of as to be put in danger of being murdered (or subjected to
grievous hurt, or to slavery or to the lust of any person) and thereby committed an offence punishable
under section 364A of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 365
wrongfully to confine
365. Kidnapping or abducting with intent secretly and
person.—Whoever kidnaps or abducts any person with intent to cause that person to
Sec. 365 Of Offences affecting the Human Body 1055

be secretly and wrongfully confined, shall be punished with imprisonment of either

description for a term which may extend to seven years, and shall also be liable to fine.
Cases and Materials : Synopsis
1. Scope. 5. Sentence.
2. Intention. 6. Procedure.
3. Evidence and proof. 7. Practice.
4. Charge and conviction. 8. Charge.
1. Scope^ ( 1) The essence of an offence under section 365 being also kidnapping, an accused
who cannot be convicted under section 363 cannot be convicted under this section (1957 Cr/Li
688).This section deals with kidnapping or abduction of a person with the intention of causing such
person to be secretly and wrongfully confined. Secrecy in such cases is part of the plan and no special
penalty is attracted by reason of kidnapping or abduction having been done secretly. The intention of
the abductor while abducting a person can be inferred from his subsequent conduct (37 CrLf 827).
This girl was of easy virtie and although, she was set on the path of depravity mainly by the accused
she perhaps was not adverse to what was happening to her. It was held that, in these circumstances
heavy sentence was not called for (AIR 1970 SC 658).
(2) The Tribunal has committed gross illegality by taking cognizance and framing charge thereof
under sections 365/342 and 387 as sections 365 and 342 of the Penal Code were never in the schedule
of the Special Powers Act and the trial of joinder of scheduled offence non-scheduled offence vitiated
the trial as a whole. Mokim alias Md. Mokim Vs. State(Criminal) 55 DLR 81.
(3) When a kidnapped boy has been sold by the kidnapper to a third person, the latter is not guilty
of kidnapping. 12 DLR 393.
(4) A mere abduction, as such and by itself, is not an offence. 1971 Cr/Li 1222.
(5) The gravamen of the offence under this section is the intention to keep the -'wrongful
confinement, a secret. Where there is no secrecy about the wrongful confinement, this section will not
apply. AIR 1925 Lah 614.
2. Intention.-.—(l) The intention referred to in the section must exist at the time of the
kidnapping or abduction AIR 1914 Cal 589. •
(2) The intention can be inferred from the subsequent acts and conduct of the kidnapper or
abductor. AIR 1968 All 170. ' .....
(3) An offence under this section is clearly made out when there is a finding that the woman in
question had been forcibly dragged out of her Muse and was kept locked up in a room in the house
belonging to the accused. The fact that the house was in the 'abadi' will not take the act out Of the
mischief of this section. AIR 1954 All 51.
3. Evidence and proof.—(1) The failure by the abducted person to identify his kidnapper is of no
great importance, if there is sufficient independent evidence to establish the identity of the accused as
the person who kidnapped the person. AIR 1967 All 528.
(2) A, the victim of the abduction, left the house with B, of her own accord. Subsequently, other
accused persons five in number, forcibly took her away in a jeep when she was on her way back home.
In the absence of any evidence of conspiracy between B and the other accused, it was held that B was
not guilty of kidnapping though his conduct may be open to suspicion It was also held that the wife
1056 Penal Code Sec. 365

of one of the accused who was keeping the child of the victim on her lap, while the victim was being
forcibly taken away in the jeep was guilty of an offence under this section read with S. 149. The driver
of the jeep who had knowledge of the purpose for which the jeep was being used was also held guilty
of the offence under this section read with S. 149. AIR 1968 All 170.
4. Charge and conviction.-( 1) The essence of an offence under this section is also kidnapping.
Therefore, when the accused cannot be convicted under S. 363, he cannot be convicted of an offence
under this section. 1957 CriL.J 688.
(2) An offence under this section is, within the meaning of S. 222; Criminal P.C., a minor
offence as compared with the offences under Ss. 366 and 376. The High Court can convict an accused
of an offence under this section without a specific charge therefore, when the accused had been charged
and tried for an offence under Sec. 366 or 376. AIR 1954 MadhB 97.
• 5. Senténce.-( 1) The, accused abducted a 'certain woman merely in order to put pressure upon her
friends to restore a young girl whom they had abducted. The woman was let off as soon as the girl was
restored. No harm wa,5 also done to the woman. Under the above circumstances, it was held that .a
heavy sentence of imprisonment ought not to be imposed on the accused. AIR 1916 Lah 269.
(2) Where the real offence is rape and abduction is an aggravating circumstance, separate sentences
under both the sections should not be given. AIR 1926 Lah 114.
(3) The fact that the wife acted under the influence of her husband while helping her husband in
committing an offence under this section, cannot affect her guilt but may be taken into consideration in
passing the sentence on her. AIR '1968 All 170.
(4) Abduction for extortion-Sentence--No extenuating circumstances-Accused taking active
part' in abducting and torturing victim and demanding ransom—No ground exists for reducing
• sentence. A IR 1979SC1493. •.
• ". (5)' Mitigating factor—Existence of illicit relationship between accused and abducted girl over long
•eriod—Senence reduced. AIR 1970 SC 658. S

• 6. Procedure.-( 1) Where in a previous trial for assault, the accused could have also been charged
for an offence under 'this' section, but were not so charged and tried, it was held that a subsequent trial
• on a, charge under this section was not barred by S. 300, Criminal P.C. (1906) 3 C'riLJ 93 (411).
(2) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Metropolitan Magistrate
or Magistrate of the first class.
7. Practice.—Evidence—Prove: (1) That there was kidnapping by the accused or abduction
by him. '•
'(2) That the accused thereby intended that the person kidnapped or abducted should be kept in
wrongful or,secret confinement. -
8. Charge.—'-'The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows'. .
That you on or about the—day of—at—kidnapped (or abducted) one X with intention to cause
th said'X to be secretly and wrongfully confined, and thereby committed an offence punishable under
section 365 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
Sim..366 Of Offences affecting the Human Body 1057

Section 366
• 366. Kidnapping, abducting or inducing woman to compel her marriage,
etc—Whoever kidnaps or abducts any woman with intent that she, may be
compelled, or knowing it to be likely that she will be d6mpelled, to marry any person
against her will, or in order that she may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be fOrced or seduced toillicit.intercourse, shall be
punished with imprisonment of either description for a term which may extend to ten
years, and shall also be, liable to fine; 1 8 [and whoever,, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with intent that she may be, or
knowing that it is likely that she will be, forced or seduced to illicit intercourse with
another person,, shall also be punishable as aforesaid]. . .. .
Cases and Materials : Synopsis . ..
1. Scope of the section. 12. Persons who may be guilty of kidnapping or
2.. There must be k(nappIng or abduction. ebduction. .
13. Burden of proof and appreciation of evidence.
3. Intention.
4. Knowledge. 14. Uncorroborated testimony of the prosecutrii
5.. "Compelled." 15. Age of the prosecutrix.
6. "W oman." 16.. Charge and conviction.
7, , "Marry agansV, her will," 17. Procedure.
8. Forced. . 18. Place of trial.
9. "Seduced to Illicit intercourse." 19. Sentence.
10. Section 79 and this section. 20. Practice.
11. A betv!eq of abduction. 21. Charge.
1 Scope.—(1J This section may be read along with the Nan 0 Shishu Niijatan Am (= Women
and Children Repression Act), 2000. This Act has been enacted to provide for necessary provisions in
order to suppress very strictly the repressive offences against women and children This section,
however, deals with the kidnapping or abduction of a woman with the intention of forcibly marrying
her or forcing or seducing her to illicit intercourse. If the girl was sixteen or over, she could only be
abducted and not kidnapped, but if she was under sixteen she could be kidnapped as well as abducted
if the taking was by force or the takingof enticing was by deceitful means (57 Cal 1074). The word
'abduction' implies that the woman is led away or is induced to stray away from the path of rectitude.
The act of seduction is done when the girl is drawn away from the virtuous course and then madq to
yield her chasity. Seduction implies surrender of her body by a woman who is otherwise reluctant or
unwilling,: to submit herself to illicit intercourse in consequence of persuasion or flattery,
blandishments or whether such surrender is for the first time or is preceded by similar. surrender On
earlier occasions. But where ' a woman offers herself for intercourse for money—not casually but in the
course of her profession .as prostitute—there are no scruples not reluctance to be overcome, and.
surrender by her is not seduction within the meaning of the Code. When young girls of marriageable
age are abducted, the initial presumption is that the abduction was with the intention' or having sexual
w
18. Inserted by the Indian Penal Code (Amendment) Act, .1923 (Act XX of 19230, S. 2.
1. 058 Penal Code. Sec. 366
intercourse with them either forcibly or with their consent after seduction. Where the accused pursued a
girl for a number of,months in order to arouse in her feelings of 'love' for him. When they had become
sufficiently intimate with each other he impressed on her mind that he could not live without her. He
even went to the length of suggestion that Oven if.they could escape for a day they could accomplish
their object.,. After the girl left her father's place as a result of persuasion the accused took her from
place to place for six days during which they were found to have been sharing the same bed. It was
I
held that the intention of the accused in removing the girl out of the keeping of her lawful guardian
was to seduce her to illicit intercourse.
Every act done "against the -will" of a person, no doubt, is done "without his consent", but an act
done "without The consent" of a person is not necessarily "against the whIch expression imports
that the act is done in spite of the opposition of a person to the doing of it. Having regard to the
expression "against the will" and "without the consent" of a person and the fact that in section 366
Penã! Code it is specially provided that the woman may be compelled, or knowing it to be likeiyhat
she will be compelled, to marry "against,her will." The :FOViaions of section 90 Penal Code are not to
be applied to-section 366 Penal Code (AIR 1933 Rang 98). Where a girl had gone out of her father's
house and went with the accused willingly and without anybody having exercised any compulsion on
her no charge . under-section 366 can be made out against the accused (A IR 194A 710). An offence
of kidnapping is not a continuing offence (24 CriLJ 921) Even though the offence of abduction is a
continuing one, any person joining the accused at .a subsequent stage cannot be held t' o be equally
guilty of the offence under section 366 if he was not associated with him from the very beginning
unless a charge of conspiracy is established against him (52 GriLl 227). Kidnapping and abdUction are
two distinct offences and their ingredients are entirely different. In kidnapping consent of the person
enticed is immaterial. In 'abduction' consent of the person removed, if freely and voluntarily given,
• condones it. In 'kidnapping' the intent ' of the offender is irrelevart, but in 'abduction it is an all
important factor. 'Kidnapping from lawful guardianship is not a continuing offence for as soon as the
minor is removed out of his or her guardianship the offence is completed, bt4t the person is being
abducted not, only when he is first taken from , any place but also . hen he is removed from one palace
to another, Intention is the main ingredient of an offence under section 366 and if the intention is
established then the offence is completed. It is not necessary for the prosecution to prove that sexual
intercourse has taken place. In a case under section 366, it is the duty of the prosecution to prove that
abduction took place with the requisite intention. The essence of the section, is compulsion. The object
of the section is "to uphold the lawful authority of parents or guardian over their wards, tthrow a ring
of protection round the girls themselves and to penalise sexual commerce on the part of the persons
who corrupt or attempt to corrupt the morals of minor girls by taliug improper advantage of their
youth and inexperience (A IR 1967 A ll 158) ". On a charge under section 366, the question of the age
of the woman abducted is material inasmuch as she was less than sixteen years of age, her consent to
the act referred to in section 366 is in law immaterial. The onus of proving the girt's age is on the
• prOsecution and no conviction can be sustained if the' evidence is inconclusive (AIR 1937,411 353).
Birth and school entry certificate are suspicious, and medical evidence and ossification tests are also
unconvincing, the prosecution version of the girl being below 16 years, .was disbelieved (1968 ,PCriLJ
529). Where the only evidence as to age is the evidence of the girl herself, it would be wrong for the
court to rely on the evidence (PLD 1964 Dac 255). In a case under section 366 Penal Code the
evidence of the abducted woman is not doubt important but it has to be received with caution. The
tuurt has to consider the evidence in the light of circumstances disclosed in evidence and the . inherent
See,, 366 Of Offences affecting the Human Body 1059

probability or improbability of the evidence lead to judge whether the story of the woman is true.r
otherwise. The kecond limb of the section. deals With a few. of the methods of compulsion'
wamoly
Abuse of authority or criminal intimidation -or any other compulsion employed by an accused or
inducting any woman to go from any place v'ith intent that she may be, or knowing that she is likely
to be forced or seduced to, illicit intercourse and, that the offenee is made punishable, the puhishinent
being the same as for the offence in the first limb. In order to convict a person under the second limb it
is necessary to show that some method of compulsion was employed by theaccused.
(2) Charge under section 366 when woman above the age of I6years is abducted. When the age of
the girl is above 16 years and the allegation is that she 'might be compelled to marry against her 'will,
the accused ought to have been charged under section 366 for abducting her with intent that smay
be compelled to, or knowing it to be likely thaf she would be compelled, to marry against bet-MI!.
Ear A 1jVs. Srdte (1959) 11 DLR 249, 59 PLD (Dac) 750. -
(3) Intention to commit the offence under the section will be inferred from human naturebèing
What it is—Burden to prove the coiltrary is an the accused.
Siddique Vs. State (1959) '11 DLR 321.,
(4) Corroboration of the evidence of the prosecutrlb—The rule that corroboration is required of the -
evidence of the prosecutri, in a case of a sexual . 'offence like rape is not rigidly applicable in case of a
merabductioncharge which is not a sexual ofince. Shah Alam Vs. Crown ('1958) 10 DLR 2.P:
(5) It is not necessary under section 366 that the girl: should be kidnapped with the intent of
contracting a valid marriage. If the girt is kidnapped with the intention of compel ling her to go
through a form of marriage whether, vajid or not, case would comel within the mischief of the section.
A dam A ll Vs. Crown (1950) 2 DLR 374.
(6) The essential question is intent or knowledge.' In a charge under section 366 the essential
question is whether the accused had the particular intent or knowledge mentioned in the section. The
character, conduct and , the capacity or incapacity of the woman to consent to marry or have illicit
intercourse must, indeed, be taken into account in determining whether the accused had this Intent or
knowledge, but these are not fundamentals of an offence under section 366. A dam A ll V s. crown
(1950) 2 DLR 374.
(7) Though the Muslim law confers guardianship of marriage -of a minor girl on the paternal
cousin in certain circumstances, it excludes him from the guardianship, of her person for the reason that
he is not within the prohibited , degree. The -position is this, that though paternal cousin has
right to contract a marriage he has no right to kidnap the minor frni the custody of the guardian
of the' person or , to compel her to ratify and accept the marriage contracted by him.
A dam A ll Vs.
Crown (1950) 2 DLR-374.
(8)Charge must' state the guardian from whose custody the minor was kidnapped. The appellant
were charged under section 366, with kidnapping one R alleged to be a female under the age of 16 but
the charge itself did not state from whose lawful guardianship R was kidnapped. Held: No conviction
on the charge of kidnapping could be sustained. Sanfosh Kumar Vs. Crown (1950) 2 DLR 23.
(9) When the charge, of abduction recited that the accused abducted R. with the intention that she
might be compelled to marry someperson against her will, but R definitely stated that the marriage
was not One to which she was compelled or forced against her free will. Held: The prosecution had not
been able to show that R was abducted with the intention that she might be compelled or that accused
knew it to be likely that R will be compelled to marry some person against her will. Santosh Kumar.
Vs. Crown (1950) 2 DLR
I utu Penal COde ' c. 36.
(10) The charge says: "I leave the eniire matter for consideration as towhetherypu would accept
the evidence f identification and recognition of3 accused persons by Jahura You can base your
conviction on the sOle testimony, of a signal witness if. you fully accept her evidence as true. But I
must warn you, gentlemen, that it is seldom safe to accept the uncorronborated testimony of a solitary
witness in the absence of corroboration in material particulars "Held This is a proper charge Hthibur
.Raknan V s. Crown (1954)6DLR36L . . . . . :-•
(1 l.).Abduction charge . fails when -circumstances ' militate against the assumption of guilt.--.The
accusetbeing charged under section 366 P.C. for abducting the wife of the complainant, he (the
accused) producing , certified -copy if the Kanibinnania to show that the wife had divorced her husband
(compinant) in exercise of the right of talak-e-tawfi.given to her by the husband as embodied in the
kabirmania The genuineness of the certified copy of the kabiunama was not challenged The wife P
W. .1 . asserted before the . Court that she had exercised her -right. of talak-e-tawfiz. Held: The
circumstances as disclosed in the case raise a doubt as to the subsistence of the mamage between the
complainant: and his former wife and the benefit of such a doubt ought to have been . givOli. to the
defence Golan? Kder V s State (1972) 24 DLR 110
(12) If it is found that the woman alleged to have been kidnapped or abducted is a consenting
party and no act was committed by the accused against her will, then the accused cannot be brought
within -the' mischief of section 366 of The Penal Code. NurulJslam V s. State V s. Ski/a Prava Shah,
(1971) 23 DLR;126. . . . . . .
(13) In a case under section 366 P.C. if no direct evidence can be found as to-the actual intention
of the abductor of kidnapper the said intention shall have to be inferred from the circumstances of the
i,articular case. .Nui41s1am Vs. State (1971) 23 DLR 126.
(14) Evidence of the woman or the girl raped by force and against.her will cannot be rejected on
the ground of being an accomplice, as in. such cases she is victim . Of outrage. Abdul -Quddus Vs. State,
(1983) 35 DLR 373. . . .
• (15). In sexual offence where the woman is grown up; corroboration of her statement is ordinarily
required but such corroboration is insisted upon where the victim- is a niiñor. A bdul Quddus Vs. State,
(1983) 35 DLR 373.
(16) joint trial wider sections 366 and 368. It could not be disputed that abduction is a continuing
offence, as kidnapping is The-offence of concealment in termsof section 368 P.C. of an abducted or
kidnapped person would thus fail to be committed in course of the same transaction with the offence of
abduction or kidnapping. Therefore, joint trial of 3 persons one under section 366 and 2 under section
368 is not illegal. Section 366 P. Code speaks of an intention to many and not that intention- must be
proved to have been accrued into effect. A yaz-ullah'Vs. State 0971) 23 DLR 76
(17) Abduction or kidnapping of girl below 16 years-Intention necessary to constitute the
offence. A nanda Vs. Stale 41 DLR 533.
(18) Refusal of prayer for A d interim stay while issuing Rule in criminal revision, when not
proper—The appellant clearly stated before the High Court Division while obtaining the Rule that she -
gave birth a child just five months ago and it would be injurious to her health as also to the baby if
both were to be placed under any type of custody at that critical stage—High Court Division should
have appreciated that in such circumstances operation of the impugned oraer would have spelt disaster
to both the baby and the mother—High Court Division's exercise of discretion not proper. Mrs. Azima
Begum Vs. Md. Y usuf Khan & Ors. 43 DLR (A D) 53 =BCR 1990 A D 285 = 12 $LD (AD) 183.
Sec. 366 Of Offences. affecting the Human Body 1061

(19) Kidhapping of mjn.or girl— .Question of the custody, of the minor kidnapped giEl—The birth
of a newly-born child by the kidnapped minor girl—Whether the birth of the body changeif the
ph"pier l of the ease—Whether the appellant along with her newly born child should be ordered at the
post natal critical stage to remain in judicial custody to the detriment of the health of the baby and the
appellant—The exercise ofjurisdiction in not granting ad-interim stay was not proper. 10 SCR 285 A D
(20) Determination of the age of a girl whether she is minor or not within the limit of the age
mentioned insection 361 of the Penal Code Two doctors who examined the girl gave two different
ages a to her age In such a case the matter should be reported to a third doctor for determination of
her age in the meanwhile it is ordered that the girl may stay where she likes 30 DLR 187
(21) Joint trial under sections 366 and 368 is not illegal Section 366 Penal Code speaks of an
intention to marry and not that intention must be proved to have been camed r into effect 23 DLR 76
(2.2)e Physical examination for verification of girl's age can only be with her consent
Ascertainment of the age of girl, on a charge of kidnapping the question to be duly gone into upon due
consideration of all tacts and circumstances 15 DLR 272
(23) In a charge undersections 363 and 366, Penal Code, where the question of the girl's age is of
fundamental importance, the dispute about her age cannot be resolved satisfactorily upon thesole
verbal statement of the girl herself. 15 DLR 269. -
(24) Jurisdiction not vested in Magistrate to detain a person who is sui juris ( independent). 15
DLR 148. -
(25) 'Taking' not confined to actual physical taking but includes leaving.the guardian's protection
under persuasion. 15 DLR 18 WP. .
(26) Liberty of a subject cannot be interfered with except in accordance with law. The Petitioner
being major her movements cannot be restricted. 8 DLR 295.
- (27) To convict a person under the latter part.of S. 366, Penal Code, it is essential that he is found
to have practised some "criminal intimidation" or employed "any other method of compulsion." A IR
1950 Assam 37. -
(28) Intention or knowledge of the. particular description mentioned in this section is a necessary
ingredient of the offence under this section. AIR 1979 $C 1494,
(29) A mere kidnapping of an adult person of sound mind or a mere abduction of a person is not
as such and by itself an offence, but is an offence when done under the particular circumstances stated
in Ss. 364, 365, 366, 367 and 369, A IR 1979 SC 1494. -
• 2. There must be kidnapping or abduction.—(1) The first essential to be established for an
offence under this sction is that the accused kidnapped or abducted a woman. In the absence of'such
proof no offence uner this section is established: 1968 SCD 903.
(2) Where A abucts a person and at a subsequent stage A is joined by B, B cannot be said to
have abducted the per on. AIR 1951- Raj 33.
(3) Accused chaiged with offences under Ss. 366 and 376—Girl above 18 years. of age —No-
evidence to show that he had compelled the girl by force to go from her house with him or had for that
end put her under fear in any manner--Girl stating that he had given her allurements by telling her that
he. would give her good food etc.—Held it could not be a case of kidnapping but only be a case of
abduction, and when abduction had not been proved the offence under S. 366 could not be held to have
been made out 182 UP (Crz) C 17 (A ll). •• . -
• 1062 Penal Code Sec. 366

3. Intention.--4 1) The essential ingredient of an offence Under this section is that at the time of
cOmmitting thâ'offence The accused intended or know , ihat it' was 1 likely that the abducted or kidnapped
• woman might or would be come11ed-to marry a petonagàinst hr'wi1l or that she might or wötfld be
forced or seduced to illicit intercourse. 1980 Mad Li (Cri) 56
(2) The nitention of the accused at the time when he committed the aCt of ki'dnapp' ing or abduction
is the basis and the gravamen of the offence under this 'section.If the accused kidnapped or abducted
the woman with the necessary intent, the offence, is complete; whether or not the accused succeeded in
effecting his purpose; and even if, subsequently, the woman, in fact consented to the marriage or the
• illicit intercourse took place and thus the element of compulsion or seduction is removed. A IR 1933
Rang 98.
(3) If the accused pleads that he had any other intention than that .whiclj is . suggested by the nature
of the circumstances of the case, the burden lies upon 'him irnder S.. 106, Evidence Act, 'to prove that
intention. A IR 1938 Làh 474.
•(4) A.younggirl of 13 was held not to be Capable of entertaining an intention as set out in the
section. A IR 1916 Lah 352.
(5) Where marriage wasnot practicable between the abductor and the abducted woman, it was hpld
that the inteltióñ of the accused was to seduce the woman to illicit intercourse. AIR 1938 Cal 551.
(6) Ordinarily, when a body of persons is alleged to have abducted a girl with the intention of
compelling her to marry one of the abductors or a stranger it is 'reasonable to suppose that. the
• abductors, other than the abductor whom the girl was going to be compelled to many, woulct not have
the intention of seducing her to illicit intercourse. The subsequent conduct'of 'the accused in making
improper overtures does not necessarily'lead to the inference that he had the intention of seducing the
girl at the time of abduction. AIR 1951 Assam 95. .
4. Knowledge..-__(1) Knowledge on 'the part of the accused at the time Of abduction or kidnaping
that' the woman would be compelled to marry against :her will or that -she would be spduced or forced
to illicit intercourse is sufficient to constitute an offence under this section. (1953-54) 6 SauLR 329.
(2) The words 'she will be compelled to many a rson against her will" are of wide amplitude
When a young girl. of 13 is being sent to an' unknown place for the purpose of being sold, it is not an
unlikely expectation in the minds of those who are conniving at the affair that there was a possibility'
of her being married against her will or of her being subjected to forcible illicit intercourse. AIR 1964
Pun] 35 7. •.• ' ' . • •• ..
(3) Married girl of 14 years—Accused marrying girl to another person and taking money from him
as bride price—Girl's mother consenting party—Held that the accused were guilty of offences under
Ss. 420 and 366. A IR 1943 Pat 212. .
S. "Compelled".-_.( 1) Where a girl is imprisoned and is given no- food or drink; and it
completely under the. grip of A, A's repeated requeststo the girl that she should marry him amount to
trying to compel' her to many against her will.' A IR 1951 Orissa 142.
6. "Wornan".—(I) Word 'woman' would include minor female. 1878 PunRe (GrV 'No. 8, p.19.
7. "Marry against her will"^ ( 1) Where A takes a girl below 18 years of age from the keeping
of her lawful guardian without the consent of such guardian and the girl is a consenting party to the
marriage for which she is to -taken A's act will be an offence of kidnapping from lawful guardianship
under S. 361 of the code inasmuch as the consent of the kidnapped minor is no defence to a charge of
• $N. • Of Offences affecting the Human Body 1063

an offence under S. 361. The offender will not be guilty under this section but will be guilty' only
under S. 363. A IR 1933 Rang 98. .
(2) The word "many" in this section means, as in S. 494, going through a form of marriage
whether the same is, in fact, valid or-not. AIR 1967 Mad 409.
8. "Forced".—(l) The word 'forced' as used in this section is used in its ordinary dictionary
meaning and would include forced. by stress of circwnstances. AIR 1930 Ca! 209:
9. "Seduced to illicit lntercourse".—(1') A person 'taking a minor girl between the ages of 12 ani.
18, even with her consent, from the custody of the guardian but without the consent of such guardiai,
will be guilty' of kidnapping. If suth kidnapping is 'done with the objbct of seducing her to il'lièit
mtercourse it will be an offence under this section 1968 SCD 435
(2) No compulsion. is necessary to be proved in a case where a person takes a-minor girl from the
custody of her guardian but without the consent of such guardian. AIR 1964 .Punj 83.
(3) The word 'seduced' should not be given the narrow meaning of inducing the girl or the woman
to part with her virtue for the first time. Even though the girl may have, by.the first act of seduction,
suuenderdTher virtue, subsequent acts ofseduction for further acts of.illicit intercourse will also come
within the meaning of the Word 'seduction'. A IR 161 Born 282. •
• •' '
(4) 'Th& words 'illicit intercourse' used in this section do" not necessarily mean the, sexual.
intercourse of A man with a married woman (who is not his wife) but only mean the sexual intercóui'e
between a man and "it woman who are not husband and'wife whether the w6man is another maiis .vik
or not is not'material. A IR 1952 Tray-Co 379. .,
(5) It s not necessary to bring the guilt home to the accused under this section that there must be
definite evidence that all th accused taking part in the abduction had intercourse with the woman
abducted. AIR 1952 Trav-Có.3 79.
(6) Where in a case the accused claimed that he was married to the girl alleged to be kidnapped and
where it had been adrniüéd by the girl that, there had been sexual intercourse betwen theni, It'was
held thai the mere cohabitation affords an inference of greater or less strength that a marriage has been
solemnised between them, that the law presunies ' agaitist vice 'and immorality and that it was the duty"
of the prosecution to prove the negative AIR 1934 Sind 119. .
(7) The term 'seduction' implies that the woman is led away or is induced to stray away from the
virtuous course and then made to yield her chastity. But where the deviation on the part of the girt i
the result of the promptings of her own inclinations and she herself permits- or encourages improper
sexual relations as opportunity comes her way, without the aid of any artifice or -wile on the part of the
man, there is no seduction. AIR 1979 SC 1276. .
(8)'Though the words 'seduction' and 'illicit intercourse' are distinct, more emphasis should be
laid on the. wor4s 'illicit intercourse' rather than on the word 'seduction'. Any act on the part of a
person to lead a woman astray from the path' Of'rectitude is seduction and if it is followed by
intercourse, it will be seduction for illicit intercourse. A IR 1955 A ndhra 59.
10. Section 79 and. this section.—( 1) A mother-in-law cannot be said to be justified in law, in
abducting'her widowed daughter-in-law and compelling her to marry against her will and is not -.
protected by S. 79 of the Code. AIR 1929 Lah 713. .
.11. 4e*neui of anduction.—( 1) A. woman cannot. be punished for abetting her own abduction.
: 1.875 PunRe (Cr) 14, page 18. .
1064 . . Penal Code Sec 366

• (2) The removal of an abducted person to several places by the abductor constitutes an offence at
every such place and whoever assists him at any stage would be guilty of abetment. 1962 (2) ..Cr1LJ
712 '('Punj,). . . . ,. .. ....
12. Persons who may be guilty of kidnapping or adduction.—(l) Where A abducts a girl, and
'passes her on to B, who takes her to C foribly and C marries her without her consent, B can be
convicted under this section as the abduction continues when B takes the girl from A. But c cannot be
convicted under S 366 read with S 34 in the absence of any evidence to show a prior consent between
B and C 1968 Pat LJR (SC) 644
(2) Wherein a case for offences under Sections 363 and 366 ithad not, been found as a . fact that
either the kidnapped girl was subjected to rape or she had received any injuries on any part of the body
in an attempted rape and there was no evidence to indicate that the object behind the kidnapping was to
marry the girl against her will or against the will of her guardian or to subject her to sexual intercourse
contrary to law it was held that the accused should be convicted underS. 363 and not under S. 366.'
19$3'A llW C 625. . . .. . .,
(3) The 'circumstance that proseutrix aged about 27 Or 30 years--did not raise alarm . whenthe
accused aged 19 asked her to accompany them under a threat as alleged and she sustained no injuries in
the act of sexual intereburse was held to indicate that she was a willing party to the act and was not
abducted for illicit sexual intercourse. The accused were acquitted of offence u/s. 366/376, P.C. 1983
Rajcriç212.
(4) Where two, sisters (one major and one minor) walked out of the lawfiñ guardianship of their
father on their own accord and thereafter eloped with the accused who committed rape with their,
consent it was held that the charges under Ss. 363 and 366 were not proved beyond doubt and the
accused were entitled to be acquitted of the said charges There was no 'taking' in the legal sense by
the accused of the girls from the lawful guardianship of their father. 1983 A ll Cr1LR 629 (P&!). .
13. Burden of proof and appreciation of evidence.—(I) The burden of proof is on the
prosecution to prove the existence of all the elements necessary to establish the offence Thus, in a
charge of kidnapping a minor, it is for the prosecution to prove that the minor, if a girl, was below 18
year of age or,in the case of a minor boy that he wai under 16 years of age and that the guardian did
not consent to her or his removal. AIR 1970 SC 1029. , ..., . .
(2) The question of the age of the prosecutix under this ,sectionan4 $.376 is always important.
A IR 1970 SC 1029.
(3) It is not necessary for the prosecution to prove that the woman was compelled to leave not
only her house, but was compelled to go from place to place. A IR 1926 Cal 320. •'
(A ) Proof of age.— (1) Medical evidence on age cannot be of mathematical precisiOn and it .is all
the more risky to convict somebody solely on the basis .of medical evidence which is likely to vary. If,
of course,, there is a yawning gap, say something between 13 and above 18, medical evidence can be
relied upon to say that it is not beyond 18. But in borderline cases, it would not be proper' to solely
rely on the medical evidenc4 regarding the age of the girl victim. (1972) 38 CutLT 1238.
(2) An entry in a school certificate. is not reliable with implicit faith against medical evidence.
Where there' is conflicting evidence as to age, the benefit' of the uncertainty should be given to the
accused. A IR 1970 Punj 450.
14. Uncorroborated testimony of 'the prosecutrix.—( 1) It is extremely dangerous and.
permissible only in exceptional. cases to convict a man of a sexual offence on the uncorroborated
Sec. 366 Of Offences affecting the Human Body 1065

testimony of the complainant. The kind of corroboration required in such cases must be independent
evidence that is to say evidence of some witnesses other than the girl herself. AIR. 1970 SC 1029.
(2) The rule is not that corroboration is essential before there can be a conviction but that the
necessity of corroboration as a matter of prudence except where the circumstances make, it safe to
dispense with it, must be present in the mind of the Judge before a conviction without corroboration
can be sustained. AIR 1973 SC 469.
(3) Where the prosecutrix has made several divergent statements and it is also shown that she is
accustomed to sexual intercourse, her evidence that she was induced by deceitful means or compelled
by force to go with the accused must be corroborated by independent evidence. AIR 1970 SC 1029.
15. Age of the prosecutrix.—(l) The question of age of the prosecutrix in cases under Ss. 366
and 376 is always of importance. It is particularly so in a case where the medical evidence shows that
the prosecutrix has been used to sexual intercourse. An unproved and unexhibited school certificate
cannot be relied upon for the purpose of ascertaining the age. AIR 1970 SC 1029.
(2) An entry of the date of birth in a non-Government School's General Register is admissible in
evidence, under S. 35 of the Evidence Act, but its evidentiary value depends on other factors. Where
the parents of the victim were not examined as to the age of the victim, the entry referred to was held
insufficient to prove the age. AIR 1970 Guj 178.
(3) The ages given in the school certificates are not dependable • for determination of the precise
date of birth of a student, to whom the entry as to the date of birth in the school records pertains. AIR
1970 Punj 450.
(4) In a case under S. 366/376 in order to prove the age of the prosecutrix, evidence of .father,
school certificate and birth certificate were disbelieved, evidence of doctor held could not be enough to
prove the age correctly because it is gathered by the physical examination of the girl only. 1980 Chand
CriC 65 (66) (Punj). .
16. Charge and conviction.---(I) Where the accused are charged under . this section, it should
appear plain to them whether they are being charged with kidnapping or with abduction and whether
- . the intent alleged was an intent to compel the victim to marry against her will or whether the
kidnapping or abduction was with the knowledge that it was likely that the girl would be forced or
seduced to illicit intercourse. AIR 1933 Cal 194.
(2) Alternative charges of kidnapping and abduction should not be framed in one charge. It is
desirable that there should be separate ,charges in the alternative for these offences. AIR 1946 Cal 493.
(3) The ingredient. of the two offences i.e. of kidnapping and abduction being obviously different,
the accused is entitled to know which of the charges he is asked to meet. A IR 1927 Cal 644.
(4) On a charge of kidnajping a . conviction for abduction cannot be recorded when that charge was
not sought to be proved against the accused and there was neither evidence on record to warrant the
conclusion that the girl was compelled or induced by any deceitful means to go from her father's place
nor was any question put to the accused in her examination under S. 342. AIR 1955 SC 574. -
(5) If a complaint made by the husband described in its heading.as one under S. 368 and this
section, fulfils all the requirements of a complaint under S. 497 and clearly makes an accusation of an
offence under that section, then, if the adultery complained of is proved, a conviction under that
section will not be illegal on the ground that there has been no complaint as required under S. 199,
Criminal P.C. A IR 1934 Lah 945.
1066 Penal Code Sec. 366
(6) Though an accused is acquitted of a charge under S. 366, there is no bar in law to his being
convicted on a charge of conspiracy to commit an offence of kidnapping. AIR 1952 Cal 831.
(7) Where two persons are charged, one for an offence under this section for kidnapping a woman
and there is no charge of abduction against him, and the other was charged under S. 3.68 for concealing
the woman knowing her to be kidnapped or abducted and the former is acquitted of the charge under
this section, the latter cannot be convicted of concealing a woman knowing her to be kidnapped and
the case of confining the woman knowing her to be abducted should not go before the jury, because the
former accused was not charged with abducting the woman. AIR 1945 Cal 432.
(8) Where one of the accused (appelIantwas convicted under Ss. 366 and 354 P.C. and the
Sessions Judge had found that the evidence against both the accused was co-extensive but he felt a
"lingering doubt" about the complicity of the co-accused and acquitted him, on appeal it was held that
there was no difference between the case of the accused and co-accused and the accused (appellant)
should also be acquitted. 1983 SCC (Cri) 316.
(9) Where a Magistrate who had no jurisdiction to try a case for an offence under this section
convicted the accused for an offence under this section and S. 420, it was held that the conviction
under S. 420 was not 'itiated by reason of the fact that the Magistrate had no jurisdiction to try an
offence under this section. AIR 1947 Pat 23.
(10) Acquittal for an offence under this section is no bar for convicting the accused under S. 363
for kidnapping simpliciter. AIR 1951 Assq,n 168.
17. Procedure.—(1) Abettor of offence under S. 366, Penal code, can be tried with principal
offender at place where principal offence committed. 1962(2) CriLi 712 (Punj).
(2) If the Magistrate finds that a pirma facie case is made out, he. should further enquire into and
find out whether there is evidence for committing the accused on a charge under this section. AIR 1924
Lah 718. .
(3) The prosecution cannot, at will, give up the charge for an offence under this section. The
procedure laid down in S. 321, Criminal P. C., will have to be followed. AIR 1951 Mad 900.
(4) After the trial is over, an order for the custody of the girl with reference to whom the offences
were committed is wholly without jurisdiction. A IR 1934 Cal 756
(5) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session, Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate or Magistrate of the first
class specially empowered, (in normal cases). Triable by Special Triabunal under Act XIV of 1974 in
eases of offences punishable under the Nari 0 Shishu Nirjatan Aip ( Women and Children Repression
Act) of 2000, for offence punishable under section 376 of the Penal Code.
18. Place of trial.--(I) The consequence of kidnapping is not the essential fact of the offence of
kidnapping so as to attract S. 179 of the Cr.P.C. 1971 CriL.J 141 (All).
(2) Where a woman kidnapped from one place is raped upon at a different place, the offences of
kidnapping and rape are to be tried separately by courts within whose jurisdiction the acts are
committed.. 1983 C'riLJ 1574.
.19. Sentence.--(I) If the kidnapping or abduction is for forcing the Woman to illicit intercourse, a
heavy sentence is called for. AIR 1979 SC 1948.
(2) The fact that the accused is 5 years old does not justify a lenient sentence for an offence under
this section. A IR 1936 Sind 233.
Séc 366A Of Offences affecting the Human Body 1067
(3) A certain amount was paid by the accused to the father of the girl for getting his consent for
the marriage. But the girl died before marriage. A panchayat was held and the father was asked to
return only half the amount received by him to the accused. Not satisfied with this, the accused
kidnapped the cousin of the deceased girl and went through a form of marriage with her. No further
hárm was done to the kidnapped girl. Under the above circumstances, the High Court reduced the
sentence passed upon the accused from 5 years' R. I. to 2 years' R. I. AIR 195.4 Pat 218.
(4) Consent of the victim though it may not be a defence to a charge under this section (as in the
case of kidnapping from lawful guardianship) may yet be taken into account in awarding sentence. AIR
1970 SC 1029:
(5) The question of sentence is a matter of discretion of the trial court and the S. C. on appeal by
special leave does not, as a rule, interfere with the exercise of such discretion. (1971) 3 SCC 934.
20. Practice.—Evidence—Prove: (1) That there was kidnapping by the accused; or abduction by
him.
(2) That the person so kidnapped or abducted is a woman.
(3) That the accused then intended, or knew that it was likely.
(a) That such woman in or would be compelled to marry a person against her will. Or
(b) That she might or would be forced or seduced to illicit intercourse.
Under the second part of the section, prove:
(I) That the accused induced a woman to go from any place by criminal intimidation, or abuse of
authority, or by compulsion.
(2) That the accused did so with intent, or knowledge thait was likely, that the woman might or
would be forced or seduced to illicit intercourse with some person.
21. .Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at-----kidnapped (or abducted) a woman X (by criminal
intimidation or abuse of authority or by other methods or compulsion) induced the said X namely,—
with intent that she may be compclled to (or knowing it likely that she will be compelled to) marry Y
against her will or in order that X may be forced (or seduced) to illicit intercourse or knowing it likely
that she will be forced (or seduced) to illicit intercourse and thereby committed an offence punishable
under section 366 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 366A
19 [366A. Procuration of minor girl.—Whoever, by any means whatsoever,
induces any minor girl under the age of eighteen years to go from any place or to do
any act with intent that such girl may be, or knowing that it is likely that she will be
forced or seduced to illicit intercourse with another person, shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to fine.]

19. Sections 366A and 366B were inserted, ibid.

.1068 Penal Code Sec. 366A

Cases and Materials Synopsis

I. Scope and applicability of the section. 8. This section and S. 498.
2. "Inducement by any means whatsoever ". 9. Charge.
3. "Girl under the ale of eighteen years' 10. Proof.
4. Intent or knowledge. II. Procedure.
5. "Seduced to Illicit Intercourse ". 12. Punishment.
6. "With another' 13. Practice.
7. This section and S. 366;
1. Scope and applicability of the section.—(l) This section and section 366B should be read
with section 5 of the Women and Children Repression .Act, 2000 (Act VIII of 2000).. This section and
section 366B have been added to give effect to certain Articles of International Convention for the
suppression of the traffic in woman and children and to punish the export and import of girls for
prostitution. The aim of this section is to prevent immorality, and its provisions are incorporated more
with the desire of safeguarding the public interest of morality than the chastity of one particular
woman. Often it may happen that a girl under eighteen may desire to leave her husband to better her
prospects elsewhere. Such a desire would not save her helper from a conviction under this section (30
CrL.J 985). The essential ingredient of an offence under this section is that accused intended or knew
that it was likely that the girl might be or would be seduced to illicit intercourse with another person.
In the absence of evidence as to such intention or knowledge on the part of a person he cannot be held
guilty of the offence under this section, however reprthensible his conduct might have been otherwise
(34 CrIJ 220). The expression "illicit intercourse" in section 366A means sexual intercourse between a
man and a woman who are nothusband and wife. The word 'seduced' should not be taken to have the
narrow meaning of inducing a girl to part with her virtue for the first time but that even though a girl
may have by the first acts of seduction surrendered her chastity, subsequent seduction for further acts of
illicit- intercourse ,js also meant to be included (50 CrLf 293). There is 'seduction' when a woman is
induced to consent to unlawful sexual intercourse by enticement and persuasions overcoming her
reluctance and scruples. It occurs where a man abuses the simplicity and the confidence of a woman to
obtain by false promise what she ought not to give. It is criminal offence where a female under
eighteen years has been induced to surrender her chastity to an unlawful sexual intercourse.
(2) Justice demands that the appellant be given an opportunity to cross-examine the witnesses as
some of them were examined in the absence of the appellant. Admittedly, the case ispending before
the Special Tribunal constituted under the aforesaid Special Powers Act as the alleged offence is triable
under the Special Powers Act. It is an admitted fact that certain witnesses have been examined in the
absence of the appellant when he was absconding. It is further admitted that the prosecution has not yet
closed the case and the same is fixed for further evidence next week. As the prosecution has not yet
closed the case and as some of the witnesses have been examined in the absence of the appellant when
he was produced before the Tribunal under arrest, subsequently during the midst of trial the tribunal
ought to have afforded an opportunity to the appellant to cross-examine the witnesses already
examined. Justice demands that such an opportunity ought to have been given to the appellant. Jam ii
Siddique Vs. State 41 DLR 30.
(3). For sustaining a charge of kidnapping a woman for unlawful purposes the alleged victim must
• be in between 16 and 18. If she is above 16 but below 18 and if no force is used to go with the
- • accused it will not be an offence under the Penal Code or the Ordinance for deterrent punishment.
Monindra Kumar Malaker Vs. State 42 DLR 349.
Sec. 366A Of Offences affecting the Human Body . 1069
(4) There is no overt act proved against accused Ananda in any conspiracy resulting in the
abducti9n of the victim, girl by Swapan—Prosecution failed to prove the charge of abetment against
Ananda. Ananda Vs. State 41 DLR 533. .
(5) The FIR was lodged under section 366A of the Penal Code. The offence under section 366A is
related to a girl under the age of 18 years and not under the age of 16 years. Nurunnahar Khatun Vs.
State 46 DLR 112.
(6) In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is
to decide an aspect of the merit of the case which is decisive of the case itself. After the decision ha
been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still
pending? The learned Judges should have made it very clear that the finding made by them as to the
age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial
Court was free to take its own decision upon considering the evidence to be led in the case. That
having not been done, it must be said that the impugned judgment suffers from at least impropriety
having usurped the powers of the trial Court in a pending criminal case. Khairunnessa Vs. lily Begum
& another 48 DLR (AD) 67.
(7) Age of girl—Phyical appearance—Physical appearance may not always provide a correct guide
for ascertaining theage of a girl child who is growing up. In some cases physical- develoment may
take place which may be regarded as precocious while in some other cases there may not be s much
development as is natural with the passage of time. Having regard to the fact that the available
materials supported the claim of the mother that the girl was aged about 15/16 years except the
statement of the gir4 herself, the High Court Division cannot be said to have acted judiciously in
ingnoring the materials and relying on the statement of the girl and their own observation of the girl.
The mother has a reasonable grievance to make against the judgment Which does not seem to have been
passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of
the victim girl alleged to be a minor. Khairunnessa Vs. lily Begum and another 48 DLR (A D) 67.
(8) Kidnapping a woman for unlawful purposes—If the alleged victim is below 16 years her father
is entitled to her custody but if she is above 16 years she becomes a major and she is entitled to go
anywhere according to her will—For the purpose of Section 366A of the Penal Code the victim must
be between 16 and 18 years—If she is above 16 but below 18 and if no force is used to go with the
accused, it will not be an offence. Manindra Kumar Malaker Vs. The State 10 BLD (HCD) 119.
(9) Kidnapping—Bail of accused—may be granted when the victim girl in her statement stated
that she went with the accused of her own accord—When the trial is being delayed for no fault of the
accused and when the victim girl' in her statement recorded under section 164 Cr.PC. stated that she
went with the accused of her own accord the accused in such circumstances is entitled to the privilege
of bail pending trial. Nurul A min @ Bada Vs. The State— ], MLR (1996) (A D) 251.
(10) Kidnapping—Determination of age of victim—Statements of parents—While determining the
age of victim girl more weight should be given to the statements of the parents than the emotional
statement of the victim girl when her age hinges in the twilight of majority. Badiur Rahman
Chowdhury Vs. Nazrul Islam and another— ], MLR (1996) (A D) 444.
(11) Offence of kidnapping—Determination of the age and custody of a victim minor girl—In
deciding the age and present custody of the victim girl in a pending criminal case the High Court
Division cannot surpass the powers of the trial court. Physical appearance may not always provide a
correct guide for ascertaining the age of a girl child who is growing up. In particular case having regard.
1070 Penal Code Sec. 366A

to the facts and circumstances atlthe available materials on record must be taken into consideration
rather than solely . relying on the statement of the victim girl and her physical appearance.
Khairunnessa Vs. lily Begum and another— ], MLR (1996) (A D) 148.
(12) A minor to be taken out of the lawful custody of her guardian as under section 363 must be a
minor under 18 would be referable to section-364N. She cannot be allowed to go whether she attains
the age of 18 years 46 DLR 541.
(13) Age of a majority , and guardianship—Decision as to custody of a minor pending criminal
proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds
good is the PC. If the allegations are that of kidnapping of a minor girl, then for the purpose of her
custody, the court has to proceed on the basis that she is a minor if she is' under 16. If however the
allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girt is a
minor who is under. 18. 46 DLR(A D) 10.
(14) Statement of a victim girl in custody of the accused—The court should give more importance
to the words of the parents to those of a wayward daughter who is currently enamoured with
romanticism, in deciding the custody. But in the peculiar circumstances of the case the Appellate
Division refused to interfere with the factum of her custody. 16 BLD (AD) '263.
(15$ The minor to be taken out of custody of the lawful guardian as under sections 361 and 366
whether must be minor under 16 years of age—Held 18 years would be referable only to section 366A.
when she would be taken away from place to place by inducement with intent that the girl may likely
be seduced to illicit intercourse with "another person". (45 DLR 26), 12 BLD 637.
(16) Gist of offence lies in exercise of effective control over minor for unlawful or immoral
purpose. Wife, co-accused with husband, keeping actual control over girl under 18 years of age and
taking money from persons who outraged girl's modesty, held, guilty of offence under section 373
rather than section 366A. 3 PCrLJ 120.
(17) This section was enacted by Act 20 of 1923 to give effect to certain Articles of the
International Convention for the Suppression of Traffic in Women and Children signed by various
nations at Paris on May 4, 1910. AIR 1962 SC 1908.
(18) The section is aimed at.procurers. The prosecution must therefore prove that the accused
intended that the girl would be forced or seduced to ' illicit intercourse with some one other than
himself or that the accused knew that it was likely that she would be so forced or seduced. AIR 1945
Cal 432.
(19) The aim of the provisions of this section is to prevent immorality and the provisions are
framed more with the desire of safeguarding the public interest in morality that the chastity of the
particular woman. The consent therefore of the minor against whom the offence is committed is
immatril. The consent might have been induced and any reason given by the accused to move the
girl none place to another is sufficient inducement. Once the offence of inducement is proved, the
'girl's subsequent willingness will neither prevent the act from being an offence nor reduce the gravity
of the offence. AIR 1929 All 709.
1 'inducement by any means whatsoever".— {l) To "induce" means 'to lead into'. It connotes
• leading of the woman in some direction in which she would not otherwise have , gone. There must be
• change of mind caused by an external pressure of some,. kind. AIR 1934 Sind 164.
(2) B and K' induced a girl to go with them offering to take her to her destination but with the real
object of selling her for illicit intercourse, and afterwards A, D, M and P took her from place to place
Sec. 366A Of Offences affecting the Human Body 1071
with the object of selling her but there was no evidence to show that A, D, M and P offered ally
inducement to the girl to go from one place to another with the requisite intention or knowledge. It
was held that the offence under Section 366A was complete when B and K induced the girl to leave her
place and what happened afterwards did not constitute a fresh offence under that section chargeable
either against B and K or against othr accused who just took her from one place to another and passed
her on from hand to hand. AIR 1932 Lah 555 (557).
3. "Girl under the age of eighteen years".—(I) To constitute an offence under this section the
element of age is the crucial one, and strict and exact evidence of age is essential. Where there is no
proper evidence of age, the judge should strongly emphasise this feature of the case and clearly direct
the jury that, if they are not completely satisfied that the girl was under eighteen, they are bound to
acquit the accused of his offence. A IR 1939 Pat 536
4. Intent or knowledge.—( 1) One of the principal ingredients of the offence under this section is
that the girl . is induced to go from any place with intent that she may be, or knowing that it is likely
that she will be,, forced or seduced to illicit intercourse with another person. AIR 1962 SC 1908.
(2) Where, a woman even below 18 years follows the profession of a prostitute, that is, where she
is accustomed to offer herself promiscuously for money to customers and in following that profession
she is encouraged or assisted by some person, there is no offence committed by such person under this
section, for it cannot be said that the 'person who assists a girl in carrying on her profession of
prostitution acts with intent or knowledge that she will be forced or seduced to -illicit intercourse. AIR
1962 SC 1908.
(3) The fact that the girl who-is induced to go from any place is handsome is no evidence at all to
show the intention of the accused that she should become an inmate of a brother. A IR 1939'Cal 290.
5. "Seduced to illicit intercourse".—( 1) Seduction to illicit intercourse contemplated by the
,section does not mean merely straying from the path of virtue for the first time. The verb 'seduce' is
used in two senses. It is used in its ordinary and narrow sense as inducing a woman to stray from the
path of virtue for the first time; it is also used in the wider sense of inducing a woman to submit to
illicit intercourse at any time or any occasion. It is in the latter sense that the expression has been used
in Ss. 366 and 366A, which sections partially overlap. AIR 1962 SC 1908.
(2) Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling.
to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or
importunity whether such surrender is for the first time or is preceded by similar surrender on earlier
occasion. AIR 1962 SC 1908.
6. "With another".—.( 1) Inducement to' go from any place must have, for its object, seduction by
another person and not by the person who himself induces the woman to leave. ILR (1975) Cur 163.
(2) The person who induces a girl of an age between the, years 16 and 18 without force or fraud to
go from any place with the intention that she should have illicit intercourse with himself does not
commit any offence. AIR 1933 Cal 362. . .
7. This. section-and S. 366.—(1) The points of difference between S. 366 and this section merely
concern the manner of the inducement and the age of the girl and are irrelevant for deciding the
question whether the offence is a continuing offence. AIR 1936 Lah 850.
8. This section and Section 498.—(1) The offence under. this section may be committed either in
respect of a married girl or of an unmarried girl, whereas the offence under S. 498 is committed only in
respect of a married girl. Secondly, in the offence under this section the taking or enticing amounts to
1072 Penal Code Sec. 366A

abduction of the girl whereas under S. 498 the taking or enticing away does not amount to abduction.
Thirdly, the offence unaer. this section may be committed despite, the offender's ignorance of the
married status of the victim, while under S. 498 the actual or constructive knowledge of the offender
regarding the married status of the girl is an essential element of the offence. Fourthly, the offence
under this section is a major offence while that under S. 498 is a relatively minor offence being
punishable only with imprisonment extending to two years white the offence under this section is
punishable with imprisonment which may extend to 10 years. Hence a conviction under S. 498 cannot
be altered to one under the present section. AIR 1934 Lah 122.
9. Charge.—(1) In the trial for the charge under S. 368, Penal Code, a conviction under S. 366A
may be made even though no specific charge under that section is framed, as both are cognate . offences
However, an acquittal of the charge under S. 368 precludes a fresh trial on a charge under S. 366A
Therefore an appeal against the acquittal is the proper procedure to claim conviction either under S. 36
or under S. 366A alternatively. AIR 1933 Nag 259,
(2) The charge should run as follows: 0•

I (name and office of the Judge, etc.) hereby charge you (name of the accused) as follo&
• That you, on or about the—day of—at—induced X (a minor girl under the age of eighteen years)
to go from (name of the place) or to do any act or acts (name them) with the intent that the said X may
be, or knowing that it is likely that the said X will be, forced (or seduced) to illicit intercourse with Y
(specify the name) and thereby committed an offence punishable under section 366A Penal Code and
within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
10. Proof.--(I) Where a married girl was induced to go to another place with the assurance that
she will be married to another suitable person, here evidence that she was sought to be sold .by the
accused to some person, though it is not of an accomplice, has to be corroborated by other evidence,
either direct or circumstantial, as a rule of prudence (and not of law). 1962 MPLJ ('Notes) 230.
11. Procedure.---(I) Since the offence under this section is a continuing offence, if the same is,
committed at one place and its abetment at another, both the principal offender and the abettor may be
jointly tried where the offence was committed or where it was abetted. AIR 1931 All 55.
(2). Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session, Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate or Magistrate of the first
class specially empowered (in normal case)—Triable by Special Tribunal under Act XIV of 1974 in
case of offence punishable under the Woman and Children Repres-sion Act,. 2000 (Act VIII of 2000)
and for offence punishable under section 376 of the Penal Code.
12. Punishment.---(1) Where the accused was convicted for an offence under this section and
sentenced both to the detention at Borstal School under S. 25 of the Prevention of Crime (Young
Offenders) Act, 1930 (Act 3 of 1930) and also to receive 20 lashes under the Whipping Act (4 of
1909) the additional sentence of whipping was held to be illegal, as such sentence could be awarded in
addition to the sentence under the Penal Code and not in addition to punishment under any other Act.
It was further observed that the detention in Borstal School was not the proper sentence for such an
offence and the sentence of whipping alone was proper. AIR 1934 Rang 123.
13. Practice.—Evidence--Prove:(1) That the accused induced a girl.
(2) That the said girl was a minor below 18 years of age.
Sec. 366A Of Offences affecting the Human Body - 1073

(3) That the accused induced her with intent that she may be or knowing it to be likely that she
will be forced or seduced to illicit intercourse.
(4) That such illicit intercourse will be a person other than the accused.
(5) That as a result of the inducement the girl was caused to go from any place or to do any act.

Section 366B
0E366B. Importation of girl from foreign country.—Whoever imports into
16 [Bañglàdesh] from any country outside 16 [Bangladesh] any girl under the age of
twenty one years with intent that she may be, or knowing it to be likely that she will
be, forced or seduced to illicit intercourse with another person,
20[* * * * * * * *

shall be punishable with imprisonment which may extend to ten years, and shall also
be labile to fine.
Cases and Materials
1. Scope.—(1) This section deals with extraterritorial offences penalising importation into
Bangladesh of girls below the age of 21 years for illicit intercourse or prostitution, where the case of
the prosecution is not that the girls iiiiported into Bangladesh with the intent that they may be or
knowing it to be likely that they will be forced or seduced to illicit intercourse, a conviction is wholly
unjustified (52 CrLJ 217); A IR 1951 Raj 33. . .. ..
2. Practice.—Evidence—Prove: (1) That the accused imported .. into Bangladesh a girl below the
age of21years: . . .
(2) That the girl was imported from outside Bangladesh.
(3) That the accused imported the girl with intent that she may be or with the knowledge that she
is likely to be forced or seduced to illicit intercourse with a person other than the accused.
3. Procedure.—Cognizable—Warrant—Not bailable—Not Compoundable—Triable by court of
Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate (in normal
cases)—Triable by Special Tribunal under Act XLV of. 1974 in • cases of offences punishable under the
Woman and Children Repression Act VIII of 2000 and of offences punishable under section 376 of the
Penal Code. S

4. Charge.—The charge should run as follows:

I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—imported into Bangladesh from—(a country , outside
Bangladesh) X, a girl under the age of twenty one years with intent that she may be (or knowing it to
be likely that she will be) forced (or seduced) to illicit intercourse with another person Y namely—and
thereby committed an offence punishable under section 366B, Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

9 20.. Second paragraph of section 266B was omitted by the Babgiadesh Laws (Revision and Declaration) Act, 1973 (Act VIII
of 1973). Second Schedule (with effect from the 26th March, 1971). ... . . . .:
1074 Penal Code Sec. 366B

Section 367
367. Kidnapping or, abducting in order to subject person to grievous hurt,
slavery, etc.—Whoever kidnaps or abdut any person in order that such person may
be subjected, or may be so disposed of as to be out in danger o- f being subjected to Q

grievous hurt, or slavery, or to the unnatural lust of , any person , or knowing it to be

likely that such person will be so subjected or disposed of, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
Cases and Materials
1. Scope.---(I) This section punishes the kidnapping or abduction of any person in order that such
person may be subjected, or may be so disposed of as to be put in danger of being subjected to
grievous hurt or slavery or to the unnatural lust of any person, while S. 364 punishes kidnapping or
abduction in order that the. victim may be murdered or may b& so disposed of as to be put in danger of
being murdered. An additional factor which is not found in S. 364 is that even knowledge (apart from
intention), on the part Zf the abductor or kidnapper that the victim is likely to be so subjected is
sufficient to make the kidnapping or abduction an offence under this section. AIR 1962 AndhPra 267.
(2) High Court not accepting story of murder by accused nor recording a finding that grievous hurt
was caused to deceased by accused alleged to have abducted deceased—Conviction under S. 367 not
warranted. AIR 1984 SC 911.
(3) This section may be read along with sections 11, 320, 370, 371 and 377 of the Penal Code.
Kidnapping of boys for sodomy or for causing grievous injury is covered under this section.
Kidnapping or abduction has to be established to invoke this section and without proof of abduction
there cannot be any conviction under this . section.
(4) The offence under this section is an auxiliary offence to the main offence under S. 325 or S.
326 and as the former offence is exclusively triable by a Court of Session, the accused can be legally
committed to the Court of Session for both the offences. AIR 1962 And/i Pra 267(2 70).
2. Practi ' ce.___Evidence_prove: (1). That there was kidnapping by the accused, or abduction by
him. '
(2) That he so kidnapped or abducted the person in question—
(a) in order that such person might be subjected to grievous hurt, slavery, etc. or to unnatural
lust, etc.;
(b) in order that such person might be so disposed of as to be put in danger thereof.
(c) Knowing it to be likely that such person would be so subjected or disposed of.
3. bailable—Not compoundable—Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate specially
empowered.
4 Charge.—The charge should run as follows:
• , I (name and office of the Judge) hereby charge you (name of the accused) as .folows:
That you, on or about the—day of—at--kidnapped (or abducted) X in order that the said X may
be subjected (or may be so disposed of as to be put in danger of being subjected) to grievous hurt (or
Sec. 367 Of Offences affecting the Human Body 1075
to slavery or to the unnatural lust of) or knowing it to be likely that such person will be so subjected
or disposed of and thereby committed an offence punishable under section 367 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 368
368. Wrongfully concealing, or keeping in confinement, kidnapped or
abducted person.—Whoever, knowing that any person has been kidnapped or has
been abducted, wrongfully conceals or confines such person , shall be punished in the
same manner as if he had kidnapped Or abducted such person with the same intention
or knowledge, or for the same purpose as that with Or for which he conceals or detains
such person in confinement.
Cases and Materials : Synopsis
1. Scope. 5. Evidence and proof.
2. K nowledge. 6. Procedure.
3. Concealment. 7. Practice.
4. Charge and conviction. 8. Charge.
1. Scope.—(1) This section refers to some other party who assists in concealing any person who
has been kidnapped and. not to the kidnappers. Therefore in the absence of any allegation of wrongful
concealment or confinement by the accused of the kidnapped girl, there can be no conviction under this
section (A IR 1933 Lah 392, 34 CrLf 1177). This section presupposes that the offence of kidnapping or
abduction has taken place. Section 368 Penal Code is one of those sections in which subsequent
abetment is punished as a substantive offence.
(2) Joint trial under sections 366 and 368 is not illegal. 23 DLR 76
• (3) Section 368 Penal Code can be brought into operation only after the offence of kidnapping or
abduction has been committed, irrespective of whether it has reached its final stage or not though the
act of wrongful confinement or concealment can sometimes form part of the same transaction as the act.
of kidnapping or abduction. 6 PLD 84 Lah.
(4) This section deals with the case of wrongful concealment or confinement of a person kidnapped
or abducted. To constitute an offence under the section the prosecution must establish the following
ingredients: (a) The person in question has been kidnapped or abducted; (b) He must have knowledge
that the person said to be confined or concealed has been kidnapped or abducted; (c) He must
wrongfully conceal or confine that person. A IR 1973 SC 201. . .
(5) The section presupposes that the offence of kidnapping or abduction has .taken place, so that
any one wrgfully concealing or confining the person kidnapped or abducted is guilty under this
section. But where kidnapping or abduction is not proved, wrongful concealment or confinement of a
person does not constitute an offence under this section. A IR 1937 A ll 182.
(6) The offence under this section consists of something more than a mere wrongful confinement.
A IR 1941 Cal 315.
(7) Where the person was neither kidnapped nor wrongfully concealed or confined, then no offence
under this section is made out. A IR 1933 Lah 392.
.1076 Penal Code Sec. 368

(8) The words 'kidnapping' and 'abduction' do not include the offence of wrongful confinement or
keeping in confinement a kidnapped person: A IR 1947Pat 17(20) 48 CriLJ 18.
2. Knowledge.--(I) Knowledge means the state of mind entertained by a person with regard to
existing facts which he has himself observed or the existence of which has been communicated to him
by persons whose veracity he has no reason to doubt. AIR 1932 Oudh 28.
3. Concealment.-41) Concealment means withdrawal, from actual observation of others, of the
person kidnapped or abducted and not merely taking her away to a long distance. A IR 1939 Lah 26
4. Charge and conviction.—(1) In a trial for an offence under this section, a conviction under S.
366A can be recorded even though no specific charge is framed under that section.. AIR 1933 Nag 259.
(2) Where the person charged with kidnapping is acquitted, the accused charged with concealing
the kidnapped person must also be acquitted. He cannot be convicted on a charge of confining the
victim treating her as an abducted person. AIR 1945 Cal 432.
5. Evidence and proof.--(I) The prosecution has to prove that the accused concealed the girl or
kept her in wrongful confinement. The fact that the accused said that they wanted to sell the girl is not
sufficient for a conviction under this section. AIR 1926 Lah 384.
(2) A person who merely helped in getting kidnapped girl married without taking any part in the
concealment or confinement of the girl is not guilty of offence under this section. AIR 1924 Oudh 335...
(3) It is the duty of the prosecution in a case under this .section to place the first information report
before the Court: AIR 1935 All 63. . .
6. Procedure.----(1) The offence under this section is not exclusively triable by the Court of
Session. AIR 1935 All 63.
(2) If the concealing and kidnapping formed part of the same transaction an accused charged under
this section can be jointly tried with an accused charged under S. 366. A IR 1941 Cal 315.
(3) Cognizable—Warrant---Not bailable—Not compoundable—Triable by Court of Session, Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate or Magistrate of the first
class specially empowered.
7. Practice.—Evidence—Prove: (1) That the person in question has been kidnapped or abducted.
(2) That the accused knew of such kidnapping or abduction.
(3) That he, having such knowledge, wrongfully concealed or kept such person in confinement.
8. Charge.—The charge should run as follows:
I (name and office of the Judge etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—wrongfully concealed or confined (mention the name)
knowing that the said—had been kidnapped or had been abducted and thereby committed an offence
punishable under section 368 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 369
369. Kidnapping or abducting child under ten years with intent to steal from
its person.—Whoever kidnaps or abducts any child under the age of ten years with
the intention of taking dishonestly any moveable property from the person of such
Sec. 369 Of Offences affecting the Human Body •. 1077

child, shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
Cases and Materials
1. Scope.—( 1) This section may be read with sections 24 and 22 of the Penal Code. This section
deals with kidnapping or abduction of a child below ten years of age with intent to steal property from
the person of the child.
(2) The section deals with the kidnapping or abduction of a child under ten .years with the
intention of stealing movable property from its person. (1873) .7 MHGR 375.
(3) A, kidnapping 1.5 year old girl—Relieving her of the gold ornaments and throwing her into
the pond—Prosecution evidence was found to beuñreliable—Also story regarding arrest of A was
unbelievable—A cannot be said to have committed an offence punishable under S. .369. 1981 Cr1LR
(SC) 218. . . . .
(4) Actual theft is not necessary for the application of this section. Intention to steal is enough
though the subsequent theft furnishes evidence of the intention to steal. Where it was proved that a
child with jewelleiy on his. person was seen in the arms of the accused and that the jewellery was
disposed' of by the accused, the offence of kidnapping, was held to fall under this section. (1912) 1.3
CriLJ 249. . .
(5) Where the offence of kidnapping, though technically established, was in fact a part of the
transaction which led to the murder of the kidnapped child, the punishment of transportation for life
awarded for murder would be sufficient (it was held) to cover every act done by the accused with the
object of killing his victim and robbing him of his ornaments. A IR 1920 Lah 512.
2. Practice.—Evidence—p rove; (1) That there was the kidnapping by the accused, or abduction by
him.
(2) That the person kidnapped or abducted was a child under the age of ten years.
(3) That the accused thereby intended to take moveable property from that child's person.
(4) That such intention was dishonest.
3. P rocedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—kidnapped (or abducted) X, a child then under the age of
ten years, with the intention of taking dishonestly any moveable property, to wit—froth the person of
the said X, and thereby committed an offence punishable under section 369 Penal Code and within my
cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 370
• 370. Buying or disposing of any person as a slave.—Whoever imports, exports,
remoyes, buys, sells or disposes of any person as a slave, or accepts, receives or
detains against his will any person as a slave, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable
to fine.
I-

1078 Penal Code Sec. 370

Cases and Materials

• 1. Scope.—( 1) This section of the Code relating to slavery was enacted for the suppression of
slavery, not only in its strict and proper sense, namely, that condition whereby an absolute and
unlimited power is given to the master over the life, fortune and liberty of another, but also in any
modified form where an absolute power is asserted over the liberty of another. This section does not
prohibit slavery. It only penalises those who receives, retains or detains persons against their will and
disposes them of or export or import them (19 CriL.J 17).
(2) This section deals with the buying or disposing of persons as slaves and the next section deals
with dealing in slaves. History of the law relating to slavery and the circumstance under which this
section was franed stated: '1880) ILR 2 All 723.
(3) A transaction punishable under this section would not have been any offence against any law,
though it was forbidden by proclamation prior to the passing of the Penal Code. AIR 1918 Mad 647.
(4) The section is directed against attempts to place persons in the position of slaves, or to treat
them in a way that is iribonsistent with the idea of the person so treated being free as to his property
services or conduct in any respect. (1880) ILR 2 All 724.
(5) The sections (367, 370 and 371) of the Penal Code were enacted for the suppression of slavery,
not only in its strict and proper sense, viz, that condition whereby an absolute and unlimited power is
given to the master over the life, fortune and liberty of another, but in any modified form where an
absolute power is asserted over the liberty of another. (1884) ILR 7 Mad 277.
(6) Where the evidence showed that an accused committed the offence of removing certain children
from the custody of their guardian with his consent, and exporting them to strangers, out of India, the
accused should be committed on a charge for an offence under S. 370 or for abetment of such offence.
(1909) 9 CriL.J 66
2. Practice.—Evidence----Prove: (1) That the accused imported, exported etc. the received or the
person in question as a slave; or that the accused accepted; received or detained the person in question
as a slave.
(2) That he did so,ragainstthe will of that person.
3. Procedure.—Not cognizable—Warrant—Bailable-----Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—imported (or exported or removed, or etc.) a person to
wit—as a slave (or accepted, or deceived or detained against his will a person to wit, as a slave) and
thereby committed an offence punishable under section 370 of the Penal Code and within my,
cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 371
371. Habitual dealing in slaves.—Whoever habitually imports, exports,
removes, buys, sells, traffics or deals in slaves, shall punished with '[imprisonment]
Sec. 371 Of Offences affecting the Human Body 1079

for life, or with imprisonment of either description for a term not exceeding ten gears,
and shall also be liable to fine. :.
Materials
1. Scope.—(1) This section seeks to punish a habitual dealer of slaves: A habitual slave dealer is a
/professional slave dealer,
2. Practice.—Evidence—Prove: (1) That the accused imported, exported, removed , brought, sold
trafficked or dealt with in slaves.
(2) That he did so habitually.
3. Procedure.---Cognizable--Warrant—Not bailable—Not compoundable —Triable by Court of
Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered.
.4. Charge.—The charge should run as follows:
I, (name and office of the Judge, etc.) hereby charge you (name of the accused) as follows:
That you, on or about .the—day of—at—habitually imported, exported, removed, bought, sold,
trafficked or dealt with in slave (name the slave dealt with) and thereby committed. an offence
punishable under section 371 of the Penal Code and within my cognizance. -
And I hereby direct that you be tried by this court on the said charge.

Section 372
372. Selling minor for purposes of prostitution, etc.—Whoever sells, lets to
hire, or otherwise disposes of any 21 [person under theage of eighteen years with
intent that such person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral
purpose, or knowing it to be likely that such person will at any age -be] employed or
used for any such purpose, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine. .
22 [Explanation I.— W hen a female under the age of eighteen years-is sold, let for
hire, or otherwise disposed of to a prostitute or to any person who keeps or manages
a brothel, the person so disposing of such female shall, until the contrary is proved, be
presumed to have disposed of her with the intent that she shall be used for the
purpose of prostitution. .. .
Explanation 11.—For the purposes of this section "illicit intercourse" means sexual
intercourse between persons not united by marriage or by any union or tie which,
thoigh not amounting to . a marriage, is recognised by the personal law or custom of

21. The words within square brackets were substituted for the words "minor under the age of eighteen years with intent that
- such minor shall be empoloyed or used forthe purpose of prostitution or for any unlawful: and immoral purpose, or,
knowing it to be likely that such minor will be" bysection 2 of the Indian Criminal Law Amendment Act, 1924 (Act
XVIII of 1924) The word eighteen was previously substituted for the word"sixteen" by s 2 of the Indian Penal Code
(Amendment) Act, 1924 (Act V of 1924).
22. Ins, by the Indian Criminal Law Amendment Act, 1924 (XVIII of 1924). . . . .•
1080 Penal Code Sec. 372

the community to which they belong or, where they belong to different communities,
of both such communities, as constituting between them a quasi-marital relation.]
Cases and Materials : Synopsis
1. Amendments. 9. "Illicit intercourse"— Explanation II.
2. Scope of the section. 10. "Unlawful and immoral purpose."
3. Chastity of minor girl If necessary before 11. Intention or knowledge.
selling, letting, etc. 12. "For the purpose of prostitution"-
4. "Sells, lets to hire or otherwise disposes of" Explanation I..
5. Dedication of girls to temple. 13. Procedure.
6. Giving,girls in adoption to prostitutes. 14. Charge.
7. "A ny person under the age of eighteen years" 15. Practice.
8. "Shall, at any age, be employed."
1. Amendments.-_(l) The effect of the amendment is merely to enlarge the scope of the 'intent',
so that whereas previously, it. was an offence only where the intention of the accused wa g to use or
employ the person disposed of . for the purposes mentioned in the section during the minority of such
person, under the amended section, the intention to use or employ the person for the specified purposes
at any age is sufficient to create the offence. Hence, under the amended section disposing of a minor
girl, even with the intention of using her for purposes of prostitution etc., after she attains majority is
an offence, whereas previously such an act was not an offence. AIR 1937 Cal 250.
2. Scope of the section.—(l) This section applies to married as well as unmarried females under
the age of eighteen years, and is applicable even where the girl concerned is a member of the dancing
girl caste. Th'e offence under this section is committed even though the girl, prior to sale or purchases
was leading immoral life. The idea underlying prostitution is that a woman should surrender her body
for a monetary consideration to someone who is not in law entitled to have sexual intercourse with her.
The position of amitress is not necessarily that of a prostitute. The relationship is of a more
permanent nature than the casual relationship implied in prostitution. Having a stray paramour would
not constitute a woman being a prostitute (30 CrLf 787).A brothel includes any house, room or place
which if used for purposes of•prostitution for che gain of another person or for mutual gain of two or
more prostitutes. To establish that premises are used as. a brothel, what needs to be proved is that
people of opposite sexes come there and have illicit sexual intercourse on the premises. A brothel is a
place resorted to by persons of both sexes for the purpose of prostitution. The offence is complete
when the accused has done all he could do intentionally and consciously expose a minor girl to the
danger of degradation even if all the ceremonial accompaniments for initiation of the prostitutes were
complete or not(2 CrL.J 500). The words 'sale' and 'let on hire' imply transfer of the person of the
minor and is held complete the moment the contract is signed. There is no difference in selling a
woman as a mistress of a person or taking her to be used as prostitute (36 CrLJ 571).
(2) The provisions of the sections 372, 373, 375 and 479, show that laws put some restrictions,
but such occurrence of intercourse, the maintenance of brothel and prostitution are not totally barred.
Sultana Nahar, A dvocate V s. Bangladesh, represented by the Secretary, Ministry of Home A ffairs,
Government of the People's Republic of Bangladesh and others (Spi. Original) 2 BLC 430.
(3) This section and S 373 should be read together. Both sections are correlative of each other
being aimed against trafficking in girls under the age of eighteen years. The words 'sell', "lets to hire'
Sec. 372 Of Offences affecting the Human Body 1081

and "otherwise disposes of' in this section correspond with 'buys', 'hires' and "otherwise obtains
possession of' in S. 373. A IR 1937 Cal 250.
9) The mischief aimed at by Ss. 372 and 373 was traffic in minors under sixteen years for
purposes of plostitution in its perfectly well understood sense or for any unlawful and immoral
purpose of a like description. As a result of the amendment of the two sections by substitution of
"eighteen" for "sixteen' and by insertion of the words "or illicit intercourse" in the main body, and
addition of Explanation 11 their scope is enlarged and traffic in minors up to eighteen years for the
purpose of illicit intercourse is also sought to be prohibited. (1878-1880) ILR 2 A ll 694.
3. Chastity of minor girl if necessary, before selling, letting, etc.--(I) The policy, of the Penal
Code was to 'protect the chastity" of minors and to assure to them the freedom of choosing married
life when they attain their age. (1888) ILR 11 Mad 393.'
4. "Sells, lets to hire or otherwise disposes of."—(l) The words 'sells or lets to hire' necessarily
connote a transaction for consideration, while the words 'otherwise disposes of' may represent a
transaction with or without consideration. Thus, if an accused person simply makes over a minor girl
to another for the purpose of prostitution he or she will be said to have disposed of the girl for
prostitution. All thesë ' trapsactions in respect of the minor involves two parties. A IR 1942 Born 23.
(2) A brothel-keeper letting a girl to a customer for a signal act of sexual intercourse is not guilty
under 'this section as the kind of possession of the girl which he gives is not of the nature
contemplated by the section. A IR 1919 Mad 892.
(3) Taking a minor girl to a brotheland bringing her back after six or seven nights during which
the girl prostituted herself would amount to disposal of the girl envisaged by the section. AIR , 1928
Born 336. . .
(4) Where the accused, himself a customer of a brothel, met a minor girl in the street who had fled
from her house on account of ill-treatment of her step-mother and direct her to the brothel in order that
she may be useful for the business of the brothel, his act did not amount to disposal of the' girl within
the meaning of the section. A IR 1925 Mad 716. .
5. Dedication of girls to temple.—(1) Unless the dedication of a minor girl to the temple or idol
is complete there can be no disposal of the girl envisaged by the section as there is no change made in
the position or circumstances of the minor. The ceremony consisting of tying a 'talimani to a minor
girl, worshipping a basin (kalash) of water and distributing food may be a preliminary step before
disposing of the girl for the purpose of prostitution but that does not complete the disposal of the girl
to the temple or idol and hence it is no offence. A IR 1925 Born 478.
(3) Performance of a Gejjee ceremony on a minor girl is also merely a preliminary and not the
final ceremony of dedication and hence does not amount to disposal of the girl. A IR 1920 Born 63.
6. Giving girl in adoption to prostitutes.—(1) Prostitution is not the essentialobjeet' or
necessary consequence Of an adoption by a dancing girl but is an incident due to social influences. But
if a minor girl is given in adoption to a dancing girl with the intention that the girl may, continue the
profession of the adoption mother then the parent giving in adoption can be said to dispose of the
minor for prostitution. (1888) II Mad 393.
7. "Any person under the age of eighteen years.-1) The "person under the age of eighteen
years" may be a married or unmarried girl and may be male or female. 1879 Pun Re No. 12 (Cr) 34.
8. "Shall, at any age, be employed."—(l) It was necessary to prove that the accused intended or
knew it to be likely that the girl was to be employed for prostitution before the completion of her
1082 Penal Code Sec. 372
sixteenth year but that if the circumstances showed that the girl was, to be used for purposes of
prostitution, it was for the accused to prove that he or she intended to put off the employment until the
completion of the sixteenth year. AIR 1922 Cal 531.
9. "Illicit inter course"—Explanation I1.—(l) Expression "illicit intercourse' has to be
distinguished from 'prosfitution.' Sexual intercourse of a girl with a stranger on one occasion would
only amount to illicit intercourse but not prostitution, as prostitution connotes promiscuous
intercourse with men. If marriage is the intention with which sale of a minor Hindu girl is effected
it cannot be said to be for the purpose of illicit intercourse, even if the marriage that subsequently
takes place is found to be one not strictly in conformity with the tenets of the Hindu law. A IR 1954
HimPra 43.
10. "Unlawful and immoral purpose ."—(l) In a case of handing over a minor girl to a third
party with intent that the girl should be made to resemble a jat female and be used for the purpose of
cheating other persons and obtaining money, it cannot be said . that the purpose was immoral though it
was unlawful. AIR 1915 All 390.

(2) The purpose of prostitution is undoubtedly an immoral one. It is immaterial whether it. is also
unlawful or not as tle purpose is specifically mentioned in the section. So also is the purpose of illicit
intercourse specifically mentioned. To sell a mañied woman as a mistress of another person comes
within the section, such sale being for illicit intercourse. AIR 1934 All 324.
11. Intention or knowledge.—(l) Girl of an offence under this section and S. 373 consists in the
intention or knowledge referred to in the section. In the absence of such intention or knowledge, mere
buying, selling letting etc., of a minor girl is not an offence under this section. (1905) 2 GriLl 500.
12. "For the purpose of prostitution."—(l) "Prostitution" is the offering of the person for
promiscuous sexual intercourse with men. Making over a minor girl to a person for one act of sexual
intercourse with him is not disposal for prostitution. (1894) 21 Cal 97..
(2) Prostitution is proved if it be shown that a woman offered her body commonly for lewdness
for payment. (1918) 1 KB 635.
13. Procedure- L(l) The forum of trial is the place of disposal of the minor. If the sale has taken
place outside the jurisdiction of the Court it is not competent to try the accused. AIR 1951 Ajmer 68.
(2) C ognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session,
District Magistrate, Additional District Magistrate, Chief Metropolitan. Magistrate or Magistrate of the
first class specially empowered.
14. Charge.---(I) If the accused let to hire her daughter to several visitors for the purpose of
prostitution each transaction in an offence and so should form a separate charge and no more than these
such charges can be combined for joint trial. (1936) 40 Cal W N 1183.
(2) The charge should run as follows:
I, (name and office of the fudge etc.), hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at---sold (or let to hire, or disposed of) a person under the age
of eighteen years, to wit—with intent that such person should at any age be employed Or used for the
purpose of prostitution or for illicit intercourse with a person, to wit,—or for any unlawful and
immoral purpose viz. (state the purpose) or knowing it to be likely that such minor would he
employed or used for any such purpose, and thereby committed .an offence punishable under section
372 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
Sec. 373 Of Offences affecting the Human Body
1083
15. Pr
actice._Evidenee_proye: (I) That the person in question was under eighteen years of age
at the time of the offence.
(2) That the accused sold, let to hire, or otherwise disposed of such person.
(3)
That he did so with intent that such person should be employed or used at any age for the
purpose of prostitution, or for illicit intercourse with any person, or for any unlawful and immoral
purpose; or with knowledge that it was likely that such person would be employed or used for any
such purpose.

Section 373
373. Buying minor for purposes of prostitution,
etc.—Whoever buys, hires or
otherwise obtains possession of any 21 [pe rn
under the age of eighteen years with
intent that such person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral
purpose, or knowing it to be likely that such person will at any age be] employed or
used for any such purpose, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
23 [Explanation I.— A ny prostitute or
, any person keeping or managing a brothel,
who buys, hires or otherwise obtains possession of a female under the age of eighteen
years shall, until the contrary is proved, be presumed to have obtained possession of
such female with the intent that she shall be used for the purpose of prostitution.
Explanation II— "Illicit
intercourse" has the same meaning as in section 372.
Cases and Materials Synopsis
1. A mendments.
8. Illicit intercourse will: any person"—
2. Scope and applicability. Explanation II.
3. 'Rays or hires."
9. "Unlawful and immoral purpose."
4. "Otherwise obtains possession." 10.. Proof.
5. "Person under the age of eighteen years." 11. Procedure.
6. Intent or knowledge 12. Practice.
7. "Purpose of prostitution "—Explanation i. 13. Charge.
1. Amendments.---(I)
The word 'eighteen' was substituted for 'sixteen' by S. 2 of Penal Code
(Amendment) Act 5
of 1924. Latter by S. 2 of Act 18 of 1924 the words "person under the age of
eighteen years with intent that such person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing
to be likely that such person will at any age be" were substituted for the .words "minor under the age of
eighteen years with intent that such minor shall be employed Or used for the purpose of prostitution Or
for any unlawful and immoral purpose, or knowing it to be likely that such minor will be." The effect
of the second amendment is merely to enlarge the scope of the intent. A IR 1973 Cal 250.
2. Scope and
applicability._(1) This section deals with buyers or hirers of minor girls for the
purpose of prostitution or illicit intercourse with any person or for any unlawful and immora'

23. Inserted by Act XVIII of 1924, s. 4.

1084 Penal Code Sec. 373

purposes. Where a brothel keeper allows a girl to visit the brothel for two or three hours in the night
and allowed to prostitute herself to customers for money it is sufficient obtaining of possession within
the meaning of the section (29 CHU 993). The intention or knowledge requisite for an offence under.
this section may be presumed from the facts proved and tlie circumstances of the case (24 CniUJ 100).
(2) The offence of selling or buying a minor for the purpose of prostitution punishable under Ss.
372 and 373 is committed even where the minor, prior to such transaction, has been leading an
immoral life. (1906) 3 GriLl 334 (Born).
(3) Words "btherwise obtains "possession" in section 373 do not refer to possession obtained from
any other person—Gist of the offence lies in the exercise of effective control over the person under 18
years. Accused Mby inducement and false assurance betook a minor girl to his house and along with
his wife R confined the girl in their house and subsequently forced her to a life .of prostitution. Both
M and R were charged and convicted under section .366A P.C. and sentenced to rigorous imprisonment
for three years and a fine of Rs. 200.00 each. On appeal it was contended on behalf of R that the
ingredients of S. 366A P.C. were not applicable in her case and she might more appropriately be
convicted under section 373 P.C. Held: On evidence it appears that R exercised effective control over
the girl and forced he .to lead an immoral life. Hence the offence of the appellant R comes more
appropriately under section 373 of the Penal Code and therefore her conviction for one year under
section 366A was converted to one under section 373 P.C. The words "otherwise obtains possession"
occurring in section 37i P.C. cannot be construed as referring to possession obtained from any other
person. The gist of the offence under the section lies in the exercise of effective control over a person
under the age of 18 years with intent or knowledge that such person will be used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful or immoral purpose. Iviatiar
Rahrnan Vs. State, (1969) 21 DLR 903.
(4) Age of the woman at . time of recovery according to estimate arrived at from her statement in
witness-box is found to be above eighteen years—Charge fails. 15 DLR 115 WP.
3. "Buys or hires."—(l) The words "buys" is used in the ordinary sense and is correlative to the
word 'sells' occurring in S. 372. It is not essential to the offence under this section that the buying,
hiring or otherwise obtaining of the prossèssion of the minor should be from a third person. An
agreement or understanding come to with the minor herself without the intervention of a third person
would be also within this section. (1869-1870) 5 Mad HCR 473.
4. "Otherwise obtains possession."—(l) Minor girl running away voluntarily with accused—
Latter had no possession over girl as she was free to leave him at any moment. AIR 1937 Cal 250.
(2) A man enjoying sexual intercourse with minor girl does not obtain her possession. AIR 1934
Born 200. .
(3) Where a brothel-keeper allows a girl to visit the brothel for two to three hours in the night and
she is allowed to prostitute herself to customers for money, it is sufficient obtaining of possession
within the meaning of S. 373. A IR 1928 Born 336 . .
(4) It is not requisite for the purpose of this sction that the possession , of a minor should be
obtained from a third party. It is enough if it i established that the accused in fact obtained possession
of the minor with the intention of using her for prostitution. AIR 1942 Born 23.
(5) The expression "otherwise obtains possession" corresponds to the expression "otherwise
disposes of' because the previous words "buys" and "hires" correspond with the words "sells" and "lets
to hire" in S. 372. A IR 1937 Cal 250.
Sec. 373 Of Offences affecting the Human Body 1085
5. "Person under the 'age of eighteen years."—(l)'It is for the prosecution to prove beyond
doubt that the person whose possession was obtained is under the age of eighteen years. Where there
was no reliable evidence of age of the girl, the age of girl cannot be determined perfectly on one's
impression on seeing her. AIR 1932 Cal 417,
6. Intent or knowledge.—(l) It is not necessary that the intention should be to use the minor girl
immediately for the purpose of prostitution. (1913) 14 CrILJ33 (Mad).
(2) It is for the prosecution to prove that the adoption was made by a dancing girl with the
requisite intention. (1889) ILR 12 Mad 273.
(1) The question of intention or knowledge referred to in the section is a matter of inference from
the facts and circumstances of the case. AIR 1922 Cal 539.
7. "Purpose ofprostitution"—Explanation I.—( 1) The explanation provides that if the accused
is proved to have obtained possession of a minor female, whether by purchas, hire or in any other
manner, and is further proved to be a prostitute or a brothel-keeper she or he is presumed to have
obtained possession of the girl with the intent that she or he should use her for the purpose of
prostitution. Consequently, it is for the accused person to prove that she or he obtained the possession
of the minor for an innocent purpose. AIR 1943 Born 150.
8. "Illicit intercourse with any person"—Explanation II.—(1) Before the words illicit
intercourse" were introduced by Act 18 of 1924 the judicial view was that illicit intercourse was always
immoral but not necessarily unlawful and -so hiring of a minor girl for hersexual intercourse on one
occasion did not fall under S. 373. 1873 Pun Re No. 16 (Cr) 19.
9. "Unlawful and immoral purpose".—(l) Where an accused purchases a minor girl form
another and cohabits with her without performing the marriage ceremony he purchases the minor
intending that she should be employed for unlawful and immoral purpose. (1900) 20 A ll W N 133
(139).
10. Proof.—(I) The following circumstances were held sufficient to prove that the buying of a
minor girl was with the intention t&prostitute her during minority:
(I) that the accused was herself acquired during her infancy by a dancing girl, and was brought up
to become, and became, a dancing girl;
(ii) that it was the practice among dancing girls to acquire children for the purposes of bringing
them up as dancing girls;
(iii) that it was no instance of a girl so acquired being married;
(iv) that the accused lived the life of a dancing girl for twenty years and that she gave a large sum
of money for the purchase of good looking girls of tender age;
(v) that there was no suggestion that the accused acquired the girl for the purpose of adopting her.
(1900) ILR 23 Mad 159.
11. Procedure ^ (I) Where a minor married girl was, with her husband's consent brought from
Kashmir to Bombay at the expense of a brothel-keeper and was kept in brothel in Bombay, it was held
that what took place in Kashmir was only a preparation for committing the 6ffence under S. 373 which
was completed in Bombay, and that the Bombay Court had jurisdiction to try the offence. A IR 1927
Born 666.
(2) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session, Chief
Metropolitan Magistrate, District Magistrate, Additional District Magistrate or Magistrate of the first
class specially empowered. ,
1086 Penal Code Sec. 374

12. Practice.—Evidence—Prove: (1) That the person in question was under eighteen years of age
at the time of the offence.
(2) That the accused bought, hired, or obtained possession of, such person.
(3) That he did so with intent that such person shall at any age be employed or used for the
purpose of prostitution, or illicit intercourse with. any person, or for any utiJawful and immoral
purpose; or. with knowledge that it was likely that such person would, be employed or used for any
such purpose. . ..
13.Charge.—The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, bought (or hired or obtained possession of) X who at
the time was below eighteen years of age with intent that the said shall be employed (or used) for
purposes of prostitution or illicit intercourse or for any unlawful and immoral purpose or knowing it to
be likely that the said X will be employed or used for any such purpose and thereby you have
committed an offence punishable under section 373 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 374
374. Unlawful compulsory labour. 14[(1)] Whoever unlawfully compels any
person to labour against the will of that person, shall be punished with imprisonment
of either description for a term which may extend to one, year,or with fine, or with
both.
• 25[(2) 'Whoever compels a prisoner of war or a protected person to serve in the
armed forces of 16 [Bangladesh] shall be punished with imprisonment of either
description for a term which may extend to one year.
Explanation.— In this section the expression's "prisoner of war" and "protected
person" shall have the same meaning as have been assigned to them respectively by
Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War of
August 12, 1949, and Article 4 of the Geneva Convention relative to the Protection of
Civilian Persons in Time of War of August 12, 1949 26[* * .
Cases and. Materials
1. Scope.—( 1) This section makes unlawful compulsory labour an offence. Where compulsion is
authorised by law such complusion will be lawful. Where jailor who is in charge of prisoners compels
them to work against their will such complusion will not be unlawful as it is authorised by law. (33
CrLJ 553 .

24. The original provision or text of S. 374 was numbered as sub-section (I) of that section by the Pakistan Penal Code
(Arndt.) Act, 1958 (XXXVI of 1958). s.2.
25. Sub-section (2) along with Explanation was added, ibid
26. The words "ratified by Pakistan on the second June, 1951" were omitted by the Bangladesh Laws (Revision and
Declaration) Act. 1973 (Act VIII of 1973), 2nd Sch. (with effect from the 16th March, 1971).
Sec. 375 1
Of Offences affecting the Human Body 1087
(2) Where a person insists that another who has consented to serve him shall perform .his work, it
cannot be said that he unlawfully compels such person to labour because it is the thing which he or she
has agreed to do. (1892) ILR 19 Cal 572.
(3) Where there is or can be no agreement to serve between the accused person and the person
compelled to labour, the compulsion will be unlawful and the accused would be guilty under this
section. ('1897-1901) 1 UBR 337.
(4) Where a single act constitutes two distinct offences, one under Sec. 374 and another under the
Removal of Social Disabilities Act , and the offence under S. 374 is compounded, the accused cannot be
tried for the other offence, the two offences being identical. AIR 1952 All 366.
2. Practice.—Evidence---Prove: (I) That the accused compelled the person in question to labour.
(2) That such compulsion was unlawful.
(3) That the accused did so against the will of that person.
3. Procedure.—Not cognizable—Bailable—Not compoundable—Triable by any Magistrate.
4. Charge.—The charge should run as follows: .
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, unlawfully compelled X to labour against his will,
and thereby committed an offence punishable under section 374 of the Penal Code, and within my.
coginzance. . .
And I hereby direct that you be tried by this court on the said charged

Of Rape.
Section 375
375. Rape.—A man is said to commit "rape" who except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any
of the five following descriptions:—
First, —Against her will.
Secondly— W ithout her consent.
Thirdly.—W ith her consent, when her consent has been obtained by putting her in
fear of death, or of hurt.
Fourthly.— W ith her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married.
Fifthly.—W ith or without her consent, when she is. under 27[fourteen] years of age.
Explanation.— Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. . . .
Exception.— Sexual intercourse by a man with his own wife, the wife not being
under 27 [thirteen] years of age, is not rape.

27. Substituted by section 2 of the Indian Penal Code (Amendment) Act. 1925 (Act XXIX of 1925) for "twelve" which was
previously substituted for "ten" by the Indian Criminal Law Amendment Act (X of 1891).
1088 Penal Code Sec. 376

Cases and Materials

1. For cases and materials, see under section 376 next.

Section 376
376. Punishment for rape.—Whoever commits rape shall be punished with
'[imprisonment] for life, or with imprisonment of either description , for a term which
may extend to ten years, and shall also be liable to fine, 28 [unless the woman raped is
his own wife and is not under twelve years of age, in which case he shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.]
Cases and Materials (Sections 375 and 376) : Synopsis
1. Scope. 14. Prior statement of the prosecuirix.
2. Physical incapacity of accused. . .• 15. Testimony of prosecutrix.
3. "Against her will. " 16. Attempt to commit rape.
4. "Without her consent". 17. Attempt to rape and Section 354.
5. Consent obtained under fear of death or 18. Abetment of rape.
hurt—"Thirdly." . 19. Rape and adultery.
6. Consent obtained by fraud. 20. . Charge, trial and conviction.
7. Woman incapable of execising her will. . 21. Rape by military man.
8. Presumption and proof of consent. 22. Place of trial.
9. Fourth . clause. . .23. Sentence.
10. Sixth clause. 24.. Procedure.
II. Penetration. 25. Practice.
12. Exception . 26. Charge.
13. Burden of proof and appreciation of evidence.
i. Scope.—(1) The law of rape is designed to protect a woman's freedom of choice in her sexual
connections. The traditional view that one cannot be held guilty of raping his wife because her consent
to marriage constitutes a consent to sexual intercourse with him which in law cannot be revoked during
continuance of the marriage. The offence of rape is in law a single act of sexual intercourse. It is not a
continuing offence (40 CriLJ 280). Except the husband all other persons are liable for punishment for
having sexual intercourse with a woman without her consent. Her previous free consent is absolutely
necessary. Women are seldom proved to translate their thoughts in these matters into words. They
usually leave the matter of consent to tacit understanding. In such cases consent becomes a matter of
inference to be made from evidence of previous or contemporaneous acts and conduct and other
surrounding circumstances. Non-resistance if not otherwise accounted for should be real and unreal for
there is such a thing as maiden modesty and some resistance is simulated even by women who are
most anxious for the connection. In determining the question of consent these guiding principles
deserve to be kept in view. It is inconceivable that a grown up girl of about sixteen years would
submit to sexual intercourse without struggling. In the absence of injury in such a case, it has to be
held that the girl must have been a consenting party. Resistance may lead to personal injuries on the

28. Ins, by the Indian Penal Code (Amendment) Act, 1925 (Act XXXIX of 1925), S. 3.
Sec. 376 Of Offences affecting the Human Body 1089

body of the girl, the tearing of her clothes, her shouting to attract the attention of neighbours. It is an
essential part of the proof in rape that there should have been not only an assault but actual penetration.
Partial penetration which does not result in any injury to the hymen is sufficient to constitute the
offence of rape (28 CrL.J 241). A husband has no right to enjoy person of his wife, without having
regard to the question of safety to her. Where man has illicit intercourse with an adult woman with her
consent, it is no rape under the law (39 CrLJ 674). Only sexual intercourse without free consent of the
woman amounts to rape. Submission of her body under the influence of fear or terror is no consent.
Mere submission by one who does not know the nature of the act done, cannot be considered
consent Therefore, consent must be a conscious consent with the knowledge of the act involved. If
there be no consent, or if it be against the will of the girl, the age of the girl is immaterial for the.
• offence of rape. For broving the age of a girl, only conclusive piece of evidence may be her birth
certificate, but unfortunately, in this country such a document is not ordinarily available. The court has
to base its conclusion upon all the facts and circumstances disclosed on examining all the physical
fathers of the person whose age is in question, in conjunction with such oral testimony as may be
available (PLD 1958 SC 337).Therefore in fixing the age of the girl, growth of her teeth, public and
auxiliary hair, the growth of breast, height and weight of the girl are all relevant considerations.
Ossification test might be a better or surer test of determining age. It is desirable that ossification test
should be made where possible. Where there was no evidence of X-ray examination in spite of the
question in the doctors certificate, and the investigation officer, when.examined in the trial Court,
found it convenient not to say anything to explain this serious omission, benefit of the doubt must go
to the accused. Normally in rape case, direct evidence is not available except the evidence of the person
raped and it is unsafe to base a conviction on such evidence alone. If the evidence of the woman is
substantially corroborated by a number of witnesses and the medical evidence also supports the
prosecution cases, the accused may be held guilty of the offence of rape. In a case of rape, there was no
direct reliable evidence as to the commission of the offence, no blood or semen was discovered on the
body of the prosecutrix and there had been great delay in making the FIR and there was enmity
between the parties. All these circumstances combined to raise doubt in favour of the accused to the
benefit of which he is entitled (AIR 1916 Lah 292). In a case of rape of any innocent girl of tender age
the evidence of the raped girl is of great value and when she makes a statement by way of disclosure
immediately after the incident it is a strong piece of corroboration. It is hardly possible that any self-
respecting woman would come forward in a Court of Justice to make a humiliating statement against.
her honour of having been raped, unless it was absolutely ture. The evidence of the prose cutrix in a
rape case is customarily received by Courts with some suspicion. In certain jurisdiction, it is the rule
that the solitary evidence of the prosecutrix being a woman of full age is not accepted as sufficient, but
requires corroboration by independent evidence, in order to be believecL(1974) PCrLJ 16). There can be
no conviction for rape on mere suspicion or presumption. The commission of rape must be prOvd.
The rules of corroboration in case of rape are as follows: •
(a) It is not necessary that there should be independent confirmation of every material
circumstance in the sense that the independent evidence in the case apart from-testimony of
the complainant should in itself be sufficient to sustain the conviction.
(b) The independent evidence should not only make it safe to believe that the crime was
committed but must in some way reasonably connect the accused with it by confirming on
such material particulars the testimony of the complainant that the accused committed the
crime.
1090 Penal Code Sec. 376
(c) The corroboration must come from independent sources.
(d) The corroboration need not be direct evidence that the accused committed the crime. An
indecent assault upon a woman does not to amount to an ath.mpt to commit crime, unless the
court is satisfied that there was a determination in the accused to gratify his passions at all
events, and in spite of all resistance (1962 CrLJ 715). The drying declaration of a deceased
• person is admissible in evidence in a charge of rape.
(2) In charges of rape prosecutnx's evidence should be sufficiently corroborated and should be in
accord with the probabilities. A bdul Khaleq Vs. State (1960) 12 DLR (SC) 165: 1 q60 PLD (SC) 325.
• (3) Rape—Possible without injuries in the private parts—Absence of semen in the vagina does not
necessarily disprove that the woman was raped. The absence of injuries on the private parts of the
complainant can easily be explained by the .fact that the complainant had intercourse before. (Taylor,
2nd Volume, Page 80). The presence of spermatoza in the vagina is conclusive proof of sexual
connection but not of rape; their absence is no proof that connection had not taken place for they may
have been removed by washing or by discharge. Saleh Muhammad Vs. State (1966) 18 DLR (W P) 67.
(4) When circumstances lend support to the prosecutrix's deposition of rape, corroboration not
absolutely necessaiySa1eh Muhammad Vs. State, (1966) 18 DLR (W P) 67
(5) Prosecutrix's testimony on a charge of rape requires corroboration. Rashid Ahmed Vs. State,
(1958) 10 DLR 532.
(6) The mere fact of the story having been told to a number of relations shortly after the occurrence
is insufficient corroboration. Equally, the fact of the story having been communicated by the relations
to other neighbours and later to the authorities is by no means sufficient corroboration. A bdul
Khaleque Vs. State, (1960) 12 DLR (SC) 165.
(7) Rape, charge of—When not sustainable. In a case of allegation of rape where there is no
independent eye-witness and the only evidence is that of the prosecutrix herself and of Jiose to whom
it was reported, the courts are not left with any objective test for gauging tha truth of the story of the
prosecutrx. Expert examination of the person of the prosecutrix and of the place where the rape took
,
place is sine qua non ( an ingredient absolutely necessary) in such cases. Muflzuddin Mondal Vs.
State (1962) 14 DLR 821.
(8) Raped woman's physical marks on the body. In the case of rape, according to Modi's Medical
Jurisprudence the body, specially the face, breasts, chest, lower part of abdomen, limbs and back
should have marks of violence such as scratches and bruises, as a result of struggle, Such marks are
likely to be found on the bodies of grown up woman who are able to resist. Shah Khan V s. State
(1966) 18 DLR (W P) 91.
(9) Charge under sections 376/511 can be altered in appeal to one under section 376. Accused
charged and convicted under sections 376/511. Finding may be altered in appeal to one of conviction
under section 376 P. C and sentence be enhanced under section 439 Criminal P. Code. Fazal Karim
Vs. Crown (1955) 7 DLR (W P) 11.
(10) Unnatural offence—Penetration into anus is not essential for an offence under the section
Muhammad A li Vs. State (1960) 12 DLR 827. 1961 PLD (Dac) 447.
(11) Prosecutrix's evidence in a rape case—Caution to be observed.—The evidence of a prosecutrix
in a rape case is customarily received by Courts with some suspicion. In certian jurisdiction, it is the
rule that the solitary evidence of the prosecutrix being a woman of fill-age, is not accepted as
Sec. 376 Of Offences affecting the Human Body 1091
sufficient, but requires corroboration by independent evidence, in order to be believed. That is precisely
the case, and in addition, there is a series of circumstances appearing from the facts of the case, which
require that Mst. Hawa. Bai l s evidence implicating Mumtaz Ahmad Khan should not be accepted at its
face value. These circumstances have already been dealt with above, namely, the extra slightness of the
motive shown, the, fact that suspicion was cast on Mumtaz Ahmad Khan by the husband, who is said
by at least one reliable witness to have been named as the assailant in thefirst instance, the long delay
before Hawa Bai's statement was officially, recorded, the fact that by that day, the police had already
prepareda complete case against Mumtaz Ahmad Khan and finally, the circumstances -that to name the
husband at the stage was a practical impossibility for a woman situated as Mst. Hawa.. Bai was, in
particular that to do so would have meant ruin for the entire famil y. Mumtaz A hmed Khan Vs. Stale,
('1967) 19DLR (SC) 259
' (12) In a case of carnal offence the prosecution is to be believed in awarding conviction, to the
offender even without material corroboration, if victim's evidence is found believable and trustworthy
and does not suffer from any infirmity and inherent disqualification. Shamsul Haque (Md) Vs. State
(Criminal), 52 DLR 255. '.
(13) The offence committed by accused appellant finds corroboration from the medical report,
namely the report of P. W. I who found marks of vilence on the person of the victim, and opined that
this is a case of rape. The evidence of the witnesses has clearly established that accused appellant
committed the crime of rape on victim Kazal Rekha.. The learned Judge has lightly found the accused
guilty of the offence under section 376 of the Penal Code. Tofazzal Hossdin Khan Vs., The State, .17
BLD (HCD) 306
• (14) The High Court Division on consideration of evidence of PWs rightly found that accused-
petitioners Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim
girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are
based on proper appreciation of evidence on record. Bazlu Talukder Vs. The State, 20 BLD (AD) 227.
(15) Evidence of prosecutrix—In case of sex-offences similar importance of the evidence of the
prosecutnx must be given as in the ease of an injured Witness. There is no bar for the court in legal
custom or in evidence law to act on the sole testimony of the prosecutrix except in a rarest of rare eases
whether she is found unreliable. Jahangir Hossain Vs. The State 1, MLR (1996) (HC) 142.
(16)Offence of rape is not compoudable—The offence under section 376 is n9t compoundable:
The conviction and sentence based on evidence and proof cannot be interfered with. Shorbesh A ll &
another Vs Mrs. farina Begum & another-2, MLR (1997) (A D) 127.
(17) . Evidence of prosecutnix—conviction—The evidence of the victim girl aged 14 years as to
how she was forcibly raped in broad day light by the accused of a neighbouring house finding her
alone in her house and when she was over-whelmingly corroborated by 'other neighbouring witness
who came to the P.O. house immediately after the occurrence on hearing cries of the victim and when
the doctor found marks of violence and rape on her person such evidence go beyond doubt to establish
the charge under section 376 of the Penal Code against the accused and the conviction and sentence
passed thereon by the trial court are perfectly justified. Tofazzal Hossain Khan V s. The Stte,-2,
MLR (1997) (HC) 329.
(18) Victim disowning recognition—legal consequence—The FIR written by the cousin of the
victim girl and during trial the girl disowned the recognition of some FIR . named accused and the
cousin who wrote the FIR is not examined, conviction of the accused on the basis of this type of
1092 Penal Code Sec. 376

evidence cannot be sustained in the eye of law.. A bdul A ziz (MD) and others Vs. The State-2, MLR
(1997) (HC) 369.
(19) Offence of rape vis-a-vis the offence under section 342 of the Penal Code—jurisdiction of the
Court in appeal to alter the sentence.—The offence of rape punishable under Section 376 of the Penal
Code in view of its inclusion in the Schedule of the Special Powers Act, 1974 was triable by Special
Tribunal. On the other hand the offence under section 342 of the Penal Code is triable by the ordinary
criminal court. It is patently out of the jurisdiction of the High Court Division to alter the conviction
and sentence from section 376 to 342 of the Penal Code in an appeal preferred under section 30 of the
Speial Powers. A ct, 1974. A bdur Rahman and others Vs. the State-4, MLR (1999) (A D) 25.
(20) Evidence of the victim even though not corroborated by eyes when can form the sole basis of
conviction—In a case of rape there can hardly be any eye witness of the occurrence. When the evidence
of the victim woman appears to be reliable in the absence of any proof of enmity and no inconsistency
thereof transpired, such evidence of the victim alone may from the basis of conviction. When the
conviction and sentence of the convict-petitioner are based on the concurrent findings of the trial court
as well of the High Court Division and when such findings do not suffer from any legal infirmity, no
interference is called for. A bu Taher Mia alias Taher Mia Vs. The State 6 MLR (A D) 977.
(21) As the PWs contradicted each other as to who accompanied the appellant Bazlu in kidnapping
the girl aged 15 years who was raped by only one convict who is none other than Bazlu but the other
convicts are full brother and bhaista of him and it is highly improbable that all those persons together
would commit sexual intercourse on the girl when they are not professional or hardened criminals and
hence other convicts are entitled to get benefit of doubt. Bazlu Talukder and others V s. State
(Criminal) 1 BLC 261.
(22) As the prosecutrix did not sustain any injury on her face, cheeks or breasts at the time of the
commission of the alleged rape and the Medical Board also did not detect any trace of sexual violence
on the two victims the offence under section 376 of the Penal Code is not proved beyond all
reasonable doubt for which the appellants are entitled to get benefit of doubt. A bdul A ziz (Md) and
another Vs. State ('Criminal) 2 BLC 630.
(23) Ordinarily in carnal cases the evidence of prosecutrix is believed but in the present case the
contradictions are so major that the evidence of the prosecutrix cannot be believed. A bdul W ahed alias
Chandu Mia Vs. State (Criminal) 4 BLC 320.
(24) The appellant was the prime kidnapper and he forcibly had sexual intercourse are entitled to
get the benefit of doubt as has been rightly found by the High Division as such finding is based on
proper appreciation of evidence on record and hence no interference is warranted. Bazlu Talz.,kder Vs.
State (Criminal) 5 BLC (A D) 159.
(25) The FIR was lodged after one month and 20 days of the occurrence without offering any
plausible explanation when doctor deposed in court that he did not find any sign of rape on victim
Sufia Begum when there is a lot of inconsistencies and contradictions in the state of the physical
conditions of victim Sufia Begum following the occurrence and interested prosecution witnesses were
examined and it is inconceivable that accused Mansur Ali, however greatly he might have been swayed
by passion to satisfy his carnal desire, would commit rape in presence of his major married daughter.
Mansur A ll Bepari Vs. State (Criminal), 5 BLC 374.
(26) In sexual offence where the woman is grown up corroboration of her statement is ordinarily
required but such corroboration is not insisted upon whether the victim is a minor. Whdre
Sec. 376 Of Offences affecting the Human Body 1093
corroborative evidence is absent, evidence of victim woman may be relied on in circumstances as where
such evidence can be relied on. Evidence of the woman or the girl raped by force and against her will
cannot be rejected on the ground of being an accomplice, as in such cases she is victim of outrage,
Corroborative evidence need not be 'direct connecting the, accused with the crime—circumstantial
evidence serve the purpose—Caution which court and jury should observe in case &f corroborated
evidence in sex offences. Uncorroborated evidence of a victim girl whom accepted for conviction,
reason thereof should be started. Earlier statement of victim girl, used to corroborate her subsequent
statement, relevant. 35 DLR 373. .
(27) Sentence of the appellant as being too severe as agreed by the appellant's counsel has been
reduced to three years, RI under each of the sections but will run concurrently. This will meet the ends
of justice. 4 BCR 515 A D.
• (28) Rmena Khatun Rina aged ,about 16 years was a girl of exquisite beauty and she was also
a meritorious student reading in ClassXin Chraigharia High School. On 8-8-87 at about 8:30 AM she
left her house for going to the Head Master of the School for private coaching when she had on her
wearing a white paijama, a printed Kamiz and a white Orna. But she neither went to the Head Master
nor returned home nor attended the School and remained missing. The informant who was her nephew
and was an Assistant Teacher in the same school having found her absent in the school enquired from
the Head Master if she had gone for coaching and the Head Master said that she had not. Then on
return from school he enquired about Rina from her mother Sohera Khatun who also said that after
Rina went out from the house in the morning for going to the Head Master for private coaching she
did not return. The parents began to look for Rina in the house of relations quietly without making
public that she was missing which was out of natural delicacy. Since then she could not be traced at
all. On 12-8-77, that is about four days after, in the morning one Ansar Ali reported about the recovery
of a dead body in the sugarcane field while he was ploughing land. On getting the news the informant
the patents of Rina and others went and saw the dead body of Rina which all of them identified. The
dead body was found in severe condition, the scalp and two hands were found lying scattered and the
body was almost decomposed, most of the flesh being eaten up by animals. The blood stained Kamiz
and the Paijama and Orna with some hairs were found lying near the dead body. Rina's father was in
fainting condition and so the informant went to Gobindaganj PS and lodged FIR on the same day at
Il - I 5AM. From the evidence it is fully proved that Rina was forcibly lifted and several persons
committed rape on her by gagging and throttling her as a result of which she died. Thus Rina is found
to have been murdered according to the fourth provision of section 300 of the Penal ' Code. Confession
retracted after four months. Its credibility. From the evidence of the Magistrate PW 7 it is found that
he did not complain to the Magistrate that there was any torture on him or any indUcement on him to
make false confession. He did not show any mark of assault to the Magistrate nor the Magistrate
noticed any such mark. PW 8 Dr Ataur Rahman medically examined the accused Abdur Rashid on 5-9-
77 and he found no injury on the person of the accused excepting the scar mark caused by the biting of
the victim Rina. PWs 7 and 8 are independent official witnesses and had no reason to suppress the
truth. It is found that for over four months after the confession the accused appeared in court several
times'and never complained about the confession being obtained by torture, until 11- 1-78 when for the
first time he retracted the confession. Delay of 22 days made by PW 6 in disclosing the fact of
confession of rape committed by the appellant Abkur Rashid on the victim Rina. Reasons of delay in
making the disclosure explained. Confession, judicial or extra-judicial, whether retracted or not, can
validly form the basis of one's conviction (makers conviction). Judicial confession of accused Abdur
1094 Penal Codg Sec. 376

Rashid does not stand discredited merely, because, the implication of the other two co-accused in the
judicial confession of accused Abdur Rashid was not accepted by the court for want of supporting
evidence No premeditation nor intent for the commission of murder. Murder taken place in the course
of rape Regarding sentence it is found that the accused had not intention to conimit the murder but the
murder resulted form gagging and throttling on the girl in course of rape which was done with a view
to stop her from raising any voice. There is thus no premeditation nor intention for the murder which
only took place in course of the rape. It is also to be noted that the accused was convicted and
sentenced on as long as 20-9-80. Having considered all the circumstances we are of the view that the
sentence of transportation for life instead of, death will meet the ends of justice. 3
BCR 144..
(29) The offence committed by accused appilant finds corroboration from the medical report,
namely, the report of PW I who found marks of violence on the person of the victim and opined that
this is a case of rape and the evidence of the witnesses has clearly established that accused appellant
committed the crime of rape on victim Kazal Rekha. The learned Judge has rightly found the accused
guilty of the offence under section 376 of PC. Appeal dismissed. 17 BLD 306.
(30) In appeal in bail iiatter under section 376 PC. Cruelty to woman rejected. 11 BLD 106.
(31) Absence of sign of rape in medical certificate non-examination of the wearing cloth. 3
BLC 182. .
(32) Sometimes corroboration not necessary in case of prostitution, 376 applies. 45 DLR (AD) 66.
(33) In the face of specific allegation of rape kidnapping against police constables, referring their
case to higher police authority for departmental action is a wrong course. 32 DLR 298.
(34) Prosecutrix carrying on profession of prostitute at relevant time—Very strong evidence
required to substantiate offence of rape. Mere statement of woman that she was raped without any
specific allegation that intercourse was without her consent not sufficient without corro&oration. 15
DLR 115 W P. .
2. Physical incapacity, of accused.—( 1) The presumption that a boy under 14 is incapable of
committing rape does not apply to case arising under the Code. A IR 1915 A ll 134.
(2) Even a boy of ten can be convicted of an attempt to commit rape if he has attained sufficient
maturity of understanding to judge the nature and consequences of his conduct. A IR 1935 Rang 393.
3. "Against her wilL"--( 1) Even where the girl ravished is below 12 years of age and as such is
incapable under Sec. 90 to give her "consent" to the act of sexual intercourse, evidence is admissible to
show that she was a willing party to the act. But this will not be sufficient to absolve the accused from
guilty. A IR 1933 Rang 98. .
4. "Without her consent."—(l) Where a woman is over 16 years of age sexual intercourse with
her without her consent (except where the case is c.overed by the exception) is an offence ufider this
section. (1961) (1) CriL..J 689 (Orissa).
(2) Sexual intercourse with woman's consent (except where the consent is given under the
circumstances mentioned in the clauses "thirdly" and "fourthl?') is not an offence under this section.
1979 CriLR (Born) 118. . . .•
(3) Consent to sexual intercourse on a promise of marriage is not one induced by misconception of
fact and S. 80 cannot be called in aid to fasten criminal liability on the accused. (1983) 2 CaIHN 290.'
(4) Submission is not necessarily consent though a consent may necessarily involve submission.
A IR 1967 Raj 159. .
Sec. 376 Of Offences affecting the Human Body 1095

(5) It is a question depending on the circumstances of each case whether the alleged consent by the
victim was mere passive submission,, or willing consent. The conduct and behaviour of the victim are
material factors to be considered. AIR 1979 SC 185.
(6) Absence of injuries to either the accused or the prosecutrix, no alarm raised by prosecutrix,
intercourse repeated are some of the circumstances which may give rise to the inference that prosecutrix
was consenting party. AIR 1977 SC 1307.
5. Consent obtained under fear of death or of hurt—"Thirdly".--( 1 ) L would depend on the
facts and circumstances of each case whether the consent was obtained under fear of death or hurt. AIR
1979 SC 185.
(2) Where, the fear to which the womänwas subject was, neither death nor hurt but of being
arrested when as a matter of fact there was no warrant of arrest against her, it was held that the consent
though obtained by fraud was none the less consent and the accused was not guilty under S. 376. AIR
1955 Nag 121.
6. Consent obtained by fraud.—(1) In England consent obtained by fraud is tantamount o
consent obtained by force and violence and hence will not be a defence to a charge of rape. (1877) 2
QBD 410.
7. Woman incapable of exercising her will.—(1) In following cases for offence of rape, the
woman could not be aid to consent to the act, when the woman is:
(a) insensible; (1859) 8 COxCrC 131.
(b) asleep (1878) 14 CoxCriC 114.
(c) in a state of unconsciousness. (1846) 2 Cox 115.
(d) in a state of drunkenness 1953 RajL W 255 (DB)
8. Presumption and proof of consent.--(I) Consent, or the absence of it, can be presumed from
the attendant circumstances of each case. The first and foremost circumstance that can be looked for in
cases of rape is the evidence of resistance which one would naturally expect from a woman unwilling
to yield to a sexual intercourse forced upon her. Such a resistance may lead to the tearing of clothes,
the inflicting of personal injuries and even injuries on her private parts, 1972 CriL.J 270.
(2) From the mere fact that the woman did not bear the best of character, it cannot be inferred that.
she was a consenting party. AIR 1953 Ajmer 12.
(3) Mere presence of semen on the loin cloth of the woman does not mean that she was consenting
party. AIR 1925 Lah 94. .
(4) The fact that the girl was virgo intacta ( =pure virgin) up to the date of the occurrence is very
strong proof against consent. AIR 1925 Lah 613.
(5) From the mere fact that medical evidence showed that some person had sexual intercourse with
the woman and that too not in the normal way, one cannot conclude that such intercourse was
committed without her consent. A IR 1955 NUC (Tra y-Go) 3464 (DB).
9. Fourth clause.—Where, the consent is . given by a woman to the act of sexual intercourse in the
belief that she is married to the accused, this clause is not attracted. (1969) 1 MysLi 304 (306).
(2) This clause does not apply to sexual intercourse carried on under the relationship of paramour
and concubine. AIR 1969 All 489.
10. Fifth clause—(l) No questici of consent arises in a case falling within the fifth clause. 1980
MadLW (Cri) 36.
1096 1Penal Code Sec. 376

(2) Sexual intercourse with a woman under the age of 14 years is rape irrespective of any consent
on her part. AIR 1981 SC 261.
(3) When consent is pleaded in defence to a charge of rape, the question would arise as to whether
the girl was of age to give consent in law. A IR 1957 A ssam 39.
• (4) Age of the prosecutrix is important expecially where according to the medical evidence she was
used to sexual intercourse and there was old rupture of the hymen. A IR 1970 SC 1029.
(5) In the ascertainment of age, the entry in Kotawari .book which is genuine can certainly be taken
into consideration as a strong piece of evidence. A IR 1958 SC 143.
(6) Unproved and unexhibited school certificate cannot be treated as evidence. A IR 1970 SC 1029.
(7) A doctor's evidence as to the age is no more than an opinion. A IR 1957 A ssam 39.
8. Penetration.—(1) There need not be a completed act of intercourse to constitute an offence
under this section. If there is penetration the prisoner can be convicted of rape though there is no
emission from him. 1980 Cr/Li 1380 (Born).
(2) It is impossible to lay down any express rule as to what constitutes penetration. All that can be
said is that the privateyarts of the male must be inserted in those of the female and no rule can be laid
down as to the extent of depth. A IR 1960 Mad 308.
(3) Courts are reluctant to believe that there could have been penetration without the hymen which
is so very near the entrance having been ruptured. A IR 1927 Lah 222.
(4) Where in case of rape, no question was asked to the doctors as to whether if there was a small
degree of penetration, spermatozoa would necessarily be present or not, the absence of spermatozoa
could not negative rape. 1980 CriLJ 1380 (Born.)
12. Exception.—(1) The marital right of the husband to have intercourse with his wife exists by
virtue of the consent given by the wife at the time of the marriage and not by virtue of a consent given
at the time of each act of intercourse, as in the case of unmarried persons. (1949) 2 A l/ER 448.
(2) The Exception to the section shows that even in the case of a husband, sexual intercourse by
him with his wife against her will or without her consent will bean offence of rape if the wife is below
fifteen years of age; A IR 1917 Sind 42.
13. Burden of proof and appreciation of evidence.—(1) The burden of proof is on the
prosecution to prove all the elements of theoffence. 1974 Cr/Li 117.
(2) Medical examination several days after the alleged act in the case of a woman who had borne
several children would have no value. A IR 1935 Nag 69.
(3) Mere presence of semen in the dress of the woman and/or of the accused or the absence of
smegma on the private parts of the accused is not sufficient to prove that the woman was raped or that
it was the accused who raped her. A IR 1973 SC 343.
(4) The alleged victim and the accused should be specifically examined with a view to ascertain if
they are infected with venereal disease. A IR 1954 Orissa 33.
(5) Prosecution of accused persons under—Delay in lodging F.I.R. reasonably explained—Victim,
below 16 years of age—Question of consent did not arise—Fact of absence of injury to private parts of
victim and her being used to sexual intercourse is immaterial--Accused convicted. AIR 1981 SC 361.
(6) In a rape case the prosecutrix and her husband belonged to backward community living in a
remote a rea and as such they could not be expected to know that they should rush to a doctor after the
occurrence of the incident and the absence of any injuries on the person of the prosecutrix who was the
helpless victim of rape might not by itself discredit the statement of the prosecutrix and in such a
Sec. 376 Of Offences affecting the Human Body 1097

situation the non-prodüctioñ of a medical report would not be of much consequen .ceif the other
evidence was believable AIR 1983 SC 911. 1
(7) The mere existence of injury to the vagina does not necessarily and, inevitably justify the
inference that there has been rape. AIR 1938 Rang 298.
(8) Where hymen of victim ruptured and bruises found around it—The same was held sufficient to
prove crime. AIR 1979 SC 1194.
(9) Where the medical examination revealed laceration of the hymen, posterior perineum and
vaginal walls of the victim, the fact that there were no injdries on the person of the accused and
particularly his penis, cannot be a ground for discrediting the prosecution evidence. AIR 1969 All 216.
(10) Absence.of corroborative evidence or absence of injuries on person of victim is not fatal to
prosecution in each case. AIR. ] 981 SC 559.
(II) Where, on a charge of rape against several accused, the evidence of the woman is unreliable
with reference to some accused, it is unsafe to act on her evidence with respect to other' accused unless
it is corroborated by independent testimony. AIR 1951 Tray -Co 167 (169) 52 UiL.J874.
(12) The alleged victim's suicide cannot be a basis for adverse inference against the accused in a
rape case..A IR:I9lSLbw..Bu 'r 81. - - - --., -
(13) Where t he evidence established that the girl was playing in broad day light that she was
carried away by the accused and brought back crying after a time, that there was a first information
lodged before the police shortly. thereáfter, that the thédieäl exárninatiófl of the acused's genitals -
indicated the presence of spermatozoa—Held that the circumstances were sufficiently corroborative of
the guilt of the accused. A IR 19 6SG.774.
14 Prior statement of the prosecutrix —(1) The statement made by the prosecutrix, soon after
the crime is admissible in evidence to prove her conduct 1980 CriLi 264 (Cal)
15 Testimony of prosecutrix—(1) Normally no woman would come forward to make a
humiliating statement against her honour of having been raped, unless it was true AIR 1956 All 22
(2) Even though a victim of rape cannot be treated as an accomplice, the evidence of the victim in
a rape case is to be treated almost like the evidence of an accomplice equiring corroboration But if a
conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on
that sole ground. A IR I9S3SC9II..
- (3) It is highly unsafe to cOnvict the accused on the uncorroborated testimony of the prosecutrix.
AIR 1942 Bom121..•
(4) The law does not require corroboration and therefore, there is no bar to convict the accused on
her testimony alone. AIR 1983 SC 753. . ..
(5) The rule requiring corroboration is not a rule of law but a rule of prudence and the need for
corroboration, as a matter of ptudènce, except in cases where the circumstances make it safe to dispense
with it, must be present to the mind of the judge, before a conviction without corroboration can be
sustained. AIR 1973 SC 469.
(6) The nature and extent of the corroborative evidence that is required would necessarily vary
according to the circumstances of each case. AIR 1958 SC 143.
(7) The previous statement is admissible as corroboration under S. 157 of the Evidence Act. AIR
1951 Ajmer 60. . . .. . . .. . . .
(8) The rule as to necessity for corroboration will apply whether the witness is a child or an adult.
AIR 1946 PC 3.
1098 Penal Code Sec. 376
16. Attempt to commit rape.—(1) An attempt to commit rape is an act done with an intent to
commit a crime in part, execution of criminal design amounting to more than mere preparation but
falling short of actual consummation which if not prevented would have resulted in the full
consummation of the act attempted. 1972 Raj LW62O.
(2) Where the accused stepped across from his own roof to that of his neighbour at night and
caught hold of his daughter, got on to the charpoy with her, undid the string of her pyjama and was
seen struggling with her, when the neighbäur's wife came up in answer to her daughter's cries and he
then ran away, the accused was liable to be convicted for attempt to commit an offence under this
section. AIR 1927 Lah 580.
(3) It must, in every case, be a question depending upon the circumstances whether a particular act
done with the requisite intention towards the commission of an offence is sufficiently proximate to its -
commission to, constitute an attempt or is so remote as merely to constitute preparation for its
commission. AIR 1927 Lah 58.
17. Attempt to rape and Section 354.—(1) The distinction between an attempt to commit rape
and an attempt tcommit an indecent assault is sometimes thin. AIR 1960 Madh Pra 155.
(2) Forcibly making a girl, flaked and repeatedly trying to force the male organ into her amounts to
an attempt to commit rape and not merely indecent assault. 1978 Raj C'riC 14(16).
18. Abetment of rape.--(I) Where the evidence was th&t A.was standing with open knife while
rape was being committed by B, A was held guilty of the abetment of the offence of rape committed
by B. AIR 1953 Ajnzer 12.
19 Rape and adultery.--(I) When a married woman is above 16 and has consented to the sexual
intercourse by the , accused, t.he act of the accused will amount only to the offence of àdáltry and not
rape 1958 Raj LW6O
20 Charge, trial and conviction.---(]) A joint trial of 51 accused on charges under S 366 and this
section is justified under $. 239(d), Criminal P. C. (1898) if the àffenës are committed in the course
of the same transaction. AIR 1941 Sind 121.
(2) Where the details of the charge under Ss. 342, 347 and under :this section enumerate several
different instances of confinement and rape and extended over different periods, they cannot all be tried
in one trial. AIR 1938 Cal 769.
(3) A conviction under this section cannot be altered in appeal to a conviction under S. 323
(simple hurt). AIR 1934 Lah 178. . .
(4) A person charged under this section cannot be convicted under S. 498 (adultery) in the absence
of a complaint by the husband as required by S. 199, Criminal P. C. AIR 1940 All 2Q1.
21. Rape by military man.—(l) Where the accused on 'active service in the army is charged with
rape and is handed over to the police without being detained in military custody and the discretion
under the Army Act is not exercised by the Commanding Officer that the accused should be tried by
Court martial, the offence is triable by the criminal Court. 1971 CriL] 554.
22. Place of trial.—(]) Where the girl is kidnapped in place X and raped in place Y, the inquiry
or trial can be at either of the places, as both the offences form parts of a transaction' within the
meaning of S. 220, Criminal P. C 1980 CriLi 1145.
23. Sentence.—( I) A custodial sentence for rape necessary for various reasons: to mark the gravity
of offence, to emphasise public disapproval, to serve as a warning to others, to punish the offender and
last but not the least, to protect women. The length of the sentence would depend , on all the
circumstances—Features aggravating the crime enumerated. (1982) 7 WLR 133.
Sec. 377 Of Offences affecting the Human Body 1099.
(2) The question of sentence is always in the discretion of the trial Court. (1971) 3 SCC 934.
(3) If it is established that even after the occurrence, the prosecutrix has been iving in the house of
the accused and has given birth tochiidren from the liaisoti, these facts can be taken into account in
fixing the quantum of punishment. AIR 1981 SC 39.
(4) Regarding applicability of the provisions of Réforthatory SchOols Act. AIR 1968 Madh Prc: 188.
(5) If a person abducts a woman with intent to rape her and does rape her, he can be aw'arded
separate sentences under Sec. 366 and Sec. 376. In such cases the offences should be considered as
distinct offencés committed in the course.of the same transaction. AIR 1967 Goa 86.
4. Procedure.--(I) An appeal , against a conviction and sentence for an offence under this
section does not abate, because of the death of the appellant. 1965 All LJ451.
(2) Where the Court is of Opinion that the child upon whom an offence under this section is
committed is unable to give relevant information in the matter, by reason of tender years and
consequent immaturity of judgment, it should not examine the child at all. A IR 1930 Lah 337.
(3) If the accused in a rape case is not able to engage counsel to defend him, Court must appoint
one as 'amicus curiae' (a friend of the court) in proper cases. A IR 1942 Mad 285.
(4) (a) If the sexual intercourse was by a man with his own wife, being under 12 years of age—Not
cognizable—Summons—Bailable--Not compoundable—Triable by Chief Metropolitan Magistrate,
District Magistrate or Additional District Magistrate specially empowered. .
(b) In. any other case—Cognizable—Warrnt---Not bailable—Not compoundable—Triable by
Chief Metropolitan Magistrate, District Magistrate. or Additional District Magistrate specially
empowered. . .
(c) Triable by Tribunals under Act XIV of 1974 and Act VIII of 2000.
25. Practice.—Evidence—Prove: (I) That the accused had sexual intercourse with the woman in
question.
(2) That the act was done under circumstances falling under any of the five descriptions specified
in section 375.
(3) That such woman was not the wife of the accused; or if she was his wife, she was under,
thirteen years of age. .
(4)That there was penetration. .
6. Charge.—The charge should run as follows:
I (name and Offie of *the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at---committed rape on X and thereby committed an offence
punishable under section 376 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Of Unnatural Offencés .
Section 377 . ' . •'
. 377. Unnatural offences.—Whoever voluntarily has . carnal intercourse against
the order of nature with any man, woman or animal, shall be punished with
'[imprisonment] for life, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
Explanation. —Penetration is sufficient to constitute the carnal intercourse
necessary to the . offence described in this section. '.
1100 Penal Code Sec. 377

Cases and Materials

1. Scope.-(1) This section may be read with sections 10, 39 and 47 of the Penal Code, Under
this section both active and passive agents are guilty of the offence, even if the act has been done with
consent. To constitute this offence penetration should be strictly proved (1935 CrLf 718). Emission is
not essential. The unnatural offences are: (a) Sodomy and (b) Bestiality. Sodomy consists of
penetration per anus with another person. Bestiality can be committed either by a male or female•
human being with an animal. Where the mate organ is inserted or thrusted between the thigh there is
penetration to constitute an offence under section 377 of the Penal Code (1969 CrLf 818). The shape
of the wound on the passive agent in sodomy is characteristic, and it cannot be produced by any hard
substance. A true sodomy wound is triangular, the base external, with the sides of the triangle
retreating into the fundament. Therefore when this.eharacteristic wound is found on the victim, it goes
a long way to prove the offence. Where medical evidence shows abrasion on anus due to unnatural
intercourse and this corroborates the FIR the accused may be convicted under section 377. In a charge
of sodomy, stains of semen constitute important evidence. Great weight must therefore be attached to
the chemical examiner's report (31 CrLf 343). The evidence required to establish the offence is the
same as in rape with the exception that it is not necessary to. prove the offence to have been committed
against the consent of'the person on whom it has been perpetrated and that both the parties to the
offence (if consenting) are equally guilty. .
(2) Evidence regarding penetration is essential. Evidence in support of a charge under section 377,
must be convincing as it is very easy a charge but extremely difficult to refute it. One of the essential
ingredients to prove an offence under section .377 is, among others, that penetration must have been
effected. In this sense the committal of an unnatural offence is very similar to that of rape where
equally penetration is an essential ingredient which must be proved before conviction can follow. Md.
Shuaib Vs. Crown I PCR 39.
(3) Attempt to commit an offence of sodomy—Actual penetration not necessary to constitute the
offence. A li Md. vs. State (1970)122 DLR (W P) 153.
(4) Sodomy—Definition of some sort of penetration to be proved to constitute the offence under
the section.Nur Mohammad Vs. State 41 .DLR 301. -
(5) Sodomy—Ingredients of the offence—One of the essential ingredients of the offence is that
penetration has been effected—The degree and extent of penetration is not necessary to be proved but
some sort of penetration must be strictly proved to support the charge of sodomy. Nur Mohammad
alias Bog Master Vs. The State, 9 BLD (HcD) 314.
(6) Medico Legal Evidence—Its value in an unnatural offence—Non-examination of the victim by
any doctor or in the alternative if the victim was at all examined non submission of the medical report
and the absence of the in 1ical evidence renders the prosecution case doubtful. Nur Mohammad alias
Bog Master Vs. The State 9 BLD (HCD) 314.
(7) Burden of proof—Act of sodomy is pot done in presence of others who night be eye witnesses.
But prosecution is not absolved of the burden of proving the offence. Absence of medical report about
the sodomised act castserious doubt on the prosecution case. Burden of proof heavily lies on the
prosecution to prove the alleged act by reliable and convincing evidence. Shifting of burden of proof
on defence—Talk of amicable settlement between the parties made the basis of corroborative proof of
the aliegdd occurrence in total ignorance of established principle of Criminal Jurisprudence. High Court
Division does not ordinarily interfere with the concurrent findings of facts arrived at by the Courts
below but the present case is an exception to the rule (Ref 9 BLD 314. 1 PCR 30). 41 DLR301.
(8) The -accused appellant committed sodomy on a child namely, Saifullah who was found in
almost unconscious condition. The accused appellnt himself was under 16 years of age when he
4
Sec. 377 . Of Offences affecting the Human Body .. 1101
committed the offence. He was tried under the provision of CrPC. Penetration is sufficient to
constitute the carnal intercouise. The accused appellant having been under 16 years of age, his case
comes under the provisions of Children Act, 1974 (XXXIX of 1974). 2 BCR 114.
(9) The term "sodomy" means non coital carnal copulation with a member of the same or opposite
sex. e.g., per anus or per Os. Thus a man may indulge in sodomy even with his own wife. A IR 1982
Kant 46.
(10) Carnal intercourse with a bullock through its nose is an unnatural offence punishable under
this section. A IR 1934 La/i .261. .
(11) Where before the accused could thrust his organ into the anus of the passive agent, he spent
himself the accused could not be found guilty of an attempt to commit sodomy. A IR 1934 Sind 206.
(12) A charge under this section is one very easy to bring and very difficult to refute and
consequently the evidence in support of such a charge has to be vetyconvincing. A IR 1926 Lah 375.
(13) Where there is no evidence of any unnatural offence having been committed, the conviction
for that offence merely on certain remarks in the post-mortem report cannot be justified. A IR 1955
NUC (MB) 4885 (DB). . .
(14) It is desirable to -consider medical evidence regarding the condition and appearance of the anus
of the person on whom sodomy was alleged to have been committed. A IR 1947 A ll 97.
(15) Seminal stains on the dress of the accused is a relevant factor to be taken into consideration
depending upon the facts of each case. A IR 1955 NUC (Punj) 4997.
(16) An offender under this section must be awarded a deterrent sentence. A IR 1933 Sind 87.
(17) Where the, accused was convicted for committing an unnatural offence upon a young boy in
view of the fact that no force was used, the sentence of three years imprisonment was reduced to 6
months. A IR 1983 SC 323. . .
(18) If the main accused had attempted to commit an offence under this section the abettor who
was present could be found guilty only under"ihis section read with Section 116. A IR 1935 Sind 78.
2. Practice.—Evidence---Prove: (I) That the accused had carnal intercourse with a man, woman or
animal.
(2) That such intercourse was against the order of nature.
(3) That the accused did the act voluntarily.
(4) That there was penetration.
.3. Procedure.—Cognizable—Warrant--Not bailable—Not compoundable—Triable by District
Magistrate or Additional District Magistrate specially empowered, or Chief Metropolitan Magistrate.
4. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the. accused) as follows:
That you, on or about the—day of—at—had carnal intercourse against the order of nature with a
certain man (or woman), to wit--(or with a certain animal), to wit (specify the kind of animal), and
thereby committed an offence punishable under section 377 of the Penal Code and within my
cognizance.
And I hereby direct that you be tried by this Court on the said charge.
• CHAPTER XVII
Of Offences Against' Property

Chapter Introduction.—Our Constitution recognises the fundamental right of citizens

to acquire, hold, transfer and otherwise dispose of property (article 42) and the primary
responsibility as part of governance by the Government is to give protection to the
property of their citizens. Offences against property are naturally enacted to conserve
and preserve private rights in property against adverse attacks upon it. A s such, they
belong to that branch of jurisprudence which protects persons against violations of
their, right in property. But cases of aggravated violations of such rights have always
been regarded as fit for speedy and deterrent action. This accounts for the evolution
of a system which discriminates between civil and criminal remedies, Jbr which a
division between civil and criminal law becomes necessary. Such a division could not
possibly be made by a sharp line, and howmuchsoever may be the care taken to define
the province of the two branches of law, there must always remain cases on the frontier in
which it is difficult to decide whether they legitimately appertain to the domain of civil or
of criminal law. Indeed, this is really the battle-ground of the different systems upon
which the laws of various countries are likely to differ. But they all agree in the central
thought which prevades all systems, of which the principle is to make the protection of
property a concern of the State. But how far it should go and when the State should
withdraw, leaving the person aggrieved to his civil remedy, is a question upon which
there is not likely to be any uniformity or consensus of opinion amongst jurists, though
with the growth of international communication and diffusion of learning there is its
possibility.
This Chapter deals with:
(1) Theft (Secs. 378-382).
(2) Extortion (Secs. 383-389):
(3) Robbery and Deco ity (Secs. 390-402).
(4) Criminal Misappropriation of Property (Secs. 403-404).
(5) Criminal Breach of Trust ('Secs. 405-409).
(6) Receiving Stolen Property (Secs. 410-414).
(7) Cheating ('Secs. 4I5-420)
(8) Fraudulent Deeds and Disposition of Property (Secs. 421-424).
("9) Mischief (Secs. 425-440).
(10) criminal Trespass . 'Secs. 441-462).
Sec. 378 Of Offences Against Property 1103

Of Theft
Section 378
378. Theft.—Whoever, intending to take dishonestly any moveable 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 /—A thing so long as it is attached to the earth, 'not being moveable.
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 2.—A moving effected by the same act which effects the severance
may be a theft.
Explanation 3.— 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 4— Aperson, who by any means causes an animal to move, is said
to move that animal, and to move everything which, in consequence of the motion so
caused, is moved by that animal.
Explanation 5..—The consent mentioned in the definition may be express. or
implied, and may be given either by the person in possession, or by any person
having for that purpose authority, either express or implied.
Illustrations
(a) 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 .
'b)A puts a bait for dogs in his pocket, .and thus induces Z's dog tofu/low it. Here, if
A 's intention be dishonestly to 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 . ' ...
(c) A meets a bullock carrying a box of treasure He drives the bullock in a certain
direction, in order that he may dishonestly take the treasure, A s soon as the bullock
begins to move A has committed theft of the treasure
(d) A being Z's .servant and entrusted by Z with the care of Z's plate dishonestly runs
away with the plate,. without Zs conseiii. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A the keeper of a warehouse, till Z
shall return. A carries 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.
00 A finds a ring belonging to Z On a table in the house which' Z occupies. Here the
ring is in Z's possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the high-road no, in the possession of any person. A , by
taking it, commits no theft, though he may 'commit criminal misappropriation of
property. '
1104 Penal Code Sec. 379

(h) A sees a ring belonging to Z.lying . on a table in Z's house. Not venturing to
misappropriate the ring immediately, for fear of search and detection, .A hides the ring in
a place where it is highly improbable that it will ever be found by Z, with the intention of
taking the ring from the hiding place and selling it when the loss is firgolten. Here A , at
the time offirst moving the ring commits theft.
(1) A delivers his W atch. to Z a jeweller, to be regulated. Z carries it to his shop. A ,
not owing to the jeweller an y debt for which the jeweller might lawfully detain the watch
as a security, enters the shop openly, takes his watch byforce.out of Z's hand, and carries
it away. Here A , though he may have committed criminal trespass and assault, has not
committed theft, inasmuch as what he did was not done dishonestly.
60 If A owes money to Zfor repairing the watch, and if Z retains the watch lawfully
as a security for the debt, and A takes the watch out of Z's possession with the intention of
depriving Z of the property as a security for his debt, he commits theft, inasmuch as he
takes it dishonestly. . . .
(k) A gain, 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 inasmuch -as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z's possession without Z's consent, with the
intention of keeping it until he obtains money form Z as a reward for its restoration. Here
A takes .dishonestly; A has1therefore . committed. theft.. .. . .. ....
(m) 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 merely of reading it, and with the
intention of returning it. Here it is probable that A may have conceived that he had Z's
implied consent to use Z's book. If this was A 's impression, A has not committed theft.
(n) A asks charity from Z's wife. She gives A money, food and clothes; which A knows
to belong to Z, her husband. Here it. is probable that A may conceive that Zs wife is
authorized to give away alms. If this was A 's impression, A has not committed theft.
'o,) A is the paramour of Z's wife. She gives A valuable property, which A knows to
belong to her husband, Z, and to he such property as she has not authority from Z to
give. If A takes the property dishonestly, he commits theft..
(p) A , in good faith, believing property belonging to Z to be A 's own property, takes
that property out of B's possession. Here, as A does not take dishonestly, he does not
commit theft.
Cases and Materials : Synopsis
1. For cases and materials, see under section 379 next.

Section 379
379. Punishment for, theft.-Whoever commits theft shall be punished with
imprisonment of either description for a term which may extend to three years, or
with fine, or with both. ..
Sec. 379 Of Offences Against Property 1105

Cases and Materials : Synopsis

1. Scope. 25. Creditor removing property of debtor.
2. Railway Property (Unlawful Possession) A ct. 26. Temporary removal.
3. Dishonest intention; 27. Master and Servant.
4. "Out of the possession of any person "• 28. Hire purchase agreements.
5. "Moves that property in order to such 29. Theft by more persons than one.
tak ing"
30. Theft and mischief.
• 6. Explanation 1.
that person's consent"- 31. Theft, criminal misappropriation and
• 7. "W ithout , criminal 4reach of trustt.
Explanation 5. . .
8. Subject of theft must be moveable property. , 32. Theft and criminal trespass.
9. Theft of wood from Government forest. 33. Theft and wrongful restraint.
10. Theft of telegraph wire: 34. Theft and secreting document.
11. Theft of aircraft. . . 35. Theft and receiving stolen property..
12. Theft of fish in water. 36. Theft and unlawful assembty.
13. Theftofsalt. • 37. Theft and robbery.
14. Theft of water. 38.. Attempt to commit theft..
15. Theft of electricity. 39. Burden of proof and appreciation of evidence.
16. Theft of gas. . . 40. Possession of stolen pioperty-Presumption.
17. Removal of cattle, horses, etc. turned loose. 41. Punishment.
18. Bona fide claim of right. 42. Abetment of theft.. .
19. Culling and removal of trees.
43. Procedure.
20. Removal of crops.
.44. Charge.
21. Joint possession. .
45. Form of charge.
22. Removal of property by wife.
23. Removal by owner. . 46.' Civil liability ' for damages for removal of
property by theft.
24. Property under attachment or in respect of ,.
which Orders under Ss. 144, 145, Cr. P.C. are 4 7.Practice.
passed-Removal, by owner. ' . . .. .
1. Scopè.-(1) The word 'dishonestly' 'used in section 378 has to be read with sections 23 and 24
of this Code. The word 'dishonestly' occurring in the section involves both concepts "intention" and
"dishonestly" and "dishonestly" again involves wrongful gain or wrongful loss. Intention is the key
note of this section. The intention must be to take any movable property of the person 'dishonestly'
and 'dishonestly' is defined in the Code as causing wrongful loss to one person and wrongful gain to
another person and a wrongful gain or loss of property is achieved by unlawful means. This intention
to adopt.an unlawful or illegal means to achieve an illegal gain is the main ingredient of the offence of
theft. It should be taken out of the possession of another person. A bonafide claim of right is a valid
defence to a prosecution for theft. In order to set up in defence a plea of 'bonafide claim of right ,' to a
charge of theft, it is necessary that the plea must be a honest one and made in good faith and is not a
mere pretence. It must be . a bonafide claim however weak. Complaint of theft can be filed by any
person aware of the offence. (Section 378). Intention is the gist of the offence of , theft. It is the
intention of the taker which must determine whether the taking o,,moving of a thing is theft. The
intention to take dishonestly exists when the taker intends to cause wro ngful gain to one person or
wrongful loss to another person. The real test in a case of an alleged theft of crops grownon land is as
1106 Penal Code
1.

Sec. 379
to which of the parties had grown the crops. Where the complainant is shown to have gron the crops,
the accused cutting and removing the same would be guilty of theft (43 GrLJ 394). Generally speaking
in the case of theft of crops, the question who grew the crops is the first matter to look to, but it is not
the only thing in all cases. The question of title though secondary is relevant and so is the state of
evidence as regards past possession (36 CrLf 83). The offence of theft is an offence against possession
and not against title. The question in whom title to the land vests is foreign to the offence of theft. In
a trial under this section, it is not the duty of criminal court to examine the complicated question of
title. Removal of property on a bonafide claim of right unfounded in law and fact, does not constitute
theft, but such a claim must not be- a colourable one. Whether the claim is a bonafide one or not has to
be determined upon the facts and circumstances of each case (PLD 1965 Dac 315). An act does not
amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By
the expression 'colour of a legal right' is meant n' ot a false pretence but a fair pretence, not a complete
absence of claim but a bonafide claim, however weak. Whenthe accused sets up the defence that he had
a claim to the property which he took away from the complainant, the prosecution must establish
dishonest intention to show that this so-called claim was not made in good faith, but as only a cloak
to conceal the dishonest intention and that the accused himself knew that there was no substance in the
claim Theft can be esta1ished only by proof of dishonest intention and not by proof of illegality.
Joint property may be the subject oftheft by one of the joint owners, when all the elements of theft
described in section 378 are present Removal of fish from a public river is not theft (17 DLR 211).
The catching of fish in a tidal and navigable river without taking the permission of the licensee of the.
fishery from the Government, does not amount to theft as the fish cannot be said to be in the
possession of the licensee. In a tidal and navigable river the fish can always escape and go wherever
• they like, they can always come from andgo into the sea, they are in a state of nature. Fish in a private
enclosed tank, the sluice of which remains closed so that the fish cannot escape, are in the possession
of the owner of the tank and can become subject of theft (15 CrL.J 77). It is not easy to detect cases of
picking of pockets and where it has become extremely rampant a sentence of six months' rigorous
imprisonment for the offence is not excessive. (Section 379)
(2) There cannot be any theft in the eye of law unless the moveable property is moved for being
taken out of the possession. Qari Hab 'ibullah Belali Vs. Capt. A nwarul A zim (1988) 40 DLR 295.
(3) There cannot be any theft in the eye of law unless the moveable property is moved for being
taken out of th epossession. Qari Habibullab Belali Vs. Capt. A nwarul A zim (1988) 40 DLR 295.
(4) In an offence of theft there must be removal of the property out of the possession of another'
with intention to take, dish onestly—Appellant received Taka 9000.00 in good faith from the Bank's
counter instead of Tk. 1900.00 to which he was entitled and he had no knowledge that he was being •
overpaid—The dishonesty became full blown when the cashier requested him to return the excess
amount in the evening at the school but the appellant gave adenial of having received the excess
amount at all—The facts of the case do not constitute an offence of theft but they constitute another
offence, dishonest misappropriation under section 402 of the Penal Code. The appellant may have
received the money in good faith but the decision to appropriate the excess money to his own use
makes it culpable—The conclusion is inescapable that he is inside the net. Kawsarul A /am Vs. State
42 DLR (AD) 23.
(5) Receipt of excess pay1ent from Bank—Dishonest misappropriation—When the appellant
detected that there hail been an excess payment it was his duty to return the excess amount—Otherwise
he could. not escape aconviction for dishonest misappropriation. 42 DLR (AD) 23.
Sec. 379 Of Offences Against Property 1107

(6) Excess payment—When receipt of excess payment becomes dishonest misappropriation—At

the time when the cashier was putting the money into the hand of the appellant there is nothing to
show that he was receiving it with the knowledge that he was being overpaid—But the next, moment
when the appellant detected that there had been an excess payment it was his duty to return the excess
amount which did not belong to him—In consideration of the facts of the case the accused appellant
could not be convicted for theft but he cannot escape a conviction ' for theft but he cannot escape a
coñvictio ffor dishonest misappropriatiOn. Kawsarul Alam and others Vs. The State JO BLD 'AD.) 12.
(7) Theft—petitioners came upon the disputed land and cut and removed the hemp grown by the
bargadar of the complainant who was in possession of the land—Magistrate gave clear finding upon
discussion of evidence—question of fact—no interference. Go/bar Sarkar & others Vs. The State &
another. 1 BSCD245. '. •.. . ' .'
(8) Theft—cutting and taking away of paddy—dishonest intention—Bonafide Claim of right—
'when not ,a valid defence in a case under this Section, of the Code. A bdul A had Vs. Rustom A li &
another. 3 BSCR 88. ' .
(9) Theft—Subjective ingredients—fMens Rea, when ex6luded—h 6nafzd5, claim of right over
land—reaping away of unripe paddy grown through bargadar—anafide claim of right to the land,
whether can be valid basis for bona fide claim to the crops grown on the land. Held:—(i) The
subjective element of theft—dishonest intention known as animusfurandi, is an essential element of
the offence without which such an offence is incomplete. A bonafide claim of right to the movable
property which is sought to be taken away out of the possession of another, if reasonable, even though
ill-founded, may exclude the necessary mens rea regarding, an offence of theft. In order to show the'
absence of dishonest intention it is not necessary that the existence of some kind of legal right must be
proved, but it will suffice if can be shown that the act was done under a claim of legal right which is
bonafide and not a false pretence, even though there was, in fact, no legal right. (ii) Bonafide character
of claim of right shall have to be ascertained with reference to the property which is the subject matter
of the alleged offence. Bona fide claim of right to the land cannot be the valid basis for a Bona fide
claim to the crop grown on such lands by the persons in possession of the same in assertion of their
title thereto and the taking away of such crops by a person who has not grown them does necessarily
exclude the element' of dishonest intention even though such a person may have a good claim to a
share of the land. Shahjhan Mia Vs. The State& others. 4 BLR ('A D.) 147=27 D.L.R. (A D) 161.
(10) Whether compounding should 6e allowed in appeal by leave—Criminal administration of
justice in Bangladesh encourages compromise of certain disputes—Offence under this section is
compoundable by the owner of the property stolen—Since the matterwas peiding by way of leave,
composition of the offence allowed—Composition to have the effect of acquittal of the accused;A bdus
Sattar and ors. Vs. The' State and anr. BCR 1985 A D 454 =1986 BLD (A D) 105, 38 DLR (A D) 38.
(11) An offence under this section has now been made compoundable, with Court's permission;
u/s 345(2), Cr.P.C. by a recent amendment of law—Inview of the reasons given in the joint-petition
of the parties that they, in the interest of both, compromised the matter, permission may be given for
compounding the offence—Accordingly, the joint application for compounding the ffence-
Accordingly, the joint application fr? compounding the offences accepted and the accused-appellants
acquitted u/s. 345 of the Criminal Procedure Code. Nasiruddin & others V s. The State & another,
BC1 1987 AD 92.
(12) Recovery of stolen goods—Conviction for theft—Validity—If a stolen property is recovered
,
from a person soon after.the theft the court may presume that he is eitheraithiefior a'ecèiven'qthe
1108 k'enalCode Sec. 379
stolen property. In view of the direct e vidence in lump considered along with the recovery of the stolen
articles the court was justified in holding them (the accused) guilty under section 379. Mouze A li
Howlader & ors. Vs. The State. 6 BSCD 35.
(13) Commission of theft is an individual act and there must be clear evidence in respect of each
individual accused and for the same reason the court is also required to consider the evidence against
each of the accused separately and record its findings. A bdul Mannan Vs. The State. 14 DLR (A D)
60=I2BLD(A D)87. .
(14) The appellant claimed ownership over both land and the structure—House trespass, causing
mis-chief and commission of theft are all interconnected and committed during the course of one
transaction and acquittal from the charge of theft u/s. 379, PC of the appellant on the High Court
Division's. finding that the claim of both sidesappears to be bona fide, make the. conviction and
sentence u/s. 448/427, PC improper and illegal as necessary criminal intention to commit the offence
is absent—Criminal trespass for commission of theft was not proved and there was no criminal
intention in dismalting the structure in question—Since there was no mens rea or criminal intention
on the part of the appellant which is a necessary ingredient for offences under the sections, the
conviction and sentence cannot be lawfully maintained under both the counts and consequently the
appellant is acquitted of the charges. Md. Golam Hossain Vs. The State. 8 BSCD 23.
• (15) Document filed by the defence to prove their, possession, not considered—Cases of accused
individually not considered, conviction set aside. There are certain points in favour of the .defence
which have not been considered by the Courts below. P.W. 3 deposed to the effect that one of the
accused petitioners in the present case was in possession of the hut before they have been occupied by
the petitioners. Ext. A, rent receipt, supports the defence case as to their possession.. These two
points raise at least doubt in the truth of the prosecution case on the question of possession which is
most essential point for the decision of the case. The case of the accused petitioners does not appear to
have been individually considered in the light of the evidence on record. Accused have thereupon been
acquitted. MoUuddin alias Mofuddin Haji V s. State (1966) 18 DLR 425..
(1 6) Removal of fish from overflowing tank. Removal of fish from a pubic river is not theft, and
further removal of fish from a tank which is overflowed and thus gets connected with the flowing
streams, and makes it possible for the free ingress and egress of fish from the tank, is also not theft.
Idris A li V s. State (1965) I7DLR 211..
(17) Conviction of several persons for theft demands a finding that each individual was guilty of
theft—A general finding that certain things were taken away from the possession of the complainant is
not enough for conviction. A bdul Hamid Mo/la Vs. State (1958) 10 DLR 518.
(18) No finding as to whether the taking away was done dishonestly—Conviction not
mainainable—Section 379 begins with the word "intending to take dishonestly", it does not mean
that if it istaken without consent it must mean that the intention is to take dishonestly. A charge of
theft is not sustainable on the mere finding that properties were moved from another's possession
without his consent. A bdul Shah Vs. A fsruddin M011ah (1959) 11 DLR 387. 1960 PLD (Dac) 04.
(19) Seizure of cattle, when amounts to theft. Accused, can use force to release cattle. Where the
seizure of cattle belonging to the accused by the deceased' was illegal and amounted to theft, the
accused, being competent to get his cattle released by use of force, was justified to exercise the right of
private defence to protect his person. Qadir Ba/csh Vs. Crown (1954) 6 DLR (W PC',) 179.
(20) Seizure of cattle and taking them to the pound—When no offence. Where cattle which
trespassed into a 'land in the joint occupation of the landlord and the tenant, the landlord's servants
Sec. 379 Of Offences Against Property 1109
were perfectly justified in impounding the cattle which were destroying the crop. Qadir Baksh Vs.
Crown (1954) 6 DLR (W PC) 179.
(21) Seizure of cattle and taking them to the pound is no offence. It does not amount to the
offence of a mischief as it is not causing such a change in the situation of the property as diminishes
its utility or value; the act does not do so per se and the cattle when released are as useful as ever. It
does not amount to an offence of theft because the essential element of taking property dishonestly, as
contemplated by section 379, is lacking. Qadir Ba/cs/i Vs. Crown r1954) 6 DLR (W PC) 179.
(22) Conviction for theft not maintainable unless it is charged and found that the property was
taken out of the possession of the complainant. No conviction is legal when the charge under section
379 stated that the accused committed theft of paddy belonging to the complainant without stating and
finding that the paddy was taken out of the possession of the complainant. Osman A li V s. Obaidul
Hoq (1957) 9DLR 72.. . .
(23) Theft charge does not lie when 144 Cr.P.C. proceedings are in force. No charge would lie
under section 379 for taking paddy out of the possession of the complainant when he was debarred
from entering upon the disputed land and exercising any act of possession in respect thereof by an
order under section 144, Criminal Procedure Code, served on him before the date of occurrence. Moflz
A li Vs. Rajab A u (1952) 4 DLR 490. . .
(24) After acquittal on the charge of theft, no conviction for dacoity valid. When after a lull trial a
Magistrate acquits the accused of the offence of theft under section 379, he cannot be tried again for
dacoity on the same facts without setting aside the, acquittal in accordance with the provisions
appropriate to the purpose. Masirali Vs. A bdul Mamith (1956) 8 DLR 634.
(25) Bonafide claim of right has reference only to the property the subject-matter of theft—But
where the finding is that the accused persons purported to have purchased some interest in the land and
therefore that maybe regarded as having a. bonafide claim of right over crop grown on the land is
wholly misconceived. Shahjahan Vs. The State (1975) 27 DLR (A D) 161.
(26) Bona-fide claim of right to the land cannot excuse for cutting and taking away paddy grown
by the complainant on the land in his possession— Element of dishonesty not excluded. Shahjahan
Vs. The State (1975) 27 DLR (AD) 161. . . . . .
(27) Question of possession rather than of title is the test as t o dishonest intention. It is rather the
question of possession than of title which is of utmost importance for determining the dishonest
intention motivating the act. To set up a claim to the crops which were grown by the complainant and
were standing on the land in exclusive possession of that complainant can hardly be considered to be a
fair pretence of property or right. Shahjahan Vs. The State (1975) 27 DLR (AD) 161.
(28) Bonafide dispute—No case uls. 379.—To sustain a conviction under section 379 of the Penal
Code it must be shown that there is no bonafide dispute of title or possession. In this particular case . as
has been found by the trial court that there is a bonafide dispute of title, I hold that the conviction and
sentence ,under section 379 of the Penal Code is bad in law. Chand Mia V s. The State (1974) 26
DLR 232. '.
(29) Complainant claims possession of the disputed vehicle through purchase from the accused—
Evidence does not show that the complainant acquired right and title to the vehicle. Such possession
by the complainant is not recognizable in law—Taking away the vehicle out of such possession
without consent does not constitute an offence of theft. Syed Ali Vs. State (1974) 26 DLR 392.
1110 Penal Code Sec. 37

(30) Charge of theft of goods when not an offence—Owner of goods when may be found guilty—
Mere taking away something honestly on a bonafide belief of right today and then appropriating the
same the next day even dishonestly may not amount to thieving. Further, under the provisions of the
Penal Code .a person can even be convicted of stealing of his own property if he takes the same
dishonestly from the lawful possession of another. Khoshlal Vs. Matleb (1982)- 34 DLR 59.
(31) Contested claim of right—Removal not a theft, When property is removed in the assertion of
a contested claim of right, however unjustified that claim may be, the removal thereof does nt
constitute theft. Y usuf A ll Mondal Vs. The Stare (1968) 20 DLR 747.
(32) Theft-10 accused persons were found at night removing Gãzari posts—'A' was also seen
following them—No evidence to show that 'A' was aiding or helping other accused persons, Held—
From the mere presence of tA' it cannot be held that . 'A' committed theft or actively aided or helped
other accused to commit theft—Order of conviction of 'A' under circumstances, was set aside. Haider
A ll Vs. The Slate (1970) 22 DLR 503. . .
(33) Intention,, finding of—Without a finding regarding the intention of the accused persons order
of conviction under-sections 379 and 447 P.C. cannot b sustained. Keramat A li V s. Probhat
Chandra Majurnder, (1972) 24 DLR 73. - -
(34) Commission of theft is an individual act and there must be clear evidence in respect of each
individual accused. For the same reason the court is also required to consider the evidence against all
the accused separately and record its findings. Abdul Mannan Vs. State 44 DLR (AD) 60..
(35) The disputed hut was in the jimma of The complainant. The petitioners forcibly removed the
same and took it away in spite of the complainant's protest. Such taking of property from the
possession of the jimmadar constitutes offence u/s. 279 Penal Code. Idris Vs. State 43 DLR 245.
- (36) Where the subject matter of theft belongs to the citizen of any other organisation or
institution, theft ipso facto ofuch property does not become prejudicial to the economic and financial
interest of the State. In the instant case as the motors in question belonged to the project for irrigation
of land of different individuals there is no scope to hold that the theft of the motors was prejudicial to
the financial and economic interest of the State. Anisuzzaman Vs. State 43 DLR 35.
(37) The contention that there was bonafide dispute with regard to the plot on which the hut was
situated has no substance in this case, the consideration in the present case is whether there was any
bonafide claim with regard to the hut which was the subject matter of theft. Kazi Motiur Rahman Vs.
Din Islam 43 DLR 128.
(38) When growing of the case crops by the complainant and the cutting and taking away of the
same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops
by the accused by cutting and taking away of the same and damaging some crops in the process
necessarily involves their entry into the case land and the accused are punished for theft and mischief, a
separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others Vs
Slate and another 51 DLR 278.
(39) The case property (a hut standing on a plot of land) was given in the jimma of the
complainant but the accused petitioner, forcibly removed it in spite of the protest of the complainant
jimmadar from his possession—Such removal constitutes an offence under Section 379 of the Pnal
Code. Idris and others Vs. The State' 10 BID (HCD) 352.
(40) Bonafide claim of title in ihe land is now considered for ascertaining the guilt of the accused
in an offence under Section 379 of the Penal Code but bonafide claim cver the subject matter of theft
Sec. 379 Of Offences Against Property 1111

is a relevant consideration. In order to convict an accused under Section 447 of the Penal Code, the
Court is required to arrive at a finding, on consideration of the evidence-on record, that each of the
accused had the initial intention to commit the offence—In the absence of such a finding no conviction
under Section 447 of the Penal Code is sustainable. Safluddin and others V s. Minhajuddin
Chowdhury and another 12 BID (HCD) 301.
(41) When growing of the case crops by the complainant and the cutting and dishonestly taking
away of the same by the accused are proved, the accused is guilty of theft under section 379 of the
Penal Code. In such circumstances, no plea of bonafide claim of right to the case land can save the
accused from the criminal liability. Md. Motaleb Sardar and others V s. The State and another, 19
BLt (HCD) 407.
• (42) Theft and bonafide claim of right—It is well-settled that a co-sharer in exclusive possession
of a parcel of land is entitled to maintain his possession therein to the exclusion of his co-sharers until
the ejmali property is partitioned by metes and bounds but before effecting such partition the co-sharers
or co-owners out of possession-have no right to disturb his possession, not to speak of cutting and
taking away crops grown by him. In such a case the bonafide claim of right in the land cannot extend
to cutting and taking away, crops grown by a co-sharer in possession. Bonafide or contested claim of
right is no defence against a charge under section 379 of the Penal Code for cutting and taking away
crops grown by the co-sharer in possession. Nasiruddin Shah and others Vs. Nazrul Islam and others,
18 BLD (HCD) 634.
(43) Bonafide claim of right to property—When not available—A cosharer in exclusive possession
of a portion of land is legally entitled to maintain his possession therein to the exclusion of other
cosharers until the joint property is partitioned by metes and bounds. Bonafide claim of right to the
property is no defence in the case under section 379 of the Penal Code and such defence cannot be
allowed to extend to the cutting and taking away the crops grown by the cosharer in possession of the
land. Nasiruddin Shaha and others Vs. Nazrul Islam and others-3, MLR (1998) (HC) 240
• (44) Bonafide or contested claim of right is no defence against a charge under section 379 of the
Penal Code for cutting and taking away, crops grown by the co-sharer in posession. Nasiruddin Shaha
and others Vs Nazrul Islam & ors. '(Criminal) 3 BLC 524.
(45) Neither of the Courts below has endeavoured to discuss any evidence against each accused
person and gave no such finding against them individually and hence the order of conviction and
sentence under section 379 of the Penal Code is not sustainable in law, A siruddin (Md.) alias
A siruddin Sarker and others Vs. State and another (Criminal) 5 BLC 641.
(46) Both the courts below ought to have found that there was a bonafide dispute over title and
possession of the case land which existed between the parties and hence the trial Court illegally passed
the order of conviction and sentence which was wrongly upheld by the appellate Court without
applying is judicial mind and as such the conviction and sentence under sections 379 and 447 of the
Penal Code are not sustainable in law. A siruddin (Md.) alias A siruddin Sarker and others V s. State
and another (Criminal) 5 BLC 641.
(47) It is the settled principle of law that a criminal case under section 379 of the Penal Code
would not lie where there is a contested claim of title or bonafide dispute as to right, title and
possession over any property. Learned Sessions Judge committed no illegality in acquitting the
opposite party Nos. 1-3 after reversing the judgment and order of conviction and sentence passed by
the learned Magistrate. Mannan Mondal Vs. Moshfiqur Rahman A lias A zad and 3 Others (Crininal) 6
BLC 434. •
1112 Penal Code Sec. 379

• (48) In an offence of theft there must be removal of the property out of the possession of another
with intention to take dishonestly—Appellant received Taka 9000.00 in good faith from the Bank's
counter instead of Taka 1900.00 in which he was entitled and he had no knowledge that he was being
overpaid—The dishonesty became full-blown when the cashier requested him to return the excess
amount in the evening at the school but the appellant gave a denial of having received the excess
amount at all—The facts of the case do not constitute an offence of theft but they constitute another
offence, dishonest misappropriation under section 403 of the Penal Code. The appellant may have
received the money in good faith but the decision to appropriate the excess money to his own use
makes it culpable—The conclusion is inescapable that he is inside the net. English law—Larceny-
Facts disclosed would make the appellant guilty of larceny—Animus furandi and payment under a
mistake of fact distinguished—Under English law innocent taking followed by convrsion due to
subsequent change of intention is a civil wrong but not an offence—Our law is different (Ref 10 BLD
12 AD, 10 BCR 59 AD). 42 DLR (AD) 23.
(49) There cannot be any theft in the eye of law unless the moveable property is moved for being
taken out of the possession. 40 DLR 245.
(50) No specific finding as to initial intention of the accused—Conviction under section 447 based
on discrepant and contradictory statements of prosecution witnesses cannot be sustained—Conviction
under section 379 is, however, maintained in the facts and circumstances • of the case. Court to look
into the quality of evidence but not to the number of witnesses. 10 BCR 53.
(51) Offence under section 379 having been made compoundable by a recent amendment with
court's permission under sub-section (2) of section 345 of the Code of Criminal Procedure, joint
application for compounding the offences under section 345 CrPC is accepted and the accused
appellants are acquitted. 7 BCR 92 AD
(52) Cqnviction under section 379 Penal Code—Appeal on special leave pending before the
Appellate Division against conviction when a petition was moved for permission to compromise the
dispute between the complainant and the accused (the parties being inter-related)—Compromise
petition allowed as law encourages compromise. We have no hesitation in allowing the composition
and as a result this composition shall have the effect of acquittal of the accused (Ref 5 BCR 454 AD).
38 DLR (AD) 38.
(53) After acquittal urfder section 37, charge under section 148 must fail. The appellants having
been acquitted of the charge under section 379 of the Penal Code on the ground of contested right of
possession of the case land between two parties, there could be no conviction of the appellants under
section 148 of the Penal Code. The charge under section 148 of the Penal Code against the appellants
having not mentioned any of the objects as common object of the alleged unlawful assembly as
enumerated in section 141 Of the Penal Code, the charge is bad and therefore-it has vitiated the entire
trial. Original Medical Certificate not filed but a duplicate of it suspicious. 38 DLR 300.
(54) The appellant's revisional application against the.Magistrate's order of acquittal was referred
to the Single Judge of the High Court who, holding that he had jurisdiction in the matter, decided the
application. Leave was granted to consider whether in view of the provisions in the High Court
appellate side Rules, the Single Judge was right in exercising jurisdiction in respect of an offence
punishable by a sentence of imprisonment exceeding one year. Held: The offence under section 379 of
the Penal Code quite expressly and beyond any doubt is punishable with a sentence of imprisonment
for three years. Obviously, Rule VII could have immediate application to this offence clearly barring
the jurisdiction of a Single Judge to hear the revisional application against the order of acquittal passed
in the case, involving this offence. 4 BSCR 366
(55) Village Court's jurisdiction to try cases for theft where the property involved is valued at
Taka 5000.00. Magistrate trying a case of theft the value of the property involved being less than Taka
Sec. 379 Of Offences against Property 1113

5000.00 Magistrate has no jurisdiction. The order of. conviction by the Magistrate being illegal
• provision of section 529 CrPC cannot be called in and in support of Magistrates order. 35 DLR 100.
(56) Written complaint to SDM after six years of commission of alleged offences—Complaint
petition, and statement on oath made by the complainant do not implicate acciised appellant—Enquiry
officer's report states that a prima facie case is made out against accused appellant and others—
Cognizance taken by SDM—High Court Division refused to quash proceedings on ground that
Enquiry Officer's report discloses a prima facie case—High Court Division's view held incorrect=
Continuance of such proceedings amounted to abuse of process of law. I BCR 68 SC.
(57) Under section 37.9 PC the Magistrate is firstly.to decide if the complainant was in possession
of the disputed land and if he grew the disputed crops on the said land and then to decide if the
accused persons dishonestly cut and took away the crops without the consent of the complainant. This
can be done only on appreciation of evidence produced in support of the allegations. 29 DLR309.
(58). Conviction of several accused on a general finding of theft without consideration of each.
individual case cannot be upheld. In a criminal case the court is only concerned with the actual
physical possession of the parties. Mere relationship is no ground to disbàlieve a witness if it is
otherwise found trustworthy. 29 DLR 3.
(59) Where with reference.to the first report. at thana and other circumstances the case against an
accused person is very doubtful, benefit of the doubt should be given to accused and in such cases even
the concurrent findings of fact of the lower courts are liable to be set aside on revision. 25.DLR 258.
(60) In the absence of an express finding regarding dishonest intention, conviction of an accused
under section 379 cannot be maintained (Ref 11 DLR 387). 24 DLR 101.
(61) The judgment of the lower appellate court is itself of a summary nature and does not discuss
any evidence. It is correct that Exhibits A and B have not at all been considered by that court. There
are documents of vital importance and non-consideration of such documents cannot but be held to have
seriously prejudiced the .defence. .20 DLR 303. ..
(62) Co-sharers are in exclusive possession of specific portion of joint property by amicable
arrangement, though no legal partition by metes and bounds did take place. Any taking away of trees
from the portion of oneco-sharer by encroachment upon it is punishable as an offence of theft . and
criminal trespass under sections 379 and 447 of the Penal Code. 17 DLR 479. .
(63) Complainant restrained by an order under section 144 CrPC from entering on the disputed
land. Accused taking away paddy from the land while the order was in force—Not offence under,
section 379 (Ref 4 DLR 490). 10 DLR 366.
• (64) Where the initial complaint and charge against the accused disclosed an offence under section
379 Penal code, his conviction under section 427 cannot ix. istained (Ref 6 DLR 30). 6 DLR 32.
(65) Word "possession" must be interpreted in its broadest sense, and apart from physical
possession must also mean ownership of and control over, moveable property concerned. , 2 PCrLJ155.
• • (66) Section 378 defines 'theft' and S. 379 prescribes the punishment therefor. A person commits
'theft' as defined in S. 378 if—.
(a) he removes movable property,
(b) from out of the possession of another,
(c) without that person's consent,
(d) . in order to take it dishonestly. AIR 1965 SC 585.
(67) Where victim . does not offer any resistance against dispossession of moveable property even if
Vi hurt is caused voluntarily, the offence committed by accused would be only theft and not one under
Section 384. (1982) GriLl 714. .
1114 . Penal Code . . Sec. 379

2. Railway Property (Unlawful Possession) Act.—(I) The Act, being a special Act overrules the
provisions of S. 379. of the Code which is a general Act. A conviction for theft of railway property
under the Act, instead of under S. 379 of the Code, is not illegal. 1972 AI1WR (HC) 683.
(2) Accused charged of stealing railway property under Sections 379, 461 and 411., P.C.—Not
found in possession—Allegation and proof that they had been in possession—Charge under Section 3
of Act of 1966 is justified. AIR 1979 SC 1825.
3 Dishonest intention.----(1) It is essential for the offence of theft that the removal of the property
must have been with the intention to take it dishonestly. 1980 CriLR (Ma/i) 85.
• • (2) Taking the definition of "dishonestly" in S. 24 and "wrongful gain" and "wrongful loss" in S.
23 together,.a person can be said to have dishonest intention if in taking the property it is his intention
to cause gain by unlawful means, of the property to which the person so gaining is not legally entitled
or to cause loss, by unlawful means, of property to which the person so losing is legally entitled. AIR
1965 SC 585. . .. .
(3) The gain or loss need not be a total acquisition or a total deprivation; it is enough if it is a
temporary retention of property by the person wrongfully gaining or temporary 'keeping out' of
property, of the person legally entitipd. AIR 1963 SC 1.094. •.
(4) The intention to cause wrongful gain to oneself or wrongful loss to another is known as
animus furandi. AIR 1965 SC 585, . . . . .
(5) The burden is on the prosecution to show that the accused was acting dishonestly. AIR 1955
NUC (Orissa) 3230. .• . .
- (6) The question whether the accused had the dishonest intention is one of fact. A guilty intention
may be inferred from the facts proved. A IR 1960 A ndhPra 569.:
(7) A person has no right to steal the property of anotherin order to bring pressure on him to
restore his property which had been stolen by that other. The act will amount to theft even in such a
case. AIR 1935 Lah 769. . . .
(8) Where the accused broke into a temple and removed, idols for celebrating a festival it Was held
that the taking could not be said to be dishonest. AIR 1941 Mad 71.
(9) Accused, an illiterate cultivator, applied for Letters of Administration with the copy of the will
annexed to the estate of his deceased uncle, who had made a will in favour of the accused. Before
Letters of Administration were granted but at a time when the accused had no suspicion that a caveat
was likely to be entered by the uncl&s widow, the accused removed certain property which was in the
possession of the widow, but which formed part of the property bequeathed to the accused under the
will. It was held that the conduct of the accused did not disclose presence of dishonest intention. AIR
1926 Cal 241. •
(10) Where the accused in order to punish a boy, tied him to a tree and then took away his cloth in
order to put him to shame it was held that it was not a case of theft. AIR 1924 Mad 587.
(11) Even an intention to cause wrongful gain or wrongful loss temporarily is "dishonest". A IR.
1959 SC 1390.
(12) In order to prove dishonest intention the question of title to the property in question is
relevant. A IR 1962 Tripura 25. . • .• .
.4. "Out of the possession of any person".—(l) The offence of theft is an offence against
possession and not against title. 1977 AI1CriC 243.
Sec. 379 Of Offences. against Property . 1115

(2) In order to prove dishonest intention which is one of the essential constituents of the offence of
theft the question of title to the property will enter into the picture. A IR 1962 Tripura 25.
(3) Removal of idols from the possession of Pujaris maintaining the idols as. agents of the Hindu
community amounts to theft. AIR 1967 Raj 190. .. .
(4) Where a carter removes from the godow.n of a railway compiy a bag filled with pilferings
from a number of bags consigned to others, the bag being in the possession of the railway as bailees,
the act amounts to theft. AIR 1918 Pat 314. . . ..
(5) A person leaving his cycle temporarily outside a market or in a park with the idea of taking it
back after returning does not abandon its possession and hence, one who dishonestly removes it is
guilty of theft; AIR 1954 Sau 33.
(6) X, a Mahomedan agreed with some Hindus that a she-calf belonging to him should be tied in
the courtyard of his neighbour who was Hindu so that the calf will not be sacrificed by X. After the
calf was so tied, the calf was removed elsewhere by the order of the accused. It was held that though at
the time of the removal the calf was in the court-yard of the neighbour, itwas still in the possession of
X and the accused was guilty of theft. AIR 1929 Pat 429. .
(7) The auction-purchaser at a rent execution sale of a holding took delivery of possession.
Subsequently the persons who were previously: in possession cut and removed some bamboo clumps
standing on the land. It was held that when the auction-purchaser acquired the land he acquired the
bamboos also and heàce the persons were guilty of theft. AIR 1932 Pat 344.
(8) A Wada was owned by one M. The landlord of the village thinking that the original tenant had
left the village and the Wada had reverted to him, entered the Wada and removed the things belonging
to another person lying there. It was held that he could not enter the Wada in the possession of M and
remove the things that weie there and was guilty of theft. 411951 Kutch 49.
(9) Where the possession of a thing has been abandoned by the owner, the person taking the thing
will not be guilty of theft. Thus, removal of bricks which had been left lying for eight years (i.e.,
abandoned) will not be theft. AIR ..1925 Rang 113.
(10) A thing does not become res nullius merely on the owner determining to destroy or
abandon it. It continues to be his property until completion of the process of abandonment or
destruction. Abstraction of a currency note which has been held up by the currency officer for
destruction is theft though at the time of abstraction the process of destruction had partly been done.
AIR 1925 Sind 2l. . ..
5. "Moves that property in order to such taking".—(l) To support a conviction, under S. 379
it must be shown that the property was moved out of the possession of the complainant. Mere proof
that the property in accused's possession belonged to the complainant is not sufficient. (1.949) 53
Cal WN (I DR) 48 (DB). . .
(2) Since the definition of theft requires that the moving of the property is to be 'in order to such
taking" the word 'such' meaning 'intending to take dishonestly' the very moving must be with
dishonest intention. AIR 1958 Mad 476.
(3) Till the property is moved, no offence of theft can be committed even if the alleged offender
had intended to take dishonestly the property out of possession.of any other person without his
consent. AIR 1965 SC 926. .
1116 Penal Code Sec. 379
(4) A mere seizure of cattle found trespassing on a certain land does not amount to moving the
cattle; the act of moving the cattle could only be subsequent to the act of seizing them. Hence, the
mere seizure of cattle, though illegal, cannot amount to the offence of thft. A IR 1965 SC 026
(5) Where the accused cut the string with which a hass (a neck ornament) was fastened round the
complainant's neck and forced the ends of the bass slightly apart intending to remove the same from
the neck but on account of the struggle that ensued between him and the complainant the hass fell from
the latter's neck and was found on the bed, it was held that this constituted sufficient moving of the
bass so as to bring the act under S. 378. AIR 1918 Lah 397.
(6) The offence of theft is completed' if there is a dishonest moving of a thing even when the thing
or the property is dtched from that to which it was originally secured. If the thief moves the thing
even an inch from the place where it lay, the offence would be complete though he may then leave it
alone. A IR 1958 Mad 476.
6. Explanation 1.—( 1) Earth, that is soil and all component parts of the soil and minerals when
severed from the earth or land to which they are attached becomes movable property capable of being
the subject of theft. (1904) 1 CriLJ 429.
(2) Where the accused persons were 'convicted of theft and mischief for clearing a piece
of Government land and cutting and appropriating the trees thereon, it was held that the conviction
was not illegal, as the mischief preceded the theft which, under Explanation I could not have
been committed until the trees had been detached from the ground. (1864-1866) 2 BornHCR
(Cr) 392.
7 "Without that person's consent"—Explanation 5.—(1) An essential ingredient of theft is
the taking of the property out of the owner's possession without his consent. (1964) 2 Mad Li 271.
(2) Where the accused removed the box belonging to himself from the possession of the Station
Master of the Railway Administration after.paying for certain excess charges payable by him, it was,
held that the accused must be taken to have removed the box with the implied consent of.the Station
Master and committed no offence of theft. AIR. 1916 All 89. .
• (3) A consent given on a misrepresentation of facts is one given under a misconception of facts,
within the moaning of S. 90 and the taking of the property in such a case must be held to be without
consent and will amount to theft. AIR 1963 Born 74.
- (4) Where a licensee cuts down trees in Government forest which are not covered by his licence
and the person authorised to give consent to remove them out of the possession of.the Government
gives it by issuing removal pass and the bill of title to timber under the misconception that the timber
to be removed was timber covered by the ' licence, the consent is one given under a misconception of
fact and is no consent for purposes of S. 378 and the removal of timber in such circumstances amounts
to theft. A IR 1930 Rang 114.
(5) Where a Municipal Commissioner got from the Municipal clerk some letters written by him to
the Chairman for perusal and did not return them it was held that even if the consent of the municipal
clerk for parting with the documents might have been obtained by deceit or coercion the Municipal
Commissioner could not be made liable for theft, though he might be liable for some other offence.
A IR 1960 Pat 546
S. Subject of theft must be movable property.—(1) 'Property' is a generic term for all that a
man has dominion over. It has been defined to be "the unrestricted and exclusive right to dispose of
Sec. 379 Of Offences against Property 1117
the substance of a thing in every legal way and exclude every one else from interference with it". AIR
1957 Pat 515.
(2) Res nullius (thing which has no owner) or ferae naturae (birds and beasts in their wild
state such as deer, hares, peasants, partridges, etc.), as distinguished from domitae naturae, (tame
animals and birds) are not property at all and cannot be subject-matter of theft or larceny. A IR 1955
Mad 299.
(3) "Moveable property" has been defined in S. 22 ante as including corporeal property of every
description except land and things attached to the earth or permanently fastened to anything which is
attached to the earth. Immovable property cannot, be a subject of theft. (1908) 7 CKLJ 49 (Nas).
(4) The following will be movable property which may be a subject matter of theft:—
(a) Valuable security is movable property. 1979 Cr/LI NOC 95 (Goa). -
(b) Flimsies (decoded cablegrams) meant to be destroyed, so long as they are not destroyed. AIR
1921 Sind 57.
(c) Soil minerals when severed from earth to which it is attached. (1891) ILR 15 Born 701.
(d) A Hindu idol. AIR 1967 Raj 190.
9. Theft of wood from Government forest.—( I) A theft of wood from Government forest would
be governed by S. 378, Penal Code in the absence of anything in the Forest Act to exclude the
operation of the Penal Code. 1885 PunRe 10 P. 20..
10. Theft of telegraph wire.—(1.) The ingredients of an offence under S. 5, Telegraph Wire
(Unlawful Possession) Act are different from those of one under thepresent section. Hence where an
accused is charged under the former and acquitted he cannot be convicted under this section by
applying S. 238, Criminal P. C. 1973 Cr1UJ 6 (All).
11. Theft of aircraft.--(]) The taking out of an aircraft by a military cadet for an unauthorised
flight gives him the temporary use of the aircraft for his own purpose and deprives the owner of the
aircraft, viz., the Government of its legitimate use for its purposes i.e., the use of the aircraft for the
Air Forces squadron. Such use being against all regulations of the aircraft flying is a gain or loss by
unlawful means. There is also the absence of consent on the part of the owner. The cadet, in such a
case, is therefore guilty of theft of the aircraft. AIR 1957 SC 369.
12.. Theft of fish in water.-^ (I) Fish in an ãcquarium or in a tank of 20 or 30 square yards may
be possessed, but fish in a large sheet of water of several acres in extent cannot be the subject of
possession or theft. 1970 Cr/LI 638 (Orissa). . . . .
(2) Fish in a public river or flowing stream are not stored or bred there they are not confined
within an enclosed space and are therefore free to go wherever they like. They are ferae naturae i.e., in a
state-of nature andhence nobody can be said to be in possession of them and therefore no theft can be
committed in respect of such fish. A IR 1955 NUC (Patna) 3243. •.
(3) The fish in a private enclosed tank, the sluice of which remains closed so that the fish cannot
escape, are in the possession of the owner of the tank and can be subject of theft. AIR 1965 SC 585.
(4) Where the fish are able to go in or out of a private fishery or tank the act of fishing followed
by removal of the fish does notamount to thóft. A IR 1939 Oudh 14
(5) Fish confined in a pond from where they cannot escape but can be caught by bailing out the
water, can be subject of theft. AIR 1943 Mad 34.
1118 Penal Code Sec. 379

• (6) Where the accused claimed to have caught fish in a tank under a bona fide claim of right, it
was held that they could not be convicted for the offence of theft. A IR 1965 Sc 585.
13. Theft of salt.—(I) The accused took away salt naturally formed in a creek which was under
the supervision of a man belonging to the Customs Department stationed there to prevent persons
taking away salt naturally formed from sea water. It was held that salt having, in this case, been legally
appropriated, its dishonest removal constituted theft. (1882) ILR 4 Mad 228.
14 Theft of water.—(I) Running water not reduced to possession cannot be the subject of theft.
(1908) 7CrILJ 367 (Cal).
• (2) Water when conveyed in pipes and thus reduced to possession can be the subject of theft. AIR
1924 All 131. . -•
15. Theft of electricity.—(1) Section 378 of the Penal Code read by itself, even after the
enactment of S. 39, Electricity Act (1910), would not include theft of electricity, for electricity is not
'corporeal property' within the definition in S. 22 and cannot be considered to be movable property;
the only way in which it could be said that S. 39 of the Electricity Act extended S. 378 of the Penal
Code is by stating that it made something which was not a theft under Section 378, Penal Code, a
theft within the meaning of that section. AIR 1965 SC 666.
(2) Actual extraction of electricity by artificial means proved—Accused No. I owner of meter
connection. Accused No. 2 running some business therein—Licence stands in name of Accused No.
1—Prosecution discharging initial onus of proof—Accused persons will have to show that tempering
of electricity was done without their knowledge. 1983 MddLJ Cr1 315.
16. Theft of gas.--(l) Abstraction of gas belonging to a Corporation or a Company from the gas
pipe without its passing through the matter in order to avoid payment for consumption of gas amounts
to larceny under the English law. (1869) 38 LJMC 54.
17. Removal of cattle, horses, etc. turned loose.—(l) When a person seizes cattle on the ground
that they were trespassing on his land and causing damage to his crop or produce and gives out that he
is taking them to the pound, he commits on Offence of theft, however mistaken he may be about his
right to that land and crop. A IR 1965 SC 926
(2) Mere seizure of cattle, though illegal, cannot amount to theft. (A IR 1965 SC 926
(3) Where the cattle are seized at a very great distance from the field damaged and when the cattle
had already come within their owner's possession, the act of the accused in seizing and removing the
cattle is not only not covered by S. 10 of the Cattle Trespass Act, but also amounts technically to an
offence of theft. AIR 1947 Lah 380.
(4) Where cattle trespass on the land of another but cause no damage, they are not liable to be
taken to the pound, but the owner of the field removing them to the pound under a bona fide belief of
his right to do so is not guilty of theft. AIR 1949 All .180.
• (5) Cattle sent out to graze in the pasture, jungle or common land are still in the possession of the
owner and can be subject of theft. AIR 1954 Nag 55. •
18. Bona fide claim of right ^ —(I) A bona fide claim of right to property is a good defenceto a
prosecution for theft. In such 'a case no dishonest intention can be attributed to. the taker. To constitute
theft there must be not only no legal right but also no appearance or colour of a legal right. AIR 1965
SC 585.
Sec. 379 Of Offences against Property 1119

(2) It will not be a theft if a person acting under a mistaken notion of la'. or fact and believing
that a certain poperty belongs to him, removes that property from the possession of another. AIR 1965
SC 926.
(3) The claim of right must not be a mere colourable pretence to obtain or to keep possession. AIR
1969 Orissa 70.
(4) By the expression 'colour of a legal right' is meant not a false pretence but a fair claim, not a
complete absence of a claim but a bona fide claim, however weak. AIR 1965 SC 585.
(5) The assertion of a claim of right must be sufficient to create a reasonable doubt that the
property may not belong to or be in the possession of the complainant. A IR 1958 Mod 476
(6) Whether a claim is bona fide is mainly a question of fact. AIR 1965 SC 585.
(7) Where the High Court held that a certain survey number belonged to the complainant and not
to the accused, the action of the accused, about two weeks after the decision of the High. Court, in
cutting the standing crops on the survey number was held not to be under a bona fide claim of title.
AIR 1951 Flyd 78. . .
(8) Where two persons, are asserting their exclusive right to take sand from a particular spot of the
river as lessees from two different persons whose title.to lease is in dispute, it may. well be that both of
them are claiming a bona fide right to take sand. In such a case a prosecution under Ste. 379, if
instituted against any of them, is bound to fail,. AIR 1951 Cal 207. . .
(9) Where the heir of the 'deceased and his servant removed the cattle belonging to the deceased a
few days after his death fh3m the possession of the concubine of the deceased, it was held that they
were not guilty of theft. AIR 1941 Mad 674. . .. ..
19. Cutting and removal of trees..—( 1) A tree so long as it is attached to 'earth, is not movable
property and cannot be the subject of theft, but as soon as it is severed from the ground with the
dishonest intention of taking it, the offence of theft is committed. ('1869-70) 5 Mad HC'R (App Side)
mavi. .
(2) If a lessor cuts and removes trees from land in the lessee's possession it would constitute theft.
1966 CriApp R. (SC) 392. .
(3) A mortgagee who is in possession of trees under the terms of the mortgage deed without
having any right to cut and appropriate them, cuts and appropriates them does not commit the offence
of theft as he is given possession of the trees. A IR 1940 Pat 701 (701) : 41 CriLJ 795.
(4) Where a raiyat of an estate who had paid his jungle dues took some firewood for domestic
purposes from the jungle outside the boundaries of his village without a pass or permit from the estate,
it was held that the raiyat acted in pursuance of a bona fide claim of right and was not guilty of theft.
AIR 1931 Par 99.
(5) Accused removing two beams of timber from custody of lambardar to whom they had been
made over by forest department as haying been unlawfully cut by the accused from his own land—No
offence. 1962 RajL W 605.
(6) Where the complainant having purchased a tree, felled it and cut it into suitable logs but the
accused claiming that the tree belonged to the proprietors of the village removed the timber, it was
held that the act of the accused was not covered by bona fide claim of right. AIR 1933 Lah 481.
(7) Forest produce must be proved to belong to Government. AIR 1939 Lah 469.
1120 Penal Code Sec. 379

20. Removal of crops.--(I) Standing crop so long as it is attached to the earth is not movable
property but the moment it is severed from the earth it can become subject of theft. In fact, the very
fact of severance may constitute theft. 1965 MLJ(Cr) 119.
(2) If the taking of the crop is dishonest a conviction may be had for theft. AIR 1934 Oudh 182.
(3) The question of title, though secondary, is relevant and so is the question of past possession.
(1966) 32 GuILT 859 (864); A IR 1944 Pat 274.
(4) The questions of title become relevant for the purpose of appreciating the evidence of the
present possession of the land. AIR 1952 Sau 22.
(5) Where the charge is that the accused removed crop from the field in the possession of the
complainant, it is essential to prove such possession. AIR 1971 Pat 124.
(6) Where the question of possession of land and crop on the date of the incident were not beyond
controversy, a conviction under S. 379 was set aside by the Supreme Court. AIR 1972 SC 949,
(7) Where the Court had declared that a certain survey number belonged to the complainant and
not to the accused, it was held that the cutting of the crops on the survey number by the accused about
two weeks after the decision of the High Court amounted to theft as it could not be said to be under a
bona fide claim of right. A IR 1951 Hyd 78.. . .
• (8) Where pending an appeal by the tenant against a decree in favour of the landlord in a suit for
possession, the landlord .obtained delivery of possession but the tenant removed the crops after the
delivery was given, it was held that under the circumstances the tenant could not be said to have any
idea of causing wrongful gain to him or wrongful loss to decree-holder landlord.AIR. 1927 Pat 130.
• (9) Zarnindar entitled to share in crops—Removal by raiyat without payment to Zamindar-
Dishonest intention—Raiyat is guilty. (1902) 26 Mad 461.
21. Joint possession.--(I ) Joint property will be deemed to be in the possession of all the co-
sharers or co-proprietors and hence S. 378 will not include, under the offence of theft, a case where one
joint, proprietor takes into his sole possession'property belonging to himself and his coproprietors
which had been previously in their joint custody. 1979 SrinagarLf 206. (J&K).
(2) Theft will not include a case where a jointly owned property is actually in, possession of -one
co-owner and is taken away by the other co-owner. A IR 1927 Lab 650.'
(3) A co-sharer in possession of a joint property has the undoubted right to remove movable
property in his possession and also in the possession of other co-sharers from one spot of the joint
land to another spot of the same land. AIR 1936 Cal 261.
(4) An existing partnership between the complainant and the accused will not rule out the
commission of an offence under S. 379 by the accused with respect to the partnership property. A IR
1969 Cal 232.
22. Removal of property by wife.--(I) If a wife removes her husband's property left in her
custody from his house with dishonest intention, she is guilty of theft. (1894) ILR 17 Mad 401 (402).
(2) A Hindu wife cannot be convicted of theft for taking away her palla or Stridhan out of the
custody of her husband. (1871) 8 BomHC'R C'ri 11.
23. Removal by owner.—( 1) Under certain circumstances an owner of property may be guilty of
stealing his own property if he takes it out of the possession of another dishonestly. 1930 MadWN 90.
(2) A woman contracted to deliver a barge to a person on payment of a certain amount. The vendee
made apart payment but failed to pay the balance and the woman, after notice to the vendee, took
away the barge from the place where it was brought for delivery to the vendee. It was held that under
Sec. 379 . - Of Offences against Property . 1121

the circumstances there was no dishonest intention on the part of the woman in seizing the barge. AIR
1930 Born 488.
(3) The owner of a buffalo which was impounded rescued it after opening the door. by slipping th
chain over the lock. It was held that the owner -was guilty of theft, as the rescuing was with dishonest
intention and from the possession of the authoritieseI the pound in whose possession the buffalo rtiust.
be. deemed to be after itwas impounded. AIR 1927 Mad 343.
24 Property under attachment or in respect of which orders ñ/ss. 144, 145, Cr.P.C., are
passed—Removal by owner.---(l) Where the property of the judgment debtor is attached and placed
in the custody of the sapurdar. and subsequently the judgment-debtor knowing that the property had
been attached takes it and appropriqtes it to his own use, he is guilty of theft. ILR (1978) 1 Cut 381.
(2) Where land is attached under S. .83, Criminal P. C., and actual possession is taken by the
posting of a constable on the spot, a person removing the standing crop.from such land is guilty under
S.379. AIR . 194O.Ca1163 . . . .. . . .
(3) Where in execution of a decree against a person, property belonging to another person is being
wrongfully taken away by the bailiff, the -owner taking back his property is not guilty of tlLA IR
1959 Raj 289 (290). .. . . . .
(1)The land of the accused was soldjn execution of a decree against him and the delivery of the
land was ordered. Crop was raised on the land by the lessee of the accused after the Court sale and
delivery Of the crops was not ordered by the Court. The accused removed the crop. It was held that the
removal could not be said to be dishonest. AIR 1941 Mad 41. -
(5) . The landlord sued. A and B for possession of the holding transferred by A to B. The suit was
decreed and an appeal filed by A was pending. In the meantime the landlord obtained delivery of
possession but A cut and removed the crops after the delivery was given. It was held that the accused
could not be said to have any idea of causing wrongful gain to him or wrongful loss to the decree-
holder and was not guilty. of theft. A IR 1927 Pat 130; ....
• . (6) S obtained a rent decree against R. S. purchased R's holding in execution and obtained
possession. R filed a suit before such purchase, to set aside the rent decree as obtained by fraud.
Pending such suit R removed the crops from the holding. The rent decree was subsequently set aside
by the Court. It was held that Reould not be said to have dishonest intention in removing the crops.
AIR 1941 Pat 369. . .
25. CredItor removing property of debtor.—( 1) A creditor who takes away movable property of
his debtor from the latter's possession without his consent with the intention of coercing him to pay
his debt commits the offence of theft as defined in Section 378. (1895) ILR 22 Cal 7017..
26. Temporary removal.—(I) The gain or loss contemplated by the expression "dishonest
taking" need not be a total or permanent acquisition or a total or permanent deprivation; it is enough if
it is a temporary retention of property by the person wrongfully gaining or temporary keeping out of
property from the person legally entitled to it. 'Theft' under the Penal Code differs from 'larceny' in
• English law, which. contemplates permanent gain Or loss. A IR 1963 SC 1094
27. Master and servant.—(1) A servant would be guilty of theft if he runs away with property
entrusted to him by the master. AIR 1927 All 4.70. .. . . . . .
(2) Where a mercantile agent was entrusted with certain shares, of a company with full authority of
disposal and he sold them to various persons, it was held that the case was not covered by illustration
(d) to S..378 and he was not guilty of theft. A IR 1965 Cal 355. . • . . ..
1122 .. Penal. Code Sec. 379
(3) A creditor through his servant seized the radio of his debtor openly claiming it as security for
lie debt. It was held that the servant having acted under the directions of his master his conviction for
theft could not be sustained. 41R 1965 Mad 483.
(4) Where the accused knows that his master was removing goods of the complainant without even
a pretence of right and yet he assists him in doing so the accused acts dishonestly and is guilty of
theft. A IR 1926 Pat 36.
(5) Where the servants of the 4aristimrardar cut trees without the permission of the istimtardarin
spite of the fact that the latter had pointed out that they could not do so without hispennission,it .i,vas
held, under the circumstances, that, to follow the orders of the daristimrarclar, was to take the risk of
being visited with the consequences of the act and that the servants in cutting the trees mustbe held to
have guilty knowledge. AIR. 1934 Pat 491. . . .. .
28. Hire purchase agreements.—(1) When the condition Of the hire purchase agreements grants
leave and licence to the owner to take possession of the articles on default of installments dUe under
the agreement it amounts to the purchase giving his consent to the removal of the article Such taking
cannot, in law, amount to taking without consent hence, the removal does not am oUnt to theft 1965
A1ILI 214, '. . .
29. Theft by more persons than.one.—(l) To secure conviction oi"more.persoñs than 9i eop the
ground that all such persons were in Joint possession of stolen property, it must be proved that the
stolen property was either in the physical possession of each one of the accused persons or else it was
in possession, physical or constructive, of one or more of thOrn, on..behalf of and to the knowledge of
the other accused persons and that each of them intended to posess it for their joint use and to the
exclusive of persons other than themselves. AIR 1929 Sind 9. .
• (2) If two persons go steal a particular article and onewho is actually committing the theft isnot
able to find that particular article, but steals something else instead and both of them run away together,
both must be held guilty of theft inasmuch aT the other who did not actually steal the article must be
taken to have acted in furtherance of a common intention to commit theft. AIR 1942 Pesh 50.
(3) Where a gang of persons goes to the land of another with
the: iztentjoñ of removing paddy by
force and some of them commit the theft, all are responsible for the theft A IR 1936 Rang 70
(4) Where a group of persons detain a person carrying some articles and engage thmse1ves in
some negotiations with him and another group suddenly appear on the scene and rénio'e the articles,
while the first group remain silent spectators, the natural inference is that the group which detained the
person and the group which removed the articles were members of agàng acting in furtherance of a
common intention. AIR 1969 Ker 29.
30. Theft and rnischief.-.--( 1) The ingredients of the offence of mischief differ in many respects
from those of the offence of theft. Mischief may be committed in respect of any property movable or
immovable, while theft can only be of movable property. Destruction or injury to property or its
diminution in value is a necessary ingredient in mischief, while theft requires no such ingredient.
(1922) 23 GnU 504 (Fat). .
(A ) Illustrations. .....(j) A cuts a tree on B's land with a view merely to annoy
. B ,bUt does' not
remove the tree. A commits mischief but not theft. AIR 1916 Mad 1071. .
(2) A commits theft of B's bullock and then kills it. A commits theft as well as mischief., Here
the mischief succeeds the theft. It was held that B having already suffered loss by theft of his bullock,
Sec. 379 Of Offences against Property 1123
there could be no further 'wrongful loss' by the subsequently killing of the bullock and that therefore,
the accused can be convicted only for theft. AIR 1925 Pat 34.
31. Theft, criminal misappropriation and criminal breach of trust.—(1In a theft the original
taking is dishonest and without the consent of the owner. In criminal breach of trust, the original
taking may be both honest and with the consent of the owner. In criminal misappropriation the
original taking is not dishonest but may be without the consent of the owner. AIR 1928 Nag 113.
(2) In criminal breach of trust the property is lawfully acquired or acquired with the consent of the
owner but dishonestly misappropriated by the person to whom it is entrusted. In criminal
misappropriation the property is innocently. acquired Often casually and by chance, but a subsequent
chance of intention the retaining becomes wrongful. AIR 1951 Punj 103.
(3) In the case of theft mere removal from the possession of person with dishonest intention is
enough while in other cases there must further bemisappropriation or conversion. A IR1953 Pat 100.
(4) Cattle turned out to graze are still in the possession of the owner unless the contrary is shown
and the taking of such cattle constitutes theft and not criminal misappropriation. AIR 1954 Nag 55.
(5) Property in possession of accused as public servant—Removal of the accused himself or by
some other with consent of accused—Offence does not amount to theft but is one under S. 409. AIR
1950 Lah 199.
32 Theft and criminal trespass..—(1) The accused was caught at night in the vicinity of some
cattle which had been tethered on the complainant's square and near which the complainant and his
brother were sleeping. It was held that the accused could not be held guilty of an attempt to commit
theft but that he committed the offence of criminal trespass. AIR 1924 Lah 223.
(2) The mere surrounding of an open space by a wall of fence would not convert it into a building
and, a person entering it to commit theft, cannot be convicted under S. 457 but he is guilty of an
offence under S. 379 read with S. 511. A IR 1914 Lak584.
• 33. Theft and wrongful restraint.—(l) The accused prevented the complainants from proceeding
in a certain direction with their carts and extracted from them a sum of money on a false plea. It was
held that the accused .were guilty of wrongful restraint and not of theft. (1868) 10 Suth WR 35..
34. Theft and secreting of document.—(1) A party to an arbitration aggrieved by the decision of
the.arbitrator on a point against him, seized the document lying besides the arbitrator, ran away and
refused to produce it. He held guilty under S. 204 and not under theft. (1881) ILR 3 Mad 261.
35. Theft and receiving stolen property.—(I) The purse of A was removed by X; .X and Y were
near A when the theft was committed and both ran away together; X handed over the purse to Y
immediately after the theft; the purse was recovered from Y. It was held that Y was guilty under S.
379 read with S.34 and not under S. 41 1. A IR I257A l1 678.
(2) Facts showing that accused not only knew where incriminating articles were but also taking
part in theft—Contentions that accused could be convicted only under Section 411 and not under Secs.
380 and 457 not upheld; AIR 1957 Assam 168. . •• .
• 36. Theft and unlawful assembly.^ ( 1) Where the common object of the offence under S. 147 is
theft, there should be no separate sentence for each of the offence. AIR 1955 NUC (Assam) .2850..
' (2) Where the charges under S. 379 did not refer to the common object of the unlawful assembly
but were intended toefer to the acts of individual accused, apart from their acts as members qf.the
1124 Penal Code .. Sec. 379,

unlawful assembly and there was no finding that any of the accused individually took away the articles,
it was held that the conviction of the accused under S. 379 could not be sustained. A IR 1941 Pat 492.
37. Theft and robbery.—( 1) If hurt is caused while carrying away the stolen property, the offence
would be robbery; but if after the theft is committed the offender merely makes good his escape Ithe
offence would be theft and not robbery. 1977 WLN (UC) 445 (Raj).
(2) Where the inception of.the struggle was only a quarrel and it was at the end that the accused
found a chance of taking the articles of the complainant in order to ensure the payment of money due
to him, the offence is one tinder S. 378 and not under S. 392. A IR 1935 Pesh 49.
(3) The accused, beat the complainant and his concubine, resulting in injuries to them and
immediately entered the complainant's house and removed boxes containing cash, ornaments and
utensils. It was held that the beating was primarily for the purpose of the theft which took place
immediately after the assault. The offence committed was robbery under S. 394 and theft. AIR 1955
Cal 527.
38. Attempt to commit theft.—.(I) The accused was caught in the vicinity of some cattle which
had been tethered on the complainant's square and near which the complainant and his brother were
sleeping. It was held that the evidence was not sufficient to hold the accused guilty of an attempt. to
commit theft though he could be held guilty of the offence of criminal trespass. AIR 1924 Lab 223.
(2) The accused entered an open thorned enclosure in which goats and sheep were kept but on the
owner being diturbed, he fled away. It was held, he could be held guilty of an attempt to commit
theft. A IR 1926 Làh 147. . .. . . . .
(3) The accused was caught while attempting to steal the purse of P from his pocket; P. however,
seized the purse from outside his pocket and also the hand of the accused. It was held that the offence
fellunderS.511 and not under S. 379. A IR 1942 Mad 521.
19. Burden of proof and appreciation of evidence.--(l) In the absence of sufficient evidence of
removal of or attempt to remove the property, merely , being found at night time in the vicinity of the
property is not, sufficient to sustain a conviction for theft or attempt to commit theft, though the
accused may beheld guilty of criminal trespass, etc. 1948 All WR(HC) 151.
(2) Accused' found to be present in taxi at the time of arrest--Failure on part of prosecution to
establish relationship amongst the three accused—NO conspiracy had been either alleged or
established—No part played by accused in commission of offence was established—Held, accused
not guilty of offence under Section 379 Penal Code—Presence in a taxi 'does not mean that occupier
of taxi is aware of faët that taxi was stolen property and no oftence could be brought at home. 1984
Cr1LR (Mah) 18.
(3)Where the case of victim had not been corroborated by any other evidence conviction under S.
379 on the basis of evidence of victim alone could not be sustained. 1982 Cr1LJNOC 136 (Orissa).
(4) Charges of criminal trespass, theft etc.—Complainant not producing evidence as to ownership
of property relating to which commission of offence alleged—No independent witnesses, examined—
Held, accused were entitled to benefit of doubt. 183 CrILJ 59 (Gauhati).
(5) Offence of theft—Reappreciation of evidence by Supreme. Court in interest ofjustice----Delay in
filing first infOnnation report—Presence of accused, a Government Servant at place of occurrence not
proved by evidence—Accused entitled t6 acquittal. AIR 1984 SC 454.T
(6) Prosecution for offence under S. 378—Purchase of stolen article not examined by prosecution
though his name and addiess was available—Also Co efforts were made to recover that aitióle from
purchase—Held, conviction under S. 379 could be, not sustained. 1982 W LN (UC) 345 (349) (Raj).
Sec. 379 Of Offences against Property - 1125
40. Possession of stolen property—Presumptlon.-,-(l) The Court may presume that a man who
is in possession of stolen goods soon after the theft is either the thief or has received the goods
knowing them to be stolen unless he can account for his possession. (1978) 45 CuiLi 124.
(2) Where a long time has elapsed' between the date of theft and the date when the accused was
found to be in possession the said presumption does not arise. AIR 1946 Sind 153.
(3) The presumption refers to above is a rebi.itable. The words "may presume" in the illustration
shows that it is not always necessary that the presumption should be raised. All the circumstances of
the case have to be considered before drawing such an inference. AIR 1954. SC 279.
(4) The mere pointing out by a person of the place where stolenproperty is concealed, which place
is not in his possession, is not by itself sufficient to maintain a conviction for theft. AIR 1969 Guj 100.
(5) In a previous case the accused was convicted under S. 379 for harvesting and removing paddy
from the possession of the complainant. Subsequently he was tried for the same offences in respect of
the same land. It was held that the previous judgment was relevant and admissible to prove the
dishonest intention of the accused. AIR 1961 Manipur 43.
41. Punishment.-.-(l) Where the offence of theft was committed by a landlord in a high-handed
manner a sentence of mere.fine would be inadequate. AIR 1951 Kutch 58.
(2) It is not easy to detect cases of picking of. pockets. A sentence of six month's rigorous
imprisonment is not excessive for such offences. AIR 1957 All 678.
(3) A sentence of one year's rigorous imprisonment was held to be excessive for picking of
pockets. AIR 1953 All 345.
(4) Where a young man of 23 years, coming from a good family, committed theft of cash, due to
starvation and at the first approach of the police made a clean breast of everything and made over all
the money a lenient punishment was held sufficient. AIR 1980 SC .636
(A ) Other illustrative cases.— (l) Accused not previous convicts—Did not enjoy usufruct of
stolen property—Held, conviction maintained but sentence altered to period already undergone. 1982
UP (Cr)C25 (26) (A ll)
(2) Where a 'person with no 'previous conviction stole a coconut tree, it was held that having regard
to the circumstances of the offence and character of the offender, he should be released after admonition
and should not be sentenced to imprisonment. A IR 1967 Goa 95. .
(3) Where the accused had stolen 3 sugarcane-strikes, it was held that the motive of the accused
was not to cause wrongful gain or wrongful loss, but only to satiate his craving and the case was
considered fit for giving him the benefit of S. 360, Criminal P. C. A IR 1955 NUC (MB) 4327.
(4) Where an act is an offence under two enactments which are not in conflict with each other
prosecution can be restored to under either of the enactments. AIR. 1951 Mys. 25.
(5) Conviction under both Sections 147' and 379—Sentence under this section reduced from 3
years' R. I. to 2years' R. I. to run concurrently with the sentence of 2 years' R. I. under Section 147.
1979 UJ (SC) 582.
42. Abetment of theft.—(1) When a person is:convicted of theft: only it is not competent for the
appellate Court.to modify the conviction into one for abetment of theft. (1913) 13 Cr11..] 203.
(2) Where the property is attached by the Amin in execution of a decree at the 'instance of A.' The
fct that the claim petition of B to the property is allowed does not warrant the conviction of under
S. 379 read with S. 114. A IR 1941 Mad 799.
1126 'Penal Code Sec. 379
(3) The evidence against the .accused was that-he was:.standing by the thief. There was no evidence
at all to lead one to the conclusion that he was engaged in any, conspiracy with the principal offender for
the doing of the'act of theft. •It was held that he was not guilty of abetting the theft. A IR 1923 Pat 121.
43, Procedure..--(1) Offence u/s. 379 read with Sectiti"75—For purpose of compounding only
offence is one under section 379 doesnot give different colour to it. A IR 1970 Ker 251.
(2) Where several accused were separately engaged in fishing -and stealing,fish and there was no
common object or intention,. it was held that they could not be tried jointly. The joint trial is not a
mere irregularity. A IR 1927 Mad 177.
(3) Theft—Discharge of accused—Wrong application of provision of law—Discharge amounting
to acquittal—Second complainant for commission of same offence—Barred by Section 300 of
Criminal Procedure CodO. 1982 C'riLJ 2144.
(4) An offence of theft punishable under S. 379 is to be tried as warrant case under Cr. P. C.
- 1898.1981 A IIL.JNOC 89.
(5) Where investigation revealed .offence that had been committed under sections 379 and 447 of
Penal Code and a prima facie case was already made out at this stage, discretion of High Court should
not be exercised under Section 482 of Criminal Procedure Code for purpose of obstructing dear flow
of investigation by competent investigation machinery. 1982 MadLW (Gri) . 149.
(6) Complaint of theft of truck—Court should consider whether crime as per definition of theft has
been committed—It should avoid going into question of ownership. 1982 CriL-J (NOC)' 161
(Gauhati). .
(7) Cognizable—Warrant—Not bailable—Compoundable—Triable by any Magistrate, Village
Court...,. ..
44. Charge.—(I) Where the charge, does not mention the name of the person from whom the
property is removed, the conviction :5 not bad in the absence of prejudice. AIR 1967 Raj 190.
(2).A person charged witht theft and demanding illegal gratificatiod can be charged alternatively;
AIR 1941 Rang 295. . .. .
(3) Theft of different things on different dates separated by considerable periods cannot be treated
as one theft Each theft should be charged separately. A IR 1944 Cal 224
45. Form of charge.—(I) A charge under this section must be specific about the place where from
the property is alleged to have removed (1973) 1 CutWR 201
(2) The charge should run as follows:.
I, (name and office of the Magistrate). hereby charge you (name of the accused) as follows:,.
That you, on or about the—day of—at—committed theft, of (specify the things) by taking it out
of the possession of .X and thereby committed an offence punishable under section 379 -of the Penal
Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
46. Civil Liability for damages for removal of property by theft—(1) The pendency of
prosecution proceedings for an offence is not bar to suit for damages for the removal of the property
which is the basis of the prosecution. AIR 1971 Orissa 8 (8).
47. Practice—Evidence--Prove:. (1) That the property in question is movable property.
(2) That such property was in possession of a person.
Sec. 38j Of Offences against Property 11271
(3) That the accused removed the said property from that person's possession.
(4) That he did so without the consent of that person.
(5) That he did so in order to take the same out of the possession of that person.
(6) That he did so. dishonestly with a view to cause wrongful gain to himself or wrongful loss to
that person.. .. . . .. . .

Section 380 . .
380. Theft In dwelling house, etc. —Whoever
: commits theft in any building,
tent or vessel, which building, tent or vessel is used as a huran dwelling, or used for
the custody of property, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine
Cases and Materials . : . Synopsis . .. ..
1. Scope. : •'.. .6. , Evidence and proof. . . ..
2. . Theft from building.' .. . Sentence.
.. V essel. . . . 8. Procedure.
4. "In. any: building." . . .. . 9. Practice. ,.
5.. Charge and conviction. . ., ..' JO. Charge. ' .. .
1. Scope.—(1) The object of the section' is to give greater security only to property deposited in a
house so as to be under the protection of the house and not to property : about the person of the party.
from whom it is stolen. The expression 'building' must , be regarded as indicating some structure
intended for affording some sort of protection to the person dwelhng inside it or for the property
placed there for custody. Similarly, theft within the compound wall and outside the building will not
fall under this section. Theft of cloth spread on the tOp on a building for drying will not fall under this
section, Theft from a person—in a dwelling house is therefore simple theft
(2) Theft committed in a verandah—Verandah is a part of the building—The limitations which
appear to have been imposed by the Legislature on buildings referred to in Sections 380 and 442. are
not as to the nature of their structures or the materials of which they are madebut to the use to which
such structures are intended to be put. Whether any , part of it was intended as ahuman dwelling .or as a
place of worship or for custody of property. must necessarily depend on the facts of each casei The
verandah as deposed in this case may be used for any of these purposes and as such is a part of the
building. W aziudin V s. State 0966) 18 DLR 227.
(3) Charge must state the property in respect of which the theft was committed—The charge under
section 380, was fanned as follows: 'That you, on or about the same date and place, committed theft
in the dwelling-hut ofilazera." Held: The charge is defectivein thatit does not state whit articles were
taken out of the pOssession. of Hazera. Safiuddin V s. Crown (1953) 5 DLR 519.
(4) Conviction not made on ccount of non-productioO of stolen clothes and seizure list, when
other reliable' evidence proves the prosecution case.—On consideration of the evidence of the
prosecution witnesses the courts below considered the question of the absence of the seizure list and
the atamat before them and they held the view that in the facts and circumstances of the case the
Absence of the seizure list and the alamat before the Court could Oót falsify the prosecution case. Abdul
.Jàbbar V s. State (1983) 35 DLR 408.. ".
1128 Penal Code •Sec. 380

(5) Conviction under both the sections in respect of the same offence not legal. A person cannot be
convicted both under sections 380 and 411, and sentenced separately under both the sections. If the
accused is convicted under section 380, he cannot be convicted under section 411 as well. Muslim
Mondal Vs. Stale (1962) 14 DLR 595.
(6) Provisions of the two sections explained in relation to each Other. Principal ingreulents of the
offence u/s. 457 may broadly be divided, inter a!ia, into two heads: (1) the accused committed lurking
house trespass by night, and (2) the same. was committed with intent to commit theft. There is no
dispute that the first part in this case on the basis of positive evidence has been fulfilled in the present
case: The nest question is the appellant having been acquitted of the charge of theft u/s. 380 P. C.
whether the second part of the ingredient of the offence under section 457 P. C. has failed. The clause
"If the offence intended to be committed is theft" in section 457 of the Penal Code refers to a state of
mind of the accused at the time of his entry. What is required is the presence , of a state of mind at thó
time of entry, the intention being, inter alia, to commit theft. Actual commission of theft is not pre-
requisite for the commission of the offence under this section. , He may or may not commit actual theft
He may fail in his attempt. He may in fact commit theft. The subsequent facts, though may be relevant
to ascertain the intention of the accused at the time of entry, are not necessary to constitute the offence
under section 457 P. C. Sirajuddin. Vs. The State (1976) 28 DLR (A D) 162.
(7) Same person charged with the commission of offence under sections 457 and4 380. These
offences cannot be treated as part of the other, being separate and distinct offences. Sirajuddin, Vs. The
State ('1976) 28 DLR (AD) 162. . . . . . . .
(8) The finding of the Civil Court as to possession passed in a Civil Suit shall prevail over the
finding of the criminal Court as to possession. If the appellant was in possession in 1978 as found by
the Civil Court,, then for the purpose of the criminal case it was enough to hold that the prosecution
evidence as to possession could not be accepted beyond reasonable doubt. The appellant could not be
legally convicted for the . offence of criminal trespass. 8 BCR 25 AD. .
(9) Leave to appeal was granted upon the assertion ofthe appellant that they preferred an appeal
against the order, of conviction and sentence passed against them but the High Court Division
committed an error on the face of the record in holding that no appeal was preferred by them and
discharging the Rule on the ground. Be that as it may, we are satisfied that the High Court Division
wrongly presumed that no appeal was preferred by the present appellants. Evidence then the Rule could
not be discharged upon the mistaken view. The appellants were deprived of the benefit of the decision
of the High Court Division 'because of an erroneous assumption made by it to which we have already
referred. The evidence • being the same upon which the order of conviction is based and the trial also
being one and the same, we think, it has been rightly urged that there could not be two different results
and appellants also should get the benefit of The finding of the High Court Division that the
prosecution failed to prove its case. 6 BCR 113 AD.
(10) Opinion of footprint expert to identify accused—Value of such opinion. The science of
identification of footprints is at an elementary stage and much reliance cannot be placed on the result of
examination.offootprints. The track evidence by itself would not be enough before a court to connect
an accused with the. crime. Even if resemblance is shown between two footprints, there has to be other
incriminating facts and circumstances to prove the guilt of the accused. 4 BLD 17.
2. Theft form building.—(1) The offence under this section is an aggravated form of the offence
of' theft: The aggravation lies in the 'fact that the theft of property is committed in a building tent or
vessel. It is immaterial that the building is in the joint possession of the parties. 1979 GriLl 446
Sec. 380 Of Offences against Property 1129

(2) It is immaterial whether the owner of the building is present or not at the time of the theft.
1971 Rat Un CrC56(DB).
(3) Accused going to Barshi police station to lodge some complaint—Finding constables were
sleeping and not listening to his complaint—Accused taking away one handcuff from police station to
show it to Police Superintendent at Solapur in support of his grievance that constables at Barshi were
not doing their duties and were sleeping—Held, accused had no intention to cause wrongful loss to
police. 1982 CriLJ 1873 (Born).
(4) Ingredients of offence under—Husband and wife living jointly in the same house and having
joint possession of property therein—Wife cannot be charged with theft u/s. 380. 1980 Raj Cr1 C 327.
3. Vessel.—'Vessel' is defined in S. 48 of the Code as denoting anythingmade for the
conveyance by water of human beings or of property. . (1872) 1 W eir 436
4. "In any building."—(l) The word "building" must be construed in its ordinary sense as
referring to an area which is covered over by a roof. (1892) 1 QB .264..
(2) The limitations imposed by the Legislature are not as to the nature of the structures or
materials, but as to the use to which such structures are intended to be put. AIR 1929 Sind 17.
(3) Theft of chilies from the roof of a house has been held to be theft in a building. 1974 CrILJ
76 (Pat) . .
(4) An entrance hail surrounded by a wall in which there were, two door-ways but without doors,
was held to be a building. 1979 Pun Re No. 10 page 29. .
5. Charge and conviction.—(l) A person charged under S. 406 can be convicted for an offence.
under this section in view of S. 221 Criminal P. C. A IR 1955 NUC. (Sau) 5053 (DB)
(2) The joinder of charges for an offence under this section and of cheating under Section 420 of
the Code is permissible, if no prejudice would be caused to the accused thereby. AIR. 1932 All 244.
(3) As the thief himself cannot be convicted under S..215 there cannot be separate convictions for
the offence under S. 215 and this section. (1908) 7 CriLJ 464.
6. Evidence and proof.—(l) According to Illustration (a) to S. 114 of the Evidence Act, the
court may presume that a man who is in possession of stolen goods soon after the theft is either the
thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Two things are necessary before the Court may presume the above position: firstly, the goods must be
proved to be stolen goods and secondly, the possession of the stolen goods by the accused must be
soon after theft. 1956 MadhBLJ 305.
(2) On the mere evidence of recovery of stolen articles from. possessiOn of the accused, the accused
can be convicted for theft but not for murder. 1984 Cr1LR 142.
(3) Whether the accused would be presumed to be the thief or receiver of stolen goods depends on
the facts and circumstances of each case. AIR 1972 SC 2501.
(4) Where the two accused persons could not afford any reasonable explanation for their recent and
exclusive possession of the stolen she-goats, they were held guilty under S. 380 P.C. 1983 WLN (UC)
80 (Raj). . .
(5) Section 27 of the Evidence-Act is often pressed into use in tracing possession to the accused.
.AIR .1967Ker197. . . . . . . .
(6) It was alleged that the accused had made an extra-judicial confession before his arrest and the
constable who arrested him also knew it, but such an entry regarding confession was not made in the
1130 Penal Code Sec. 380
'roznamcha', Held, the accused could not be convicted for offences under Ss. 302 and 380 on the basis
of the extra-judicial confession. (1983) 2 Crimes 954 (2) (959) (DB) (Raj).
(7) Merely because some clothes were lying outside at a time when the petitioner was caught
inside the house, it could not be assumed that he was the author of the crimes of theft of clothes from
the dwelling house. 1984 Cr/Li 828: (1984) 1 Crimes 727 (Orissa).
(8) Merely because the accused the accused had a criminal background and he was present in the
village of the deceased on the date of occurrence, the accused could not be held guilty in the absence of
legal proof of the offences alleged to have been committed by him, 1983 CKLJ 130.
'(9) As to appreciation of evidence in cases under the section: 1981 Cr/Li (NOC) 32 (Gauhti); A IR
1974 SC 514,' 1984 CriLR 243 (D.B) (Raj); (1982) 2 ChadLR (Cri) 640 (P &H); 1979 Cr/Li (Mah)
362; A IR 1961 Kr 28; A IR 1958 A ndhPra 255; A IR 1955 NUC (Born) 5296
7. Sentence.---(I) For an offence under, this ' section, a sentence of fine alone illegal; ILR (1966)
Cut 363.
(2) Failure to pass a sentence of imprisonment is illegal. (1949) 2 SauLR , 91 (92)..
(3) Accused, presenting as a detective Police Officer entered to the premises of the complainant,
examined the scales and weighs and during the temporary absence of the complainant committed th'eft
of a ring. The High Court held that the two offences under Section 170 and this section are distinct
and that separate sentences are not illegal. (1919) 24 ).'Iys CCR No. 331 p 435 (435).
(4). L & R were convicted for offence under S. 380 P.C. L was caught on the spot while R ran
away with the stolen 'bicycle which was never recovered. Sentence of imprisonment awarded to L
reduced to the period already undergone. As for R was concerned it was held that there were no
extenuating circumstance for reducing the sentence of one year's R. I. imposed by lower court.' 1981
UP CriC 39..
(5) Offence under Ss. 457 & 380—Accused aged about 22 years having no previous conviction—
Sentence of one'year's R. I. reduced to six 'months only. 1982 UP (Cr1) C 103 (All).
8. Procedure.--(I) A charge of theft under this section was lodged against three persons. Two
were placed on trial and were acquitted. Subsequently, some stolen articles were found in the house of
the third accused. He was tried and convicted under S. 411 of the Code. On the above facts, it was
held that the previous trial of the two persons was no bar to the trial of the third accused, as some
additional evidence, subsequently. ascertained was before the Court to support a charge under S. 411 of
the Code. (1906) 4 CriLi 173 (Cal).
(2) A document was reduced in Court by a party in a civil suit. The opposite party removed the
said document before it was exhibited in evidence and substituted forged document in its place. It was
held that the document was property within the meaning of S. 22 of the Code and the complaint of
Court is necessary for prosecution of the offender for offences under Ss. 467 and 471 of the Code; but
not for an offence under this section. 1963 (2) GriLl 558 ('GuJ).
(3) The fact that aMagistrate entertains a complaint for offence under Sections 464 & 380, when
the complaint is that more than five persons emitted a house and stole property does not amount to a
dismissal of the complaint under S. 395 of the Code. Therefore, an order of the revisional Court
directing the Magistrate to treat the case a preliminary register case for an offence under S .395 without
hearing the accused is bad in law. AIR 1948 Mad 95.
(4) An offence under this section is not so intimately connecte,d with an offence under S. 436 of
the Code as to warrant a committal of the case to a Court of Session. AIR 1926 Cal 1091).
See, 381 Of Offences against Property 1131
(5) Where an accused's plea of guilty to a charge under this section is based on an erroneous
conception of one's right in property, S. 375, Criminal P. C., is not applicable to the case and cannot
shut one's right of appeal. A IR 1931 A ll 265.
(6) Charge of theft—Property recovered from possession Of accused—Accused acquitted—Property
should be restored to accused—Order ofcourt for return of ornaments after decision of civil court
regarding title is illegal. 1982 A11L.J 504.
(7) When the accused from whom property was recovered has been acquitted by the charge under
S..380. The court is not competent to deliver some of the recovered ornaments which are identified by
the complainants to him on the ground that he claimed ownership of the ornaments seized. If the
complainant claims ownership of the property his proper forum is to seek remedy from civil couri.
1982 A IIL,J 340.
(8) Where the accused confessed during investigation before the police authorities that monies had
been realised , by him from the sale of stolen commodities which undoubtedly belong to the
complaints, the properties in question should be returned to the complainant. 1979 Raj C'riC 293.
(9) Cognizable—Warrant—Not bailable—Compoundable when permission is given by the Court
before which the prosecution was pending—Triable by any Magistrate, Village Court.
9.. Practice.—Evidence—Prove: (1) That the subject matter is the movable property.
(2) That it was in possession of person.
(3) That the accused moved it.
(4) That he did so without obtaining consçnt of the person in whose possession the said moveable
property remained.
(5) That he did so intending to dishonestly take it out of his possession.
(6) That the property stolen was in the building, tent or vessel.
(7) That the said building, tent or vessel as then used as dwelling house or for the custody of
property. .
10. Charge.—The charge should run as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—committed in a building (6r tent or vessel) used as a
human dwelling (or for the custody of property) the theft of (specify the thing), belonging to X and
thereby committed an offence punishable under section 380 of the Penal Code and within my.
cognizance. . . . .
And I hereby direct that you be tried by this court on the said charge.

Section 381
381. Theft by clerk or servant of property in possession of master.—
Whoever being a clerk or servant, or being employed in the capacity of a clerk or
servant;. commits theft in respect of any property in the possession of his master or
employer, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall als6be liable to fine.
1132 Penal Code Sec. 381

Cases and. Materials Synopsis

1. Scope and applicability. 7. Sentence.
2. Clerk or servant. 8. Jurisdiction—MisJoinder of chargers.
3. Theft 9. Appeal.
4. Property of illegal societies. 10. Procedure.
S. In the possession of master or employer. 11. Practice.
6. Duty of Court 12. Charge.
1. Scope and applicability.-41) This section provides for a severe punishment when a clerk or a
servant has committed theft because he has greater opportunities of committing this offence owing to
confidence reposed in him. When the possession is with the master this section applies; when it is
with the servant, section . 408 conies into opertion. An unpaid apprentice is a clerk or servant within
the terms of this section (3 CrLf 70).A Clerk or servant is a person bound by an express contract of
service.
(2) In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of
the petitioner under section 38 .1 is maintainable although be schaed under. section 408,butnot
under section 381 of Penal Code. in view of the provision of section 237 Cr. PC and being in
respectful agreement with the pronouncements of the learned.Judges, I. am of the ewThatalthough in
this case the petitioners was charged under section- 408 of the Penal Code. ãnd not'undessection 381 of
the Penal Code still his conviction under section 381 of the Penal Code is quite maintainable and the
petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the
element of offence punishable under section 381 of the Penal Code and he was not also prejudiced by
conviction under section 381 of the Penal Code. MahbubulA lam Vs. State, 41 DLR 7.
(3) Charge was framed under Section 408 of the Penal Code and the accused was convicted.under
Section 39-1 of the said Cade—Whether coiwiction legally sustainable—Although the accused
of the Penal .Code and -,nat.under Section. 3.81,,of.the- Penal
Code stilt -his, conviction under:Sc of. the, PenaLCode . .is maintainable in law.as the accused
was fully aware of the nature of the ace aon.against him mid -he ..had sufficient-opportunity to-met the
elements of the offence punishable under Section 38.1 of t he Penut.Gode. . . Mahbubul. A lam Vs. The
State 9 BLD (HCD) 419.
(4) This section also deals with an aggravated form of the offence of theft. The .aggraation
consists in the abuse of trust and confidence which exists iii the...relationship of master and clerk, and
masteranervantand the punishment is accordingly more;severe. than that. forordinary theft. 1887 All
WN 54. .• . . . .
.2. Clerk or servant ^ ( 1) The test whether a person is a'clerk or aservantwithinihemeaning of
this section is whether the person is under the control of - and bound to obey the orders of his employer,
he may be so without.being.bound to devote the whole.of.bistime to his employer's service. (1873)
12 CoxCriC 492.
(2) Whether the person is a "clerk or servant" within the meaning of the section depends upon the
temis ofemployment. Thus, if a person A says to another carrying onan. independent.trale "if You. get
any order for me I will pay you a commission." "and that person xecrives money and-applies it to his
own use; he is not guilty under this section for he is not a clerk or servant; but if A says to B; "1
employ you-aad wili pay not .by.saiaiy bufby commission,"then..J . is servant The Txeasnn for such
distinction is that A has no control over -the person .emk. dn-thefirst sewheas--ia'the second
case A employs B who is bound to obey. A's orders in regard to all --matters relating to his
employment. (1870) 11 Cox 551.
Sec. 381 Of Offences against Property 1133

(3) An unpaid apprentice is a "clerk or servant." (1906) 3 CrILJ 70.

(4) Prisoner was also employed by the company to canvass for orders for advertising, superintend
the bill posting, collect money due to the company, and pay it to the cashier—Held that his being a
director of the company did not prevent him from being a servant of the company. (1894) QB 310.
(5) Person who is not under the orders or control of employer in the discharge of his duty, (1890-
1895) 17 Cox CrIC 656 (659). .
(6) The prisoner was employed as traveler to solicit orders for and to collect money due on the
execution of such orders by the firm and to pay over the moneys so collected in the evening. The
prisoner had no authority to retain in his hands moneys belonging to the firm. He was to be
exclusively in the employment of the firm. He had no salary but was paid a commission on all orders.
It was held in a case of embezzlement against him that the prisoner was a clerk and servant within the
meaning of Statute. (1871) 12 C6x CrC 56
3. Theft.—(l) Removal of property in the assertion a bona fide claim of right though unfounded
in law does not constitute theft; but a mere colourable pretence to obtain or keep possession of
property does not avail as a defence. A IR 1924 Lah 453.
(2) The taking of official papers by a clerk of the office out of the officer's custody for showing,
them to a party's vakil is theft by a clerk or servant. A IR 1926 Born 122.
(3) Where the accused was legally in charge of the articles and in that capacity, moves the articles
from one place to another then he cannot be held guilty of theft under this section. A IR 1955 NUC
(Born) 5310.
4. Property of illegal societies.—(1) Where the secretary of 'a society was charged for
embezzlement of funds of the society and it was contended that the object of the society was illegal
and hence the-combezzlement of the property of the society was not an offence, it was held that though
the rules may be void as being in restraint of trade, it cannot be contended that such societies are
illegal so as to deprive the protection of the law in respect of their property and that the accused was
guilty of theft. (1870) 11 CoxCriC 483. .. .
5. In the possession of master or employer.—(1) This section deals with theft in respect of
property in the possession of the master or the employer. The prosecution must therefrom produce
evidence sufficient to establish that the property was stolen form the possession of the master or the
employer, (1974) 1 CriLT 126;
(2) In the absence of evidence that property was stolen from the possession of the master the
conviction under this section cannot stand. A IR 1916 Mad 1103.
6. Duty of Court.—(1) A Magistrate dealing with a criminal case cannot allow himself to
influence in his decision by vague and general consideration based on extraneous experience of his own
and supported by no proof. 1887 A ll W N 54.
7. Sentence.--(I) Where a domestic servant in whom his master resposes confidence and trust,
betrays the confidence and commits theft, in his absence, of precious articles such as gold and diamond
ornaments, he must be dealt with very severely, if the guilt is proved. 1959 JabLJ 738.
(2) The Magistrate has the power to impose a sentence of fine also under this section but it is a
matter of discretion. A IR 1957 Punj 55. . . . .
8;•jnrisdiction—Misjoinder of charges.—(l) Where the accused was charged with having stolen
the property outside the country but was arrested within the country and prosecuted under S. .381, it
/.1134 Penal Code Sec. 382
was held that a Court has no jurisdiction to try him for an offence under this section but can try him
for an offence Section 411. (1886) ILR 10 Born 186.
(2) Where an accused person is charged with having committed an offence under S. 379 he should
not be convicted of an offence under this section read with S. 109 when he is not charged with having
committed that offence. AIR 1923 Pat 121.
9. Appeal.—( 1) An accused, a young man convicted under this section was released under Cr. P
C. without being awarded sentence. It was held that it cannot be said that the conviction is incomplete
without a sentence for the purpose of exercising the right of appeal given by the Criminal P. C. against
a conviction under this section and the appeal against the conviction was maintainable. AIR 1948 Mad
16.
10. Procedure.—(1) The trial of an offence under this section by a third class Magistrate is
illegal. (1897-1901) 1 UBR 75. . .
(2) Offences under Ss. 458, 467, 471 & 381, P. C.—Anticipatory bail should be granted where
the complaint is made after unreasonable delay. 1981
. BomCR 57.
(3) Cognizable—Warrant—Not bailable—Compoundable When permission is given by Court—
Triable by Metropolitan. Magistrate, Magistrate of the first class or Village Court.
11. Practice.—Evidence—Prove (1) That the property in question is moveable property.
(2) That such property was in the possession of person.
(3) That the accused moved such property whilst in the possession of that person.
(4) That he did so without the consent of that person.
(5) That he did so in order to take the same out of the possession of that person.
(6) That he did so with intent to cause wrongful gain to himself or wrongful loss to that person.
(7) That the accused was: at that time a clerk or servant, and was employed in such capacity by the
person in whose possession the stolen property was.
12. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the--day of—at—being a servant (or clerk or employed in the capacity of
a clerk or servant) of X committed theft by stealing property, to wit—in the possession of the said X,
and thereby committed an offence punishable under section 381 of the Penal Code and within my
cognizance. .
And I hereby direct that you be tried by this Court on the said charge.

Section 382
382. Theft after preparation made for causing death, hurt or restraint in
order to the committing of the theft.—Whoever commits theft, having made
preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of
restraint, to any person, in order to the committing of such theft, or in order to the
effecting of his escape after the committing of such theft, or in order to the retaining of
property . taken by. such theft, shall be punished with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.
Sec. 382 Of Offences against Property 1135

illustrations
(a) A commits theft on properly in Zs possession; and while committing this theft, he
has a loaded pistol under his garment having provided this pistol for the purpose of
hurting Z in case Z should resist. A has committed the offence defined in this section;
(b) A picks Z's pocket., having posted several of his companions near him, in order
that they may restrain Z I[Z should perceive what is passing and should resist, or should
attempt to apprehend A . A has committed the offence defined in this section.
Cases and Materials
I . Scope.—( 1) The possession by a thief, at the time of his committing a theft, of a knife or other
weapon, which, if used on a human being might cause death or hurt, would not of itself justify a
conviction under section 382 of the Penal Code. There must be something to show or from which it
may properly be inferred that the Offender made preparation for causing one or more of the results
mentioned in the section (1 CrLJ 378). The only difference between the offence under this section and
that in the ease of robbery is that some injury is actually inflicted while under this section all
preparations made were also for effecting his escape after committing such theft or to retain the
property stolen.
(2) The essence of the section is the commission of theft, accompanied by preparation for causing
death, hurt, restraint or fear in order to committing theft or. to effecting escape after committing theft...
Mo,fIzul Islam V s. State (Criminal) 54 DLR 221. .
(3) An offence under section 382 of the Penal Code is triable by Court of Sessions as per Column
Eight of the Schedule. The Assistant Sessions Judge acted beyond jurisdiction in making the
impugned order under section 250CrPC as the offence under section 382 PC is triable by Court of
Sessions and not by a Magistrate (ReJ 8 BCR, 166). Karim Dad V s. A bul Hossain, 40 DLR 44.
(4) FIR-case not disclosed, offence-case quashed. 44 DLR 391.
(5) The essence of the offence contained in section 382 is the commission of theft accompanied by
preparation for causing death or hurt or restraint or fear of death or of hurt or of restraint any person
in order to the committing of such theft or to effecting of escape after committing such theft. Since in
the instant case the commission Of theft has not at all been proved, section 382 of the Penal Code has
no manner of application in the case. MojIzul Islam V s. The State 22 BLD (HCD) 145.
(6) Carrying a weapon at the time of committing a theft shows "preparation" to use it if necessary
and it is not essential that the accused should actually cause hurt or attempt to do so. 1980 CriLJ 760
(MadhPrq). . .
(7) Proof of actual theft is necessary before conviction under this section. A IR 1923 Lah 512.
(8) Where the accused caused hurt to person in order to effect escape after committing theft, he
should be convicted under this section. (1908) 7CriLJ 446.
(9) Where all the accused came together to a spot and went together with the stolen property and
- two of them carried away the property while the others. waited at a distance and all of them were armed,
it was held that it could be presumed that all of them came with intent to commit theft and that all of
them were liable for theft. A IR 1950 Kutch 29..
(10) Where the theft is by armed persons and is practically a highway robbery, a sentence of two
years' rigorous imprisonment is not excessive. A IR 1950 Kutch 29. . . . . . ..
1136 Penal Code Sec. 383

2. Practice.—Evidence---Prove: (1) That the subject matter bf theft is moveable property.

(2) That it was in the possession of any person.
(3) That the accused moved it.
(4) That he did so without obtaining consent of the person in whose possession such moveable
property was.
(5) That he did so intending to dishonestly taking it out of his possession.
• (6) That the accused committed theft having made preparations for causing death, hurt or restraint
or fear of death, hurt or restraint.
(7) That he did so—(a) in order to commit such theft, or (b) to effect his escape or (c) to retain the -
property stolen.
3. Procedure.—( 1) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court
of Sessions.
4. Charge.—The charge should run as follows:
I, (name and office.of the Judge) hereby charge you (name of the accused) as follows:
That you, or on about the-.--day of—, at—, committed theft of (specify the property) from the
possession of X after your having made preparations for causing death or hurt or restraint to any person
in order to the committing of such theft or in order to the effecting of his escape after committing such
theft or in order of retaining of such property stolen and thereby committed an offence punishable
under section 382 of the Penal Code and within my cognizance.
And I hereby direct that you tried by this Court on the said Charge.

Of Extortion
Section 383
383. Extortion.—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 give donation or subscription of any kind or to deliver] to any person any
property or valuable security or anything signed or sealed which may be converted
into a valuable security, commits "extortion".
Illustrations
(a) 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.
(b) 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 money to A. Z signs and
delivers the note. A has committed extortion.
(c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver
to B a bond .binding Z under a penally to deliver certain product to B, and thereby
induces Z to sign and deliver the bond. A has committed extortion.

I. Substituted by Act XV of 1991, for "fear to deliver" (w.e.f. 24.12-90).

384 Of Offences against Property 1137

(d) A , by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his
seal to a blank paper and deliver it to A . Z signs and delivers the paper to A . Here, as the
paper so signed may be converted into a valuable security; A has committed extortion.
Cases
1. Scope.—To constitute the offence of extortion there must be inducement which should proceed
from the person charged and it should result in creating such fear in the mind of the victim as to make
him give property or valuable security etc. as the case may be. It follows that there can be no offence of
extortion when possession was obtained peacefully. The essence of the offence of extortion is in the
actual delivery of possession of the propertyby the person put in fear and the offence is not complete
before such delivery. In. extortion property is delivered by causing fear.
2. For cases relevant to this section, see under section 384 next.

Section 384
384. Punishment for extortion.—Whoever commits extortion shall be punished
with imprisonment of either description for a term which may extend to three years,
or with fine,, or with-both.
Cases and Materials : Synopsis
1. Scope and applicability. 9. Abetment of extortion.
2. Puts any person In fear of any Injury. JO. Extortion and robbery.
3. Dishonest Inducement. , 11. Extortion and criminal intimidation.
4. Delivery. 12. Extortion and criminal breach of trust.
5. Property or valuable security. 13. Sentence.
6. "To any person ' 14. Procedure.
7. Distinction between S. 384 and S. 161 . of the
15. Charge.
Code.
16. Practice.
8. Distinction between extortion and cheating.
1. ., Scope and applicability.—(1) The element of dishonesty is the essence of this section.
Delivery by the person put in fear is essential. Where a person through fear offers no resistance to the
carrying off of his property but does not deliver any of the property to those who carry it off, the
offence committed is robbery and not extortion. The offence is carried out by overpowering the will of
the owner. The forcible taking of the victim's thump-impression on blank pieces of paper which can be
converted into a valuable security does not necessarily involve including the victim to deliver papers
with the thumb-impressions. Hence, where the victim is assaulted by the accused and his thumb-
impression forcibly taken upon a blank piece of paper, the offence of extortion cannot be said to have
been established. The offence is no more than the use of criminal force or an assault punishable under,
section 352 Penal Code nor does the offence amount to robbery in the absence of proof that the papers
were taken from the victim's possession (A IR 1941 Pat 129, 42 CrLf 361).
(2) Wrongful confinement unattended by intention to commit extortion—No offence. Necessary
ingredients to be established—"Attempt" in section 5 11, P. Code is the direct movement towards the
commission after preparation has been made, but mere wrongful confinement unattended by any overt
act signifying an intention to commit extortion cannot come up higher than the stage of preparation.
Enayetullah Vs. Crown (1955) 7 DLR 87.
(3) Where the initial complaint does not indicate that by putting the complainant in fear of aiiy
injury the accused dishonestly attempted to induce the complainant to sign or affix his seal to blank
1138 Penal Code Sec. 384
• paper and deliver the paper to the accused nor does it even show that he held out a paper and pen to the
complainant and coerced him to sign it. Held: It cannot be said that the initial complaint disclosed an
offence punishable under sections 384/511. Enayetullah Vs. Crown (1955) 7 DLR 87.
(4) The chief element in the offence of extortion is intentionally putting a person in fear of injury
to that person or to any other and thereby dishonestly inducing the person to put in fear to deliver to
any person any property or valuable security etc. ILR (1979) Born 1747.
(5) It is not sufficient that there should be wrongful loss caused to any individual but the person
putting that individual in fear of injury must have the intention that wrongful loss should be caused.
AIR 1950 Nag 214.
(6) Where a person accepts remuneration for using his good offices, it will not amount to
extortion. AIR 1949 Kutch 7. . .
(7) The person delivering the property must be put in fear; otherwise, if the person who so delivers
is not afraid of the threat, then, an offence under this section is not committed. AIR 1955 Sau 42.
2. Puts any person in fear of any injury.—(1) The injury that a person may be put in fear of
is not necessarily physical injury. The injury to character may be also an injury, as is shown by
illustration (a) to the section. (1968) 1 MalayanLf 32.
(2) The word "injury" in S. 383 is not confined to physical injury. Even a terror of a criminal
charge, whether true or false, amounts to a fear of injury. AIR 1952 Pat 379.
(3) Where the complainant was put in fear of loss of his employment if he did not pay money to
the accused, it was held that the accused was guilty under this section. AIR 1936 Sind 29.
(4) The injury contemplated must be one which the accused can himself inflict or cause to be
inflicted. A IR 1944 Sind 203. . .
(5) Unlawful detention of a cart at a toll gate due to illegal demand for levy amounts to injury. 1
W eir 44](1) (441),'] W eir 20.
(6). Levy of fine under threat of picketing is extortion. AIR 1922 All 529.
3. Dishonest inducement..—(1) The element of dishonesty is necessary for a conviction under
this section. If the accused did not act dishonestly but believed bona fide that he was entitled to act in
that manner, he could not be convicted for extortion. There must be intention to cause wrongful loss to
the person who is extorted. (1883) 6 MysLR No. 348.p. 177.
(2) Taking brides or extorting money cannot be reconciled with the duties of a police officer and
such act cannot be regarded as committed under colour of authority. AIR 1932 Sind 28.
(3) Demanding money for doing what one is not bound to do is not an offence under this section.
A IR 1924 Lah 162.
4. Delivery._( 1) The essence of the offence of extortion is in the actual delivery of possession of
property by the person put in fear and the offence is not complete before such delivery. 1970 CriL.J 647.
(2) Where possession was obtained peacefully, it cannot be said that the goods were obtained by
extortion. AIR 1949 All 599.
(3) Where the accused loots the property, i.e., himself removes the property instead of causing the
victim by threat of injury etc. to part with it, the offence will be "theft" and its variants (like robbery,
dacoity, etc.) (Section 377, etc.) and not extortion. AIR 1979 SC 1943. .
5. Property or valuable security.--(I) Property under this section means both movable and
immovable property. AIR 1951 Hyd 91.
Sec. 384 Of Offences against Property 1139

(2) Where a promissory note was taken forcibly from a minor, tb.e document is a valuable security
within the meaning of this section and it is immaterial that it might subsequently be held to be of no
effect against the executant. AIR 1933 Pat 601.
(3) Where the petitioner armed with revolver, stengun abducted and wrongfully confined a person
and threatened to kill him and forced to write letters to his parents containing demand for payment of
ransom of large amount which was made, the letters written constituted property or valuable security
within the meaning of S. 383 and an offence of extortion was committed. AIR 1982 NOC 151.
6. "To any person."—(l) It is not necessary that the threatshould be used and property received
by one and the same individual. Several persons may arrange that the threat should be used by some
persons and the property be received by others. All would be guilty of extortion. It is not necessary
that the receivers should be charged as abettors thought that might be done. (1886) 2 BomHCR 394.
7. Distinction between Section 384 and Section 161 of the Code.—( I) The essential element in
the offence under S. 161 is the fact of receipt of illegal gratification in whatever way it was demanded
and obtained. But where payment was obtained under fear of authority, an offence u/s. 384 and not S.
161 is committed. For an offence uls. 384, proof of fear of injury is essential. A IR 1956 Cal 116
(2) Where an accused was first tried for an offence under S. 384 and acquitted it does not bar his
trial for an offence under the Prevention of Corruption Act, either under S. 408 or any principle of
natural justice. AIR 1955 Pat 453.
8. Distinction between extortion and cheating.—( 1) Money obtained either under a fraudulent
inducement or dishonestly amounts to cheating (S. 417). But if it was obtained by putting the
complainant in fear of injury and thereby inducing him to deliver any property it amounts to extortion.
(1865) 3 SuthWR 32. 'I

(2) Although there is a common feature between extortion and cheating, yet, they cannot be
regarded as two aspects of one offence and it is indicated by the manner in which punishment is
provided for each of them. AIR 1928 Born 346
9. Abetment of extortion.—( 1) For an abetment it is necessary that the accused intentionally aids
by any act or illegal omission the doing of the thing which contitutes the offence. An omission to
disapprove of the extortion committed is not an abetment of the extortion. A IR 1948 Cal 47.
10. Extortion and robbery.—(l) Extortion accompanied by threat of immediate injury falls
under S. 392. 1950 A ll LJ 711.
11. Extortion and criminal intimidation.—(l) A was charged with committing criminal
intimidation to X by threatening X and his daughter Y with injury to their reputation by publication of
the nude photographs of Y with intent to cause alarm to them. No reference to blackmail or extortion.
was inade in the charge. In the evidence, however, it appeared that the object of A was to make X pay
'hush money' to A, A was convicted under S. 506 of the Code. AIR 1960 SC 154.
12. Extortion and criminal breach of trust.—(l) A charge of criminal breach of trust and also
of extortion in respect of the same moneys are incompatible with each other. Consequently, a
conviction both for criminal breach of trust and extortion is not proper when they are in respect of the
same moneys. AIR 1936 Sind 29.
13. Sentence.—(1) Where an accused, who is a public servant, such as a member of the Police
Force, whose duty it is to help people and protect them from oppression, but who, instead of doing
that adopts the role of an oppressor by committing offences under Ss. 161 and 384, a deterrent
sentence should be given so as to serve as an example to others. A IR 1942 Oudh 163.
1140 Penal Code • . Sec. 385
(2) The offence under this section undoubtedly reflects, to some extent, anti-social depravity of
mind. However, the sentence of imprisonment for one year was reduced to the period of one month
already undergone in view of the long proceedings lasting for eight years and the fact that the attempt
did not succeed. A IR 1973 SC 2200.
14. Procedure.--(I) Where there is no specific charge of extortion, but only a charge of theft then
the accused cannot be convicted for the grave offence of extortion. (1912) 13 Cr1LJ 597 (DB) (Cal).
(2) The offence under S. 384 is not compoundable. A charge of extortion is not a private dispute.
AIR 1936 Sind 146.
(3) Not compoundable—Triable by Metropolitan
Magistrate, Magistrate of the first or second class.
15. Charge.-,-41) In a charge of extortion the approximate amounts extorted and the nature of
extortion should be stated. If the accused, comes to know only at the close of evidence, the offence with
which he is charged, it is an irregularity fatal to the trial. AIR 1916 All 60.
(2) The charge should run as follows:
I (name and office Qf the Magistrate) hereby charge you (name of the accused) as follows
That you, on or about the—day of—, at—, committed extortion by putting X in fear of a certain
injury, to wit—, and thereby dishonestly induced that said X to deliver to you a certain property to
wit—, and that you thereby committed an offence punishable under section 384 of the Penal Code and
within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
16. P ractice.—Evidence p e . (1) That the accused put the complainant in fear of some injury.
(2) That such injury was either to the complainant or to some other person.
(3) That the accused did so intentionally.
(4) That he thereby induced the person so put in fear to deliver to some person some property or
valuable security, or something signed or sealed, which was convertible into a valuable security.
(5) That the accused acted dishonestly in doing as alone.

Section 385
385. Putting person in fear of injury in order to commit extortion.—
Whoever, in . order. to the committing of extortion, puts any person in fear, or attempts
to put any person in fear,, of any injury, shall be punished with imprisonment of
either description for a term which may extend to 2 [fourteen years and shall not be
less than five years], or with fine, or with both:
Cases and Materials
I. Scope.—( 1) This section provides for punishment of an extortion which remained at the stage
of threat, the offence not being committed. This section having provided for attempt to commit'
extortion, section 5 11 may not apply. In order to attract the provision of this section it is necessary
that the accused should have put some person in fear of injury as defined in the Code in order to extort
some property from him. (19 Cr.L.J 445)..

2. Substituted ibid. for "two years"

Sec. 386 Of Offences against Property 1141
(2) The essential ingredients of the offence under this section are: that the accused put or attempted
to put any person in fear of any injury; and that such act of the accused was in order to commit
extortion. 1980 W LN (UC) 222 (Raj).
(3) The offence under S. 384 includes the offence under this section which is a less serious offence
than the offence under Section 384. AIR 1941 Sind 36. .
(4) The injury contemplated by the section must be one which the accused can himself inflict or
cause to be inflicted. A threat that God will punish a man for some act or omission of his is not such
an injury as the section refers to. AIR 1944 Sind 203.
(5) The word 'illegal' as defined in S. 43 of the Code means "unlawful". AIR . 1930 Pat 593.
(6) A threat by a Mukhtiar (who appeared on behalf of accused in theft case against accused) to put
scandalous questions to the complainant in the witness box, unless he paid him (the Mukhtiar) some
money, is a threat to cause injury within the meaning of this section. A IR 1930 Pat 593.
(7) A threat of a criminal complaint amounts to putting the threatened person in fear of injury,
whether the complaint is true or false, the guilt or innocence of the party threatened being immaterial.
AIR 1952 Kutch 54.
2. Practice.—Evidence---Prove: (1) That the accused put the complainant in fear or attempted to
put him in' fear. .
(2) That the fear was regarding some injury. .
(3) That the accused did as above to commit extortion.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoudable—Triable by Special
Tribunal as provided under Special. Power Act.
4. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the day of—, at—put X (or attempted to put X) in fear of injury namely—
in order to commit extortion and you thereby committed an offence punishable under section 385 of
the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge

Section 386
386. Extortion by putting a person in fear of death Or grievous hurt.—
Whoever commits extortion by putting any person in fear of death or of grievous hurt
to that person or to any other, shall be punished with imprisonment of either
description for a term 'which may extendto ten years, and shall also be liable to fine.
Cases and Materials
1. Scope-41) If the fear caused is that of death or of grievous hurt it naturally causes great alarm.
When a boy is kidnapped and the ransom letters disclosed to put the father of the boy into fear of the
boy being murdered in case the ransom money is not paid the extortioner will be guilty of sections
364 and 386. 48 DLR 269. ..
(2) The distinguishing element between extortion and robbery or dacoity is not the presence of the
offender but the presence of imminent fear and also the delivery of possession of goods to the offender,
the actual delivery or possession of property by the person put in fear is the essence of the offence of
extortion. Where a person through fear passively allows his property to be taken away the offence
1142 Penal Code Sec. 387
committed will be robbery or dacoity and not extortion. The Special Tribunal had no jurisdiction to
try this case as the offence alleged against does not come either under section 386 or section 387 of the
Penal Code, but it is more in the nature of a robbery or a dacoity. Dulal Howlader and others V s.
State 48 DLR 269.
(3) The offence under Ss. 386 and 387 are aggravated forms of the offence defined under S. 383
and must be read with that section. AIR 1944 Sind 203.
(4) Where the accused persons kidnapped a boy and demanded ransom from the father of the boy,
putting him in fright of the boy being murdered, it was held that the accused were guilty of
aggravated forms of kidnapping and extortion u/ss. 364 and 386 of the Code, and that where the
offences were committed in pursuance of a conspiracy or a common intention, one accused would be
equally guilty with the others of the two substantive offences and would be liable to the same
sentence. AIR 1957 SC 381.
(5) Where the accused abducted a girl but there was no evidence on record to show that the girl
was even threatened or was put in danger of being murdered the accused could not be convicted under
S. 386. 1980 Chand CriC 50 (P&H).
2. Practice.—Evidnce—Prove: (1) That the extortioner put the complainant or any other person
in fear of death Or of grievous hurt to him.
(2) That the extortioner did so intentionally.
(3) That the extortioner induced the person so put in fear to deliver to him or-some other, some
property or valuable security or some thing signed or sealed which was convertible to valuable
security.
(4) That the accused did so intentionally.
3. Procedure.—Not cognizable—warrant—Not bailable—Not compoundable—Triable by Court
of Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate or
Magistrate of the first class specially empowered.
4. Charge.— The charge should run as follows:
I (name and office of the Judge, etc.) hereby charge you (name of the accused) as follows:
That you, on or a about the—, day of—, at—, put Z in fear of death or of grievous hurt to the
person or to any other person in order to tommit extortion, and thereby committd an offence
punishable under section 386 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 387
387. Putting person in fear of death or of grievous hurt, in order to commit
extortion.—Whoever, in order to the committing of extortion, puts or attempts to
put any person in fear of death or of grievous hurt to that person or to any other, shall
be punished with imprisonment 3 [for life and shall not be less than seven years], and
shall also be liable to fine. -

Substituted by Act XV of 199!, s. 4, for "of either description for a term which may extend to seven years" (w.e.f 24-
3.
12-90).
Sec. 388 . Of Offences against Property 1143

Cases and Materials

1. Scope.-( I) This section may be read with section 46 and 320 of the Penal Code. This section
provides for punishment of an extortion which remained incomplete and resulted only in the stage of
an attempt.
(2) The very act of putting a person in fear of death or grievous hurt is by itself an offence under
this section where it is done in order to commit extortion. (1913) 14 CriLi 167.
(3) The offence under this section is an aggravated form of the offence defined under S. 383 and
must be read in conjunction with it. AIR 1944 Sind 203.
(4) Where several accused were charged with entering a house, and one of them put the owner in
fear of death in order to extort the keys of the safe kept in the house, and no common intention was
proved, it was held that all the accused could not be convicted for the offence under this section. 1931
MadWN 129.
(5) The words "in order to' import intention. A drunken man cannot be said to be incapable of
committing the offence under this section unless it is shown that his mind was so affected by drink
that he was incappable of forming the intention necessary to constitute the offence. (1912) 13 CriL.J
864.
(6) The standard of proof required is that the Court must be satisfied that the prosecution must
(and not may) be true. A IR 1960 MadhPra H.
(7) Accused took active part in abducting and torturing a victim with a view to extort ransom. No
ground for reducing sentence of three years' R. I. AIR 1979 SC 1493.
2. Practice.—Evidence—Prove: (1) That the extortioner put or attempted to put some person in
fear of death or grievous hurt. -
(2) That he did so to commit extortion.
3. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by Special
Tribunal as provided under Special Powers Act.
4. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or a about the—day of—, at—, put X (or attempted to put X) in fear of death or
grievous hurt in order to the committing of extortion and that you thereby committed an offence
punishable under section 387 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 388
388. Extortion by threat of accusation of an offence punishable with death or
4 [imprisonment for life], etc.—Whoever commits extortion by putting any person
in fear of an accusation against that person or any other, of having committed or
attempted to commit any offence punishable, with death, or with 4[imprisonment for
life], or with imprisonment for a term which may extend to ten years, or of having
attempted to induce any other person to commit such offence, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine; and, if the offence.be one punishable under section 377 of this
Code, may be punished with 4[imprisonment for life].

4. Substituted by Ord. No. XU of 1985 for "transportation for life".

1144 Penal Code Sec. 389

Cases and Materials

1. Scope.--(I) The aggravating circumstance under this section is the threat of an accusation of an
offence punishable with death or imprisonment for life or with imprisonment for ten years. If the
accusation is of unnatural offence then the penalty provided is severer.
(2) It is not material whether the charge of the crime levelled against the prosecutor by the accused
is true or not. But it is material in considering the question whether in the circumstances of the case,
the intention of the accused was to extort money or merely to compound the offence. (1868) 11 Cox
CriC 43.
(3) The term . accuse" means to charge a person before any third person. The threat to accuse
need not be a threat to accuse before a judicial tribunal; a threat to charge him before any third person
is sufficient. (1849) 3 Cox CriC 547.
(4) The deposition of.a prisoner before a Magistrate against the complainant of endeavouring to
excite one of them to commit an unnatural offence is admissible in evidence against them. (1850) 4
Cox CriC4O4.
2. Practice.— Evidence—Prove: (1) That the accused put the complainant in fear of an accusation
of (a) an offence punishable with death or imprisonment for life or with imprisonment for ten years gr
(b) an attempt to commit the above offence or (c) an abetment of the same.
(2) That such injury was either to the complainant or to some other person.
(3) That such injury was intentional.
(4) That the accused: thereby induced the person threatened to deliver to some person property or
valuable security or something signed which was convertible into a valuable security.
(5) That the accused acted dishonestly.
(6) That the accused did the above to commit an offence under section 377 Penal Cod;
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by Court of
scissions, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate specially
empowered by the Government in that behalf (first paragraph), District Magistrate,: Additional District
Magistrate specially empowered (second paragraph).
4. Charge.- The Charge should run as follows:
I (name and office of the Judge, etc.) hereby charge you (name of the accused)as follows:
That you, on or a about the—day of—, at—, committed extortion by putting—(name of the
person) in fear of an accusation against him (or any other person) of having committed (or attempted to
commit) the offence of—punishable with death (or with imprisonment for life or with imprisonment
for a term which may extend to ten years (or under section 377: and thereby dishonestly induced the
said—to deliver to you a certain property to wit—) and you thereby committed an offence punishable
under section 388 of the Penal Code and within my cognizance.
And .1 hereby direct that you be tried by this court on the said charge.

Section 389
389. Putting person in fear of accusation of offence, in order to commit
extortion.—Whoever, in order to the committing of extortion, puts or attempts to
put any person in fear of an accusation, against that person or any other, of having
committed, or attempted to commit, an offence punishable with death or with
4 [imprisonment for life], or with imprisonment for a term which may extend to ten
Sec. 390 Of Offences against Property 1145

years, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine; and if the offence be puni-
shable under section 377 of this Code, may be punished with 4[imprisonment for life].
Cases •and. Materials
1. Scope.----(1) This section may be read with section 40, 384, 385 and 488 of the Penal Code..
(2) Where the accused was acquitted of the charge of an offence under Section 389 of the Code but
was convicted of an offence under th&Police Act, it was held that the conviction was liable to be set
aside since the actual, charge framed under S. 46 against the accused was the same as the charge framed
for the offence of extortion, of which he was acquitted. 1 W eir 844.
(2) Prosecution of accused persons (one head constable and two constables) under the Prevention
of Corruption Act and Ss. 347 and 389, P.C.—Contradictions in statements of prosecution
witnesses—Prosecution version unnatural—Acceptance of money in presence of crowd in broad day
light, unbelievable—Held, accused were not liable to be convicted. 1982 UP (C'ri) C 142 (411).
2. Practice.—Evidence—Prove: (1) That the accused put or attempted to put a person in fear.
(2) That the fear was of an accusation of having committed or attempted to commit an offence.
(3) That such Offece was punishable with death, imprisonment for life or imprisonment for at
least ten years. .. .
(4) That he did so in order to commit extortion. .
For.the last provision also prove:
(5) That the accusation was of an unnatural offence.
3. Procedure.—Not cognizable—Warrant—Bailable—Not compoundable—Triable by the Court
of Session, Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate
specially empowered (first paragraph); District Magistrate, Additional District Magistrate specially
empowered,. Chief Metropolitan Magistrate (second paragraph).

Of Robbery and Dacoity

Section 390
390. Robbery.—In all robbery there is either theft or extortion
When theft is 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 the theft, the offender, for that end, voluntarily causeS or
attempts to cause to any person death or hurt or wrongful restraint, or fear of instant
death, or of instant hurt, or of instant wrongful restraint.
When extortion is 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, 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
extorted. -
Explanation. -T he offender is said to be present if he is sufficiently near to put the
other person in fear of instant death, of instant hurt., or of instant wrongful restraint.
1 .146 Penal Code Sec. 391

Illust rat ions:.

• (a) A holds .Z down, and fraudulently takes Z's money and Jewels from . Z's clothes,
without Z'' consent. Here A has committed theft, and in order to the committing of thOt,
heft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high-road, shows a. pistol, and demands -Z's purse, Z, in
consequence, surrenders his purse.. Here A has extorted the purse from Z by putting him
in fear of instant hurt, and being at the time of committing the extortion in his presence.
A has therefore committed robbery,
(c)' A meets Z and Z's child on the high-wad A takes the child and threatens to fling
it down a precipice unless Z delivers his purse Z in consequence delivers his purse Here
A has extorted the purse from Z by causing Z to be in fear of instant hurt to the child who
is there present A has therefore committed robbery on Z
(d) A obtains property from Z by saying— Y our child is in the hands of my gang
and will be put to death unless you send us ten thousand 5[taka] 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. :. ..•..,
Cases and Materials
1 Scope—(l) This section may be read with sections 39,46 319, 339 Penal Code Robbery is
an aggravated form either of theft or of extortion Robbery may be distinguished from theft and
extortion , by the presence of force and Imminent fear of violence and may, therefort, be defined as
felonious taking from the person of another or in his presence against his will, by violthce or putting
him in..fear of injury (A IR 1928 Cal 498), If theft is already committed and violence is used toheip an
offender, to escape, theft is not robbery. In a charge of robbery, it must be shown that there was e not
only violence or hurt or wrongful restraint but also that it was caused for the purpose of enabling theft
to be carried out. In all robbery, there is.either theft .or.extortion. An accidental injury by a theft Will
not convert his offence into robbery. 'Restraint' implies abridgment of the liberty of a person against
his will Removal of ornaments from the body of a person after causing his death does not amount to
robbery Dishonest intention is a sine qua non of the offence of robbery.
2 For more cases relevant to this section, see under section 392 infra

Section 391
• 3, 91. Dacoity.—When five or more persons conjointly commit, or attempt to
commit a robbery, or where the whole number of persons conjointy 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 'dacoity"
Cases and Materials
I. Scope.--(I) To constitute the offence of dacoity, it is necessary that death or hurt or wrongful
restraint or fear of such instant evils should be caused by the offenders not only in order to the

5. Substituted by Act Viii of 1973, s. 3 and 2nd Sch. w.è.f. 26-3-1971 for "rupees". . • . . .
Sec. 392 Of Offences against Property " 1147

committing of theft or in committing theft, or in carrying away property obtained by theft but also "for
that end" and that five or more persons should be acting conjointly (18 CrLJ 346). The:- 'Word
"conjointly" is the most important word bearing on the liability of persons accused of an' offetceof
dacoity. While it may be true to say , that common intention is no part of the offence of dacdit, the
word "conjointly" used in sectioti 391, manifestly refers to united or concerted action of the persons
participating in the transadtion. Even an , attempted robbery by five or more persons amounts to an
offence ofdacoity and the fact that dacoit failed to remove any booty is irrelevant (A IR 1951 A ll 834).
To constitute an offence under section 391, there should be at least five persons involved in the
commission of the offence.
2. For more cases relevant to this section, see under section 395 infra.

Section 392
392. Punishment for robbery.—Whoever commits robbery shall be punished
with rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine; and, if the robbery be committed on the highway between sunset and
sunrise, the imprisonment may be extended to fourteen years.
Cases and Materials Synopsis
1. Scope of sections 390 and 392. ' 9. Benefit of doubt.
2. or
Causes or attempts to cause deal!, or hurt , 10. "Voluntarily".
wrongful , restraint or fear thereof to , any 11. Robbery by extortion.
person. 12. Murder, robbery and section 404.
3. "For that end' 13. Charge andconviclion.
4. "W rongful restraint' See also S. 339. 14. Evidence and proof.
5. "The offender' 15. Sentence.
6. "In order to the committing of the theft", etc. 16. Procedure.
7. "In committing the thefl' 17. 'Practice.
8. In carrying away stolen property. 18. Charge.
1. Scope of sections 390 and 392^ {I) High way robbery is a very heinous offence for which
deterrent sentence should be passed. In such a case the value of the stolen property should not be a
criterion whereby the amount of punishment is to be determined. Robbery is an aggravated form of
extortion. The element of fear exists in both, and there' is delivery of property by the victim. Whenever
theft is accompanied by violence or fear of instant violence or extortion is accompanied by , violence or
fear of Instant violence, the presence of the offender and the delivery of the thing extorted there is
robbery. Where the names of accused appear in FIR and stolen property is recovered from their
possession; here 'obliging statements-6f some witnesses would not cast doubt on the prosecution
evidence and the conviction may be upheld. The mere pointing out by the accused of the place where
some of the stolen properties were concealed is not sufficient to support a conviction under section
411, nor 'would it amount to taking part in dacoity or robbery (13 CrLf 127). The accused may be
convicted where they were correctly identified at identification test parade and stolen articles were
identified and recovered from their possession. However, in dacoity cases evidence adduced as to
identification of dacoits ought not to be accepted too readily but should be looked at with great
caution. WhOre a policeman on patrol duty committed robbery, it was held that the accused not merely
committed a penal offence, he brought slur on the force to which he belonged and also debased the
uniform he was wearing at the relevant time as insignia of his authority. A substantive sentence of one
1148 Penal Code . Sec. 392

year, in the above circumstances for an offence which is punishable with RI which hay extend to 14
years is so grossly inadequate as to amount to miscarriage ofjustice.
(2) Punishment for voluntarily causing hurt in committing robbery—In view of the fact that the
two appellants and some other unidentified persons illegally confined the informant shop-keeper and
others in the shop and by curtailing their liberty forcibly looted away valuable goods from their
possession but without causing hurt to any body, the appellants committed the offence punishable
under section 392 of the Penal Code not under section 394. Gohar A ll and another Vs. The State 16
BLD (HCD) 398.
(3) Robbery is an aggravated form of theft or extortion. (1784) 168 ER 263.
(4) Dacoity (S. 391) is robbery committed or attempted to be committed where the number of
persons taking part in it .,whether as principals and abettors, is more than five. 1977 KerLT 714.
(5) The opening words of the section show that where there is no theft or extortion, there cannot
be any robbery. 1978 W LN (UC)'275.
(6) Where the element of removal of movable property from the possession of another is 'wanting
there will be no theft and hence, there will be no robbery. A IR 1941 Pat 129.
(7) Section 392 aplies also to highway robbery. The sentence passed under the section may
extend to 14 years if the highway robbery is committed between sunset and sunrise. Under S. 397,
robbery is punishable with a minimum punishment of seven years The offence covered is robbery
involving use of a deadly weapon, etc. In such a case, the more appropriate section. to apply will be S.
397 which prescribes a minimum sentence of seven years and not S. 392, under which, though the
maximum sentence may be one for 14 years yet there is no minimum sentence and the court may
award, in its discretion, sentence of imprisonment for -a period of less than seven years even where the
offence has involved the use of a deadly weapon. 1978 criLl 797.
(8) Though an offence under S. 392 is exclusively triable by court of Session; where the
complainant himself had submitted to the jurisdiction of Magistrate, while securing 'conviction of
accused under S. 392 in the first complaint and neither claimed that the matter be dealt with as an
offence exclusively triable by-a Court of Session, nor such plea was raised in the revision filed by him
against-, the order of discharge of accused, the complainant having failed in first attempt to secure
conviction of accused, it -is not open to him to have a second round in the Sessions Court on the
ground that the Magistrate had no jurisdiction. 1981 UP' C'riC 116 "All). - -
- (9) Owner of account books illegally seized by an officer—Owner forcibly recovering it from
officer—there is no theft-and therefore no' robbery. .AIR 1965 All 543.
(10) Knife injuries caused by accused on person of victim—Injuries enabling accused to remove.
ear-rings and keys from person of victim---Case is edvered by S.. 392 and not by S. 394. 1984 CriL
(OC) 103 (Delt/ii).
- 2. Causes or attempts to cause death or hurt or wrongful restraint or fear. thereof to any
person.—( 1) It is essential in order to constitute a theft a robbery, that the offender should have caused.
to any person death, hurt or wrongful restraint or the fear, of instant death or instant hurt or instant
wrongful restraint. Where such elements exist the theft would be robbery, not otherwise. A !R 1955
NUC (Him Pra) 4302.
3. "For the end".—(l) The death, hurt, wrongful restraint or the fear thereof-must have been
caused for the purpose of achieving the end or object of theft, or of carrying away the, stolen property.
1979 CrjL.J 1158.
(2) An assault- not made for purpose of achieving the object of theft or carrying away' the stolen
property would not make the theft, a robbery. 1970 CriLJ 647.
Sec. 392 Of Offences against Property 1149

• (3) Where a fight did not start with any object of theft but over money due by the complainantto
the accused and at the end of the quarrel the accused found a chance to take the complainant's property
for' ensuring the payment of his money, it was held that the accused was not guilty of robbery. AIR \
, 1935 Pesh 49.
(4) The words "for that end" do not mean that the assault or hurt must be caused "in the same
circumstances" or "in the same transaction" as the theft. AIR 1941 Oudh 476.
(5) Murder on provocation—About seven hours thereafter accused committing theft—Theft had no
connection with murder and offepee fell not u/s. 392 but u/s. 380. AIR 1953 1'!imPra 105.
4. "Wrongful restraint".—( 1) "Restraint" implies abridgment of the liberty of a person against
his will. A person deprived Of his will power by sleep or otherwise cannot, while in that condition, be
subject to any restraint. AIR 1928 Lah 445..
5. "The offender".-I-41) The word "offender" in the section denotes the person who commits the
theft or extortion and does not include persons who have not committed the theft but who carry away
the stolen property. 1966 A11WR (HC) 549.
6. "In order to the committing of the theft" etc.—(1) The use of violence will not ipso facto
convert a case of theft into 'robbery unless such violence is committed for one of the ends specified in
S. 390. There must be a specific averment or allegation-to that effect. 1979 GnU .11.58 (Cal)
(2) Where both the thief and the person who helps him to escape are concerned in the act of theft
and one of them lifts the property and the other uses violence against the victim in order to help the
fellow-thief to escape, such helper also will be guilty under S. 390, AIR 1976 SC 1430;
7. "In committing the theft".—( 1) The words "in committing the theft" import the idea that the
death or injury caused is part of the act of theft. Where the accused snatched away the murkis from the
ears of the complainant causing hurt to him, it was held that the offender was guilty of robbery. AIR
1955 Raj 147.
8. In carrying away stolen property.---(I) The carrying away of the stolen property may be and
ordinarily is one of the ends or purposes or objects of the thief and if for that end he causes death etc.,
he will be guilty of robbery. 1958 BUR 238.
(2) Accused armed with deadly weapons threatening complainant's party not to interfere with their
taking away fish from tank and removing the fish are guilty, of dacoity. AIR 1980 SC 2127.
(3) Accused while carrying away stolen property exploded crackers to lighten away his pursuers.
Conviction under Section 395 held was proper. AIR 1980 SC 788.
9. Benefit of doubt.-41) Where two views can be taken of the object for which violence has been
used by the accused, it would be safer to take the .view which would be more favourable to him. AIR
1966 Pat 453.. . •.
(2) If the facts and circumstances of the case are such that they point to grave improbabilities in
the story for prosecution, acquittal of accused cannot be set aside. 1981 CriLR (SC)218.
10. "Voluntarily".—(I) In order that theft may amount to robbery, the accused must cause
death or hurt or wrongful restraint voluntarily for. one of the ends mentioned in the section. AIR 1933
Lah 407. . .
11. Robbery by extortion.—(I) In order to constitute robbery by means of extortion, there must
be immediate delivery of the property by the victim and the will to do so must be endangered by fear
which should have been caused by the exfortioner antecedent to the delivery. 1950 All LJ 711.
.(2) A barber extracting his annual remuneration from the complainant before it became due at the
end of the year by putting him in fear of instant hurt is guilty of robbery. A IR 1950 Nag 214.
1150 Penal .Code Sec. 192

12. Murder, robbery and section 404.-(1) When death is caused for the purpose of stealing the
jewels of the deceased, it is robbery, defined .in this section and made punishable under Section 391
A IR 1927Mad 243.
(2) The word 'person' will not include a dead body and hence the act of the accused in stealing
property from the dead body will amount only to an offence under S. 404 (Dishonest misappropriation
of property possessed by deceased person at the time of his death). A IR 1958 MadhPra 192.
(3) The word 'person' cannot be so narrowly construed as to exclude the dead body of a human
being who was killed in the course of the same transaction .in which . theft was committed. AIR 1963
MadhPra 106 ..:
13. Charge . and conviction.—(l) Charges under this section and S. 397 cannot be joined unless
they form part of the same transaction within the meaning of S. 220. Cr.P.C. AIR 1933 Lah 512.
(2) A person charged with the offence of dacoity (S. 395) can be. convicted of an offence under S.
457 or this section where on the ev.idence ' before the Court, the accused's act may fall under S. 457, S.
395 or S. 392, and it is not necessary to frame a fresh charge. A IR 1927 Oudh 196
(3) An accused charged with the offence of dacoity can be convicted of the lesser offence of robbery
without there being aspeciflc charge therefor. AIR 1956 SC 441. .
(4) The offence under S. 369 is not a minor offence included in the offence under this section and
hence, a person charged under this section cannot be convicted under S. 369. AIR 1930 Lah 544.
(5) A person convicted for robbery cannot also be convicted for an offence under S. 411
(dishonestly receiving stolen property). A IR 1950 East Pun] 66 .
(6) A man causing death, while carrying away stolen property, can be convicted both of murder
and robbery. A IR 1955NUC(A ll) . 3573. .: . .
1.4. Evidence and proof.--(1) The unexplained possession of stolen property soon after a
suspected robbery and murder is not only presumptive evidence of robbery against the accused but also
of murder. AIR 1956 SC 400. . . .... .. . .
(2) It is not open to a Court to base a conviction under this section on insufficient evidence on the
mere fact that the accused in his statement admitted having taken' property from' the complainant for
some other purpose, which was not believed by the Court. AIR 1929 Sind 255. .. ..
(3) The mere presence of the accused among the raiders wh,o visited the village , at night is not
sufficient to hold that they committed robbery or dacoity. It must be shown that the accused conjointly
committed robbery or aided its commission. A IR 1962 Manipur 7.... ..• . .
(4) As to the appreciation of circumstantial evidence and the value of identification evidence.. AIR
1983 SC 367. . . . . ... . . .
15. Sentence.—( 1) A sentence of imprisonment is essential for an offence under this section. AIR
1922 All 245. . . .. . . ... . .
(2) A. sentence of 7 years' R. I. is not too severe, in thO case of a previous convict charged with an
offence under this section. AIR 1 .934 Oudh 122. . .. . .
(3) In dealing with cases of highway robbery, the value of the stolen property is immaterial in
deciding the quantum of sentence. AIR 1942 Oudh 221.
(4) Separate sentences for murder and robbery are legal. AIR 1936 Nag 200. ,. .... -,
(5) As to further illustrations on point of sentence. 1984 CriLJ ('NOc,) . 103 (Delhi); (1983) 1'
Crimes 547; 1982 UP (Gri,) 63 (A 1l);'1980 LuckLJ25 (411).'H
16. Procedure.—(1) An offence under this section cannot be summarily tried under S. 260,
Criminal P. C. (1907) 5 CriLJ21. . . . . . ..
Sec. 393 Of Offences against Property 1151

(2) Cognizable—Warrant—Not bailable—Not compoundable—Triable by the Court of Session,

Chief Metropolitan Magistrate, District Magistrate, Additional District Magistrate specially
empowered (first paragraph), Court of Session (second paragraph).. ..
17. Practice.—Evidence—Prove: (1) That the accused committed theft.
(2) That he caused or attempted to cause to some person (a) death, hurt, or wrongful restraint: or
(b) fear of instant death, or of instant hurt, Or of instant wrongful restraint.
(3) That he did as above (a) in committing such theft or (b) in order to commit such theft or (c) in
carrying away or attempting to carry away, the property obtained by such, theft.
(4) That he acted voluntarily.
Or—Prove (1) That the accused committed extortion.
(2) That he was, at the time of committing it, in the presence of the person so put in fear.
(3) That he committed it by putting that person or some other person in fear of instant death or of
instant hurt, or of instant wrongful restraint. '. ..
(4) That he thereby induced the person so put in fear to deliver up then and there the thing.
extorted. . ... . . . . /
18. Charge.—The charge should run as follows: .
I (name and office of the Magistrate/Session Judge etc.) hereby charge you (name of the accused)
as follows:
That you, on or about the—day of—, at—, robbed (state the name), and thereby committed an
offence 'punishable under section 392 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge. .

Section 393 . .'.

393. Attempt to commit robbery.—Whoever attempts to commit robbery shall••
be punished with rigorous imprisonment for a term which may extend to seven years,
and shall also be liable to fine.
Cases, and Materials
1 Scope.---( 1) This is a specific section for punishing attempt to commit robbery. Where no overt
act is done towards the commission of robbery, merely standing in a crowd is not evidence of
committing or attempting to commit robbery or even aiding in commission of robbery (47 crLJ 249).
(2) Theft or extortion is an essential ingredient of the offence of robbery and each requires
dishonest intention on the part of the accused as an essential, factor to constitute the offence. Therefore,
an intention to rob is an essential ingredient of the offence of attempt to commit robbery made
punishable under this section. (1912) 13 CriLi 864.
(3) A person charged under S. 398 could' be convicted under this section. (1911) 12 CriLJ 468.
(4) The accused who was unarmed accompanied other armed person, but was at a distance from the
place where the latter committed robbery. it was held that 'the accused could be convicted of an offence
under this section read with S. 114. AIR 1926 Rang 207.
(5) Accused, attempted to commit a robbery in a running train and jumped out from the train
getting injured, held were rightly convicted and sentenced to 3 years' R 1 1979 A ll CriR 284
2. Distinction between extortion, theft, robbery and dacoity.—Extortion occupies a middle
place between theft and robbery or dacoity. Dacoity is robbery by five, Or more persons conjointly
1152 Penal Code Sec. 394

committed or attempted to be committed. Robbery, on the other hand, is a special and aggravated form
of either theft or 'extortion. Theft is robbery if in the course of it the offender voluntarily causes or
attempted to cause to any person death, hurt, or wrongful restraint, or fear of instant death, hurt or
wrongful restraint. Thus, if hurt is actually caused when the offence is committed the offence is
punishable as robbery. Extortion is robbery if the former is accompanied by violence. Extortion differs
from theft inasmuch as in the former t here is the wrongful obtaining of consent by putting the person
in possession of property in fear of injury to him or to any other. The offence of extortion is carried
out by over-powering the will of the owner. In theft there is never the intention of the offender to
obtain the consent of the owner of the property. Moreover in theft the property involved is moveable
property, but in case of ex tortion it may be any property.
3. Practice.—Evjdence_prove: (1) That the accuse6 attempted to commit robbery.
(2) That in such attempt he did some ad towards the commission of that offence.
(3) That he attempted to commit theft or extortion for obtaining property or put some person in
fear to deliver up the thing extorted.
4. Procedure .—
Cognizable—Warrant—Not bailable—Not compoundable—Triable by
Metropolitan Magistrate or Magistrate of the first class.
5. Charge.—The charge should run as follows:'
I(name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on . or about the—, day of—, at—, did an act, to wit—, and which amounted to an
attempt to rob X, and thereby committed an offence punishable under section 393 of the Penal Code
and within my cognizance.
And I hereby direct that you be tried by this Court or the said charge.

Section 394
394. Voluntarily causing hurt in committing robbery.—If any person, in
committing or in attempting to commit robbery; voluntarily causes hurt, such person,
and any other person jointly concerned- in committing or attempting to commit such
robbery, shall be punished with 6 [imprisonmenti for life, or with rigorous imprison-
ment for a term which may extend to ten years, and shall also be liable to fine.
Cases and Materials : Synopsis
1. Scope of section. 5. Procedure.
2. charge and conviction. 6. ,Practice.
3. Evidence and proof 7. Charge.
4. Sentence.
I. Scope of section.-.--( 1) This section indicates that violence or hurt must be caused by a person
while he is committing or attempting to. commit a robbery.. The other persons who join him in
committing or attempting to commit such robbery are also held guilty of offence. Where hurt is caused
independently of theft and not with object of committing theft, but subsequently theft is committed
because the accused finds a good opportunity to do so, the offences will be two different offences—of
causing hurt and of committing theft the accused will not be liable for robbery under section 394.
Similarly where the accused abandoned the intention of committing robbery and took to their heels on

6. Substittued by Ord. No. XLI of 1985, for "transportation".

Sec. 394 Of Offences against Property 1153

alarm being raised. Subsequently there was firing by the accused to prevent pursuit which resul.ted
injuries to prosecution witnesses. It was held that violence was not caused for one of the ends
contemplated by section 390. Conviction for the offence under section 394, could not be sustained. It
was altered to one under section 326 (1970 PCrLJ 155). As an offence punishable under this .section
392, an accused person who is convicted under both these sections can be legally punished only under
this section and in such a case it would be sufficient to convict him under this section alone. Separate
convictions are according to the illustration (m) to section 235 of the Code of Criminal Procedure is
justifiable. Where hurt is caused in the commission of a theft, the causing of hurt changes the theft
into robbery and the charge should be held under this section for causing hurt in the commission of
robbery. This section and not section 397 Penal Code will apply to the case of a robber who does not
himself cause grievous hurt or use any deadly weapon.
(2) Prosecution of the accused-appellants initiated by the P.W. I.—Complainant by a complaint
before a Magistrate—Complaint petition filed after delay of over three days—P. Ws. 2, 3 and 4
• corroborated the complainant's evidence claiming to have appeared on the scene and to have recognised
the accused-person—P.W. 2 was the complaint's full brother and P.W. 4 is his cousin both residing
in the complainant's house—None of them is found to be nattiral witness—All these witnesses
accepted the defence suggestion about the place of occurrence—About 1 5 to 20 persons who were
disinterested and independent appeared on the scene but only 3 witnesses, two of them being relations
were produced by the complainant—Defence examined four witnesses to substantiate their ease that the
complainant falsely instituted the case out of enmity with the accused persons—Trial Court on
consideration of four witnesses for the prosecution and four witnesses for the defence held the appellants
guilty of robbery and convicted and sentenced—The charge of robbery, shall have to be established by
the evidence of prosecution witnesses—In view of the nature of evidence, particular when all the three
witnesses found io be chance witnesses in respect of a matter where independent and disinterested
witnesses could have been examined and considering the inordinate delay in filing the complaint, it
could not be held that the charge was established beyond reasonable doubt—The appellants found
entitled to benefit of doubt—They were given benefit of doubt and are found not guilty by the
Appellate Division—The impugned order of conviction and sentence was set aside and the Appellants
ere acquitted by the A ppellate Division. A zizur Rahman and anr. Vs. The State. 5 BSCD 45.
(3) The prosecution has failed to prove the main ingredient of section 394 of the Penal Code
regarding hurt sustained by the victim during occurrence at the hands of the accused persons as neither
any doctor has examined nor any paper showing admission into hospital was filed before the Court and
the non-production of recovered snatched-away money has made the entire prosecution case unworthy
to believe and that the prosecution has also tried to embellish its case and the appellants are found not
guilty of the offence charged and acquitted theefrom. Noor Islam and another Vs State (Criminal) . 6
BLC 178.
(4) Non-examination of investigating officer does not always prejudice the accused—Admittedly
the appellants remained in abscondeiice during the whole trial and in such a situation the non-
examination of the investigating officer cannot be said to have caused any prejudice to the appellants.
Oohar A li and another Vs. The State 16 BLD (HCD) 398.
(5) Nature of evidence. Chance witnesses. independent and disinterested witnesses, not examined.
Inordinate delay in filling the complaint. Charge does not seem to have been established beyond
doubt. Benefit of doubt given. Azizur Rahman Vs. The State 4 13CR 370 AD.
(6) Accused brought out robbed goods from a place known only to him is a strong circumstance to
establish that he was himself involved in the commission of the offence. Salauddin Vs The State 32
DLR 227. .
1154 . Penal Code Sec. 394
(7) Mistaken identification of a wrong person as accused in the TI parade held after 5 (five)
months. Delay in holding TI parade . after 5 months reduced the value of identification—In view of the
mistake admitted by PW 3 the solitary witness, in identifying a wrong person in the TI parade, it
would be unsafe to convict the appellants, namely Kazi Enayet Hossain and Abu] Kashem on such
shaky foundation. Conviction of other appellant Shahadat Hossain upheld. Shahadat Hossain Vs. The
State 5 BCR 141.
(8) The Supreme Court on a consideration of the entire evidence found that the "whole prosecution
case was streaked with falsehood" and that the case against the appellant was a mere fabrication and on
that view acquitted the appellant. Mohammad Hanf Vs. The State. 19 DLR 453 SC.
(9) The definition of robbery in S. 390 shows that in order that theft may al'nount to "robbery" the
offender need not actually cause hurt for the purpose of committing the theft or carrying away the
property got by the theft; it is sufficient if the offender attempts to cause hurt. (1900-1902)1 Low Bur
Ru! 232.
(10) Where after beating the complainant and his concubine which resulted in causing
' injuries to
them, the accused entered the complainant's house and removed boxes containing cash, ornaments,
etc., it was held that the be
ating was primarily for the purpose of theft and hence the accused was
guilty under this section. A IR 1955 Cal 527.
(11) Where the accused snatched ornaments from. the complainant's neck and while doing so
caused injuries to her, it was held that his act amounted to an offence punishable under this section.
A IR 1955NUC('A jmer)4757
- (12) Where the accused, a police constable, slapped a boatman and made him hand over certain
articles found on the drowned body of a person, and kept the articles himself and denied falsely that he
had recovered them from the boatman, it was held that the police constable's guilt under this section
was established, AIR 1978 SC 448.
2. Charge and convictioi ._(l)
When there are a number of accused persons, the charge must
clearly state the individual acts against each accused and it must also be made clear whether they are
charged for an offence under this section read with S. 34. 1956 MadhBLJ 651.
(2) The offence under this section is not necessarily an ingredient of the offence of dacoity as there
canbe a dacoity without anybody being actually hurt. Hence, an offence under this section cannot be
said to be a minor offence so far as dacoity is concerned. AIR 1928 Mad 207.
(3) Where during trial under S. 396 twelve persons out of sixteen accused were acquitted and there
was no finding that the remaining four conimitteddacoity with others numbering niore than sixteen,
conviction of the four accused under S. 396 was converted to one under S. 394. (1969) 3 SCC 727.
3. Evidence and pm-oof.--..(1)
It is not sufficient for the prosecution merely to prove that there was
a theft and a causing of hurt to the victim. It must also establish that the accused was the offender in
committing robbery. (1892-1896) 1 UppBur Ru! 245.
(2) The mere circumstance of the recovery of stolen property at the instance of the accused is not
sufficient to establish his guilt under this section. AIR 1959 Cal 280.
(3) Recevery of ornaments of deceased at the instance of accused—Deceased last seen wearing
those ornam
ents—Absence of any evidence to connect him with murder of deceased or having robbed
her of her ornam
ents—Accused, held liable to be convicted under Section 411 and not under Section
302 or Section 394. AIR 1980 SC 1753.
(4)
Where the nature of the stolen articles, the manner of its acquisition by the owner, the nature of
the evidence of its identification, the manner in which it was dealt with by the accused, the place and
Sec. 394 Of Offences against Property 1155
circumstances of its recovery, inability of the accused to explain its possession are circumstances that
help raising a presumption the article was involved in an offence under S. 394 and also of murder that
took place in the transaction. A IR 1978 SC 522.
(5) Where the case against accused rested not only on oral evidence of eye-witnesses but also on
the fact that soon after the crime' he was found in possession of a revolver from which was fired the
bullet which was found in the body of the deceased, the Supreme Court refused to interfere with the
concurrent findings of the lower courts. 1970 UJ (SC) 714,
(6) Where the accused who were alleged to have committed offence under S. 394 P.C. belonged to
the neighbouring village at a distance of less than a mile from police quarter, the scene of occurrence,
and the witnesses (police officials) who came to identify the accused, had seen the accused from behind
while escaping and the officials and the officer (victim) though knew the accused but did not name
them in the F.I.R. and identification of two of the accused took place after agap of four days after their
arrest without any explanation for the delay, the accused could not be convicted for offence under S.
394 P.C. A IR 1983 SC 289.
4. Sentence.—(l) The sentence for an offence under this section should not be out of proportion
to the gravity of the offence. A IR 1955 Cal 527,
(2) For a daring robbery in day time in the female compartment of a running train it was observed
that the minimum (seven years) provided under S. 397 may be passed if the conviction were to be
under this section. A IR 1928 Lah 169.
(3) An accused under this section is not entitled to the benefit of the Probation of Offenders Act,
as an offence under this section is punishable with imprisonment for life. A IR 1955 Orissa 106.
(4) Section 360, Criminal P.C., is also not applicable. A IR 1955 NUC (A jnier) 4757.
(5) Consecutive sentences in respect of coiivictions under S. 397 and this section are illegal, if
they are based on the same set of facts. A IR 1926 Lah 47.
5. Procedure.—(I) A Magistrate trying the accused for an offence under this section can pass an
order for compensation under S.250 of the Criminal P.C. 1970 BL.JR 1160.
(2) An offence under S. 397 is a scheduled offence under the West Bengal Tribunals of Criminal
Jurisdiction Act (Act 14 of 1952). A person accused of an offence under S. 397 can at the same trial,
by reason of S. 221. Criminal P.C., be tried for an offence under this section. A IR 1955 Cal 177.
(3) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session.
6. Practice.—Evidence—Prove: (1).That the accused or someone jointly concerned with him,
committed or attempted to commit robbery.
(2) That the accused, or such other person, voluntarily caused hurt in doing so.
7. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you on or about the—day of, at—, committd (or attempted to commit) (or were jointly with
X concerned in committing) (or attempting to commit) robbery of the property of A, and that as such
you (X) voluntarily caused hurt to A(or), and that you thereby committed an offence punishable under
section 394 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
156 Penal Code Sec. 395

Section 395

395. Punishment for dacoity.—Whoever commits dacoity shall be punished

with 6 [imprisOnrnentj for life, or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.
Cases and Materials : Synopsis
1, Scope of the sections 391 and 395. 9. Unlawful assembly and dacolty,
2. "Five or more persons." 10. Charge and conviction,
3. "Conjointly commit or attempt to commit," 11. Evidence and proof,
4. "Presjnt and aiding." 12. Duty of court.
5. There must be robbery or attempt to commit 13. Sentence.
robbery. 14. Procedure.
6. Dishonest intention necessary. 15. Form of charge.
7. Motive. 16. Practice.
8. Abetment of dacoily
L. Scope of sections 391 and 395.—(1) Dacoity is most serious crime which it is difficult to
detect in the sense of bringing home the offence to the culprits and it is an offence which gives rise to
a great deal of misery. There is no distinction between a dacoity and an attempt to commit one and
both are treated alike. The definition of dacoity includes attempt commit dacoity. Where there was
evidence that five or more persons were connected with the commission of dacoity; all such persons
would be guilty of the offence under this section. In ordinary circumstances a sentence of rigorous
imprisonment for a period of five years is the least sentence which should be passed. The crime of
robbery in all cases must be considered as serious crime and although this section does not provide
for a graver punishment in the case of dacoity committed on the highway between sunset and sunrise,
as in the case of.robbery, nonetheless a dacoity committed on the highway between sunset and sunrise
in an aggravation of the offence and a sentence of seven years is not excessive (43 CrLJ 615). Where
the dacoity is a iiery serious one the maximum sentence under this section, or something approaching
the maximum sentence, should be passed upon the persons concerned (43 CrLf 97). A sentence of fine
only is illegal (47 CrLf 780). Where no stolen property was found in possession Of the accused
charged under section 395 and their names were not entered in FIR and no identification proceedings
were conducted by any Magistrate it was held that their conviction solely based upon the testimony of
the complainant was not sustainable (29 CrLf 989). FIR was lodged after two days and delay remain
unexplained it was held that conviction would not be safe in the fact of absence of any incriminating
circumstances. Conversion of robbery into dacoity is illegal where there is no proof that five or more
persons have taken part in committing or attempting to commit the crime (II CrIJ 248). A person not
taking part in dacoity but bringing food for the gang prior lo dacoity is guilty of abetment (35 CrLf
863). Where it is established that the common object of the rioters was both to cause hurt to members
of another community whom they might happen to find and to rob the shops and house of that
community, any person who is proved to have taken part in the disturbance must be found of dacoity
(28 CrLf 1110). There is no statutory prohibition against conviction under both sections 395 and 412
Penal Code. But on principle, if a criminal act is only a single act coming within the definition of two
distinct offences, there should not be a conviction.for both the offences. Thus where the accused is
Sec. 395• Of Offences against Property 1157
convicted under section 395 for committing a dacoity in which the property found in his possession
came to him, he cannot be held guilty both under sections 395 and 412. (AIR 1956A11 336). Although
an approver is a competent witness, being an infamous witnesses, his evidence has to be corroborated
on material particulars before acceptance (1958 CrL.J 343). Identification parades are held to find out
whether the suspect is the real offender or not. Identification proceedings should be held as early as
possible. Identification at night during a dcoity, when the people are terrorised, is generally of very
little value (28 CrLf 874). Changes of error in identification become greatly increased when the
identification is based upon a momentary glimpse in the confusion and excitment of the moment at
night, though it was a.moonlight night (33 CrLf 381). It is an important fact whether all the persons
identified were previously known to the witnesses, or were perfect strangers to them, the time of the
occurrence, the state of light and the opportunities which the witnesses has of identifying are martial
circumstances to be deposed to in each and every case (31 CrLf 206). Statements made at such
parades are not substantive evidence but they may be used to contradict or corroborate statements made•
on oath in courts if a witness is able to pick up the accused in an identification parade his evidence
will have added weight but if he fails, his evidence is weakened and that is the purpose of
identification parade. Identification parades are of weak type of proof and it depends entirely upon the
capacity of awitness to register a true impression in his mind and then to keep it in his memory. If
due and adequate precautions are taken to ensure a fair and impartial identification it may be sufficient.
Where the suspects are known to the eye witnesses, the holding of an identification parade is afarce
(A IR 1961 A ll 153). If an accused has to be put up for identification he should- not be allowed to be
seen by the identifying witnesses before identification. If there is evidence that the accused had been
seen before identification or that the police was creating opportunities for.witnesses to observe the
accused or that the accused were taken in and out of jail and proper precautions were not taken, the
object of identification will be defeated. Similarly showing photographs of the accused by the
investigating staff to the witnesses where identification is a material issue delay may seriously
prejudice (A IR 1954 SC 4). Where the accused where convicted on the sole evidence of their being.
found in possession of stolen goods which were later identified to belong to traders whose goods had
been looted in a dacoity, it was held ,that the presumption that they were rightly drawn. In many
dacoity cases identification or recovery of articles is the only and 4t all events the most important
material. But if the article identified is not distinctive in appearance, being of a class of common and
unidentifiable articles, it would be very unsafe to convict on such identification. For a conviction
under this section pointing out a place where stolen property was found, is not sufficient (15 CrLJ
404). In most cases of dacoity the dacoits are not arrested on the spot. The evidence on the basis of
which their conviction is sought consists only of identification and recovery of stolen property. The
mere fact that a person accused of decoits made incriminating statements about himself before, several
prosecution witnesses and even produced some of the stolen articles is not convincing or conclusive
evidence of his guilt (14 CrLJ 601). Where a confession is not corroborated by any other evidence and
it is subsequently retracted, it would be unsafe to convict the accused on the basis of.the confession
(A IR 1945 Bombay 484). But if the retracted confession is corroborated by the details given in it and
by the production-of stolen property by the accused, it may be sufficient for conviction of the accused
under the section.
(2) Dacoity is perhaps the only offence which the Legislature has made punishable at four
stages:
1158 Penal Code Sec. 395

(i) Assembling for the purpose of committing dacoity. Each of the persons who so assembles is
guilty under S. 402.
(ii) Making preparation for committing dacoity. Any one who makes preparation is punishable
under S. 399.
(iii) Attempt by five or more persons (including persons who aid such attempt) to commit
dacoity.
(iv) Actual commission of robbery by five or more persons (including those who aid such
commission). A IR 1960 Pat 582.
(3) The essential elelments of the offence of dacoity as defined in this section are:
(i) Five or more perosns must act conjointly:
(ii) Such act must be robbery or attempt to commit robbery.
(iii) The five persons must consist of those who themselves commit or attempt to commit robbery
or of persons who commit or attempt to commit the robbery and those who are present and
aid them in such commission or attempt. AIR 1957 SC 320.
(4) The section contemplates actual participation by evry one of the five or more persons in the
commission of the robbery whether as aiders or as major actors. AIR 1973 SC 760.
(5) Where the victim was abducted and wrongfully confined by five persons who were armed with
deadly weapons and they threatended to kill him unless he wrote letters to his father for payment of
ransom the accused would be guilty of extortion amounting to dacoity as the letters written by victim
constitutes property. AIR 1982 NOC 151.
(6) A dispute purely of a civil nature is beyond the purview of this section and it would be abuse
of the process of the court of criminal proceedings being started in regard to disputes of a purely civil
nature. AIR 1979 SC 850.
(7) Dacoity case—Defence plea that the accused Q contested GRAM SARKER Election and the
implication in dacoity was the consequence of village political rivalry was not at all put to the
prosecution witness in cross-examination—P. Ws. recognized the accused Q with a gun in his hand
and he did not cover his face—Trial court believed the prosecution case—High Court Division
considered that there was no SUGGESTION that the witnesses were tortured—Conviction and sentence
rightly recovered—No interference by the Appellate Division. A bdul Quddus and anr. Vs. The State,
BCR 1987 AD 142.
(8) Reduction of sentence by the High Court Division—Reduction, of the sentence from 7 years to
5 years u/s. 397 read with sec. 395 of the Penal Code—This sentence is illegal in that the minimum
sentence u/S. 397 is 7 years' imprisonment—Sec. 397 does not punish the offence of dacoity but it
simply provides a minimum punishment of 7 years for dacoity if the offender has committed it with a
deadly weapon or has inflicted injuries to any person while committing this offence—Since dacoity is
punishable u/s. 395 High Court Division altered the conviction from Sec. 397 to S. 395. Emran Au
and Firoj A li Vs. The State, 5 BSCD 45.
(9) Offence of Dacoity—No evidence other than the FIR and the confessional statement which
were not, properly recorded—FIR proved in the case did not establish per se that there was an
occurrence of decoity as alleged—When there was no other evidence of decoity, there was no use to
refer to the alleged confession of the accused to prove their participation in the occurrence which was
not proved at all—.....confession itself there was a 'reference to the occurrence of decoity—It may be
Sec. 395 . Of Offences against Property 1159
said quite ingeniously that the confession itself proves the occurrence provided it is accepted. Babul @
A bdul Majed Khan & anr. Vs. The State, 42 DLR (A D) 186
(10) Forming of a charge u/s. 395 against less than 5 persons without in addition saying that five
or more were participants in the crime is legally a valid charge if statements and evidence on record
disclose that the number of participants was five or more—Even in case of a defective charge trial not
vitiated unless there was failure of justice. Mere physical presence of several others in the company of
accused, where circumstances favouring their innocence exist. Hachi Meah Vs. State (1965) 17 DLR 692.
(11) Dacoity—Charge of, not tenable without a minimum of five persons. As an offence under
section 395, requires a minimum of five persons there, obviously a charge which merely recites that
three persons took part in the occurrnce, cannot in law be a valid charge under section 395. Akkei Ali
Vs. Crown (1949) 1 DLR 175.
(12) After acquittal on the charge of theft no conviction for dacoity valid. When after a full trial, a
Magistrate acquits the accused of the offence of theft under section 379, he cannot be tried again for
dacoity on the facts without setting aside the acquittal in accordance with the provisions appropriate to
the purpose. Masir All Vs. Abdul Mamith (1956) 8 DLR,634.
(13) Conviction under . Sec. 395 P.C.—Bail by the High Court on appeal cannot be granted as of
right but is discretibna6y with it—Where bail not granted, Supreme Court refuses to interfere. Md.
Ismail Vs. the State, (1969) 21 DLR (SC) 161.
(14) The expression "the offender uses any deadly weapon" interpreted. The meaning of the word
"use" must receive a comprehensive interpretation and would include the carrying of any deadly
weapon in the course of a dacoity with a view to overawe persons intending to resist the commission
of the dacoity. Hoshir A li Vs. The State, (1969) 21 DLR 575.
(15) Petitioners convicted and sentenced under sections 342 and 395 P.C. separately by the trial
Court. Sentence imposed u/s. 342 being found illegal on .appeal, that is no ground to hold that
sentence imposed u/s. 395 will be affected. Md. Ismail Vs. The State, (1969) 21 DLR (SC) 161.
(16) In a charge under section 395 punishment for dacoity and of beating can be imposed. Where
the facts and circumstances disclose two intentions, namely, "giving the complainant party a good
beating' and "looting or dishonest removal of property", there is no reason why section 395 of the
Penal Code will not be attracted in a proper case. The point in each case shall have to be decided by
the facts of the individual case if the "intention of dishonest taking by force" is found consistently
running with the "intention of giving a good beating to the complainant party" in a case, the accused
can equally be convicted for any of the offences of theft, robbery and dacoity whichever is attracted, if
the facts so justify. A zimuddin Khan Vs. Sabu A ll, (1968) 20 DLR 1217.
(17) Conviction under section 395 of the Code cannot be sustainable for following reasons:
(a) No clear evidence that there were 5 or more persons.
(b) Delay in lodging FIR.
(c) Evidence of the house owner patently suffers form serious infirmities.
(d) P. Ws. could not identify the accused though they claimed to have recognised them.
(e) Unchallenged defence that accused persons were men of good character. Imam Ali Vs. State,
(1973) 25 DLR 407.
(18) Non-examination of the investigation officer who apprehended the dacoits with ornaments
casts serious doubt on the prosecution story in view of the evidence on record and attending
circumstances. A bdul Gafur alias Batta Miah Vs. The State, (1988) 40 DLR 474.
1160 . Penal Code Sec. 395

(19) The accused were charged and convicted under section 395 as well as under section 397, P.C.
and awarded a sentence of imprisonment under Section 397, P.C. alone; no separate sentence was,
however, passed under section 395 P.C. Held: section 397 P.C. being complementary to section 395
P.C. a charge under section 395 read with section 397, P.C. instead of two distinct charges should
have been framed. Hoshiar A lt Vs. The State, (1969) 21 DLR 575.
(20) Lumping together of several distinct charges in one trial is not permissible. Joint trial of
separate and distinct offences not in course of same transaction is not permissible. Lal Mici Vs. State
(1988) 40 DLR 377.
(21) Joint trial of separate and distinct offences not in course of same transaction is not
permissible. Lal Mia Vs. State, (1988) 40 DLR 377.
(22) An offence under section 448 is not a minor offence in relation to offences under sections 395
and 412. An offence under section 448 of P.C. is not a minor offence in relation to the offence of
dacoity under section 395 or receiving looted property in a dacoity under section 412 of the Penal
Code and the conviction for former offence without the accused being charged with it is. illegal and
void. Entering into another's house is not necessary element of the offence of dacoity under sections
395 and 412 of the Penal Code, and the elements of those offences do not include the elements of an
offence under section 448 of the Penal. Code. Sultan Ahmed Vs. State (1960) 12 DLR (SC) 53.
(23) For the purpose of conviction under section 395 there is sufficient evidence against the
appellants as they were variously identified as more than I PW. Ratan Khan Vs. State, 40 DLR 186,
(24) Non-examination of the investigation officer who apprehended the dacoits with ornaments
casts serious doubt on the prosecution. story in view of the evidence on record and attending
circumstances. A bdul Gafur alias Batta Miah Vs. State, 40 DLR 474.
(25) Charge under section 395 PC tut conviction under section 397 PC. The accused appellant
having been not placed on trial under section 397 PC his convi .tion under section 397 not sustainable
in law. A bu Taleb Vs. State 41 DLR 239.
(26) Accused Ali Howlader's conviction under section 395/397 Penal Code cannot be sustained in
law as the officer who conducted TI Parade was not examined. Amir Hossain Vs. State 41 DLR 32.
(27So far as accused Ali Howlader is concerned the learned Sessions Judge has relied upon the
evidence of the identifying witnesses to convict him; and since for non examination of the offence who
conducted the TI parade the evidence of the identifying witnesses in the Test Identification parade
cannot be relied upon his conviction under sections 395/397 of the Penal Code cannot also be
sustained in law. A mir Hossain Vs. Stale 41 DLR 32.
(28) The Special Tribunal constituted under the provisions of the Special Powers Act (XIV of
1974) has no jurisdiction to take cognizance of the non-scheduled offences under kctions 395 and 397
Penal Code as they were omitted from the schedule of the SP Act, 1974 by amending Ordinance X of
1977. Khalilur Rahman Vs. State 41 DLR 385.
(29) Conviction of the appellants on the basis of the confessional statement of a co-accused
without any corroborative evidence is not maintainable in law. Hakim A lt and others Vs. The Stale ii
BLD ([lCD) 371.
(30) Dacoity is usually committed at dead hours of the night and in that view of the matter the
means of recognition is of vital importance. The Court is to scrutinise the evidence of witnesses with
great care and caution in respect of recognition of the accused persons. Where the informant's
Sec. 395 . Of Offences against Property 1161
testimony remains uncorroborated and the identity of the accused is not established beyond reasonable
doubts, it is unsafe to convict the accused persons. Kuti alias Be/al and others, V -s. The State, 15
'4
BLD (HcD) 9.
(31)In a case of dacoity committed in the darkness of night the questionof recognition is of vita
importance. When the only . eye witnesses to the occurrence does not state in his evidence about the
means of recognition of the alleged dacoits, the order of conviction cannot be sustained. 15 BLD
(HCD) 121. .
(32) charge of dacoity—Absconsjon of accused—no ground for conviction. When the prosecution
case has. departure from the FIR story on material points and the evidences are full of contradictions
regarding recognition of the daciots and the manner of occurrence, the disinterested C.S. witnesses are
not examined and there is enmity between the parties, the prosecution case becomes doubtful in which
the conviction and sentence of the accused cannot be sustainable in the eye of law. Moreover
absconsion of the accused by itself without supporting evidence cannot be the basis of conviction.
Pear A ll Khan alias Pear A ll and another Vs. The State-4., MLR (1999) ('HG) 258.
(33) Identification of suspects in T.I. Parade—Belated T.I. Parade—Evidentiary value of
Preconditions of holding T.I.P.—As human memory fades with the lapse of time, unordinary delay in
holding T.I. parade reduces its evidentiary Que.. When the identifying witness had the chance of
seeing the suspects in the court lock-up before the T.I. parade, the identification made in such T.I.P.
cannot alone form the basis of conviction T.I. parade in order to be reliable must be held immediately
after occurrence or the arrest of the suspects. A bdul Hakim (Mirza) and others Vs. The State-5; MLR
(2000) (AD) 27.
(34) Conviction to bebased on legal. evidence—When prosecution fails to bring home the charge
under sections 395 and 397 of the Pal Code by any cogent evidence as to the identity and
participation of the accused in the commission of the offence, no conviction can be passed on basis of
surmise or any other hypothesis. Bellal alias Be//al and 2 others Vs. The State 7 MLR (HC) 27.
(35) Offence of dacoity-_-When enmit3r between the parties from before the occurrence exists,
corroboration of partisan witness by independent witness isnecessary—Although there is no rule of
law requiring corroboration by independent witness, the rule of prudence demands corroboration of
partisan witness by independent witness particularly when enmity between the parties exists from
before the occurrence. Mahmudul.Huq and others Vs. The Sate 7 MLR (HG) 105.
(36) The appellant was charged under section 412 of the Penal Code but he was convicted under
sections 395/397 of the Penal Code under misconception of law which cannot be sustained in law.
A bul Hashem Molla and 5 ors. Vs. State (Criminal) I BLC 211.
(37) All the T.I. parades were held after about one year from the date of occurrence and there was a
chance for PW. 1 to see the accused persons in court lockup before the identification in the TI parade
for which , no reliance can be placed on such TI parade and hence the Conviction and sentence under
section 395 of the Penal Code is not sustainable. Mirza A bdul Hakim and others Vs. State (Criminal)
5BLC(A D) 21.
(38) The defence that accused Quddus contested the Gram Sarkar election and the implication in
dacoity is the consequence of village political rivalry was not at all put to the prosecution witness in
cross-examination. The trial considered the evidence and correctly recorded the conviction. Appeal
dismissed. 7 BCR 142. .
1162 Penal Code . Sec. 395..
(39) Statements of some accused persons to have committed dacoity at any one. of places or any
wh9re else mentioned by the witnesses do not amount to confession. The learned Additional Session
Judge has no knowledge about confession. Establishment of large number of Courts overnight named
by Young and immature officer, Advocates and staff without sufficient knowledge and experience has
resulted in glaring miscarriage of justice as in this case causing untold miseries, harassment and
sufferings. 7BCR47.
(40) Judicial confession though subsequently retracted are found voluntary and true confession in
this case guilt der section 395 of the Penal Code. Merely on the basis of confession of two accused
appellants the other accused appellants cannot be convicted. 36 DLR 275;
(41) The respondents filed petition of complaint ag ainst the appellaits to'the SDO who took
cognizance of the matter and issued warrant of arrest against the appellants on charges of dacoity,
criminal trespass and rioting. Thus the litigant parties have succeeded in crediting rivalry between two
sets of judicial authorities when the learned Munsif, Sherpur issued notices upon the SDQ. The order
of a court, whether superior or subordinate, must elicit obedience of every person, be he an individual
citizen or any authority set up by the Government, Criminal case is quashed. 5 BCR 231 AD.
(42) Retrial cannoi be ordered when the prosecution case depends on a retracted confession. 33
DLR 5.
(43) Recognition of accused persons being improbable, speculative, and of an uncertain character,.
no reliance can be placed on such recognition for convicting accused persons Omission to state
recognition to the Investigation Officer amounts to material contradiction.] BcR 70.
(44) The High Court Division acquitted the accused respondents who were convicted under
sections 395 and 397 of the Penal Code and under he provisions of SP Act, 1974 and sentenced them
to suffer RI for four years by the Special Tribunal and whose conviction and sentence were confirmed
in appeal by the Appellate Tribunal. The High Court Division on appraisal/of evidence came to the
conclusion that of the six neighboring witnesses five of them categorically stated that the names of the
dacoits allegedly recognised were not disclosed to them when to aforesaid witnesses came immediately
.
after the Occurrence. The statennt of the witnesses under section 162 CrPC were not given to the
accused persons. The High Court Division on consideration of this and other circumstances held
that no useful purpose would be served by directing a retrial and acquitted the accused respondents.
IBCR 117.
(45) A conviction under section 395 is not sustainable when it is based on test identification
parade. A "TI parade to be dependable must satisfy certain conditions. In the first place, the accused
should be unknown to the. identifying witness by name. Secondly, he must not have had any
opportunity to see the accused after the occurrence in connection with which he is put up for
identification. Thirdly, the identifying witnesses makes no mistake, expert of a most negligible
character in the matter of identification. If the accused was known to the witness by name from before
the occurrence he would disclose the name of the accused immediately after the incident and at any rate
to the investigating officer and in that case the question of his figuring as a witness in a TI parade will
not arise. His identification of the known accused in a test identification parade will thus be worse than
useless. This is a major reason for not depending on a TI Parade held long after the incident (7 DLR
564 followed). 19 DLR 662.
Sec. 395 Of Offences against Property 1163
2. "Five or more persons.-(1) One of the essential ingredients of the offence under this section
is that five or . more persons must conjointly act, whether directly or indirectly as aides. AIR 1.958
Cal 25.
(2) Where five persons were charged under this section and it was not the prosecution case that
there were any more persons who took part in the robbery and one of the accused was , acquitted the
remaining four Cannot be convictedunder this section. A IR 1958 A ndhPra 510. .
(3) Where, out of six 'persons charged for dacoity three were acquitted, Court held that the other.
three accused could not be convicted for dacoity in the absence of proof thatthere were other unknown
persons who, along .vith the accused, were five or, more in number. A IR 1956 SC 441.
(4) Provided the requisite number so act, the actual commission of the robbery and the attempt to
commit the robbery stand on the same footing and amount to a completed dacoity. AIR 1957 SC 320.
3. "Conjointly commit or attempt to commit".—(l) To constitute the offence of dacoity, five
or more persons should be acting conjointly in committing robbery as principals or aides. 1974
KerLT 328.
(2),The word 'conjointly' used in the section manifestly refers to united or concerted action of the
persons participating in the transaction. AIR ' ] 951. A ssam 143 (2) (144):32 CriLJ 1380 (DB).
(3) D with his wife and daughter was sleeping outside their house at night. The five accused came,
beat D and his wife and daughter when they resisted their actions. Accused 1 then broke open the door.
Three of the accused went inside and the other two kept guard outside. All the accused then removed
the boxes and the two accused who had kept guard actually carried away the boxes. It was;held that the
beating and the robbery were part of the same transaction and that all the accused acted conjointly and
were guilty under this section. A IR 1948 Mad 96
4. "Present and aiding."—(l) A person present andaiding the commission :or attempt to
commit robbery stands on the same footing for purposes of this section, as the persons actually
committing or attempting to commit the robbery. 'Aid' 'does not necessarily import intention as can be
gathered from the words "intentionally aids" used in S. 107, thirdly, ante. This section does not say
that the 'aid' should be intentional. It has, however, been held that under this section the aid should be
intentional. A IR 1956 VindhPra 18.
(2) It.,is necessary that the aider must-be present at the commission of or the attempt to cppii
dacoity. A IR 1926 Cal 374. .
5. There must be robbery or attempt to commit robbery ^ ( 1) If there is no robbery or attqnpt
to commit robbery, there can be no dacoity. AIR 1968 Raj 11. .
• (2) The word 'dacoity' applies according to the definitiOn not only where a robbery is corntnitted.
but also where robbery is attempted. In this view it is clear that a dacoity may be committed; ven if
the dacoits were unsuccessful in carrying. away or removing any booty. AIR 1951 All 834..
6. -Dishonest intention necessary.--(I) Inasmuch as robbery is an essential element of dacoity.
and dishonesty is an essential element in both theft and extortion which are esseniial elements in
robbery, it is clear that if there is no dishonest intention on the part of the offenders-an offence of
dacoity under this section cannot be made out. A IR 1941 Mad 763. , •
7. Motive.—(1) No motive is necessary to be proved for the offenceofdacoty. It is not necessary
that the accused should have' knOwn .their victims previously or have any grievance against them. The
prospect of loot is itself a sufficient motive. A IR 1942 Pat 199. -
1164 Penal Code Sec. 395
• 8. Abetment of dacoity.—( I) The fact that a person has knowledge of a design by certain persons
to commit dacoity and voluntarily conceals the existence of such design knowing that such
concealment would facilitate the commission of the dacoity does not amount to an abetment of the
dacoity. (1865) 4 Suth W R (Cr) 2.
9. Unlawful assembly and dacoity.—.41) Where the common object of an unlawful assembly
was not dacoity, but was something else, the members who did not take part or join in the dacoity
committed by some of the members cannot be made liable under this section. The fact that the
unlawful assembly, rioting and dacoity formed part of the same transaction would not be enough to
make the persons who were not the actual participants in the dacoity,, liable under this section. AIR
1953 Orissa].
(2) Where the common object of an unláwfül assembly is to commit dacoity, the persons of the
assembly who do not actually participate in . the dacoity can be made liable for dacoity by virtue of
Section 149. A IR 1951 Hyd. 97.
10. Charge and conviction.—(A) Several dacoities committed by the same persons.— (1) Where
there was commission of dacoity in three houes on the same night, the charge must be separately laid
in respect of each incident. AIR 1962 Manipur 7.
(B) Charge of daQoity— Conviction for another offence.— (I) A person charged with dacoity
cannot be convicted of mischief as the latter offence has no connection whatever with the dacoity
charge. AIR 1950 All 471. .. .
(2) If the accused who is charged in general terms of haying committed dacoity is convicted under
S. 45:8 and there is no prejudice to the accused the irregularity would be cured by the provisions of S.
464 of the Criminal P. C. A IR 1959 MadhPra 6
(3) An accused charged with conspiracy to commit dacoity with murder can be convicted of the
charge of conspiracy to commit dacoity only. AIR 1965 Cal 593.
(4) A person charged for an offence under Section 396 . could be convicted of an offence under this
section as it Js a minor offence in relation to an offence under S. 396. A IR 1948 Mad 96
(5) In a charge under Ss. 395 . and 400, when the evidence of the prosecution witness was
disbelieved for the purpose of sustaining a conviction under S. 395, a conviction in the charge under
S. 400 on the 'same evidence cannot be supported. AIR 1966 AndhPra 344..
(C) Charge for dacoigy founded on common object.--(I) A conviction for dacoity, founded on a
common object not charged, or on evidence which does not prove the necessary ingredients of the
offence is not sustainable. AIR 1924 Mad 584.
• (D) 'A lternative charges.— ( 1) Under S. 226, Criminal P. C. charges under S. 412 and this section
can be framed in the alternative and a conviction under this section can be altered to one under Section
412 in appeal, when there is no surprise or prejudice to the accused. A IR 1952 VindPra 42.
(E) Offence under this section disclosed in evidence.— (1) Where the evidence recorded by the
committing Magistrate disclosed an offence under this section, the Sessions Judge is justified in
'framing a charge under this section. A IR 1933 Oudh375.
(F) Charge for dacoily— Conviction for abetment.— (1) Where the accused was tried on a charge of
dacoity simpliciter, but is found to be liable as an abettor, the omission to mention the charge under
• S :109 of the Code is curable under S. 465, Criminal P. C. unless it has occasioned a failure of
justice. 1946 RaigLR 313. . .•. . .. . . .
(G) Miscellaneous. -(1) An accused charged for an offence under this section cannot be found
guilty of an offence under S. 342 of the Code, when no specic questions were put to the accused
regarding the ingredients of the offence.under Section 342. AIR 1955 (All) 2694.
Sec 395 Of Offenees against Property 1165
(2) Where no articles or movables were stolen but accused persons only extorted money from the
victims the case was not under S. 395 but one under Section 384/149 P. C. A IR 1979 SC 1943.
11. Evidence and proof.-(1) It is for the prosecution to prove all the ingredients of the offence
against the accused. Whether such ingredients have been proved depends upon the facts and
circumstances of the particular case. AIR 1950 All 471.
(2) The mere presence of the accused among dacoits is not enough to prove that he committed
dacoity. AIR 1977 SC 783. .
(A ) First information report.— (1) It is not necessary that F. I. R. should specify every little detail
and describe the specific part played by each one of the accused, when number of them have ' entered the
house and committed robbery. AIR 1951 Orissa 71.
(2) If the informant mentions the part played by any particular accused the omission about details
regarding the others may have some significance. AIR 1954 All 684.
(B) Retracted confession.— (1) A retracted confession, when there are circumstances to show that
the making of the confession itself was neither voluntary nor true, is not sufficient to find the accused
guilty Of an offence under this section. AIR 1945 Born 484.
(C) Police report.-.--(1) A report made by a Sub-Inspector of Police to his superior that certain
suspects were going to commit dacoity cannot be used as a sort of first information report, if the Sub-
Inspector of Police had not, in his report, disclosed the source of his information; and the mere fact
that he says that somebody told him that certain persons were going to commit a dacoity is not
evidence at all against those persons. AIR 1941 Born 146
(D) Injury on accused.---( I) The mere fact that the accused had been recently wounded and that he
has failed to give a satisfactory explanation as to how he was wounded, combined with the fact that he
was carried away from his house to a place of hiding shortly after the dacoity is of some corroborative
value, but is not conclusive of his guilt. AIR 1934 Pesh 53.
(E) Injuries on complainant.— ( 1) Where, in a charge of dacoity, the Court disbelieves the entire
evidence for the prosecution as regards the dacoity, the case must fail and Court cannot convict the
accused under S. 323 or 324 merely on the ground that the complainants had received certain injuries
which could not be self-inflicted and may have been caused by some of the accused. AIR 1945 All 87.
(F) Confession.— (l) Where the only incriminating statement the approver made was that, after the
dacoity, he was offered Rs. 100/- which he took, it was held by the High Court, that such statement
was not a confession that he committed dacoity and that it cannot be taken into consideration as
against the other accused. AIR 1926 Cal 374.
(G) Evidence of,identj/ication.— (l) Evidence as to identification of the dacOits is a weak type of
proof. 1979 A ll CriR 390.
(2) As a matter of lap) a conviction can be based, upon the evidence 'of identification of the accused.
AIR 1956 Pat 39.
(3) In a case of robbery in a passenger bus travelling with 20 passengers, it was held by the
Supreme Court that the preence of an identifying witness at the scene of occurrence was not open to -
doubt merely because his nme did not appear in the F.I.R. when as many as 20 passengers including
the witness were alleged to have been looted but the names of Only a few were mentioned in the F. I.
R. AIR 1972 SC 2478.
(H) Identification parade.— (1) The validity of an identification parade cannot be challenged on
the ground of irregularity in the manner of holding it or on the g , ound of delay in holding it when the -
1166 . . Penal Code . Sec. 395
Magistrate and Police Officer who conducted it were not cross-examined in that behalf. AIR. 1972
SC 2478. . . .
(2) Delay in holding an identification parade make a case doubtful and a conviction under S. 395
based on such evidence would. be improper. (1982) 3 SCC 3684).
(3) Soon after a dacoity, properly proved as have been stolen in the dacoity was found with the
accused—Held on facts that even with the presumption under S. 114, Evidence Act accused could not
be convicted under S. 395. AIR 1982 SC 129. .
(4) If there is other evidence to connect an accused with the crime itself, however small, the
finding of the stolen property with him is a piece of evidence which connects him further with the
crime. There is then no question of presumption. The evidence strengthens the other evidence already
against him. It is only when the accused cannát be connected with the crime except by reason of
possession of the fruits of crime that the presumption may be drawn. AIR 1971 SC 196.
(5) Evidence regarding identification of properties, subject-matter of dacoity untrustworthy—No
corroborative evidence as to ownership—Conviction held should be quashed (1970) 1 SCWR 635.
(6) As to further illustrative cases on point of recovery of stolen articles. 1984 GurU (Civ & Cri)
241 (P&H); 1980 Chand Cri C 197 (Punj); 1980 Chand C'riC 8.
(I) A pprover's evidence.--(I) Before the evidence of an accomplice as to his participation in the
dacoity can be accepted, the jury should be warned that they need corroboration of that fact as much as
of anything else. A IR 1932 Cal 295. . . .
(2) When reasonable proof exists that a sum of money deposited by the accused with a bank was
borrowed by him from a certain person for the purpose of redeeming amortgage which existed on his
land, the story as told unless proved to be untrue cannot be said to be material corroboration of the
statement of an approver that the accused had got the money as his share of the booty in the dacoity.
A IR 1918 Lah358. .
(J) Miscellaneous.— A rmed gang robbery—The prosecution must prove that the accused may
reasonably be presumed to know that the person who used arms were in possession and in control of
those arms. (1976) 2 MalayanL.J 2. . . .
(2) Where the prosecution witness are not quite consistent about the parts that were played by
various dacoits, the discrepancies of this kind would point rather to the truth than to the falsity .of the
prosecution case. Mistakes in observation are likely to be made by witnesses to a crime of this nature.
AIR 1945 All 100.
• (3) Accused were people of sufficient means to participate in a dacoity and were next door
neighbours of the complainant. Evidence showed possibility of false implication and raised doubts
about complicity of the accused in dacoity. Supreme Càurt set aside the conviction under S. 395. AIR
1981 SC 1388.•
• 12. Duty of Court.—(1) Courts should remember that penal laws aremade for the protection of
all classes alike and that they do not recognise any exception in the case of any particular denomination
of persons. A theft or dacoity would not, be any the less a theft or dacoity if committed by members of
one denomination upon the members of another denomination. (1893) ILR 15 All 299.
13. Sentence.—(1) Dacoity is a most serious crime and a deterrent sentence is called for. AIR
1956 Orissa 177. .
Sec. 395 Of Offences against Property 1167

(2) In awarding punishment for an offence under this section, two things are to be considered:
(i) What punishment does the individual deserve having regard to the gravity of his offence.
(ii) Is an unusually heavy sentence necessary in the particular case to protect the interests of the
public at large by acting as a deterrent to others. AIR 1980 SC 788.
(3) Accused, white carrying away stolen property firing crackers to frighten away pursuers are
guilty of dacoity—But as they had not attempted to injure the inmates of the house where the dacoity
was committed and by the time their appeal came up before the Supreme court for hearing they had
already undergone R. 1. for 2.5 years and were young in age, the Supreme Court reduced the sentence
to the term already undergone. AIR 1980 SC .788.
(4) As to further illustrative cases on point of sentence. A IR 1984 SC 207; A IR 1980 SC 2127;
1984 1 crimes 406; A IR 1955 NUC (A ll) 4158; A IR 1955 NUC (A ll) 1504.
(5) The meaning of.the expression "shall also be liable to fine" occurring in this section as well as
in other sections of the Code like 302, 325, 409, etc. is that there is a liability to fine and not that a
sentence of fine is obligatory. AIR 1968 Pat 287. . . .
14. Procedure ^ ( I). Where there is a probability of the accused absconding, it is not proper to
grant bail to the accused. A IR 1969 Tripura 42 (43, 44): 1969 CriL.J 1534.
(2) The fact that the name of particular accused is not.stated in F. I. R. is not ground for granting
bail to him A IR 1959 Manipur 28. . . .
(3) Where the accused is acquitted of an offence under S. 379 of the Code, an order of further
enquiry into an offence under this section is without jurisdiction. A IR 1955 Gal 496
(4) Cognizable—Warrant—Not bailable—Not compoundable—Triable by the Court of Sessions.
15. Form of charge.---(1) Framing of charge under Ss. 149/395—Offence under Section 395
comes into existence only when act of dacoity is committed by five or more persons.jointly—Question
of applying Section 149 is therefore a mere surplusage. AIR 1976 SC 2566.
(2) The charge should run as follows: . . .
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the day—of---at--committed dacoity, an offence punishable under 395 of
the Penal Code and within my cognizance. . .
And I hereby direct that you be tried by this Court on the said charge. .
16. Practice.—Evidence—Prove: (1) That the robbery was committed or attempted.
(2) That five or more persons committed or attempted to commit robbery, or that whole number of
persons committing or attempting to commit robbery was five or more.
(3) That such persons were acting conjointly.

Section 396
396. Dacoity with murder.—If anyone of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dãcoity, every one
of those persons shall be punished with death, or 6[imprisonment] for life, or rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to
fine.
1168 Penal Code Sec. 395

Cases and Materials : Synopsis

1. Scope. 6. Sentence-
2.1 "Five or more persons." 7. Procedure.
3. "In committing dacoity."
8. Practice.
4. Charge and conviction.
. 9. Charge.
S. Evidence and proof .
1. Scope.—(I) This section is enacted to declare the liability of other persons as co-extensive
with that of the actual murderer, and for this purpose, all that is required to be proved is that they
should have "conjointly committed" the dacoity and death caused by a dacoit in the course of the
dacoity would be murderer and attributed to all of them. The death need not be proved against any of
the daoits in particular, so long as death is the result of cumulative effect of the violence used by gang.
The first essence of an offence under this section is that the dacoity is the joint act of the persons
concerned and the second essence of the offence is that the murder is committed in the course of the
commission of the dacoity in question (6 CW N 72). If, when a dacoity is planned, murder is
contemplated from the first and is committed in the dacoity any person, who joins in the conspiracy,
is liable under section 302 read with section 109 to imprisonment for life, even if he does not
eventually join in the commission of the dacoity with the other conspirators. Dacoity starts from the
entry of the dacoits into the premises and ends with their departure (A IR 1951 A ll 834). Murder
committed by one of the dacoits while making good their escape is murder committed in committing
the dacoity (25 CrLJ 319).A dacoity being as soon as there is an attempt to commit robbery.
Conviction under this section may be based on circumstantial evidence, the evidence must be such as
is sufficient to prove his guilt positively. An extra-judicial confession allegedly made before witness
was retracted and not corroborated in material particulars by other deviance. The conviction of the •
accused was set. aside as it was not supported by any evidence (PLD 1969 Dhaka 504). Where the
names of identification witnesses were not mentioned in FIR and the witness had not told the
Investigation Officer they could recognise the culprits, identification of the accused by such witness
could not be relied upon as evidence of their guilt. Where the case against an accused person resists on
recovery of subject of dacoity from him or at his instance it is necessary to show that the articles
recovered were the same as were identified in court as exhibits. If that is not done, benefit of the doubt
must go to the accused. Generally where the accused is found in possession of stolen property a
presumption under section 114, Evidence Act will not alone justify fixing him with anything more
than the knowledge that the goods were obtained by dacoity (22 CrLJ 60). Therefore a person who was
not arrested at, the time of dacoity and about whom there is no proper evidence of identification cannot
be convicted only because he was found in possession of stolen property. He can be convicted under
section 412 Penal Code (52 CrLf 1514DB). (48 DLR 287, 49 DLR 245.)
(2) Joint trial under sections 396, 395 and 412/414—Effect.—S was charged and convicted under
sections 412/414, P.C., at a joint trial with remaining accused who were charged and convicted under
sections 395 and 396, P.C. On objection being taken that the joint trial was illegal inasmuch as the
offence alleged against the other appellants was not of dacoity alone but also one of murder committed
during the commission of the dacoity ,punishable by section.396. Held: The mere fact that the
appellants other than S. were in addition to being persons accused of an offence of dacoity (whièh
offence includes theft) persons accused also of another offence, would not make the joint trial of S.
with them illegal, if those appellant's case be jointly tried for the two offences. ' Ali Vs. Crown (1954)
6 DLR (WP) 52.
Sec. 396 Of Offences against Property 1169

(3) Dacoity with murder—When a murder is not committed in the course of committing dacoity
there can be no conviction under section 396 of the Penal Code. Since the prosecution has failed to
prove the commission of dacoity and murder of victim Tajul by the condemned-prisoner and his
associates by any cogent and reliable evidence the order of conviction is not sustainable in law. State
• Vs. Mesbahuddin '49 DLR 245. .
(4) Although the charge under section 396 against other co-accused has failed he can i.e safety
convicted under section 302 of the Penal Code as he had full notice of the charge under section 302
which is inherent in the charge under section 396 of the Penal Code, State V s, Rafiqul Islam
(Criminal) 55 DLR 61.
(5) In absence of any evidence of dacoity by any of the witness and in absence of any recovery
of any article taken away during the dacoity from the possession of any of the accused person it
can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore
the charge under section 396 P.C. must fail on the ground of absence of evidence to prove any
of the ingredients of section '391 of the Penal Code. Md. A bdul A li and others V s. State, 20 BLD
(HCD) 327. .
(6) Conviction based on consistent evidence cannot be interfered with merely on ground.of non-
examination of Magistrate who held T.I. Parade—conviction and, sentence was awarded on proof of
charge under section 396 of the Penal Code with consistent and reliable evidence on record. That the
confessional statement was not relied upon and that the Magistrate who held T.I. Parade of the acused
was not examined, does not constitute ground for acquittal of the convict-appellants. A bdul Hashem @.
Bachchu Fakir ('Md) & others Vs. The State, 5 MLR (2000) (AD) 87.
(7.) No murder was committed by the dacoits at the tithe of committing dacoity but some of the
prosecution witnesses-have proved that Khushi sustained stab injury by the dacoits When the' were
running away' and some of the witnesses proved that it was father of Khusi and hence there was a major
contradiction regarding the person as to who received the injury. The victim died 4 days ãftevthe
occurrence in the hospital during treatment but the prosecution has failed to prove as to who was
murdered by the dacoits and hence the conviction under section 396 of the Penal Code is bad..jn . law. as
no murder was committed by any of the dacoits.during commission of dacoity. A bdul Khaieque Vs.
State (Criminal) 6 BLC 654. . . . .. . . .......
• (8) In the absence of any evidënóe of dacoity by any of the witnesses and in the absence of any
recovery of any . article taken away during the dacoity from the possession of any of the accused persons
it is a case of no evidence aidthe prosecution has hopelessly failed to prove the charge under section
396 of the Penal Code against any of the accused persons beyond reasonable doubt and hence the
impugned judgment and order of conviction and sentence is not sustainable. State Vs. Md. A bdul A li
and others (Criminal) 6 BLC 152.
(9) Four out of fifteen persons charged with the .offence were convicted. Evidence suggests the
presence of more than five persons. Conviction under the section is valid. 8 DLR 50.
(10) Eleven persons were charged under section 396 and alternatively under section 302 and 120B
of the Penal Code. Held the trial was vitiated by misjoinder of charges. Neither section 239(d) nor
L. section 236 of the CrPC justified such a joinder. Section 239(d) permitted joinder of persons accused
of different offences committed in course of the same transaction, but a charge under section 3.96 Penal
Code deals with persons accused of the same offenceand joinder of.different 'offences under section 3,96
1170 Penal Code Sec. 396
'and 302/120 is not permissible under section 236 CrPC. Prosecution led evidence as to an incident
which took place six years back to show that the accused made then an attempt to poison the murdered
man. Held—The Session Judge should have refused to record evidence on this matter and should have
ruled it out of consideration. If a point arose in the evidence against the accused which the court
considered vital it was the duty of the Judge to call the attention of the accused to the point and to ask
for an 'explanation thereof (Ref 3 DLR 518), 5 DLR 52.
(11) Sections 396 read with 34 and 20 .1 read with 34_:sentence__Preplanned dacoity with cold
blooded and cruel murder of four persons committed by accused. Bodies buried with a view to cause
evidence of crime to disappearsentence of life imprisonment and of six years' RI (to run concurrently)
imposed by trial court and confirmed by High Court in appeal—in the 'circumstances plea for reduction
of the sentnces to the per Iod already undergone rejected by Supreme Court. Criminal Trial—
Appreciation of evidence—Minor discrepancies in testimony of a , witness, if not affecting its
credibility, would not make the testimony unreliable. 1986 SCC (Cr1) 174.
(12) This section like Ss. 34, 149 and S. 460 fixes the vicarious liability of persons conjointly
committing a dacoity for the act of murder if committed by one or more of them. AIR 1955 Hyd 147.
(13) It is equally necessary that the cusing of the death of the victim should amount to murder and
that the murder should have beeri committed in committing dacoty. AIR 1935 Cal 580.
(14) It . is not necessary to prove that murder should have been within the contemplation of all or
some of them when the dacoity was planned or that they should have actually taken part in or abetted
its'commissjon. A IR 1965 Cal 598. . .
(15) It is not necessary to prove that the others expected that murder would he committed. AIR
1953 A ssam 45. .
2.. "Five or more persons".-.--(l) Where it is proved that five or more persons conjointly
committed a dacoity and murder is committed by one of them in committing the dacoity, the fact that
some of the said five or more persons are not identified does not affect the guilt of the persons who
,were some .of such five or more persons. AIR 1930 Lah 263. -
3. "In committing dacoity".—(l) The murder must have been committed "in . committing a
dacoity", that is, the murder should have taken place in the commission of the dacoity. It is only then
that the accused will be liable under this section though actually the murder , was committed not by
him but by some other person participating in the commission of dacoity. AIR 1955 Hyd 147.
(2) Murder committed in attempting to escape without carrying away the stolen property is not
murder committed in committing dacoity. AIR 1957 SC 320.
(3) If the murder is committed while carrying away the stolen property the murder must be held to
have been committed in the commission of the dacoity. AIR 1932. Cal 818.
(4) The question whether murder was committed in committing dacoity is a pure question of fact,
not to be determined by any general rule but by the special circumstances of each case. A IR 1967
Raj 134.
(5) The presumption of a common intention to add murder to robbery is not easily avoided where
all or some, to the knowledge of the rest of those engaged in the enterprise, are proved to have carried
firearms and firearms have been used with fatal effect AIR 1935 Rang 89
Sec. 396 Of Offences against Property 1171
4. Charge and conviction.—(I) When murder is committed in the commission of the dacoity, it
is proper to frame the charge under this Section rather than under Ss. 302 and 395. AIR 1925 Lah 337.
(2) The charge under S. 302 is not a minor charge in relation to the charge under this section. AIR
1933 Cal 294.
(3) A conspiracy to commit dacoity is a minor offence in relation to the offence of conspiracy to
commit dacoity with murder, A IR '1965 Cal 598,
5. Evidence and proof.—(l) The burden of proof is on. the prosecution to prove against the
accused all the elements of the offence. Where the evidence against the accused consists only of the,
recovery of stolen property, it is not safe to convict him under this section. A IR 1970 SC 535.
(2) Witnesses identifying accused, the dacoits ought not to be disbelieved on the sole ground that
they were not produced and examined befofe the committing Magistrate. AIR 1963 All 161.
(3) Improper admission of approver's evidence owing to misinterpretation of proisions of
Criminal P. C. and Evidence Act, held did not necessarily amount to substantial and grave injustice to
entitle petitioner (accused) to special leave to appeal to Privy Council. A IR 1925 PC 52.
(4). Recovery of goods stolen in dacoity from accused three days after occurrence-..-Only
presumption deducible from being that accused knew articles as stolen but not as stolen in dacoity-
his conviction is proper under S. 411 and not under S. 396. A IR 1970 SC 535.
(5) Long enmity between accused and victim party—Offence committed during midnight--
Sufficient moonlight and Iaptem light enabling eye-witnesses to identify all accused—No falsity of
evidence proving commission of offence by accused—Conviction held proper. AIR 1983 SC 431.
(6) Prompt recovery of stolen, articles form house of accused charged with dacoity—Strong
presumption of complicity of accused arise. A IR 196' Tripura 54.
(7) Dacoity—Evidence disclosing commission of offence by accused—No other view of evidence
possible—Held, High Court was justified in reversing the trial Court's order of acquittal. A IR 1981
SC 612.
(8) None of witnesses gave any description of dacoits in their statements or in oral evidence nor
gave any identification marks such as stature of accused or whether they were fat or thin' or of fair
colour or black colour—Only one witness identified dacoits after certain days from T. E parade—
Conviction cannot be based only on identification by single witness. AIR 1981 SC 1.392.
6. Sentence^ -(I) A sentence of '14 years rigorous imprisonment for an offence under this section
is illegal. AIR 1956 All 163.
(2) In the case of persons who are vicariously liable under this section, the Court has a discretion'
to award a lesser sentence. The normal sentence would however be death in the absence of mitigating
or extenuating circumstances. ILR (1963) 42 Pat 454,' AIR 1960 All 190.
• (3) Where two of the dacoits committed murder in order to facilitate the dacoity, and the Sessions
Judge has sentenced them to imprisonment for life without giving any reason's for not imposing the
sentence of death, it was held that a sentence of death, should have been passed. AIR 1968 SC. 1464.
(4) Whether extenuating circumstances exist in any particular case will, of course,.depend upon the
facts of the particular case. AIR .1932 Cal 818.
7. Procedure.—(1) Offence under Ss. 395 and 397 of the Code are minor offences under .S. 238,
Criminal P. C., when considered in relation to an offence under this section. An accused person
who already had the benefit of an acquittal for an offence under this section cannot, in view of S.
1172 Penal Code Sec. 397

300, Criminal P. C,, be tried again and convicted of an offence under S. 395 on the same set of facts.
A IR 1949 Mad 195.
(2) Cognizable—Warrant—Not baliable—Not compoundable—Triable by the Court of Session,
8. Practice.—Evidence--Prove: (1) That there was the commission of dacoity.
(2) That one of the accused committed murder,
(3') That the murder was committed during the commission of dacoity.
9.Charge.—The charge should run as follows:
I, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about—the day of—at—committed dacoity, and that in the commission of such
dacoity, murder was committed by one of your members, and that you ' thereby committed an offence
punishable under section 396 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

/ Section 397
397. Robbery or dacoity, with attempt to cause death, or grievous hurt.—If,at
the time of committing robbery or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished shall not be less
than seven years...
Cases and Materials : Synopsis
1. Scope. , . 7. Charge and conviction.
2. . Robbery or dacoity must have been committed. 8. Evidence and proof.
3. "Uses any deadly weapon ' . 9. Sentence.
4. "Or causes grievous hurt to any person ". 10. Procedure.
5. Such offender. ,. 11. Practice.
6. "Deadly weapon ' 12. Charge.
1. Scope.—(I) This section may be read with sections 11, 319 and 448 of the Penal Code and
this section is merely a rider to section 394. It does not create any substantive offence. It is
complementary to sections 392, 395 and 396 which create the substantive offences. It merely regulates
the punishment already provided for dacoity, by fixing a minimum term of imprisonment when its
commission has been attended with certain aggravating circumstances, viz, (a) use of a deadly weapon,
or (b) causing of grievous hurt, or (c) attempting to cause death or grievous hurt. The provisions of
this section are obligatory, as "the imprisonment with which such offender shall be punished shall not
be less than seven years" (25 CrLf 259). A conviction merely under section 397 has-no meaning. The
conviction in a case of a dacoity should be under section 395 read with section 39.7 of the Penal Code
(26 CrLf 570). Section 397 is intended to cover the case of a.person who displays a deadly weapon to
frighten his victims or their neighbours or who makes use of any deadly weapon for other similar
purpose. Its operation is not confined to cases where the weapon is used actually for causing injury or
for attempting to cause an injury, to another (39 CrLJ'323). Section 397 can apply only to the actual
user of the weapon and not to others constructively (25 CrLJ 1024). It is not necessary that deadly
weapon should be used actually (32 CrLf 567). It is sufficient that the robber or dacoit carries in his
Sec. 397 Of Offences against Property 1173

hand a deadly weapon open to the view of the victims or brandishes the same to frighten or terrorise
them, The principle of constructive liability does not apply to cases under this section. This section
includes a case where a dacoit armed with deadly weapon uses it in any manner for the purpose of
facilitating the commission of dacoity or for his own protection (21 DLR 448). But where the dacoits
abandoned the intention of committing robbery and took to their heels on alarm being raised and
subsequently the accused fired shots to prevent pursuit and injured a prosecution witness. The violence
was not caused for one of the ends contemplated by section 390, 'a conviction for an offence under
section 394 cannot be sustained. His conviction may be altered to one under section 326 (1970 CrLf
155). The mere fact that stolen property is recovered from the accused or that he is identified as one of
the culprits is not sufficient for conviction under this section. Where the offence committed is
punished under section 394/397 Penal Code the minimum sentence which a court can impose is the
sentence of rigorous imprisonment for 7 years.
(2) "Use any deadly weapon" in section 397—Connotation of—The point for detrmination is
whether the mere carrying of dangerous weapons like guns for the commission of dàcoity would attract
the provisions of this section or not. Held: The word 'uses' occurring in section 397, sháuld be
construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery
although the gun was not actually used in the course-of committing the offence. A hmed Vs. State
(1964) I6DLR (SC) 30.
(3) "Uses any deadly weapon"—The words must receive a comprehensive interpretation: "Use any
deadly weapon". The meaning of the word "use" must receive a comprehensi'e interpretation and
would include the-carrying of any deadly weapon in the course of a dacoity with a view to overawe
persons intending to resist the commission of the dacoity. 1950 PLD (La/i) 269.
(4) Fixes a minimum punishment--Does not create an offencebut fixes minimum punishment in
certain cases of robbery or dacoity. 1956 PLD (La/i) 157.
(5) Dacoit armed with deadly weapon—Use of such weapon for commission of the dacoity or for
protection comes within the purview of ection 37 P.C. On a comparison of the provisions of
sections 397 and 398 P.C. it will be found t1at even in the case of attempted robbery or dacoity when
the offender is armed with deadly weapon, he is liable to be punished with a minimum sentence of
seven years' imprisonment. Section 397 P.C. should be given a liberal interpretation so as to include a
case where the dacoit armed with deadly weaon uses it in any manner for the purpose of facilitating
the commission of the dacoity or his protection. Idris A li Majhi Vs. The State, (1969) 21 DLR 448.
(6).Daoity with attempt to cause grievous hurt—the absence of any grievous hurt to any person or
use of any deadly weapon, conviction for such an offence cannot be sustained. Kashem Mo/la Vs. State
42 DLR 453. . .
(7) In a decoity case the prosecution is required to prove by evidence that in fact decoity was
committed as alleged in the FIR or complaint. Without bringing on record that evidence it will be
pointless to bring on record or consider other evidence showing participation of accused into offence.
Babul @ A bdul Majed Khan & Vs. anr. The State. 42 DLR (A D) 186
(8) Accused Ali Howl-adar's conviction under section 395/397 PC cannot be sustained in law as
the officer who conducted TI Parade was not examined. 41 DLR 32.
(9) Lumping together of several distinct charges in one trial, is not permissible. Charge under
section 395 and 397 of the.Penal Code relates to distinct offence for commission of dacoity. As son
as the accused appellants and others retreated from the said house, the commission of offence is
1174 Penal Code Sec. 397

complete. Thereafter on the following date when Nasiruddin, Fakrul Ahmed were assaulted in the
police station, charge under section 325/34 of the Penal Code was drawn for the said alleged offence.
Offence under sections 302/34 of the Penal Code alleged to have been committed by accused appellants
and others on the next morning when they committed under Gous by assaulting and charge under
section 302/34 was also drawn against them. Piecing these distinct charges together against the accused
appellants and others in one trial is not permissible, under the provisions of the Cr.P.C. 40 DLR 377.
(10) Section 397 PC—Conviction of accused is not sustainable. As far as the charge against the
appellants under section 397 of the Penal Code is concerned, we find that the prosecution has signally
failed to substantiate as to what weapon, if any, was carried by any of the accuse appellants. There is
no evidence that any grievous hurt was accused to any person or any attempt was made to cause death
or grievous hurt to any person. As such we are of the opinion that the conviction of the appellants
under section 397 of the Penal Code cannot be sustained (Ref 41 DLR 239). 8 BCR 3.
(11) A bonafide claim over the land is no consideration for the purpose to find guilt in an offence
under section 397 Penal Code. No particular number of witnesses is to be examined by the prose1tion
to prove its case. The Court can base its finding on the testimony of a sole witness if it believes him
(Ref. 21 DLR 575). 8 BCR 13.
(12) Statement of some accused persons to have committed dacoity at any one of places or any
where else mentioned by the witnesses 'do not amount to confession. The learned Additional Session
Judge has no knowledge about confession. Establishment of large-number of Courts overnight manned
by young and immature officers, advocates and staff without sufficient knowledge and experience has
resulted in glaring miscarriage of justice as in this case causing untold miseries, harassment and
sufferings. 7 BCR 347. .,.
(13) Carrying of a deadly weapon in the course of dacioty involves an offence falling under section
397 Penal Code irrespective of the fact whether the arms were used in the dacoity or not. Obeying
unlawful order of a superior does not exonerate a person who commits an offence as a consequence of
such order. If the order is obviously illegal the officer carrying out the order would be justified in
refusing to carry Out such an order,. 22 DLR 218 WP.
(14) This section and the next do not create substantive offences, but merely prescribe a minimum
sentence for the offence of robbery and dacoity under the aggravating circumstances mentioned in these
sections. 1980 A ll LJ 635.
(15) The essential ingredients of the offence under this section are:-
(i) An offence of dacoity or robbery must have been committed;
(ii) The offender should have taken part in the offence; and
(iii) The offender should have used a deadly weapon or caused grievous hurt to any person or
attempted to cause death or grievous hurt to any person at the time of committing the offence. (1904)
I CriLJ9OI.
2. Robbery or dacoity must have been committed.—(1) Before, this section is áttrated, there
must either be a dacoity or robbery. 1961 KerL.J 548.
3. "Uses any deadly weapon".—(l) This section employs the words "uses any deadly weapon",
while S. 398 uses the .vords "is armed with any deadly weapon". AIR 1975 SC 905.
(2) if the deadly weapon is actually used by the offender in the commission of the robbery such as
in causing grievous hurt death or the like .then it is clearly used. AIR 1975 SC 905.
Sec. 307 Of Offences against Property 1175.

(3) Accused carrying knife open to the view of victims—Section 397 is attracted—Any other overt
act is not necessary. A IR 1975 Sc 905.
(4) If the knife was "used for the purpose of producing such an impression upon the mind of a
person that he would be compelled to part with his property, that would amount to 'using' the weapon
within the meaning of S. 397". AIR 1975 SC 905. -
(5) The words "uses" in S. 397 and "is armed" in S. 398 have to be given identical meaning. AIR
1975 Sc 905.
(6) When the offence of robbery is committed by an offender being armed with a deadly weapon
which was within the vision of the victim so as to be capable of creating a terror in his mind, the
offender must be deemed to have used that deadly weapon in the commission of the robbery. AIR 1975
SC 905.
4. "Or causes grievous hurt to any person".—(I) Provided that the accused causes grievous
hurt at the time of committing the robbery or dacoity, it is not necessary that he should have intended
to cause such hurt. 1901 Pun Re No. 6p. 20.
5. Such offender.—(1,) The words 'such offender' occurring in the latter part of this section have
been construed in two different ways. It has ben construed to mean only that offender who uses any
deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt and not others who
are jointly concerned with him in committing the dacoity or robbery. 1978 Raj Cri C 18.
• (2) S. 34 (or S. 149) has no application to a case of an offence under this section. If, this section
does not create any substantive offence but merely provides a minimum punishment for robbery or
dacoity if certain circumstances are proved, Ss. 34 & 149 can have no materiality in construing Ss,
397 and 398. A IR 1971 Manipur 43 .\ .
6. "Deadly weapon".—(l) Ordinary plain sticks or lathis are not designed to cause death and are
not "deadly weapons" though they may be used as weapons for causing death. A IR1957 Tripura 48.
(2)A knife is a deadly weapon. AIR 1975 SC 905.
7. Charge and conviction.—(1) As this section does not create a substantive offence, a
conviction under this section alone is not correct. The conviction ought to be under this section read
with Section 395 or 392 as the case may be. A IR 1957 Tripura 48(49) = 1957 CriLi 1457.
(2) This section has reference not only to the offence of dacoity but also to the offence of robbery.
Where it is proposed to use this section, either S. 395 or 392 should be definitely referred to in the
charge, so that accused persons my know exactly what they have to meet. (1974) 40 CutLT 825 (Pr
9); A IR 1947 Pat 157.
(3) An offence under S.325 is an offence affecting human body and dacoity is an offence against
property. Therefore it is not open to a Court to convict the accused underS. 325 when he is charged
for an offence under this section read with S. 392. AIR 1928 Oudh 373.
(4) Accused convicted and sentenced under Ss. 397, 34 of Penal Code and under S. 37 of Arms
Act—Facts and circumstances of case showing that offence fell under S. 392 of Penal Code—
Conviction altered accordingly and sentence reduced. AIR 1981 SC 2008.
8. Evidence and proof.—( 1) Whether the accused took part in the ,dacoity for which they were
charged depends upon the evidence adduced in the case; it is for the prosecution to establish that-the
accused used any deadly weapon or caused grievous hurt or attempted to cause death or grievous hurt.
1176 Penal Code Sec. 397

When there is no satisfactory evidence that the accused did any of these acts, he cannot be found guilt
under this section. 1978 CriLi (NOC) 143 (Puny). -
(2) Failure of prosecution witnesses to identify appellant at Test Identification Parade—Articles
which were subject matter of dacoity recovered at the instance of appellant—Conviction under S. 397
P.C. alterd to that under Section 412 P.C. A IR 1978 SC 1390:
(3) Conviction of accused under Ss. 395 and 397 based on fact that he was found in possession of
the two articles not proved satisfactorily as forming part of corpus delicti—Victim failing to identify
accused in two identification parades—Accused not liable to beconvicted under Ss. 395 and 397. AIR
1982 SC 948.
(4) Recent and unexplained possession of stolen property will be presumptive evidence against an
accused on a charge of robbery . as well as murder. AIR 1967 Goa 21.
(5) Mere denial of recoveries on the part of accused is not sufficient to rebut presumption of guilt
arising from their recent and unexplained, exclusive possession of looted articles. 1974 WLN (UC) 250
(254) (Raj). .
• (6) When a person is found in possession of property taken in dacoity soon after the commission
of the dacoity, the proper inference to be drawn is that he was one of the dacoits and not that he was a
receiver. AIR 1955 NUC 3235 (Pat).
(7) When accused were arrested more than a week after the date of dacoity with injuries upon their
persons, which were testified by medical evidence to be gunshot wounds, the fact at best may lead to
an inference that they were concerned in some transaction in which they received gunshot injuries; but
that does not lead to the inference that they were concerned in the dacoity. AIR 1956 Born 186
(8) The evidence that after the occurrence of dacoity, the . Police Patil went round the village and
ascertained whether the accused was in his house can at best be regarded as hearsay and has little
evidentiary value. AIR 1957 Born 186. . . .
(9) Offence of murder and robbery—Appreciation of evidence—High Court held, committed
serous errors in reading the evidence on the record and basing findings on mere conjectures—Proof of
accused person's possession of incriminating articles—Circumstantial evidence against him, held,
sufficient to justify the trial court's finding that he was guilty of offence .under S. 302 and under
Section 392 read with Section 3 97, P.C.A IR 1978 SC 1183. .
(10) Fishes in the tank belonging to complainant taken away by accused who were armed with
deadly weapon—Claim of accused that they reasonably believed tank to be. belonging to
Government—No documents supporting their claim produced by accused—No iota of evidence to
support stand of accused—Held, accused were rightly convicted under S. 397. AIR 1980 SC 2127.
9. Sentence.—(1) A person if convicted under this section, is liable to be punished with not less
than 7 years' imprisonment. 1934 MadW N 1286
(2) Consecutive sentences in respect of convictions under S. 394 and this section are illegal, if
they are based on the same set of facts. AIR 1926.Lah 47.
(3) The use of a deadly weapon by one offender at the time of committing robbery cannot attract
S. 397 for imposition of minimum sentence on another offender who had not used any deadly weapon.
AIR 1975 SC 905.
(4) Conviction under Ss. 452 and 397—Accused 20 years . of age belonging to middle class
res0ectable family but due to undesirable company committing offence—Benefit of Probation of
Offenders Act given to accused and his sentence suspended. AIR 1983 SC 654.
Sec. 398 Of Offences against Property 1177

(5) Robbery with, help of sword—Accused a primary school teacher .without bad, antecedents—
Amount robbed being trivial amount—No physical hurt caused to anybody—Accused not resisting his
arrest—Held mitigating circumstances warrant recommendation for exercise, of power of remitting or
reducing sentence under S. 432, Cr.P.C; AIR 1981 SC 644.
10. Procedure.—(l) A Magistrate who finds that an offence under this section is disclosed in the
evidence, must commit the case for trial to the Sessions Court. He cannot treat the grievous hurt as
simple hurt and try the case himself. Rat Un Cr C 476.
(2) When a person is acquitted of an offence uls. 396,'a subsequent trial on the same set of facts
on a charge u!s. 395 -read with S. 397 is barred in view of S. 300 Cr.P.C. A IR 1949 Mad 195.
(3) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Court of Session.
11. Practice.—Evidence—Prove: (1) That there was the commission of robbery or dacoity.
(2) That the accused used a deadly weapon or caused grievous hurt; or attempted to cause death or
'grievous hurt.
(3) That the above acts were done during the commission of.robbery or dacoity.
12. Charge.—The charge shou,kl run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of, at—, committed robbery/dacoity offences punishable under
section 392 or 395 of the Penal Code (give details as per the above sections) and that at the time of
committing the said robbery or dacoity you used a deadly weapon namely—of accused grievous hurt to
A or attempted to cause death or grievous hurt to A, and thereby committed an offence punishable
under section 392 or 395 read with section 397 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 398
398. Attempt to commit robbery or dacoity when armed with deadly
weapon.—If, at the time of attempting to commit robbery or dacoity the offender is
armed with any deadly weapon, the imprisonment with which 'such offender shall be
punished shall not be less: than seven years.
Cases and Materials : Synopsis
1. Scope. ' ' 7. Evidence and proof. .. '.

2. "Is armed with a deadly weapon" -' . 8. Sentence;

3. Dishonest
' intention necessary. . . 9. Practice.
4. Abetment of offence under this section. 10. Procedure
5. ' "Such offender' , 11. Charge.
6. Charge and conviction.
1. Scope.—(1) This section does not relate to a substantive offence. It is applicable only to the
case of an attempt to commit robbery and has no application to a case in which robbery has actually
been committed (38.CrLJ 926). This section only regulates the measure of punishment. To .attract
section 398 it is not necessary that the accused must show the use of weapon. it is enough if the
accused was armed with deadly weapon. The word "offender" occurring in this 'section' refers to the
1178 Penal Code Sec. 398

person who is proved to be armed with a deadly weapon and not to others so comprising the gang
attempting to commit robbery (29 CrLf 383). This Section punishes only the person who is armed. A
man cannot be convicted of abetting an offence under section 398 (27 CrLf 1285). The words
"offender" and "such offender" refer only to the persons who are proved to have actually been "armed
with" deadly weapon and not to the others who in combination with such persons have committed
robbery or dacoity.- Section 34 has no application in the construction of this section, though it may be
read with section 392 and 395 to determine the substantive offence which is created (33 CrLf 460).
(2) On a comparison of the provisions of section 397 and 398 Penal rode it will be found that
even in the case of attempted robbery or dacoity when the offender is armed with deadly weapon, he is
liable to be punished with a minimum sentence of seven years' imprisonment. 21 DLR 448.
(3) While the previous section covers the case of completed dacoity or robbery, this section applies
only to cases of attempts at committing robbery or dacoity and has no application to a case in which
robbery or dacoiQ has been completed. A IR 1952 Vindh Pro 42.
(4) Like the previous section, this section does not create a substantive offence. It merely
prescribes. a minimum punishment that must be awarded in cases falling under 'it. A IR 1959MadhPra 6
2. "Is armed with a deadly weapon".—(l) A person may be said to be "armed with a weapon"
when he has the weapon;with him and ca'rries it with the intention of using it if the occasion requires
it: A IR 1934 Loh 522. .
(2) It is not necessary that, the victim of the intended robbery or dacoity should be aware of the
't
possession of the weapon by-the attacker. All that is necessary under this section is that the accused
should be armed at the time of the attempt to commit the robbery or dacoity. (1948) 1 SauLR 100.
3 Dishonest intention necessary.–_.( 1) Theft or extortion is an essential ingredient of the offence
of robbery and dishonest intention is. an ingredient of the offence of theft or extortion: consequently,
dishonest intention is necessary to be proved before the accused can be convicted under this section.
(1912) 13 C'riLJ 864.
4. Abetment of offence under this section.—J) As this section applies only to that offender
who is ed with the deadly weapon., there cannot be a onviction for abetment of an offence under
this section. A IR 1923 Rahg 207. .
5. "Such offender".—( 1) It is only the robbers who are actually armed with deadly weapons who
can be charged and convicted under S. 398. A IR 1941 Mad 489.
6. Charge and conviction.— (1) In a charge for an offence under this section the substantive S.
393 (attempt at robbery) -or dacoity (S. 395) should be mentioned. (1911) 12 CriLJ 468.:
(2) In a -case of charge for dacoity only, the actual offender or offenders who were armed with
deadly weaponin be convicted under this section. A IR 1932 Loh 367.
(3) An accused charged under this section read with S. 395 could be convicted under S. 458 of the
Code when the evidence showed - that he committed that offence and there was no confusion, in the
mind of the accused and he in fact tried to meet all the ingredients of the offence under that section.
A IR 1959 MadhPra 6.
7. Evidence aud proof.—(1) An accused cannot be convicted under this section when the only
evidence against him is that of-an approver, corroborated-by his identification which had taken place
neatly six months after his arrest. (1949) 2 SauLR 152,.
Sec. 399 Of Offences against Property •1179
8. Sentence.—(l) The minimum sentence of 7 years. is compulsory in the ease of'an accused
found guilty under this section. A sentence of five years is illegal. AIR 1924Oydh 314.
9. Practice.—Evidence—Prove: (1) That there was the attempt to commit robbery or dacoity.
(2) That the accused as armed with a deadly weapon.
(3) That he was so armed when the robbery or dacoity was committed.
10. Procedure.—Cognizable—Warrant—Not bailable—Not Compoudable—Triable by the Court
of Session.
11. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the.—, day of—, at—,' attempted to commit robbery/dacoity punishable
under section 392/395 Penal Code (give details as per the above sections) and that at the time of
attempting to commit the said robbery or dacoity you were armed with any deadly weapon namely—
and thereby committed an offence punishable under section 392/395 read with section 398 Penal Code
and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.

Section 399
399. Making preparation to commit dacoity.—Whoever makes any preparation
for committing dacoity, shall be punished with rigorous imprisonment for a term..
which may extend to ten years, and shall also be liable to fine.
Cases and Materials : Synopsis
1. Séope of the section. 8.. A cquittal under this section— Effect.
2. Intention, preparation and attempt. 9. Accused having Explosive substance at time of
3. "Whoever". preparation— Sanction for prosecution.
4. Five or more persons assembling for dacoity. 10. Practice.
5; Charge and conviction. 11. Procedure.
6. Evidence and proof.
7. Sentence.
12. Charge ...........
1. Scope of the section—( 1) This section punishes 'mere preparation to commit dacoity. Dacoity
is the only offence where punishment is provided even at the stage of preparation. No hard and fast rule
can be laid down that any particular act or any particular kind of steps towards the commission of an
offence are necessary to constitute "preparation". The essential things is that the prosecution must show
that there were persons who had conceived the design of committing dacoity.. Once the existence of
such a conspiracy, has been established then any step taken with the intention and for the purpose of
forwarding that design may justify the court in holding that there has been preparation within the
meaning of this section. "The making of preparation" should be shown to the satisfaction of the court
by some act, such as the collection of men, arms, provisions, etc., which, coupled with other
circumstances, plainly manifest the intention to commit dacoity. In order to establish an offence under
this section, it is not necessary that the persons shown to be making the preparation should be five or
more in number. But it is necessary to prove that the raid for which they were making preparation was
to be committed by five or more persons. The proof of an offence , under this section is mainly a .:
L18 0 Penal Code Sec. 399

question of inference from facts. Where a band of armed men, some of them with unlicensed fire arms,
were moving about mans' miles from their village and attempted to conceal their presence, threatened
those who enquired who they were, resisted pursuit and fired at those who pursued them the only
reasonable inference that can be drawn is that the men were dacoits and had made preparations to
commit dacoity (45 CrLJ 130).
(2) ."Assembly for the purpdse of committing dacoity is an element of section 402. Such an
element plus something more together constitute an element of section 399 Penal Code that is, "a
preparation to commit dacoity". Thus when there is preparation for committing dacoity section 399
Penal Code ig attracted and in such case conviction of the accused both under sections 402 and 399
Penal Code would be improper and illegal. 22 DLB 723.
(3) Ordinarily preparation for an 'offence is not per se indictable. The present section is one of the
few exceptions to the general rule. (1980) 49 CufLT 222.
(4) Dacoity has been regarded as an offence so intrinsically dangerous that, the Legislature has
thought it necessary in dealing with it to override the distinction ordinarily drawn between "attempt"
and "preparation". Thus not only is assembling for the purpose of committing dacoity made
punishable by Section 42, Penal Code, but in S. 399 a provision has been drafted in the broadest
possible terms rendering liable to serve punishment, "whoever makes any preparation for committing
dacoity. (1910) 11 CriLl 551.
2. Intention, preparation and attempt.—(l) There are three stages in doing an act. The first
stage is the intention to do it. The second stage is preparation for doing the act and third stage is the
direct movement towards the commission of the act. AIR 1958 Cal 25.
(2) It is not necessary for the prosecution to prove that the intention of the accused was to commit
dacoity in the house of a particular person of a particular village. AIR 1960 Pat 582.
(3) It , s not necessary for any injury to be caused to any particular person in order to attract the
provisions of'this section. A IR 1960 Punj 482.
(4) ,No overt act by the accused is necessary. It is sufficient if some act to get ready for dacoity is
done. Al]? 1959A11 727. .
(5) It is not necessary to prove what exact part was played by each member in such preparation.
A IR 1916Lah334. .'
(6) AlthOugh the charge framed under section 399 of the Code is patently defective, there are
sufficient materials on record to justify the conviction of accused under section 399, he being a
member of the assembly consisting of 8/9 persons. Karam A li Vs State (Criminal) 54 DLR 378.
(7y Grave Offence—Dacoity—Bail—Article 2(4) of P.O. No. 50 of 1972 relates to offences of
robbery or dacoity already committed and not to offence that is yet to be committed for which there
was only a preparation and assembly—offences alleged do not fall within the mischief of Art. 2(4) (g)
of P.O. No. 50 of 1972—Article 10 of the P.O. which prohibits bail can have no application. The
Plate Vs. Md. Khurshed A lam. 1 BSCD 245.
(8) Conviction and sentence U/s. 399, PC—Prosecution proved confessional statements of the
petitioners—The confessional statements were recorded by a competent Magistrate of the first Class
who recorded the statements after observing all formalities and proved the same—The High Court
found the confessional statements true and voluntary—The High Court Division upheld the conviction
on the basis of the judicial confessions which though retracted were found true and voluntary—It is
Sec. 399 Of Offences against Property 1181

well settled that as against the maker himself, his confession judicial or extra-judicial .whether retracted
or not, can validly form the sole basis of his conviction, if the Court is satisfied and believes that it is
true and voluntary. MUanur Rahiman and ors. Vs. The State. S BSCD 46.
(9) Offence of preparation to commit dacoity—Though there is express provision for offence of
preparation to commit dacoity, there is no provision in the Penal Code as to offence of preparation by
persons below 5 in number to commit robbery. The Penal Code has been suggested to be amended to
this direction. Karam All Vs. the State 7 MLR (7-IC) 79.
3. "Whoever".—(l) A dacoity can be committed only by five or more persons acting conjointly..
But apreparation for dacoity can be made by any one of them. It is not necessary that the intention of
the person who makes the pre3kration should be shared by the others. A IR 1958 Cal 25.
(2) It is not necessary that they should all make preparation for dacoity. AIR 1952 Puny 249.
4. Five or more persons assembling for dacoity.—(l) The assembling of five or more persons
for the purpose of committing dacoity is not "preparation" for committing dacoity as envisaged by the
section, inasmuch as such assembling is separately punishable under Section 402. Otherwise there will
be redundancy, MR 1955 A T UC (All) '1989.
• (2) The offence under S. 402 and the one under . S. 399 would probably involve similar
ingredients, but the difference between the two is that while under S. 402 a mere assembling without
Other preparation is enough, S. 399 is attracted when some additional step is taken in the course of the
preparation. AIR 1960 Puny 482.
(3) After assembling for the purpose of committing a dacoity and proceeding to 'a certain distance
on their way to the destination it is possible that the idea is abandoned or the process is interrupted.
When once the destination is reached, or almost reached, preparation becomes complete and till then
there would be mere "assembling". AIR 1954 Kutch,].
5. Charge and conviction.—(I) A peron charged under this section and S. 402 can be convicted
under Secs. 147 and 148. AIR 1962A11 13.
. Evidence and proof.—( 1) On a charge for an offence under this section, the prosecution must
show that there were persons who had conceived the design of committing dacoity. Once the existence
of such a conspiracy has been established, any step taken with the. intention and for the purpose of
forwarding that design may justify the' Court in holding that there has been "preparation" within the
meaning of the section. AIR 1949 East Puny 340.
(2) Where there is no evidence of intention to commit dacoity, a conviction under this section
cannot be sustained. AIR 1956 All 464. .
(3) The facts that the accused persons were found concealed, or were found attempting to conceal
their identity, with the additional factor that they were armed with weapons and torches which they
used on their pursurs or captors, were held sufficient to find the accused guilty of an offence under
this section. A IR 1935 Oudh 471.
(4) The facts that the accused persons assembled from different villages in a lonely place at an odd
hour, armed with weapons of attack and defence, without any explanation for so assembling, are
circumstances which have been held to be sufficient to convict the accused of an offence under this
section. A IR 1955 NUC (Pat) 4903.
(5) The accused who came from different places and had no apparent connection between' them,
were caught by the police travelling, together in a tonga hired for taking them to village H close to
1182 Penal Code Sec. 399
village P and the tonga had to await their return at H. They were found in possession of electric torches
and illicit firearms and resisted their capture by the Police. Earlier two of them were found loitering
about a house in village P and when questioned slunk away without giving any reply. There was no
explanation from any one of them regarding their travelling together in a tonga with firearms. On the
above facts, it was held that the accused were rightly convicted under S. 402 and this section. AIR
1959 All 727.
(6) Where the evidence of a person shows that he is an accomplice, then it must be corroborated in
material partiàulars against each accused before it can be accepted. AIR 1928 Lah 193.
(7) Some of persons proceeding to commit dacoity during night arrested—Identification evidence
unsatisfactory—Absence of other evidence—Conviction cannot be sustained. AIR 1953 A 11LJ 453.
7. Sentence.--(I) Making preparations for committing dacoity and assembling for the purpose of
committing dacoity when'done at different times and different occasions are distinct offences and though
separate sentences can be awarded, the practice is to award concurrent sentences. AIR 1925 Lah 119.
(2) Accused being an old man of 70 years sentence was reduced to period already served. AIR 1980
SC 1631. .
(3) Accused convi&ed under Section 399/402 P.C. were young men and students—They were not
previous convicts—Offence under S. 399 not punishable with death or imprisonment for life—
Supreme Court released the accused on probation. AIR 1979 SC 1690.
(4) Where the accused persons convicted under Ss. 399 and 402 had no previous conviction and
were quite young by age—Held there was scope for reduction of their sentences to three years' rigorous
imprisonment for each under Sections 399 and 402. AIR 1959411 559.
8. Acquittal under this section—Effect.--(1) An acquittal for an offence under this section is no
bar to a subsequent trial on the same facts for the collecting of men to wage war against the
Government (Section 122) when authority under S. 190. Criminal P. C., for the prosecution under
Chap. IV, Penal Code had not been accorded at the time . of the first trial. (1900-1902) 1 LowBur
Ru! 340.
9. Accused having explosive substance at time of preparation—Sanction for prosecution.—
(1) Where on a complaint under this section, the facts disclosed that the accused was having bombs in
his possession at the time of preparation for dacoity, it was held that sanction under S. 4 (b) of the
Explosive Substances Act was necessary for the prosecution. (1912) 13 CKLJ 433 (Cal).
10. Practice.—Evidence—Prove: (I) That the act of the accused amounted to preparation.
(2) That it was preparation to commit dacoity.
11. Procedure.—Cognizable—Warrant—Not bailable—Not compoundable—Triable by the Court
of Sessions.
12. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
- That you, on or about the—day of—, at—, made preparation to commit—, for committing
dacoity, and thereby committed an offence punishable under section 399 of the Penal Code and within
my cognizance.
And I hereby direct that you be tried by this court on the said charge.
Sec. 400 Of Offences against Property 1183

Section 400
400. Punishment for belonging to gang of dacoits.—Whoever, at any time after
the passing of this Act, shall belong to a gang of persons associated for the purpose of
habitually committing dacoity, shall be punished with 6 [imprisonment] for life, or
with rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
Cases and Materials : Synopsis
1. Scope of the Section. 7. Evidence and proof.
2. "Associated". 8. Sentence.
3. "Gang of persons". 9. Procedure
4. "Habitually". 10. Practice.
5. "Belong". 11. Charge.
6. Charge and conviction.
1. Scope of the section.—(1) The offence is of a very special character. The word "belong"
implies something more than the idea of casual association: it involves the notion of continuity and
indicates a more or less intimation with a body of persons extending over a period of time sufficiently
long to warrant the inference that the person affected had identified himself with a band, the common
purpose of which is the habitual commission of dacoity (22 CrLf 663, 29 CrLf 705). The sense of the
word 'gang' in this section is that the persons should act in concert and therefore two or more persons
can constitute a gang. Their purpose of habitually committing dacoity may be proved by their.
declaration or by their conduct. The word 'belong' in this section implies something more than the
idea of casual association. This word involves the notion of continuity rather than of permanency and
suggests that the connection should be of such a long duration as to reasonably warrant an inference
that the accused persons had identified themselves as members of a gang. It is not sufficient to make a
person member of a' gang if he is shown only to have participated in one or two isolated dacoities.
Prosecution must prove that the accused belonged to a gang which was consciously associated for the
purpose of habitually committing dacoities (9 CtLJ 597). For proving a charge under. this section it
must be established: (a) that there was a gang associated for the purpose of habitually committing
dacoities and (b) that the accused belonged to the gang, that is to say, the association of the accused
with the gang was not casual but was intended to be habitual. One of the chief points to be established
in case of gang dacoity is association in the crime and if it can be proved that the accused and other
persons had joined together to commit dacoits, the former fact would be strong evidence of criminal
association and would be relevant to show that they were members of the gang. Persons merely.
assisting and sheltering the dacoits and associated with. them for friendship sake, who join them in
drinking, or meeting them at fairs, though they run the risk of being punished, could not be said to
belong to a gang. The association and purpose may be proved by direct evidence or from fact
established (9 CrLJ 567). It is not necessary for participation of any member even in a single dacoity.
(AIR 1956 Orissa 177).
(2) Ingredients of an offence to be established under section 400. In order to establish the guilt of
an accused under section 400 for belonging to a gang of persons, it is not incumbent upon the
prosecution to show that a particular accused who belOngs to such a gang did' actually take part in any
one or more of the dacoities concerned. The participation of an accused in dacoity is evidence showing
1184 Penal Code Sec. 400

his connection with the gang and establishing his object for such connection. Nur A li Gazi Vs. State
(1961) 13 DLR 740.
(3) Conviction not safe, when participation in dacoity not proved—Association for commission of
the offence must spread over a long time. Nur Ali Gazi Vs. State (1961) 13 DLR 740.
(4) Gist of the offence under the section—Quantum of evidence for proving the offence Section
400 Penal Code creates an offence of a very special character. The gist of the offence appears to be
association for the habitual commission of dacoity. The offence thus lies in the agreement habitually to
commit dacoity. It is not necessary that the evidence should be of the same quality as would be
required to establish the commission of the dacoity itself. Even if the evidence on the record is such as
would have justified a trial upon a specific charge of dacoity the mere fact that there was no such
charge or trial would not make that evidence- inadmissible or unreliable in a case under section .400 of
the P. Code. Ramzan A li Vs. The State, (1968) 20 DLR (SC) 49.
• (5) Proof of association and the purpose of association, by direct evidence or by establishing the
circumstance. Ramzan Ali Vs. The State, (1968) 20 DLR (SC) 49.
- (6) The association and the purpose of the association may be proved either by direct evidence to
the effect that the accused, or the accused and others, met and resolved to join together for the purpose
of habitually committing. dacoity or, in the absence of such direct evidence it may even be established
by proof of facts from which the association may reasonably be inferred. The evidence of the first kind,
namely, direct evidence can come from a participant or an associate alone. Therefore the general
practice in such cases is to get this direct evidence through the mouths of accomplices who are made
approvers by the tender of pardon, though the practice of the Courts in this Sub-Contineni has been so
consistent as to harden into a rule of law that the evidence of an accomplice, unless corroborated in
material partfculars by independent evidence, is not relied upon. Ramzan A u V. The State, (1968) 20
DLR (SC) 49. .
(7) Corroboration of the evidence of association in respect of offence under section 400 P.C.-
Nature of association to be established. In order to provide corroboration to the approver's evidence the
practice has grown up, in such cases, to lead evidence of, what has been called, association; general and
specific et seqq. Such evidence of association cannot, by its very nature, be of a very precise or definite
character and it is, therefore, essential to bear in mind that it may not always be safe to rely upon the
ipse dixit of a witness of this kind unless heis of such a reliable character that neither his veracity nor
his memory can be doubted or that his identification of the person or persons so seen by him is of
such a nature that it can be implicitly relied upon. the circumstances which may normally be regarded
as sufficient for furnishing such confirmation might well be-
(i) That the witness had contemporaneously reported this fact to somebody else;
(ii) That other witnesses also support the testimony;
(iii) That in the information, if any, lodged with regard to dacoity the person or persons named
by the witness have been shown as accused persons;
(iv) That the person so named was, in fact, arrested or challenged in that dacoity; and
(v) That some article looted in that dacoity was actually recovered from the person named or at
his instance.
Evidence of such a nature must be scrutinized with care and caution in order to eliminate all
chances of false implication or even an honest mistake. Ramzan A li Vs. The State, (1968) 20 DLR
(SC) 49. . . ..
1186 Penal Code Sec. 400
3. "Gang of persons".—(l) The expression in this section means a band of persons acting or
going about together for a criminal purpose. In this section the purpose is habitually committing
dacoity. A iR 1927 Lah 527
(2) The marginal note should not be considered in interpreting the section and even 2 persons may
constitute a gang. A IR 1963 A ndh Pra 314.
(3) Having regard to the ordinary meaning of the word and to the rule of interpretation of Statutes
that where there is ambiguity in the language used in the body of the section, the marginal notes may
be taken into consideration. AIR 1959 SC 586 (589). . .
• ., 4. "Ilabitually".—( 1) The habit could be proved by an aggregate of acts. (1910) 11 CriIJ 364.
(2) An accused though he may be guilty of an offence under S. 216A, yet, may not be guilty of an
offence under this section, unless it is established that his associatfon with the rest was for the purpose
of habitually committing dacoity. A IR 1956 Orisssa 177; ..
(3) The evidence that the accused habitually commits theft (as distinguished from dacoity) is not
sufficient: AIR 1923 Born 71. . . .
5. "Belong".—(I). The word 'belong' in this section involves the notion of continuity and
indicates more or less intimate connection with a body of persons extending over a period sufficiently
tong to warrant the inference that the .person affected has identified himself with the band, the common
purpose of which is .the habitual commission of dacity. A IR 193 A ndhPra 314.. . . .
(2) A mere receiver of stolen property or a mere harbourer of a gang of dacoits cannot be said to
belong to such a gang. But a habitual harbourer of a gang of dacoits, knowing them to be habitually
committing dacoity may in some circumstances be held to belong to that gang. Tht question will
depend upon all the proved facts and .circumstarfces of the case. AIR 1956 Orissa 177.
6.; Charge and conviction.—(l) Where a single charge under this section only is framed against
all the accused alleged to be concerned in several dacoities, the fact that the prosecution case of
conspiracy between them has failed, does not affect the legality of the joint trial for different dacoities
when no prejudice has been caused to the accused persons, as the case may fall under S. 221, Criminal
P.C. A IR ]963.A ndhPra3]4 . . ..
7. Evidepe and proof.—(1) The association and purpose of association may be proved by direct
evidence or by proof of facts from which they can reasonably be inferred. Evidence that accused persons
or groups 45f them had been concerned in a large number of dacoities within a comparatively short
space of time, may be sufficient evidence of such association. 1974 Cu1LR (Cri) 19.
(2) If on the evidence, it is established that a number of persons had participated in: dacoities
Within a short period, it could be inferred that they formed themselves into an association for
habitually committing dacoities. A IR 1966 A ndhPra 344. .
(3) It. is also necessary to establish the identity of the gaig concerned in the dacoities, when
admittedly there had been other gangs operating in the area. A IR 163 A ndhPra 314. .
(4) When people of bad antecedents are proved to have been kept in jail for several months and
when subsequent to their release'they are proved to have participated jointly. in several dacoities, it will
be reasonable to infer that they operated as a gang engaged in habitually committing dacoities. AIR
1956 Orissa 177. . .
(5) Where the only material evidence in respect of the accused charged under this section is a
judgment whereunder they have been convicted under S. 411 of the Code, in respect of the occurrence,
Sec. 401 Of Offences against Property 1187
the judgment is inadmissible as evjence to prove: their, connection with the crime, when none of the
witnesses to the material facts are called again at the trial. AIR 1963 ' A ndhPra 314.
(6) Membership of the gang in regard to an individual accused person will depend upon the facts'
and circumstances of a case and not 'upon any arithmetical calculation with regard to a number of
dacoities in which an accused may be found to have taken part along with other members of the gang.
AIR 1961 Pat 260.
(7) Evidence which though not believed for the purpose of conviction under S 395 of the Code,
may yet be relied upon for the purpose of conviction under this section. A IR 1930 Qudh 455. H
(8) When persons are charged under this section the only direct . evidence that can be tendered is
that of accomplices. Other witnesses can testify to association on certain isolated occasion but the man
who gives the evidence of habitual association must inevitably be an accomplice. AIR 1924 La/i 235.
& Sentencé.—(1) An offence under this Section is more heinous than a case of simple dacoity
made punishable under S. 395. Therefore an accused found guilty under this section must be awarded a.
more severe sentence than that is normally inflicted in a case of ordinary dacoity. A IR 1961 Pat 260.
(2). The various factors to be taken into consideration in awarding the sentence are:
(i) How long has the accused belonged to the gang;
(ii) What dacoitiehave been committed by the gang since the accused joini it;
(iii) In how many of these dacoities did the accused actually take part;
(iv) What was the character of the dacoities in which . the accused actually took part. 1953
MadWN 933. .. .
9. Procedure.-.-----(1) The acquittal of an accused on a charge under this section cannot operate under
S. 300, Criminal P.C., as a bar to his being prosecuted again on a charge under S. 395 of the Code for
committing one of the dacoities in respect of which evidence was given in a previous trial under this
section. (1899) 1 BomRL 15. . .
(2) Though the headquarters of the gang be District X, if some of the dacoities are committed in
District Y, the trial in the Sessions Division of District Y is competent. A IR 1961 Pat 260.
(3). When allegations are made against an accused person which would bring his acts within the
ambit of this section, it is not proper to proceed, against him under the preventive sections of Criminal
P. C. (like S. 110, Criminal P. C.) instead of trying him for an offence under this section. A IR 1925
All 250. . ' . .. . . . .
(4) Congnizable—Warrant---Not bailable—Not compoundable—Triable by the Court of sessions.
10.Practice.—Evidence—Prove: (1) That the accused belonged tb the gang in question.
(2) That such gang was associated for the purpose of habitually committing dacoity.
11. Charge.—The charge 'should run as follows:
I (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, belonged to a: gang of persons, associated for the
purpose of habitually committing dacoity, and thereby committing an offence punishable under section
400 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge

Section 401
401. Punishment fOr belonging to gang of thieves.—Whoever, at any time.;
"after the passing "of this Act, shall belong to any wandei-ihg. or other gang of persons'
1188 Penal Code Sec. 401

associated for the purpose of habitually committing theft or robbery, and not being a
gang , of thugs or dacoits, shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to fine.
Cases and Materials : Synopsis
• . 1. scope of the section. 7. Evidence.
2. "Associated." 8. Onus of proof
3. "Gang," 9. Procedure.
4. Belong .10 a.gang. 10. Sentence.
S. Purpose of association. IL Practice.
6. "Habitually." 12. charge.
1. : Scope of the section.—(1) This section provides punishment for a person belonging to a gang
of thieves. The word 'belong' connotes something more than casual association, It iiv'olves a notion of
continuity over' a period of time sufficiently long to absorb the tenets of the gang whose purpose is the
habitual commission of dacoity. For conviction under this section it is necessary to prove that: (a) A
gang of person existed; .(b) The persons joined together to commit theft or robbery; (c) Robbery or
theft was to be habitually committed; (d) The accused belongs to such a gang. When a gang is once
established all persons joining the gang in some theft, generally become members of the gang, but
this rule is not without exception. A prosecution under this section is of a peculiar nature deferring
from an ordinary case in the number of accused involved and the extent of time covered by their
operations. Aggregate of acts will prove the habit. It is not necessary to prove that each individual L
member of the gang has habitually committed theft or has committed any particular theft in company
:wit h other members. Evidence of the commission of several thefts, of meeting together at different
places, before and after the commission of thefts and burglaries in bazars, boats and houses, of being
seen on various occasions carrying away stolen articles or found in company under circumstances
suggesting complIcity in theft and burglaries, and evidence of systematic thefts of cattle by individual
accused are sufficient to support a conviction under this section (27 CrLJ 807). Gang of thugs or
dacoits are excluded from this section as they are already covered by section 311 and 400, while this
section covers gangs Of thieves and robbers. No unfavourable presumption should be drawn against
persons associating with the members of a gang at fairs, weedings and liquor shops (17 CrLf 443).
(2) The essential ingredients of the offence under this section are:
(i) That there should be in existence a gang of persons;
(ii) That such gang should be associated for the purpose of habitually committing theft or robbery.
(iii) That the accused should belong to that gang. (1972) 38 Cut LT 683.
(3) Where once such agang as fulfils the ingredients is proved to exist, all persons 'joining' it in
one or more cases of theft or robbery will come within this section. A IR 1914 Lah 539.
(4) This section no doubt has excellent objects and uses but it ought not to be resorted to where
the persons sought to be brought within its, four corners might have been made responsibl ,e for distinct
and individual offences; nor is it intended to affect them, unless an association for the habitual
commission' of theft or robbery is clearly made out; 1886 AI1W N 16.
2. "Associated".—(1) For a conviction there must be proof that there was association and that
/ such association was for the purpose of habitual theft or robbery. (1912) 13 CriLl 799. '.
See. 401 Of Offences against Property 1189

(2) The fact that many persons out of a wandering tribe were dishonest and committed thefts is not
sufficient to show that they combined for habitually committing thefts. Wives and children staying
with the adult members of the gang cannot be said to be associated with them within the meaning of
this section. (1911) 12 GriLl 204 (A l).
3. "Gang".—(l) The term 'gang' is well known and where a person is said to belong to X's gang
it means that the gang was organised by X, he (X) being also a member of that gang. AIR 1. 953 Pepsu.
145.
(2) Where a gang is once established, persons joining the gang knowing its purpose will become
members of the gang. There. may, however, be exceptions. Thus a person taking part in a theft with
some members of the gang is -not necessarily its member. A IR 1916 Lah 447.
4. "Belong to a gang".—( 1) A mere receiver -Of property stolen by the members' of a gang cannot
be said to 'belong' to that gang. A IR 1932 Lah 486.
(2) The word 'belong' implies something more than casual association. It would not be sufficient
for the prosecution merely to rely upon the fact that the accused person had associated himself with the
gang in the commission of only bne offence. A IR 1960 Guj 5.
(3) It is necessary to show that the accused knew the existence of the gang and joined it for the
purpose of committing theft or robbery. A IR 1916•Lah 447.
5. Purpose of association.—.---(l) The purpose of the association must be that of habitually
committing theft or robbery. Such purpose is usually not a matter of direct proof by direct evidence
but is generally a matter of inference from the facts and circumstances proved and the acts done by the
accused. A IR 1960 Guj 5.
(2). An association with a gang for the purpose of committing offences other than theft or robbery
is not covered by this section. A IR 1920 Cal 87. .
(3) Where there is no proof that the association of the accused with the gang was for the purposes
mentioned. in this section the accused cannot be found guilty under this section. A IR 1916 Lah 447.
6. "Habitually".-.-( 1) Habit is a fact in issue to be proved for the purpose of establishment of the
ingredients of the offence referred to in Note 1(2). Habit is equivalent tocharacter and therefore it may
be reasonably said that the character of the accused is itself a fact in issue for proving a charge under
this section. (1972) 38 CutLT 683. - - - -.
(2)Habit should be proved by the aggregate of acts. A IR 1920 Cal 87.
(3) It is not necessary to prove that each individual member of the gang has habitually committed.
theft. A IR 1923 Lah-666. . . .
• -. 7. Evidence.—(l) Evidence that .each individual Of a party is a convicted theft is relevant for
determining if the party constitutes a gang of persons associated for the purpose of habitual theft. It can
- be tendered before or after the association has been established by the prosecution. (1912) 13 CriLJ 539.
(2) To prove an association, evidence that certain persons of the gang were seen -hear the scene of -
house-breaking before or after the event, is a relevant fact A IR 1937 Nag IT - - -.
(3) Actual participation by the accused in any theft 'or robbery is evidence, both of his association
with the gang and of his object in such association. A IR 109 Oudh 321.
• - (4) An old conviction of the accused for dacOity is admissible not for proving his habit Of
committing theft but only for proving his criminal tendency to commit theft. A IR 1925 Born 195.
1190 Penal Code Sec. 401

(5) As association for the purpose of habitually committing theft or robbery,is a particular trait of
bad character in issue, in a case under this' section, evidence of this trait is admissible and not of the
'geieral bad character of the accused. AIR 1960 Guf 5.
(6) Evidence of association before the period of charge is admissible to corroborate the evidence of
association during the period. AIR 1938 Mad 858.
(7) Previous conviction for theft and previous proceedings under S. 110, Criminal P. C., are
admissible for proving habit and not of general bad character under S. 14, Evidence Act and so they are
not excluded by S. 54 of that Act. AIR 1930 Sind 211.
(8) Previous convictions and previous proceedings under S. 110, Cr. P. C. may be adduóed and
considered against the accused, both prior and subsequent to the year when the gang was 'first formed.
A IR 1914
. Lah545.
8. Onus of proof,--(I) The evidence that a panchayat enquired into a theft and called a person
before it as a suspect, or that a person accepted money-and agreed to make a search for stolen property
and to restore it to the owner does not as-against that person prove any of the ingredients of the offence
punishable under Section 401. AIR 1926 Lah 439. , .
9. Procedure.—(1) The difference between this section and S. 110, Criminal P. C., is that the -
former is punitive, while the latter is preventive. A IR 1947 Oudh 86 - -
(2) The prosecution can proceed against certain persons either under this section or under S. 110, -
- Criminal P. C., and in the latter case it cannot be objected that a substantive- charge should have been
laid against them. A IR 1933 Oudh 251.
(3) Joint trial of different sets of persons under this S. and S. 413, is illegal. AIR 1932 Lah 486.
(4) The offence of belonging to -a gang of thieves and that of receiving stolen property from the
gang are separate transactions and as an offence under this section- cannot be said to include theft, thee
charges being of distinct offences, separate trials must be held. AIR 1925 Lah 537.
(5) Where two sessions cases are started against persons of a gang, they can be combined when all -
the accused constitute one gang. AIR 1938 Mad .858.
(6) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Metropolitan Magistrate
or Magistrate of the first class. -- . - - -
(7) Conviction under this section cannot be bad in law merely because- evidence on record would
also have justified a conviction for a specific offence u/s. 379 or 392 of the Code. AIR 1929 Oudh 321.
- - 10. Sentence.—(l) It is not equitable to give separate sentences under this section and S. 457 of
the Code where the main evidence for establishing membership consists of the fact that the accused -
• took part or received some of the proceeds of the burglaries of his gang. AIR 1932 Lah'298.
(2) Sentences for offences under this section, Ss. 411 and 457 of the Code on the same day, but in -
different trials can be ordered to run concurrently. A IR 1926 Nag 426
(3) While -assessing sentence under this section, the Magistrate can take into consideration
previous convictions and orders under S. 110. Criminal P. C., even when S. 75 of the Code does not -
-apply. A IR I93O Sind 2JJ.
• 11. Practice.—Evidence—Prove: (1) That there existed a gang of person.
(2) That those persons were associated for the purpose of committing theft or robbery.
• - - (3) That theft or robbery was to be committed habitually. - - •--
(4) That the accused was member of such gang.
Sec; 402 Of Offences against Property •1191
12. Charge.—The charge should runas follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as f011ows:
That you, on or about—the day—of at—belonged to a gang of persons associated for the purpose
of habitually committing theft (or robbery), and that you thereby committing an offence punishable
undr section 401 of the Penal Code and within my cognizance..
And, I hereby direct that you be tried by this Court on the said charge.

Section 402 ..
402. Assembling for purpose of com mitting dacoity—Whoever, at any time
after the passing of this Act, shall be one of..five or more.persons assembled for the
purpose of committing.dacoity, shall be . unished with rigorous imprisonment for a
term which may extend to seven years, and shall also be liable to fine.
-. Cases and Materials : Synopsis
1. . Scope and applicability. - . V .4. Identification of the accused.
2. This section and sectio,r 399. , . 5. Procedure and .punish,nent. .
3. Proof of intention or purpose of the 6. Practice.
assembly. . . 7. Charge. .
1. Scope and applicability.---(I) This section contemplates stage when whole project still lies in
the realm of design and intention without any attempt having yet been made to give it a concrete
• shape. In certain circumstances assembly itself may amount to a preparation, for example when five or
• more persons; after having planned a dacoity and after ba y ing collected the necessary arms and
implements agree to assemble at a forsaken temple in a jungle in order to proceed . therefrom to the
place of raid and in pursuance of that agreement do in fact assemble there. Assembly in such a case•
would not be an assembly as contemplated by section 402, but would be an act of preparation. The
offence under this section is complete as soon as five or more persons assemble together for the
purpose of committing a dacoity. Though an offence under section 399 and 402 would involve sinjilar,
ingredients, the difference between the two is that while under section 402 mere assembly without,
other preparation is enough, section 399 is attracted when some additional step is taken in the course
• of preparation. Preparation consists in devising or arranging means necessary for the commissiôn.ofan.
offence. An attempt is direct movement towards the commission after preparation is made.: The
intention or 'agreement to commit dacoity must be proved before members of an assembly cn be
punished under section 402. The only evidence that may be available for the offence under this section
is the evidence of conduct and circumstances from which the court may justifiably infer the existence
of an intention to commit dacoity. On receiving information that some persons were going to assemble
for the purpose of committing a dacoity, a police party went to grove. When darkness set in, number•
of persons came to the grove armed with guns. Four of them were caught and articles recovered from
them were a gun, some gunshots and.gun powder, a dagger, electric torch and sticks. It was held that
having regard to the circumstances which led the police party to come to the grove and in view of the
articles recovered from the possession of the accused there was hardly any room for doubt that' the
purpose of the assembly was to commit dacoity. (A IR 1950 A ll 93). '.
(2) "Assembly" for the purpose of committing dacoity is an element of section . 402. Such an
element plus something more together constitute an element of section 399 Penal Code, that is, "a
1192 Penal Code Sec. 402

preparation to commit dacoity". Thus when there is preparation for committing dacoity section 399
Penal Code is attracted and in such ease conviction of the accused both under section 402 and 399
Penal Code would be improper and illegal. 22 DLR 723.
(3) Under the English law the agreement or combination to do an unlawful thing or to do a lawful
thing by unlawful means amounts in itself to an offence. The Code follows the English law in this
section. (1901) ILR 24 Mad 523.
(4) This section applies to the mere assembly of persons to commit dacoity withoUt any further
proof of any preparation or attempt. What it contemplates is a stage when the project still lies in the.
realm of design and intention without any attempt having yet been made to give it a concrete shape.
A IR 1958 Cal 25.
(5) The essential ingredients of the offence under this section are:
(a) an assembly of five or more persons;
(b) their purpose being the committing Of dacoity; and
(c) the accused was one of the five or more persons so assembled. AIR 1979 SC 1412.
2. This section and Section 399.—(1) Though the offence falling under the two Ss. 399 and 402
• would probably involve similar ingredients, the only difference between the two is that while under
• this section mere assembly without preparation is enough, S. 399 is attracted only when some
additional step is taken by way of preparation. (1%2) 26 CutLT 571.
(2) The mere act of assembling is not to be deemed to be a preparation for commission of dacoity.
made punishable under S. 399. AIR 1956 All 464.
3. Proof of intention or purpose of the assembly.—fl) It is often difficult to get direct evidence
of the pUrpose of the assembly. The purpose can be gathered only from the circumstances of the case
and the nature of the articles recovered frOm the possession of the accused (1975) 41 GuiLT 768.
(2) Presumption arising from the ckcumstances is a rebuttable one and it is open to such persons
to show that they had assembled there for a lawful purpose. But in the absence of any such evidence a
conviction under this section would be quite proper. AIR 1959 All 727.
(3) The proper test would be whether the circumstances sought to be relied upon are consistent
with the one and only purpose or intention set out in the charge. If the facts and circumstnces..are
susceptible of two interpretations, one in favour of the prosecution and the other in support of the
• defence version, then the benefit of doubt will have to go to the accused. AIR 1.962 All 13.
• (4) The prosecution need only prove that the accused are members of the assembly and not what
exact part was played by each one of them. AIR 1916 Lah 334.
(5) The mere fact that the accused were found at 1 A.M. does not by itself prove that they had
come there for the purpose of committing dacoity or for making preparation for the same. They could
be there for the purpose of committing murder or any other offence. AIR 1979 SC 1412.
(6) Accused persons alleged to have been arrested by police party while preparing for committing
dacoity—Firing from both sides alleged but no one receiving injuries—Investigating officer not finding
signs of any encounter on the spot—General Diary entries not exhibited to afford corroboration to
statements of police officers—Public witness produced not an indepen4 ent witness—Discrepancies in
the statement of witnesses_i_Conviction of accused u/s. 402 cannot be sustained. (1983) ]Crimes 821(AIl).
• (7) Accused persons assembling in Nala in the night and planning to commit dacoity—Police.
party surrounding and arresting them—countrymade pistols, pharsas, recovered from accused persons-
Sec. 402 Of Offences against Property 1193

Word 'dacóity' in the conversation of the accused alleged to have been heard by witnesses i.e. station
officer and other police officers but there was no mention in F.1.R.—All circumstances lead to
conclusion that accused had assembled there for committing dacbity and did make preparations for
committing dacoity. 1984 AllCriRul 31. -
• (8) Conviction under Ss. 399, 402—Telegram sent by wife of accused complaining about his
arrest showing arrest of accused prior to the time of occurrence—Accused alleged to have arrested
before witness but no witness produced—Prosecution case against accused cannot be true—Accused
given benefit of doubt and acquitted. 1983 UP (Cr12 Rul 259 (All).
4. Identification of the accused.—(1) The absence of identification proceedings is fatal to the
Prosecution case.. 1965 A1IWR (HC) 519.
(2) Proof of identification held not satisfactory as the identification witness had seen accused only
in dim light. 1979 AIZCr1R 390. . ..
5. Procedure and punishment.—(1) Where the accused are charged under this.section but are
convicted under Ss. 147 and 148 such a conviction cannot be said to have prejudiced them since a
charge under this section fully covers the ingredients of Ss. 147 and 148. AIR 1962 All 13.
(2) Sections 399 and 402 envisage separate offences and provide for different punishments for
these offences. Consequently, the offence under S. 399 never completely merges in the offence under
this section and separate sentences can be passed for each of the offences proved. But where nothing
more than mere assembling is proved, a simultaneous conviction and sentence under the two sections
cannot be maintained. AIR 1955 NUC (All) 1989.
(3) When five or more persons assemble for the purpose of committing dacoity, each of them is
punishable under this section merely on the ground of joining the assembly. A IR 1960 Pat 582.
(4) Where the offence was not attended with violence a leijient sentence should be passed. 1968
CriLJ 982 (All).
(5) Where the accused were quite young and there was no previous conviction against them, it was
• held that a lenient sentence was justifiable. AIR 1959 All 559.
(6) Where the accused was an old man of 70 years, the sentence was reduced to period already
served. AIR 1980 SC 1631. • .
(7) Conviction u/ss. 402/399—Accused young student not previously convicted—Offence being
not punishable with death or life imprisonment accused was released on probation. A IR 1979 sc 1690.
(8) Cognizable—Warrant—Not bailable—Not compoundable—Triable by Metropolitan Magistrate
or Magistrate of the first class. • . . -.
6. Practice.—Evidence—Prove: (1) That five or more persons were assembled.
(2) That they were assembled for the purpose of committing dacoity.
(3) That the accused was one of such persons.
7. Charge—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name ofthe accused) as follows:
That you, on or about—the day of—at—were one of five (or more) persons assembled for the
purpose of committing dacoity, and that you thereby committed an offence punishable under section
402° of the Penal Code and within my cognizance. • •. ••.
Un
And I hereby direct that you be tried by this court on the said charge. .
1194 Penal Code SOC. 403

Of Criminal Misappropriation of Property

Section 403
403. Dishonest misappropriation of property.—Whoever dishonestly
misappropriates or converts to his own use any moveable property, shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine, or with bath.
Illustrations
(a) A takes property belonging to Z out of Z'i'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 A , after discovering his mistake, dishonestly appropriates the property to his own use,
he is guilty of an offence under this section.
(b) A , being bn friendly. terms with Z, goes into Z's library in Z's absence, and takes
away a book without Z's express consent. Here, if A was under the impression that he had
Z's implied consent, to take the book for the purpose of reading it, A has not committed
theft. But . [A aftervards sells the book for his own benefit, he is guilty of an offence under
this section. !
(c) 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 . .— A dishoTiest misappropriation for a time only is a misappropria-
tion within the meaning of this section.
Illustration
A finds a Government promissory note belonging to Z bearing a. blank endorsement.
A knowing that the note belongs to Z pledges it with a' banker as a security for a
loan, intending at a future time to restore it to Z A has committed an offence under
this section.
Explanation 2.— 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 of restoring it
to, the owner, does not take or misappropriate it dishonesly, 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
[for] 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
Sec. 403 Of Offences against Property 1195

appropriating it, he does not believe it to be his own'Property, or in good faith

believes that the real owner cannot be found.
Illustrations
('a) A finds a 5 [takä]. on the high-road, not knowing to whom the 5[taka] belongs. A
picks up the 5 ltakaj. Here A has not committed the offence defined in this section.
(b) A finds a letter on the road, containing a bank note. From the direction and
contents of the letter he learns to whom the note belongs. He appropriates the note. He is
guilty of an offence under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person
who has lost the cheque. But th name of the person, who has drawn the cheque,.
appears. A knows, that this person can direct him to the person on whose favour the
cheque was drawn. A appropriates the cheque 'without attempting to discover the owner.
He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of
restoring it to Z, bIit afterwards appropriates it to his own use. A has committed an
offence under this section. 0

(e) A finds a purse with money, not knowing to whom it belongs; he afterwards
discovers that it belongs to Z and appropriates it to his own use. A is guilty of an offence
under this section.
69 A finds a valuable ring, not knowing to whom it belongs. A sells it immediately
without attempting to discover the owner. A is guilty of an offence under this section.
Cases and Materials : Synopsis
1. Scope of the section. , 12. Misappropriation, criminal breach of trust,
2. "Dishonestly " theft, cheating—Distinction.
3. "Misappropriates or converts to his 'own 13.. Misappropriation and other offences.
use' 14. Attempt and preparation.
4. "Any movable property' 15. Evidence and proof.
5. Explanation 1. 16.' Procedure.
6. Explanation 2. 17. Alteration of conviction.
7. Joint 'property. 18. Same facts constituting offence both under the
8. Partner. . Code and unde/ a special Act.
9. Principal and agent. 19. Civil liability.
10. Misappropriation by wife—L,iability of 20. Punishment.
husband. ' 21. Practice.
.11. Liability of corporate bodies. 22. Charge.
1. Scope of the section.—(1) The essence of the offence or criminal misappropriation is that the
property of another person comes into the possession of the accused in some neutral manner and is
misappropriated or converted to his own use by the accused. No entrustment is required for his offence
to be constituted. The mere possession of the property is not sufficient for producing the charge
without something to indicate the appropriation or conversion though long possession without any
attempt to find the owner may amount to evidence of intention to do so. All that is necessary for an
It
1196 Penal Code Sec. 403

offence under section 403 is that there should be misappropriation or conversion with the intention of
causing wrongful gain or wrongful loss. All that is required is that there should be an intention of
causing such gain of loss which would amount to dishonesty (35 CrL.J 982 FB). In the absence of any
overt act on the part of the accused on dishonest motive can be imputed to him. In order to constitute
an offence of criminal misappropriation, property must have come into the possession of the accused
innocently in the first instance (38 CrLJ 48). There must be something to prove dishonesty. Intention
has got to be proved. The illustrations (a), (b) and (c) show that the original innocent taking amounts
to criminal misappropriation by subsequent acts. Explanation (2) of this section makes the necessity of
some positive proof of this sort quite clear. Illustration (a) shows that the picking up of a Taka whose
owner is not known, is not an offence. Similarly illustration (c) shows that the finding of a purse with
• Taka belonging, to an unknown owner is not an offence, but the appropriations of it to the finder's own,
use is necessary to complete it (8 CrLf 250). The illustrations to section 403 relate to cases where a
person appropriates the articles to his own use. Morever, the word 'misappropriated' is in the 1.

explanation and illustration appended to the section replaced by the expression 'appropriate' to his own
use but the illustrations cannot be taken to limit or narrow the scope of section 403 itself.
Misappropriation is the wrongful setting apart of assinging of a sum of money to a purpose or use to
which it should not be lawfully assigned or set apart (41 CrLJ 824). The word "converts" means
appropriation and dealing with the property of another without right as if it is his own property. A
partner has undefined ownership along with the other partners over all the assets of the partnership. If
he chooses to use any of them for his own purpose he may be accountable civilly to the other partners.
But he does not thereby commit any misappropriation (A IR 1965 SC 1433). When a person retains or
appropriates the property in assertion of a bonafide claim bf right, though unfounded in law and fact,
he is not guilty of criminal misappropriation because there is no dishonest intention. Retention of
money or a sufficiently long period by a person who is bound under law to return it to another legally
entitled to it raises an inference of a temporary misappropriation within the meaning of this section. A
false denial ofa loan is not in itself a misappropriation at all, and may amount to not more than an
attempt to ev4de civil liability for the money lent. Attempt to evade civil liability does not necessarily
imply that the property lent has been misappropriated. The false denial of a loan is compatible with he
absence of criminal 'misappropriation, and no more constitutes that offence than possession of stolen
property constitutes theft or dishonest receipt. There cannot be any criminal misappropriation with
regard to immovable property. On a charge of criminal misappropriation it is sufficient for the
prosecution to establish that some of the money mentioned in the charge has been misappropriated by
the accused even though it may be uncertain what is the exact amount so misappropriated. Charge can
be made for gross sum provided that motive included between the first and last of such dates shall not
exceed one year. .
(2) Criminal Misappropriation, theft, cheating and criminat breach of trust. Difference— A n easy
method of differentiating between the offence of theft, cheating with delivery of property, criminal
misappropriation and criminal breach of trust is to find out whether the original taking was honest or
dishonest and whether it was with the consent of the owner or without it. In theft the original taking is
without honesty and without the consent of the owner, and in criminal breach of trust 1 it is with both.
In obtaining property by cheating, the taking is without honesty but with the consent of the owner and
in criminal misappropriation it is honest trust without the consent of the owner (AIR 1928 Nag 113).
(3) Temporary embezzlement of money is an offence under the section. The accused while 'entering
two subsequent collections dated 24.3.60 and 2.4.60 in the collection register did not enter in the
Sec. 403 . Of Offences against Property 1197
collection register the amount, of 456/8/11 collected on an earlier date, that is, 20-3-60. He, however,
entered the amount in register when the same was detected by his superior authority and he also
deposited the amount. The defence, plea was that due to forgetfulness the amount was not entered in the
collection register. Held: The amount of Rs. 456/8/11 was accounted for more than 6 months after the
collections which tends to prove temporary misappropriation. A bdul Khaled Mia Vs. State 16 DLR
(Dac) 342. .
(4) When both criminal case and civil suit maintainable—There is no illegality in the order of
revival of a case passed by the Additional District Magistrate in exercise of the powers of District
Magistrate. Civil suit for recovery of money misappropriated is competent side by side with a criminal
case started for the offence of criminal breach of trust and criminal misconduct. Md. Nazrul Islam Vs.
The State and another— I, MLR (1996) (A D) 409.
(5) Excess payment—When receipt of excess payment from bank becomes dishonest
misappropriation—At the time when the cashier was putting the money into the hands of the appellant
there is nothing to show that he was receiving it with the knowledge that he was being overpaid. But
the next moment when the appellant detected that there had been in excess payment it was his duty to
return the excess amount which did not belong to him—In consideration of the facts of the case the
accused appellant could not be convicted for theft but he could not escape a conviction for dishonest
misappropriation. 10 DLR 12:
(6) Charge of misappropriation of several items covering one year must be tried in one trial. 22
DLR 539. -
(7) This section makes it an offence to dishonestly misappropriate or convert to one's own use
movable property. A IR 1958 SC 56
(8) The law expects a Govt. servant to be honest in the discharge of his duties. Therefore
as compared to S. 403 ,, S. 409 provides severe punishment to public servants. 1981 UPLT
(NOC)53. .
2. "Dishonestly".—(l) All that is necessary for an offence under this section is that there, should
be misappropriation or conversion with the intention of causing wrongful gain or wrongful loss. It is
not necessary that loss or gain should have actually accrued. before the offence is completed. AIR 1934
All 499. .
(2) Dishonesty may be proved by positive evidence or may be presumed from the circumstances
but in no case can it be assumed as a matter of course. AIR 1956 Mys 40.
(3) The mixture of the funds of another with one's ' own may be natural and proper or it may be
convenient, but irregular or again it may be both irregular and criminal. The Court cannot conclude
that the offence of criminal misappropriation has been committed unless it be a just result of the
evidence that the accused had a guilty intention. (1914) 15 GriLl 305 (309) (PC).
(4) Certain bales of cloth which were in the custody of the railway were found to be unloaded near
the godown of the accused and were latter on recovered from that godown. It was held that these facts
were not sufficient to prove dishonest intention on the part of the accused. AIR 1961 Assam 132.
(5) The accused, a booking clerk, received various sums from motor drivers for deposit with the
cashier but failed to deposit the same. It was only several days after he was placed under suspension
that he handed over the sums to the cashier. It was held that conduct of the accused in ' retaining the
money for long, his failure to hand over the sums to the cashier when required to do so by the
1198 Penal Code - Sec. 403
Regional Manager, his abrupt departure without permission and without handing over charge of the
records and sums were clear indications of dishonesty. AIR 1959 HimPra 14.
3. "Misappropriates or converts to his own use".—(l) The word "misappropriates" and the.
expression "converts to his own use" do not mean the same thing, though they both connote that the
person who misappropriates or converts to his own use property is already lawfully or innocently in
possession of it. 1889 Pun Re (Cr) No. 36, page 136.
(2) The word "appropriate" means "to set apart or assign" the property to oneself or to another to
the exclusion of the owner. AIR 1956 Mys 40.
(3) The words "converts to his own use" necessarily connote the user of or dealing with the
property in derogation of the rights of the owner. AIR 1956 Mys 40.
(4) The property should belong to another person. There can be no misappropriation of one's own
property. A IR 1914 Low Bur 1.
(5) Where A mortgaged his property to B and the mortgaged property was acquired by the
Government and compensation paid to A and A refused to pay the amount to themortgagee, it was
'
held that A was not guilty of misappropriation of the amount. A IR 1954 Cal 547.
(6) The President of a Co-operative Society was charged with having misappropriated the amount
belonging to the society and it ias argued that mere retention did not amount to misappropriation; it
was, however, found that he was asked several times to - pay the amount but that he had failed to do so;
he was held guilty of misappropriation. AIR 1958 Mys 82.
(7) Certain buffaloes belonging to the complainant strayed. They were found in the possession of
the accused. When the complainant appeared on the scene and demanded them he did not deliver the
buffaloes to him and put him off on the pretext that he would make enquiries from the vendor from
whom he purchased them. He, however, made no attempt to prove that he received these buffaloes
from any one else. He was using them for the period that they were in his possession: It was held that
the facts disclosed an offence of criminal misappropriation. AIR 1957 Assam 35.
(8) Merely taking the complainant's cattle towards the cattle pound does not amount to conversion
or misappropriation by the accused. Conversion to his own use, viz., taking them for sale, detaining
the in his own house or some such thing needs to be proved. AIR 1955 NUC (All) 3530.
(9) Certain bales of cloth which were in the custody of the railway were found to be unloaded near
the godown of the accused and were later recovered from that godown. It was held that there being no
proof of misappropriation or conversion of the propeily or any evidence of dishonest intention on the
part of the accused there could be no conviction under S. 403. AIR 1961 Assam 132.
(10) Accused serving in the Force was handed over a kit at the time of enrolment. He left his post
without leave and without handing over the kit but not with the intention never to return. It was held
that the retention of the kit by the accused did not amount to misappropriation or conversion unless it
could be shown that the accused dishonestly used the property in violation of any direction of law
prescribing the mode in which the trust was • to be discharged or of any legal contract, express or
implied. A IR 1957 Raj 26. -
(11) Person obtaining possession of property by cheating, later on converting same to his own use
is guilty of criminal misappropriation. AIR 1959 Born 408. -.
Sec. 403 1Of Offences against Property 1199
(12) Complainant alleging payment of money to accused for purchase of sewing machine—
Accused neither purchasing machine nor returning money—Accused denying that he got money—
Payment of money proved—Case held one of criminal misappropriation. AIR 1950 All 266.
4. - "Any movable property".—(l) The property referred to in S.403 is movable property. There
can be no misappropriation if the subject-matter of the offence is immovable, property. 1932 Mad W N
1353. . . . .
(2) The word "property" is used in the Penal Code in a much wider sense than the expression
"movable property". AIR 1962 SC 1821.
5. Explanation 1.—(1) Explanation I to S. 403 states that dishonest misappropriation. for a time
only is a misappropriation within the meaning of.the section. A IR 1923 Nag 146
(2) Merely because an - instalment of an agricultural loan is not paid into the treasury the very next
day by the village munsif, the inference cannot be drawn thathe has rnisapprópriated the amount so
omittedto be paid. A IR 1930 Mad 507. . .. .
(3) Where a patwari, neither credited to the Government the amount received by him in excess on
account of land revenue, nor made it over to the Patel, it was held that the presumption u/s. 1141-
Evidence Act, would b that he kept the amount with him for his own use with intent to make
wrongful gain for himself and to cause wrongful loss to the rightful owner. AIR 1938 Nag 445.
(4) The accused was an income-tax clerk whose duty was to receive money and credit it into the
treasury. He admitted to have received two sums and retained the same .for several months with him
but fearing detection by officers paid them into the treasury subsequently, making false entries in his
account books to avoid suspicion. He was held guilty under S. 403. (1889) ILR 12 Mad 49 (DB).
(5) The accused in his capacity as booking clerk of a Transport company received certain sums
from drivers of various transport vehicles for deposit with the adda cashier. He, however, failed to
deposit the same and it was only several days after he was placed under suspension that he handed over
the missing sum to the adda cashier. It was held that he was guilty of dishonest misappropriation
although temporary. A IR 1959 Him Pra 14. .
(6) When person entrusted with funds for disbursement for a particular purpose urpose '.misappropriated
them, by preparing false documents, but.disbursed the amount for the intended purpOse after the matter
was reported to the authorities—Held that accused was guilty under this section. A IR 1972 SC M.
6. Eiplanation 2.—(1) A person who takes possession of property, not in the possession of any
other person, does not, by that act alone, commit any offence under this section. He commits it only
when he misappropriates or converts it to his own use. 1889 Pun Re ('Cr1) No. 15, page 60.
(2) A finder of property, of which from the nature of it, there must be an -owner, must take some
steps in order to ascertain its true owner. If, after he has taken some steps in order to ascertain the true
owner, the true owner is not discovered, then, under certain circumstances, he may retain the property
and would not be held guilty of criminal misappropriation; but if he acts in such a way, that the true
owner may never discover that the article had been picked up by him, then he is attempting to create a
situation where conversion of the goods to his own use would be easy. In such a case the conduct of
the finder is criminal and he would come within the ambit of this section. AIR 1952 All 481.
(3) The finder must wait for a reasonable time to allow the owner to claim the property before
appropriating it. AIR 1938 Mad 172. .
(4) Where a.person who took cattle scattered on account of Cheeta care, subsequently retained it
intending to treat it as his own, he wOuld be guilty of criminal misappropriation. A IR 1944 Mad 26
1200 Penal Code Sec. 403

(5) The accused tried to sell a spanner which he found lying on a public road. It was held that it
was not a case where the accused had reasonable means of discovering and giving notice to the owner
of the spanner, of having found it. The spanner was not of any appreciable value and the case fell under
illustration (a) to Section 403; the aócusçd could not be held guilty. AIR 1930 Born 176.
• (6) A stocked large quantities of timber on railway land taken on lease. B also took lease of the
adjoining land in order to keep heavy equipment to construct a dam. B gave notice to A for removal of
timber. within 15 days and thereafter enclosed the land by barbed wire and later on cleared the land with
cranes. It was held that, apart from the legal position that principles of criminal law are not applicable
to determine civil liability, there was sufficient notice within the meaning of Explanation 2 and after
expiry of the time fixed in the notice B had no liability to A. A IR 1959 Orissa 103.
7. Joint property.--(I) An owner of property cannot be guilty of misappropriation of his own
property. This principle will apply even in the case of joint owners. AIR 1965 SC 1433.
8. Partner.—( 1) A partner has undefined ownership along with other partners over all the assets of
the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to
the other partners. But he does not thereby commit any misappràpriation. A IR 1965 sc 1433.
9. Principal and ent.--(I) The principal cannot be held guilty of misappropriation if his agent
commits the offence of misappropriation. (1967) 8 Guj LR 552.
10. Misappropriation by wife—Liability of husband.—(l) A husband cannot be made liable
for acts of misappropriation of hiswife during the course of her service simply because he had allowed
her to take up service. AIR 1915 All 128.
11. Liability of corporate bodies.—(1) A cbrporate body or a company is not indictable for
offences which can be committed only by a human individual or for offences which must be punished
with imprisonment. Barring these exceptions a corporate body is liable for acts and omissions of its
directors, authorised agents or servants whether they involve mens rea or not, provided they have acted
or have purported to act under authority of the corporate body. AIR 1964 Born 195.
12. Misappropriation, criminalbreach of trust, theft, cheating—Distinction.—(I) In a
criminal misappropriation the property comes into the possession Of the accused innocently in some
natural manner but by subsequent change of intention the retention becomes• unlawful, whereas in a
criminal breach of trust the property comes into the possession of the accused either by an expressed
entrustment or by some process placing the accused in a position of trust and there is dishonest use or
disposal of the property in violation of the trust. 1967 Mad LI (Cr1) 20.
(2) In a theft the original taking is dishonest and without the consent of the owner but in a
criminal breach of trust it is both honest and with the consent of the owner. In a criminal
misappropriation the original taking is honest but without consent of the owner. AIR 1928 Nag 113.
13. Misappropriation and other offences.---(I) A person who is proved to have dishonestly
misappropriated property cannot be convicted of dishonestly retaining it under S. 411. (1907) 5 CriLJ
413 (Low Bur).
(2) A packet containing a loose diamond and a diamond ring was lost at a Post Office and was
found with the accused two years later. It was held that only one offence under S. 411 was committed
and not two offences under S. 403, one in respect of the diamond and the other in respect of the ring.
A IR 1924 Rang 256.
Sec. 403 Of Offences against Property 1201

14. Attempt and preparation.—(1) Accused who was in charge of a grain godown removed
certain bags and secreted them in another room. The registers were, however, not manipulated. It was
held that the act did not amount to conversion nor an attempt to commit conversion but that it was
merely preparation. A IR 1949 Pat 326
(2) One D who wanted to senä by registered insurance post a letter containing cuneny notes asked
the accused to write the address on the envelope but the accused tried to substitute another envelope in
place of the original and wrote the address on it. D's suspicion having been aroused he demanded the
original envelope; An altercation ensued and the original, envelope containing the currency notes and
D's coat were torn'. It was held that the offence of robbery with which the accused was charged was
more or less technical and the accused should really have been charged with attempt to criminally
misappropriate the notes. AIR 1933 Sind 139. .
15. Evidence and proof.—(1) In order to establish an offence under Section 403 the prosecution
has to prove:
(a) that the property was the property of the complainant;
(b) that the accused misappropriated that property or converted it to his own use; and
(c) that he did so dishonestly.
No prosecution can be founded on the mere suspicion of the. complainant that the accused has
misappropriated the property. AIR 1939 All 602.
(2) It is not necessary in every case to prove in what precise manner the accused misappropriated
the money. AIR 1959 SC 1390.
(3) It is sufficient if the prosecution "establishes , that some of the money mentioned in the charge
has been misappropriated by the accused, even though it may be uncertain what was the exact amount
so misappropriated. AIR 1928 BOrn 148.
(4) When a man is found in possession of property about 7 months after it has been lost and
there is no other evidence, he ought not to be called upon to account , for it, particularly when he
gives a reasonable explanation of getting it. If the accused gives reasonable account of how he came
in possession of the property, it is the duty of the prosecution to show that the explanation is false;
but if he gives an unreasonable explanation it would be for him to establish the truth. A IR 1916
Lah 288.
16. Procedure.—(l) Where J filed a complaint for misappropriation, examined two witnesses but
subsequently absented. himself and M filed a separate application that J did not wish to continue
prosecution which M may be permitted to continue, it was held that permission to continue the
'prosecution may be granted where M has something to do' with the institution of the proceedings.
1972 A11CriR 113.
(2) A charge under this section and one under Section 417 can be joined and tried together where
the two offences form part of the same transaction. AIR 1915 All 380.
(3) Not cognizable—Warrant—Bailable—Compoundable when permission is given by the Court
before which the prosecution is pending—Triable by any Magistrate and by Village Court. But if the
offence is committed by public servant, it becomes: Cognizable—Warrant-TNOt bailable—Not
compoundable—Triable by special Judge under Act XL of 1958 & Act II of 1947.
17. Alteration of conviction.—(1) A conviction 'under S. 409 can be altered into one under
Section 403 under Section 221 of the Criminal P. C. 1966 A11WR (SC) 695. '
•
1202 Penal Code Sec. 404
18. Same facts constituting offence both under the Code and under a special Act.—(1) For
contravention of Insurance A ct read with Insurance (General) Regulation, though it is punishable under
them proceedings under Ss. 406/403, Penal Code are maintainable. AIR 1971 Cal 93.
19. Civil liability.—..(I) If goods are delivered to a purchaser in pursuance of a contract for
purchase, the mere fact that the person denies receipt of goods delivered, does not render him guilty
under S. 403 or S. 406, the matter being purely in the nature of ,a civil dispute. A IR 1924 Mad 516
(2) If a cheque is wrongly dishonoured by a Bank that does not amount to misappropriation. The
remedy lies in civil Court. A IR 1950 Cal 57.
(3) The plaintiff-had stocked large quantities of timber on railway land taken on lease. The
defendant also took lease of the adjoining land in order to keep heavy equipment to construct a dam.
The defendant gave notice to the plaintiff for removal of timber within 15 days and thereafter enclosed
the land by barbed-wire and later cleared the land with cranes. In a suit by the plaintiff for damages it
was held that apart from the legal position that the principles of criminal law are not applicable to
determine civil liability, there was sufficient notice within the meaning of Expin. 2 o S. 403 and after
its expiry, the defendant was under no liability- to the plaintiff. A IR 1959 Orissa 103. -
(4) The rnixture'of the funds of another with one's own may be in many cases natural and proper,
or it may be convenient but irregular or again it may be both irregular and criminal. The distinction
between these cases should be handled with the greatest judicial care so as (while preserving the
amplest civil responsibility) to prevent the third or criminal category, from being extended to mistaken
• though convenient acts. (1914) 15 CriLJ 305. I
(5) A who had mortgaged certain lands to B had entered into an agreement with B under which the
compensation money which A was to get in respect of the mortgage lands acquired under the Land
Acquisition Act was to be applied first towards the satisfaction of the mortgage loan. On receipt of the
money, however, A refused to pay it to B. It was held that the compensation money could not in law,
become the money of B. The refusal to pay every civil debt did not justify the finding of dishonesty.
-The case was one of breach of contract. AIR 1954 Cal 547.
20. Punish ment..... 1) "Accused who was 25 years of age, criminally misappropfiated cattle. It was
held that the offence was not a minor one and that a sentence of one year's rigorous imprisonment was
justified. A IR 1952 A ll 481.
21.Practice.—Evidence-Prove:(1) That the property in question is movable *property.
- (2) That the accused misappropriated or converted it to his own use. -
(3) That he did so dishonestly. -
22. Charge.—The charge should run as follows:
I (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about—the day of—at—dishonestly misappropriated or converted to your own
use certain property to wit—, belonging to XY, and thereby committed an offence punishable under
section 403 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge. -

Section 404- -
404. Dishonest misappropriation of property possessed by deceased person
at the time of his death.—Whoever dishonestly misappropriates or coverts to his
Sec. 404 Of Offences against Property 1203

own use property, knowing that such property was in the possession of a deceased
person at the time of that person's decease and has not since, been in. the possession of
any person legally entitled to such possession, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be
liable to fine; and if the offender at the time of such person's decease was employed
by him as a clerk or servant, the imprisonment may extend to seven years.
Illustration
Z dies in possession offurniture and money. His servant A , before the money comes
into the possession of any person entitled to such possession dishonestly, misappropriates
it. A has committed the offence defined in this section.
Cases and Materials : Synopsis
I. Scope of the section. 7. "Legally entitled to such possession ".
2. "Dishonestly'. 8. Evidence and proof..
3. "Misappropriates or converts to his own 9. Procedure.
use' 10 Charge.
4. "Property'. 11. Section 404 and other offences.
5. Partnership property. 12. Punishment.
6. Knowledge regarding possession of deceased 13. Practice.
and of person legally entitled after his death.
1. Scope of the section^ -(I) This section is intended only to punish. servants and strangers who
could have no right to or interest in, the effect of a dead man and who misappropriate such offence but
not to punish near relations who take possession under a claim of independent ownership or a calim to
succeed as heir of the deceased (AIR 1913 Mad 506). Removal of ornaments from the body of a person
after causing his death cannot amount to robbery because robbery is theft by force and theft is taking
movable property out of a person. A dead body is not a person. Therefore the act of the accused would
amount to dishonest misappropriation of property possessed by the deceased and is an offence under
section 404 (1958 CrLf 902). The object of this section is to offer protection to property which by
reason of its being peculiarly placed needs protection to property where the person who could look after
it is dead and the person entitled to it has not yet appeared.
(2) This section relates to an aggravated form of the offence of dishonest misappropriation under
S. 403. Hence all the elements necessary to constitute the offence under S. 403 are also necessary to
constitute an offence under this section. (1869) 12 Suth W R (Cr) 39.
(3) It is necessary .that the property should have been in the possession of a deceased person at the
time of his death and should not have since come into the possession of any person legally entitled to
such possession. It is a10 necessary that the accused should have been aware of these facts. A IR 1949
Cal 171.
(4) The object of this section is to afford protection of property which by reason of its being
peculiarly placed needs protection where the person who could look after it is dead and the person who
is expected and entitled to look after it after the death of such person has not appeared on the scene.
AIR 1956 Mad/tB 49..
1204 Penal Code Sec. 404
2. "Dishonestly".—(l) It is an essential ingredient of the offence under S. 404, that the accused
must have done the act of misappropriation or conversion "dishonestly". The section can have no
application where persons such as near relatives of the deceased take possession of the property under a
bona fide claim of right. AIR 1956 MadhB 49.
3. "Misappropriates or converts to his own use".---(l) The .words of the section are in the
alternative: "misappropriates or converts to his own use". It is not necessary for a conviction under the
section, therefore, that the accused should misappropriate the propàrty to his own use. Where it is
• found, for example, that the accused misappropriated the. property to the use of the zamindar in the
exercise of his function as the zaminder's . gomastah, the accused would be guilty under this section.
• . (1869) 12 SuthW R (Cr) 39.
4. "Propery".---( 1) Criminal misappropriation and conversion is possible of immovable property
such as a building where materials have been severed from building and removed. AIR 1925 All 673.
(2) In the case of immovable property there cannot be misappropriation or conversion (except
where the immovable property is first demolished and then the material is removed thereafter). AIR
1956 MadhB 49.
5. Partnership property.—(1) Property of a partnership concern is never in the possession of any
individual partner. It is partnership property and every partner is an agent of the other. A necessary
incident of every dissolution of partnership is settling of accounts and unless that is done none can say
which assets belonged to the deceased partner. The possibility of inheriting deceased partner's property
can arise only after accounts are settled. 1976 ChandLR (Cr1) 67 (Delhi).
6. Knowledge regarding possession of deceased and of person legally entitled after his
death.—.-(l) The mere fact that some ornaments which belonged to the deceased and were on his person
before his death, were recovered from the accused is not sufficient to prove such knowledge on the part
of the accused. 1961 MPLJ (Notes) 130.
7. "Legally entitled to such possession".—(I) In order to find a person guilty under this
section, the prosecution has to prove that the property was in the possession of a deceased person at the
time of his decease and that it has not since been in the possession of any person legally entitled to
such possession. A IR 1949 Cal 171.
(2) If the accused took possession of the property from a person who was entitled to be in
possession and who was in possession of it at the time of the death of the deceased the section will not
apply. A IR 1956 Madh B 49. -
8. Evidence and proof.—(1) Where the accused claimed the ornaments in question to be his
own, it was held that it was necessary for the prosecution to have tendered unimpeachable evidence of
the identification of the ornaments, and that the mere fact that the ornaments were kept buried is not
sufficient to give rise to an inference that they did not belong to the accused. 1963 MPLJ (Notes) 258.
(2) One D had taken certain articles from a dead body. The accused, a police constable slapped D,
and got the articles from him and kept the articles with himself and for his own purpose. It was held
by the Supreme Court that offences under S. 394 and this section were made out against the accused.
1973 SC 448.
9. Procedure.—{l) Offence under S. 404 P. C. is not an offence of dacoity and cannot be
considered as one falling within the definition of expression 'scheduled offences' given in the special
Sec. 404 Of Offences against Property . V.Z05
statute and the special Judge was held not competent to take cognizance of the case under that statute.
1982 UP Cri R 222 (A ll).
(2) Not cognizable—Warrant-_Bai lab le—Not compoundable—Triable by the Metropolitan
Magistrate or Magistrate of the first class. But if the offence is committed by public servant it
becomes: Cognizable—Warrant—Not bailable—Not compoundable—Triable by special Judge. under
Act XL of 1958 and Act 11/47. .
• . 10. Charge.—(1) Where the evidence establishes that it is the accused who murdered his step-
mother and removed the jewels from her immediately after the murder, the conviction of the accused
on charge of murder and under Section 404 was held to be proper. 1956 Mad W N 805.
:. (2) It is not desirable to charge an accused in a murder case with an offence u/s..404 for mis-
appropriating the articles of the deceased in absence of evidence of misappropriation. AIR '1941 Mad 306
(3) The charge should run as follows: .
• I (name and office of the Magitrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about—the day of—at--dishoiestly misappropriated or converted to your own
use certain property to 'it, belonging to XY, a deceased person at the time of the death and had not
since been in the possession of any person legally entitled and (that you were at the time of the death
of the said person a clerk or servant or the deceased) and that you have thereby committed. an offence
punishable under section 404 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
11. Section 404 and other offences.—.-( I) Removal of ornaments from body of one after causing
his death is not robbery but an offence under this section. A IR 1958 MadhPra 192.
• (2) Where murder and robbery are committed in course of the same transaction by the same person,
the offence Would fall under S. 392 and , not under S. 404. The matter would be different if 'a thing is
stolen from a dead body apart from the transaction in which death occurred. A IR 1963 MadhPra 106
12. Punishment.—( 1) Where the person who could look after the property is dead and the person
entitled to look after it after the death of the former has not come forward, there is a chance available to
strangers to dishonestly misappropriate or convert the same to their use and the property needs special
protection. It is for this reason that a provision is made in S. 404 by which the dishonest
misappropriation or conversion in the circumstances is made punishable with a higher sentence. AIR
1956 Madh B 49. .
13. Practice.—Evidence—Prove: (1) That the property in question was movable property.
(2) That such property was in the possession of deceased person at the time of his death.
(3) That it, was not thereafter in the possession of any person legally entitled to such possession.
(4) That the accused misappropriated it or converted to his own use.
(5) That he did so dishonestly.
(6) That he knew the facts mentioned in (2) and (3).
(7) That the accusedTwas, at the time of the owner's death, employed by him as a clerk or servant.
1206 Penal Code Sec. 405

Of Criminal Breach of Trust

Section 405
405. Criminal breach of trust.—Whoever, being in any manner entrusted with
property or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses . or disposes of 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 wilfully suffers any other person so to do,
commits "criminal breach of trust".
Illustrations
(a) A , being executor to the will of a deceased person, dishonestly disobeys the law
which directs him to divide the effects according to the will and appropriates them to his
own use. A has comm j,tted Criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A , under a
contract that it shall be returned on payment of a stipulated sum for warehouse-room. A
dishonestly 'sills the goods; A has committed criminal breach of trust.
(c) A , residing in ?[Dacca(Sic)], is agent for Z residing at 8[Chittagong]. There is an
express or implied contract between A and Z that all sums remitted by Z to A shall be
invested by A , according to Zs direction. Z remits a lakh of 5[taka] to A , with directions
to A to invest the same in Company's paper. A dishonestly disobeys the directions and
employs the money in his own business. A has committed criminal breach of trust.
(d) But if A , in the last illustration, not dishonestly but in good faith; believing that it
will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's
directions, and buys shares in the Bank of Bengal for Z, instead of buying Company's
paper, here, though Z should suffer loss, and should be entitled to bring a civil action
against A , on account of that loss, yet A , not having acted dishonestly, has not committed
criminal breach of trust. .
(e) A , a revenue officer, is entrusted with public money and is either directed b3.' law.
or bound by a contract, express or implied, with the Government, to pay into a certain
treasury all the public money which he holds. A dishonestly appropriates the money. A
has committed criminal breach of trust.
6') .A , a carrier, is entrusted by Z with property to be carried by land or by water. A
dishonestly misappropriates the properly. A has committed criminal breach of trust.
Cases .
1. Scope.--(I) The terms of section 405 are very wide and entrustment may be brought about in
any manner (37 CrL..J 637 FB). It is not necessary that entrustment should be express. An implied

7. Subs, by the Federal Law Revision and Declaration Act 1951 (Act XXVI of 1951), s.4 and Sch. Ill , for "Calcutta".
Sic. Spel "Dhaka" instead of "Dacca".
8. The word "Chittagong" was substituted for the word "Lahore" by Act VIII of 1973 ,Second Sch., (w.e.f 26-3-71).
Sec. 405 Of Offences against Property 1207
entrustment will suffice. The word "entrusted" is not necessarily a term of law. The expression
"entrusted" in section 405 is used in its legal and not in its popular sense. A person is entrusted with
property when he receives it from another otherwise than for or on account of himself. He may be
entrusted with it either for or on account of the person from whom he receives or a third party or
parties (A IR 1963 A ll 691 DB).To constitute an offence under this section "there must be an
entrustment of property and dishonest misappropriation of it. The person entrusted may misappropriate
himself or he may willfully suffer another person to do so (A IR 1961 Sc 751) A person coming to
have a dominion,, though not actually entrusted with the property, can be guilty of misappropriation
(1974 , CrL J 418). A lapse in the discharge of official duty which may be either due to inadvertence,
negligence or overwork stands on a different footing and must be distinguished frOm criminal liability.
Where there is no entrustment of property there can be no conviction for breach of trust. For an offence
of criminal breach of trust besides showing that the .property was entrusted to the accused it is further
necessary to show that he had dishonestly misappropriated or converted it to his own use. Mens rea is
the essence of the offence of criminal breach of trust. Criminal intention in a charge for criminaibreach
of trust is a matter of inference from proved facts. When the essential ingredients for, criminal
misappropriation are taking and there is no mens rea, a case of criminal misappropriation may not lie
while a Civil action thay be sustained. Even breach of trust gives rise to a suit for damages but it is
only when there is 'evidence of a mental act of fraudulent misappropriation the commission ,of
embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust.
Great caution ought to be used in drawing an inference of dishonesty from a breach of duty imposed by
civil law. An owner .of property, in whichever way he uses his property and with whatever intention,
will not be liable for misappropriation and that would be ' so even if he is not the exclusive ' owner
thereof. A partner has undefined ownership along with the other partners over all the assets of the
partnership (3 DLR 449). Section 405 does not cover the case of a loan or an advance of money when
borrower of the depositee intends to use or utilise that money, for the time being, till he is in
possession of it, although he may have to return an equivalent 'amount later on to the person making'
the advance with or without interest, or compensation for the use thereof (A IR 1948 Cal 1). A criminal
breach of trust cannot 'be said to have been committed in cases for example, false denial M loan
advanced, failing to act up to the directions of the persons depositing the money, which money was
not utilized for his own purposes. (AIR 1940 Mad 329).
(2) Misappropriation—Denial of the charge, when receives reasonable support from the prosecution
evidence and circumstances. Held: When all the facts and circumstances of the case against the present
accused are taken into account, in particular his conduct, there is a reasonable possibility that the
explanation which he put forward is true and in consequence of which he is entitled to be acquitted.
Mir Ahmad Vs. State (1962) 14 DLR (SC) 258.
(3) Entrustment is an essential ingredient of offence of criminal breach of trust and a man cannot
be guilty of this offence unless he is entrusted with the amount. A . Salam Chowdhury V s. Crowm
(1952) 4 DRL 80.
(4) If several persons are charged for an offence .of criminal breach of trust and sec. 34,P,C., is
sought to be applied to punish all of them for criminal breach of trust it is necessary to establish that
all of them were entrusted with the amount. A Salam Chowdhury Vs. Crown (1952) 4 DLR 80.
(5) Criminal breach of trust—Ingredients necessary to be proved by the prosecution. Where the
charge against an accused 'person is that of criminal breach of trust, the prosecution must prove not
only entrustment of or dominion over property but also •that ' the accused either dishonestly
1208 Penal Code Sec. 405
misappropriated, converted, used or wilfully suffered some other person to do so. Shakir Hossain Vs.
State(1957) 9 DLR (SC) 14.
(6) Mere failure to return—Articles haired—Mere failure to return without evidence of mens ma—
Whether amounts to criminal breach of trust.] 951 1 PLD (Lah) 342.
(7) Breach of trust—Dishonest misappropriation, conversion to one's own use or disposal in
violation of direction of law or legal contract—Nature of proof—Whether there can be any presumption
as to misappropriation. There may be circumstances establishing that when an accused person has
received money, if he fails to account for it, it can only be that he misappropnated or converted it to
his own use and the absence of direct evidence of misappropriation or conversion which in many eases
not be easy to obtain may, in such a case, be made good by the presumption out of the circumstances.
But, in a case where no evidence of misappropriation or conversion is available and the accused person
was under obligation to deal with it in a particular ay, the Court cannot reach any conclusion to the
effect that the accused did not fulfill this obligation upon mere presumption. It would be the duty of
the prosecution to establish, that in fact the accused was guilty of contravening his duty in respect of
the particularism in question. A bdul Latf Vs. Crown (1953) 5 DLR (W PC) 40 (12-13)
(8) Undertaker óñ' his undertaking to produce the deposited tractor in court when called upon,
failing to make good his promises. Guilty of criminal breach of trust. Held: the appellant was
entrusted with the tractor and he was under obligation to produce it before the court, but instead of
producing the tractor he disposed of it "in violation of any legal contract express or implied which, he
has made touching the discharge of such trust. All the ingredients of 'criminal breach of trust' are
prima facie present in the action of the appellant and, as such, he came well within the mischief of the
section, That his bond is liable to forfeiture and he incurs a civil liability in terms of his bond is not a
ground for exoneration from the criminal liability when his willful act or omission bnngs him within
the mischief of section 405. By his failure, to produce that tractor to the Court he has incurred both
civil and criminal liabilities which may coexist and are not mutually exclusive. Shahidullah Patwary
Vs. State (1983)35 DLR (AD) .281. . . . . .
(9) Violation of contract will hold good for and offence of criminal breach of trust if the
conditions as to 'entrustment' within the meaning of section 405 is satisfied. ShamsulA lam & ors.
Vs. A .F.R. 1-fasan & ors (1988) 40 DLR 46
(10) Interpretation of entrustment u/s 405 P.C:— It connotes that the accused holds the property
in a fiduciary capacity, the property remaining in the possession of control of the accused as a bailee.
Shamsul A lam & ors. Vs. A .F.R. Hasan& ors.(1988) 40 DL.!? 46.
(11) Under the concept of entrustment the person who transfers possession of the property to
second party still remains the legal owner of-the property and the person so put in possession, only
obtains a special interest by way of a claim for money advanced for the safe keeping of the thing.
Shamsul A lam & ors Vs. A .F.R. Hasan & ors (1988). 40 DLR 46
(12) Illustration, is a key to understand and interpret the section. The illustrations given under the
section do not include a transaction of loan and violation of the condition of loan agreement. No
authority was cited that an alleged violation of a loan agreement constitutes, an offence of criminal
breach of trust. ShamsulA lam & ors. Vs. A .F.R. Hasan & ors (1988) 40 DLR 46
(13) The word "trust" and "entrustment" interpreted—In a transaction of loan the loan giver does
not retain any control over the loan amount and it becomes the personal money of the loanee and as
such he cannot be conceived of committing any breach of trust. If there is any violation of the, terms of -.
Sec. 405 Of Offences against Property 1209

agreement under the contract, that will be decided in the civil court and no criminal action would lie.
Shamsul A /am & ors. Vs. A .F.K Hasan & ors. (1988) 40 DLR 46.
(14) Facts alleged constitute an offence of criminal breach of trust or any offence triable in crimin&
court. Shamsul. A /am & ors. Vs A .F.R. Hasan & ors. (1988) 40 DLR 46.
(15) The only relevant question for consideration is whether the facts alleged disclose an offence of
criminal breach of trust. Shamsul A lam & ors.. Vs. A .F.R. Hasan & ors. (1988) 40 DLR 46.
(16) Meaning of entrustment—EntrUstmént connotes that the accused held the property in
fiduciary capacity—C.I. Sheets ófTahsil office which were blown off by storm were collected and kept
in the Tahsil office—Whether the Tahsildar in charge was entrusted with C.I. sheets. A kmal Hossain
Vs. State (1988) 40 DLR 483.
(17-20) Charge under section 405--. What the prosecution must prove to establish the said
charge—Mere entrustment of or dominion over the property will not prove the charge but the
prosecution must also prove its misappropriation by accused or its conversion to the use of the
accused. Mohammad Musa Vs. Kabir A hmed 41 .DLR 4..
(21) A Transaction of loan of money under an agreement does not operate as an entrustment
occurring in section 405 Penal Code. Shamsul A /am Vs. A .F.R. Hasan 40 DLR 46
(22) Violation of contract will hold good for an offence of criminal breach of trust if the condition
as to entrustment within the meaning of section 405 is satisfied. Shamsul A /am Vs. . A F.R. Hasan 40
DLR46 .
(23) Interpretation of entrustment under section 40 .5 Pc—It connotes. that accused holds the
property in a fiduciary capacity, the property remaining in the possession or control of the accused as a
bailee. Shamsul A /am Vs. A .F.R. Hasan 40 DLR 46 ..
(24) Under the concept of entrustment the person who transfers possession of the property to
second party still remains the legal owner of the property and the person so put in possession only
obtains a special interest by way of a claim for money advanced for the safe keeping of the thing.
ShamsulA lam Vs.. A .F.R. Hasan.40bLR 46 . . .
(25-27) When wilful act or omission of a person brings, him within the mischief of the section—
he is not exonerated from criminal liability on the ground that his bond is forfeited and he incurs a
civil liability. Shahidullah Patwary Vs.. The State 13 DLR (A D) 56 1984 DLR (A D) 25. •..
(28) Non-submission of completion report to the authority by the person entrusted,with money for
doing repair works where constituted criminal breach of trust—No.n-submission or delay in submission
of the completion report along with the accounts cannot by . itself be sufficient to find the accused
guilty. Dr:Babar A 1i ' Vs. The State BCR 1985 A D 2311985 BLD (A D) 169. .
(29) Dishonest misappropriation, meaning of—Failure to execute the work according to the terms
of the agreement which stipulates refund of money with interest, whether merely civil liability or
would also constitute criminal breach of trust—Failure to execute the work is violation of the
contract—Where the accused was entrusted with money would not only constitute criminal liability
but would also constitute civil liability—The accused would be guilty of criminal breach of trust Dr.
Babar All Vs.'The State.] 985 BLD. (AD) 169.
advanced to 'a borrower of
(30) Criminal breach of trust—Entrustment —Money loaned or advanced
depositee who intend to use of utilise that money does not constitute entrustment. If the expression
'entrusted' is applied to a thing which is not money, it would undoubtedly indicate that such thing
1210 Penal Code . Sec. 405
continues to remain the property of the prosecutor during the period in which the accused is permitted.
to retain its possession or is permitted to have domain over it—Similarly, the word 'entrustment' -
when used in respect of money, it means the money that has been transferred to the accused under
circumstances which show that notwithstanding its delivery to the accused, the property in it continues
to vest in the prosecutor and the money remains in the possession or control of the accused as a bailee
and in trust for the prosecutor as the •bailor, to be restored to him or applied in accordance with his
instruction—In other words, the person who parts with his money remains the beneficial owner thereof
even through the person to whom it is given retains its actual possession section-405 does not cover
the case of a loan or an open advanced money when the borrower or depositee intends to , use or utilise
that money for thee time being, till he is in possession of it, although he may have to return and
equivalent amount later on to the person making the advance with or without interest or compensation
for the use thereof Md. Safiruddin alias Shafiruddin Vs The State 1 BLD (HCD) 150
(31) Criminal breach or trust—Esentia1 elements of—The essential element of the offence of
criminal breach of trust is dishonesty—Without the existence of dishonesty or a dishonest mind acting
from behind in the disposal, conversion 'of use of the property held under trust there may occur a
breach of trust but not a criminal breach of trust The term 'dishonestly' as defined in the penal Code
implies an intention oi an aim to cause wrongful gain to the accused himself or to his chosen
beneficiary and a wrongful loss to the victim by unlawful means—this mens rca is followed by a
comnissive act such as dishonest misappropriation and disposal of a property either actual or inferred—
Anything short of these essentials will not warrant a conviction under Section 409 of the Penal Code
The State Vs,,A bdur Rahim and others 2 BLD (HCD) 121
(32) Criminal liability' of a' surety in respect of a bond for failure to produce the property in
question before the Court—by the failure of the surety to produce the tractor before the Court he has
incurred both civil and criminal liabilities, which may co-exist and are not mutually exclusive.
Shahidullah Patwary Vs. The 'S tate 4 BLD. (A D) 25. . . , •.: ,. ,
(33) Criminal breach of trust—Non-completion of workwithin the specified time and non-
submission or delay in submission of the completiOn report along with the accounts cannot by
themselves be sufficient Incriminating circumstances to prove the guilt of the accused—Of course the
civil liability arising out of non fulfilment of a contract, in part or in full, may be additional to and
independent of the criminal hability which may have been incurred by the accused when he used or
disposed of the money he was entrusted with in violation of the contract which he made touching the
discharge of his trust Dr. Babor A li Vs The State 5 BLD (A D) 169
(34) Criminal breach of trust—When a contract creates a trust in respect of a property which is
alleged to have been misappropriated, it will amount to an offence of criminal breach of ttist----In the
case of purchase of goods a person "entrusted to discharge the obligation by purchasing and delivering
the goods will be trustee for' the unspent money in his hand and if there is any misappropriai.on of that
money it will amount to an offence of criminal , breach of trust. Whether the legal' representative of the
trustee can be held criminally liable for the breach of trust—A trust is an obligation attached to the
ownership of the property and it can be traced in the hands of the legal representative—A mere
retention of the unspent money will not amount to criminal misappropriation but. if the retention is
followed by an intention to wrongfully deprive the owner of its use and secure it for his own benefit, it
will amount to criminal breach to trust. Samarendra Nath Halder Vs. the State 7 BLD (HGD) 348
(35) Entrustment—Meaning of—C.1 sheets of the Tahasil office were blown off by storm and
those were missing—whether the Tahsildet-in-chatge of the Táhsil office . was entrusted with 'those C.I.
Sec. 406 Of Offences against Property 1211
Sheets—Entrustment connotes that accused holds the property in fiduciary capacity and contemplates
creation of relationships whereby the owner of the property makes it over to another person to retain it
by him until certain contingency arises or to be disposed of him on the happening of certain event—
the act of collection of blownoff C.I. sheets and keeping the same in the Tahasil office cannot be held
to be entrustment. A /anal Hossain and another Vs. The State 8 BLD (HcD)195.
(36) Mere inability to pay back a sum of money entrusted the sale proceeds of a property
entrusted, whether will establish the fact of criminal misappropriation. The expression 'property'
occuring in section 405 of the Criminal Procedure Code should not be given a narrow construction
Blank forms of tickets are also property when the same are converted into tickets after sale Mere delay
in payment of money entrusted to a person, when there was no particular obligation to pay at a certain
date, does not amount to misappropriation Mere inability, to pay back a sum of money entrusted, the
sale proceeds of a property entrusted will not establish the fact of criminal misappropriation, if mens
rea is not established The prosecution must also establish, apart from entrustment that the accused had
dishonestly misappropriated the property entrusted A HM Siddique Vs The State 13 BLD (HCD) 85
(37) Partner cannot be held liable under section 405 Penal Code Once it is held that it was a
partnership business and the complainant and the accused persons were partners such prosecution
cannot be maintained. If the prosecution for criminal misappropriation cannot be maintained, the
prosecution for cheating under section 420 cannot also be maintained 36 DLR 14 A D
(38) The liability to give account and the duty to deliver goods having arisen at Narayánganj the
Court of Magistrare at Narayanganj has jurisdiction to try-the Offence of criminal breach of trust within
the meaning of section 405 Penal Code, if .there was only a liability to account at Narayanganj and no
duty to deliver any goods there the position might have been otherwise. Where it is alleged that the
accused has failed to account for the property then the second part of section 405 Penal Code will
apply and jurisdiction exists at the place where the property should have been, delivered by the accused.
Where, however,, there is only a liability .t6 account at a certain place and no duty to deliver any
property at that place, the Criminal Court at place., where the accounting is to be done has no
jurisdiction to try offence 12 DLR 456 . . . .
2. For more cases relevant to this section, see under section 406, .infra.

Sectióñ 406'
406. Punishment for criminal breach of trust.—Whoever commits criminal
breach of trust shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both
Cases and Materials: Synopsis.
1. Scèpe of the section. -7. . "Dominion over property."
2, Accused must have been "entrusted" with 8. "Properly."
, properly (or dominion over property. 9. Carrier..
3. . "In any manner". , 10. Pledge.
4. Criminal breach of trust and theft— 11. Stake-holder.
Distinction. , 12. Deposit of money.
5. Criminal breach of trust and cheating. 13. Collection of money by delegated authority.
6. Trust and loan. ' - 14. Broker and customer.
1212 Penal Code Sec. 406

15. Vendor and purchaser. 35. Failure th account or delay in accounting or

16. Hire-purchase transaction. in payment or omission to pay.
17. Partner. 36. Failure to certlfy:payment into Court under 0.
18. Joint owner. 21. R. 2, Civil P.C.
19 Pleader and client. 37. Negligence.
20. Guardian and ward. 38. Abetment.
21. Banker and customer. 39. These sections and S. 105 of the Insurance Act.
22. Craftsman and customer. 40. Agreement to give time to repay amount.
23. Entrusting property for repair. 41. Place of trial.
24. Contract to do certain work. 42. Procedure and jurisdiction.
25. Directors of company. 43. Offences failing under this section and under
a special Act.
26. Miscellaneous.
44. Existence of civil remedy.
27. "Dishonestly ".
45. Charge.
28. Misappropriates.
46. Sanction or leave of Court.
29; "Converts to his ow,tuse'
47. Acquittal.
30. "In violation of any direction of law"
48. Sentence.
31. "In violation of any legal contract'
49. Alteration of conviction.
32. Exptess. trust.
50. Interference by High Court.
33. "Wilfully suffers any person so to do".
51. Practice.
34. Onus of proof and appreciation of evidence.
1. Scope of the section.-(1) Dishonest intention is the gist of an offence punishable under this
section. Every breach of trust is not criminal. It may be intentional without being dishonest or it may
appear to be dishonest without being really so. In such cases the Court should be slow to move and
this caution is all the more necessary because there is a tendency to secure speedy results by having
recourse to criminal law. To constitute the offenceof criminal breach of trust, there must be dishonest
in by a person in whom confidence is placed as to the custody or management of the
property in respect of which the breach of trust is charged. There must be an entrustment: there must be
misappropriation or conversion to one's own use or use in violation of any legal direction or of any
legal contract and the misappropriation or conversion or disposal must be with a dishonest intention.
Every breach of trust gives rise to a suit for damages, but it is only when there is evidence of a mental
act of fraudulent misappropriation that the commission of embezzlement of any sum of money
becomes a penal offence punishable as criminal breach of trust. Courts should be slow to presume
dishonesty. Dishonesty cannot always be implied from the occasional failure of a servant immediately
to credit into the treasury amounts recovered by him in the discharge of his official duty (39 CrLf
349). The entrustment may be in any manner. Another alternative is that the accused may get
dominion over the proprty in any manner. In both cases the law contemplates that the accused person
should receive the money and holds it on behalf of the other, so that he should be trustee of the
property. The expression "in any manner" does not enlarge term "entrustment". The section is couched
in broad terms and covers any person who is in any manner entrusted with any property. An easy
method of differentiating between the offence of theft, cheating with delivery of property, criminal
misappropriation and criminal breach of trust is to find out whether the original taking was honest Or
dishonest and whether it was with the consent of the owner or without it. In theft the original taking is
Sec. 406 Of Offences against Property 1213
without honesty and without the consent of the owner, and in criminal breach of trust it is with both.
In obtaining property by cheating the taking is dishonest but with the consent of the owner, and in
criminal misappropriation it is honest but without the consent of the owner (A IR 1951 Punj 103). In
cheating, property is wrongfully acquired by means of deception i.e. misappropriation including belief
by an act or omission. In criminal breach of trust the property is acquired lawfully or by free consent.
If a sum of money is advanced by way of loan no criminal breach of trust is committed even if the
borrower uses it for a purpose other than that for which the advance was made (13 CrL1 269). Upon a
charge for criminal breach of trust the accused pleaded that the amount claimed by the complainants
was due to them or a debt, but having sustained losses in business they were unable to pay it. It was
held that in such cases the crucial test is, was the sum due to complainants owned by the accused as a
debt, or was it held by them as trust money.for complainants over which they had no right of
disosition of any kind (28 CWN 831).
'Property' referred to in this section must be movable property. Criminal breach of trust cannot be
committed in respect of immovable property. The property regarding which the offence is alleged to
have been committed must have been 'entrusted' to the accused or he must have 'dominion over' it.
No criminal prosecution is sustainable against a partner for misappropriation of partnership money. A
person, who fails to produce a meter installed by an electric company is responsible for its price but is
not guilty of criminal breach of trust (33 CrLf 866). When the accused retains dominion over the
property and has some claim to it, even if it turns out not to be sustainable in law, there is no offence
unless the claim is merely a pretence and not bonafide (A IR 1924 Cal. 908). A criminal Court should
not entertain a complaint where liability is purely of a civil nature. Where a transaction is no more than
a loan which has not been repaid, there can be no criminal prosecution under this section (1977 CrLf
195). If an offence is made out under section 406, the mere fact that a civil remedy is also open to the
complainant would not oust the jurisdiction of the criminal Court (1975 PcrLJ 545). Criminal breach
of trust is committed at the place where the money is received and misappropriated.
(2) Compromise over a non-compoundable offence does not render it innocuous. The accused took
the ornaments from the complainant on promise that he would return them after a month. He failed to
return the ornaments as he had promised but, on. the other hand, pawned them elsewhere. A
compromise was effected between the parties and the accused undertook in writing that he would return
them within one month from the date of writing. Having failed to do that he was prosecuted under
section 406 for criminal breach of trust and it was contended on his behalf that the matter had been
compromised and there remained only a civil liability. Held: The offence, however, had been
committed in this case before the document was executed, that is, when the appellant pawned the
ornaments. When the appellant pawned the Ornaments he dishonestly misappropriated or converted to
fiis own use the ornaments or dishonestly used them. A compromise subsequent to the commission of
the offence would be of no effect, for the offence under section 406 is not compoundable. A mir Sharf
V s. Sayeda Khatoon and State (1962) 14 DLR (SC) 76: 1962 PLD (SC) 97.

(3) Direct evidence to establish misappropriation not essential when circumstances clearly lead to
an inference of guilt. Entrustment of the property having been proved and the accused having failed to
account or render an explanation for his failure to account an inference of misappropriation with
dishonest intention . may readily be made in the light of the circumstances of the case. The prosecution
is not always obliged to prove the precise mode , of conversion or misappropriation by the accused of
the property entrusted to him. Khalil Vs. Slate (1963) 15 DLR 97.
1214 Penal Code Sec. 406

- (4) Charge of criminal misappropriation does not lie against a co-partner. A partnership cannot
proceed against another partner of a partnership firm on charges of criminal misappropriation except in
a case where there has been, a special fiduciary relationship between the partners. State V s Syed
Imtiazuddin Hossain (1965) 17 DLR 382.
• (5) Retention without dishonest motive—Mere retention of money without evidence of dishonest
misappropriation— No offence Khaliq Hossain Vs. Crown (1956) 8 DLR (W P) 64.
(6) Complainant kept, with the permission of the accused 'but in his absence, several maunds of
' gur in the accused's house who did not know how much gur was stocked nor was he present when the
complainant later removed a certain quantity of gur out of the .stored stock. Held: .In these
circumstances there was no entrustment Of gur with the accused suchi is contmpIated under section
406. Jogendra Kishore Vs. Crown (1951) 3 DLR 315.
(7) Charge for criminal breach of trust in respect of money obtained by dealing with the entrusted
property—Conviction illegal. When a person is charged with criminal breach of-trust-of .certain
property entrusted to him, he cannot be convicted of embezzlingof the property but the amount
obtained by dealing with it. Debandra Nat/i Vs. Crown (1950) 2 DLR 366
(8) Money paid---:Compensation for compounding a criminal case—If paid in trust. Where a sum
of money was paid by the complainant to the accused as compensation for compromise of a criminal
case against the complainant which, however, was not compromised as the Court refused permission,.
the compensation money, so paid to the accused could not be said to have been paid in trust so as to
bring the offence whithin the mischief of section 406. 53 CWN (DR 1) 79.
(9) Criminal breach of trust—Entrustment is the main ingredient of the offence—Accused must
have domairi over the property or it must be entrusted to him —Ifmoney or property not so entrusted,
accused commits no criminal breach of trust. The accused, a contractor, was entrusted with the work of
sinking three tube-wells each 152 ft. deep with tvo lifters for Rs. 800.00 each. No money or materials
were given to him. After completion of the work; the accused submitted bills and drew Rs. 2400.00 for
three tube-wells. It was later found that the tube-wells were 108 feet deep with one filter each the
accused was charged and found guilty of the offence of criminal breach of trust. On appeal it was—Held:
Entrustment is the main ingredient of this offence. Law requires that the property regarding which the
offence is alleged to have been committed was entrusted to the accusedor he must have domain over
it. In the instant case no money or property was entrusted to the accused. He cannot, therefore, be
convicted for the offence, under s. 406 P.C. A case of cheating under section 420 P.C. has been
established against him and the offence under section 406 P.C. was altered to one under section 420,
P.C . and the accused convicted thereunder. Lutfar Rahman Vs. The State, ('1969) 21 DLR 933.
(10) Criminal breach of trust is not an offence referred to in section 136 and therefore, sanction
under section 137(3) not necessary. Magistrate took cognizance of offence (criminal breach of trust) on
the complaint of an inspector of-Co-operative Societies without previous sanction of the Register as
require under section 137(3) of the Co-operative Societies Act, 1940. Held: The offence of criminal
breach of trust not being an offence under the Co-operative Societies Act, previous sanction of the
register was not necessary. The State Vs. Abdur Rashid Miah, (1970) 22 DLR 373.
(11) Money ,paid on the basis of agreement for purchase 9f certain goodsMoney on receipt by
the recipient becomes his money, not the money of the payor—It is not a case in which the recipient
held the money in trust for the payer—Not had he any control over the money after it is paid—For
breach of contract (a civill1ability), a suit in civil court will lie—The proceeding under section 406 is
made out. Abdul Rahim Vs. Begum A. Murshed (1982) 34 DLR 320.
Sec. 406 Of Offences against Property . . 1215

(12) Entrustment of dominion over the property is an essential ingredient of the offence under
section 406 together with the element of misappropriation. Md. Shahjahan Vs. 1-laji Y ea qub A ll
Chowdhury (1979) 31 DLR 63. .
(13) Breach of terms of contract when circumstances do not show that there was any criminal
breach of trust or cheating—Failure to fulfil such .a contract does not amount to any criminal offence.
Under a contract bearing, date 9.2.77, A (Opposite party 2) purchased. 2000 mounds of sacking twine
from B (accused-petitioner) and in pursuance thereof A took delivery of the 1500 mounds of.sacking
twine against payment.,Regarding the remaining 500 mounds, B by letter dated ,9 2.77 asked A to take
delivery of the same within 22.9.77 on payment of the price thereof. It is alleged that went to take
delivery of the goods on 23.9.77 with a pay order, but B did not deliver the goods" and it is "further
stated that B on 23.10.77 finally refused to give delivery of the goods". In these circumstances A
lodged a complaint before S .D.M Nàrayanganj for prosecution. of B u/s. 406 of the Penal Code B
appeared before Court and was released on bail. On the case being transferred to another Magistrate B
moved an application for his discharge under section 253(2) Cr.. P.C. which being rejected by the
learned Magistrate B moved the High Court Division u/s 439 and 561A Cr. P.C. against the order of
the Magistrate. The contract being genuine and the parties being bound by the terms of the. contract,
the dispute over alleged breach of contract would be one of civil nature. Since no case has been made
out against B for any ciffence which might fall under section 406 or 420 of the Penal Code the
proceeding against B pending in the court of the Magistrate must be quashed u/s561A Cr. P.C.
Sayeed Ahmed & Md. Ayub Vs. State (1980) 32 DLR 247. . .. .
(14) Business, in partnership—As against a partner a charge of criminal breach of trust will not lie
u/s. 406—Unless there is an agreement between the partners that a particular property shall be the
separate property of 'a partner there cannot be a case of entrustment.. Unless there is an agreement
between the partners that a particular property would be the separate property of a partner there cannot
be an entrustment of it to the other partner or partners. In the absenôe of such agreement, each partner is
interested in the whole of the partnership assets and there cannot be an entrustment of "a partner's
property" as such by one partner to another because there is no "property" which can be entrusted. -.
Mostafá Ghowdhury Vs. State (1983) 35 DLR 68.
• (15) Accused induced the complainant to pay to him 20 lakh taka on his (accused's) assurance to
procure 20 N.O.Cs. and visas but failed to keep his promise and finally denied to have received any
money from the complainant—This is a case which falls within the mischief of section 406, Penal
Code. No scope to argue creation of a partnership business. Musa Bin Shamsher V s. A nsarul Huq
(1987) 39 DU 24 .. . . .. . .
(16)—Several persons sought to be convicted for criminal breach of trust—Ingredients to prove—
Entrustment essential..If section 34 of the Penal Code is to be applied to punish several persons for the
offence of criminal breach of trust, it -is necessary to establish that all of them were entrusted with-the
amount. In the absence of entrustment a person cannot be charged and punished as a principal offender
by the application of section 34, for this section cannot create entrustment where there is none. A bdus
Salam Vs. Crown (1952) 4 DLR 80. ..
(17)Intention essential fOr abetment—In .order to constitute alt abetment of an offence under section
406 P.C. intention is essential. A person haying no knowledge of the fraud cannot have intended to
aid the commission of any offence by any, other person. Crown Vs. Motilal Sen (1953) 5 DLR 66
(18) Partnership—Breach of trust—A partner failing to account may not be accused for fraudulent
breach of trust unless there is a clear agreement whereby the purpose which the accused fails to carry
out and misappropriated it. Musa Bin Shamsher Vs. A nsarul Huq (1987) 39.DLR 24.
1216 Penal Code Sec. 406

• (19) Circumstances of the case show that a case for criminal breach of trust and cheating is made•
out. Complainant parted with a large sum of money and paid it to the accused on the latter assuring
that he will procure N.O.C. and visa permits for 20 persons but he tiled to procure them and
ultimately refused to have received any money from the complainant. Musa Bin $hamsher Vs. A nsarul
Huq (1987) 39 DLR 24,
(20) Money lent by the complainant to the accused-petitioner induced by representation to repay
and there is absence of any entrustment. Allegations constitute no offence of criminal breach of trust
and the charge thereof is quashed. Shafiuddin Khan 1's. State 45 DLR 102.
(21) Paddy purchased by PW 1 was handed over to the appellant—Appellant refused to deliver the
sale proceeds and denied the entire transaction—The case is one of entrustment fully proved by the
prosecution—No interference. Mohammad Musa Vs. Kabir Ahmed 41 DLR (AD) .151.
(22) A criminal court while awarding punishment under section 406 of the Penal Code has got no
authority to pass an order directing the accused to pay the sale proceeds of a property over which he
had dominion to the complainant. MohámmadMusa Vs. Kabir A hmed 41 DLR 4.
(23) Court below, in passing the order of making repayment of sale proceeds acted ex mero motu
and transgressed thedurisdiction. Muhammad Musa Vs. Kabir Ahmed 41 DLR 4.
(24) Quashing of proceedings for alleged breach of trust and, cheating: Money claims not the
outcome of a particular transaction but arose after year-end accounting following regular business
between the parties. If on settlement of accounts at the end of -a period some money falls due to one
party from the other party and the other party fails to pay the dues, such liability cannot be termed
criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence
under section 420 not under section 406 or under any other section. The whole allegation in complaint..
petition, even if true, cannot form basis of any criminal proceeding. The proceedings are quashed.
Sayed Ali Mir Vs. Syed Omar Ali 42 DLR (AD) 204. . .
(25). Question of offence of breach of trust and cheating—Business transaction were going on
between the complainant and the accused for a long time relating to supply of fish and the latter made
payments in parts. A balance amount claimed by the complainant was not agreed on and the accused
refused to pay it. This refusal to pay the balance does not constitute any criminal. offence under
sections 406/420 Penal Code. Islam A li Mia Vs. A ma! Chandra Mondol 45 DLR (A D) 27.
(26) Nothing was stated in the FIR that the accused denied that he would not pay the balance
amount. No allegation, of initial deception has also been alleged. The High Court Division rightly
quashed the proceeding. Rafique (MD) Vs. Syed Morshed Hossain and another 50 DLR (A D) 163.,
(27) A request is not a" false representation" or an inducement. If there is any false representation
of inducement on the part of the party and of the property is delivered on such false representation or
inducement, in that case the action is 'cheating' within meaning of section 415 of the Penal Code.
Habib (Md) and another Vs. State represented by the Deputy Commissioner ('Griminal) 52 DLR 105.
(28) Wheat was supplied by the complainant on credit on the request of the petitioner who is close
relation, of the complainant. Undór such circumstances a request cannot be considered as 'false
representation' or 'inducement'. The criminal proceeding is therefore quashed. Motaleb Hossain (Md)
Vs. State and another (Criminal) 53 DLR 198.
(29) As some payments were made by the accused persons, it cannot be said that there was any
initial deception on the part of the accused persons. Under such circumstances, we are of the view, that
Sec. 406 Of Offences against Property 1217

there are no elements of the offences under sections 406 and 420 of the Penal Code and as such
continuation of the proceedings will be an abuse of the process of the court. A bdul Rouf (Md) alias -
Nayan ys State 'Criminal) 53 DLR 283.
(30) When allegations show that the acused had initial intention to deceive, criminal case should
not be quashed on the plea of pendency of civil suit for realisation of the money in question. A bdul
hari and others vs State and others (Criminal) 53 DLR 410.
(31) The High Court Division found that the complaint petition discloses an offence of
inducement by the accused to part with money. By such inducement the complainant paid money to
the accused on the undertaking by the latter to repay the same as and when complainant demanded it.
But the accused misapprOpriated the money by issuing cheques which were dishonoured. This
establishes prima facie case of deception. Deiwar Hossain vs Rajiur Rahman Chowdhury and another
(Criminal)55 DLR (AD) 58. .
(32) Since there is a claim and counter-claim between the parties this criminal case should not be
allowed to proceed and they be given an opportunity to sort out claims in the Civil Court. Deiwar
Hosain Sôwdagar vs State, represented by the Deputy Commissioner (Criminal) 55 DLR 5.
(33) Non-compliance of the conditions of the ('1ltfl' ;TM) regarding setting of the dispute . arising
out of an agreement to purchase a building does not attract the ingredients of the provisidn of sections
406/420 Penal Code. The allegation made in the first information report discloses a civil liability for
which the criminal proceeding cannot but be quashed. A shraf Miah (Md) V s. State(Criminaf) 55 -
DLR 509. S
(34) Criminal breach of trust in respect of a partnership property—A partemer holds property
belonging to the partnership business as one of its owners—Until the dissolution of the partnership on
accounts it cannot be said that he holds the property, in a fiduciary capacity—Unless there is an
agreement that a particular property would be the separate property of a partner, there cannot be any
entrustment of it to the other partner—In the absence of such an agreement each partner is interested in
the whole of the partnership assets—There can be no entrustment of such property by one partner to
another as there is no property which can be entrusted with. Mostafa Chowdhury and another Vs. The
State and amother 3 BLD (HCD) 190.
(35) Criminal breach of trust—In respect of a loan taken from the bank by a way • of over-draft-
Security was furnished by the loanee more than a year after the disbursement but there was no security
when the payment was made—Criminal breach of trust is constituted for disposal of the property held
in trust in violation of any direction of law. Nakuleswar Saha Vs The State 4 BLD (A D) 10.
(36) Criminal breach of trust—Defencse plea of partnership—In determining whether a person is or
is not a partner regard shall be had to the real relation between the parties as shown by all relevant facts
• taken together—With regard to the transaction that gave rise to the case the complainant used the term
'howla' in his complaint and the word 'jimma' in his deposition which clearly connote entrustment—
It is a case of neither party that the profits of the sale in question would be distributed between the
parties—The prosecution case of entrustment is made out. Mohammad Musa Vs. , Kabir A hmed and
another 9 BLD 1I8
• (37) Criininal breach of trust in respect of business transaction—Civil liability and no bssis for
criminal proceedings—Civil claims are not to be brought in criminal courts as a contrivance to put
pressure upon the accused for repayment of dues—Civil claims are to be settled and sorted out in Civil
Court—To hold it otherwise will be to ignore the realities of business transactions and to encourage
1218 Penal Code Sec. 406
civil, claims to be brought into criminal courts. Sayed A li Mir and another Vs. Sayed Omar A li and
another 10 BLD (AD) 168.
(38) The question of offence of cheating whether arises when there is nothing to show that any
entrustment of property was made to the accused. The question of offence cheating does not arise (in
the instant case) as there is nothing to show that the accused has dishonestly induce the complaint to
sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to
the accused for sale of fish on credit according to the direction of the person making the entrustment.
Md. Islam A li Mia alias Md. Islam Vs. A mal Chandra Mondol and another, 13 BID (A D) 28.
(39).There is no specific promise for payment by any specific date and as such the High Court
Division did not find any existence of initial intention for deception on the part of the accused
petitioner. What happened between them was in due course of normal and regular business transaction
for which no criminal action lies. At best the informant may go for civil action against the accused
petitioner. Mohiuddin Md. A bdul KadrVs The State and another, 20 BLD(HGD)499.
(40) The allegations made in the petition of complaint: it clearly shows that the petitioner had
initial intention to deceive the complainant and thereby misappropriated the money. So, it cannot be
said that it is a case of civil nature. The petition of complaint undoubtedly discloses criminal offence
against the accused petitioner. The Appellate Division held that the High Court Division rightly
refused the prayer for quashing the proceeding. A bu Baker Siddique Vs. The State & anr, 18 BLD
(4D) 289. . .
(41) Dishonouring of the cheque itself does not constitute the offence of cheating. As regards the
argument that the accused petitioner issued a cheque knowing fully well that he had no money in the
account and that conduct amongst to cheating we are not of the view that dishonouring of the cheque
itself does, not constitute the offence of cheating. Md Motaleb Hossain Vs. State and another, 20 BLD
(HCD) 573. .
(42) The alleged transaction in between the complainant and the appellant is clearly and admittedly
a business transaction. The appellant had already paid a part of the money 'under the contract to the
complainant. The failure an the part of the appellant to pay the complainant the balance amount under
the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature.
The High Court Division were not justified in refusing to quash the proceeding in question although
the. transaction in question between the parties is clearly of a civil nature. Dewan Ohaidur Rahman Vs.
The State and anr, 19 BID (A D) 128.
(43) Cheating and dishonestly inducing delivery of property—Coiiviction whether sustainable
where the facts of the case do not give rise to an inference of mens rea viz fraudulent dishonestly
conduct The Appellant, was a contactor and undertook to sink several tubewells on the basis of
specification and stipulation contained in the terms of contract. He was .tried by a Special Judge for an
offence u/s 406 P.C. and Was convicted and sentenced thereunder. He preferred appeal to the High
Court. The High Court in the facts and circumstances of the case could not sustain the conviction of
the appellant U/S 406 but held that he had committed an offence U/S 420 P.C. and accordingly altered
the conviction uls 406 to one U/S 420, PC. ' Held: (i) The Appellant's failure to execute the work in
accordance with the terms of contract does not, ipso facto give rise to an inference of mens rea, viz.
fraudulent or, dishonest conduct, which is an essential ingredient of an offence of cheating. (ii) As no
money ot. property was entrusted with the accused and as he had purchased the materials with his own
money he could not be convicted u/s 406. The question of Criminal liability, therefore, does not arise
Sec. 406 Of Offences against Property 1219
merely for the non-execution of work in terms of the contract The conviction of the appellant U/S 420
based upon the finding that he made false representation and fraudulently induced the Chairman to
make payment, cannot, accordingly, be sustained. Lutfor Rahman Vs. The State. 2 BLR (A D) 10=25
DLR (AD) 101.
(44) Criminal breach of trust—breach of trust in respect of loan taken from the bank by way of
overdraft—security was furnished by the loanee more than a year after disbursement of loan—there was
no security when the payment was made---criminal breach of trust is constituted, by disposal of a
property held in trust in violation of any direction of law. Nakuleswar Saha Vs. The State 1984 BLD
(AD) 10 =13 BLR (AD) 1=35DLR (AD) 284.
(45) A partner cannot be charged by his copartner for breach of trust and cheating—once it is held
that it was partnership business and the complainant and the accused were partners then such
prosecution ' cannot be maintained—if the prosecution for criminal misappropriation cannot be
maintained the prosecution for cheating cannot also be maintained—initial intention to deceive was not
alleged even by the complainant because the complainant himself said that in order to help the accused
he lent the money though he did enter into partnership till ihén. Nasiruddin Mahmud & others V s.
Momtazuddin Ahmed & another 13 BLR (AD) 193=36 DLR (AD) 14=1984 BLD (AD) 97.
(46) Read with Criminal Procedure Code, Sec. 561A:—Appellant's contract with the District
Controller of.Food for milling Government's paddy under certain terms and conditions that if the
miller failed to deliver husked rice within 30 days from the date of receipt of allotment of paddy with
further extension of delivery period for another 15 days—Due to a number of causes and other
circumstances the miller failed to deliver husked paddy within the stipulated period—Inspector . of
Food concerned made an inspection of the stocks during the temporary absence of the Appellant—
Appellant contended, inter alia, that even if the prosecution case was believed, it would be a case of
civil liability against the appellant—Contention accepted, proceeding quashed. Jahanara Begum Vs..
The State BCR 1985 AD 281.
(47) Offence of Criminal Breach of Trust–Defence plea of partnership—It is not the case of the
prosecution or of the defence that the profits of the sale in question would be distributed between
them—The prosecution case of entrustment was fully proved ----- clearly connote•
entrustment—In determining whether a person is or is not a partner regard shall be had to the real
relationship between the parties shown by all relevant parts. Mohammad Musa Vs. Kabir A hmed &
ors. (1989) BLD (A D) 11841 DLR (A D) 151.
(48) Complaint Petition U/Ss. 420 and 406 PC—The complainant was .induced by the accused to
part with Taka six lacs on the false assurance of the accused that he would give shares of his shipping
business to the complainant—The complainant parted with the money and the same was
misappropriated by the accused on giving a false promise to her by deception—Accused issued two
cheques for the amount of Taka six lacs on two different dates and on complainant's communication
with bank she came to know that the accused instructed the bank not to pay the amount of those
cheques—Whether the evidence is adequate for supporting the conviction can only be determined at the
trial and not at the stage of enquiry—,There is intrinsic quality in that Complainant's statement on oath
and in the petition of complaint to take cognizance in the present Case—A prima facie . case has been
made out—It is not fit and proper to quash the proceeding at this stage. S.A . Sultan Vs. The State &
ors. 44 DLR (A D) 139..
(49) Joint trial—Not permissible—Joint trial of offences under section 406 and 420 of the Penal
Code and of section 23 of Immigration Ordinance 1982 by the SpeciaL Court is not permissible as the
1220 Penal Code Sec. 406
offence under section 23 of the Immigration Ordinance, 1982 is exclusively triable by Special Court
while the offence under section 406 and 420 of the Penal Code are triable by the Magistrate. Where
ingredients of the offences under section 406 and 420 of the Penal Code and under section 23 of the
Immigration Ordinance, are contained in the allegation, prosecution in both the courts for the
respective offences are competent. Mosammat Noor Jahan Begum @ A nchuri & anotehr V s. The
State-2, MLR (1997) (A D) 34.
(50) Quashment of proceedings under section 406 of the Penal Code—Interest of loan—A truck
purchased with loan money taken from Bank against agreement and subsequently it was sold, in
violation of agreement and by errasing registration number and Chesis number, These allegations
prima facie constitute offence under section 406 of the Penal Code and as such the proceedings cannot
be quashed. Ruhul A min Vs. Md. Nazrul Islam and another-5, MLR (2000) (A D) 320.
(51) Money taken on hand note is a loan—When money is taken as loan against hand-note it
becomes the property of the loanee and the nonpayment thereof does not constitute offence punishable
under section 406. Md. Reazuddin A hmed Vs. The State and another-2, MLR (1997) (A D) 37.
(52) Loan taken does not constitute offence—The exemption of loan granted by Board does not
constitute offence under section 406/409 of Penal Code read with section 5(2) of Act II of 1947 against
the Managing Director. The proceedings being illegal are quashed under section 561A Cr.P.C.•
Sekander Ali Vs. ,the State— I, MLR (1996) (HC) 29:
(53) Loan money does not constitute offence'—Quashment of proceedings to prevent the abuse of
the process of court—Unless there is inducement and entrustment loan taken for business purpose and
failure or refusal to repay the same is a civil liability and does not constitute offence punishable under
section 406 and 420 of the Penal Code. Therefore the proceedings being abuse of the process of Court
are quashed. A bdul Mannan Sarker (Md.) Vs. The State 6 MLR (HC) 279.
(54) A legal Adviser cannot be made liable for the offence of forgery and criminal breach of trust
into consideration the, opening given by the Legal Adviser for
for giving his legal opinion—Taking
releasing the property from the list of vested property it was recommended by the Additional Deputy
Commissioner (Rev) to the Ministry concerned who enquired into the matter and became satisfied that
the property in question was not vested or abandoned property and thereby released the same. In such
circumstances the Legal Adviser committed no offence of forgery and criminal breach of trust in giving
his opinion for releasing the property and the proceeding was quashed. A bdus Samad (Md.) Vs. State
(Criminal) I. BLC 63.
(55) From a plain reading of the petition of complaint it is clear that the initial intention of
cheating and the elements of criminal breach of trust have, very well, been alleged therein and, as such,
on the face of these allegations it is difficult to say that no prima facie case has been alleged to have
been committed by the petitioners under sections 406/420 of the Penal Code. The impugned judgment
and 'order of the High Court Division do not suffer from any illegality. Seeking leave to appeal
without appearing in the High Court Division is disapproved. Habibur Rahman (Md.) and another Vs.
State, through the Deputy Commissioner, Narayanganj and anothr (criminal) I BLC (A D) 146
(56) As the petition of complaint discloses an initial intention to deceive the complainant, who
was persuaded to advance a large amount of money to the accused persons and as such there is no
ground for quashing the proceeding. Kamrul Islam (Md.) Vs. A tikuzzaman (Criminal) 2 BLC 227.
(57) Considering the facts and circumstances of the case it appears that neither there is any mens
rea, on the part of the petitioner nor is there any ingredient of sections 406/420 of the Penal Code
resulting thereby that the proceeding against the petitioner is quashed. Nurul Huq Ruzbu Vs. State and
another (Criminal) 3 BLC 374.
Sec. 406 Of Offences against Property 1221

(58) The facts as alleged in the petition of complaint constitute a prima facie criminal intention of
cheating and deception in the mind of the petitioner which is still continuing because of the non-
payment of any pail of the amount alleged in the complaint-petition and all these are the matters for
decision at the time of trial after taking evidences and that after exhausting the remedy under section
439A the jurisdiction under section 561A, CrPC cannot be invoked. Kamal Hossain Vs. Zahid Hasan
& another (Criminal) 3 BLC 378.
(59) Unless the auditor under section 53 of the Wakf Ordinance held that a Mutwalli was guilty of
breach of trust it would not make out a case of breach of trust on the vague allegations as to his failure
to dtsburse the dues due to the, beneficiaries. Nazrul Islam Mo/lick V s. Khowaj A ll .Biswas and.
another (Criminal) 4 BLC (A D) 239.
(60) If there is any provision in the Customs Act for levying any tax or customs duty upon the
petitioner for purchasing the car that may be brought into action under that Act and not under the
criminal law or Penal Code and as such, the proceeding is quashed as the trial of the petitioner will be
an abuse of the process of law and court and the petitioner will be harassed unnecessarily. Go lam
Sarwar Vs. State (Criminal) 5 BLC 125.
(61) It is contended on behalf of the petitioner that the allegations made in the petition of
complaint disclose a civil dispute and the allegations do not attract the ingredients of section 420 or
406 of the Penal Code and hence the proceeding is liable to be quashed. Since a prima facie case has
been disclosed in the petition of complaint, as has been found by the High Court Division, the
proceeding cannot be quashed. Parvez A /am Khan Shapan V s. State and another (Criminal) 6 BLC
(AD) 93.
(62) The accused-petitioner took Taka one lac sixty-four thousand from the informant in three
instalments as loan for his business purpose. In the absence of any promise to repay the loan money to
the complainant within a specific period of time and in the absence of any allegation of inducement for
getting the loan money from the complainant, mere failure or refusal to repay the said loan money
shall not constitute the offence under sections 406/420 of the Penal Code and hence the proceeding is
quashed. A bdul Mannan Sarker (Md.) Vs. State and another (Criminal) 6 BLC 450.
(63) The accused petitioner did not directly induce the informant to give the money but he helped
the other accused to realise the money from the interment and misappropriated the same and hence
there are ingredients of sections 420/109 of the Penal Code instead of sections 406/420 of the Penal
Code against the accused petitioner, the proceeding cannot be quashed. A bul Kcishem Talukder Vs.
State (Criminal) 6 BLC 251.
(64) On perusal of the first information report and chargesheet it appears that there is specific
allegation of misappropriation of some amount by the petitioner and as he is not a public servant, the
offence comes within the definition of section 405 and as such, he is triable only under section 406 of
the Penal Code. The order of taking cognizance of the offence under Sections 409 and 420 of the Penal
Code and framing of charge under section. 40 ,9 of the Penal Code and 'section 5(2) of Act II of 1947 by
the learned Special Judge is without jurisdiction. As there is specific allegation against the petitioner
of breach of trust the case record is sent back on 'remand to the Court of Magistrate concerned for
holding trial in the light ofobservation made in the judgment. Ganesh Chandra Haider V s. Manindra
Nath Baien and others (Criminal) 6 BLC 207.
(65) In the absence of specific promise for payment by any specific date no existence of initial
intention for deception on the part of the accused petitioner is proved. For due course of normal and
regular business transaction no criminal action lies but civil action lies and hence the proceeding under
sections 420/406 of the Penal Code against the petitioner is an abuse of the process of the Court and it
is quashed. Mohiuddin (Md.) A bdul Kader Vs. State and another (Criminal) 6 BLC 117.
1222 Penal Code Sec. 406
(66) This section deals with a species of criminal misappropriation dealt with by Section 403 ante,
namely, dishonest misappropriation by persons entrusted with property or with dominion over
property. A IR 1923 Nag 146.
(67) The essential ingredients of the section are
(i) The accused must have been entrusted with property or with dominion over property.
(ii) The accused must have:
• (a) misappropriated or converted to his own use, that property; or
(b) used or disposed of that property in violation of any direction of law prescribing the
mode in which such trust is to be discharged; or
(c) used or disposed of the property in violation of any legal contract (express or implied)
which he has made touching the discharge of such trust; or
(d) wilfully suffered any other person. so to do.
(iii) Such misappropriation or user or disposal must be dishonest or such sufference must be
wilful. A IR 1953 SC 478.
(68) The section consists of two parts: the first part consists of criminal misappropriation or
conversion of the property and the second part consists of dishonestly using or disposing of the
property in violation of any direction of law or of any legal , contract. AIR 1956 All 619 (626).
2. Accused must have been with property (or dominion over property).—(1) In
the absence of proof of entrustment of property or of dominion over the property of another, this
section will not apply. 1979 ChandLR (Cri) 43.
(2) Entrustment connotes ordinarily thatproperty is handed over by A to B in whom A reposes
confidence for 'a specific purpose. AIR 1936 Mad 353.
' (3) The word "entrustment" has a corresponding meaning and embraces all cases in which goods.
are entrusted (i.e., voluntarily handed over) for a speôific purpose. AIR 1956 Raj 20.
(4) The expression 'entrusted' in Sec. 409 is used in a wide sense and includes all cases in which
property, is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the
terms on which possession has been handed over. A person authorised to collect moneys on behalf of
another is entrusted with the money when the amounts are paid to him, and though the person paying
may no longer have any proprietary interest nonetheless the person on whose behalf it. was collected
becomes the owner as soon as the amount is handed over to the person so authorised to collect on his
behalf. A IR 1972 SC 1490.
(5) The property in respect of which the breach of trust is committed must be the property of some
person other than the accused, or the ownership or beneficial interest in it must be in some other
person and the offender must hold the property on trust for such other person or in some other way for
his benefit. A IR 1967 Cal 568.
(6) The expression entrustment carries with it the implication that the person handing. over any
property or on whose behalf that property is handed over to another 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 fiduciary relationship between them. A mere transition of sale cannot amount to an
entrustment. A IR 1968 SC 700. .' . . . .
(7) A mere breach of contract or of the condition of a permit is not necessarily a criminal . breach of
trust. 1970 PatLJR 600; A IR 1953 Pat 225.
See. 406 Of Offences against Property 1223

(8) The entrustment need not be for any lawful object. AIR 1958 Pat 27'2.
(9) The question whether the accused could have been legally entrusted with the property is
irrelevant. AIR 1959 All 698.
(10) Whether a trust has been created in particular case will depend upon the particular facts,
circumstances ahl evidence in the case. AIR 1956 Raj 20.
(11) Misappropriation of Provident Fund money of school by school authorities—Absence of
statutory rules is no ground to quash proceedings. AIR 1981 SC 81.
(12) Police Sub-Inspector was given bundles of currency notes by complainant during his search—
Bundles handed over by S. I. to L after opening them to be returned to complainant—Some currency
notes not returned by L to complainant—Held, eomplainint had entrusted the notes to Sub-Inspector
for.inspection and return who, therefore, commitfed offence under this section. AIR 1961 SC 751.
(13) Power given to operate on funds in Bank is no entrustment. A IR 1962 SC 1821.
(14) Where a transaction for supply of paddy .created the relationship of debtor and creditor
between A and B no trust was created within S. 405 (1912) 13 CriLJ 888.
(15) The very concept of the matrimonial home connotes a .jointness of possession and custody by
the spouses even with regard to the movable properties exclusively owned by each of them.
Consequently barring a special written agreement to the contrary, no question of any . entrustment or
dominion over property would normally arise during coverture or its imminent break-up. Therefore, the
very essential prerequisites and the core ingredients of offence under S. 406 would be lacking in a
charge of criminal breach of trust of property by one spOuse against the other. A IR 1982.Punj 372.
(16) As to further illustrative cases of no 'entrustment'. A IR 1968 Tripura 36; A IR 1965 Tripura
36 • A IR 1963 Pat 52; A IR 1957 Cal 148; A IR 1957 Mad 722.
3 "in any manner."—(l) The entrustment may be in any manner. AIR 1936 Mad, 353.
(2) As long as the accused is given possession of property for a specific purpose or to deal with it
in a particular manner, the ownership being in some person other than the accused, he can be said to be
entrusted with that property to be applied in accordance with the terms and for the benefit of the owner.
But the words "in any manner" do not enlarge, the term "entrustment." AIR 1972 SC 1490.
4. Criminal . breach of trust and theft: Distinction.—(1) In the case of theft the original taking
of the property is itself dishonest. In the case of a breach of trust, the original taking is lawful and is,
indeed , with the consent of the owner. (1966) 8 Law Rep 291.
(2) A labour employed in a storage depot for grain, substituting dust for food grains is guilty of
theft and not criminal breach of trust. AIR 1955 NUC (Sau) 5053.
5. Criminal breach of trust and cheating.—(1) To constitute a breach of trust, the property
must, in the first instance, have come into the hands of the accused in a lawful manner or with the
consent of the owner. (1977)4 Cn1LT 244 (Punj).
(2) The word "entrustment" itself implies the handing over of property by lawful means and the
phrase "any other manner" means any other legal manner. The word "entrustment" again implies that
the person handing over the property has confidence in the person taking the property so as to create a
fiduciary relationship between them. That confidence cannot arise, where the property is acquired by
the offender by a trick or deceit, if the property is obtained by a trick or false representation to the
owner thereof, there is an offence under S. 420 of the Code. A IR 1936 Mad 353.
i224 Penal Code SeC. 406

6. Trust and loan.—( 1) The relationship between a debtor and creditor is not a fiduciary one and
the advance of a loan is not entrustment of money (1912) 13 CriLJ 888.
(2) Where the debtor pays an amount to the creditor intending to repose trust in the creditor and
expecting him to dispose of the money in a particular manner, there is an entrustment of the money.
AIR 1940 Mad 329. .
(3) Where the accused took an advance from a firm on promissory note promising to use the
money solely in buying paddy and to deliver it to the firm within a certain time at the market rate, the
value to be credited to the loan, it was held that the dealing was not an entrustment. (1913) 14 GnU
-145.
(4) A transaction, which in its real nature is a loan, cannot, by agreement of parties, be brought
under the provisions, of Sec. 405. AIR 1914' Low Bun 1.
(5) Where A and B went to the goldsmith and falsely represented that their mother wanted a
necklace of particular design for getting the design copied for another lady arid the goldsmith gave a
necklace of the required design to the accused who promised to return the same in the evening but
failed to do so, it was held that there was no entrustment but only a loan and tat the accused were not
guilty under Section 406, but would be guilty under S. 403 and also under S. 420 of the Code AIR
1960 All 387.
7. "Dominion over property."—(l) It is not necessary for the purpose of this section, that the
property must be physically with the accused. All that is necessary is that he should have dominion
over it and.that it could be disposed of under his direction and in case he acts in violation of any
direction of law prescribing the mode in which such trust is to be discharged and the property is
accordingly disposed of, he would be liable for criminal breach of trust. 1980 All CriR 105.
(2) Where X has been given the power to operate on the funds in a Bank, he can be said to be
entrusted with dominion over it. AIR 1962 SC 1821.
(3), The mere existence of dominion over property is not enough. Every partner of a firm, for
example, has dominion over the propehy of the firm by reason of the fact that he is a partner. But this
is a kind of dominion which every owner has over his ' property. But S. 405 will apply only where the
dominion over A's property has entrusted to B who commits the breach of trust as described in this
section. AIR 1965 SC 1433: . .
8. "Property."—( 1) There is no good reason to restrict the meaning of the word 'property' to
movable property only when it is used without any , qualification in S. 405 or in other sections of the
Penal Code. Whether the offences defined in any particular section of the Penal Code can be committed
in respect of any particular kind of property will depend not on the interpretation of the word
"property' but on the fact whether that particular kind of property-can be subject to the acts covered by
that section. A IR 1962 SC 1821.
(2) The following have been held to be "property' within the in of this section:—
(a) Sale proceeds of property entrusted to a bail. ILR (1960) 10 Raj 1527.
(b) A debt or actionable claim. AIR 1955 SC 590.
(c) Property purchased with amounts entrusted to the accused for purchasing property. AIR 1955
TravCo 271.
(d) A cancelled cheque. (1904) 1 CriLJ 603 (All).
(e) A chose in action and the funds of a person in a Bank. AIR 1962 SC 1821.
9. Carrier.--(I) A criminal breach of trust by a carrier would fall within Section 407. A person
who is charged under Section 407, but is found not to be a carrier can be convicted under S. 406.
(1885) 8 MysLR No.' 335p.. 561.
Sec. 406 Of Offences against Property 1225
• (2) To. establish an offence against a. carrier under this section it is necessary to show that at least
some of the property entrusted to him could not be accounted for. (1907) 5 CriL.J.235 (Born).
• 10. Pledge.---(I) A dishonest misappropriation or conversion to his own use, by the pledgee of
the property pledged would be a criminal breaéh of trust. So also would be dishonest use by him of
the pledged property in violation of any direction of law or of any legal contract, touching the user of
the property. It cannot, therefore, be stated as a brOd proposition of law that a pledgee cannot be
guilty of crimii al'breach of trust. (18704871)6 Mad NCR A pp X X V III. .. •
(2) A sub-pledge-by the pledgee to the extent of his" interest(in the absence of any condition t"th:e
contrary in the contract of pledge) would be fully within the rights of the pledgee and would not
constitute a breach of trust. A IR 1942 Rang 62. . . .. . I
11. Stack-holder.--( 1) Moneys deposited with a stackholder are moneys entrusted to him and a
misappropriation by him dishonestly willrender him liable under this section. (1 904) '1 CrILJ 730,
12 Deposit of money.---(]) .A deposit by A with B of money which is to be paid back with
interest is merely a transaction of loan unless"under.the terms of ,a contract the amount is to be used for
a specified purpOsc. 1976 ChandLR (cr12 393 (Punj). . .. . ..
13. Collection of money by delegated iuthority.—(1 ') Where a Náib Tahsildar is authorised to
collect rent and he lawfully authiorises his moharir to collect the same the collection of tent by ' the
moharir is, under the circumstances, under an implied authority and the payment to the moharir
constitutes entrustment. A IR 1969 Orissa 190. . . . .. . .
14. Broker and customer.—( 1) Where A advanced money to a broker with a. condition that it
should be used in a particular manner, that the broker should be responsible for the repayment of the
money and should indemnify A against all loss, it was held thatthe transaction did not 'constitute an
entrustment, but was a loan. AIR 1914 LB 1.
(2) Where A purchases property for B and the price is . paid to C, the vendor who pays A 'i certain'
sum by way of brokerage or commission such amount cannOt be considered as being paid to A.,on'
behalf of or for the benefit of B. A IR 1926'Rang 171.
0. Vendor and purchaser.---( 1) A transaction of sale is not an entrustment. A IR 1968 SC 700.
(2) Where the Government sold to the accused contractor cement for the purpose of constructing a
building, but the contractor used only a part of the cement for the building and disposed of the balance
in other ways, it was held that in the absence of evidence of any conditions or particulars of the
agreement between the Government and the accused, it could not be said that there was any fludciary
relation between the t3overnment and the acèused or that the Government had any proprietary rights
over the cement after., the sale, or that there was any entructment of the property so as to render the
accused, guilty under 'this section. A IR 1968 Sc 700.
(3) A a buyer ,obtained from the seller certain documents of title under a 'trust receipt whereby the
buyer agreed to pay interest on the price of the goods purchased until payment was made, it Was held
that the seller did not intend to retain any ownership of the goods, that no entrustment was made and
that . A did not commit any, breach of trust. A IR 1939 Sind '27.
(4) The question whether the property in the goods has or has not passed to the purchaser is 'thus
relevant to the decision of cases under this section but it is not decisive. The decisive test is whether
there was 'entrustment' and the necessary criminal intent. The property in the goods may have passed
to the purchaser: he is, therefore, the legal owner but he may nevertheless constitute himself a trustee
of the goods for the vendor who thereby becomes the beneficial owner. A IR 1939 Sind 1.
1226 Penal Code sec. 406
16. Hire-purchase transaction.---( 1) Mere failure to return the hired articles does not prove
dishonesty. (1951) 52 GriLl 1178.......... . . ..
(2) Where the hirer pledges or sells the property hired in violation of the contract of hire it will be
an offence under this section. A IR 1914 LowBur 1. . ..
()'M hired a motor from Won a rent of Rs. 40 a month. The motor remained in the .use of M
and hire charges . 'were paid by M to W from April 1958 to January 1959; In June 1959 M wrote a letter
to W claiming that he had purchased the motor from W for Rs. 600 on condition that he would try the
motor for 3 months and that if it was found satisfactory the money would be paid and the purchase..
completed. Rupees 620 had been paid as the purchase was complete and .W should give him slips of
papers stating that the motor was sold to M. It was held that there being no change in the possession
of the motor by M, there was no misappropriation by-M; that consequently there could be no breach of
trust and that the dispute as to the trust of the statements in the letter was.merely a 'civil dispOte. A IR
1965 SC 1319.
I .. . .

..
17. Partner.--(I) A partner has the undefined ownership along with the other, partners over all the
assets of the partnership. If he choses to use any ofthem-t&.his own purpose, he maybe accountable
civilly to the other parters..bütcertainly he does not thereby. commit any misappropriation, (1984) 11
Cr1LT3. .. . . . .. .. . . . . .
(2) The section is wide'. enough to include the case of a partner if it is proved that he was in fact
entrusted by agreement with the partnership property or with dominion over property and that he
dishonestly misappropriated the poperty. O970.1 3 SçR 765.'.
(3) Where there is no such special agreement of entrustment, it cannot be. said that a , pa11!r
receiving partnership property receives itin a fiduciary , capacity or that hewas entrusted with such
property. A IR 1965 SC 1433. ,. . ... ..
.
(4) Partners using firm's money for his own purposes-Not a' criminal breach of trust—
Alienating his joint family property to set right misappropriation—Consideration for alienation not
immoral—His Sons bound by alienation. A IR 1982 All 60. .. .. ..
IS. Joint owner.—( I) Muhanimadan co-owners are not joint owners of the property but own
specific shares and that the principlà that in the absence of agreement of entrustment a co-owner cannot
be guilty of breaph Of trust Of the joint prOperty cannot apply to them. A IR 1950 Cal 523. . .
19..Pleader and client.—(1) Where a solicitor being entrusted with a sum of 2,500 pounds to be
invested on mortgage : and for safe custody for the benefit of the persons interested, .did not do so but
to
told the prosecutor that he had done so, but in fact converted the amount his own use, it was, held
that . he was guilty of fraudulent appropriation of the trust money withm Section 76 .6f 24 and 25 Vict
C. 95.(1879) 14 Cox 370. . ..
(2) It is not a criminal offence in every case for a pleader to retain the cilent's monies for fees, the
legal recoyery of which may be timebarred. A IR 1924 Nag 47.
20. Guardian and ward.—(1) The mixtures of funds of another with one's own funds may, be in
many cases natural and proper, in other cases convenient but irregular and in the third, both irregular
and criminal. Apart from constructive criminal responsibility which of course may be imposed by
statute, a Court of Justice cannot reach the conclusion that crime has been committed unless it be a,
just result of the evidencethat the accused, in what was done or omitted by him, was moved by the
(uit mind. (1914) 15 CriLJ .05. . . . .
Sec. 406. Of Offences against Property 1227
21. Ban.ker:,and. custömer.—. i) Money -deposited by depositors,with a Banker cannot be said to
be entrusted to the banker. The relationship between .a. banker and his customer is one 'dl' debtor and
creditor. 1974 CriLl 232 (Punj). . . ..
(2) Where A has a current deposit in BBank, and a cheque issued by A is dishonoured, it is nota
breach of trust but a mere breach of contract. AIR 194.1 Gal 713.
(3) Manager of Bank approving payment of cheques the drawer although in excess of the
.Qverdraft . facilities given to the drawer and.. though he 1ad no authority to .€ive .such overdraft
facilities—Held, that the Bank Manager had committed cirninal breach Of trust and the drawer had
abetted to the same. Held, further that although the 'loan facilities granted, by the Bank Manager had
been ratified by theBoard of Directors., this could not exonerate the criminal offence.committedby
him. (1981) 2 MalayanLi 176. ' . . . . ..
22. Craftsman and:customer.—(l) Where A. hands over, a gold ornament. to B, a goldsmith,
intending to transfer the right thereto out andout to B' on the promise of B.to'give A acértain amount
of gold, the transaction is hot an enttustment' but a contract. Biltif A ,hatds over.the ornament for
being rneItedandconvertedinto gold and-returned to 'A, the transaction is one by which the ornament
is entrusted toB. The. failure'to give, the .gold:in'the first.case is-not a-breach of trustbut in the-second'
case, it is. A IR 1936 All 691.
23.. Entrusting property for repair-41) Allegations made in a complaint were.that .a truck was
entrusted to the - accused for the purpose of repairing it and he had agreed to return it in three days. The
accuse:d. however instead qf returning it .started using the same'. The allegations held constitute an
offence under . Section 406. 1977 Pa,nLJ 265. .. . .. .
24: Contract to.docertain work,—(l) Omission to return earnest money on failure, to perform
contract only creates a civil liability 'and does not. amount to criminal breach of trust. 1977 PunLJ
(Cri) :369 .. . . . . . .
25. Directors. of Company.—(l) . .Directors of:a Company are not only agents; but in some sense
and to some extent trustees; A IR 1962 SC 182L .
26. Miscellaneous^ –( 1.) The mere non-delivery of relevant papers, or money of a ociëty by th
previous secretary to the new secretary does notamount to a criminal kreach of trust. (1971) 7 Co-opL.J
181 (Pat). . .. .
.27. "Dishonestly."—( i) Dishonest intention is one of the essential ingredients. of the offence of
criminal misappropriation and also of the offence of criminal breach of trust, A IR 1959 SC 1390.
(2)Iñ the. absence of proOf of dishonest intention this setion will notapply. A IR 1965 SC 1319.
(3) There may be cases'where it is possible to draw an inference of dishonet. intention from
retention It is, not ,, possible to lay down a hard: and fast rule to the effect that in no case retention
would. lead to an inference of misappropriation. In other words, whether or not an inference. Of
misappropriation can be drawn. in any particular case .would. depend uponthe particular facts of the
case. AIR, 1958Mys 82.
(4) The retention by a rent collector of the collections made by him ' for another, for pay .due to, him,
by that other. AIR 1935 All 922;
(5). The user of money for hisown purposes 'by .a person having a claim against another for more
amounts than the amount belonging to that other in his hands cannot be said to be dishonest. AIR
1940 Mad 329: ' .
1228 : Penal Code • Sec. 406

(6) An intention to misappropriate in future is not within this section. A IR 1934 Lah 843.
(7) A mere failure to deliver the goods entrusted with the accused for delivery is not an offence
under this section A IR 1950 Cal 35.
• - () Deduction from. employees wages on account of their ôontribution to provident fund—
employer's failure to'credit amounts in fünd—Offence. A IR 1961 MadhPra 37.'
2$. "Misappropriates."—(I) Misappropriation of money is the wrongful setting apart or
• assigning 'Of a sum of money to a purpose or use to which it should not lawfully be assigned or set
Apart. AIR 1940 Mqd 329., . . . .
(2) WhereA entrusts B with a document for a particular purpose and B hands over , the same to. C
• for a purpose harmful to the interests of A, B will be guilty under this section. It is not.necessary that
B should have received any money, in order to constitute the offence AIR 1950 Kutch 52
(3) It is not necessary to prove precise mode of conversion or misappropriation. AIR 1965 All 233.
(4) The appropriation by the accused need not be for his own use or benefit. If the accused assert
that he is holding the property ow behalf of some one other, than the , person for whose benefit the
property has been eiitruted to him, his assertion will amount to dishonest misappropriation. AIR 1926
All 302. . . ... . . ..
(5) A misappropriation does not cease to be a misappropriation because it is only. for a short time.
A IR 1936 Pat 350.
'(6) It is not necessary that tfir, accused should have taken tangible property such as money, from
the possession of another and transferred it to his own possession. The transfer of an amount from the
account of another to his own account is sufficient to constitute the offence. AIR 1926. Lah 385.
.29. "COnverts to his own use."-( I) A dishonest conversion of property by the accused to his
own use or for purposes other than those for which it was entrusted is an offence under this section.
'AIR 10.58, Ker 103..
(2) Conversion is committed only when . a man does an unauthorised act which deprives another of
his property permanently or for an indefinite time.. A IR 1949-Pat 326 .. .
(3) A 'servant entrusted with property who refused, to return it, claiming it-as. his own, was held to
have converted the property to his own uSe. AIR 1916 Gal 310.
.30. "In violation óf any direction of law." 1) Where the Managing Director of a Bank being
entrusted with monies of the Bank dishonestly disposed of some of that. property contrary to the
Bank's Articles of Association he was . held guilty under thiàsection. AIR 1915 La/i 471.
(2) An employer who uses his Employdes' Provident Fund money in his own business is not
guilt under this section as there is no legal obligation to employ it in any particular manner. AIR 1956
Mad 6.
(3)-Where the accused was appointed a Receiver by the Court whereby he was given all powers M
in of the business bf a certain Mill to be exercised in accordance with the Articles of
Association of the Mill but took illegal gratification for the sale of articles , belonging to the Mill to the
complainant, it was held that the illegal gratification paid by the complainant cannot be said to , be
entrusted to the accused on behalf of the Mill, that such taking of the illegal gratification could not be
said to be any violation of any direction in the Articles of Association prescribing the mode in which
such trust was to be discharged and that the accused could not be convicted for breach of trust. under
Section 405 of the Code. AIR 1953 SC 478.
Sec. 406 . Of Offences against Property 1229
'31'. "Inviolatlon. of any .legal .contract"–_(1) The breach of a contract , relatin g to property is in
itself not an offence. AIR 1942 C'al'575.
(2) Where a jewel was taken from a goldsmith for a 'particular purpose under a promise to return
• it,.and the person, instead of returning it, claimed toretain.jt in lieu of a debt due to him and claimed
the jewel as his own, he wai held guilty, of an offence undór Section 406. AIR . 1950 Mad 49.
32. Express trust.---(]) Where A accepts %a .salary for the purpose of collecting money. and
•acco unting for the same, and giving receipts to the payers he must be taken to accept an express trust.
(1909,) Jo c1LJ 482
• . 33. "Willfully suffers any tersOn so to do."-_{l) A negligence of rules by A which facilitates
i
'criminalmisappropriation by B, is not a willful, B to commit criminal breach oftrust. AIR
1958'Orissa 194. . . . .' . '•• ' . ,.. . .
• . (2) Where A who was in chargeofthe ' record room dishonestly, gave the keys of the room.to.X for•
giving access -corruptly to the, records, it was held'that A. willfully suffered X. to dispose, of property in
violatio of the direction of law touching the discharge of the trust and was guilty under this . section.
A IR 1936 Pat 108... .
(3) The word "allows" is much wider in its import than the expression "willfully suffers.."
"Willfully" presupposes a conscious action while even by negligence, one can allow 'another to do a
thing. A IR 1957 SC 458. .
34. Onus of proof and appreciation. evidence.—( 1) As in. all criminal cases the presumption is
that the. accusedunder this ' section, also is innocent until he is.found.guilty. The onus of establishing
the existence of all the ingredients of offence is on the prosecution. It is. not for the accused, to prove
his innocence. 19'5 UCR (Born) 274.
(2) The onus of establishing ingredients, of.the offence never shifts...AIR 'I9S5Tripura 35.
(3).The fact..that an explanation given by, the accused is not believed by theJudge or'Juiy.. does not
discharge the onus that rests On' the. prosecution to establish the guilt of the accused. A IR 1955
Tripura 35.
(4) Once, the prosecution makes out a prima facie case against the accused, it willthen be for the
accused to show, how he is not liable. In .this sense, the, onus may be said to shift to the accused: AIR
1953 Raf 117.
.(5) Where the non-payment of amount entrusted to the accused is established it will then' be for the
accused: to explain what he' did with the money and to rebut the presumption arising. from ,the
prosecution evidence. AIR 1953 Raj 117. .
(6) The. burden is on the prosecution to prove every 'ingredient of the offence including the
misappropriation by the accused. , The mere proof of payment of,a certain sum of money to the, accused
does, not shift- the onus to the accused to prove that he did not convert it to his own use.
AIR 1.954
Hi,nPra 33. .. .
(7) Where a. reasonable explanation given by the accused as to. how, the money entrusted, tohim
was, lost, the, accused. is entitled to 'be acquitted in the absence of proof of criminal ..misapprophation
beyond reasonable, doubt, even if the explanation is not convincing. AIR 1949 All 412.
(8) . Where :a person, makes use of money.'belonging to another without: the: latter's. consent and
contrary., to: the purpose for whichpo'ssession thereof was given .by'the latter to' the 'former,' the intention
of the person so making use of the money must prima facie be dishonest.. AIR. 1935 Rang 453.

I
1230 Penal Code Sec. 406

(9) The usual evidence • .of.breaeh of trust in regard to moneys received for the ' purpose-of payment
over is either non-payment or non-accounting. Breach of trust is a definite act like theft or
misapproprationand the above circumstances do not per se constitute such act but merely evidence it.
The presumption arising from non-payment may be negatived by evidence that the delay was caused by
f*geifiulness,. or that •it was acquiesced in by the person to whom the money was due. A IR 1956
Mad 452,. H .,
there was -a large
( 10 ) , A, a public, .sérvant, was entrusted with charge of.goods. it was.found that ,
shortage • in those. goods; Awas foünd:to have falsified the accounts in order: to hide the loss, it was.
held that the only inference that could be drawn from the said facts was that A was guilty under this
• section. A IR 1933 411356. .. . ... . .. .. . .•..
.3S. : Failure.. to aécount.ordèlay in or in payment or omisslonto pay.—(l Mere
failure or omission to return property to the owner is not sufficient to constitute an offence under these
sections unless a dishonest misappropriation or conversion to the accused's own use is proved AIR
1977 SC 1766. . . . .. •- . . , . •:..
• (2) The mere fact that the President of a cooperative society kpt the key to the stores with him
during night-time, .will not by. itself be.sufficient to prove a charge of criminal misappropriation of cash
andstorestherefrom. AIR 1976 SC 1132. .. .' . .
(3) A mere refusal to render account does not necessarily prove an intention to defraud. IR 1937 \..
A
Rang. 505. .. . .. . . :
(4) Where repayment is' made atonce on demand; courts should be slow to assume the guilt of the'
accused,. though it is a possible view that a person may be guilty of breach of trust. between the
misappropriation and the-repayment. AIR 1927 Sind 28..
36; FMlUretocertify. paymentintoCoartunder O .21.; CivilP. C.—( I) Under the Civil
1882an uncertified payment could notbe.taken notice of by "any Court" and itwas held that
the words "any Court" wouldnot include Criminal Court and that a prosecution by an injured
judgment-debtor, of a fraudulent decree-holder in a Criminal court for any offence under the Penal
Code. including S. 406 was not barred. (1886)JLRI 10 Born. 288. . .
'37• Negtigence—( 1) Negligence in payment or-depositing the moneys entrusted will not render
the accused guilty of criminal lbreach of trust as there is no dishonest intention in such a case. 1976
MadL W r,2 76 . .
M. Abetrnent;—(l) A person heJ ping or aiding another. to commit breach of trust may be liable
as an abettor underthis section read with Sec. 109 or Section 116 as the casemay be. A IR 1950
Kutch .37. . . . . . .. . . .. . .
(2) Where Aknew that' B'j'tad handed:overto Cjéwellery to be deosited in a Bank, and that C,
instead ofo zdepsitingmisapprpriated it, and he did -not s inform , B about it but told him an untruth,.,
itwas heldThat A. andC were .ënaged inacriminal conspiracy to commit-the offence. AIR 1928 Oudh
277. . /. . . -. . .. .
39.' These'sectionsandS. .iOofthe:huiuranee Act.--( .l) An offence of criminal breach of trust
under the Penal Code, and an offence under section 105' of the Insurance Act do not constitute the same
offence.andà conviction under the former will not bar a trial 'for the latter. AIR' 1961 SC 578.
(2) -Offences . un'der Ss. '104 and. 105 : of the Insurance Act, 1938 are not identical with offences
punishable under Ss. 405. and 409 of.the. Penal Code—Offence punishable under S. 120B Penal Code
Sec. 406 Of Offences against Property 1231

not reproducted in Insurance Act—Prosecut;on under Penal Code cannot be said to be instituted to by-
pass requirement of sanction under Act. AIR 1969 Delhi 330.
• 441. Agreement to, give time to repay, amount.--<I) The fact that the, complainant had agreed to
give time to thó accused torepay thó amount misappropriated, is no ground for ac.qui tal Of,the accused.
for an offence .under S. 406. (1909) 10 CrLL.J 417.
41. Place of trial.-41) Under S. 181(4) the offence of criminal misappropriation or breach oftrust
may be inquired into or tried by a Court within the local limits of whose jurisdiction
(i) any part of the property which, is the subject-matter of the offence is received or retained by
the accused person , or . . . ..
(ii) the offence was committed 1976 BBC.J 575 (Pat)
(2) Section 178 of the Code provides that where it is uneertairi in which of several., places an
• offence -was committed the Court of any one of those places can try the offence. AIR 1957SC 19,6.
(3) It is the Court within whose jurisdiction the property was received or detained or the dishonest
intention fOrmed that has jurisdiction to try the offence and not the Court -of the place where the loss to
• .the owneràr other consequence occurs. AIR 1930 Born 490.
(4) Where a. breach 'of trust is committed in pursuance of. a conspiraéy, the Court having.
jurisdiction to try the offence of conspiracy has also jurisdiction to try the offence of breach of trust
which lithe, overt act committed in. pursuance of the conspiracy A IRI 962 SC 1821..
(5) Where neither- convention nor ent sffiient,.jast,ak p1acewithiheeritotiil-juriictift of
the Court where the complaint is todged the Court has no junsdictiOn to proceed with the complaint
A IR 1970 Cal 110
42; Procedure and jurisdiction.—(I) A Magistrate: cannot ref usetotake coigni tzance of an offence
under this section on the ground that the amount misappropriated is very small 1.974 BUR 49
(2) Where the accused had been given the benefit of S. 360, and a long time elapse4before the'
matter came to the High Court, the High Court held that it was not proper to interfere with the order
after such a long time A IR 1928 Lah 926
(3) Where in the 'previous proceeding, no charge had been framed under Ss; 405 and 406 nor had
the coinplaintintheproceeding mentioned any of the essential ingredients of the offence:uñder.S. '405,
a second prosecution ofthe .accused on the same facts for criminal breach of.trust will not be barred
under S. 403 of the Criminal Proèedure Code ( 189$). 1966 cri, A pp R $c) M.
(4) W here A*as charged for, criminal breach of.tst and also üder'$;120B of the Code
(conspiracy) and the, charges were inextricably. connected with each other and the charge so'faras
regards breach of trust was concerned was vitiated as being in contravention of S. 212 of the Criminal
P. C., it was held that the trial under S. 120-B of the Code was vitiated. A IR 1960 Barn 205.
(5) Section 203 of the Companies Act(B,d), does not bar the investigation by the Police under
Section 154 of the Crithinal P. C.,o an offence alleged to be committed by an officer, of a Company.'
AIR 1957 Mad 65.
(6) Where 3 persons are charged with breach of trust in collusion with one another, they can: .be
tried jointly. , Section 212 of the Criminal P. C. does not make separatetriMs. necessary insucha case.
AIR 1917 Mad 524.
(7) Where the facts in a complaint indicate fair case. under'this section agáinst:the.accusejl, .it.is,
not proper to. dismiss the comlaintunder' S. 203 of the Cr..' Procedure; Code. AIR 1952.Ajmer 58.
1232 . . . Penal Code . Sec. 406

(8) A first class, Magistrate has no power to award more than 6 months imprisonment on a
conviction under this section. AIR 1972 SC 1309. . . . .. .
(9) Cognizabk—Warrant—Not baitable-Compoundab!e when' the permission is given by the
COurt—Tridbte by Metropolitan Magistrate or Magistrate of the first and second class, Village Court;
If the offenceis committed by public servant, not compoundable---Triabteby Special Judge. under Act
XL of 1958 and Act 11/47. . •. . ... ..
41 Offenées; faIliflg'under this sectionand under a. Special . Act.--{t).Whère the same facts
constitute an offence under this section as welt as offence under the provision of a Special Act, there is
in view of S 26: 6f the General Clauses Act, 1897, no bar to the offence being tried under the Code
1974 LabiC 691. . . . .
44 Existence of civil remedy.--(I) Merely because there is a civil remedy a complaint for
criminal breach of trust cannot be thrown out 1978 Cr:LJ 609
(2) Criminal proceedings should be stayed pending a civil suit in respect of the same matter. AIR
1916 La!, 137. •... .. ..
41 .Chrge.- . 41) The provisions ofS.212(2) must be strictly observed in framing a charge under
this section (1913) 14 Cr,U 219 (Cal)
(2) The charge must also specify the dates between whch the offence is alleged to have been
conmutted. A LR 1957 MadhPra 225
(3) Section 219, Cr P C provides that 3 offences of the same kind committed within one year
miybe charged together.The joinder .therefore ofmore than 3 distinct offences . of criminal breach of
trust committed within the space of one year is. an illegality which vitiates the trial. A IR 1933
Rang325 ., - ... .• ..
(4) A charge for criminal breaeh.of trust in different modes is really a charge for a single offence.
A IR 1962 SC1821. . . . . . ... . . .-....
(5) A charge for an offence under., this section cannot be joined with a charge, for an -offence-. of
extortion.A IR1936 Sind.29. ', •' :
(6) A charge under this section is defective if it omits to sot out the time and manner Of the
entrustment alleged with sufficient particularity. When the accused is charged with criminal breach of
trust, it shall be sufficient to specify the gross sum in respect of which -the offence is alleged to have
been committed, and the dates between which the offence is alleged to have been committed, without
specifying particular-items or exact dates, and the charge so framed shall be deemed to be a chârge.àf
one offence.- . . . .
(7) The charge should run as follows:
I (name and office of-the Magistrate) hereby charge you (nameof the accused).as follows:.
That you, on or about the—, day of—, at—, being entrusted with certain, property, to wit—
committed criminal breach of trust; and that you thereby committed an offence punishable under
section 406 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
(A ) A lternative charges.— (1) Alternative charges can be framed under 'Ss. 406 and 420 of the
Code. 1969 CurLi 554. '
Sec 406 Of Offences against Property M3

(2) Once the offender is punished under S. 420, the other charge cannot be sustained. A IR 1954
Orissa 213.
(3) The filure of the prosecution to split up the first count into two sub-counts cannot obviously
be regarded as introducing a fatal infirmity in the validity of the trial. Such an irregularity can be cured
both under S. 225 and S;537ofthe Code provided of course no prejudice has been thereby caused to
the appellant's case. A IR 1960 SC 661. ..
46. Sanction or leave of Court.—(1) Sanction or leave of the Court is necessary in the following
cases:
(a) Charge of criminal breach of trust against the Manager of the Court of Wards, after the estate
is released and the Manager's account 's finailypassed. A IR 1931 Pat 86: 32 CriLJ 555.
(b) Complaint against a Receiver appointed by a civil Court. A IR 1919 Cal 647:
() Complaint against administrator appointed by Court. A IR 1921 Cal 431.
(2) Where the main offence charged against the accused was one under S. 471 of the Code and
offences under S. 406, 407,467 and 420 were merely tacked on to it, it was held that the case was
not thereby taken Out of the ambit of S. 195(1)(b)(ii) A IR 1969 A ll 489.
47. Acquittal.—(1) Where a person charged under Ss. 406 and 420 on the same facts is acquitted
of the charge under Section 420, as having been compounded with the permission of the Court, he
cannot be tried for the charge under S. 406. A IR 1936 Mad 353.
48. Sentence.—(1) Where a long time had elapsed since the offence took place it was:hëld that a
heavy sentence of fine was sufficient to meet. the ends of justice. 1968 Cr1LJ 983.
(2).There may be extenuating circumstances which render a severe punishment unnecessary. Thus
where, the hirer under •a hire-purchase agreement sold 'the property, but continued to pay the
installments, theinsurance and other expenses, it was held that a sentence of simple imprisonment was
sufficient. A IR:1923 A ll 598. . .
(3) Where the accused is man of position and the Secretary of a Co-operative Society a sentence
of fine, of Rs 1.75: and imprisonment till the rising of the Court was held inadequate and the fine was
raised'to,Rs.. 1000. But, a jail 'sentence. was held unnecessary under the circumstances of the case. A IR
193 Sind 164. . . . .
'(4) The fact that 'the amount involved in the breach of trust is large and the offence has been
committed by a member of the legal profession in which the litigating public must repose entire trust
and confidence calls for a severe sentence; A IR 1935,Rang 453. .. .. .
(A ) Forfeiture ofproperty.— (I)"Sectioii 62 of the Code which was repealed by S. 4 of Act XVI of
1921.. provided for forfeiture of property in cases of Offences punishable with imprisonment. It washed
that such punishment should be inflicted only in rare cases and that cases of embezzlement were not
contemplated by the section. (1903) 4 CriLi 371 (A ll).
49. Alteration of conviction.—(1) A conviction under Section 406 cannot be altered to one under
Sec.. 411 and vice versa, they not being cognate offences. 1967 A IICriR 399.
50. Interference by High Court.-1) The High Court would be slow to interfere with a finding
of fact by the lower Court based on appreciation of evidence. 'A IR 1969' Goa 40.
(2) Appeal against acquittal by State—Leave refused by High Court without assigning reasons and
o without speaking judgment as to how there was no entrustment to accused--Order set aside and High
Court directed to restore appeal on its file. A IR 1982 SC . 1215
1234 Penal Code Sec. 407
51. Practice.—Evidence—p fove: (1) That the accused was entrusted with property or with
dominion over it.
• (2) That he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed
of it.
(3) That he did so in violation of (a) any direction of law prescribing the mode in which such trust
was to be discharged, or (b) any legal contract, express or implied, which he had made touching the
discharge of such trust, or that he willfully suffered some other persons to do as above.
(4) That he acted dishonestly.

Section 407
407. Criminal breach of trust by earner, etc.— Whoever, being entrusted with
property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of
trust in respect of such property, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.
Cases and Materials: Synopsis
1. Scope of the section. : 5• Procedure.
2. "Carrier ". 6. Place of trial.
3. "Wharfinger ". 7. Sentence.
4. Presumption from short delivery of goods 8. Practice.
entrusted. 9. Charge.
• 1. Scope of the section.-(1) This section may be read along with section 106,. Evidence Act. The
word "carrier" has not been defined in the Penal Code but the definition given in the Carriers Act (111
of 1865) may be accepted for the purpose of this section. The carrier other than Government engaged in
the business of transporting for hire movable property from place to place by land or inland navigation.
Any one who undertakes to carry the goods of all persons indifferently for hire is a common carrier.
Those who receive propertyunder a contract, express or implied, to carry it or keep it in safe custody
are punishable under this section for a criminal breach ofduty with respect to such property.
"Warehouse-keeper" is one who keeps a warehouse, which is a house to deposit or keep wares in.
.
'Wharfinger' means a person who owns or keeps a wharf, which is a broad plain place, near some crek
or haven, to lay goods and wares on that are brought to from the water. To establish the essential
elements of the offence under this section, it is necessary t9 show at least that some of the property
entrusted to the accused cannot be accounted for by him. Where the accused was. entrusted with the
carriage of salt from Cox's Bazar to a merchant firm at Chittagong, and a portion of the salt was
abstracted, the Metropolitan Magistrate, Chittagong has got jurisdiction to try the accused on a charge
of criminal breach of trust, as there is a failure to deliver the salt at Chittagong in accordance with the
terms of the entrustment. . .
(2) Criminal breach of trust by carrier—Where accused gives an explanation or even circumstances
- indicate that there was no mi sappropriation—Will entitle him to acquittl. Ordinarily when a person is
entrusted with the goods and fails to deliver them there will be an onus on him .to show that he was
• • not himself retaining the goods. If he gives anexplanation and that ex lanatioi maybe true he cannot
be convicted of misappropriation. Even if he himself does not givç that explanation, but the
circumstances suggest that he may not be in possession of the goods and that the goods may ha'e been
Sec. 407 Of Offences against Property 1235

lost otherwise, he still cannot be convicted. The onus of proving misappropriation, is on the
prosecution and, though in the absence of explanation, there may be a presumption from non-delivery
that the goods have been misappropriated, the existence of facts which suggest an explanation would
be sufficient for giving the accused the benefit of doubt.. Gaizuddin V s. State (1962) 14 DLR (SC)
94 = 1962 PLD (SC) 132. . . .
(3) Case u/s. .417 and 420, PC read with Regulation No. II of Martial Law Regulations No. I of
1975—Agreement between a Partnership firm and the Government for carriage of paddy by country
boat—Agreement prescribing the manner and procedure for settlement of dispute arising from a breach
of obligation by the parties concerned—Boat sank, consignthent lost in part—Carrier firm's repeated
requests expression willingness to pay value of the consignment lost as per rate stated in the
coflsignment—Authority insisted on payment of price three times the value of the consignment and
did not permit the firm to deposit the value of con signment—Whether the case against the Firm's
representative and others comes within the purview of either Ss. 417 or 420, PC or M.L.R. No. Hot
Martial Law Regulations N&. I of 1975—Whether criminal prosecution lies against the firm for loss of
consignment without taking resort to the procedure detailed in the agreement—Transaction between the
parties was of civil nat1re and the liability arising therefrom is a civil liability dischargeable by
accepting the person of the firm—Firm allowed to deposit the value of consignment to the authority—
Proceeding quashed.. Chowdhuiy )V,ruzaman Vs. The State. 5 BSCD 46.
(4) The transaction between the 'parties is of civil nature and the liability arising therefrom' is a
civil liability which can be discharged-by accepting the payment of-the price of 2221 münds 10 seers
of paddy sank, in river—Appellants be allowed to deposit the amount—The Price of the paddy ,sunk in
river. 8BCR 180 A D.
(,) This section, is applicable to a criminal breach of trust by a earner, wharfinger or warehouse
keeper. Dishonest' intention is an. essential element of the offence of criminal breach of trust and'
therefore where the act of the accused is not 'dishonest as defined in Section 24 ante no offence under
this section is committed 1979 TAG 79 (Ker)
(6) Where a corpoiate body is carrier, it cannot be proecutéd for ari offence under this section,asit
cannot be said to have the necessary mens rea (1972) 1 Cal HG N 400
(7) Where a earner firm is accused of an offence under this section the necessary ingredients of the
offence of criminal breach of trust as defined in S. 405 must be established. (197ó) 78 Born L 677.
(8) Normally a cnrnintil breach of trust would be where, a trust is ' created..- In the abs,ence of any
communication between a complainant and .an 'accused no question of trust'cañ ,arise, and S. 407 will
not be attracted 1981 GriLR (Gui) 151
2 "Carrier"—(1) A earner is a person who undertakes for hire the conveyance of parcels or
goods (1849) 154 ER 1254
.(2) In the absence of proof of short delivery of the goods entrusted to ' him' for carrying, a carrier
cannot be held liable under this section. (1907) 5 CriLJ 235 (Born).
(3) The civil liability of a common carrier for loss of goods entrusted to him is much greater than
that of an ordinary carrier. )884) ILR10 cal 166.
- (4) Expression "Carrier' includes all types of carriers including ommon carrier or private carrier.
Section does not make any distinction between 'carrier' and 'common carrier'. .198/ C'niLJ 824.
3. "Wharfinger".—(l) Wharfingers are not carriers or common carriers and the civil liability of
common carriers does not apply to them (1895) 64 LJQB 250.
1236 Penal Code Sec. 408

4. Presumption from short delivery of goods entrusted.—(1) In the absence of explanation for
sh&rt delivery of goods entrusted to a carrier the presumption of misappropriation can properly be
• drawn against him. AIR 1952
. Mad 322.
• (2) Failure to deliver goods intact is sufficient evidence of breach of trust. AIR 1928 Mad 1136.
5. Procedure.—(1) Where 3 persons were jointly tried, one for the offence under S. 407 and the
other two under S. 411 and convicted respectively for the said offences, it was held that, in the absence
of prejudice to the accused, the convictions need not be set aside. (1901) ILR 28 Cal 7.
• (2) Cognizable—Warrant—Not bailable—Compoundable when permission is given by the Court
before which the prosecution ispending—Triableby Metropolitan Magistrate or Magistrate of the First
Class, and Special Judge under Act XL of 1958 and Act 11/47 provided the offence is committed by
public servant in discharge of official duty, in that case it is not bailable—* Not compoundable.
6. Place of trial.—(1) Where the goods entrusted to the carrier were not delivered intact at the
- place of delivery, and there is no evidence as to where the misappropriation took place, it must be
presumed that the placeof delivery is the place where the misappropriation took place and the offence
committed. A IR 1928 Mad 1136
7. Sentence.—(l) The fact that the accused was civilly liable for damages for the loss of the goods
entrusted to him, can be takeninto consideration in awarding the sentence. AIR 1952 Mad 322.
8. Practice.—Evidence—Prove: (1) That the accused is a carrier, wharfiinger, or warehouse keeper.
(2) That he was as such entrusted with the property in qiestion.. - -
(3) That he committed criminal breach of trust in respect of it.
9. Charge.—The charge:should run as follows:
I (name and office of the Magistrate/Special Judge) hereby charge you (name ofthe accused) as
follows: - - -
That you, on or about the--day of—, at—, being entrusted with property, to wit—, as a carrier (or
wharfinger, or warehouse-keeper) committed criminal breach of trust in respect of such property; and
that youthereby committed an offence punishable under section 407 of the Penal Code and within my
cognizance.
And I hereby djrect . that you be tried by this court on the said charge.

Section 408
408. Criminal breach of trust by clerk or servant.—Whoever, being a clerk or
servant or employed as a clerk or servant, and being in any manner entrusted in such
capacity with property, or with any dominion over property, commits criminal
breach of trust in respect of that property, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable
to fine.
Cases and Materials Synopsis -
1. Scope of the section. 5. Partner. -
2. "W hoever". • 6. "Entrusted wit/i property"
3. "Clerk or servant". • 7. "In such capacity"
4. Agent is not Servant. - 8. "Property"
Sec. 408 Of Offences against Property 1237

9. "Commits criminal breach of trust". 20; Trial for offences under S. 408 and other
10. Dishonest intention. offences.
H. "In respect of that property". 21. Abetment.
12. Entrustment with two or more persons. 22 Delay in preferring complaint.
13. Onus of proof and appreciation of evidence. 23. Sanction.
14. Civil liability. 24. Sentence.
15. Vicarious liability. 25. Acquittal.
16. Place of trial. .. .
• 26.. Order under S. 452, C'r:nunal P. C
.17. Procedure. .
27. Interference by High Court and Supreme
18. Charge.
Court.
19. Several persons charged under Ss. 120B; and.
28. Practice. .
408—Acquittal of all except one—Effect. ..
1. Scope of the section.—(1) In order to constitute criminal breach of trust by a clerk or servant,
there must be dishonest misappropriation. The offence is committed even where the act of the accused
is to cause wrongful loss to his master for a time only (5 CrLf 5). A clerk or servant by virtue of his
position enjoys the confidence of their master where such clerk or servant is entrusted with property or
dominion over property and if he commits breach of trust of property entrusted to him, he vill be
guilty of an offence under this section. Where the dispute between the opponent and applicant ' relates in
the main to the settlement of their accounts arising out of the partnership entered into between them
and the complainant is endeavouring to use the criminal Court for the purpose of enforcing civil
liability, the Court should refuse to proceed with the criminal complaint (1968 PCr.Lf 1432). The
secretary of a co-operative, society converting the money of the society as his own and using the same
for his own purposes was held guilty under this section (58 CrLf 518). Where the accused is a
manager of a co-operative society had to deal with cash, gave instruction to the accountant to make
false entries in regard to credit the inference that he wanted to misappropriate was established.
(2) Partner cannot be convicted under section 408. Where a. partner receives partnership goods, he
does not do so in a fiduciary capacity and therefore, when he sells some quantity of jute of the
• partnership business which was made over to him to carry to some place and himself appropriated the
price thereof, he cannot be convicted on a charge of criminal breach of trust under section 408. A bdul
Gafur V s. D. A hmed (1951) 3 DLR 449. .
(3) Double sentence—Not proper—Though it is permissible under section 408 to inflict sentence
of fine simultaneously with the substantive sentence of imprisonment, ordinarily the double sentence
should not be inflicted unless necessary in the interest ofjustice. Kismat A li V s. A . Kader (1952) 4
DLR36(c). . . . ... . ..
(4) The mere fact that the petitioner had been acquitted previously on a charge under section 408
Penal Code does not render him immune from prosecution for disobedience or neglect to obey a valid
Martial Law Order. Provisions of section 403 of Code of Criminal Procedure or section 26 of the
• General Clauses Act cannot be successfully invoked on behalf of the petitioner in this respect. Ghuk,m
Nabi V s. The State, 18 DLR 82 W P.
(5) Where the accused is not a clerk or servant of the complainant, the section will not apply.
7868) 9 Suth W R (Cr) 37. . . .. . .
(6) Where a servant is entrusted with funds to purchase some articles for the master but diverts the
money for his own use, his offence amounts to criminal breach of trust by a servant under this section
and not to cheating under Section 420 infra. A IR 1919 Low Bur 60.
1238 Penal Code Sec. 408
2, "Whoever".—(l) A minor over 12 years of age can be guilty of an offence under this section.
AIR 1959 All 698.
3. "Clerk or servant".—(l) A clerk or servant is a person bound by all or implied
contact of service to obey the orders and.submit to the control of his master in the transaction of the
business which it is his duty as such clerk or servant to transact. (1875) 44 LJMC 65.
(2) Where a contract of employment is for a specified period but the employment continues after
such time, the presumption is that the employment after the expiry of the period is on the same terms
as the previous contract, (7934) 37 Cr1 LI 856 (Nag).
(3) Where the accused was 'working as a cashier of the Society, even if he was an eleted member
of the Managing Committee of the Society and was working as an honorary cashier at the time of
commission of offence, he would be considered to be a servant for the time he worked as a cashier.
Thus he was held to be rightly convicted under S. 408. 1982 Chand CriC 379.
(4) Government Undertaking—its Managing Director and the Secretary are neither servants nor
clerks. S. 408 is not attracted. (1983) 1 Crimes 385 (Delh).
(5) A broker fora person is not necessarily his servant. A broker is well understood to he a
middléman,a person who brings together the buyerandthe seller. A broker can be a seller aswelL4fR
1941 Rang 189. , ' . •. . . .
(6) A disobedient but inocent act of a clerk is not criminal, as there is no element of dishnesty in
such an act A IR 1929 Pat 506• . .
4. Agent is not servant.—(1) While a breach of trust by a clerk or servant will fall under this
.section, a breach of trust by an agent will fall under Section 409. 1966 All WR (HO 5,1 I.
'(2) Where a person who was ieally an agent was' charged fbr breach of trust under S. ' 408 and on
conviction was awarded sentence of 4 years imprisonment, it was held that thoughthe'ase fell under
S. 409 of the Cede, the question became of no importance in view of the fact that the sentence awarded
could be maintained under either section. AIR 1956 SC 149.
5."iartner.—(1) A partner is not . a servant even if he is a working partner, not contrihutin,g'any.
capital, but contributing only his labour. 1952 CLJ 291. . .
(2) Where the relationship between the complainant and the accused is one of partnership and the,,
dispute is one regarding their respective liabilities to each other, it is a civil dispute and conviction
under this section is not sustainable A IR 1931 Pat 159
6. "Entrusted with property".—(l)The Secretary of a Co-operative Society in, possession of the
furdsof the Society must be regarded as a servant of the Society entrusted with such funds and cannot
be regarded as a banker with whom the money has been deposited, merely because he has extensive
properties. AIR 1956 Born 524.
(2) Where a clerk in the service of an estate is 'authorised to receive money on its behalf and to pay
it into the 'estate-treasury, the money so received by him is the estate 'money which is.eiitrusted to him
and if he misappropriates it he would be guilty under this section. AIR 1920 Mad 965.
(3) Entry. in account book showing payment to accused—No other evidence—Entrustment 'held
absent. AIR 1974 SC 388.
(4) l5inployee of a firm nót"a'uthorized to receive or encash cheques of the firm b y getting an
employee of thid treasury to identify liim as a partner induced the treasury officer to deliver money to
Sec. 408 Of Offences against Property 1239
himself on certain cheques. It was held that his act might amount to cheating but not breach of trust as
there was no trust. A IR 1955 NUC (Pat) 4900.
7. "In such capacity".—(l) The entrustment to the clerk or servant must be in his capacity as
such clerk or servant. A charge which omits to state this is imperfect. (1865)3SuthW R(Cr Letters) 12.
8. "Property".—.(l) A cheque is property within the meaning of this section. AIR 1930 All 449.
(2) Res nullius is not a "property". A servant, who was directed to burn waste paper but who sells
it, is not guilty under this section. (1902) ILR 29 Cal 489.
9. "Commits, criminal breach of trust".-.–(l) It is not necessary, to constitute a criminal breach
of trust,, that the misappropriation or conversion should continue for any length of time. Even a'
temporary misappropriation or conversion would be as.. much an offence as misappropriation or
conversion for a long period.(1 90 7,) 5 Cri LJ5 (Born,).
(2) The loss caused to the complainant, though a normal result of misappropriation or conversion,
is not, an essential ingredient of the offenôe. Section 179 of the Criminal Procedure Code does not
apply to such a case so as to give jurisdiction to try the offence to the Court within whose local
jurisdiction the loss occurs. AIR 1931 Rang 164. .
(A ) Illustrative cases— (1) A , an employee, gives security deposit on terms that it will be
refunded when the accounts are duly submitted and accepted. A left service and took from the deposit
what he considered to be the balance due to him, reckoning the deposit as credited with his master. It
was held that A cannot determine his own liability in the matter and take. what he considers is the
balance due to him and that he was.guilty under this section. A IR 1938 Cal 451.
(2) Where, there is no dishonest intention on the part of . the .clerk or servant, no offence under this
section is.committed. A IR 1936 Cal 520.
.
• . (3) Accused ho was Secretary of a Co-operative Society received certain amount—It was entered
*
in books of Society—Wrong eros 's-entry made at his instance—Accused also wor .kingas Manager—
Misappro'pria'tion upheld. AIR '1974 SC 222;
10. Dishonest intention.—( 1) A dishonest intention is necessary ingredient of the offence under
this section. A IR 1958 A nd/i Pra 765.
(2) Where a clerk of the complainant collected rents and after deducting the salary due to him
offered the balance to the complainant who refused to accept it and the accused therefore had to retain it
with him it was held that the accused had no dishonest intention and was not guilty under this section.
AIR 1935 All 922.
(3) Delay in remittance of money Is prima facie evidence of dishonest intention but it is not
conclusive on the question of criminal misappropriation or breach of trust. AIR 1917A11273.
(4) Dishonest intentioii held proved. AIR . 1955 NUC (Assam) 2825.
II. "In respect of that property" ^ ( 1) The breach of trust mut be in respect of the property'
entrusted to the accused. A , who had dealings with B, settled the accounts and sent C, 'his servant,
with the-amount to pay B, C paid the amount to B and received a present from B, it was held that C
was not guilty of any misappropriation of the money entrusted to him by A but that , it would have
been otherwise if A's account with B, was, an open account and the transaction amounted to a reduction
of the amount due: (1886) ILR 8 A ll 120. .. . ..
12. Entrustment with two or more persons.—(1) The joint responsibility of two or more
persons entrusted with monies is not sufficient to support a'criminal charge under this sectton against.
both of them unless it is shown that they acted in concert. 1959 MPLJ (Notes) . 85. ,
1240 Penal Code Sec. 408

13.. Onus of proof and appreciation of evidence.—(1) it is for the prosecution to prove the case
against the accused who pleads not guilty. AIR 1934 Cal 425.
(2) Courts should be slow td presume dishonesty. AIR 1936 Nag 160.
(3) The failure to account or giving a false account is not sufficient to hold the accused guilty,
though it is an indication of dishonest ,intention; it must be , considered along with the other facts and
circumstances of the case. AIR 1957 Orissa 165.
(4) Charge against President of Co-operative Society along with other office-bearers, for
misappropriation of store—Evidence and proof—Circumstance that key of store used to remain with the
President during night—Not sufficient to prove charge beyond reasonable doubt. AIR .1976 SC 1132.
14. Civil liability.—(1) The fact that the employer had taken a bond from the accused employee
for the amounts misappropriated will not preclude a prosecution for the offence under this section. 1'
Weir 465.
(2) Where the facts of the case establish only a civil and not a criminal liability, thissection will
not apply; (1936) 163 Ind Cos 657 (Nag).
15. Vicarious liabillity.—( ) A master will be liable for, the offence of criminal breach of trust by
his servant only if he had wilfully allowed the servant to commit the offence.. 1969 KerLT849.
(2) Defalcation of properties of Co-operative Society—Conspiracy to cause defalcation alleged—
No charge on this count against chairman of Managing Committee of Society—Charge of conspiracy
failing—Conviction of chairman of society vicariously under Ss. 406, 408, 409, 467 merely because
he happened to be chairman—Improper. AIR 1984 SC 151. •' ''

16. Place of trial.—( 1) Where the accused is liable to account at place X for the property entrusted
to him and fails to do so, the Court at place "X is empowered under S. 181(2) of the Criminal P. C. to
try the accused for the offence under this section. AIR 1928 Rang 217.
'(2) Section 179 of the Criminal P. C. does not govern the jurisdiction of a Court to try the
accused for-an offence, 'under this section, as there is a special provision for it under S. 181(4) of the
Criminal P. C. A IR 1924 Lah 663 (665); 25 Cr1 LI 410.
(3) Wh'ere'A was 'entrusted with certain bushels of coffee seeds at place X, to be delivered to B at
place Y, and when A delivered the ,seeds to B it was found that a certain quantity had been abstracted,
it was held that the Court 'at'Y had jurisdiction to try the accused for an offence under this section. AIR
1928 Mod 1136 (1138):30 CriLi 245.
on the evidence, where the breach of trust actually took place the venue
(4) Where it is uncertain,
of enquiry or trial is primarily to be determined by the averments contained in the complaint or
chargesheet and, unless the facts alleged are positively disproved, ordinarily, the Court where the
chargesheet or complaint is filed has to proceed with it except where áction-hsto be taken under
Section 202 of the Criminal P. C. AIR 1957 SC 196.
17. Procedure.—(1) No order under S. 360, Criminal P. C. can be-made o.a conviction under
this section. (19004902) 1 Low Bur'Rul 142.
'(2') Trial for offence of falsification of accounts was unduly prolonged and ended ill acquittal—
Fresh trial for offence under this section in respect of items covered by falsification of account was held
improper. A IR 1942 Pat 401.
'(3) Merely recording order of acquittal on order sheet is not aproper judgment—,A regular
judgment should be written on all points. AIR . 1935 Pat 495.
Sec. 468 Of Offences against Property 1241

(4) Cognizable—Warrant--Not bailable—Compoundable when permissiOn is given by the Court

before which the prosecution is pending—Triable by Metropolitan Magistrate or Magistrate of the first
class. If the accused is a public servant, it becomes, triable by the Special Judge under Act XL of 1958
and Act IL of 1947 and the case is not compoundable and not bailable.
18. Charge.—(1) Section 212, sub-section (2) of the Criminal P. C. provides that it is sufficient
to specify the gross sld'rn or, as the case may be, describe the movable property in respect of which
the offence of criminal breach of trust or misappropriation is alleged to have been committed and
the dates between which it is alleged to have been committed without specifying particular items or
exact dates, and the charge so framed shall be deemed to be a charge for a single offence. A IR 1939
Born 129.
(2) Section 219 of Criminal P. C. provides that where a person is accused of more offences than
one of the same kind within the space of twelve months, he may be charged with and tried at one trial
for any number of them not exceeding three. AIR 1927•All 223.
(3) Where a person commits criminal breach of trust in respect of various sums at different times
in a single year he may be charged with the total. sum as for a single offence but the giving of the
items and the dates and the amounts does not vitiatethe charge provided the gross sum is mentioned
inasmuch as the giving of such details is only favourable to the accused. A IR 1930 Cal 717.
(4) A joinder of charges under this section and under S. 477A (falsification of accounts) would be
• a misjoinder of charges and would vitiate the trial. A IR 1931 Oudh 86
(5) A joinder of charges under this section and under S. 477A would be a misjoinder vitiating the
trial unless both the transactions can on the facts of the case be said to form part of the same
transaction. AIR 1971 SC 1543;
(6) Joint trial of several accused on several items of embezzlement—Apeal against conviction—
Failure of justke, if any, not established—Plea of misjoinder of charges at appellate stage is of little
consequence. AIR 1971 SC 1543.
(7)The charge should run as follows:
I (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the--day of—, at—, being a servant in the employment of X, and in such
capacity entrusted with (or with dominion over) certain property, to wit,-committed criminal breach
of trust with respect to the said property, and thereby committed an offence punishable under section
408 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this court on the said charge.
19. Several persons charged under Ss. 120B and 408—Acquittal of all except one—Effect.-
(1) Where 2 out of 3 persons charged under S. 1•20B and 408 for conspiracy and embezzlement are
acquitted the third person is entitled to an acquittal as a matter of course. A IR 1926 Cal 345.
20. Trial for offences under S. 408 and other offences.—(1) A joint trial for offences under Ss.
408 and 420 would be illegal where the two offences do not form part of the same transaction. (1909)
10 CriLJ 476 (Cal).
21. Abetment.—( 1) Where a person is accused of the abetment of an offence under this section
C' (criminal breach of trust by a servant) it must be proved that the accused had clear knowledge that the
servant was committing a breach of trust. (1900) 4 Cal 14W 309.
1242 Penal Code Sec. 408
22. Delay in preferring complaint.—.(1) There is no limitation for preferring a complaint of a
criminal offence. But the Court will be justified where there has been a long delay, in holding that the
complainant was not very, serious in initiating the criminal proceeding. AIR 1956 Born 247.
(2) Where a complaint under S. 408 was dismissed in 1921 for the non-appearance of parties and
there were subsequent civil proceedings, after the termination of which in 1924, the complainant again
renewed the same complaint (which was dismissed in 1921), with the motive of blackmailing the
accused it was held that the complaint should be dismissed. AIR 1 . 926 Lah 213.
23. Sanction.—(1) In a case arising under this section when the Government of India Act, 1935
was in force, it was held that the accused could not claim the protection of S.. 270 of the Act. AIR
1945 PC 24. .
(2) Where an offence falls under S. 5(2) of he Prevention of Corruption Act, such offence required
sanction before prosecution, the prosecuting cannot avoid it by prosecuting the accused under this
section. A IR 1957 A ndh Pra 663. .
(3) No sanction is necessary for prosecution of a railway servant for an offence under Section 408,
Penal Code, which occurs in Chap. XVII of the Code. AIR 1958 Pat 441.
24. Sentence.—(l) The fact that the servant lost the benefit of his service is no ground for
mitigating the sentence for the crime. (1890) 13 M.j's LR No. 4,21,. p. 656.
(2) Where the accused was 18 years of age and a person of good character and the offence was due
to unpardonable laxity in management and his own miserable pay, a sentence of one year was held
sufficient. AIR 1937 Sind 242, .. .
(3) Where a clerk of many years' standing and in a position of trust, embezzled large sums of
money, it was held that a sentence of 5 years' R. I. was not too severe. AIR 1934 All 173.
(4) A sentence passed by the High Court under S. 408 can be reconsidered by the High Court
under its powers under S. 482, Criminal P. C. which is not limited by S. 362 of the Criminal P. C.
AIR 1927 Lah 139. .
(5) Young law graduate as an employee committing his.first offence of misappropriation. Supreme
Court held no 'serious notice needs to be taken of the lapse. He was 'sentenced to a nominal sentence of
1 month's R. I. and a fine of Rs. 500.00. AIR 1979 SC 1195.
25. Atquittal.—fl) Where a charge against servant under this section specified a gross sum as
having been misappropriated between particular dates, and the accused was acquitted, but subsequently
the accused was prosecuted again on a fresh charge of breach of trust between the same dates of an
amount which was not included in the grosi sum mentioned in the previous charge, it was held that
the previous acquittal did not bar the trial on the fresh charge. AIR 1923 Cal 654.
26. Order under S. 452, Criminal P. C.—(l) Where A was convicted under this section in
respect of certain property Pelonging to B, the Court has no power to make an order under St 452,
Criminal P. C., directing the payment to .B of any amount out of the amount seized by the Police
from A where there is nothing to show that any offence had been committed with regard to that
property or that that amount had been used for the commission of any offence. (1897) ILR 24 Cal 499.
(2) Where A entrusted jewels to B who pledged them to C, a Magistrate convicting B for breach
of trust cannot order to return the property to A. A IR 1922 Low Bur 17.'
27. Interference by High Court and Supreme Court.—(1) Where the Verdict of the jury
acquitting the accused was perverse ', the High Court would set aside the acquittal and convict the
accused. AIR 1935 All 970.
Sec; 409 Of Offences against Property, 1243
(2) Appeal against acquittal by State-Leave refused by High Court without assigning reasons and
without speaking judgment as to how there was no entrustment to accused---Order set aside and High
Court directed to restore appeal on its file. A IR 1982 Sc 1215.
28. Practic.-Evidence-Prove: (1) That the accused was the- clerk or servant of the person
reposing trust.
(2) That he was in such capacity entrusted with the property in question or with dominion over it.
(3) That he committed' criminal breach of trust in respect of il.

Section 409
409. Criminal breach of trust by public servant, or by . banker, merchant or
agent.-Whoever, being in any manner entrusted with property, or with any
dominion over property in his capacity of a public servant or in the way of his
business as a banker, merchant, factor, broker, attorney or agent, commits criminal
breach of trust in respect of that property, shall be punished with 6 [imprisonment} for
life, or with imprisonment of either , description for a term which may extend to ten
years, and shall also be liable to fine. .
Cases and Materials : Synopsis
1. Scope of the section. 23. This section and the offence of theft.
2. Criminal breach of trust, theft, cheating and 24. This section and S. 420.
criminal misappropriation-Distinction. 25. This section and' S. 203 of the Companies
3. Civil and criminal liability-Distinction. Act (Bd)
4. "Being entrusted wit!, property " 16. This section and S. 52, Post Office Act, 1898.
5, Entrustment and loan. 27. Abetment.
6. "With property" . . 28. Charge.
7. Property entrusted may belong to anybody. 29. Dishonest intention.
8. "In any manner". 30. Onus and proof-A ppreciation of evidence.
9. "In his capacity of a public servant" 31. Procedure.
10. "In the way of his business as banker, etc." 32. Separate trials for each item
11. "Dominion over property" . . misappropriated.
12. "Banker" . . . . 33. Jurisdiction.
13. "Factor". . .. 34. Place of trial.
14. "Broker". . 35 Sanction.
15 "A ttorney ' . . 36. Plea before Supreme Court for first time..
16. "Agent" .37. A lteration of conviction.
17.. "Commits criminal breach of trust" 38. Vicarious liability. .
18. This section and S. 34. . 39• Previous acquittal or conviction-Effect.
19. This section and Prevention of Corruption 40. Civil liability.
Act . . 41. Sentence. .
20.. This section and S. 477A. . 42. Order under S. 517 of the Criminal P. C.
21. This section and S. 27, Cattle-trespass Act .43 Bail..
22. This section and Ss 104 and 105, Insurance 44. Practice..
Act. . .
1244 Penal Code Sec. 409
• 1. Scope of the section.--(I) For an offence under this section the first requirement is that the
property must be proved to have been 'entrusted and a subsequent conversion of the.property entrusted
to the use of the accused. "Dishonesty" is the essential ingredient of the offence and that must be
proved before an accused is. held guilty of the offence under section 409. If the acts or omission
committed by the accused do not convey an impression that any dishonest intention was harboured by
him, no offence results. This section does not include an intention to misappropriate at future date (36
CrIJ 165). A person cannot be convicted of criminal breach of trust in respect of immovable property.
This section classes, together public servant, bankers, merchants, , factors, brokers, attorneys and agents.
As a rule the duties of such persons are of a highly confidential character, involving great powers of
control over the property entrusted to them: and a breach of trust by such persons may often induce
serious public and private calamity. Entrustment of property is to be proved beyond any reasonable
doubt before a person can be convicted under section 409 of the Penal Cole. Where the prosecution has
definitely failed to prove that any amount at any particular time was entrusted to the appellant, which
he could and in fact did misappropriate conviction was set aside (1973 PCrLJ 148). Where there is
neither evidence that the accused had dominion over property lying in the store nor the property lying
in the store was ever entrusted to him, the accused cannot be held guilty of an offence under section
409: Where the prosecution evidence leaves considerable room for doubt with regard to both the
points, namely,entrustment as well as misappropriation, there can be no conviction (PLD 1964 Dhaka
368). A public servant in this section meansa person covered by the definition in section 21 of the
Penal Code. Criminal breach of trust committed in the capacity of secretary of a private organisation
cannot be treated as a breach of trust committed by public servant as such (PLR 1960 Dhaka 1043).
Where a Sub-inspector of Police wanted to search the "Potli" containing the currency notes and the
complainant made over the potli to the officer, it was a clear case of entrustment, and if the amount
returned by the Sub-inspector was short by a certain amount the offence of criminal breach of trust
under section 409 Penal Code was made out (A IR 1958 A ll 584). If it is shown that money entrusted
to the accused or received by him for a particular purpose, was not used for such purpose, neither was
the same returned by him in accordance with his duty, it lay on the accused to prove his defence, if he
has setup any. The fact that money entrusted to be used for a particular purpose, was not used for such
purpose, that there was retention for a sufficiently long time, would justify the inference that the
accused did not intend to pay (38 çW N 467). The relationship between a banker and customer
normally is that of a creditor and debtor. There are, however, cases where banker may be constituted
trustees. Where a Bank takes deposits from customers it takes then on the understanding that such
deposits will not be utilised for 'paying dividends and if contrary thereto such deposits are utilised for
paying dividends, the Bank will be liable under section 409. The Manager, the Accountant or the
Assistant Manager do not fall under the expression "Banker" to attract section 409 Penal Code.
Bankers in the course of their expanding business, Maintain safe vaults, receive jewels for safe
custody, lend on pledge etc., Where the relationship of bailor and bailee might arise, in such cases
section 409 Penal Code will be attracted. Under the present amendment of section 2.1 of the Penal
Code the Bank employees of nationalised Banks are public servants and if they commit offence they
come within the mischief of section 409 Penal Code. Factor is a substitute in mercantile affairs; and
agent employed to sell goods or merchandise consigned or delivered to him by or for his principal, for
a compensation commonly called factorage or commission. 'Attorney' is one who is appointed by
another to do someth ing in his absence, and who has authority to act in his place. An agent is a person
employed to do any act for another or to represent another, in dealings with a third person. The term
Sec. 409 Of Offences against Property 1245
'agent' in section 409 is not restricted only to those persons who carry on the profession of agents..
Commission agents are agents within section 182 of the Contract Act, but are not agents pure and
simple. Failure to account for various sums of moneys collected as agent of bank amounts to criminal
breach of trust. Brokers are intermediaries between the namfacturer or producer and the customer or
consumer. More commonly he is an agent employed by one party only to make a binding contract
with another (1957 CrLf 265 A ll).
(2) Public Servant— W here a public servant is sought to be tried for criminal breach of trust, it is
• necessary that sanction for his trial should be obtained. Where trial is held without obtaining sanction
from a competent authority it is illegal and conviction and sentence imposed must be set aside. The
sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of
prosecution and the Government have an absolute direction to grant or withhold their sanction under
section 197 CrPC when any public servant who is not removable from his office some by or with the
sanction of Government (Public Division) or some authority, is accused of any offence alleged to have
been committed by him while acting or purporting to act in the discharge of his duty, no court shalf.
take cognizance of such offence except with the previous sanction of the appropriate Government
sanction is not necessary in the case of all public servants. A public servant can only be said to act or
to purport to act in the discharge of his official duty if his act is such as to be within the scope of his
official duty. The test may well be applied whether the public servant, i challenged, can reasonably
claim that, what he does, in virtue of his office in proper discharge of his official duties is a question
of defence, to be investigated at the trial and could not arise at the stage of grant of sanction which
must precede the institution of the prosecution. The act complained of must be an offence. There must
be a reasonable connection between the act complained of and the official duty, so that the public
servant could lay a reasonable but not a pretended or fanciful claim that he did it in the discharge of his.
official duty. Once the delegate of the sanctioning authority has refused to grant sanction, the power to
grant or refuse sanction is exhausted it cannot be exercised thereafter even by the sanctioning authority
for the purpose of granting sanction for prosecution (1918 PCrLJ 1262). .
(3) Theft and criminal breach of trust—If any person entrusted with property, deals with it
wrongfully or contrary to the terms of entrustment, then that is plain breach of trust or
misappropriation, it can be termed or described as theft (PLD 1961 Lah 669).. Falsification of accounts
and misappropriation are separate offences and the accused cannot be tried jointly for the offéncès under
section 409 and section 477A (14 DLR 398).
(4) Place of Trial—The complainant who resided at Ujantia, Cox's Bazar appointed the accused
his agent for sale of his goods at Chittagong and sent his goods.. The accused sold the goods and
misappropriated the sale proceeds. The Court at Chittagong has jurisdiction to try the offence. If there
is a contract that the accused is to render accounts at Dhaka .and he fails to do so as a result of his
Criminal Act in respect of the money, he can be said to dishonestly use the money, at that aforesaid
place as well, in violation of the express contract, which he has made touching the discharge of the
trust by which he came by the money, and so he commits the offence of criminal breach of trust at that
place also, and the courts at Dhaka have jurisdiction to try him. . . .
(5) Misappropriation charge—What amounts to admission.—The 'accused when charged with
having misappropriated a sum of money impliedly admitted his liability to pay by asking 'for, time in.
which to make good the 'deficit, which time was extended on several occasions at his request, but he
failed eventually to make up the loss and the case was reported to the police. Held: This does not
amount to an admission that he committed an offence of criminal breach of trust. A Latf V s. Crown
(1953) 5 DLR (WPC) 40 ('42).
1246 1Penal Code I
Sec. 409

(6) Prosecution under section 40; and the provisions of section 5 of Act II of 1947. Where in
respect of a prosecution of a public servant under section 409, it was contended on behalf of the
accused that so far as public servants are concerned, the provisions of section 409 have been repealed
by section 5 of Act H of 1947, so that if it is sought to prosecute a public servant for such an offence,
it must be for criminal misconduct under Act II of 1947 and for no other offence. Held: The
prosecution of the accused under section 409 was in accordance with law. A Latf V s, Crown (1953) 5
DLR (WP) 40.
(7) Money not paid into exchequer—Case covered by the section—Prosecution need prove actual
conversion on the part of the accused. It has never been understood to be the duty of the prosecution to
prove that the accused converted the property to his own use; it is sufficient if the Government was
deprived of the use of the money for an unexplained, period, it being presumed in such a case that the
accused had applied this money to his personal needs. State Vs. A bu Reza (1966) 18 DLR (SC) .512
1959PLD (SC) 309.
(8) Collection of revenue—Lambardar collecting revenue from land-owners, but did not deposit in
Government treasury—Misappropriation—Offence under section 409 committed. Crown Vs. Imdad
Khan (1953) 5 DLR (W C) 106
(9) Criminal breach of trust—Not only entrustment of or the dominion over property must be
proved but also that the accused dishonestly misappropriated the sum himself or suffered some other
•person to do so. In a case where the charge against an accused person is that of criminal breach of trust,
the prosecution must prove not only entrustment of or dominion over property but also that the
accused either dishonestly misappropriated,. converted, used or disposed of the property himself or that
he wilfully suffered some other person to do so. The prosecution must affirmatively prove these
ingredients of the offence unless the, receipt of the money is admitted and the accused offers no
satisfactory explanation of what he did with it. Almas All Khan Vs. State, (1957) 9 DLR (SC) 14.
(10) Prosecution need not 'always prove misappropriation by direct evidence—Circumstances
showing the facturn of misappropriation by direct evidence—Circumstances showing the factum of
misappropriation may be sought to prove the guilt. A ddl. A dvocate-General W P Vs. Ta/jr Beg, (1965)
17 DLR-(WP) 90.
(11) Criminal breach of trust can be inferred from circumstances. Retention of money for
sufficiently long period may itself raise an inference of a temporary misappropriation: Dishonest
intention is manifest form the act of the appellant giving an unnumbered receipt to the complainant. If
money due to a particular person is not paid the law allows only a civil suit and not criminal
proceeding, for in the case of mere retention without any misappropriation, thre is only acivil
liability . Mere retention of money entrusted to a person without any prior misappropriation, even
though he was directed by the person to pay it to so and so or to deal with the money in a particular
way, is not a criminal breach of trust, and unless there is some actual user by him which is in
violation of law or contract, there is no criminal breach of trust, and even if there is such user there
must be a dishonest intention. A bdul Barek Vs. State, (1962) 14 DLR 292.
(12) Charge for defalcatioiD of money and falsification of accounts—Misjoinder. When the accused
was charged under section 409, in a lump for an aggregate sum defalcated by him consisting of.13
different items of value received for 13 demand drafts and also charged under section 477A under one
head for falsification of accounts by omitting to enter these receipts in the account books of the Bank.
Held: There. was a misjoinder of charges vitiating the trial. Sailendra Parasad V s. Crown (1950) 2
DLR 349. ' '
Sec. 409 Of Offences against Property 1247

(13) Offence under section 409—Amounts alleged to be misappropriated, forming basis of

conviction, must be specifically put to accused for being explained undei ' sec. 342, Cr. P. C.---
Omnibus question on total amount misappropriated not enough. 1956 PLD (Kar) 310.
(14) Charge under section 466 and 477A sustainable even if accused be found not guilty of
criminal breach of trust. A ddl. A dvocate-General W . P. Vs. Tahir Beg, (1965) 17 DLR (W P) 90.
(15) The accused (a Superintendent of certain Government department) admitted by his
endorsement in the Cash Book of the department receipt of a certain sum of money at the time of his
assumption of the charge—A few days later, on a count, the actual balance found was much less than
the amount shown in the cash book—Evidence establishes that there was a practice from long before
the accused's assumption of office whereby the officers and employees of department used to take
advances from the cashier on deposit of chest & cheques and the advances were subsequently
recouped—The amount short was covered by such advances—NO element of dishonest intention is
disclosed—Entitled to be acquitted of the charge.. Sirajul Islam Vs. State, (1973) 25 DLR (SC) 73.
• (16) Charge of misappropriation—Accused offering an explánàtion which if reasonable exonerates
him of the charge. Where the entrustment of certain goods with the accused has been proved and the
shortage in the quantum of such goods has not been denied by the accused, if he fails to give any
satisfactory account for the shortage, the presumption will be that the accused has dishonestly
converted, used or disposed of that property. But if the explanation is reasonable and if there is no
circumstances or evidence of dishonest conversion or disposal, the accused cannot be held liable for
misappropriation; A bu Saleh Chowdhury Vs. State, (1970) 22 DLR 339.
(17) Relief goods distributed without complying with the standing rules—Distributor liable for
disobeying the rules and not for criminal breach of trust. A bu Saleh Chowdhury Vs. State (1970) 22
DLR 339• . . .
(18) Conviction under two separate statutes—In the present case under section 409 P. Code and
section .5(2) of Act II of 1947 lawful; but imposing separate and independent punishment for each
conviction, that is, double punishment, is prohibited; The accused has been found guilty under section
409, P. C. read with section 5(2) of the Act II of 1947 and has been sentenced under. section 409, P.
C. The position is that the accused has been found guilty under both the provisions of law, i.e., under
section 409, P. C. as well asunder section 5(2) of the Act II of 1947.The learned Special Judge did
not pass any separate sentence under section 5(2) of the Act II of 1947 but passed the sentence only
under section 409, P. C. It was argueØ that the accused could not be convicted under two different laws
mentioned above. There is no force in this contention. Section 26 of the General Clauses Act chibits
punishment under two different encatments; but it does not prohibit trial or conviction under those
enactments. Furthermore, section 5(4) of Act II of 1947 says that the provisions of section 5 are in
addition to and in derogation of any other law for the time being in force and nothing contained in that
section shall exempt any public servant from any proceeding which could be instituted against him.
There is similar provision in section 71 of the P. Code which prohibits punishing an offender for more
than once for the same act which is punishable under one or more, definitions. Thus the law and
principle contained in section 26 of the General Clauses Act, section 5(4) of the Act II of . ! 947 and
section 71 of the P. Code, is the same, i.e., double punishment is prohibited but trial and conviction
for different offences .are not at all prohibited. Muhammad Sadiq Javeed V s. State, (1969) 21 DLR
(WP) 62. • •. ..
(19) In a charge for criminal breach of trust the prosecution must prove that the amount against the
receipt issued by the accused was actually paid to him and the accused misappropriated the amount and
1248 Penal Code Sec. 409
that in the absence of such proof the conviction is bad in law. A fsar A ll V s. The State, (1973) 25
DLR 131.
(20) 3 ingredients to be proved in order to convict—Held: Second and third ingredients not
proved. Shamsul Huq Chowdhury Vs. State, (1987) 39 DLR 393.
(21) A person receiving property in a fiduciary capacity must deal with the property according to
the terms of the agreement or trust. Haji Md. Mohsin Vs. State, (1988) 40 DLR 43!.
•(22) Two distinct parts in an offence of criminal breach of trust—One is creation of an obligation
in relation to the property over which there is dominion and the other is misappropriation or
dishonestly dealing with the property by the accused. Haji Md. Mohsin Vs. State ('1988) 40 DLR 431.
(23) Cognizance of the offence u/s. 409P. C. taken by the Sessions Judge as the Senior Special
Judge is a mere irregularity in registering the case as a special case. Haji Md. Mohsin Vs. State, (1988)
4ODLR 431.
(24) A person receiving property in a fiduciary capacity must deal with the property according to
the terms of the agreement or trust. Haji Md. Mohsjn Vs. State, 40 DLR 431.
(25) Two distinerparts in an offence of criminal breach of trust—one is creation of an obligation
on relation to the property over which there is dominion and the other is misappropriation or
dishonestly dealing with property by the accused. Haji Md. Mohsin Vs. State, 40 DLR 431.
(26-27) In order to prove the offence of Criminal Breach of Trust there must be the allegation of
entrustment of property and misappropriation thereof. In the absence of either of the two ingredients
the offence is not complete. Mir A mir A ll Vs. State, 45 DLR 250.
(28) Allegation was that the appellant dishonestly misappropriated '10 bags of powder milk, which
was meant for distributi?n among the poor students—Defence version was that he did not submit any
application seeking allotment of relief powder, milk nor did he take delivery of them—Question arose
as to whether the legality of the conviction on the ground of contradictory and insufficient evidence
which necessarily ,calls fur the scrutiny of the evidence is maintainable. Held—"We have given Our
anxious consideration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and
our conclusion is this conviction cannot be. sustained. Moslemuddjn Talulcder Vs. State, 42 DLR
(AD) 103..
(29) There is no merit in the submission that the prosecution has to prove its case of
misappropriation of entire shortage. The accused is bound to account for every pie entrusted to him.
AMA W ajedul Islam Vs. State 45 DLR 243.
(30) Appellant deposited the amount for which he was charged for misappropriation—Co-accused
having been already released on bail—The bail of the appellant should not have been refused—Appeal
allowed and appellant allowed to remain on ad-interim hail granted by the Appeal Division. Md.
Serajul Hqque Vs. State 42 DLR (A D) 52.
(31) Sentence of imprisonment till rising of the Court—whether it is an imprisonment—An
import question arose to be answered in this case. It is whether a sentence of imprisonment till rising
of the Court can be said to be a sentence of imprisonment within the meaning of section 409 of the
Penal Code as well as under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947).
Detention till rising of the Court is imprisonment. In the light of the aforesaid dictionary meaning and
judicial pronouncements I have no hesitation to hold that the detention of the accused-appellant till the
rising of the Court is imprisonment within the meaning of section 409 of the Penal Code and section
Sec. 409 Of Offences against Propéty 1249

5(2) of the Prevention Corruption Act, 1947 (Act II of 1947)ãs his liberty freely to go about his
business as at other times was restrained by order of the Court as he was confined in the Court
precincts. Jalaludin A hmed Chowdhury Vs. State, 41 DLR 87.
(32) The accused having withdrawn money of the account holder PW2 upon •a previous
understanding between them, the trial Court misdirected itself in assessing evidence in the case in its
true perspective and thereby wrongly convicted him. A KMMohiuddin Vs. State, 50 DLR 447.
(33) The matter should be sent back to the Magistrate for hearing specifically on the point whether
the investigation can be proceeded and police report can be submitted under section 509 Penal Code
without the permission of the Magistrate. A bul Hoss4in (Md.) and others. V s. State (Criminal) 53
DLR 402.
(34) Criminal Breach of Trust—Misappropriation—Entrustment--Re-examination of evidence—
Appellant having failed to account for the goods in question entrustee to him (which fact was proved
on evidence) and in consequence the Offence of Criminal Breach of Trust is complete. It is no part of
the prosecution to próe how appellant misappropriated wheat—On re-examination and cons jderation
of evidence, no doubt was found in truth of prosecution case. No ground, therefore, to interfere with
conviction and sentence of the appellant. A butHossain Molla Vs. The State I BScD 246.
(35) Offences mentioned in S. 3 of Act .11 of 1947 do not include. one punishable u/s. 409 Penal
Code—Sec. 5(2) of Act II of 1947 provides for punishment of a public servant who commits the
offence of criminal misconduct mentioned is Sec. 5(1) (a) to (d)—An act of dishonestly or fraudulently
mis-appropriating any property entrusted to a public servant constitutes an offence of criminal
misconduct u/s. 5 (1) (c).—Petitioner was tried not merely for an offence uls. 5 of Act II of 1947 but
for an offence u/s. 409 of the Penal. Code-fl-Sub-Sec. (5-A) of Sec. 5 of Act II of 1947 has no bearing
on the point of investigation of offence u/s. 409 of the Penal Code and the competency of the police
officer who investigated the case cannot be challenged. Jamdhar Khan Vs. The State, 27 DLR (AD) .35.
(36) Accused acquitted in respect of charge under former offence but convicted for the latter
• offenëe—Conviction and sentence, whether valid—Question as to misjoinder of charges and statement
of accused u/s. 342 of Cr. P. C. not referred to in the judgment-'-validity of the decision. Held: (i)
The finding of fact that the petitioner by abusing his official position obtained pecuniary advantage for
the contractor, the conviction u/s. 5(2) of Prevention of Corruption Act 1947, was valid even though
the petitioner had been acquitted of the charges u/s. 403 of the Penal Code, and S. 5(2) permits the
Court to impose the sentence of fine even when he had obtained pecuniary.advantages not for himself.
but for another. (ii) The test of determining whether several offences were connected together so as to
form one transaction depended upon whether they were so related to one another in point of purpose or
as .cause and effect as to constitute one continuous action. In the instant case, it is proved that all the
four advantages were given for the same work and the various acts were done with one end in view,
i.e., to obtain pecuniary advantage.for the contractor. The series of acts were connected by proximity of
time, unity of purpose and continuity of action and formed part of the same transaction within the
meaning of S. 235, Cr. P. C. (iii) The petitioner's trial with 2 other public servants and a contractor is
legal and valid. Since the petitioner was examined u/s 342 Cr. P. C., absence of reference of that point
in Judgments do not make the decisions invalid. K. M Zaker Hossain V s. The State, 1 BSCR 7129
DLR (SC) 250. . • .
(37) Dishonest misappropriation or criminal breach of trust is an offence which is committed by a
person who not only himself misappropriates the property or converts it to his own use, but is also
committed by a person, who being entrusted with the property, dishonestly disposes of it in violation
1250 Penal Code Sec. 409

of any direction of law or of any contract express or implied made touching the discharge of such trust
or "if he wilfully suffers any person as to do." Government allotted paddy of 242 maunds to the
petitioners—Chairman for re-excavadtion of Kashi Khali Khal. For implementation of the scheme a
Committee known a Kashi Khali Khal Project Committee was formed withthe petitioner—Chairman
as its president. The petitioner took delivery of the paddy but he alpngwith three other persons
including the Secretary of the Committee, instead of doing paddy and tlieby misappropriated the
sale-proceeds and thereafter the petitioner and these members fabricated a 'fâlse Muster-roll by forging
the left thumb impressions of some labourers showing that the latter received the paddy as their wages
for doing the excavation. On these allegations the petitioner along with;fcur others was brought for
trial before the Special Judge under the Criminal Law Amendment Act. Different, pleas were taken by
the accused-persons but the trial court found the petitioner and three other accused guilty of Criminal
misappropriation as well as forgery and convicted them under these sections and sentenced them each
to rigorous imprisonment for one year and fine of Tk 5000/ in default to rigorous imprisonment for
three months more by judgment and order dated 30 April 1982. The Project Implenientation Officer,
Co-accused M was convicted and awarded the same sentence for abetting the commission of these
offences. On appeal as mentioned above conviction and sentence of the accused persons excepting M
were maintained; conviction of M was set aside .Chairman chaJlened the order of his conviction and
sentence confirmed by the High Court Division—It was urged : Mr. Malek does not. dispute the
entrustment of the paddy, non implementation Of the project, sale of the paddy and fabrication that
after receiving the allotment from Government the petition e.rSmade it over to the Secretary of the
Project Committee, Co-accused A against a receipt,. Ext. A, and thereby he absolved himself from
further responsibility in the matter. As to the preparation of the Muster-roll which contains signature of
the petitioner as President of the Implementation Committee, it was contended that the petitioner
simply countersigned the Muster-roll as a matter of course without knowing it to be a forged
document. Observed: These explanations are devoid of any substance. When the petitioner took
delivery of the paddy from the Government and when he himself was the President of the
Implementation Committee his responsibility did not cause by handing over the. paddy to the
Secretary, for it was his duty to see that the khal was re-excavated and the paddy was distributed to the
labours who actually did the work. There is no evidence that after handing over the paddy to the
Secretary the. petitioner enquired as to what happened with the paddy and whether the khal was re-
excavated. Held: Dishonest misappropriation or criminal breach of trust is an offence which is
committed by a person who not only himself misappropriates the property or converts it to his own
use, but is also committed by a person, who being entrusted with the property, dishonestly disposes of
it in violation of any direction of law or of any contract express or implied made touching the
discharge of such trust or "if he wilfully suffers any person so to do." Md. Faziur Rashid Vs. The
State, 6 BSCD 35. . .
(38) Bail matter€onfirmation of bail—Appellant deposited the amount for which he was
charged for misappropriation—Co-accused having already been released On bail, the appellant's bail
should not have been refused—Ad interim bail granted. SerUul Hoque Vs. The State 42 DLR (A D)
52 =BCR 1990 AD 154.
(39-40) Allegation of mis-appropriation of 10 bags of powder milk meant for distribution amongst
poor students—Defence version was that he did not make any application seeking allotment of relief
powder milk nor did take .deliveiy of them—Legality of the conviction on the ground of contradictory
and evidenceas to 8 bags or 10 bags the conviction
cann@tèeujjrJ. M.uddin Thlu.kder V s. The State, 42 DLR (A D) 103.
Sec. 409 Of Offences against Property 1251
(41) Criminal Breach of Trust—As per agreement the appellant was bound to take the wheat to his
own area—Non disclosure about his retention of the unspent quantity of wheat before a case was
started against him and he was served with a notice in connection therewith—A public servant who is
entrusted with any property can use the same only for the purpose and/or in the manner he is required
to do under any agreement, instruction, order or law. He cannot part with the property even temporarily
or covert it for any other purpose beyond the terms governing such entrustment. If he cannot produce
the property on demand without any satisfactory explanation it will be presumed that he has
committed a criminal breach of trust, no matter he thereafter makes good the loss by returning the
-same in cash or in kind. Md. Nurul Haque Howlader Vs. The State, 11 BLD (A D) 260.
(42) Criminal breach of trust by a public servant—For an offence under Section 409 of the Penal
Code it is obligatory on the part of the Court to award a sentence of imprisonment with or without
fine— A sentence of fine only is not legal. Tamizuddjn Sarker Vs. The State, I BLD (HCD) 302.
(43) Criminal breach of trust by public servant—Mere irregularity in purchasing articles will not
attract the provision of Section 409 of the Penal Code—To bring home the charge the prosecution
must prove not only the entrustment of or dominion over the property but must also prove that the
accused either dishonestly misappropriated the property or converted, used or disposed of that property
himself or that he wilfully suffered some other person to do so. A lauddin and others Vs. The State 4
BLD (HCD) 75.
(44) Detention till the rising of the Court—Whether imprisonment extends to confinement not
only in a jail but also in a house and some other place so long as the accused does not have the liberty
to move out freely—The detention of the accused in the Court premises till the rising of the Court is
imprisonment within the meaning of the term 'imprisonment'. Jalaluddin A hmed Chowdhury Vs. The
State 9.BLD (HCD) 141.
(45) Criminal breach of trust on a charge of misappropriation relying on the uncorroborated
testimony of PW1—No measurement book,.no papaer of delivery of paddy, no Master Roll was
produced—Investigation Officer was not also examined—The trial Court gave a moral conviction
which is not permissible in law. A bdul Jabbar Dewan Vs The State 12 BLD (HCD) 38.
(46) Awarding sentence of fine along with sentence of imprisonment for life, whether can be said
to be illegal. Awarding sentence of fine along with imprisonment for life cannot be said to be illegal in
view of the said provision of section 409 of the Penal Code. A . M A . W azedul Islam Vs. The State 13
BLD (HCD) 296.
(47) The word "banker" used in section 409 of the Penal Code, whether has been used in the
technical sense of the Banking Companies Act. Held: The word "Banker" occurring in section 409 of
the Penal Code has not been used in the technical sense of the Banking Companies Act but it signifies
any person who discharges any of the functions of the customary business of banking. The word also
includes a firm or company that carries on such business. Mustafizur Rahman V s. The State and
others, 13 BLD (HCD) 287. .
(48) Mere delay in payment of money entrusted to a person, whether amounts to misappropriation.
Mere delay in payment of money entrusted to a person, when there was no particular obligation to pay
at a certain date, does not amount to misappropriation. A . H. M Slddique V s. The State, 13 BLD
(HCD) 85.
(49) In S. 409 of the Penal Code there is no provision for confiscation of property. Yet
the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was
1252 Penal Code Sec. 409

not specially raised before the High Court Division, Bibhuti Bushan Talukder Vs. The State, 17 BLD

(AD) 168.
(50) Mere retention of money by the accused for some time without actual use for which it was
meant or mere delay in'disbursement of money due from him, if properly explained, does not constitute
an offence u/s. 409 of the Penal Code. A K. M Hafizuddin Vs. The State, 15 BLD (HCD) 234.
(51) The ingredients of section 409 of the Code are misappropriation and criminal breach of trust
in respect of property over whicii he had dominion as public servant. The appellant had no criminal
intention to commit such criminal breach of trust in respect of the property which was held within
dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding
over his financial difficulties and as such the appellant is entitled to acquittal as of right. A. K. M
Mohiuddin Vs. The State, 20 BLD (HCD) 172.
(52) In order to constitute offence punishable under section 409 . there must be the ingredient of
criminal in to misarrpopriate the money. A . K. M. Mohiudin V s. The State-4 MLR (1999)
(HC) 105.
(53) Misappropriation—Necessary evidence when not produced—When the Investigation Officer
fails to seize the entire stock and Distribution Registers and none of the prosecution witnesses stated
anything about the misappropriation of the insecticides the accused appellant cannot be held guilty of
the offence under section 409 of the Penal Code and the conviction and sentence passed by the trial
court is liable to be set aside. Kalipada Pal Vs. The State-4, MLR (1999). (HG) 185.
(54) In order to constitute offence punishable under section 409 there must be the ingredient of
criminal intention to misappropriate the money. A . K. M. Mohiuddin Vs. The State-4. MLR (1999)
(HG) 105.
(55) Charge of Misappropriation—Criminal misconduct by public servant—Charge of
misappropriation under section 409 of the Penal Code read with section 5(2) of the Prevention of
Corruption Act, 1947 has to be established with consisten t and cogent evidence in order to secure
Conviction of accused public servant. In the case of misappropriation in relation to earth work the
measurement book is the relevant evidence to establish the charge. When the measurement book is not
produced and the evidence so brought on record are discrepant, no conviction in such a case is held to
be sustainable. 7 MLR (HG) 458.
(56) It is settled that once entrustment is proved then it becomes the duty of the accused to
account for the money entrusted to him. A bdur Rahman . Vs. State (Criminal) I BLG-215.
(57)Duties of Bank officials regarding payment of cheque—As per Service Rules of Agrani Bank
the duty of a cashier, on receipt of a cheque, is to see whether it is duly posted with marking by the
ledger keeper and cancelled with the initial of the cancellation officer and in case of a big amount
whether it was cancelled with the initials of two officers including the Manager. In the instant case
without following such Rules the absconding officer-in-charge of cash and the second officer who had
responsibility of supervision of ledger posting and payment of cash and the cashier by corrupt practice
and by abusing their position as public servants obtained illegal payment of Taka 4 core for the drawer
of the cheque through an unauthorised and concealed overdraft and they were rightly convicted under
ections 409/109 of the Penal Code read with section 5(2) of Prevention of Corruption Act. Faziul
Karim 'Md) Vs. State (Criminal) I BLC 300.
(58) The appellant Bibhuti Bhusan Talukder .abetted the officials of the Bank in committing a
criminal breach of trust of 4 crore takas by presenting a cheque and the signature on it is tallied with
the admitted signature of him and the chuë was in his custody which conclusively proves that he had
Sec. 409 01 Offences against Property 1

1253
presented the cheque for taking away a huge amount of money in collusion with some officials of the
Bank and he was rightly convicted under sections 409/109 of the Penal Code. Faziul Karim (Md) Vs.
State (Criminal) I BLC 300.
(59) It was the duty of the Manager, Agra.ni Bank, Khatunganj, Chittagong to keep the safe cash
limit amounting to Tk. 20 lac but he used to keep excess cash upto 1 crore or 2 crore in violation of
the circular of the Bank but in the absence of mens rea or criminal intent the manager cannot be held
guilty of the offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention
of Corruption Act but itis open to the Bank to prove the acts of commission or omission, if any,
committed by the Manager. Faziul Karim (Md) Vs. State (Criminal) 1 BLC 300.
(60) Both the trial court as well as the High Court Division believed the evidence of PWs 4-5 that
despite repeated reminders and despite the resolution taken by the lipazila Parishad, the petitioner did
not submit the completion report of the project '
rojec even during the trial and as such the case of the
petitioner has been ended on appreciation of evidence for which it merits no consideration. G M
Nawsher A li Vs. State (Criminal) 2 BLC (A D) 183.
(61) Considering the facts and circumstances of the case the Appellate Division is inclined to take
a sympathetic view in the matter of the sentence. The conviction of the appellant under sections
409/109 of the Penal Cods is maintained but the sentence of RI for two years is reduced to the period
already undergone. In lieu of the said reduced sentence, the sentence of fine is enhanced to Taka
10,000.00, in default, the appellant shalt suffer RI for six months. Jalaluddin A hmed alias Jalaluddin
A hmed Vs. State (Criminal) 3 BLC 216
(62) Although on the banapatra in question a title suit is pending but cognizance of the offence
was taken not only under section 467 of the Penal Code but also under sections 409 and 420 of the
Penal Code and under section 5(2) of Act II of 1947 and as such the criminal case is not barred under
section 195(1 )(c), CrPC. Sac/at A li Talukder (Md) @ Sadat A li Vs. State & another (Criminal) 4 BLC
(AD) 228.
(63) Sentence—It is a case of temporary defalcation which is a serious offence. The ends of justice
will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is
maintained and the substantive sentence is reduced to the period already undergone as prayed for.
Sekander A li Howlader and others Vs. State (Criminal) 4 BLC (A D) 116
(64) The, petitioner supplied the required quantity of rice to the Food Departrneit when from the
side of State neither filed any counter-affidavit nor disputed any of the official papers and as such the
Court under section 561A, Code of Criminal Procedure. could examine the admitted documents of the
accused. On a plain reading of the first information report and charge sheet it would appear that the
facts stated therein clearly and manifestly fail to prove the alleged charge against the petitioner is an
abuse of the process of Court and interference is required under its inherent jurisdiction to secure the
ends of justice and hence the proceeding is quashed. Shoicrana (Md) V.. State (Criminal) 5 BLC 611.
(65) In all 130.661 metric tons of wheat were allotted in four installments for construction and re-
construction of a road and the project implementation officer, PW 8, was in charge of supervision of
the said project but he failed to state as to when he visited the project in question nor has he come in
Court with any measurement book showing pre-measurement and post-measurement of the said project
and hence the prosecution has hopelessly failed to prove about the alleged work done by the accused
persons and the alleged misappropriation of the wheat in question is also not proved and as such there
is no scope to hold that the appellants are guilt' for the alleged offence. A bdul Motaleb Mia Vs. State
(Criminal) 6 BLC 5. .
1254 Penal Code Sec. 409

(66) Section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 are
attracted when a criminal offence of breach of trust is committed by a public servant. Sections 409 and
420 of the Penal Code are included in the schedule and offences punishable under the Prevention of
Corruption Act, 1947 but such offences must be committed by a public servant bit under paragraph 3
of the Schedule, any person acting jointly with the public servant or abetting the public servant may
also be tried by a Special Judge but in the instant case the petitioner is the only accused as such, the
question of trying him by a Special Judge with a public servant does not arise and hence taking the
cognizance of the offence and framing of charge against the Petitioner under sections 409, 420 of the
Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. is without jurisdiction. Ganesh
Chandra Halder Vs. Manindra Nat/i Baien and otheis (Criminal) 6 BLC 207. .
(67) None of the prosecution witnesses has deposed that the appellant by manipulating and
interpolating the certificate by inserting figure 3 before 23 misappropriated 323 maunds of jute seeds•
from the godown. None from the department concerned came before the trial Court:to depose that
actual misappropriation was done by the appellant himself. Thus, the prosecution has failed to prove
its case. Mozibur Rahman (Md) Vs. State (Criminal) 6 BLC (AD) 127.
(68) The petitioner is a member of the Union Padrishad and was -: Chairman of the Project
Committee consisting of other members who have not been implicated: j n the cases and alleged
completion to have submitted muster roll after completion of work and it is in evidence that he did
some work. Ends of justice would be best served if the sentence is reduced to the periodbf sentence
already served Out and fine of Taka .10,000 in default to suffer rigorous imprisonment for one month
only. Moselemuddin (Md) Vs. State (Criminal), 6 BLC (A D) 138.
(69) Sentence—Considering the .fact the convict-appellant has already undergone 6 (six) months of
imprisonment the Appellate Division has remitted his substantial sentence of rigorous imprisonment
for 4 (four) years but maintained fine of Taka 60,000.00 in default, to suffer rigorous imprisonment for
one year more. Mohibul Islam Vs. State (Criminal) 6 BLC (AD) 44.
(70) The petitioner by showing false documents induced the purchaser to enter into an agreement
to purchase the house on receipt of Taka 12 lacs on a plea that he would refund Taka 14 lacs in the
event of failure to execute sale document. The contention of the petitioner to the effect that it was a
civil dispute and that the Court of Settlement had given a final decision over all the disputes including
the question of criminal liability is not sustainable. The criminal proceeding cannot be held to de
- liable to be quashed. 43 DLR 95.'
(71) The accused having withdrawn money of the account holder PW 2 upon a previous
understanding between them. The trial Court misdirected itself in assessing evidence in the case in its
true perspçctive and thereby wrongly convicted him. 50 DLR 447.
(72) Meaning of entrustment—Entrustment connotes that the accused held the property in fiduciary
capacity—Cl Sheets of Tahsil Officer which were blown off by storm were collected and kept in the
Tahshil office--Whether the Tahshilder incharge was entrusted with Cl sheets. The learned Judge
appears to have misconceived the legal concept of the word "entrustment" occurring in the section 405
Penal Code. It is the blown-off CI sheets which are the subject matter of entrustment and not the
Tahshil Office as a whole. Further there is no evidence that appellant Abu Baker was entrusted with
task of preserving property of Tahsfiil Office. Therefore, his finding that the, property i.e. the blown off
Cl sheets were entrusted with the appellant is entirely based on erroneous view. 40 DLR 483.
(73) Trial held on perusal of order of sanction—Objection, if any, as to sanction, must be taken at
the time of the trial—Appeal dismissed. 10 BCR 456 AD. . -.
Sec. 409 Of Offences against Property 1255

(74) To establish charge of criminal breach of trust distinct proof of crimintl misappropriation is
necessary. Entrustment or dominion over the property implies handing over the property—but evidence
disproved handing over. The learned Judge relied much on moral conviction than legal testimony.
Criminal Trial—Prosecution has to establish by definite and clear evidence that case for defence is
untrue . Basic ingredients of offence of criminal breach of trust have not been proved. In absence of
proof of basic ingredients of offence of criminal breach of trust, conviction and sentence cannot be
sustained. 39 DLR 414.•
(75) The transaction between the parties is of civil nature and the liability arising therefrom is a
civil liability which can be discharged by accepting the payment of the price of 2221 manunds 10 seers
of paddy sank in river—Appellant be allowed to deposit the amount—The price of the paddy sunk in
river; 8 BCR 180 AD. . .• .
(76) The accused—Appellant wanted to prove his defence with the help of the receipts granted by
prosecution witness who was not examined and whosenon-examination was not explained. The
rejection of defence prayer to examine the said witness who granted receipts to the accused resulted in
failure of justice. 2 BCR 329. .
(77) A. law changing the character of an accused person from an ordinary citizen to that of public
servant and providing variation of punishment to such accused person to his prejudice cannot be said
to be a procedural law. Amending enactments were not given retrospective operation and hence on the
date when the offences were alleged to have been committed by accused petitioners they are not public
servants and as such the learned Special Judge had no jurisdiction to try them under Pakistan Criminal
•Law (Amendment) Act, 1958. 33 DLR 83.
(78) Evidence establishes that there was a practice from long before the accused's assumption of
office whereby the officers and employees of the department used to the advances from the cashier on
deposit of chits and cheques and the advances were subsequently recouped. The amount found short
was covered by such advances. No element of dishonest intention is disclu.,ed. The accused is entitled
to be acquitted of the charge (Ref 14 DLR 292): 25.DLR 73 SC.
(79) Acquitted in the 1st trial on a charge u/s. 409 Penal Code on the finding that signatures in
question who made in good faith. Second trial started u/s. 477A Penal Code for falsification of
• accounts is not maintainable as same question was in issue as in the second trial. 14 DLR 550.
(80) Offence of criminal breach of trust by public servant is exclusively triable by the Special
Judge with sanction by appropriate Government. 14 DLR 18 SC.
(81)Non-submission or delay in submission of the completion report along with accounts cannot
by itself be an incriminating circumstance. 4 BCR 458 SC.
(82) Shortage of cash in post office—Prosecution case resting on statement of witnesses one of
whom declared hostile who are not proving shortage of cash in safe of Post Office beyond reasonable
doubt—Inventory of safe also not found correct—Prosecution, Held, failed to establish charge against
accused. 1983 PCrLJ 1610. •
(83)In the case of a public servant the property must have been entrusted to him in his capacity as
a public servant. In the case of others i.e. bankers, merchants factors, brokers, attorneys and agents, the
entrustment. must have been made in the way of their respective business. (1980) 82 PunLR 435.
(84) The essential ingredients-to be establis hed in a charge against a public servant of an offence
under this section are:
1256 . Penal Code Sec. 409

(i). that the áccuséd was a public servant;

(ii) that he was entrusted, in such capacity, with property;
(iii) that he committed breach of trust as defined in S. 405. 1977 PunLi (cri) 208.
($5) The word 'Trust' is a. comprehensive expression which was has been used is S. 4 09 on
covering not only relationship of trustee and beneficiary but also that of bailor arid bailee, master and
servant, pledger and pledgee, guardian and ward, and all other relationship which postulates fiduciary
relationship between the complainant and the accused, without existence of such relationshipthére,
cannot be an offence under S. 409. 1984 CriLJ.76. .
2. Criminal bre ach of trust, theft, cheating and criminal misappropriation—Distinction.-
(1) In theft the original taking is without honesty and without the consent of the owner and in crimma!
breach of trust it is with both In obtaining property by cheating the taking is dishonest, but with the
consent of the owner, and in criminal misappropriation it is honest but without the consent of the
owner. A IR 1928 Nag 113. .
3. Civil and criminal liability—Distinction.—(1) As a matter of civil liability, persons
entrusted with property, might properly be held liable for the value of property which had disappeared,
owin.g.to caselessness or negligence or mlparactice of any kind on the part of the party. But criminal
liability under S. 409 of the Penal Code is a totally different matter. Not only must there be an initial
entrustment of the goods, but there should be a subsequent dishonest conversion to the use of the.;
concerned accused. That alone constitutes criminal breach of trust. (1971) 1 MqdL.J 240.,
4. "Being entrusted with. property."---( 1) One of the essential elements of the offence of breach
of trust is that the accused must have been entrustment with property. 1978 CriLJ 1379.
(2)A chose in action which is "property" within the meaning of This section. A IR 1980 SC 439.
(3) In the absence of entrustment of property this section also, will not apply. The question
whether entrusted property to B is one which depends , upon the actual facts and circumstances Of the
case and not merely: upon the legal terms employed by . the .parties. A IR 1938 Sind 57.
(4) Offence of criminal breach of trust—Proof of entrustment of money is condition precedent. AIR
.1983 SC 631. .. . . .' .. . . . .
(5) Money handed over to money-order issue clerk in a post office is money entrusted to him. AIR.
1957 Orissa 268... . .
16) Where under an agreement entered into by the accused with Government the accused is under a
duty to sell to persons grain stored . in. Government building and pay the sale proceeds to the
Government, the accused is entrusted with the property. A IR 1956 Hyd 180.
(7) "Entrustment" implies that the persons handing over the property to another continues to bç
the owner and has placed confidence in the other so as to create a fiduciary relationship between them.
A IR 1968 SC 700. . . ..
(8) 'Where the ownership has passed to a person he cannot be said to be entrusted with the
property. A IR 1967 Cal 568.
(9) The section does not provide that the entrustment of the property should be by someone or the
amount received must be the property of the person on whose behalf it is received. As long as
the accused is given possession of property for a specific purpose or to deal with it in a. particular
manner, the ownership being in some person other than theaccused, he can be said to be entrusted
Of Offences against Property 1257
Sec. 409
with that property to be applied in accordance with the terms of entrustment and ffor. the benefit of the
owner. A IR 1972 Sc 1490.
(10) Where goods are entrusted to A for sale and A sells them, the sale proceeds also must be
regarded as property entrusted to him. A IR 1932 Sind 169.
(11) Public servant entrusted with Government money—Misappropriation for personal use
—Refund of amount when act of defalcation discovered does not absolve him of offence. A IR 1983
SC 174.
(12) Amount alleged to be misappropriated was drawn , in• the name of a chowkidar who had
given receipt for the same. Chowkidar nowhere stating that the amount was not received by him or
that he was forced to sign the receipt. Held accused cannot be convicted under . Section 409. A IR 1979
SC 1080. .
• (13) Securities delivered with a view to cover the repayment of any overdraft by the pledger Bank
to the pledgee Bank—On delivery of the securities pledgee Bank becomes trustee n terms of the
contract, not for all purposes, but only for the limited purpose indicated by the agreement between the
parties. A IR 1956 SC 575. . .
(14) Accused under contractual obligation to return amount if not spent—Accused spending
- amount for specific purpose—Held, accused committed no offence. A IR 1966 Orissa 106.
5. Enstrustment and loan.—(1) A transaction of loan is not an entrustment as the ownership in
the money borrowed passes to the debtor. A IR 1954 A ll 583. . .. . ..
(2) Denial by debtor of having received loan is, therefore, not breach of trust. A IR 1954 A ll 583.
6. "With property."--(I) The offence of criminal breach of trust involves entrustment of property
or of dominion over property and dishbnest misappropriation, conversion, etc. It is not possible to
find these elements unless one can form a conception as to what the property is. Therefore, there must
be a definite finding of a definite property or sum of money traced to the .accused in . order to form the
basis of a conviction. A IR 1925 Gal 260.
7. Property entrusted may belong to anybody.—( 1) provided there is entrustment it matters
little whether the person entrusting the property is the owner or not. A IR 1960 Born 53.
8. "In. any manner."—(l) It is not necessary that the entrustment should be one that is attended
by all legal formalities required for the creation of a trust. A IR 1956 SC 575.
(2) Where a police officer made a search for currency notes and the complainant handed over
the same to the officer who after counting them returned the same to the Complainant when it was
found short of certain amount, it was held that the police officer was guilty under this section. A IR
1961 SC 751. •. . .
9. "In his capacity of a public servant." ^ ( I) The entrustment to a public servant must in
order that the section may apply have been made to him in his capacity as public servant. A IR 1979
SC 1841. .
A IR
(2) An entrustment made to a public servant in his private capacity is not within; this section.
974 SC 794. . .• .. ..
(3) The following persons have been held to be public servants for the purposes of this section:
(a) Naib Nazir. (1870) 2 NW P (HCR) 298. . . .
(b) The officiating Kulkarni of a village. A IR 1939 Born 63.
1258 Penal Code Sec. 409.

(c) A Mouzadar ih Assam. (1933) 40 Cal W N 1154.

(d) A Qurq Amin. 1960 A1ILJ 357.
(4) Sanitary Inspector of Municipality is a public servant. AIR 1923 All 480.
10. "In the way of his business as banker, etc." .—(l) In the case of a charge under this section
against persons referred to in the section other than a public servant it must be alleged that entrustment
was made to the accused "in the way of his business" as banker, etc. 1968 All WR (HC) 117.
(2) The words "in the way of his business" mean that the property is entrusted to him in the
ordinary course of his duty. AIR 1962 SC 1821.
(3) In the case of an agent the ,requirements of the section would be satisfied if the person be an
agent of another and that other person entrusts him with property or with dominion over property in
'the course of his duties as such agent. But an éntrustment for a purpose unconnected with the agency
will come within this section. 1962 SC 1821.
II. "Dominion over property."—(l) A, a public servant, wa g responsible for the proper
spending of a certain sum of money. But he had no dominion over the money other than passing
orders for payment thereof. He could not produce vouchers for the expenditure owing to the death of
the person who actually spent the money. The owner of the money himself was satisfied with the
payments made and exonerated A from every liability, civil or criminal. It was held that there was no
case for criminal prosecution against A. AIR 1933 Oudh 387.
(2) In a case where the right and title to the property in respect of which an offence under this
section. is alleged to be committed must be established by a civil suit before the criminal liability can
be fixed beyond reasonable doubt, the dispute is essentially of a civil nature and the question of
liability for breach of trust cannot be adjudicated upon before the title to the property is established by
a civil Court. AIR 1 .974 sc 290.
12. "Banker."—(l) In this section the word "banker" has not been used in the technical sense of
the Banking Companies Act, but signifies any person who discharges any of the function of the
customary business of banking and would include a firm. AIR 1960 All 103.
(2)The fact that laige sunts of a cooperative society were allowed to remain with a person because
he was possessed of extensive properties cannot make him a banker .of the society. AIR 1956 Born 524.
(3) Large sums of money deposited in Bank—Overwhelming evidence against accused Manager
that, but for fictitious entries, bank was not able to show repayments in question—Conviction held
was justified. A IR 1974 SC 1354.
13. "Factor."—(l) An adatya with whom goods are left to be sold on instructions in the market
is in the position of a factor to whom the property in the goods passes, and if he sells without
permission, he would not be guilty under this section. AIR 1943 Nag 168.
14. "Broker."—.( l) Where money is paid to the accused, a share broker, specifically for purchase
of share and he neither delivers the shares nor returns the purchase money, he would be guilty under
this section. 1957 criLi 265.
15. "Attorney."—(I) Money entrusted to solicitor to invest on mortgage—Held solicitor was not
entrusted with property under 24 and 25 Vict Ch. 96. (1882) 8 QBD 706.
16. "Agent."—(l) A factor is an agent, but he has got a lien for his commission on the property
entrusted to him for sale. The factor does not lose such right by reason of his acting under special
Sec. 409 Of Offences against Property 1259
instructions from his principal to sell the property at a particular price or to sell in the principal's
name. (1883) 25 Ch. P 31.
(2) The Directors f a company are agents'of the company. AIR 1980 SC 439.
(3) In some respects the Directors of a company are also trustees. A IR 1962 sc 1821.
(4) Where a bank advanced loans to certain members of a cooperative society to be realised by the
society and repaid to the bank, the Secretary of the society who collected the amounts from the
members for payment to the bank, was held to be the agent of the bank. A IR 1969 Pat 173.
(5) A commission agent who is not entrusted with property or any dominion over a property
cannot be held guilty of breach of tn,ist in respect of such property. A IR 1962 Cal 197.
17. "Commits criminal breach of trust."--( 1) In order to attract this section the accused must be
one of the classes of persons specified in the section and he must have committed breach of trust as.
defined in Section 405. A clerk in a Government record room making over a document forming part of
the records in his custody, to a person who had not applied for it by application on a stamped paper is
guilty under the section. (1904) 1 CriLJ 894.
(2) A Peshkar whose duty is to receive moneys and deposit the same in a bank and maintain
accounts, making false entries and creating false receipts and misappropriating the amounts received are
guilty under the section AIR 1958 AndhPra 29.
(3) A person in charge of Government dump removing the material under false permits is guilty
under this section. AIR 1950 Lah 199.
(4) Loans advanced by bank to members of cooperative society—Loans realised by society to be
repaid to bank—Secretary of Society failing to deposit realised amounts—Secretary liable under S.
409. A IR 1969 Pat 173.
(5) Mere retention of money entrusted is not a breach of trust. 71IR 1970 Pat 311
(6). The mere fact that accounts have been wrongly kept by the public servant is not an offence
unless misappropriation is established. AIR 1930 Oudh 324..
(7) A misappropriation or conversion to one's own use being a necessary ingredient of the offences
of breach of trust, there can be no conviction under this section in the absence of proof of such
misappropriation or conversion. AIR 1952 Ajmer 23.
18. This section and section 34.--(]) Where A commits breach of trust under Section 409 of the
Code in furtherance of the common intention of A, B and C, B and C also will be liable for the
offence under Section 409 read with Section 34 of the Code. The presence of B and C when the offence
was committed by A is not necessary. AIR 1960 SC 889.
(2) If there is any criminal conspiracy, the accused should be punished for that offence even though
the charge in respect of the substantive offence of theft or criminal breach of trust may not be brought
home to them. AIR 1959 All 75.
19. This section and Prevention of Corruption Act, 1947.—(])The offence created under
Section 5(1)(c) of the said Act is distinct and separate from the one under Section 409 of the Code. It
does not repeal or abrogate Section 409. AIR 1960 SC 397.
(2) There. can be a trial and conviction under Sec. 409 of the Code even though the accused may
have been acquitted in a trial for an offence under Section 5(2) of the Prevention of Corruption Act.
AIR 1957 SC 592. . .
1260 Penal Code Sec. 409

(3) It is open to the prosecution to proceed against the accused under either provision. AIR 1955
Born 451.
(4) Whereas a sanction by the Government to, prosecute the 'accused under Section 5(2) of the
Prevention of Corruption Act is necessary, no such sanction is necessary for a prosecution under S.
409. A IR 1967 SC 776.
20. This section and section 477A.—(1) Section 477A deals with falsification of accounts by a
clerk, officer or servant. It is an offence distinct from misappropriation or criminal breach of trust by a
clerk, officer or servant which is punishable under S. 408 or S. 409. An accused may be guilty of
offences under both S. 409 and S. 477A. A IR 1927 Mad 626.
(2) A single charge under S. 408 or 409 and also under S. 477A is illegal unless both the offences
form part of the same transaction in which case S. 235, Criminal P.C. will apply to the case. AIR
1956 SC 149. . . .
(3) No sanction is necessary for a prosecution under Section 409 but it is necessary for a
prosecution under S. 477A. AIR 1939 FC 43.
21. This section and S. 27, Cattle-trespass Act.---(l) Where a cattle-pound keeper levied 'from•
the complainant Rs. 5 for five buffaloes in the pound but entered only Rs. 4 in the account, and on
learning of the complaint altered the entry and remitted the full amount, it was held that.the accused.'
was guilty under this section and S. 511 and not under S. 27 of the Cattle-trespass -Act. Rat Un
CrC 632.
22. This section and Ss. 104 and 105, Insurance Act.—(l) Sections 104 and 105 of the
Insurance act are not identical with this section and therefore a prosecution under this section cannot be
said to be instituted in order to by-pass the requirement of sanction under the Insurance Act. AIR 1969
Delhi 330.
23. This section and the offence of theft.—(l) Where the original taking of the property by the
accused is lawful and there is subsequent misappropriation the case is one of breach of trust and not of,
theft. A IR J95OLahI99. ' •. .
24. This section and S. 420.—(1) A lottery agent under agreement with the, government
purchased lottery tickets not as an. agent but by way of outright purchase. The cheque that he gave was
dishonoured. The case will not fall under-S. 409 but would come under S. 420 P.C. 1981. BLJ 434.
25. This section and S. 203 of the Companies Act (Bd).—(1) Section 203 of the Companies
Act (Bangladesh) is onli an enabling provision and does not deprive a police officer of his jurisdiction
under Ss. 154, 156, and 157 of the Criminal P. C., to investigation into a complaint of an offence
under Ss. 406 and 409 of the Code and initiate proceedings in the Court, even if he acts in respect of
which the offences arise were committed in relation to the affairs of a company. 41R 1957 Mad 65.
26. This section and S. 52, Post Office Act, 1898.—(1) Where an accused was charged before a
Magistrate with offences under S. 52, Post Office Act and under S. 4Q9, Penal Code and the Magistrate
instead of committing the accused to the Court of Session to stand his trial for the offence under S. 52
of the said Act, proceeded with the trial and acquitted him, a retrial for an offence under S. 409 would
be barred (as the Magistrate and jurisdiction to try the accused for the offence), but a retrial for the
offence u/s. 52 of the said Act would not be barred inasmuch as by virtue of S. 461 of the Criminal P.
C. the trial by the Magistrate for that offence was void as being without jurisdiction. AIR 1970 Goa 7.
• 27. Abetme'nt.—( 1) Where the offence of criminal breach of trust was exhypothesi complete long
before, and something was done subsequently to help the real offender to conceal the embezzlement, it
Sec. 409 Of Offences against Property 1261
was held that the accused was not guilty of abetment of the offence, though he might be guilty of
some other Offence; AIR 1928 Lah 382.
(2) The accused was charged of criminal breach of trust. The charge was not proved but the
.
evidence indicated the abetment of an offence under S. 409. It was held that the conviction under S.
409 sho,uId be set aside and that in view of the fact that a conviction for abetment would imply a
definiteinding that another who was not before the Court was guilty of the offence, it was not
expedient to alter the conviction to one for abetment. AIR 1954 SC 621.
28. Charge.—(1) Where it is possible to , prove that a specific sum received has been embezzled
the charge should be confined to that particular item. Where this is not possible he may be charged on
a general deficiency in his accounts. (1895) ILR 18 All 116
(2) A charge specifying the 'gross sum embezzled within 12 months is not bad merely because
details of the items, more than three, are given. A IR 1957 MadhPra 225.
(3) Two charges under Section 40 .9 and two alternative charges under Section 420 in respect of the
same transaction cannot be validly joined together. AIR 1952 Born 177.
(4) A charge and trial for an offence under Section 409 of the 'Code is not barred by reason of the
act that the offence falls under Section .16(7) of the Pawn Broker Act. A IR 1966 Mad 368.
(5) A charge of conspiracy in respect of an offence ' under Section 409 need not be as specific as a
charge for an offence under S. 409. AIR 1938 Cal 195.
(A ) Charge against two persons.— (1) Where A, a servant in a workshop; steals a silver article
from the workshop and hands it over to B immediately at the same place, and B knows the article to
be stolen one, and receives it with a 'dishonest intention, the offences of A and B both form parts of
the sametransaction, and under Section 223 of the Criminal Procedure Code, they can be charged and
tried together at the same trial. (1904) 1 CriJJ 330.
(B) Error in charge.--(I) No error in stating the offence or the particulars required by Section
212(2) of Criminal P. C. will be regarded as material if the accused is not misled by such error and the
error has not occasioned a failure ofjustice. AIR 1956 Mad 209.
(C) Quashing of charge.--(I) When there was no material to support a charge framed under S.
409 but it transpired that the case was a pure fabrication, an outcome of malice, the charge was quashed
by the High Court under its inherent powers. 1980 ChandLR (Cri) 51 (Punj).
(D)Form of charge — (1) The charge should run as follows:
.1, (name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—at—were entrusted with property (specify the property) in
your capacity as a public servant, attorney etc. and you committed criminal breach of trust in respect of
the property so entrusted and thereby committed an offence punishable under section 409 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said.
29. Dishonest. intentibn.-( I) Dishonest intention is an essential ingredient of the offence. (1973)
I Malayan Li 154.
(2) It is for the prosecution to place materials before the Court from which such inference can be
drawn. AIR 1946 All 227.
(3) Mere failure to return or account for the property entrusted to the accused does not conclusively
prove dishonest intention. Such failure may be due to other causes consistent with accused's honesty:
AIR 1977 SC 1966.
1262 Penal Code Sec. 409

(4) A great delay in remitting money may give rise to inference of dishonest intention. AIR 1934
Cal 532.
(5) Where there is no dishonest intention the act of accused may give rise to a civil liability for
damages. A IR 1937 Rang 505.
30. Onus and proof—Appreciation of evidence.—(1) Burden of proof of establishing all the
ingredients of the offence such as entrustment, misappropriation, dishonest intention, etc. is on the
prosecution. (1979) 81 PunLR 247.
(2) Where embezzlement was ascribed to two persons A and B, B being the subordinate of A and
B was ordinarily required and supposed to pass over the sums collected by him to A, and pleaded that
he had done so, and the plea could not be said to be improbable, 'it was held that B could not be
convicted under this section. AIR 1955 NUC (Sau) 5757 (DB).
(3) Where the evidence creates a doubt whether the accused is guilty or not, he is entitled to the
benefit of doubt. AIR 1972 SC 521.
-. (4) . Prosecution of clerk in cooperative department performing duties of accountant—Charge of
delayed payments, no payments and false payments of T. A. Bills—Asst. Registrar being the paying
and disbursing officer—No proof of complaints made to the Asst. Registrar—Held that the prosecution
case could not be regarded as proved beyond reasonable. doubt. AIR 1960 SC 476.
(5) Accused was alleged to have misappropriated monies drawn in favour of some persons whose
names were absent in the school register though actually working there. Absence of name in register
cannot lead to an inference of misappropriation. AIR 1979 SC 1080.
(6) Cashier in possession of safe with all its keys—Embezzlement of cash—No evidence to show
that he had parted with keys before the incident—He must be held guilty under Section 409. AIR 1973
SC 488. .
(7) Moneys payable towards Government dues paid by debtors to collection Amin—Amin
crediting in Treasury only negligible amount from out of amounts received and acknowledged by
him—On evidence accused held rightly convicted under Sec. 409. AIR 1973 SC 82.
31. Procedure.—( 1) A Magistrate to whom a complaint has beôn made against the accused of an
offence under this section can, if he considers that there is no ground for proceeding, dismiss the
complaint under Section 203 of the Criminal P C. (1887) ILR 9 All 666.
(2) Merely inducing a complainant to compromise a criminal case under this section will not
amount to cheating (on the ground that the offence is not compoundable) as the non-cOmpoundability
is a matter of law (which everybody is presumed to know) and hence the element of deception which is
an essential ingredient of the offence of cheating under Section 415 will be lacking in such a case. AIR
1943 Cal 41.
(3) The consent of the accused to be tried on a misjoinder of charges capriot validate the trial. AIR
1956A11 466 . . .
(4) There were two separate trials of A and B both of whom were charged under Ss. 409/120B of
the Code. A. was first tried and convicted. B was subsequently tried and acquitted. It was held that the
conviction of A is not rendered illegal by reason of the co-conspirator being acquitted subsequently. U
would be different if A and B had been tried together at the same trial in which case the acquittal of
one must result in the acquittal of the other. AIR 1925 Cal 501.
Sec. 409 Of Offences against Property 1263
(5) Where on a complaint under his section. made at Ahmedabad, the accused was arrested at
Calcutta and produced before the Magistrate at Calcutta who granted the accused bail and asked him to
appear before the Magistrate at Ahmedabad, it was held that the Magistrate at Calcutta should have
asked for .a warrant from Ahmedambad and should have released the accused on bail calling upon him
to appear before himself when mrequired. AIR 1924 Cal 893. .
(6) A was charged for conspiracy to commit criminal, breach Of trust and was also specifically
charged for criminal breach of trust with regard to definite sums of money and one charge-sheet was
submitted, At the time of trial the prosecution split up the case to be tried into four separate trials. It
was held that the procedure adopted was harassing to the accused. A IR 1938 Cal 697.
(7) Where the accused was put on his trial before a First Class Magistrate on three charges of
offences under this section and the accused applied to the Sessions Court claiming a sessions trial, and
the Session Judge directed the Magistrate to commit the accused to the sessions for trial, it was held
that the Sessions Judge had no jurisdiction to make such order and that he could only make a. reference
to the High Court. A IR 1938 Cal 416.
(8) In a case under S. .409 P.C. which ended in acquittal the High Court without assigning any
reasons refused to grant leave to appeal and its order was not speaking order. Supreme Court set aside
the order and directed the High Court to restore the appeal on its file. A IR 1982 SC 1215.
(9) Cognizbie_.. Wanant_Not bailable—Not compoundable—Triable by Court of Session. If the
offence committed by public servant, it becomes triable by Special Judge under Act XL of 1958, and
Act II of 1947. . .
32. Separate trials for each item misappropriated.--( 1) Where a post-master was alleged to
have misappropriated three money orders of Rs. 1,066, 605 and 450 respectively and prosecutions were
instituted separately for the 1st item and for items 2 and 3 it was held that although ther was nothing
illegal in holding separate trials for offences of the same kind committed within 12 months or which
form part of the same transaction, it was not described to do so. 1967 AI1WR (HG) 611.
33. Jurisdiction.—(l) Where a Second Class Magistrate convicted the accused under S. 406 of
the Code and submitted the proceedings to the District Magistrate under S. 349, Criminal P. C., and
the latter found that the offence was one under S. 409 of the Code which was not triable by a Second
Class Magistrate, it was held that the District Magistrate had no jurisdiction to convict the accused
under Section 409 on the evidence taken by the Second Class Magistrate. (1899) 1 BomLR 27.
(2) Where a First Class Magistrate tried the accused for offences under Ss. 409 and 477, (the latter
offence being one not triable by him under the Criminal P.C. but only by a Court of Session), it was
held that in so far as the offence under Section 409 was concerned, the trial was not void and that he
was competent to try the same. AIR 1960 Mys 86.
(3) Under Items 2 of the Schedule to Criminal Law Amendment (Special Courts) Act, offences
punishable under section 409 and triable by , Special Courts are limited to those committed by public
servants in their capacity as such. AIR 1974 SC 794.
34. Place of trial.—(l) An offence of criminal breach of trust may be tried; where the property is
received or retained. AIR 1942 Oudh 473.
(2) The Court of the place where the loss or damage occurs has no jurisdiction to try the offence.
A contrary view has however been expressed in a case. AIR 1928 Sind 166.
35. .Sanction.—(1) A public servant, whose duty included the disbursement of wages to
workmen, drew the amount form the treasury, but falsely entered the name of a fictitious person in the
1264 Penal Code Sec. 409

acquaintance roll and utilized the amount for himself It was held that sanction under S. 197 of the
Criminal P. C. was necessary for the prosecution against him for an offence under Section 409. A IR
1955 SC 309.
(2) Where the accused was charged not only under Section 120B but also under Ss. 409 and 477A
of the Code and no sanction was obtained as was required for a prosecution under S. 12013, it was held
that the offence under S. 120B was a distinct offence from the offences under Ss. 409 and 477A to
commit which the conspiracy was entered into and the want of sanction for the prosecution under S.
120B did not affect the prosecution for the other offences. A IR 1967 SC 1590.
3) Where the breach of trust has no connection with the performance of public duty, no sanction
is necessary. A IR 1960 SC 745.
36. Plea before Supreme Court for first, time.---(I) Where in a trial on a charge under S. 409 no,
plea was raised by the accused that the money was not entrusted to him in his capacity as a clerk or as
part of his duties, it was held in an appeal from the conviction that such a plea will not be allowed to
be raised for the first time before it inasmuch as such plea depended on evidence. A IR 1967 SC 1590.
37. Alteration of conviction.--( 1') A conviction under Section 409 of the Code can be altered to
one under Section 403 1966 A ll W R (SC) 695.
(2) A conviction Of the accused under Section 414 of the Code by a Second Class Magistrate
cannot, in appeal, be altered to a conviction under Sec. 409, as the latter offence is not triable by a
Magistrate'of the Second Class. A IR 1938 Mad 315. . -.
38. Vicarious liability.—( I) An employer or the principal is not liable criminally for the criminal
breach of trust committed by his employer or agent unless he has wilfully suffered the employee or
agent to commit the offence. The reason is that mens rea, dishonest intention, is the gist of the offence
of criminal breach of trust and cannot be attributed to the employer or principal merely by reason of the
relationship of master and servant or principal and agent. A IR 1952 Tray-Co 158.
(2) Where in respect of serious defalcation of the properties of the cooperative society, entering
into conspiracy by the accused to cause defalcation was one the charges and that charge failed,
conviction of the Chairman of the Managing Committee of the Society under S. 409, with other
sections on the basis of vicarious liability was improper when he was not charged under S. 120B and
when there was no direct evidence connecting the Chairman with the acts of commission and omission
for which he was convicted. A IR 1984 SC 151. .
39. Previous acquittal or conviction—Effect.—(l) A conviction under Section 409 will not bar
a subsequent trial for an offence under Section 477A as the ingredients of the two offences are different.
A IR 1963 Raj 14.
(2) A conviction or acquittal in respect of misappropriation of certain sums of money during a year
is no legal bar to a trial for misappropriation of other sums of money during the same year, though
this is not desirable. A IR 1969 Born 1.
40. Civil liability.—(1) The conviction or acquittal of a person accused of an offence under this
section does not affect the civil liability, of the accused for damages or loss caused to the owner of the
property entrusted to the accused. Evn the Government itself who is the owner of the entrusted
property is not precluded from taking civil action against the person who has committed an offence
under this section in respect of the property. A IR 1939 Lah 340
(2) Where goods were entrusted by A to B (for sale and not for mete safe custody) and it was with
the knowledge of A (who did not object to the sale but only wanted its price) that B sold the property,
Of Offences against Property 1265
Sec. 409
it was held that A could have only a civil remedy for damages for breach of contract by B to pay the
price to A . A IR 1955 NUC (Trav-Co) 5078.
(3) The use of criminal Courts to litigate civil claims must be condemned. A IR 1920 A ll 274..
41. Sentence.—(l) Where separate trials were held in respect of various items misappropriation
and sentences were passed in each to run consecutively (totally 11 years) it was held that the sentence
could not be attacked as too severe having-regard to-the fact that the accused was holding . a responsible
post of trust. A IR 1965 SC 1248. . . - .•
• (2) The breach of trust by a clerk or public servant is of an aggravated nature calling for substantial.
punishment. A IR 1950 Lah 199. . . .. .
ipisappropriated before
(3) The admission of the accused of his guilt and his paying up the amount .
the filing of charge-sheet and the lapse of a tong period after the date of the offence, are all matters
which may. be considered in awarding the sentence. A IR 1954 SC 715. . . .

(4) The fact that the amount ,miapprophated was deposited during the pendency of the appeal may
also be considered by the appellateçourt. A IR 1974 SC 2336.
(5) No general rule can be laid down as to the sentence to be awarded. It depends upon the facts
and circumstances of each case. A IR 1949 PC 22. . .
4 months' regorous
(6) The accused was acquitted by the trial Court but sentence to
imprisonment by the High Court. The Supreme Court on 'appeal reduced it to the period, of 19 days
already severed in view of the fact that the accused had secured another job after his acquittal and was
working at it. A IR 1972 sc 1618. . -.
(7) When an accused was found to have only committed temporary misappropriation and had lost
his job his sentence to 6 months' R. I. was reduced to period already served. 'A IR 1980 SC 639.

(8) Accused was inexperienced and new to his job and was made a scapegoat in an offence under
Section 409. His sentence to three years' R. I. was reduced by Supreme Court to period already
served. Sentence of fine was maintained. A IR 1979 SC 1120.
r is
(9) Revenue paid to Tahsildar's reader who issues receipts designed by Tahsildar_Latte
entrusted with "dominion" over the proper _Embezzlemeflt—Tahsildar guilty but sentence reduced
in the circumstances of the case. A IR 1979 sc 1006.
(10) Accused sentenced to two years' R. I. and a fine of Rs. 1,000—Accused likely to lose his
job—Accused already had undergone imprisonment of six and half months—In the ends bf justice
substantive sentence reduced for the period already undergone. A IR 1979 SC 825.
42. Order under S. 452 of the Criminal P. C.—(1) Where the accused was convicted for breach
of trust by pledge or pawning the property entrusted to 'him by complainant, the Court cannot, on
conviction of the accused, order the pledgee or pawnee under Section 452 of the Code to return the
property to the complainant in the absence of bad faith on the part of the pawnee or pledgee. A IR 1923
'Rang 68.
43. Bail.--(I) A Magistrate has no power under Section 437 of the Criminal Procedure Code to
grant bail to the accused in cases falling under Section 409 of the Code. A IR 1930 Rang 335.
(2) "Where a complaint under this section was filed alleging misappropriation to have been
committed more than 2 years before the date of the complaint entirely unsupported by any evidence
a' whatsoever, it was held that - there were no reasonable grounds for believing that the accused was guilty
of the offence with which he was charged and that bail should be granted. A IR 1937 Rang 474.
1266 Penal Code
Sec. 410
44. Pràctice,_Evidence_ p rove : (1) That the accused was either a public servant or a banker, or a
merchant, or an attorney, or an agent, or a broker, or a factor.
(2) That he was in such capacity entrusted with the property in question or with dominion over it.
(3)That he committed criminal breach of trust in respect of it.

Of the Receiving of Stolen Property

Section 410
410. Stolen property.—Property, the possession whereof has been transferred
by theft, or by extortion, or by robbery, and property which has been criminally
misappropriated br in respect of which 9[* *] criminal breach of trust has been
committed, is designated as "stolen property" '°[whethër the transfer has been made,
or the misappropriation or breach of trust has been committed within or without
' 1 [Bangla desh]]. But, if such property subsequently comes into the possession of a
person legally entitled to the possession thereof, it then ceases to be stolen property.
-
.. Cases : Synopsis
1, Scope. 5. Proof of property being stolen property.
2. Property acquired by cheating, forgery etc. 6. Removal of property from deceased person.
3. "Property." 7. Stolen property got back by the owner ceases
4. Property into which stolen property has been to be stolen property.
converted.

1. Scope.---(I) The term "stolen property" as defined presupposes the commission of the offence
of theft. Property once stolen remains stolen for ever afterwards, irrespective and independent of the
volition of its lawful possessor till it reverts to him. Stolen property losses its character the moment it
reverts to its lawful possessor. Such possessor may be actual or constructive. It is elementary that there
can be no offence of dishonestly receiving stolen property unless the property which is alleged to be
the subject of such receiving answers the description of "stolen property" given in section 410 of the
Penal Code. "Possession whereof has been transferred" does not mean that the receiver should receive
directly form the thieves. All it implies is that the receiver should receive property which has been
obtained by theft since only the property the possession of which has beert transferred by theft etc. is
designed as stolen property. It follows that if the property is changed, converted or altered, so as to
destroy its original identity it ceases to be stolen property (A IR 1944 Sind 237). Property acquired by
fraudulent transfer is not stolen property since whatever may be the object, ownership therein is
transferred by consent.
(2) This section defines "stolen property." It includes not only property acquired by theft, but also
property acquired by extortion or robbery. It also includes property possession of which was originally
acquired innocently, but which possession subsequently became dishonest and wrongful by reason of
misappropriation or breach of4rust. 1970 A ll W R (HC) 368.

9. The word "the" before the words "offence of" was by repealed the Amepding Act 1891 (Act XII of 1891), and the
words "offence of" were repealed by s. 9 of the Indian Code Amendment Act, 1882 (Act VIII of 1882).
10: Ins, by Act VIII of 1882, s. 9.
II. Substituted by Act No. VIII of 1973, for "Pakistan".
Sec. 411 Of Offences against Property 1267
(3) Before a person can be punished for receiving stolen property, the property alleged to have been
receiving by him dishonestly, must fall within the definition, of this section. In other words, its
possession must have been transferred by any of the offences enumerated in this section. AIR' 1976
SC 917.
2. Property acquired by cheating, forgery,
etc.—(1) Property of which possession has been
transferred in ways other than those specified in the section is not within the definition of stolen
property. Thus, property, possession of which has been obtained by cheating, is not stolen property.
ILR (1963) . Guf 1002.
(2) Stolen property is . that which is limited to that acquired in one of the ways mentioned in the
section. AIR 1914 Sind 133. -
3. "Property."—(l) Res nullius and ferae nature over which no one has any proprietary right are
not property at all, and cannot, therefore, be 'stolen property'. Property abandoned by the owner ceases
to be property and cannot come within the definition of stolen property. A bull set at large by a Hindu
at the time of performing some religious ceremony is not property and the taking of itby another will
not convert it into a stolen property. (1887) ILR PAll 348.
(2) A bull dedicated to the idol for the benefit of the public and which was being looked after by
the Mahant of the temple is not res nullius and hence is capable of becoming a subject-matter of an
offence under S. 411 P. C. AIR 1952 Assam 123.
4. Property into which stolen property has been converted.—(j)
Property into or for which
stolen property has been converted or exchanged or mixed with is not stolen property. I88IPunRe39.
(2) Money received as a result of selling stolen property is not stolen property.
A IRI952PunJI78,
(3) An ingot of gold or silver obtained by meeting gold or silver articles which were stolen does
not cease to be stolen property. AIR 1954 Mad 433.
5. Proof of property being stolen property.—(l)
In order to prove that property is stolen
property, it is not necessary that the stolen property should have been proved to have been in the
possession of a particular person and in a particular locality before it was .stolen. It is enough that
possession of property has been transferred by theft or by extortion or by robbery or by criminal'
misappropriation. 1965 (2) criLJ 570.
6.. Removal of property from deceased person.—(1) Property removed from a dead person and
misappropriated dishonestly is stolen , property and one who dishonestly helps in disposing of the
property commits an offence under S. 414. AIR 1938 Rang 109.
7. Stolen property got bck by the owner ceases to be stolen property.—(])
Property the
possession of which has béen transferred by theft, robbery, extortion or in respect of which criminal
breach of trust has been committed or which has been criminally misappropriated is stolen property.
Where , the stolen property has again come into the possession of a person legally entitled to the
possession thereof it ceases to be stolen property. (1892) 2 QBD 597.

Section 411
411. Dishonestly receiving stolen p r operty.—Whoever dishonestly receives or
retains any stolen property knowing or having reason to believe the same to be stolen
property, shall be punished with imprisonment of either description for aterm which
may extend to three years,. or with fine, or with both.

1268 Penal Code Sec. 411

Cases and Materials: Synopsis

1. Scope. 13. Possession of servant.
2. Receipt—Retention. 14. Possession should be boon after the theft.
3. "Stolen property." 15. Identification of stolen property.
4. Theft by child—Receiving property from child. 16. Explanation by accused.
S. Acquittal of alleged theft. 1 7. Evidence and proof
6. Dishonest intention.
18. This section and Section 215.
7. Knowlede'e or belief
19. This section and S. 380.
8.
20. This section and Section 414.
21.' Charge and conviction.
9.

1. Scope.—There can be no offence of receiving unless the pro perty in respect of which the offence
of receiving is alleged .aswers the description of "stolen prop erty" as given in section 410 and
accordingly, it is sufficiht1y clear that stolen property must have been acquired by theft, or criminal
misappropriation or, other offences allied to them. Asthis fact has to be established against the accused
it is necessary to prove all the circumstances constituting the p roperty as stolen property. It is not
necessary that the stolen goods should havebeen physically produced from the actual possession of the
Accused. It is sufficient to show that the accuseds after the articles were stolen came into the control of
stolen goods and, that he did so dishonestly and .having reason to believe that it was stolen. Dishonest
receipt and retention implies possession and such possession to. be criminal must be actual and
exclusive, for criminal liability does not attach to constructive p ossession (A IR 1955 A jm 10). When
stolen property is recovered from the open and accessible to a ll and sundry, it is difficult to hold
positively that the accused was in possession of it (A IR 1954 SC 39). The word 'possession' in this
connection obviously means 'conscious possession' for any othe r possession could not-be taken into
account in charge persOn with criminal liability. If the circumstances are such as to raise a presumption
that two or more persons in joint possession of stolen property, both of them may bed convicted.
There is no justification for the view that there cannot be joint criminal possession (34 CrLf 6O4).
Where a property is found in a house in the possession of more than one person, mere discovery of any
stolen property in that house is not in itself sufficient to prove that the possession was of any one of
those persons 42 CrLf 293). Possession with guilty knowledge is essential. , Where the only evidence
against the accused is that he was with the other accused befor e and after the theft, this can hardly
warrant his conviction under section 411 Penal Code (41 CrLf 96). Mere knowledge that stolen
property is lying hidden somewhere is not incriminating circum stances for the offence off theft or
receiving stolen property, and such knowledge cannot by itself ra ise a presumption of possession. It is
the prosecution that has to establish the possession of the accuse d apart from his knowledge and it is
only when his possession is proved that the accused has to account for it in order to escape fi'om the
presumption under illustration 114(a) of the Evidence Act. The production or pointing out may
indicate that the accused was in' possession or that he had innocent knowledge that the articles had been
left there by someone else (13 CrLJ 529). Conviction of co-accu sed on the basis of confession is not
correct as confession cannot by itself be treated as evidence again st him (A IR 1967 Pat 283). Where, an
accused is found in possession of stolen articles forming the subject-matter of distinct' theft, he cannot
Sec. 411 Of Offences against Property 1269
be convicted separately in respect of each article, unless there is evidence to show that he had received
them on different occasions (34 crLJ
458).The accused cannot be convicted under section 411 unless
the identity of the stolen property is established. The burden of proof lies always upon the prosecution
to bring the guilt home to the accused. Illustration 114(a) of the Evidence Act enables presumption to
be drawn regarding a person in possession of stolen goods, depending upon its likelihood of its
charging hands, unless a fairly acceptable explanation is forthcoming. Money is an ambiguous
commodity and as such no such presumption can be drawn if the denomination has been changed.
Moreover, the drawing of presumption is discretionary and the Court may in special circumstances
refuse to draw such presumption (1958 CrLJ 534).
Where stolen property is found in possession of the
accused soon after the theft and no explanation for his possession is offered, an inference of guilty
under Section 411 Penal Code is justified (AIR 1934 Aom 458).
No fixed time limit can be laid down
to determine whether possession of stolen articles is recent or otherwise. Every case must be judged on
its own facts (PLD 1956 Lah 190; A IR 1926 Cal 925).
No hard and fast rule can be laid down that
after expiry of any particular period no presumption under section 114 of Eviderice Act can be drawn.
The nature of presumption in each individual case under section 114(1) Evidnce Act depends entirely
upon the nature of evidence adduced. Where long interval has elapsed before stolen property has been
recovered; it is often unsafe to assume that the Possessor was the actual thief. In the absence of any
.
special identification marks, no absolute inference can be drawn from the mere similarity in size
between the articles. Where in such a case no identification proceedings are conducted before a
Magistrate, the accused would be entitled to benefit of doubt. Where no property whatever was
produced before the trial Court, the accused is entitled to the benefit of doubt (1974 CrLf 219). The
offence of being in possession of stolenproperty may be inquired into and tried either in the district in
which the property was stolen or in the district in which it was found to be dishonestly possessed (27
CrLf 21 All).
(2) Discovery of stolen property at pointing out of accused
"from bush at call's distance from his
house—Accused not explaining how he came by his knowledge of place of recovery—Property
presumed to be in 'possession' of accused. Jiand Vs. State (1962) 14 DLR (W P) 34.
(3) There cannot be Conviction when the man in possession of the stolen property gives a
reasonable explanation on the possession. F. H. Blanchette Vs. Crown (1952) 4DLJ? 212.
(4) Accused's possession of the stolen property to be established by the prosecution—Several
persons besides the accused live in the same house. Prosecution does not prove accused's possession—
Conviction not sustainable. Sultan Ahmed. Vs. State (1965) 17 DLR 228.
(5) Accused offering reasonable explanation of his possession of the stolen goods—Entitled to be
acquitted. In the present case one bullock alleged to have been stolen from the house of the informant
on 18.6.64 was found in the possession of the accused petitioner on 20.6.64. The accused petitioner
did not deny the fact of possession but produced in court a receipt indicting that he purchased the
bullock bonafide. The trial court rejected the receipt which bore over-writing as regards its date,
convicted and sentenced the petitioner under section. 411 P. C. Held: There is no other evidence in the
present case as to the guilty knowledge of the accused. The accused has given an explanation regarding
his possession which may reasonably be true In view of the reasonable probability of the explanation
of the accused being true, from the mere fact that the possession of the accused was recent, it cannot be
presumed that he received the stolen property knowing it to be stolen. A limullah Mia Vs. State (1969)
21 DLR 644.
1270 Penal Code Sec. 411
(6) Dishonestly retaining or receiving stolen property—In order to sustain a conviction under
section 411 of the Code the prosecution must prove affirmatively by reliable evidence that the accused
had exclusive possession and effective control or domain over the stolen property or he received or
retained the same knowing or having reason to believe it to be a stolen property. Md. A fsar.A ii
Pramanlk Vs. The State, 20 BLD (HCD) 356
(7) Alternation of sentence. Even at the revision or appellate stage the conviction under section 411
of the Penal Code can be altered into one under section 379 in proper case where the charge appears to
have been proved beyond doubt. Nizaniddin Bhuza Vs. The State— I, MLR (1996) (A D) 266.
(8) Section 411 of the Penal Code provides for punishment of imprisonment or line or both. In
the instant case, the ends of justice will be sufficiently met if the sentence of imprisonment is reduced
to the period already undergone and the fine remitted. Nizamuddin Bhuiya V s. State and another
(Criminal) 1 BLC (AD) 222.
(9) The prosecution has hopelessly failed to prove that the petitioner had exclusive possession and
effective control over the stolen television set in question and that it was recovered from his possession
and control and hence the prosecution has failed to prove the ingredients of section 411 of the Penal
Code. A fsar A li Pra,nanik (Md) Vs. State (Criminal) 5 BLC 478.
(10) Stolen goods discovered at pointing out by the accused from a place not within his domain
but close to his house and the accused not explaining how he came to know of the same. Court's
presumption in circumstance is that the stolen goods were presumed to be planted and possessed by
the accu s ed (Ref 14 DLR 34 W P). 22 DLR 99.
(11) A person in possession of the stolen property entering into an .. agreement with the owner
thereof for restoration of such property without helping to bring the thief to justice cannot be
convicted both under sections 411 and 215 of the Penal Code. No finding that the properties recovered
were dishonestly retained by the accused knowing them to be stolen. He cannot be convicted under
section 411 Penal Code. 16 DLR 574.
(12) Possession of stolen property must be 'recent' to lead to the inference constituting proof of
offence. Delay to two months in production of property does not justify inference of guilty knowledge.
15 DLR 122 W P.
(13) A person cannot be convicted both under sections 380 and 411 of the Penal Code, and
sentenced separately under both the sections. If the accused is convicted under section 380, he cannot
be convicted Under section 411 as well. 14 DLR 595.
(14) The conditioii precedent for the application of illustration (a) of Section 114, Evidence Act is
that the accused must be in possession of stolen goods. The production of property by itself would not
necessarily prove his possession. In the absence of any incriminating statement made by the accused
leading to the discovery of property, its production alOne from a place which was accessible to the
public would not be sufficient to establish his possession. The possession of the article must be clearly
traced to him in order io justify the presumption under the illustration. 6 DLR 8 WP.
(15) Eye witnesses having no animosity against accused—Recovery of stolen articles effected from
accused—Mere fact that FIR was lodged after completion of investigation by the Police Officer.
Held—did not make trial illegal in circumstances of case—Conviction maintained. 1968 PCrLJ 350.
(16) This section as well as the succeeding sections are directed not against the principal offenders
such as the thief, or robber, or misappropriator but against the class of persons who trade in such
Sec. 411 Of Offences against Property : 1271
stolen articles and are commonly described as 'Receivers'..Hence , a thief or a misappropriator is
outside the scope of the section. AIR 1972 SC 635.
(17) The conviction of the thief for the offence of theft is not a prerequisite to the conviction of the
receiver under this section. AIR 1964 SC 170.
(18) There must be a finding as to receipt of stolen property. The receipt or retention of stolen
property must with a dishonest intention. If the receipt or retention is not with a dishonest intention
but say, with the bona fide intention of restoring it to the rightful owner, then no offence will be
committed. AIR 1952 All 481.
(19) In order to establish an offence under this Section, the prosecution has to establish the
following ingredients:
(i) A used, received or retained property.
(ii) That property was stolen property.
(iii) Such receipt or retention is dishonest.
(iv) Accused knew that the property so received or retained by him is stolen property.
1970 Mad
LJ(Cri) 461.
(20) An offence under this section is proved where it is established:
(i) that the stolen property was in the possession of the accused;
(ii) that some person other than the accused had possession of the property before the accused got
.
possession of it; and-:
(iii) that the accused had knowledge that the property was stolen property. AIR 1954 SC 39,
2. Receipt—Retention ^ ( I) The prosecution must establish that the accused either received or
retained stolen property. A IR 1933 Sind 359 (361) 35 CriLJ2O6 (DB).
(2) The word 'received' implies that the stolen property was in the possession of another person
before the accused got possession. AIR 1954 SC 39.
(3) It is not necessary for the prosecution to prove affirmatively that the possession was with
another person before it was received by the accused. The fact that the accused is found in possession
of stolen property soon after the theft will raise a presumption under Section 114, Illustration (a) of the
Evidence Act that the accused received it from.another person. AIR 1959 All 718.
(4) Where A picks the pocket of B and immediately hands it over to C who has all along been
standing with him and after the pick-pocketing both A and C run away, C will be a participant in the
crime of pick-pocketing itself and would be guilty of theft under S. 34 read with S. 379 and not of
receipt of stolen property. AIR 1957 All 678.
(5) It is enough if the accused charged for receiving or retaining stolen property and evidence is
adduced to prove guilty knowledge at some period antecedent to its recovery by the Police. AIR 1958
Orissa 106
3.-Stolen prope.rty.—(l) The basis for the offence under this section is that the accused is in
possession of stolen property. Therefore the prosecution must establish that the property in question is
stolen property, before it can ask for a conviction. AIR 1972 SC 642.
(2) An animal which has strayed away from the herd or which was missing and which was found
to be in the possession of the accused could not ipso facto be said to be stolen property. A IR 1944
Mad 26
1272 Penal Code Sec. 411

(3) Prosecution must prove that article recovered was stolen article and this could be done only by
mixing recovered article with articles of similar description at time of identification parade—Held, on
facts identification proceedings were a farce. AIR 1964 SC 170.
4. Theft by child—Receiving property from child.—(1) Tbe property got by the child by theft
will be 'stolen property' and a person receiving such property may be guilty under this section. (1883)
ILR6 Mad 373.
5. Acquittal of alleged thief.--(I) Under the English Law where the accused is charged with the
receipt of stolen property from a named .thief, and the named thief is acquitted of the offence of theft on
the ground that he did not commit theft, the accused also must be acquitted of the receipt of 'stolen
property' (1834) 174 ER 132..
6. Dishonest intention.—(I) Mere posscssion of stolen property is not sufficient to constitute an
offence under this section. (1904) 1 Cri Li 1109.
(2) Knowledge that the property is stolen does not necessarily prove that the possessor has a
dishonest intention. It is quite possible that he may only have taken the property from another, a third
party, knowing it to be stolen, but with the bona fide intention of restoring it to the true owner. AIR
1939 Mad 178.
(3) The failure of the accused to disclose the names of persons from whom the property was
purchased, or the retention of valuable property not belonging to him, are not circumstances which, by
themselves, tend to establish dishonest intention. A IR 1933 Lah 596
(4) Where the accused has received the stolen property as a pawnee, as opposed to a vendee, he
cannot be held to be a dishonest receiver within the meaning of this section. AIR 1939 Mad 582.
(5) Accused found not to have come by the gold innocently, without any guilty intention or
knowledge. His conviction under Section 411 was held proper. (1903) 8 Mys CCR No. 329, p. 281.
7. Knowledge or belief.—(1) For a conviction under this section, it must be clearly proved that
the accused received or retained that stolen property with guilty knowledge. 1973 BLJR 280.
(2) Unless there is some 'prime facie' evidence as to the knowledge of the accused, the latter is
entited to be acquitted, because, merely proving that he was in possession of the stolen property
establishes no offence of any kind. A IR 1952 Cal 616
(3) The presumption under S. 114, illus. (a) of the Evidence Act is one of fact and not of law. AIR
1957 A ndh Pra 1006
(4) From the bare fact that the accused was residing in the complainant's village, his knowledge
that the ornaments were stolen property cannot legitimately be assumed. AIR 1954 SC 39.
8. Presumption under illustration (a) to S. 114 of the Evidence Act.—(l) The presumption to
be drawn is one of fact and not of law. (1864) 9 Cox 464.
(2) The words used in illustration (a) to S. 114 of Evidence Act are "The Court may presume..."
and not "The Court shall presume...". It is a matter of discretion with the Court. AIR 1976 SC 1097.
(3) When soon after the occurrence of theft a person is found in possession of the stolen property,
the presumption that ordinarily arises is not that he has received it knowing it to be stolen, but that he
has stolen it himself. AIR 1951. Pat 296
(4) Where ornaments last seen to be worn by the deceased were recovered at the instance of the
accused just three days after the occurrence and were proved to be stolen property the accused, on the
Sec 411 Of Offences against Property 1273

basis of presumption under S. 114, Evidence Act, can be convicted under S. 411 for receiving stolen
- property knowing it to be stolen. AIR 1980 SC 1753.
9. Possession, as evidence of the receipt of goods.—(1) If the conditions mentioned in S. 114
(a) of Evidence Act are satisfied, the Court may presume that the accused is either himself the thief or
received the stolen property knowing that it is stolen property. (1976) 78 Born LR 630.
(2) Recovery of stolen goods at the instance of the accused from a place which is accessible to
others is not tantamount to evidence of possession by accused. AIR 1954 SC 39.
(3) Where the place of concealment is peculiarly within the knowledge of the accused and.
recovery of stolen articles is made as a result of the information given by him or of his producing them
from the place of concealment, he must be taken to be in conscious and exclusive possession of it. AIR
1970SC1934. . '.
(4) Where a person handed over the stolen.watch, in the presence of the police to the accused and
thereafter the police went through the formality of seizing it from the accused, it was held that the
circumstances in which it was discovered cast a grave doubt and a conviction under this section is not
justified. A IR 1974 SC 777.
10 Exclusive or joint possession.—(1) In order to raise the presumption against the accused, he
must be in exclusive pdssession of stolen . property. Therefore, the recovery of stolen goods from the
house which is in the joint occupation of the accused and others will not, according to the above view,
be sufficient to show that the accused (or any other member) was in exclusive possession of the
accused and others will not, according to the above view, be sufficient to show that the accused (or any
other member) was in exclusive possession of the stolen property. A IR 1944 Lah 339.
(2) The head of the family or the managing member of the family will be deemed . to be in
possession of the stolen goods -found in the house. A IR 1953 Mad 534.
11. Possession by wife.—(l) The possession by the wife will be that of the husband only when
the wife has possession on account of the husband. A IR 1961 Punj 30. .......
(2) The mere fact that the accused' wife produced the stolen articles from the house Where both
were living would not warrant his conviction under this section. A IR! 941 Mad 694.
12.Possession with sister.—(1) Where a stolen property was found on the accused's sister
twelve days after the theft and the accused and his sister were living in the same house, it was held that
the stolen property. was rightly traced to the possession of the accused. (1911) 12 Cri Li 48 (Mad).
13. Possession of servant.—(l) If the possession of the servant , is on account of his master, in
law the master is in possession of the property. Therefore, where the servant of the accused, by the
•order and direction of the accused, received the stolen property, the accused is liable as if his own hand
received it. (1853) 6 Cox Cri C 353.
(2) Where the article recovered from the accused was a gun which had been carried away by dacoits
as a result of dacoity and the accused failed to furnish satisfactory explanation for its possession,
presumption under S. 114 Illus. (a) of Evidence Act could be drawn against the accused even after
expiry of eight months from date of dacoity. Accused was liable to be convicted under S.41 I PC. AIR
1974 SC 1830.
14. Possession should be soon after the theft.—(l) In order to raise the presumption under
illustration (a) to Section 114 of the Evidence Act, the accused's possession of stolen property must be
g soon after theft. The possession of such property long after the theft does not give room for this
presumption. 1978 . Cr1 Li 379. ' . ..
1274 Penal Code Sec. 411
(2) What constitutes possession "soon after" theft depends on the facts and circumstances of each
case and also on the nature of the stolen property. AIR 1974 SC 1830.
15. Identification of stolen property.-.--(1) Where stolen property recovered from the accused at
place 'AS ' is put up for identification in COurt at place 'B' and prosecution fails to establish that seals
on the bundles of articles remained intact throughout and nobody at any stage had any opportunity to
break the seals and repack the articles, it cannot be said that the articles put up for identification which
were recovered and the accused cannot be punished under section. 1971 All Cri R 217.
• 16. Explanation by accused.—(1) The illustration (a) to Section 114, Evidence Act, shows that
the presumption would arise when the accused is not able to account for his possession of stolen
property soon after the theft. 1964 MPLJ (Notes) 78.
(2) The accused must satisfactorily explain his possession. A IR 1965 Orissa 123:
(3) The explanation given need not be convincingly true but must be reasonably or probably true.
A IR 1943 PC 211.
17. Evidence and proot—.(1) It is the duty of the prosecution to prove:
(i) that the stolen property was in the possession of the accused;
(ii) that some pé?son other than the accused had possession of the property before the accused got
possession of it; and
(iii) that the accused had knowledge that the property was stolen property. AIR 1954 SC 39.
(2) The prosecution must stand or fall on the strength of its own evidence and not on the.weakness
of the defence of the accused. AIR 1972 SC 1561. .
(3) An offence under the section is strictly limited to the property recovered from the accused. The
Court is not concerned with the rest of the property stolen which had not been recovered from the
accused. AIR 1953 All 752.
(4) Where the stolen articles recovered from the shop of the accused were bronze churis whereas the
Police Officer scizing them .described the article in the seizure memo as brass bangles (in Bengal a
distinction is made between churis and bangles), No witness supported the seizure of óhuris and the
articles were not kept under seal, it was held that conviction under this section is not justified only on
the words of the Officer who admitted that he committed a mistake in describing the articles. AIR 1974
SC 777. . . . .
(5) A receiver of stolen property is not necessarily an accomplice of a thief. AIR 1948 Sind 65.
(6) Certain pieces of cloth stolen in dacoity were recovered from the accused who lived in a village
other than that in which the dacoity was committed. The evidence showed that it was not known in the
village of the accused that a dacoity had been committed. The name of the accused was not mentioned
in evidence as one of the participants in the dacoity. It was held that the only presumption that could
be drawn from these facts was that the accused knew that the goods were stolen and not that he knew
that the goods were stolen indacoity or that he was himself a dacoit. He could be liable only under S.
411 and not under S. 396 of the Code. A IR 1970 SC 535.
1. 8. This section and Section 215.—(1) A person in possession of stolen property agreeing with
the owner for the restoration of the property without helping to bring the thief to justice can be
convicted only of an offence under this section and not u!s. 215 -of the Code. AIR 1914 Mod 121.
19. This secti'oi and Section 380.—(1) Where before recovery of the stolen büllocksfroth the.
house of the accused on the next day of the thft the bullocks were seen being taken towards his house
Sec. 411 Of Offences against Property 1275

by some other persons and there is no direct, evidence connecting the accused with the theft the offence
falls under Section 411 and not under S. 380 1971 All W R (HC) 469.
20. This section and Section 414.—(1) The offence of receiving stolen property under this
section is distinct from the offence under Section 414 of the Code. viz., of assisting the concealment
or disposal of stolen property. AIR 1928 Born 145..
21. Charge and conviction.—(1) The charge under this section should set forth that the accused
knew or had reason to believe that the property he received was stolen property. (1865) 4 Suth W R ii.
(2) An omission to state in: the charge that the accused received or retained stolen property,
knowing or having reason to believe the same to be the stolen property is not, in view of S. 215,
Criminal P. C., fatal to the case and the High Court can amend the charge and send the accused for
retrial, if there be sufficient evidence on record which will justify such a course. A IR 1949 Him Pra 15.
(3) An accused charged with murder can be convicted under this section even if not charged under
this section. A IR 1953 Mad 1006 . .
(4) An accused charged under S. 412 of the Code or under S. 413 of the Code can be convicted
under this section though not separately charged. AIR 1926 Born 134.
(5) An accused charged under Section 379 or Section 457 cannot be convicted under this section,
when no opportunity was given to hint to meet the case under this section. AIR 1961 Mys 158.
(6) A person found in possession of a stolen revolver without a licence can be convicted of an
offence under this section as well as under Section 19(f) of the Arms Act. AIR 1933 All 461.
(7) The fact that the person found in possession of a stolen revolver without a licence was
convicted under this section is no; bar to his being convicted under Section 19(f), Arms Act, in a
subsequent trial. A IR 1 9. 33 Oudh 470.
(8) Where property belonging to different owners and the proceeds of different burglaries are found
in the possession of one man, he cannot be convicted of several offences of receiving in respect of the
property identified by different owners unless the prosecution proves that they were received by him at
different times. AIR 1959 Andh Pra 137. .
22. Sentence.---(1) A sentence' of fine only which is less than the value of the stolen property is
grossly inadequate. AIR 1935 Pesh 100.
(2) An offence under this section being punishable with imprisonment for more than two years,
neither Section 360, sub-section (3) of the Cr. P.C. nor Section 3. of the Probation of Offenders Act
will apply and the offender cannot be released on admonition. A IR 1923 Pat 297.
(3)That the accused is 'a member of a criminal tribe is no ground for differentiation of sentence for
an offence under this section. AIR 1941 Mad 708.
(4) The fact that the accused was charged for murder should not be taken into consideration in
awarding the sentence. AIR 1955 NUC (All) 2735.
(5) Where the accused convicted under this section is below 21 years of age he is entitled to the
benefit of the Probation of offenders Ordinance, 1960 as the offence under this section is not
punishable with death or imprisonment for life. Hence, such an accused may be released on probation
of good' conduct on security as provided by the above Ordinance. AIR 1979 SC 1048.
(6). Accused was convicted and sentenced to 3 years' rigorous imprisonment by High Court,
Appeal against conviction was heard by Supreme Court Held, that fact was not by itself a ground to
interfere with sentence. AIR 1983 SC 347.
1276 Penal Code Sec. 412

23. Procedure.--(]) Several persons can be tried jointly for offences under this section in respect
of articles stolen in one theft in view of S. 239(f), Criminal P. C. A IR 1955 A ll 696
(2) Under Section 223(e), Criminal P. C. a thief and the receiver of the stolen property can be tried
together. A IR 1916 A ll 321.
(3) Under S. 181(3), Criminal P. C., an offence under this section can be tried at the place of theft
or where the property, the subject-matter of theft, is dishonestly possessed. A IR 1926 A ll 167.
(4) When a person is accused of an offence under this section and tried jointly with the person
accused of criminal misappropriation both of them can be jointly tried at the place where the
entrustment of the property was made to the principal offender. A IR 1969 Raj 266
(5) Where a person is found in possession of a number of stolen articles and is prosecuted in
respect of some only of them, then his subsequent trial in respect of other articles is barred in view of
Section 300, Criminal P. C. A IR 1923 Cal 557.
(6) Theft was committed in Assam and.stolen property was recovered from the accused in Punjab.
A case under , S. 380 of the Code was registered and investigated, in Assam and a case for an offence
under this Section was started in Punjab. On the above facts, it was held that under S. 185(2),
Criminal P. C. (1898), the trial for an offence under S. 380 of the Code should get priority as. it is a
graver offence and carries a longer sentence. A IR 1959 A ssam 20.
(7) Where.a case covering offences under Ss. 307, 411, 414 of PC was registered against accused
and he was on bail and attending Court regularly, the detention of the accused on the basis of the
aforesaid offences after more than one year and a half was illegal. A IR 1982 SC 682.
(8) Cognizable—Warrant--Not bailable—Compoundable when permission is given by the Court
before which the prosecution is pending—Triable by Metropolitan Magistrate or Magistrate of the first
or second class.,
24. Practice.—Evidence—Prove: (l ).That the property in question is stolen property.
(2) That the accused received or retained such property.
(3) That he did so dishonestly.
(4) That he knew or had reason to believe that the property was stolen property.
25. Charge.—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the-'--day of—, at—, dishonestly received (Qr retained) stolen property, to
wit—, .bekcnging to one X, knowing or having reason to believe the same to be stolen property, and
that you thereby committed an offence punishable under section 411 of the Penal Code, and within my
cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 412
412. Dishonestly receiving property stolen in the commission of a dacoity.-
Whoever dishonestly receives or retains any stolen property, the possession whereof
he knows or has reason to believe to have been transferred by the commission of
dacoity, or dishonestly receives from a person, whom he knows or has reason to
Sec. 412 Of Offences against Property . 1277

believe to belong or to have, belonged to a gang of dacoits, property which he knows or

has reason to believe to have been stolen, shall be punished with 6[imprisonment] for
life, or with rigorous imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
Cases and Materials Synopsis
1. Scope.' 6. Evidence and proof.
2. Simultaneous conviction under' S. 395 and 7. Charge and conviction.
this section.
8. Sentence.
3 Knowledge or reason to believe.
9. Procedure.
4. Extent of presumption under S. 114,
Illustration (a), Evidence Act. 10. Practice.
S. Possession. 11. Charge.

1. Scope.-(1) The offence under this section is much more serious them the offence under section
411 of the Penal Code. The retaining of stolen property is a continuing offence... This section refers to
persons other than the actual dacoits. It implies receipt from another person or an act by one not
himself the dacoit. The receiver is punishable under it as severely as those who commit dacoity. No
person can be convicted for "receiving or retaining stolen goods" unless he is shown, at the material
time, to have been in possession or control of the place where they were discovered or at least to have
had some knowledge of their deposit there (41 CrLf 647). For a charge under section 412, an accused
person cannot be convicted under this section if it has been proved by the prosecution that the accuses
knew or had reason to believe that the property recovered from their possession was the proceeds of the
dacoity (1969 CrLf 1077). The fact that section 114, Evidence Act does not provide an "illustration
with reference to dacoity does not mean that there is no such presumption. Where the accused is found
to be in recent possession of property stolen in a daooity, it can be presumed that he was one of the
dacoits, or that he had dishonestly received and retained the property knowing or having , reason to
believe that possession . has been transferred by dacoity or that he had dishonestly received or retained
the property, knowing or having reason to believe that it 'was stolen property (49 CW N 391). There
must be evidence to show that the accused received the property from a person whom he knew to be a
dacoit or belongs to a gang of dacoits (AIR 1950 All 398). Where a person is convicted under section
395 of the Penal Code for committing a dacoity and it is in the case of that dacoity that some
properties came to be under his possession he cannot be again convicted under section 412 of the Penal
Code (A IR 1956 A ll 336). The prosecution must establish three facts for proving the accused guilty.
They are, namely, the ownership of the 'articles in question, the theft Of them, and their recent
possession by the accused. It is not a reasonable explanation of his possession for the accused to deny
the existence of these facts. The explanation which renders the presumption unbelievable to the
prosecution is an explanation of how articles belonging to the complainant are found in possession of
the accused shortly after they had been stolen from the possession of the complainant. It is only when
the explanation offered by the accused is with regard t that possession, that the presumption does not
arise. It is for the prosecution to prove guilty knowledge. The onus of proof never passes to the
accused (37 CrL.J 976). Where no stolen property was recovered from the accused, but some of it was
given up by his stepfather with whom the accused was living, it was held that the accused could not be
convicted under this section, Without sufficient proof that the property had been taken by the accused
to the house inhabited by him and his father (35 CrL.J 165). Where the accused is apprehended soon
1278 Penal Code Sec. 412

after a dacoity, with part of the plunder in his possession, there is a good ground for charging him
with the dacoity as with having received or retained with guilty knowledge and he ought to be chrged
in the alternative form. Separate conviction and sentence under section 395 and this section with
respect to the same property are improper.
(2) Acquittal under the section in a previous trial is no bar for subsequent prosecution under the
same section, in respect of greater number of articles received at the same time. Retaining stolen
property is a continuing offence and if an accused is previously acquitted of an offence of retaining
articles of stolen property, subsequent prosecution under section 412 in respect of greater number of
articles is not barred thought they might have been received at the same time as those in question in
the pervious trial. A shutosh Talukder Vs. State (1962) 14 DLR 590.
(3) Discovery of the stolen article being pointed out by the accused not enough for conviction—
Evidence that the accused himself concealed it necessary. Manjil Fakir Vs. State (1965) 17 DLR 64.
(4) Joint occupation of the hut—The stolen article was produced by the accused from an unlocked
box lying in a house where the accused with his father and brother lived together. Held: This is not
sufficient for a finding that the accused was in possession of the stolen article. Khan Vs. Crown (1957)
9DLR(W P)5.
(5) Stolen articles in a box in ahut in joint occupation of several persons—No presumption that
any of them is guilty under sec. 412—Exclusive possession must be proved. A smat Fakir Vs. State
(1958) 10 DLR 201.
0

(6) Dishonestly receiving property stolen in the commission of a dacoity—To sustain conviction
for such an offence the property stolen in the commission of dacoity must be received or retained by
persons other than the dacoits. Kashem Molla Vs. State 42 DLR 453.
(7) As no search list witness was examined regarding identifying the stolen property namely,
Yasiko Camera in the TI Parade, the PW 4 who identified the Camera is neither a First information
Report nor charge sheet witness nor has he been examined in this case to say whether he identified it in
the TI Parade nor any inmate of the house wherefrom it was stolen. In such a position and in the
absence of identifying witness the trial Court was not justified in convicting and sentencing the
appellant under section .412 Of the Penal Code. Pear A ll Khan alias Pear A li Vs. State, represented by
the Deputy Commissione r (Criminal) 3 BLC 555.
(8) Prosecution failing to prove that accused knew or had ieason to believe property recovered from
them to be proceeds of dacoity. Conviction under section 412 altered to that of section 411. Mere
relationship of witnesses cannot be equated with interestedness of witness. (Ref A IR 1941 Pat. 223).
1968 PCrLJ 1704.
(9) This section deals with dishonest receipt or retention of stolen property, the possession of
which has been transferred by the commission of a dacoity. 1977 Raj Cri C 289.
(10) For a conviction under the first part of this section, it is not sufficient to prove that the
accused knew that the property was stolen, it should also be proved that the accused knew or had
reason to believe that its possession was transferred by the commission of dacoity. AIR 1972 SC 635.
2. Simultaneous conviction under S. 395 and this. section.—(l) Unless there exist
circumstances, which clearly separate the one crime from the other, it is not right to convict a 0 person
both of the offence of dacoity under S. 395 and of receiving the property stolen in the dacoity. AIR
1956 All 336.
• Sec. 412 Of Offences against Property 1279

3. Knowledge or reason to believe.--(I) The knowledge that, is required to be' proved under this
section is that the property was transferred by the commission of a clacoity; or, under the second part of
-the section, that the person from whom the property was received belonged to a gang of dacoits, and
that the property received was stolen. In the absence of evidence of such knowledge on the part of the
accused, there cannot be a conviction under this section. (1867) 7 Suth W R (Cri) 73.
(2) Accused had taken a pledge of property for Rs. 45,000.00 which was not an outrageously low
amount cothpred with the value of the property pledged. Further accused was not shown to have any
knowledge of the offence of dacoity that had taken place. or had any reason to believe that the property
was stolen. On these facts no case under S. 412 could be made out. 1983 CriLJ (NOC) 166.
(3) Where property looted in dacoity was recovered from a place 'jointly owned by three persons,
then in absence of any evidence to show that the person from whom the property was recovered
retained the property with the knowledge that the. same had been stolen during commission of dacoity,
the accused could not be convicted under section 412. 1984 A ll Cri Rul 190 (193).
. Extent of presumption under S. 114, Illustration (a), Evidence Act.—(1) Illustration (a) to
S. 114 of the Evidence Act although it expressly refers only to "theft" and "theft" does not limit the
• scope of the section and it is possible to raise a presumption in certain circumstances that a person
found in possession of property stolen in a dacoity was either a dacoit or had received it knowing it to
have been stolen in a dacoity, 1956 'A nd/i LT 915.
(2) Whether a presumption that the accused is a receiver knowing the property to have been stolen
in a dacoity could be drawn depends on the facts and circumstances of each case. Normally the
presumption that arises from mere possession of such property would be of the lesser offence under S.
411. A IR 1970 SC 535.
(3) Stolen property—Recovery very soon after dacoity took ' place—Theft of property in course of
dacoity proved—Held that accused could not be convicted under S. 395 on basis of presumption under
S. 114, Evidence Act—Conviction altered to that under S. 412, P.C. A IR 1982 SC 129.
5.Possession.—(l) Possession, of stolen article by the accused must be conscious, exclusive and
recent in order to raise the \presumPtion under . Illus. (a) to S. 114, Evidence Act. Mere knowledge of
the place of concealment of the stolen property does not necessarily lead to the conclusion that the
person having such knowledge actually received the stolen articles or participated in the act of
concealment. 1956 Madh BLR (Cri) 54.
• (2) Where property looted in a dacoity is discovered in a house jointly occupied by two brothers
• who are charged under Section 412 and the prosecution itself is not sure from whose possession the
property was recovered it is very difficult to convict any one of them. A IR 1955 NUC (A ll) 3518.
• (3) If stolen property is produced by the accused from unlocked wooden box lying in a house in
which other members also lived, he cannot be said to be in possession of stolen property. A IR 1955
• NUC (Pak) 5231.
6. Evidence and proof.—(l) A person found in possession of stolen articles may be presumed to
be a thief or receiver of stolen property. 1980 BLJ 32 (Pat).
(2) Evidence of mere possession of stolen goods is not sufficient to fix guilty knowledge as
required under this section. But where there was further evidence to show that some property looted
from the house of the victims was handed over to the accused by the dacoits, soon after the dacoity
was committed in the night, near a temple and not at his house, it was held that the accused knew or
had reason to believe that the property was stolen in a dacoity. A IR 1949 A ll 245.
1280 Penal Code Sec. 412

(3) Where articles which were the subject matter of a dacoity were recovered frém the accused at
his instance but he was not identified by the witnesses in a test identification parade the Supreme
Court altered the conviction from Sections 397 to 412, P.C. A IR 1978 Sc 1390.
(4) When stolen property (gold ornaments weighing 18 tolas) of the offence of dacoity was
recovered from the accused but the trial court acquitted him on the ground that the complainant was
not in a position to accumulate so much gold, it was held that the ownership of the entire assets of the
complainant not being in issue the finding was not proper. A IR 1968 Orissa 20..
(5) Recovery of stolen property from persons charged under S. 412, Penal Code cannot be ignored.
AIR 1961 All 614. \
(6) In a case under Sectioli 412 it would be very dangerous to rely purely on the Police evidence
particularly when there is contradiction in their statements and when the actual recovery witnessed have
not been produced. AIR 1955 NUC (All) 3518.-
(7) When a person is found in possession of property taken in dacoity soon after the commission
of dacoity, the proper inference to be drawn is that he was one of the dacoits and not a receiver. AIR
1955 NUC (Pat) 3235. .
7. Charge and conviction.—(1) A person found in possession of stolen property identified as
belonging to different twners cannot be convicted separately in respect of properties identified by each
owner, unless there is evidence to prove that they were received by him at different times. AIR 1923
All 547.
(2) An accused charged with an offence under this section could be convicted under , S. 411 without
there being a specific charge under the latter section. AIR 1926 Born 134. ..
8. Sentence.—( 1) A receiver of articles of petty value stolen in a dacoity should not be treated in
practically the same manner as though he.were one of the actual dacoits. A IR 1927 Otdh 277.
9. Procedure^ ( I) Where the accused, acquitted in a previous trial in respect of some of the
properties, is tried subsequently in respect of other articles, the subsequent trial is not barred though
they might have been received at the same time as those in question in the previous trial. A IR 1947
Born 467. ..
(2) As to jurisdiction regarding the place of trial. AIR 1947 Pat 67.
(3) Cognizable—Warrant--Not bailable—Not compoundable—Triable by Court of Session.
10. Practice.—Evidence—Prove: (1) That the property in question was stolen property.
(2) That the possession of such property was transferred by the commission of dacoity.
(3) That the accused received or retained such stolen property.
(4) That he did so dishonestly.
(5) That he knew or had reason to believe that the possession of such property was transferred by
the commission of dacoity. . .
Ii. Charge.—The charge should run as follows:
I (name and office of the Judge) hereby charge you (nameof the accused) as follows:
That you, on or about the—day of—, at—, dishonestly received (or retained) stolen property, to
wit—, belonging to one X, knowing or having reason to believe that the possession of the same had
been transferred by the commission of the dacoity, and thereby committed an offence punishable under
section 412 of the Penal Code, and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
Sec. 413 Of Offences against Property 1281

Section 413
413. Habitually dealing in stolen property.—Whoever habitually receives or
deals in property which he knows or has reason to believe to be stolen property, shall
be punished with 6 [imprisonment] for life, or with imprisonment Of either description
for a term which may extend to ten years, and shall also be liable to fine.
Cases and Materials
1. Scope.—(1) In order to bring the offenée under this section it must be shown that the property
was received on different dates and on different occasions by the accused—the principal ingredient
being habitual, constantly receiving or dealing in such goods which he believed to be stolen. An
accused cannot be tried at the same trial for receiving or retaining and habitually receiving or dealing in
stolen property. The proper course is to try. the accused first for the offences under section 411, and
then, if he is convicted, to try him for the offence under section 413, pUtting in evidence his previous
convictions under section 411.
(2) The four ingredients of the offence are:
(i) that the articles stated to have been received by the accused were stolen property;
(ii) that he received such articles;
(iii) that he has been receiving them 'frequently or habitually; and
(iv) that he was receiving them knowing or having reason to ' believe them to be stolen, articles.
1955 Ker LT 830. ..
(3) A 'person cannot besãid .to be habitually receiving stolen goods who may receive the proceeds
of a number of,differetit robberies from a number of different fl'lives on the same day. In addition to
the receipt 'from different persons, it is necessary to show that the property was received on different
occasions and on different dates.. (1892) ILR 19 Cat 190.
(4) Habitual thieves, if they are associated together for the purpose specified in Section 401, may
come within its purview; but, habitual receivers of stolen property from ,these thieves , will not come
within the scope of that section. They will have to be dealt with only under this section. A IR 1914
Lah 539. .. .. . .. '
(5) Since both these offences oannot be said to have been committed in the course of the same
transaction, a joint trial of different sets of persons under S. 401 and under this' section is illegal. AIR
1932 Lah 486. , . . ..
(6) Offences under S. 411 and this section not being of the same kind, there cannot be one trial for
both those offences. The proper course would be to try the accused first for offences under S. 411 and
then, if he were convicted, to try him for the offence under this section putting in evidence the
previous convictions under S. 411 . and proving the finding of the rest of the property in, respect of
which no separate charge under S. 411 could be made or tried by reason of the provisions of S. 300,
Criminal P. C. (1882) ILR 8 Cal 634. .
2. Practice.—Evidence--Prove: (1) That the property in quetion is stolen property.
(2) Thaeffie accused received it or dealt in it.
(3) That he did so habitually. . .
(4) That he did so knowing or having reason to believe it to bs .tolen property.
1282 Penal Code Sec. 414
3. Proced ure.___COgnizable_wan .ant_ 0 bailable—Not compoundable—Triable by the Court
of Session.
4. Charge.—The charge should run as follows:
I(name and office of the Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day or—, at—, were a habitual receiver or dealer in property, which
you knew (or had reason to believe) to be stolen property, and that you thereby committed an offence
punishable under section 413 of the Penal Code, and within my cognizance of the Court.
And I hereby direct that you be tried by this Court on the said charge

Section 414
414. Assisting in concealment of stolen property.—Whoever voluntarily
assists in concealing or disposing of or making away with property which he knows
or has reason to believe to be stolen property, shalt be punished with imprisonment of
either description for a term which may extend to three years, or With fine, or with
both. -
Cases and Materials Synopsis
1. Scope. 7. .Charge and conviction.
2. Stolen property. 8. Sentence.
3. Disposal. 9. Procedure.
4. "Making away with". 10. Practice.
S. "K nows or has reason to believe" 11. Charge.
6. Evidence and proof.

1. Scope.—(1) The object of this section is to punish a person who assists in the traffic of stolen
goods. Section 379 Penal Code punishes a thief. Section 411 punishes a receiver of stolen property
and section 414 punishes a person who assists in the disposal of stolen property (A IR 1952 A ll. 481).
For the application of this section it is necessary that the accused should have assisted some one else
in the disposal of the property and does not cover a case where a person receives and then disposes: of
stolen property entirely on his own account. The word "believe" is much stronger then the word
"suspect" and involves the necessity of showing that the circumstance are such that a reasonable man
must, have felt convinced in his mind that the property with which he was dealing was stolen property.
In a case under section 414, the ownership of the property need not be traced. It is sufficient if it is
proved that property is stolen (27 CrLJ 114). The section feuires to show that the accused voluntarily
assisted in concealing or disposing of property. An accused person's merly pointing out the place
where some of the stolen property is recovered and his making an admission before the police of
having concealed it there, which admission is not admissible in evidence, are not sufficient for
convicting him under this section in the absence of any other independent proof connecting him with
the commission of the crime (8 CrLf 460).
(2) Ingredients of the section which are to be established • for a conviction under the section. Mere
suspicion cannot be the basis of conviction. The main ingredients of the section are that the property in
question must be stolen property and the accused must voluntarily assist inconcealing or disposing of
or making away with such property with full knowledge or belief that the property in question is
Sec. 414 Of Offences against Property 1283

stolen property. The intention of the section is to punish persons who subsequent to the commission
of offence either conceal the alleged property or make away with it by destroying or otherwise
disposing of it. The words "knows or has reason to believe to be stolen property" in the section
indicate tlat the person volentarily 'assisting in concealing or disposing of or making away with
property was stolen property. The word "believe" is a very much stronger word than "suspect". and it
involves the necessity of showing that the circumstances were such that a reasonable man must have
felt convinced in his mind that the property with which he was dealing must be stolen property or that
he did not make sufficient enquiry to ascertain whether it had been honestly acqUired. The fact that the
property dealt With is stolen property, may in some instances be inferred indirectly from circumstantial
evidence as from the way in which it is dealt with by the party dealing with it, but the, circumstances
must be such as would justify the conclusion that the property is actually stolen property. Na/cl Miah
Fakir Vs. State (1968) 2,0 DLR 700. .. .
(3) Unless the ingredients of the section are found to have been established, by a finding of the
Court, conviction untenable. The prosecution must prove the ingredients of the offence Under section
414 and the Court must come'to clear findings on those points. Withoutclear findings on those
elements of the section, aconviction under section 414 of the P. Code cannot be maintained. Md. Naki
Miali Fakir. Vs. State (1968) 20 DiR 700. ..
(4) This section does not apply to the thief or the receiver of the stolen property bUt is intended to
apply to persons whose dealing with the stolen property is not of such a kind as to make them guilty
of dishonestly receiving or retaining it themselves. (1866) 1 Agrd I-ICR ('Gri,) No. 9, p. 291..
(5) This section aims at bringing within its scope the category of persons who do not get
possession or actual custody of the stolen property but who assist in its disposal by others. A IR 1952
A ll 481.
(6) The section requires that the accused should have ' assisted some on else in the disposal of the
property and does not cover a case where a person receives and then disposes of stolen property entirely
on his own account. AIR 1926 Born 71.
(7) Itis not necessary for a person to be convicted under this section that another persoh must be
traced and convicted of art of committing theft and that the prosecution has simply to establish
that the property recovered is stolen property and t he accused provided help in its concealment and
disposal. AIR 1964 SC 170.
2. Stolen property.--(I) A finding , that the property in question was stolen property is an
essential requisite for a conviction under this section. 1968 GriLl 1670 (Pat).
3 Disposal.--(I) The words 'disposing of in this section must be interpreted in the light of the
words they are associated with, viz., "concealing" and'-'making away with" and they cannot cover a
case where the person restores to the owner the property stolen , by his son but denies having restored
anything when he is asked to explain from whom he got the property. He cannot be convicted-under
this section. 1948 Bur LR 103.

(2) 'A man spending money stolen by another is not disposing of it within the meaning of this
section. AIR' 19.5 Lah 587.

4. "Making away with".—( I) The accused, a driver of taxi, was carrying persons who had hired
it. On the way the taxi stopped and two persons got down from it and within a distance of about 3.5
yeards they suddenly attacked and robbed a man of his purse, and boarded the taxi and the accused, in
1284 ' Penal Code Sec. 414

spite of the cries of the victim, drove away as fast as he could. On the above facts, it was held that the
accused voluntarily .assisted the robbers in making away with the money obtained by such robbery and
was guilty under this setion. ILR (1940) 2 Cal 9.
The word "believe" occurring in this section is much
S. "Knows or has reason to believe".—(l)
"suspect" and involves the necessity of showing that the circumSlanCeS were
stronger than the word
such that a reasonable man must have felt. convinced in his mind that the property with which he was
dealing was stolen property. It is not sufficient in such a case to show that the accused person was
careless or'that he had reason to suspect that the property was stolen or that he did not makç sufficient
enqüir,' to ascertain whether it had been honestly acquired or not. (1963) S Orissa JD 370.
6. Evidence and proof.—(1) Where persons are charged with assisting in concealing or disposing
of property which they knew or had reason to believe to be stolen property, the nature of the property
as well as the circumstances under which it was being made away with must be taken into
consideration in assessing their guilty knowledge. (1864-1866) 2 Born 11CR 130.
(2) The mere knowledge of the place of concealment does not necessarily lead to the conclusion
that the person having such knowledge actually received the stolen property or participated in the act of
concealment. AIR 1917 Lah 48. . .
(3) Dacoity—AccuSed not taking part nor receiving any articles but throwing away a bundle into
well—Offence falls under Section 414. AIR 1957 Andh Pra 482. ..
(4) In a case under Sections 411 and 414, P.C. proper way to charge the jury is to tell them that
when once the presumptionunder Section 114, Evidence Act, ceases to be applicable there is no
•evidence of guilty knowledge at all. Omission to tell this is misdirection being a most serious error
vitiating the conviction based on it. A IR 1937 Pat 191.
A person cannot be tried for an offence under this section and
7. Charge and conviction.—(l)
under S. 379 in one trial. 1935 Mad W N 652.
8. Sentence.—(l) A second class Magistrate convicted the accused under S. 411 for receiving,
along with another person, stolen property. He also convicted him under this section . for assisting in
the concealment of other stolen property, and sentenced him to suffer 4 months R.I. under each of
these two sections and directed the sentences to run consecutively. It was held that the sentences were
quitrIegal. A IR 1928 Born 145. ..
When a stolen article is criminally disposed of by one person and at the same
9. Procedure.—(l)
time and place dishonestly received by another, the two offences form part of the same transaction and
the two persons can be tried jointly at one trial. (1904) 1 CriLJ 330.
(2) The fact that certain persons were convicted under this sectiqn for possessing a stolen revolver
is no bar to their being convicted in respect of it under Section 19(f), Arms Act in a subsequent trial.
A IR 1933 Oudh 470. . .
bailable—Not compoundable—Triable by Metropolitan Magistrate
(3) Cognizable—Warrant—Not
or Magistrate of the first or second class.
10. Practice.—Evidence —Prove: (1) That the property in question is stolen property.
(2) That the accused assisted in concealing or disposing of, or making away with, such property.
(3) That he did the act of assisting in concealing or disposing of, or making away with, such
property voluntarily. . .
(4) That he knew or had reason to believe that the property was stolen property.
Sec. 415 Of Offences against Property 1285

11. Charge.—The charge should run as follows:

I (name of office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, onor about the—day of—, at—, voluntarily assisted in concealing (or disposing of, or
making away with) property, to wit—, which you knew (or had reason to believe) tobe stolen
property, and that you thereby committed an offence punishable under section 414 of the Penal Code,
and within my cogüizance.
And I herebydirect that you be tried, by this Court on the said charge.

Of Cheating
Section 415
.415.. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any person, or to consent
that any person shall retain any property, or 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
(a) A , by falsely pretending to be in the Civil Service, intentionally deceives Z, and
thus dishonestly induces Z to let him have on credit goods for which he does not mean to
pay. A cheats.
(b) A by putting a counterfeit mark on an article, intentionally deceives Z into a belief
that this article was made by a certain celebrated manufacturer, and thus dishonestly
induces Z to buy and pay for the article. A cheats. ..
• (c,) A by exhibiting to Z a false sample of an article, intentionally deceives Z into
believing that the article corresponds with the sample, and thereby dishonestly induces. Z
to by and pay for the article. A cheats.
• (d) A , by tendering in payment for an article a bill on a house with which A keeps no
money, and by which A expects that the bill will be dishonored, intentionally deceives Z
and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A
cheats. - .. . . ••
(e) A , by pledging as diamonds articles which he knows are not diamonds,
intentionally deceives Z and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay' any money that Z
may lend to him and thereby dishonestly induces Zto lend him money, A not intending to
repay it. . cheats. . . .. . .
(g) 4 intentionally • deceives 2 into a belief that A means to deliver to Z a certain
quantity-. of indigo plant which he does not intend to deliver and thereby dishonestly'
1286 Penal Code Sec. 416-417
induces Z to advance money upon the faith of such delivery, A • cheats; but if A , at the
time of obtaining the money intends to deliver the indigo plant and afterwards break his
contract and does not deliver it, he does not cheat, but is liable only to a civil action for
breach of contract.
(h) A intentionally, deceives Z into a belief that A has performed A 's part of a contract
made with Z, which he has not performed, and thereby dishonestly induces Z to pay
money. A cheats.
(i) A sells and conveys an estate to B. A , knowing that in consequence of such sale he
has no right to the property, sells or mortgages the same to Z, without disclosing the fact
of the previous sale and conveyance to B, and receives the purchase or mortgage money
from Z. A cheats. .
Cases
1. For cases relevant to this section, see .under section 417 infra.

Section 4.16 .
416. Cheating by personatioü.—A person is said to "cheat by personation" if
he cheats by pretending to be some other person, or by knowingly substituting one
person for another; or representing that he or any other person is a person óthèr than
he or such other person really is. . .
Explanation.— The offence is committed Whether the individual personated is a
real or imaginary person. .. . . .
Illustrations .
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by
personation . .
(b) A cheats by pretending to be B, a person who is deceased. A cheats by
personation. . . . ..
Cases
1. For cases relevant to this section, see under section 419 infra.

Section 417
417. Punishment for cheating.—Whoever cheats shall be punished with
imprisonment of either description for a term which may extend to one year, or with
fine, or with both. . .. . . .
Cases and Materials : Synopsis
1. Scope. . . 6. Property and delivery of property.
2. Deceive. . 7. "Causes or is likely to cause damage or harm
Dishonest concealment of fact. in body, mind, etc."
3.
"Fraudulently or dishonestly." 8. Effect mast be the proximate conseuence of
4.
the deceit.
5. Induced to deliver property. .
Sec. 417 Of Offences against Property 1287

9. Intention. 21. Cheating and extortion.

10. Omit to do. 22. False information to public servant and
11. Damage or harm. cheating.
12.. Person. - 23. Using false measure and cheating.
13. Breach of contract and cheating. 24. Travelling by Railway without ticket.
14. Void contracts. 25. Section 415, Section 41-7 and Section 420.
15. Civil' liability. 26. Furnishing false information and cheating.
16. Issue of cheque which. is dishonoured. 27. Charge and conviction.,
17.. Attempt. 28. Evidence and proof.
1.8. Abetment. . . 29. Sentence.
19. Theft, cheating, criminal breach of trust, 30. Procedure.
criminal misappropriation. . . 31. Practice.
20. Cheating and uttering counterfeit coins. 32. Charge.
1. Scope.—( I) In the offence of cheating there are two elements—deception and dishonest
inducement to do or omit to do something. Mere dishonestly is not a criminal offence. Moreover, to
establish the offence of cleating, the complainant would have to show not only that he was induced to
do or omit to do a certain act but that this induced omission on his part caused or was likely to cause
him some harm, or damage in body, mind, reputation or property which are presumed to be thefour
cardinal assets of humanity (AIR 1938 :Mad . 129). In order to bring a case within the second part of
section 415, damage or harm caused, or likely to be caused must be the necessary consequence of the
act done, by reason of the deceit practised or must be necessarily likely to follow therefrom, and law
does not take into account remote possibilities that may , flow from the act. The damage OE harm must
be the proximate and natural result of the act or omission and does not include vague and contingent
injury (36 CrLf 276). In a case of cheating the intention of the accused at the time of the offence is to
be seen and the consequence of the act or omission itself is to be judged. Deceiving is common to
both parts of the section. The person deceived must have acted under the influence of the deceit. The
facts must establish damage or likelihood of damage and the damage must not be too remote. It is
clear from the -words of section .415 that mere deceit of a person is not sufficient. The mere doing of
something fraudulently or dishonestly is not sufficient. The .deceit.of the fraudulent or dishonest
person must induce the. person 'deceived to deliver . some property, or to consent that some property
shall be retained, or intentionally which he would not otherwise do or omit to do,' and, the words "and
which act or omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property" are important. Fraud is proved when it is shown that a false representation has
been made knowingly, or without belief in its truth or recklessly, or without caring whether it be true
or false. The giving of a cheque on a bank as payment for goods, or in payment of debt does not
amount for goods, or in payment of a debt does not amount to a representation that the person giving
the cheque has money to the amount in the bank at time, but does amount to a representation: (a) that
he has authority to draw on the bank for that amount;. (b) that the cheque is a good and valid order for
the payment of its amount and that the cheque Will be paid, i.e. that the existing state of facts is such
that in the ordinary course the cheque will be met (31 CrLf 1096). Whenever the words 'fraud' 'or
"with intent to defraud" or 'fraudulently' occur in the commission of a crime, two elements at least are
essential to the commission of a crime, viz (a) deceit or an intention to deceive or, in some cases mere
secrecy and (b) either actual injury or possible injury, or an intention to expose some person either to
1288 Penal Code Sec. 417

actual injury or a risk of possible injury, by means of that deceit or secrecy. The term "fraudulent" may
be defined to imply an intent to deceive in such a manner as to expose any person to loss , or risk of
loss. The term "dishonestly" implies a deliberate intention to cause wrongful gain or wrongful loss,
and when such an intention is proved and is coupled with cheating and the delivery of property, the
offence is punishable under section 420 of the Penal Code, in which the word "fraudulently" finds no
place. There is nothing in section 415 to exclude from the scope of its provision cheating which has
relation to immovable property. It is true that so far as that part of section which relates to dishonest
concealment of facts is concerned, it must be read subject to the qualification that there is no duty on a
seller to disclose defects in title in immovable property which the buyer with ordinary case could
discover. But where loan is made upon certain property burdened with -charge on the representation that
the property was free of any charge and these questions were answered falsely, and the charge upon the
property was not a registered charge, it cannot be said that in this case the creditor could have
discovered this charge by rePerence to the registers. It is a misappropriation deliberately made for the
purpose of deception, amounting to èheating (A IR 1937 Sind 56) It is well settled that a mere breach
of contract cannot give rise to a criminal prosecution. This is so, because at the time of entering and
carrying out-the contract a man may honestly have intention of the contract but. later may not be able to
do for mote than thereason, or may charge his mind. This distinction between a mere breach of
contract and one of cheating therefore depends upon the intention of the accused at the time of alleged
inducement. Where there isno clear or conclusive evidence of the criminal intention of the accused at
the time the offence is said to have been committed and where the party said to be aggrieved has an
alternative remedy in a civil court, the matter should not be allowed to be fought out in a criminal
court. Subsequent conduct is no doubt a piece ofevidence of criminal intention but that along cannot
be enough in every case, and it is the circumstances of each case which have to be considered along
with subsequent conduct (AIR 1959 Tri 40).The offence of cheating may be done in a variety of ways
•based on human ingenuity. It may be committed throughadvertisement..
(2) Simple cheating is punishable under section 417 Penal Code. Section 417 covers, cases of
cheating in which though there is fraud yet there is no intentionof causing wrongful loss or wrongful
gain.-Section 417 punishes the offence of cheating committed which is not otherwise provided for.
Section 420 also punishes for the same offence and the question often arises as to which section is
applicable. Section 417 provides punishment for the offence of simple cheating which are not covered
by sections 418, 419 and 420. Thtwo essential ingredients of the offence under this section are firstly
deceit and secondly inducement. The crux of the case against the accused is the state of their mind at
the time when they committed the alleged offence, regardless of any remedy, whether civil or criminal,
that may be available upon the f&cts to the case (PLD 1965 Lah 676). This section will apply only
where the act complained of falls within the mischief of the section 4152 Where the dispute is of a civil
nature the Court will not convict an accused for cheating(AIR 1940 Lah 93). If there is no deceit, there
cannot be cheating. Question involving civil rights should not be tried in the guise of criminal
proceedings. Mere breach of contract cannot give rise to a criminal prosecution. The distinction
between a case of mere breach of contract and a case of cheating lies upon the intention of the accused at
the time of the alleged inducement and where there is no criminal intention of the accused at the time
the offence is said to have been committed the matter ought not to be entertained in criminal court.
(AIR 1973 SC 326) Evidence with regard to previous act-of fraud alleged to have been committed by an
accused who is on his trial on a charge of cheating, is inadmissible in law (26 CrLf 906). Subsequent
conduct is, no doubt, a piece of evidence of criminal intention bit that alone cannot be enough in every
Sec. 417 Of Offences aginst Property 1289

case and it is the circumstances of each case which have to be considered along with subsequent
conduct. Where the accused had entered into a contract with the complainant to work for the !tter but
did not commence work in spite of complainant's making two payments as agreed, the complainant in
order to make out the offence of cheating has to establish a preconceived intention on the part of the
accused of not carrying out the terms of the agreement. Such an intention cannot be presumed from the
mere receipt of money and not working subsequently according to the termsof the agreement. If the
intention is changed subsequently it would not be , cheating. The prosecution in all . criminal cases is
really the state of mind. Therefore in a case of cheating it is not necessary that complainant should have
been the person deceived. (7 C'rLJ 342). In a'prosecution for an offence under section 415, the burden is
on the prosecutionto prove fraud or dishonesty. The burden of proof is not on the accused to prove
their honesty. In a charge of cheating, the charge must set out the manner in which the offence was
committed. The omission to state the manner of the cheating is regarded as material or not according
as the accused has or has not in fact been mistedby the commission and the omission has or has not
occasioned a failure of justice "29 CW N 408; 28 CrLJ 849). Since the offence is noncognizable, the
investigation of it can only be undertaken by police on the instruction of a Magistrate. -
(3) "Property", meaning of—Procuring certificate to get admission in a . college —not a
'property'—No harm to reputation is caused by attesting such certificate. Rana Muhammad Fazal
Khan Vs. State (1962) 14 DLR (SC) 235: (1962) PLD (SC) 397.
(4) 'Property' does not depend upon its possession a money or market value and still it may have
a value for its owner. It may still be capable or being owned, possessed or transferred and, therefore
capable Of creating property or legal rights in its owner, possessor, holder or transferor. Rana
Muha,nrnad.Fazal Khan Vs. State (1962) 14 DLR (SC) 235.
- (5) "Cheating"—Theword 'person' occurring in -section 415 includes Government—Government
property- in possession of Government servant is deemed to be in possession of Government.
Muhammad Rashid Vs State (1960) 12 DLR (SC) 207.
- (6) Initial intention to cheat must be proved—In order to constitute cheating it must be established
that someone is made to part with some property on the promise of another to return something in lieu
-thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be
established in order to justify a conviction for cheating. Prithiraj Bacha Vs. State (1958) 10 DLR 325.
(7) Intent to cheat must be proved to have existed at the time when the offences were committed, -
Subsequent conduct is no valid criterion—The mere fact that theaccused denied the transaction at the
trial and refused to return the money, does not necessarily show that they had .a crim inal intent from
the beginning and their denial may merely amount to the usual mistaken attempt to protect themselves
from theresult of the prosecution. Mere breach of a contract cannot give-rise to-a criminal prosecution.
The distinction between a case of mere breach of contract and one of cheating depends upon the
intention of the accused at the time of the alleged inducement which may judged by his subsequent
act. Where there is no clear and conclusive evidence of the, criminal intention of the accused at the time
the offence is said to have been committed and where the party is said to be aggrieved has an
alternative remedy in the civil court, the matter should not be allowed to be fought in the criminal
courts. Abdul A-wa!, Chowdhury- Vs. Md. Waliüllah (1960) 12 DLR 520: 91961,) PLD .(Dac.) 53.
(8) No cheating without deception; no decëptioñ without misrepresentation. If a person undertakes
to supply goods of it specific description on the condition that the goods, will be subjected to scrutiny
before final acceptance, and will be liable to rejection if they are discovered to be of different quality -
1290 Penal Code Sec. 417

and quantity, and supplies goods which are not of the specified quality and takes the risk of loss
arising from rejection, he does not commit the offence of cheating as defined in section 415 of the
Penal Code. He commits no deception unless he so plays with the goods as to conceal its defects, and
gives to them the colour to appear as goods of the specified quality. There can be no cheating without
deception and there can be no deception without misrepresentation, and misrepresentation takes place
only when a person by his conduct changes the face of the article offered for acceptance. There was
complete 6hoice in the authority to reject the timber offered if it did not correspond to the
specifications. Submission of goods to inspection and rejection, without any attempt to conceal their
defects, does not constitute the offence either of cheating or attempt to cheat. M Shar(fA sghar V s.
State (1959) 11 DLR (W P) 90: (7959) PLD (Lah) 238.
(9) Cheating under section 415 is not a prerequisite to a conviction under section 419. Md.
Shafiullah Vs. The State, (1967) 19 DLR 255' - - -
(10) When a person promises to pay price of goods and on his undertaking to pay the goods were
delivered to him—Afterwards he fails to pay price thereof—No case of cheating will lie. "Cheating"
has been defined in section 415 of the Penal Code. The ingredients of cheating are deception of one
person by another person and fraudulently or dishonestly inducing the person so deceived to deliver
:any property, It is, th "refore, clear that the acts of deceiving and thereby dishonestly or fraudulently
inducing the person deceived are acts which must precede the delivery of any property. Consequently if
the delivery of the gods is made not as result of any dishonest inducement then no Offence of cheating
is committed. In a case of supply of goods-on promise to pay its price the all important question to
be determined is whether the intention not to pay the price was there when the promise was made. For
subsequent failure to keep the promise to pay does not constitute cheating. This will be a mere breach
of contract for which the person breaking it is liable for a civil action. It clearly appears from the
complaint petition that some unspecified quantity of jute was supplied by the complaint's firm to the
company of the accused from - December 1972 to January 1973. The price of the jute came to Rs.
72,750.42 paisa but when some time after delivery of the jute its price was demanded the price was no
paid and the promise was broken. Breach of the promise to pay the price in these circumstances hardly
shows that when the promise had been made the accused had no intention to pay the price. It is
contended that the initial intention of the accused can be better determined on the basis of evidence and
that it is not yet proper time to quash the proceeding on the plea of absence of dishonest intention at
beginning of the transaction. Held: On perusal of the complaint petition there is nothing to show that
when the accused had made the promise to pay the price of the jute on delivery they had the dishonest
intention- not to pay it. On the contrary, it appears that the jute was supplied for over a considerable
period in the normal course of business on credit. The subsequent denial of the transaction amounts to
a mistaken attempt to save -themselves from criminal prosecution. Md. A nwar A ll Vs. State & Md.
Nezaniuddjn (1978) 30 DLR 327. -
(11) Ingredients of cheating—Thosehave to be established Ona charge of cheating. In order to
constitute cheating it must be established that someone is made to part with some property on the
promise of another to return or to give something in lieu thereof which the latter had no intention to
give. The initial intention to deceive, therefore, must be established to justify conviction for cheating.
Intention to cheat. -is to be gathered from surrounding circumstances. Nasiruddin Mahmud V s.
Momlazuddin A hmed, (1984) 36 DLR (A D) 14. -
(12) Cheating—Ingredients which must be established in an offence of cheating. Shaik Obaidul
Huq Vs. The State,(1-986) 38 DLR 105.
Sec, 4 17 , Of Offences against Property . 1291
(13) A post-dated cheque in payment for goods received, if dishonoured, creates only a civil
liability, Shaik Obaidul Huq V s. The State (1986) 38 DLR 105.
(14) False representation with a view to cheat need not be addressed to specific indIvidual. It may,
be addressed td the public in general. M F. W . Rewail Vs. State (1956) 8. DLR 569.
(15) By false representation the accused induced the revenue authority to have his name mutated in
respect of certain property whereas that property belonged to somebody else. The offence being detected
the accused was tried for cheating under. section 420 Penal Code. On appeal it was contended that the
State being the complainant and as the State was not the person who was cheated the charge under
section 420 a against the accused did not lie. Held: The conviction is valid in law. The revenue
authority was the agent of the Government which granted protection to the right of the subject. Md.
Shafi Vs. Stare (1966) 18 DLR (W P) 151.
(16) The initial intention to deceive must be established to justify a conviction of cheating and the
intention is to be granted from the surrounding circumstances. A rfur Rahman alias Bablu V s.,
Shantosh Kumar Sadhu and another 47 DLR (AD) 180.
(17) It there is allegation that goods were delivered on credit on specific promise of repayment
within a specific date but the payment was not so made, it may be inferred that there was initial
intention of deception. A saduzzaman (Md) Vs. Md. Salamatullah & others (Criminal) 52 DLR 530.
(18) Cheating—Whether issuance of post-dated check constitutes an offence of cheating—The
insurance of post-dated check means a promise for future payment and if future payment is defaulted on
account of subsequent dispute that does not constitute any offence of cheating while there is nothing to
show that the accused had any initial intention to cheat or deceive the other party—In order to
constitute cheating there must be fraudulent and dishonest inducement for delivery of property—The
all important question to be determined is whether the intention not to pay was there when the promise
was made—The subsequent failure to keep the promise to pay does not constitute cheating. Sheikh'
Obadiul Haque Vs. Rezaur Rahman Khan 7 BLD .(HCD) 23.
(19) Distinction between cheating and breach of contract—In order to constitute cheating it must
be established that one is made to part with his property on the promise of another or to give
something in lieu thereof which the latter had no intention to give with a view to deceiving at the
outset. The averments in the petition of complaint that the accused turned down the respect for
execution and registration of the sale deed on receipt of the balance of the consideration in pursuance of
an agreement for sale clearly show that no criminal offence was made out—At best it may be treated as
a breach of contract entailing civic liability—The distinction between the breach of contract and
cheating depends upon the intention of the accused at the time of the alleged inducement, which may
be judged by his subsequent acts—In the instant case facts show complete absence of dishonest
intention on the part of the accused at the time when the agreement was executed between the parties—
Prolongation of the proceedings in the criminal Court amounts to an abuse of the process of the Court
and is therefore liable to be quashed. Shahjahan Vs. A tiqur Rahman 7 BLD (HCD) 164.
(20) Simple dishonouring of a cheque itself is not cheating. To constitute an offence in section
415 of the Penal Code, there must be a specific allegation that the accused had initial intention to
deceive the complainant. It is also true that such intention can be gathered from the facts and
circumstances of a case, because such intention normally is concealed in.the mind and is not expressed.
If there are allegations that goods were delivered on credit on specific promise of repayment within a
specific date but the payment was not made within the specific time, it may be inferred that there was
initial intention of deception. Md A saduzzaman Vs. Md Salamarullah, 19 BLD (HCD) 461.
1292 Penal Code Sec. 41

(21) It is a settled principle that the initial intention to deceive must be established to justify a
conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md.
A rfiir Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD (A D) 78.
(22) Cheating, offence of—Ingredients. Held:-.--(i) In order to constitute cheating it must be
established that some one is made to part with some property on the promise of another to return or
give something in lieu thereof which the latter had no intention to give the initial intention to
deceive, therefore, must be established to justify conviction--however that intention to cheat to be
gathered from surrounding circumstances. (ii) ,A dishonest concealment of facts is a deception within
the meaning Of Sec. 415 P. C. Such a deception is an ingredient of cheating. Akamuddin Ahmed Vs.
The State, 27 DLR.('AD) 175.
(23) Prosecution for cheating—Plea of civil liability—The sum and substance of the
complainant's case is that the accused released.a total sum of Tk. 50,000/- form the complainant on a
promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused
in support of his application u/s. 56/A Cr. P. C. was that the liability, if any, was of a civil nature for
which no prosecution would lie Since according to the petition of complaint the accused totally
denied receipt of any sum from the complainant, the question of civil liability does not arise. A bdur
Rahim Vs. Enamul Huq& ors. 43 DLR (A D) 173=12 BLD (A D) 130.
(24) Cheating—The initial intention to deceive must be established to justify a conviction for
cheating. Intention of cheating. shall have to gathered from the facts of the case.and its surrounding
circumstances; Where there is no fraudulent intention of the accused from the beginning, there can be
no question of cheating. In the absence of mens rea, mere breach of contract cannot constitute cheating.
Inability to fulfil a promi'se or contract does not amount to cheating. Mahbubul A lam Gazi alias
Ma hbub A lam Vs. State and another (Criminal) 5 BLC 380.
(25) Quashing of criminal proceeding—prosecution of cheating—plea of civil liability-In petition
of complaint, accused totally denied receipt of any sum from the complainant. Held, the question of
civil liability does not arise. 12 BLD (AD) 130. . . . ..
(26) (a) There cannot be any criminal case simply because the petitioner failed to deliver the
contracted goods within the stipulated period and. thereafter refused to refund to the opposite parts' No.
I moneys advanced for purchase of goOds by way of import. There is no allegation that the
complainant retained control , over moneys paid to the accused petitioners by way of any stipulation so
as to bring the accused petitioner and the complainant, within the ambit Of a fiduciary relationship.
There being no entrustment there cannot be any offence under section 406 Penal Code.
(b) In thepresent cas6essential ingredients of entrustment and cheating are missing. However, in a
proper case a breach of contract may also amount to cheating or criminal breach of trust punishable
under the Penal Code. Dispute being of civil nature petitioner may be liable for.breach of contract. 3
BCR 15. .• . . . •... . . •.. .. . .

(27) The ingredients required to eonstithte the offence 'cheating" under Section 415 are?--
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) The person so deceived should be induced to deliver any property to any person, or to
consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything
which he would not do or omit if he were not so ,,deceived; and
(iii) In cases covered by (ii)(b), the at or omission should be one which causes or,is , likely to
cause damage or harm to the person induced in body, mind, reputation or property. AIR 1974
'SCJ8JJ. . . ..
sec. 417 Of Offences against Property 1293
(28) Deceiving one person and in ducing another to deliver property will not amount to cheating. It
is of the essence of the offence of cheating as defined in this section that delivery of property should be
y the person who himself was deceived by the accused. So also, no offence of cheating can be said to
have been committed if one, person is induced by deception to do or omit' to do something and the act
or omission causes or is likely to cause damage or harm to another person. AIR 1954 Mys 9.
(29) The offence . in English law, which corresponds to the offence under this section, is known as
"obtaining property by false pretence ." But the offence under the English law is different from the
offence of cheating as defined in this section in some respects. Under the English law, a false pretence
must be of a fact that exists or has existed. A promise as to future conduct not intended to be kept is
not by itself a false pretence under Engli law, but under this section this will amount to cheating as
is clear from a reading of illustrations (f) and(g) to this section. AIR .1966 All 594.
(30) Preparation for cheating—Does not amount to attempting to cheat. Accused filed 2 insured
covers insured for Rs. 1200-0-0 with blank sheets and attempted to despatch them through the post
office—Attempt failed—Contents discovered by the post office—Offence u/ss. 417/511 not made
out—Neither offence u/ss. 193/511 made out. It is quite clear that in so doing the petitioner was
making preparation for committing an offence of cheating. But the evidence does not establish that he
went any further than thaf and it does not show , that he made an attempt to cheat anybody. Jogesh
Chandra Guha Vs. CrOwn (1954) 6 DLR 483.
(31) Circumstantial evidence—Other evidence abducted does not make the court believe and hold
that the appellants dishonestly made insertion in the sale—deeds as alleged Low consideration
money by itself would not show that accused persons dishonestly inserted excess area of land in two
documents—Appeal allowed. 7 BCR 128 AD.
(32) Whether Government servants can be tried in the ordinary Criminal Court' for offence of
cheating and forgery with private persons—Whether such offence against public servant is exclusively
triable by the Special Judge—Offence of forgery under section 468 and cheating under section 417 PC
are not triable by ordinary Criminal Court—Those offences are to be tried by the Special Judge
appointed under the Criminal Law amendment Act—The Additional District Magistrate has no
jurisdiction to try the case for offences under sections 417 and 471, PC. 7 BLD 137.
2. Deceive^ –(I) Deceit is one of the essential elements of the offence of cheating. 1977 CriLJ
(NOC) '9.
(2) Where there isno evidence of deception an offence under this section cannot be made out. AIR
1952 Orissa 149.
(3) A. fraudulent representation can be made directly or indirectly. A fraudulent representation got
made through a person acting as agent for the accused amounts to fraudulent representation by and on
behalf of the accused. AIR 1962 All 582.
(4) Where the complainant knew the truth, the accused 'cannot be convicted of the offence of
cheating him. In such a case, the accused will be guilty only of an attempt to cheat. AIR 1960 SC 979.
(5) Where the accused obtained payments of money orders from postman showing identity card of
payee with own photograph pasted on it and by signing as payee, the accused was guilty of offence of
cheating. AIR 1972 Delhi 13.
(6) Bogus scheme promoted by accused—Persons induced to deposit money with them on false
representation and suppression of materia1facts— Held, accused were guilty of offence of cheating. AIR
1960 All 103.
1294 Penal Code Sec. 417

(7) In cases of deceit by representation, it is necessary to establish that the accused knew from the
very beginning that the representation which he was making to the complainant was false; AIR 1954
Manipur 13.
• 3. Dishonest concealment of fact.—(1) Every concealment of fact does not amount to deception.
The concealment must have been made dishonestly. Even a deliberate and illegal concealment of fact,
unless it be a dishonest concealment will not amount to deception. 1980 Jab LI 45.
(2) Concealment of a fact , is not quite the same thing as mere refraining from starting it.
Somethingmore is required to constitute concealment. But it is not necessary that there should be a
statuary duty to speak. A duty such as may arise out of the circumstances in which the parties are
placed and the nature of the negotiations between them • is enough. Also any act done' or precaution
taken to prevent the real fact from being brought to the notice of the other party is concealment, even
in the absence of a duty"fo state it. A IR 1963 Guj239.
(3) The silence 'of the accused may amount to "dishonest concealment" under some circumstances
and hence may amount to deception within the meaning of this explanation. AIR 1925 Cal 14.
(4) Cross-word Puzzle Rule that the dçcision of the Editor is final—Complainant claiming that he
had sent correct solution but was not awarded the prize—Others were awarded prize—No cheating by
the Editor. A IR 1955 NUC (Pat) 105.
4. "Fraudulently or dishonestly.—(1) It is not necessary to prove that the acts done by the
accused are dishonest as well as fraudulent. 1968 CriLJ 1149.
(2) Wrongful retaining of property which does not belong to accused is also dishonesty. 1980
Cr1LJ 369 (All).
5. Induced to deliver property.—(1) Mere deception will not constitute cheating under Section
415. There must be evidence to show that , he complainant was induced by such deception to deliver or
part with property or to do or omit to do certain acts which were detrimental to his interest. (1975) 41
CutLT 1085. ' 1'
(2) Where drugs are sold in bottles bearing labels containing false statements as to the brand of the
drug etc. there .must be evidence to show that the buyers were induced to buy the drug by the
misappropriation on the level. A IR 1959 Cal 427.
6. Property and delivery of property.—(1) There is nothing in the section to exclude from its
scope cheating which has relation to immovable property. AIR 1937 Sind 56.
(2) The following have been held to be "property" with the meaning of this section:
(a) a licence. AIR 1948 Mad 268,
(b) a health certificate. AIR 1920 Mad 131,
(c) a warrant of attachment. (1904) 1 Cr1 L.J 332 (Born),
(ci) an admission card to sit for a University examination. AIR 1961 SC 1698,
(e) a salary of a person. AIR 1942 Pat 53. .
(3) A passport is 'property' in 'respect of which the offence of cheating can be committed. AIR
1977 SC 1174.
(4) Property is delivered when something in the ownership or possession of one man is delivered
into the ownership or possession of another. Thus, Railway gons are no doubt property, but where
by wrong entries, more number of Railway agon.re taken to the colliery siding (which belongs to
Sec. 417 Of Offenàes against Property 1295
the Railway) for purposes of loading, there is no delivery of property within the meaning of this
section, as the amount of control exercised for this purpose is of a very limited character. A IR 1924
Cal 495.
(5) A man can give delivery through another of property within the meaning of this section which
is not in his possession but which is at his order. A IR 1937 Sind 293.
7. "Causes or is likely cause damage or harm in body, mind etc."—(l) Where the Oath
Commissioner is induced by the accused to attest an ffldavit by falsely identi1'iiig. as 0, a person
who was not G, the act done by the Oath Commissjdner could not cause any damage or harm to the
Oath Commissioner in body, mind, reputation or prQperty. The accused could not be held guilty under
S. '415 or S. 419. A IR 1974 SC 1811. .
8. Effect must be the proximate 'consequnee':4f.the deceit.—(1) Under the first. part of the
section, delivery of property induced by the deceit constitutes the offence of cheating. According to the
second part, an act or omission of the complainant which causes or is likely to cause damage, or harm
to him in body, mind, reputation or property is necessary to make out an offence of cheating. But in
both cases, the effect must be the direct, proximate or natural consequence of the deceit practised upoh
the complainant by the accused. (1972) 1 Cut LR (Cr) 450. .
9. Intention.—( I). A guilty intention is an essential ingredient of the offence of cheating. in other
words, 'mens rea' on the part of the accused must be established before he can be convicted of an
offence of cheating. AIR 1956 SC 575.
(2) Intention to cheat can only be gathered from the facts and circumstances of each case. AIR 1960
A ll 103 (112) = 1960 CriLJ 188 (DB).' .
(3) The facts and circumstances mube such as to-exclude any reasonable hypotheses of good
faith. AIR 1944 'Mad 41.0.
(4) It is necessary, in order to constitute the offence of cheating, that the intention to leceive
should ,exist at the time when the inducement is offered. AIR 1954 SC 724.
(A ) Illustrations (a) Cases where dishonest or fraudulent intention is made out.— .( 1) The
accused, a head constable of Police, tried by means of a letter which was not genuine to obtain two
bags of paddy from the complainant. It was held that he rightly convicted of an offence under this
section read with S.511 of the . Code AIR 1951 X Tag 315;
(b) Cases where it was held that there was no dishonest intention. — ( 1) A promised to marry B
and cohabited her, with the result that B became pregnant. Subsequently A refused to marry her. For
want of proof that A had no intention to marry B at the time of his proposal of marriage, he was
acquitted of the offence of cheating and his subsequent conduct in refusing to marry the girl was held
not to be the sole criterion of his intention at the time of earlier proposal. 1.955 BLJR 17.
(2) No loss or damage of any kind caused to person misled—No offence. AIR 1963 SC 1572.
(3) Procuring petrol coupons by fraud—Charge against manager of transport company—Held,
intention to cheat was not proved. AIR 1957 SC 466.
(4) Dishonest intention of the accused persons not proved—Order of acquittal held was correct in
law. AIR 1964 Cal 64.
10. Omit to do.—(1) Where the accused produced an altered Railway pass and attempted to travel
without paying the fare, it was held that the accused was guilty under this section, as by deceiving the
1296 Penal Code Sec. 417

Railway Company, he induced the Railway Company to do or omit to do what otherwise they would
not have done, or omitted to do, but for his production of the altered pass. 1868 Pun Re (Cri) No.
6,P.9,
• 11. Damage or harm.—(1) The expression 'harm' connotes injury to a person in body, mind
reputation or property. AIR 1966 SC 1773.
(2) An offence of cheating as defined in the second part of this section cannot be made out where
there is no evidence to show that the accused had any intention of causing, damage or harm by his ac
or that his act was ever likely to cause damage or harm to the deceived person in body, mind,
reputation or property. AIR 1974 SC 1811.
(3) The Piblic Service Commission has got a reputation as an entity. The reputation pertains to
its ability to make the right selection of candidates 'afierdue consideration of the applications before it.
If therefore it is led or beguiled to make an unworthy selection or to select a person who is
incompetent or unqualified, such an act cannot but be held to affect the reputation of the Public Service
Commission. A IR 1960 A ndhPra 441.
(A) Illustrations.—( 1) The accused induced a Station Master to make out a railway receipt stating
that the consignment 'as said to contain 251 bags of chilies with letters 'L/U' endorsed, meaning that
the responsibility for loading and unloading vested with the consignor. The wagons were found to
contain only 197 bags of chaff. On the above facts it was held by the Supreme Court that the Railway
did not incur additional liability by the false statement regarding the quantity and contents of bags and
the issue of RJR was therefore not likely to cause damage or harm to the Railway. AIR 1970 SC 843.
(2) Damage 'in mind' includes mental pain or anguish: It is not limitedtO mere injury to mental
faculties. Thus, where the accused, pretending to be a certain well-known eye specialist, induced the
complainant to allow hirn..to perform an operation on his 12 years old child and thereby caused the
complainant a good deal of thental anguish, it was held that the accused was guilty under this section.
AIR 1961 All 639,
12. Person.—(l) Government is a corporate body and will certainly come within the definition Of
the word "Person" in S. II of the Code. 1977 CriLJ (NOC) 157.
13. Breach of contract and cheating.--(I) There is a thin line of difference between a case of a
breach of a contract and a case of cheating. 1980 WLN 83 Raj.
(2) A mere breach of contract is not necessarily cheating. The element which convert the breach of
contract into an offence of cheating is the dishonest or fraudulent intention ofthe accused at the time
he induces the complainant to enter into the contract. AIR 1974 SC-301.
14. Void contracts.--(I) A criminal prosecution for cheating can be based on a contract even if it
cannot be enforced in a civil Court On the ground that it is void as 'being opposed-to public policy, etc.
AIR 1952 All 428.
15. Civil liability.—(l) That the accused is liable in a Civil Court under a contract or agreement
is no defence to a charge of cheating, If his action amounts to an offence under this section. AIR 1966
A11,594.
(2) The fact that the compfainant has taken a security bond to obtain satisfaction from the accused
after the deceit had become known is also not an answer to a charge of cheating. AIR 1957 Assam 148.
(3)A obtained a decree for money against B', C and D, C and adjudicated insolvents. A
proceeded to execute the decree against B and did not press The execution on B 'executing a fresh bond
Sec. 417 1 Of Offences against Property 1297

for the debt. A also proved his debt before the Receiver and received a small dividend. It was held, A
was not guilty of cheating. The matter was one of adjustment of the amount received as dividend
towards the amount of the new bond taken. AIR 1928 Lab 945.
16. Issue of cheque which is dishonoured.--(I) Where a cheque is issued to meet an antecedent
liability, the dishonouring of the cheque will not give ground for a prosecution for cheating as there is
no delivery of property nor is there an induced act or omission which has caused or is likely to cause
damage or harm to the complainant in body, mind, reputation or property. 1977 Punj Li (Cr1) 263.
(2) The position is different where property is purchased by the accused and the price is paid by.
cheque. When a person draws a hundi or issues a cheque, there is an implied representation that (i) he
has the authority to draw and draw for that amount; (ii) that the cheque or hundi is good or valid order
for payment of the amount; and (iii), that the cheque or hundi would be paid when presented for
payment. AIR J957 All 246.
(3) Where a cheque issued by, the accused is dishonoured it will be for the accused to establish any
facts there may be in his favour to show that the failure to honour the, cheque was not due to any
design but was purely due to accident. AIR 1930 Born 179. -
(4) Giving a post-dated cheque by a person who has no funds to his credit in the bank does not
amount to an offence Of cheating .when there-is no evidence to show that the person to whom the cheque
was given parted with any property or that he did or omitted to do anything which he would not have
done or omitted to do if he had known that the cheque would be dishonoured. AIR 1940 Lah 93.
17.' Attempt.—(1) A false representation made with the necessary intention will constitute only
the offence of attempt to cheat, when nobody, is deceived by that representation. AIR 1934 Born 48.
• (2) The accused represented to the complainant that he would duplicate' currency notes.
Complainant gave some curiency notes to the accused feigning belief in the above false representation.
On the above facts, it was held that the accused was guilty oI.an offnce of attempt to cheat and that
the fact that the complainant was not deceived was immaterial. AIR 1960 SC 979.
18. Abetment.—(1) A, B and ç who were known to the complainant represented to him that one
F whom he did not 'know was a rich Seth and would fall aó easy prey if the complainant gambled with
him. F was in fact a notorious gambder. The complainant who was no match for F at play, gambled
with F and was done out of his property by F's tricks. It was held that A, B and C were guilty of
abetment of cheating. (1905) 2 CrILJ 38. . .
(2. ) One B procured quantities of saccharine and bicarbonate of soda and mixed them and put the
'misture into., tins which he gave to a broker to sell. The broker accordingly sold them as genuine
saccharine. It was held that B was guilty of abetment of cheating. AIR 1924 Born 303.
19. Theft, cheating,' criminal breach of trust, criminal misappropriation.- .--( I) In theft, the
original taking of the property itself is dishonestly done and it is also done without the consent of the
owner. In criminal breach of trust the original taking of the property is not dishonest and it is also
with the consent of the owner. In obtaining property by cheating, the taking is dishonest, but with the
consent of the owner and in criminal misappropriation, it is honest but without the consent of the
owner. AIR 1936 Mad 353.
20. Cheating and uttering counterfeit coins.—( 1) . Where the accused attempted to sell or pawn
silver rupees of Shajahan period as gold Mohurs of that period by coating the coins with some layer of
00. gold, it was held that the offence committed by him was cheating and not uttering counterfeit coin.
(1906) 4 CriL.J 453.
1298 Penal Code Sec. 417

21. Cheating and extortion.– .-(1) In extortion, the offender induces the victim to deliver the
property by intimidation and in cheating the victim is induced to deliver the property by deception.
AIR 1961 AndhPra 266.
22. False information to public servant and cheating.—(1) Where in a proceeding for the issue
of a certificate of marriageable age of a certain girl, the applicant by producing another girl
misrepresents to the Magistrate that the girl produced is the girl whose age is required to be certified
the offence committed is not cheating, since the Magistrate would not suffer any harm in mind, body,
reputation or property.. The offence made out is one under S. 182 of the Code. AIR 1951 Sau 8.
23. Using false measure and cheating.—(1) Where the accused used a false meassure and sold
liquor and was convicted under Section 265 of the Code, it was held that the accused could more
appropriately have been tried for the offence of cheating. Rat Un CrC 386
24. Traveling by Railway without ticket ^ ( 1) A railway passenger traveling in, a class higher
than that for which he had..paid his fare is not liable to be convicted under S. 417. There is no question
in such a case, of any inducement on the part of the accused of any person 'to part with any property.
(1862-1863) 1 Born (NCR) 140.
25. Sectidn'44-5,Sectjon 417 and Section 420^ (I) In cases where there is delivery of property
on account of cheating, the section that, secia1ly provides for it viz., S. 420 ought to be made ' iise of
S. 417 which provides for punishment for cheating simpliciter ought to be used for those cases of
cheating as defined , in S. 415 in which the victim has nat been induced to deliver any property. 1977
CriLJ (NOC) 219.
(2) The vital difference between the offences under Sections 417 'and 420, P. C. is that whereas an
offence against , the latter section is a cognizable one, that against the former is non-cognizable and
investigation of it can only be undertaken by the,poliôe on the instructions of Magistrate, whereas in
other case the police can act , on their own motion under Sections 154 and 156, Criminal P. C.
AIR
1945 PC 18.. . .,
(3) A submitted false claims to the Government and obtained payment in respect of works not
carried out by him. It was held thavA was guilty under Section 420 , and not under' this section. The
contention of A, that as soon as officers of the Government passed orders for payment, the offence was
complete and that he washable under this section only was not accepted. It was held that the making.
of bogus claims was concluded only when payment was made and hence A was held guilty under S.
420. AIR 1967 SC 752. .
26. Furnishing false information and cheating.—(1) A gave The acCused 4 annas to buy a
stamp for A and when the stamp-vendor asked the name; the accused gave A's name instead of his
own. it was held that accused was guilty under Section 177 and not under this section. (1866-1867) 3
Born NCR 42.
27. ' Charge and conv iction.---(I) In a case of cheating, the charge must .set out the manner in
which the offence was committed. Where the wording of the charge is reasonably sufficient to give the
accused notice of the accusation which he has got to meet, depends upon. the circumstances of each
case. AIR 1977 SC 2433.
(2) The charge must contain allegations regarding the deceit , and the intention with which the
accused deceived the complainant. AIR 1933 Sind 169.
(3) Accused cannot be charged for more than' three items of cheating and for 'a period beyond one
ythr unless it is held that various acts Of'deceptión alleged against him were so connected together as
to form the same transaction. AIR 1969 All 489. '
Sec. 417 Of Offences against Property 1299

28. Evidence and Proof.—(1) In a prosecution for an offence under this section, every ingredient
which is included in the definition of the offence must be established by the prosecution. Spbit'icatly,
the burden of proof is in the prosecution to establish fraud or dishonesty. A IR 1949 Cal 586.
(2) In cases of deceit by false representation it is necessary to establish that the representation was
false to the knowledge of the accused. A IR 1949 Cal 586.
(3) Previous acts of fraud committed by accused.have no relevancy in a trial for a charge in respect
of a particular act of cheating. A IR 1960 SC 391:
(4) The mere taking of a person's thumb impression on a blank piece of paper is not sufficient to
prove an intention to use the paper dishonestly and does not constitute an offence under this section.
A IR 1926 Pat 267. . . . . . . . .
(5) An accused. cannot be held responsible for his brother's representation, unless it is proved that
he had authorised the brother, to make that representation. A IR 1956 SC 544, .
29. Sentence.—(l) Where a person's proved connection with the specific offence of cheating is
only through the general conspiracy to cheat and he has already received a sentence of a certain term of
imprisonment for his part in the general conspiracy, , there should, be no additional sentence on the
charge of cheating. A IR 1939 Cal 376. . .
(2) Offence of attempting to issue counterfeit University degrees—Offender a Reader holding
M.Sc. and Ph. D. degrees—Held that award of a sentence of imprisonment till rising of Court by
Sessions Court was too lenient and award of sentence of imprisonment for 3 years by High Court was
just and reasnable—Observation against soft sentencing of white collar and economic offenders. A IR
1978SC1548. . . ,• ,
30. Procedure.—(l)The offence of cheating could be tried either at the place where fraudulent
misappropriation or deception took place or where as a: consequence thereof the complainant was
induced to 'deliver property. 1974 W LN (UC) 152.
(2) The appellant living at Karachi was ma king representations by letters, telegrams and telephones
to the complainant who was at Bombay that he had ready stock of rice and had reserved shipping space
and that he would send rice on receipt of payment, in fact, he held no ready stock , of rice, nor had he
reserved any shipping space On this false representation the complainant at Bombay parted with the
property to the tune of Rs. 5.5 lakhs, on different dates. It was held by the Suprénie Court that the
entire offence of cheating was committed at Bombay and the Indian Court had jurisdiction to try the
offence. A IR 1957SC 857.
• (3) Accused sent by V.P.P. from Madras certain boxes purporting to contain tea at the order of A
to Hyderabad. A paid the value payable amount and took delivery of the boxes, but on opening found
them to contain merely sawdust. It was held that the offence was completely committed at Hyddrabad
and the Madras Court had no jurisdiction. A IR 1927 Mad.544.
(4) A complaint-for cheating filed in the Court at H alleged:
(i) that at place X, the accused induced the complainant (woman) to have sexual intercourse with
him on the false representation that he would marry her;
(ii) that on similar inducement the complainant gave money to him at place A, which he promised
to return; and
(iii) that subsequently, the accused wrote a letter to her when she was in 1-1 asking her to -make
arrangement at H for the marriage and that upon this representation the complainant at H spent
1300 Penal Code Sec. 418
about Rs. 200/- for the marriage arrangements, but that subsequently, the accused wrote a
letter to the complainant that he did not wish to marry her and that he intended to marry
another girl. It was held that the Court at H had jurisdiction to try the accused for the 3rd
item of cheating but had no jurisdiction to try accused for the 1st and 2nd items of cheating.
A IR 1961 A ndhPra.266.
(5) Not oognizable—Warrant--Bailable—Compoundable when permission is given by the Court
before which the prosecution is pending—Triable by Metropolitan Magistrate or Magistrate of the first
class, Village Court. If the offence is committed by public servant; it becomes: Cognizable—Not
bailable—Not compoundable—Triable by Special Judge under Act XL of 1958 and Act II of 1947.
31. Practice.—Evidence—Prove: (1) That the person deceived delivered to some one or consented
that some person shall retain certain property.'
(2) That the person deceived was induced by the accused to do as above.
(3) That such person acted upon such inducement in consequence of his having been deceived by
the accused.
(4) That the accused acted fraudulently or dishonestly when so inducing that person.
32. Charge.—(l) The charge should run as follows:
I, (name and office of the Magistrate/Judge, etc.) hereby charge you (name of the accused) as
follows: -
That you, on or about the—day of—, at—, (set out. the manner in which the cheating was
committed), and thereby committed cheating, an offence punishable under section 417 of the Penal
Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 418
418. Cheating with knowledge that wrongful loss may ensue to person
whose interest offender is bound to protect.----Whoever cheats with the knowledge
that he is likely thereby to cause wrongful loss to a person whose interest in the
transaction to which the cheating relates, he was bound either by law, or by [a] legal
contract,)o protect, shall be punished with imprisonment of either description , for a
term which may extend to three years, or with fine, or with both.
Cases and Materials
1. Scope^ ( 1) This section prescribes the punishment for an aggravated form of cheating, namely,
cheating by . a Person standing in a fiduciary capacity to the person cheated. All that the section requires
is the existence of an obligation created by law or by a legal contract, by which the deceiver is bound
to protect the interest of the deceived. In other words this section applies to cases of cheating by a
guardian, a trustee, a solicitor, an agent or karta of a Hindu family, or by directors or managers of a
bank in fraud of the share-holders. It is the abuse of trust that is visited with severe punishment. The
existence of a civil remedy for a criminal offence does no!' bar jurisdiction of the criminal court to try
the accused. But as a rule a Criminal Court must stay its hands when a 'civil suit about the same
matter is pending (32 CrJJ 463)..
Sec. 418 Of Offences against Property . 1301

(2) The directors and other officers of a Bank are bound by law to protect the interests Of the
depositors and sha'reholders of the Bank. If by submitting false balance sheets before the shareholders
and depositors, the directors cheated the depositors, then they are guilty of the aggravated form of
cheating made punishable under this section. (1894) ILR 16 All 88.
(2) One of the partners of a partnership firm with his wife and minor children got a new firm
registered in thesame name of his aid firm and transferred the money of that firm to the account of
new firm—Complaint filed by the other partner of old firm under sections 418, 420 etc.—As riot
maintainable against the .wife of partner forming new firm. 1984 All Cr1 Rul 18.
(4) Complainant gifted articles in "chuni" ceremony at the time of engagement—Placing of such
articles in the hands of accused persons of the engaged girl.cannot be said to create any kind of trust
with them—The liability to return those articles may be of civil nature and criminal Court is not the
right forum. 1983 Chand Cr1 471 (P&H). .
(5) Where, a person obtained sugar, -by misrepresentation, from a Cooperative Society for
distribution to its members but did not so distribute it, it was held that he might be liable under the
Sugar Control Order but could not be convicted under this section inasmuch as the Society itself was
not cheated. The damage yvas caused not to the Society but to its members who are a different entry.
J973A 11W R (HQ 577
(6) Where neither the complaint nor evidence proved the existence of a dihonest'intention. on the
part of the accused not to pay for the goods purchased from the complainant at the time the purchase
was made and the promise, to make the payment the next day, held the offence of cheating was nQt
made out. The fact that subsequently the accused failed to pay for the goods was by itself not sufficient
to hold that he entertained such dishonest intention. 1978 Cr1LJ 401 (A ndh Pra).
(7) Where the bank from whom a partner of a firm had purchased a draft, on the basis of the
representation made by other partner of the firm that the draft issued had been lost, issued a duplicate•
draft and on cancellation of 'the draft by 'other partners' adjusted the amount towards cash credit
account of the' firm, it could not be said that bank had misappropriated any amount. (1983) 2LandLR 65.
(8) Knowledge of the accused that he is likely to cause wrongful loss to the person cheated is an'
essential element of the Offence .under this section. In order to charge the director of a Bank, it will
therefor,' 'be necessary to show that he acted with the knowledge of his being likely to cause wrongful
loss. (19j0) 11 CriJJ 624 '(Mad).
(9) The existence of civil remedy is no bar to the trial by the Criminal Court of an offence. AIR
1933 All 42.
(10) Where a civil suit is pending in respect of the same, matter the Court should stay its hand till
the disposal of the suit. AIR 1930 Lah 664.
2. Practice.—Evidence—Proye: (1) That the accused cheated some person.
(2) That he was under a legal obligation to protect the interest of that person.
(.3) That the cheating had relation thereto.
(4) That he knew he was likely to cause wrongful loss to such person.
3. Procedure—Not cognizable—Warrant---Bailable—Compoundable when permission is given
by the Court before which the prosecution is pending —Triable by Metropolitan Magistrate or
Magistrate of the first or second class. If the case comes under the mischief of Act XL of 1958, it
becomes: Cognizable—Warrant—Not bailable—Triable by the Special Judge.
1302 Penal Code Sec. 419

4. Charge.-The charge should run as follows:•

I, (name and office of the Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—Day of—, at—, cheated X by doing an act, to wit—, the kno.wlódge
that you were thereby likely to cause wrongful loss to the said X whose interest, in the transaction to
which the cheating related you were bound either by law (or a legal contract) to protect, and that you
thereby committed an offence punishable under section 418 of the Penal Code and within my
cognizance. . ..
And I hereby direct that you be tried by this Court on the said charge.

Section 419

419. Punishment for 'cheating by personation.—Whoever cheats by

personation shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both..
Cases and Materials : Synopsis
Scope. 7. Representing to be other than what he really
1.
2. . Section 416 and Section 170. is.
3. Personation at an election, 8. Charge.
4. "Pretending to be some other person." 9. 'Evidence and proof.
5. "Individual presented need not be real 10 Sentence.
person." 11. Procedure.
6. Knowingly substituting one person for 12. Practice.
another. . . .
1. Scope.—(1) There are two elements in the offence namely cheating and prsonätion..
Personation by itself is no offence but when he in addition fraudulently and, dishonestly does a•
fraudulent act as if he is himself that other person, then section 416 will be attracted. Where an accused
pretending to be a certain candidate for an examination, forges, answer , papers purporting to be
forgery, and the fact that such candidate
answered by such candidate, he is guilty of both cheating and forgery,
has failed in other papers answered by himself does not affect the guilt of the accused (A IR 1936
403). It is not necessary for the purpose of cheating that the person presented is a real person He may
even be an imaginary person. In either case, the personation must aid deception and inducing others to
deliver property, so as to constitute an offence. Mere personating another is not cheating. A represented
B was willing and admitted
to B that he was bachelor and proposed for the hand of his daughter and
him to his house but before the marriage came off, A was discovered to be a married man but girl went
away with A. It was held that the seduction having taken place after the deception of A was discovered,
it could not be said to be the consequence of deception and therefore, A cannot be convicted of
To 'Personate' means to pretend to be a particular person.
cheating (22 CW N 1001, 19 CrL.J 781).
(2) This section provides punishment for offence under section 416. Cheating by personation is an
offence of a general character under which a person may pretend to be any one other than what he is. A
person making a false representation that he possesses a degree does not commit an offence under
section 419 because he does not thereby pretend to be any other person , than who he is. .Accused,
number I made accused No. 2 falsely personates the complainant, and execute a document of sale in his
Sec. 419 Of Offences against Property 1303

favour of property which belonged not to accused No 2, but to the complainant. Accused No. I took
accused No. 2 to the Sub-Registrar's Office and the document was registered by accused No. 2. In
these circumstances, it was held that condition as regards deception might be said to be fulfiled
because, but for the deception, the Sub-Registrar would not have consented to register the document.
But as noharm or damage could be said to have been caused to the Sub-Registrar in body, mind,
reputation or property conviction under section 419 Penal Code not be supported, but the case of
forgery under section 468 Penal Code had been fully made out (1958 CrL.J 275). Where Awas selected
for appointment as a police constable but he fell ill and K appeared for medical test in hi€ place. He
passed it and got the job. The false identity of K was discovered many. years later and hewas tried for
an offence under section 419 of the Penal Code. It was held as he had performed his duties to the
satisfaction of all no loss or damage had been caused by his appointment, and he could not be
convicted under section 419 (PLD 1964 Dhakd 92,). Where the deception is discovered before any
damage or loss has been caused there can be no conviction under section 419. To bring home an
offence of abetment of cheating by impersonation, it must be hown that the accused committed an
offence with guilt)' knowledge and made some illegal gain in the transaction. Offences under sections
170 and 419 of the Penal Code are entirely different from each other and so if the fact of cheating by
false-personation fails it does not follow that the offence of false personation itself and its facilitation
must also fail.
(3) Offence under the section not punishable unless the person concerned suffers either in mind,
bdy or reputation. It was contended that in a Charge for offence of cheating.the complaint to the court
must be made by the person who has been deceived and no one else. Held: The offence of cheating
under, section 419 of the Penal Code is a cognizable offence, and there can be no reason why it cannot
be taken cognizance of like other such offences and therefore there can be no legal bar to any other
person giving information of such a cognizable offence. Syed MusharrafHossain. Vs. State, (1960) 12
DLR 834. . . . . . -.
(4) Where no injury or possible injury to the person deceived has either been alleged or proved
section 419 of the Penal Code cannot apply. M A . Motalib Vs. State (1961) 13 DLR 436.
(5) The petitioner by showing false documents induced the purchaser to enter into an agreement to
purchase the house on receipt of Taka 12 lakh on .a plea that he would refund Taka 14 lakh in the event
of failure to execute sale document. The contntion of the petitioner to the effect that it was a civil
dispute and that the Court of Settlement had given a final ' decision over all the disputes including the
question of criminal liability is not sustainable. The criminal proceeding cannot be held to be liable to
be quashed, A ga Kohinoor A lam Vs. State 43 DLR 95. ..
(6) The allegation as alleged in the FIR prima fade constitute the offence of cheating and forgery
and that the present dispute is not a civil dispute for which the proceeding cannot be quashed. A ga
Kohinoor A lam Vs. State (Criminal) 3 BLC 204.
(7) In a Bank defalcation case an order of retrial will be proper where the trial in the lower court,
has been vitiated by illegality, irregularity or Otherwise defective or when the original trial has not been
satisfactory for the particular reason, for example, if the evidence had been wrongly rejected which
should have been admitted when it should have been rejected or the court refused to hear certain
witnesses who should have been heard of where the accused have been prejudised by the conduct of the
case and on similar grounds. 16 BCR 101 AD. . .
1304 Penal Code Sec. 419

(8) A disputed question as to complicity of the appellant in the crime, who is the recipient in the
forged sale-deed cannot be determined except on evidence in the trial. Proceedings against the appellant
cannot be quashed. 7 BCR 148 AD. .
(9). Cheating under section 415 is not a pre-requisite to a conviction under section 419 19
DLR 255. .
.(10) Prosecution having failed to prove that accused had committed cheating by personation.
Charge under section 419 Penal Code was not sustainable. 1984 PCrLJ 603.
(11) Section 416 defines the offence of cheating by personation. In order to come Within Section
416, there must be both cheating and personation. AIR 1941 La/i 460. .
(12) In order to come Within the scope of this section, all the ingredients of S. 415 must be
present. A IR /974 SC 1811... . .. .
(13) The accused should have had an intention to cheat. AIR 1967 All 123.
(14) There must be evidence to show that the person deceived was induced by 'such deception to
deliver property or otherwise to act to his own detriment. A IR 1974 Sc 1811.
2. Section 416 and Section 170.—(1) Cheating.by personation is an offence of a general character
under which a person may pretend to be any one other. than what he really is; but; persoriating a public
servant is a specific offence provided for under Section 170 of the Code. Where the accused was
convicted of both these offences for falsely representing himself as belonging to the Police Fore; the
High Court maintained the conviction under Section 170 and set aside the conviction under this
section. A IR 1958 Mad/i Pra 230. . . . . . .. ' .
.'. • Personation at an election..—( 1) To personate means to pretend to be a particular person; and
the moment F handed in the voting paper purporting.it to be B's, personatioñ was complete. (1864)
122 ER .628. . . .'. .. . . .
4. "Pretending to be some other person."—(l) The following are illustrative cases of
personation, where the accused puts himself forward as another person:— . ..
(a) Accused pretended to be a certain well known Eye Specialist and induced the complainant to
allow him to perform an operation on the eye of his 12 year old son. AIR 1961 All 639.
(b) Accused pretended to be a certain candidate for an examination, forged answer papers
purporting to be answered by such candidate. AIR 1936 Gal 403.
(c) Accused used the railway season ticket issued in the name of the different person by pretending
to be that person. A IR 1957 A ndhPra 4.
(d) A, a well-known runner, entered for a race pretending to be another person who had never won
a race and thus secured a more favourable handicap and thus attempted to win the prize. Held
that A had personated the other person in whose name he entered for the race. (1900) 1.9 Cox
CC 568. . .
(e) A, an American National, pretended to be B, a British National, and gained entry into India,
by use of a forged passport. It was held that A had committed the offence of cheating by
personation. AIR 1968 Mad 348.
(2) 3rd accused pretended to be Chandra Dass in whose favour a letter of authority to. pay Rs.
15,000 was forged by A 4 in conspiracy with .A 1 • and 2 and 9—Offences under Ss. 120-B and 420
held committed by each and tinder S. 419 by 3rd accused. AIR 1970 SC 648.
Sec. 419 Of Offences against Property 1305

5. Individual personated need not be real person.----( I) The explanation to the section shows
that the offence is committed, whether the individual personated is a real or imaginary person.
Therefore, it is not necessary for the prosecution to make out whom the accused has been personating.
1977 GnU 'NOC) 105 ('Him Prq).
(2) Where the prosecution had established that one K. V. Rama Rao who was an overseer had, by
his representation that he was one K. Rama Rao, (a fictitious person) an Engineering graduate of
Mysore University, and had on that basis induced the Public Service Commission to select him for 'a
post in the Government service, it was held that the accused was guilty of the offence of cheating by
personation. AIR 1960 And/i Pra 441.
6. Knowingly substituting one person for another.--(1).A woman claiming herself to be D
was introduced to a lawyer by two men known to him. He reovered some money from Government
treasury on behalf of the woman. The personation was detected later and 'a case started against him. The
proceedings against him were quashed by the High Court. It was observed that the lawyers many times
do not know personally the accused hence no case against him was prima facie made out. 1973, All WR
(HC) 402. . .
(2) Accused knowingly represented J to be B, the mother of a sepoy who had been killed,,and
induced the military authorities to grant pension to . J. Held, that he committed the offence cheating.
punishable under Section 419. AIR 1938 La/i 828. .
7. Representing to be other than what he really is.—( 1) It is an essential element of the offence
that the accused should have represented himself to be other than what he. really is. If there is no such
representation there is no offence under this section. 1969 Mad LW ('Cii) 253. .
(2) Where awoman is palmed off as belonging to a caste different to the one to *hich she really
belongs with the object of obtaining money, there is no question of personation in such cases which
are, only simple cases of cheating by false representation falling under the general provision of Section
415 and not under the specific provision of this section. AIR 1920 Nag 261.
(3) Accused belonging to the Burmo sub-caste of Brahmins went though the ceremony, of being
married to the complainant's daughter who belonged to the Barindra'sub-caste, by representing that he
also belonged to the sub-caste. It was held that the accused had committed the offence of cheating by
personation. AIR 1937 Cal 214. . .
(4) Where the facts found were that the accused sold a minor married girl to the complainant
representing her to a virgin, it was held that the accused was guilty under section 420. A IR 1918 Lah
-49.
8. Charge.—( I) Where the facts stated in the complaint make out a case under this section the
wrong mention in the summons of the provisions of the Railways Act is an irregularity, which does
not affect the validity of the charge framed under this section after the examination of the witnesses for
prosecution. AIR /957 AndPra 4. -
(2) Where the statements in the charge otherwise make it clear that the accused is charged with
cheating by false personation the mere fact that the words "cheating by false personation" are not used
in the charge is only an irregularity nor vitiating the trial where the accused had not been prejudiced
thereby. AIR . 1977SC 2433.
(3) The charge should run as follows:
1, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
1306 Penal Code Sec. 420
That you, on or about the—day of-, at—, pretending to be (specify the personated) (or
knowingly substitute X for Y or represented that you or Y were so and so) and thereby committed an
offence punishable under section 419 of the Penal Code and within any cognizance.
And I hereby direct that you be tried by this court on the said charge.
9. Evidence and Proof.-0) In a case of cheating by personation it is not sufficient for the
prosecution to prove that the complainant was cheated by personation. It must be established beyond
doubt that it was the accused who cheated by personation. 1962 RajLW 263.
(2) A health certificate is 'property' within the meaning of Section 415 of the Code and if a person
faudulently induces a Health Officer to deliver to him a health certificate by false personation, he is
guilty of an offence under this section. AIR 1920 Mad 131.
(3) Acquittal of the accused of an offence tinder this section does not render the evidence as to
impersonation inadmissible for purpose of S. 420. AIR 1968 Orissa 79.
(4) Where the accused was charged under Sections 419, 420 and 465 and it was found by
the Court that there was no false representation proved and acquitted the accused under Sections 419
and 420, the charge under Sec. 465, which also involves as an essential element a false represen-
tation, cannot survive arid the accused • could not be convicted under Section 465
of the Code. AIR
1955 Cal 473..
(5) Where the accused claimed to be the brother in law of another, there cannot be a conviction
under this section without first establishing that the alleged relationship in false. AIR 1935 All 566.
10. Sent ence.—.--( I) Previous conviction of the accused for offences of theft and burglary ought not
be taken into account in imposing a sentence for an offence under this section. AIR 1927 Lah 220.
11. Procedure.- o-41) Report made by Police Officer on investigation disclosing cognizable offence
under Section 416 P. C. and also non-cognizable offence under Section 417 P. C.—Entire case is to be
!deemed as a cognizable case. 1977 C'riLJ ('NOcj 228.
(2) Complaint indicating offence under sections 419, 420, 467, 120B and 109 of Penal Code—
Offences under sections 419 and 420 committed in course of same transaction in which other offences
were committed—Held complaint cannot be split up and cannot be allowed to proceed in respect of
offences under sections 419 and 420 for which no complaint by Court is necessary. 1983 cr11_i 24.
when permissing is given by the Court before which
the prosecution is pending—, Trjable by Metropolitan Magistrate or Magistrate of the first or second
class. If the offence is committed by a public servant, it becomes: Cognizable—Not bailable—Not
compo undable—Triable by Special Judge under Act XL of 1958.
12. Practice.—Evidence-Prove: (1) That the accused cheated the complainant.
(2) That he did so by pretending to be some Other person; or by knowingly substituting one
person for another; by representing that he or some other person, is a person other than the person he
really is.

Section 420
420. Cheating and dishonestly inducing delivery of property.—Whoever
cheats and thereby dishonestly induces the person deceived to deliver any prOperty to
any person, or to make, alter or destroy the whole or any part of a valuable security
Sec. 420 Of Offences against Property 1307

or anything which is signed or sealed, and which is capable of being converted into a
valuable security, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
Cases. and Materials Synopsis
1. Scope. 15. Abuse of Railway pass-Section 68, Railways
2. This sec/ion and Ss. 415 and 417. Act and this section.
3. There must be cheating. 16. Section 64, Post Office Act and this section.
"Whoever." (Sending blank papers in insured cover).
4.
S. Dishonest intention. 17. This section and Section 215.

Promoting speculative schemes. 18. Charge and conviction.

6.
Property and delivery of property. 19. Evidence and proof.
7.
Valuable, security. 20. Existence of civil remedy.
8.
21. Pleas which are not valid defences.
9. Issuing cheques.
.22. Denial of liability.
10. Adulteration.
23. Sentence.
11. Taking deposit of moneys.
24. Procedure.
12. Attempt.
25. Practice.
13. Abetment.
26. Charge.
14. Conspiracy to cheat.
1. Scope.-(I) In the offence of cheating there are two elements-deception and dishonest
inducement to do or omit to do something. Mere dishonesty is not a criminal offence. Moreover, to
establish the offence of cheating, the complainant would have to show not :only that he induced to do
or omit to do a certain act but that this induced omission on his part caused or was likely to cause him
some harm or damage in body, mind, reputation or property-which are presumed to be the four
cardinal assets of humanity (A IR 1933 Mad 129). In a case of cheating the intention of the accused at -
the time of the offence is to be seen and the consequence of the act or omission itself is to be judged.
The damage or harm caused or likely to be caused must be the necessary consequence of the act done
by reason of the deceit practised or must necessarily and likely follow therefrom, and the law does not
take into account remote possibilities' that they may flow from the act. The person deceived must have
acted under the influence of the deceit. Under section 420, the representation may not be the sole cause
of damages or loss. It is sufficient if the complainant was party and materially, though not entirely,
influenced by the false pretence. A wilful misrepresentation of a definite fact with intent to defraud
would be cheating, along with this, it has to be shown that the representation made was false to the
accused's knowledge at the time when it was made. An act would not come within the definition of
cheating if the representation has turned out to be untrue at a future date (1952 CrLJ 1230). In a case of
cheating it is for the prosecution to show that at the time the accused entered into transaction with the
complainant, the accused had no intention to pay the money and that he was actuated by a dishonest
intention to cheat the complainant (1960 Cr LJ 787).
Refusal to act upon a contract is a civil dispute. It is not a criminal offence under this section.
Cheating amounts to inducing the victim to enter into a bargain which he would not enter into if he
knew the real facts. The distinction between a case of mere breach of contract and one of the cheating
depends upon the intention of the accused at the time of the alleged inducement which may be judged
by his subsequent act but of which the subsequent act is not the Isole creation (37 CrLJ 38). Where in
1308 - Penal Code Sec. 420

• fulfilment of a contract for supply of cotton of .a certain quantity, cotton of a lower quality is
deliberately supplied, the offence falls under section 420 (13 CrL,J 285). Where a cheque is
• dishonoured and from that it could be presumed that the accused must have been aware that the cheque
would be dishonoured he would be guilty under section 420. Where it was represented that currency
notes will be duplicated, but the complainant never believed that it could be done but on feigned belief
only to trap the accused, it was held that an offence under section 420 was not committed but that the
accused was found guilty Of an Attempt to cheat (A IR 1960 Sc 979). It is well settled that a mere
breach of contract cannot give rise to a criminal prosecution. This is so, because at the time of entering
• the contract a man may honestly have intention of carrying out the contract, .but . later may not be able
to do so for more than one reason or may change his mind. Where there is no clear or conclusive
evidence of the criminal intention of the accused at the time the offence is said to have been committed
and where the party said - to be aggrieved has an alternative remedy in civil court, the matter should not
be allowed to be fought out in a criminal court. Giving a post dated cheque by a person , who has no
funds to his credit in the bank does amount to an offence of cheating when there is no evidçnce to
show that the person to whom the cheque was given parted with any property or that he did or omitted
to do anything which he would not have done or omitted to do, if he had known that the cheque
would be dishonoured. The dispute in such a case is of a civil nature (AIR 1940 Lahore 93). Ordinarily
• a post-dated cheque is a mere acknowledgment of a 'loan and promise to pay in future, therefore, if the
cheque is not honoured no criminal offence is committed (PLD 1978 Lah 521). Even the issue of a
post-dated cheque with knowledge that drawer had no funds in the bank does not amount to cheating
(41 CrLf 394). The use of a forged cheque fraudulently and dishonestly as genuine, knowing the same
to be forged, make one of offences under section 420 and 471 Penal Code ((1970 P CrLf 308). Mere
suppression of some facts at the time of borrowing money does not amount to cheating where there is
no evidence of either active deception or dishonest or fraudulent action. Where a purchaser neglects his
duty to make due inquiries about the title and encumbrances of the property under sale, he cannot hold
the seller liable for non-disclosure any fact which he could have discovered with ordinary diligence.
The case of non-mention of encumbrances cannot be taken as dishonest non-disclosure of any material
defect in the property because the buyer could have found out about it if he was only diligent as a
• vendee ought to be. It could not be said that there was any dishonest representation nor concealment of
anything which the accused were duly boundto disclose. An easy method of differentiating between
the offence of theft, cheating with delivery of, property, criminal misappropriation and criminal breach
of trust is to find out whether 'the original taking Was honest or dishonest and whether it was with the
consent of the owner or without it. In theft the original taking is without honesty and without the
consent of the owner and in criminal breach of trust it is with both. In obtaining property by cheating
the taking is dishonest but with the consent of the owner, and in criminal misappropriation, it is
honest but without the consent of the owner (29 CrLf 86). Ingredients of offences under sections 420,
403 and 406 are to a substantial extent available in most cases of breach of contract. Similarly a default
by a borrower in repayment of a debt without admission of liability may also frequently partake of the
character of an offence under section 406 Penal Code. Wilful misrepresentation of a definite fact with
intention to defraud would be cheating. Where a person parts with his property as a result of
• . misrepresentation and deceit, there can be no question of entrustment by him of that property to the
other. therefore, the accused could be guilty of an offence under section 420 and not one under section
406 Penal Code (PLD 1962 Kar 741). A party to an immoral contract should not be allowed to
• prosecute op a criminal charge' when he could not ge .t performance of the contract in a civil Court (13
Sec. 420 Of Offences against P,,roperry 1309
CrLf 521). A complaint under this section need not necessarily be filed by the cheated person alone.
(PLD 1968 Lah. 451). Where for goods already delivered, the accused gives a post-dated cheque and
gets a receipt but the cheque is dishonoured, the receipt not being a vafuable security within the
meaning of section 30, no offence of cheating is committed. The remedy of the complainant lies in a
civil court for breach of the contract (A IR 1936 Cal 324, 37 CrLJ 828). Where the complainant
executed a deed of divorce of his wife and his signature was obtained- in a State of intoxication caused
by the giving of large amount of liqour by the [mon] who decoyed him to another village on the
pretence that they were going to purchase a buffalo for him with money that would be advanced by
them and where some of the accused took away the wife, the offence is one under section 420 and not
•under section 417. In framing a charge under section 420 it is necessary to set out not merely the fact
that the accused had obtained goods by dishonest . means, but also deception which has been practised.
It is necessary that the representation should be mentioned in the chargé, so that the accused may have
an opportunity of saying either that he never made such representation, or that representation was not
in fact false, or that it was not in consequence of this representation that the goods were obtained. The
need of framing a precise charge is all the more stronger when the charge is based on a transaction of
goods by tendering post-dated cheque, in which the representation is implied rather than directly
expressed ' (40 CrLJ 494).'fhe offence punishable under section '420 Penal Code clearly comprises two
distinct phases, namely the act of cheating and delivery of property as a result of dishonest inducement
brought on by the act of cheating. The offence consists of something which has been done by the
perosn accused of the consequence which has ensued as a result of the doing of that thing. In the case
the misrepresentation by the two , principal accused persons was done at X whereas the delivery of
money as a consequence thereof took place at Y. Under the provision of section 179 Cr. PC an offence
under section 420 Penal Code would .therefore be triable either at X or at Y (PLD 1962 Karachi
499). The Village Court has exclusive jurisdiction to try offence under section 420 Penal Code when
the amount in respect of which the offence is committed does not exceed Taka 5000.00 (five thousand
Taka) vide Ordinance No. IV of 1979 dated 29-1-79. The mere fact that the accused denied a
transaction at the trial and refused to return the money does not necessarily show that he had a criminal
intent from the beginning and his denial may merely amount to the usual mistaken attempt by himself
from the result of prosecution (12 DLR 520, PLR 1961 Dhaka 187, 34 CrLJ 1255).
(2) Charge under sections 420/12013—Conviction under sections 420/34 valid. A charge under
section 420 ' read with' section 120B. P. Code, would lie where the accused had entered into an
engagement or association to do an illegal act but nothing were done in pursuance thereof. A.
conviction under section 420 read with section 34 of the Code is valid in law if the offence had been
committed in furtherance of the common intention of all, even though the original charge laid against
them was u/s. 420 read with section 120B of the Code. Md. Y aqub Vs. Crown (1955) 7 DLR 75.
(3) Conviction under the section—Civil suit lies for refund of money or specific performance of
contract. The conviction of the petitioner under section 420 of the Penal Code for cheating does not
debar the man cheated from filling a civil suit for specific performance of contract or for return of the
money taken by the petitioner by practising deception A bdul A wal Vs. W aliullh (1960) 12 DLR 520:
PLD (1961) .(Dac) 53: PLR (1961) (Dac) 187.
(4) Ingredients which shall have to be , established before recording an order of conviction In order
to bring home the charge under section 420 it is necessary of the prosecution to prove beyond all
reasonable doubts that the representation made by the accused was known to him to be false ançl'that
acting on that false representation the complainant, parted with his money. In dealing with an offence
1310 Penal Code Sec. 420

under section 420, it is necessary for a court of law to find whether the person making the
representation had the knowledge that the statement made by him was false. In a case under section
420; a court is not concerned with a correct interpretation of a statute but with existence or otherwise of
a bona fide belief whether there was a reasonable ground for the accused to think that he was entitled to
act in the way he did in the particular case. A . M. Serajul Huq Vs. Slate (1962) 14 DLR 265.
(5) Complaint by a person who is not himself cheated is valid in law. It is true that the accused of
a prosecution launched for cheating somebody to a large extent depends, in view of the ingredients of
the offence of cheating, upon the examination of the person cheated. Jagadish Chandra Ray V s.
Joynarayan Biswas (1962) 14 DLR 198.
(6) Complaint of cheating if not made by the perosn cheated, the case would fail. Where a
complaint of cheating before the court has been made not by the person defrauded but by another on
his behalf, the case must fail. In a case where the complaint of cheating several debtors of a
Cooperative Central Bank by the accused was made to the court not by the persons cheated but . by the
Executive Officer of the Bank. Held: The case against the accused must fail. Surendra Nath Saha Vs.
State (1960) 12 DLR 178.
(7) Company Iatthching wild and patently absurd scheme, but making no false statement and
concealing nothing—People contributing to scheme induced by hopes to make easy money against
probabilities—Offence of cheating not established. Before a person could be convicted for cheating or
for conspiracy to cheat on the basis of a speculative or improbable scheme issued to the public, it must
be established that the promoters of the scheme themselves did not believe in the working of the
scheme and that they had themselves no faith in it. Zahid Hasan Vs. State (1964) 16 DLR 23.
(8) Compromise in part not lawful—Accused was convicted and sentenced under sec. 420 P.C. on
appeal, both the parties filed a joint petition for compromise before the appellate Judge who directed
that the compromise be effected in part only. Held: if the Appellate Court permitted the case to be
compromised, then under section 345, clause (6), Cr. P. C. he had no alternative but to acquit the
accused and set aside the conviction and sentence. If he was refusing to allow the case to be
compromised, then he had no alternative but to hear the appeal on its merits and he had no right to say
that the compromise was permitted in part merely by reducing the sentence of imprisonment to the
period already served. Sahar A li Vs. Samed Ali (1954) 6 DLR 28.
(9) Complaint by a person other than the person cheated—Not entertainable. Where a complaint
under sec. 420 was preferred by a person not actually cheated. Held: The complainant had no locus
standi to make a complaint. Md. Hayat Khan Vs. Ghulam Md. (1954) 6 DLR (W P) 177.
(10) Joint trial of one S with other accused who were public servants u/s. 120B P.C. read with S.
5 (2) of the Prevention of Corruption Act—Illegal. Sayeed Hai Vs. State (1968) 20 DU (W P) 20.
(11) Money realised for works done on contract but one imperfectly and with materials other than
thOse agreed to, by presenting a voucher certified by two union council members which voucher not
signed by the accused but by someone else in his (accused) name does not make out case of cheating
under sec. 420. Lutfar Rahman Vs. State, (1973) 25 DLR (SC) 101.
(12) Complaint under section 420—Need not necessarily be filed . by cheated person alone.
Muhammad Ehsan Vs. State (1968) 20 DLR (W P) 132.
(13) Cheating—To establish the offence of cheating it must be shown that the criminal intent to
cheat exists from the very beginning—Its subsequent exhibition is not a test of cheating. Me.ser All Vs.
State (1974) 26 DLR 146.
Sec. 420 Of Offences against Property 1311

(14)- What constitutes cheating—in order to constitute cheating it must be established that
someone is made to part with some property on the promise of another to return or to give something
in lieu thereof which the tatter had no intention to give. The initial intention to deceive, therefore,
must be established to justify conviction for cheating. It is to be mentioned, however, that intention to
cheat is to be gathered from surrounding circumstances. A dishonest concealment of facts is a
deception within, the meaning of S. 415 of the Penal Code. Such a deception is an ingredient of
cheating. Akamuddin Ahmed Vs. State (1975) 27 DLR (AD) 175.
(15) Not alone by word of mouth, but equally by inducement to cheat may be inferred from
attending circumstances. An inducement to wrongly deliver, by false- representation or by false pretence
need not be always by word of mouth. It can be inferred from all the circumstances attending the
obtaining of the property. What is required is a dishonest intention which again can be gathered from
the act or series of acts, even distinct and unconnected but committed with the one aim in view, this
is, to cheat. Kazi Mozaharul Huq Vs. State (1981) 33 DLR 262.
(16) Cheating—Where any breach of contract is an offence and amounts to cheating, punishable
under the Penal Code. Kazi Mozahuril Haq Vs. State (1981) 33 DLR 262.
(17) A induces B by false representation to deliver some property to C—Offence of cheating is
complete even though A does not gain anything. It is never the necessary ingredient of an offence like
this that the person (which expression shall also include a person by a legal fiction) cheated should
deliver the property to the cheat. For an offence punishable under section 420 . of the Penal Code would
be complete if A cheats B to deliver to C and in that case it would not be even necessary that A should
stand to gain by its delivery to C for if -B had suffered wrongful loss by the wrongful delivery of his
property to C, A's act should be equally dishonest though he did not profit by it. Kazi Mozaharul
Haq Vs. State (1981) 33 DLR 262.
(18) If drawer of the post-dated cheque knew that it will not be honoured, then intention to cheat
established. Shaikh Obaidul Haq Vs. State (1986) 38 DLR 105.
(19) Appellate Court's power to award sentence consequential to the affirmance of conviction if the
trial court imposes no sentence upon the accused prescribed under that law, Jahangir Hossain Vs. State
(1988) 40 DLR 545. . .
(20) Questions arose whether the appellant could be proceeded against without sanction under S.
197 Cr. P. Code, he claiming that he was a public servant and therefore sanction for his prosecution
was necessary and he further claimed that offences under sections 420/5 11 were scheduled offences
under the Criminal Law amendment Act, 1958 and such offence was exclusively triable by the Special
judge. Mansur All Ahmed Vs. Bangladesh (1977) 29 DLR (SC) 224.
(21-22) It is not correct to say that in 'a case of cheating there is no necessity to. prove initial
intention to deceive and that subsequent conduct of the accused is enough to find him guilty. A bdul
Karim Vs. Shamsul A/am 45 DLR 578. .
(23) Loan taken on representation to play dishonestly inducing a person to lend the money having
no intention to repay.will be an offence of cheating. Shafiuddin Khan Vs. State 45 DLR 102.
(24) Where a prima facie case of criminaloffence has been clearly made out, the High Court
Division in a proceeding under section 561A CrPC has little scope to scrutinise the truth or otherwise
of any document or other evidence, whch may be used as a defence in a criminal proceeding. Kamrul
Islam (Md) Vs. A tikuzzaman, 49 DLR 28.
1312 Penal Code Sec. 42
S

(25) The first information report having made out an allegation that the information was persuaded
by the petitioner to part with his money through a clever device and was ultimately threatened with
murder for demanding repayment of the money, the initial intention to deceive appears on the face of
the First Information Report. Nurul Islam Vs. State and another 49 DLR 464.
(26) An offence under section 138 of the Negotiable Instruments Act .is for dishonour of a cheque
simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal code for
cheating is a distinct offence. The rule of law about the peremptory application of the special law in
place of the general law for trial of an offence hardly applies when the offences are distinct under the
two law. Nurul Islam Vs. State and another 49 DLR 464.
(27) Transaction based on contract ordinarily gives rise: to civil liabilities but that does not
preclude implications of a criminal nature in.a particular case and a party to the contract may also be
liable for a criminal charge or charges if elements of any particular offence are found to be present: The
distinction between a. base of mere breach of contract and one of cheating depends upon the intention of
the accused at the time as alleged which may be judged by his subsequent act. State Vs. Md Iqbal
Hossain and others 48 DLR (A D) 100. .
(28) From reading of section 48 of the Act we do not find that institution of this case under Penal
Code is barred under section 48 of the Act by an explicit provision of this Act. Salahuddin (Md) and
others Vs. State 51 DLR 299. . .
(29) To constitute an offence under section 420 Penal Code, there must be allegation of deception
at the initial stage of the transaction. Habib (Md) and another V s. State represented by the Deputy
Commissioner(Criminal) 52 DLR 105. .
(30) When there has been specific promise by the accused for the return of the deeds by specific
time and then when the promise was violated by them the ingredient for offence under section 406/420
Penal Code is well present. A Rouf and others Vs. State and another (Criminal) 52 DLR 395.
(31) The cheque was issued by the accused knowing it well that there is no sufficient fund in his
account for its enactment. Issuing of such cheque is by itself a criminal offence. Moniruzzaman (Md)
Vs. A NM Didar-e-alam and others (Criminat), 54 DLR 445; .
(32) As the money was taken after giving a specific pr omise of returning it within a specified time
the failure to pay the money attracts the offence of cheating. The proceedings cannot be quashed.
Sic/clique Abedin Vs. Md.. Musa Alam and State (Criminal), 54DLR 506
(33) Punishment for cheating—For the offence of cheating the substantive sentence of
imprisonment is mandatOry while the sentence of time is discretionary—The substantive sentence is an
essential requirement of law and in case of failure to pass substantive sentence under Section 420 of the
Penal Code it must be held to be a case of failure to exercise an authority vested under the law—It also
amounts to dereliction of duty on the part of the Court—When the law provides for a sentence of
imprisonment, the Court in its discretion cannot omit to pass the legal sentence. Md. Y eakub Kazi Vs.
Kaloo Khandaker, 7 BLD 'HCD) 150.
(34) The trial court convicted the accused under Section 471 of the Penal Code and sentenced them
to suffer R. I. for 4 years for using the photocopy of an Execution Register knowing it to be a torged
document—The High Court Division called the relevant Execution Register and found it tallying with
the photocopy of the sane and acquitted the accused—The Appellate Division held that since two
contradictory things cannot be true and genuine at the same time, the learned Judge of the High Court
Of Offences against Property 1313
Sec 420
Division should have taken additional evidence for ascertaining which of the alleged Execution
Registers was genuine by re-calling P. W. 7, who produced the Execution Register before the. trial
Court—The case was remanded to the trial Court for disposal according to law. The Stale Vs. Hantf
Sheikh and others 11 BLD (AD) 77.
(35) To sustain a charge of cheating, the prosecution must prove the initial intention of the
accused to deceive. A bdul Karim Vs, Shamsul A lam and another, 14 BLD (HCD) 167.
(36) Whenever a loan is taken by one from another on a representation to repay the same
dishonestly inducing the perosn to tend money having no intention to repay, whether it will be an
offence of cheating punishable under section 420, P.C. Intention of a person, whether can, only be
gathered from his conduct. Whenever a Idan is taken by one from another on a representation to repay
the same dishonestly inducing the perosn to lend the money, having no intention to repay the same, it
will be an offence of cheating as defined under section 415 and to be punished under section 420 of the
Penal Code. Intention of a person can only be gathered from his conduct at the time of the occurrence
and the surrounding circumstances. Md. Shafluddin Khan Vs. State & another, 13 BLD (HCD) 362.
(37) Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of
cheating unless there is evidence to show that after issuing it he has done something more to defraud
the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank
account at the moment it will not amount to cheating if he has intention to deposit the money before
the cheque is presented for encashment. Mere dishonouring of the cheques .itself is not an ingredient of.
cheating. Mohiuddin Md A bdul Kader Vs. the Stale, and another, 20 BLD (HCD) 499.
(38) An offence under section 138 of the Negotiable Instruments Act and section 429 of the Penal •
Code are two distinct offences, one independent of the other. The aggrieved, party has right to seek
remedy under either of the two penal provisions of law. Md. A minur Rahman V s. The State and
another, 23 BLD (HCD) 488. .
(3.9) Proof of false entry in Register—necessary, when forgery is alleged—When the charge relates -
to false entry in the Register and the genuineness of the signature is not proved during trial by
producing the Register in question, the accused cannot be convicted only on the basis of oral evidence.
Jamaluddin (Md) and others Vs. The State-2, MLR (1997) (HC) 366
(40) No re-appraisal of evidence, simply on the ground that High Court's Judpent of reversal,
i.e., two Courts having taken two different views of the evidence, special leav.1'o appeal should be
granted for examining the evidence afresh. The State Vs. Nezarnul J-Iuq Chowdhury & others, I BSCD
247.
(41) Plea not taken before the High Court Division cannot be allowed to be taken before the
Appellate Division. One stand taken by the prosecution before the High Court Division that the
declaration by the Co-accused who was not before the High Court and not also before the Appellate
Division might not be true. The declaration even if it was untrue and even it was a misrepresentation
amounting to a deception that would not furnish a ground fOr roping in the petitioners. Bangladesh
Vs. A . P. Pieries & others 1, BSD 248.
(42) To justify prosecution for cheating under this section there must be initial intention to
deceive, NasiruddinMahmud & others Vs. Momtazuddin A hmed & another, 4 BSCD 26.
(43) Money claimed not the outcome of a particular transaction but arose after year-end accounting
following regular business between the parties—If settlement of account at the end of a period some
1314 Penal Code sec.420
• money falls due to one party from the other party and the 'other party fails to pay the dues, such
• liability by no stretch of imagination can be termed a Criminal liability—No allegation that the
appellants fraudulently or dishonestly induced the complainant by practising deception on them to
deliver goods—Delivery made both on cash and credit—It is impossible to hold, even if some money,
remained due after accounting, that cheating was committed—Allegation that dues were allowed to
• accrue dishonestly neither attract an offence u/s. 420 not u/s. 406 or under any other section—The
whole allegation in complaint petition even if true cannot form the basis of any Criminal proceedings
much less for cheating— Proceeding quashed. Syed A ll Mir & anr. Vs. Syed Omar A li & ors. 10 BLD
(AD) 168=42 DLR (AD) 240.
(44) The alleged transaction between the complainant and the appellant is clearly and admittedly a
business transaction when the appellant had already paid a part of the money under the contract to the
complainant, then the failure on the part of the appellant to pay the complainant the balance amount
under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil
nature and, hence the complainant case is quashed. Dewan Obaidur Rahman V s. State and another
(Criminal), 4 BLC A D 167.
(45) . None of the witnesses has deposed that the appellant induced PW 2 to execute kabala or to
deliver the property to him. The prosecution has not le.d any evidence to prove the ingredient of the
offence punishable under section 420 of the Penal Code when the trial Court as well as the High Court
.
Division failed to appreciate this aspect of the matter and wrongly held that the appellant was guilty
of the offence under section 420 of the Penal Code. Mohasin A ll (MD) @ Mohsjn V s. State
(Criminal), 5 BLC (A D) 167.
(46) Nothing was stated in the FIR, the accused denied that he would not pay the balance
payment. No allegation of -initial deception has also been alleged. The High Court Division rightly
quashed the proceeding. 50 DLR (AD) 163.
(47) The question of balance of cheating does not arise (in the instant case) as there is nothing to
show that the accused has dishonestly induced the complainant ,to'sell the fish to him on credit There
is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit is
not "entrustment" of the fish which is to be disposed of according to the direction of the person
making the entrustment. 13 BLD (AD) 28.
(48) Petition of complaint induces an initial mention to deceive the complainant no right to
quash. 2BLC227. .
(49) Leave to appeal was granted to consider whether in view of Clause ten of the Agreement and
the correspondence between the District Controller of Food, Khulna and the firm there appears that
prosecutjoji has been instituted with a malafide intention to compel the finn to pay compensation for
the consignment in question and whether the appellant's case comes within the purview of either
sections 417 or 420 PC or Martial Law Regulation II of Martial Law Regulations N. I of 1975. The
transaction between the parties is of civil nature and the liability arising therefor is a civil liability
which can be discharged by accepting the payment bf the price of 2221 maunds ten seers of paddy sunk
in river—Appellant be allowed to deposit the amount—The price of the paddy sunk in river. 8 8CR
• 180 AD.
(50) Business transaction between the parties for long time—Money claimed has fallen due in
course of tong business transaction which cannot be the foundation of a proceeding for cheating and
breach of trust in Criminal Court. Lfability in course of business transaction is of civil nature. The
Sec. 420 Of Offences against Property 1315

impugned proceeding is misconceived. Criminal proceeding not maintainable as civil liability cannot
constitute any basis of any Criminal P roceedings—it is essentially civil nature—to hold otherwise
would be to ignore the realities of business transaction and to encourage civil claims to be brought into
criminal courts under some contrivance for the purpose of repaymentof alleged dues. , JOBCR287 A D.
(51) Allegation stated in the complaint petition that the appellants filed a civil suit being OS No.
112 of 1982 and obtained an exparte decree from the court of sub-judge, Rangpur to the effect that a
deed of gift executed on 21-6-1980 by the respondent's late husband was forged, collusive and void as
it was obtained by giving false evidence making false statement and false personation. The alleged
offences have been committed in relation to a proceeding in the Civil Court and no Court is competent
to take cognizance of an Offence mentioned in clause (b) of section 195 CrPC except on a written
complaint by the Court concerned. 7 BR 94.
(52) Where issuance of post-dated cheque constitutes an offeneeof cheating; The Issuance of post-
dated cheque means a promise for future payment and if future payment is defaulted on account of
subsequent dispute that does not constitute any offence of cheating while there is nothing to show that
the accused had any initial intention to cheat or deceive that other party. In order to constitute cheating
there must be fraudulent and dishonest inducement for delivery of property. The all important question
to be determined is whether the intention not to pay was there when promise was made., Subsequent
failure to keep the promise to pay does not constitute cheating. 7 BLD 23.
(5) Partnership—Breach of trust—A partner failing to account may not be accus&d for fraudulent
breach of trust unless there is a clear agreement whereby the accused is entrusted with the property for
specific purpose which the accused fails to carry out and misappropriated it. If a partner is to be charged
under section 406 of the Penal Code it must be held that the property belonging to somebody was
entrusted to him. It cannot be said that a partner who received partnership property is entrusted with
his co-partner's share of the property to bring the case within section 406, Penal Code. 39 DLR 24.
(54) On conviction under section 420 of the Penal Code the accused must be sentenced to
imprisonment this .being mandatory provision of law imposition of fine in addition to imprisonment
is discretionary with the Court. Mere imposition of fine alone on conviction under the section is
illegal 38 DLR 8.
(55) Rule was issued upon the respondent to show cause as to why the Kushtia Police Station
Case No. 19(6)84 GR No. 3.of 1984 pending in the Court of Upazilla Magistrate, should not be with
drawn and transferred the same to Drug Court at Dhaka for trial disposal and pass such other or further
order or orders as may seem fit and proper. Held: In "iew of the provisions of the Drug Ordinance read
with Drug Act there is no hesitation in saying that proceeding before the Upazilla Magistrate at
Khushtia was without jurisdiction inasmuch as special procedure has been provided for investigation of
the offence by the designated class of officer, namely, inspectors, and a special Court has been set up
for the purpose and the case can only be tried by a Drug Court situated at Dhaka (Ref 5 BCR I50). 5
BGR 251 AD.
(56) In case of partnership every partner has dominion over the partnership property by reason of
the fact that he is a partner. It is a kind of dominion which every owner of property has over his
property. But it is not dominion of the kind which satisfies the requirement of section 405 of.the
Penal Code (Ref 4 BLD 97, 4 BC'R301 AD). 36 DLR 14 SC.

• (7) When a person promises to pay price of goods and on his undertaking to pay, the goods were
delivered to him. Afterwards he fails to pay price thereof. No case of cheating will lie. The subsequent
1316 . Penal Code Sec. 420

denial of the transaction amounts to a mistaken attempt to save themselves from criminal prosecution.
30 DLR 327.
(58) ''he test to be applied in judging a person, an officer of the Government, is to see, whether he
is in the service and pay of the of the Government, and whether he is entrusted with the performance of
a public duty i.e., he has delegated to him the function to the Government, or in any event performing
duties immediately auxiliary to some one who is air officer of the Government and is therefore an
ofticr of the Government within the meaning of section 21(9) , of the Penal Code. 29 DLR 224 SC.
(59) By false representation the accused induced the revenue authority to have his name mutated in
respect of certain property whereas that property belong to somebody else. The offence being detected
the accused was tried for cheating under section 420 Penal Code and was convicted by the trial Court.
On appeal it was contended that the state being the complainant and as the state wa's not the person
who was cheated in this case, the charge under section 420 as against the accused did not lie. The
conviction is valid in law. The revenue authority was the agent of the Government which granted
protection to the right of the subjects. 18 DLR 151 W P.
(60) If a person undertakes to supply goods of a specific description on the condition that the
goods will be subjected to scrutiny before final acceptance, and will be liable to rejection, if they are
discovered to be of different quality and quantity, and supplies goods which are not of the specified
quality and takes the risk of loss arising from rejection, he does not commit the offence of cheating, as
defined in section 415 of the Penal Code. He commits no deception unless he so plays with the goods
to conceal its 'defects, and gives to them the colour to appear as goods of the specified 'quality. There
can be no cheating without deception, and there can be no deception without misrepresentation, takes
place only when a person by his conduct changes the face of the articles offered for acceptance. 11 DLR
90 W P.'
(61)In a charge under section 420 Penal Code, the manner of deception was not stated. Held:—
Plainly the charges are vague and defective inasmuch as they failed to' set out the modes, in which
deception was alleged to have been practised upon the alleged victims. 10 DLR 1 SC.
(62) Charge under section 218, exclusively triable by Sessions Court. Charge framed by
Magistrate under sections 218 and 420 Penal Code—held; trial was without jurisdiction. Failure to
raise the objection of jurisdiction or even consent of the accused, does not validate the proceedings. 5
DLR 101 FC.
2.' This section and Sections 415 and 417.—(4) This section deals with cases of cheating
whereby the deceived person is dishonestly induced:
(1) to deliver any property to any person; or
(ii) to make, alter or destroy:
(a) the whole or any part of a valuable security; or
(b) anything which is signed or sealed and which is capable of being converted into a valuable
security. 1978 W LN (UC) 430.
(2) For a person to be convicted under S. 420, it has to be established not only that he cheated
someone but also that by doing so he has dishonestly induced, the person who was cheated to deliver.
any property, or do any other act mentioned in the section. A IR 1963 sc 666
(3) After the offence of cheating is completed some further act of delivery is not necessary because
the said words are designed only to introduce a description of a particular sort of cheating (i.e., when
Sec. 420 Of Offences against Property 1317

the effect of cheating is to induce the delivery of the property or the making of alteration or destruction
of a valuable security. AIR 1917 Sind 89.
(4) Where any of the ingredients of the offence referred to above is absent, there can be no offence
under this section. AIR 1928 Mad 224.
3. There must be cheating.--(I) Cheating, and therefore deceit, which is a necessary ingredient
of cheating, is necessary' to be proved before this section can apply. Where there is no cheating as
defined in Section 415, there can possibly be no offence under this section. AIR. 1980 SC 366.
(2) The ingredient to deceit must exist at the time of inducement to deliver property etc. AIR 1974
SC 301,
(3) Where the accused' made a false representation to the Railway in a forwarding note and under
the Railway Rules the Railway incurred no liability of any kind in spite of the misrepresentation, the
Supreme Court held that the accused was not guilty of cheating. A IR 1970 SC 843.
(4) A s to the illustrative cases of cheating. AIR 1983 SC 1149.
4. "Whoever.—(1) As the offence under this section is one which "shall be punished with
imprisonment" a company cannot be prosecuted for an offence under this section. (1973) 75 Born
LR417.
5. Dishonest intention.—(l) A dishonest intention at the time the offence is said to have been
committed is an essential ingredient of the offence under this section. AIR 1979 SC 1342,
(2) Even though the person deceived may not have been put to any wrongful loss, the act may
amount to cheating falling under this section where the accused has thereby made a wrongful gain for
himself. 1977 CriLJ 2048 (Mad). . .
(3) Accused tampered with the R.R. and made the person cheated believe that large quantity was
under consignment and obtained credit on its basis. He is guilty under Sec. 420 AIR 1963 SC 666.
(4) As to other illustrative cases where the accused was held to.b.e guilty of cheating. 1979 A ll
CriR 486.
(5) As to, illustrative cases where accused was held not to be guilty of cheating. AIR .1980 SC 366
6. Promoting speculative schemes.—( 1) In the absence of misrepresentation or suppression of
material facts with a view to cheat or defraud the public the promoters of a financial snowball scheme
which could run only so long as there would be a continuous uninterrupted progressive increase in
subscribers but which could 'not go on indefinitely would not be guilty of cheating. A IR 1971 SC
1620.
7. Property and delivery of property.--(I) The word 'property', as used in the section, does not
necessarily mean a thing which has a money value. AIR 1969 SC 40.
(2) Even if a thing has no money value in the hands of the person cheated, if it becomes a thing of
value in the hands of the person who may get possession of it, as a result of the cheating practised by
him, it would fall within the connotation of the term 'property' used in this section. AIR 1969 SC 40.
(3) The word 'property' includes both movable and immovable property. AIR 1937 Sind 56.'
(4) The question to be considered is whether the property is of the kind that can be the subject-
matter of the acts covered by this section. AIR 1962 SC 1821. . ..
(5) The following have been held to be property within the meaning of this section:
(a) An import licence in the hands of the Licensing Authority. AIR 1955 Born 82,
(b) A passport; AIR 1977 SC 1174,
1318 Penal Code Sec. 420
(c) Money. A IR 1933 Lah 1009.
(d) Motor Driving Licence. A IR 1948 Mad 268,
(e) Quota Transfer Certificate. A IR 1940 Mad 155.
(t) Certificate that a person has passed an examination. A IR 1922 Nag 229.
(g) Duplicate motor driving licence. A IR 1966 Raj 182.
(h) An admission card to sit for an examination. A IR 1961 SC 1698.
(i) Payment order passed by a Treasury Officer. 1963 (1) Cr1LJ 716 (Tripura).
(j) An insurance policy. 1983 Jab LI 666,
8. Valuable security.--(I) The following have been held to be valuable seurities:-
(a) A deed of conveyance. (1953) 6 Sàu LR.466:
(b) An Income-tax Assessment Order. A ll 796SC 40.
(c) An import licence obtained from the office ofC)Iief Controller of Imports. 4/K 1955 Born 82.
(2) The following have been held to be not valuable securities:—
(a) A receipt for payment of money. A IR 1936 Cal 324.
(b) A postal acknowledgment receipt. A IR 1917 Pat 699.
(c) A copy of the decree of a Court. A IR 1924 Cal 502.
(d) Statement of a person before a Revenue Officer. A IR 1941 Lah 460.
9. Issuing cheques.-.---(l) If a person gives a cheque which is dishonoured and from the
circumstances it can be presumed that he must have been aware that the cheque would be dishonoured,
he would be guilty under this section. (1980) 82 Pun LR 116.
(2) When cheques issued by the accused towards balance of payment were dishonoured and he
failed to make any attempt to see that cheques were encashed it was held that accused should be
presumed to be guilty under S. 420. 1982 Cr1LJ 1482. .
(3) If aperson gives a .cheque which is dishonoured and if there is no evidence that he was aware
of the fact that he had no sufficient money in the bank and that it was with that knowledge that he
issued the.cheque, hecannot be convicted under this section. 1980 ChandLR (Cr1) 143 (Punj).
10.. Adulteration.—( 1) The adulteration of milk by mixing water and selling it may amount to an
offence under this section if the elements constituting the offence of cheating exist. 1888 Rat Un
CrC 367. .
11. Taking deposit of money ^ ( 1) When a person depbsits money with another to earn intere$
the relationship between the parties is one of debtor and creditor giving rise to a civil liability. When,
however, there is ab initio dishonest intention on the part of the deposited to knock out money from
the depositor, the taking of the deposit may amount to, cheating. (1969) 71 Pun LR (D) 247.
12. Attempt.---(I) An attempt to commit an offence under this section is committed where t.
accused attempts to cheat another and thereby attempts to induce him to do one or the other of the acts"
mentioned in this section. (1979) 2 Cal LJ213.
(2) The actual transaction must have begun and an act to bear upon the mind of the victim must
have been done before a preparation can be said to be an attempt. A IR .1927 Mad 77.
(3) It is immaterial for an act to amount to an attempt that the complainant was not deceived but
only feigned belief in the tl representation made by the accused. A IR 1960 SC 979.
(4) Attempting to obtain by false representations an admission card to sit for a University
Examination will amount to an offence under this section read with S. 511. A IR 1961 SC 1698.
Sec. 420 Of Offences against Property 1319
13. Abetment.—(1) There can be an abetment of an attempt to commit an offence under this
section. Where A let B use his mill for storing paddy and his covernotes on the mill and stated to
witnesses that 75,000 baskets of paddy were in the mill when it was burnt, knowing that the capacity
of his mill was only 15,000 baskets, and further having stocked paddy refuse in the godowns
pretended it was paddy, it was held that A had abetted the attempt of B to cheat. AIR 1924 Rang 241.
(2) A person is guilty of abetment, Who introduces the complainant to be cheated knowing full
well that the offence is going to be committed. AIR 1917 Lah 291.
14. Conspiracy to cheat.—(1) Where five accused are alleged to have combined to deceive
another and four of them are given the benefit of doubt, the position of the remaining accused who is
found guilty is not affected. His conviction is not vitiated by the fact that the other four are acquitted.
AIR 1936A11 357.
(2) If a specific instance of cheating is. proved against any of the accused it would be a
corroboration of the offence of conspiracy. AIR 1957 SC 340.
(3) Where a number of persons conspire generally to commit cheating in a particular way and in
pursuance of such conspiracy, cheat different persons at different times in that particular way, there is
only one offence of conspircy to cheat. AIR 1955 NUC 2944 (Cal) (DB).
15. Abuse of Railway pass.—Section 68, Railways Act and this section.— .—(l) Where a Railway
servant applied for and obtained a free pass for his wife and mother and handed over his pass to another
woman who was neither his wife nor his mother and she used it, it was held by the Chief Court that
the accused was guilty under this' section and not under Section 68 of the Railways Act. A IR 1925
Oudh 479.
16. Section 64, Post Offices Act and this section (Sending blank papers in insured cover).—
(I) Where the acts of the accused amount to an offence under this section read with Section 511 and
also under Section 64 of the Post Offices Act, it was held that it is not illegal to convict the accused
for the major offence under this section read with Section 511. A IR 1930 Pat 622.
17. This section and Section 215.—(l) The offence under this section is more serious in nature
than the one under Section 215; where therefore the act of the accused may amount to an offence under
this section, as well as under Section 215, it is desirable to convict and sentence the accused for the
more serious offence, viz., the offence punishable under this section. A IR 1923 Rang 37.
18. Charge and conviction.--(I) A charge under S. 420 can be framed against an accused person
only when the allegations made against him prima fade answer the necessary ingredients of the offence
of cheating as defined under S. 415. When any ingredient is short charge under •S 420 cannot be
framed. 1982 Sim LC 45.
(2) In framing a charge under this section, it is necessary to set out not merely the fact that the
accused had obtained goods by dishonest inducement, but also the deception which has been practised.
AIR 1953 SC 462.
(3) Where it was submitted that 6 items of alleged cheating were combined together in one charge
and the conviction of the accused was therefore bad it was held that lower Courts having found that all
the six items of cheating were part and parcel of the transaction, the trial of the accused on a single
charge was permissible under S. 239, Criminal P. C. AIR 1967 SC 986.
(4) Contract to supply wood to Government—Money obtained from Government on various bills
at different times in pursuance of conspiracy entered into between various accused—Held single charge
1320 Penal Code Sec. 420

under S. 420, Penal Code did not contravene S. 233, as object of conspiracy was not to obtain diverse
amounts but to obtain entire contract money from Government. AIR 1963 SC 1620.
(5) Where the charge as framed, discloses one single conspiracy, although spread over several years
there is only one object of the conspiracy, and that is to cheat members of public, the fact that in the
course of years others joined the conspiracy or that several incidents of cheating took place in
pursuance of the conspiracy does not change the conspiracy and does not split up a single conspiracy
into several conspiracies. AIR 1957 SC 340.
(6) A conviction of an accused under the section would be valid though the charge is under this
section read with S. 34, unless prejudice is shown to have occurred. AIR 1957 SC 857.
19. Evidence and proof.—(I) To justify a conviction under this section, deception must be
proved. 1976 Chand.LR (Cr,') 23(Him Pro).
(2) The false representation which constitutes deception need not always be express. It can be
inferred from the conduct of the parties. AIR 1967 Sc 986.
(3) The burden is on the prosecution to show that the representation was false to the knowledge of
the accused at the time he made it. AIR 1973 SC 326.
(4) The deception nust be proved to have been practised with a dishonest or fraudulent intention.
A IR 1969 Cal 481.
(5) Dishonest intention cannot be inferred from the mere fact that the accused could not
subsequently fulfil his promise or refused to fulfil it. A IR 1973 SC 326
(6) Error ofjudgment or breach of performance of duty cannot be equated with dishonest intention.
AIR 1974 SC 1560.
(7) The burden of proving the falsity of the representation is never shifted from the prosecution
and if a reasonable explanation is given by the accused, the Court will have to take that into'
consideration and if it considers that the explanation may reasonably be true though it is not convinced
about its truth, it should acquit the accused. A IR 1957 SC 466
(8) Where there is no evidence to show that the accused had authorised another to act on his
behalf, the latter's false representation cannot be made the basis for convicting the accused for an
offence under this section. AIR 1956 SC-544.
(9) One of the partners procuring goods by practising fraud on complainant—Absence of evidenäe
that another partner had any knowledge of this state of affairs—Goods stored in room hired by them—
Not by itself sufficient to convict another partner under S. 420 read with S. 34. AIR 1981 .SC 476.
(10) Mere moral conviction of the Court should not be allowed to fill in the gap in the evidence or
be substituted for legal proof. Mere suspicion or even reasonable doubt cannot take the place of proof.
41R 1980 SC 499.
(11) In a trial for an offence under this section, the acquittal of the accused for an offence under
Section 419 (cheating by personation) does not render the evidence as to impersonation inadmissible.
41R 1968 Orissa 79.
(12) Accused charged with getting Government work done departmentally but submitting bill and
getting payment as if the work was done by contract and contractor's labourers—Burden of proof is on
prosecution to bring home to accused all the essential ingredients of the offence—Proof of mere
irregularities and non-compliance with rules not enough. AIR 1980 SC 499.
Of Offences against Property 1321

(13) A lawyer's account should be clear and clean and above suspicion of manipulation, but that
there may arise some omissions and commissions in the account cannot give rise to a criminal charge
for which stro4 and unimpeachable proof will be necessary. A IR 1977 Sc 1760.
20. Existence of civil remedy.—(1) The existence of a civil remedy is no bar to a trial for an
offence under this section. 1978 CriLJ 1360.
(2) There can be a prosecution under this section even though the agreement on which the offence
is based is illegal or is opposed to public policy. 1976 CriLJ 1403.
(3) Accused was to close down the factory and return machines but did not do so and in violation
of his letter trying to dishonestly misappropriat and convert to his own use the machines—Accused
not admitting execution of letter—Under an agreement between complainant and accused if at any time
either during the continuance of the agreement or thereafter, a dispute arose it was to be referred to
arbitrator—Held, the dispute being purely of civil nature and it has to be determined by an arbitrator or
civil court no offence under S. 420 of Penal Code is made out. (1984) 25 DelHi LT 146 -
(4) Accused taking loan from complainant—Agreement that accused would not sell a truck until
loan is repaid—Sale of truck by accused before repayment of loan—Breach of agreement gives rise to a
civil and not a criminahliability. 1982 WLN (UC) 195.
(5) Accused a commission agent in grains, and complainant a merchant in grains having intimate
relations between them—Numerous past transactions between them—It would bt difficult to determine
the extent to which complainant was duped or persuaded by thisrepresentation or cheating by
applicants to part away with money or goods alleged to be subject matter of breach of trust and
cheating—It would be dispute essentially of a civil nature and not of criminal nature—Prosecution
held, amounted to abuse of the process of the court. (1983) 2 Crimes 109.
21.. Pleas which are not valid defences.—(1) A defence that the association of the .compliñant
with the accused has resulted in a profit to the complainant is not a valid defence to age under this
section. AIR 1943 Sind 51. . -
(3) A defence that a partnership existed between th& accused and the complainant is not a valid
defence to a charge under this section. AIR 1969 Cal 232. .
22. Denial of liability.—(l) A mere denial of liability does not amount to cheating. A IR 1925
Sind 231. . .
23. Sentence.—(I) The offender convicted under this section "shall be punished with
imprisonment and shall also be liable to fine". This means, that a term of imprisonment is compulsory
and the court has a discretion to add or refrain from adding a fine. 1946 AMLJ 8.
(2) Where there is a strong indication, on the evidence on record, that there were other and perhaps
bigger persons involved in the fraud for which the accused was tried and they were not brought to
book, the circumstance, though it does not excuse or exonerate the accused from his guilt which has
been established beyord reasonable doUbt, has, nevertheless, a bearing on question of sentence. 1968
SCD 210. . . . . .
(3) Loss of membership and reputation can be taken into consideration in awarding a linient
sentence. .IR 1953 A ll 381. . . ..
(4) Loss of service is a circumstance which can be taken into consideration in awarding a lenient
sentence. AIR 1950 All 639. .
1322 Penal Code
(5) Where the offence .under this section and the Prevention of Corruption Act was in respect of a
small sum- and committed 12 years back and the accused had served some rigorous imprisonment, the
Supreme Court reduced the sentence to the period a1redy undergone but maintained thefine. AIR 1974
SC 89&
(6) As to illustrations of lenient views on point of sentence. 1981 (Supp) 5CC- 82=AIR 1977 SC
1926, 1977 CriLJ2O4&
(7) As to illustrations öf.cases, where a deterrent sentence was called for. A IR 1934 Pat 114.
(8) Unless discretion is improperly exercised, Supreme Court would not interfere—Sentence of
rigorous imprisonment for six months held not severe in the circumstances. AIR 1960 SC 734.
24. Procedure.—(I) It is desirable that cases of cheating should be initiated by the person
cheated. AIR 1931 Cal 452.
(2) Where civil proceedings are started along with criminal proceedings for the offence of cheating,
criminal proceedings should be stayed till the civil cases are finally terminated. AIR 1969 Andh Pra 54.
(3)- Misrepresentation by the accused was at Simla and consequence was at Lahore as the
Government of Burma was induced by the misrepresentation to deliver property at Lahore—Held, that
the offence of cheating by the accused could have been tried either at Lahore or at Simla. AIR 1960 SC 266.
(4) Accused made representations from Karachi to the complainant at Bombay and induced him to
part with money at Bombay—Held that Bombay Court had jurisdiction. AIR 1957 SC 857.
(5) Where A executed a Kobala, presented it for registration but took it back from the sub-registrar
on a pretext, before registration, and tore it off, but the sub-registrar did not make any complaint and
the complainant filed a complaint for cheating and also filed a suit for specific performance it was held
that-in the absence , of any complaint by thesub-registrar who was the person cheated, prosecution
under Section 420 is not advisable, as a civil suit was pending. AIR 1920 Cal 47.
(6) An offence under this section is triable by a First Class Magistrate,- a Magistrate of the Second
Class is not competent to try an offence under this section, and if he does so, his proceedings ate void
under Section 461, Criminal P. C. AIR 1933 Lah 1009.
(7) Where the Regional Commissioner issues a warrant for extradition of an offender for enquiry
into offences under Ss. 383 and 420 of the Penal Code no sanction under S. 197, Criminal P. C., or
Art. 1-7 of the Covenant is necessary with respect to such -offences. AIR 1950 All 342.
- (8) Offence by public servants against Government under S. 420 or Section 12013 read with S.
420, Penal Code—Sanction held necessary. AIR 1,950 Raj 51.
(9) Where the object of the conspiraày is - to commit an offence under this section and in pursuance
of that conspiracy, offences under this section and Sections 427 and 467 of the Code are committed no
sanction is necessary for a prosecution for these offences. AIR 1955 NUC (Born) 5890. -
(10) A Special Judge appointed under, the Criminal Law Amendment Act will have that
jurisdiction which he is competent to exercise under the Prevention of Corruption Act or. the Criminal
Law Amendment Act. And in .view of Criminal Law Amendment Act, he can also try an accused
person for offences under S. 12013 read with Secs. 466, 467 and 420, P. C. AIR 1961 SC 1241..
(II) Accused extradited from a foreign territory and brought to India for -a different offence. A case
under Section 420 can be initiated against him. AIR 1957 SC 857.'
(12) Sanction for prosecution under Sec. 120 .B/420--Charge altered under Section 12013/161 on
same facts—Court held justified. AIR 1948 PC 128.
Sec. 421 Of Offences against Property 1323
(13) As to illustrations of cases on point of jurisdiction and other procedural points. 1984 CriLJ
593 (Orissa); 1983 CKLJ 1661; 1983 CrILJ 24; (1982)1 Born CR 756.
(14) Cognizable—Warrant __BaiIable__ompoundabJ by the person cheated the permission is
given by the Court before which the prosecution is pending—Triable by Metropolitan Magistrate Or
Magistrate of the first class, and by the Village Court if the amount does not exceed Taka 5600. If the
offence is committed by public servant, it becomes cognizable—Not bailable—Not compoundable—
Triable by, the Special Judge under At XL, of 1958 and Act II of 1947. •,
'25. !ratt1ce.-_Evidence_Prove: (1) That there was deception of any peron.
(2) Fraudulently or dishonestly inducing such person--fl to deliver any Property to any person;. or
(ii) to consent that any person shall retain any property; . .
(3) Intentionally inducing that person to do or omit to do anything which he would not do or
omit if he were not so deceived; and (ii) Such act or omission 'causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.
26. Charge.—The charge should run as follows:
I (name and office of Magistrate/Judge) hereby charge you (name of the accused) as follows:
That you, on or about the—day of— cheated X by dishonestly inducing him to deliver (specify
the property to you and which was the property of the said X (or to make, alter or destroy the whole or
any part of a valuable security), and that you thereby committed on offence punishable under section
420 of the Penal Code, and within my cognizance. . . .
And I hereby direct that you be tried by this Court on the said charge.

Of Fraudulent Deeds and Dispositions of Property

Section 421
421. Dishonest or, fraudulent removal or concealment of property to prevent
distribution among creditors.—Whoever dishonestly or fraudulently removes,,
conceals or delivers to any person, or transfers or causes to be transferred to any
person, without adequate consideration, any property, intending thereby to prevent,
or knowing it to be likely that he will thereby prevent, the distribution of that
property according to law among his creditors or the creditors of any other person,
shall be punished with imprisonment of either description for a 'term which may
extend to two years, or with fine, or with both.
Cases and Materials
1.Scope.—(1) Sections 42 ,1 to 424 Penal Code relate to frauds against creditors. This section is
intended to punish fraudulent debtors. It specially refers to fraud connected with' insolvency. This
section applies to property both movable and immovable; The gist of the offence is to take, the
property out of the reach .of the creditor by—(a) a dihonest and fraudulent transfer: (b) withoCt
adequate consideration; and'(c) with, intent to prevent the lawful distribution of property , among the
creditors. This section covers benami transactions in fraud of creditors. Section 103 of the Insolvency
Act, does not substantially interfere with section 421 of'the Penal Code and ordinary jurisdiction of
the criminalcoirts cannot be held to be excluded; Under the civil 'law, section 53 of the Transfer of
1324 Penal Code Sec. 421
o
Property Act, and section 54 f the Insolvency Act, the transaction is void if the transferee was privy
to the fraudulent transfer. . . .
(2) Where a special enactment such as the Insolvency Act, Section 69 deals with an offence similar
to the offence which is dealt with by a general enactment such as the Penal Code, Sections 421 and
424, it d6es not follow that the provisions of the Penal Code are repealed to that extent. The
prosecution in such a case may be under either of these enactments as provided by S. 26 of the General
Clauses A ct. 1971 Mad LW (Cri) 164 (Pr 7).
(3) The section applies to property both movable.and immovable. The word "property' in the
section is wide enough to include a chose in action. If all the ingredients of the section are present,
then the offence would be established even if that property is in a foreign State. AIR 1, 936 Born 167.
(4) A shop-keeper who has stocked his shop with goods obtained on credit and who sells those
goods without making any payment to his creditors, commits no offence under this section. In selling
those goods which are his own in spite of the fact that he has not yet paid for them, he is not causing
wrongful gain to himself; neither is he causing-wrongful loss to anybody, because unless the creditors
have obtained some legal right over the property, he is not, by his action, depriving them of any right
of theirs. A IR 1938 Rang 242.
(5) In order to sustain a conviction under this section the points requiring proof are as follows:
(i) That.the accused removed, concealed, delivered or transferred to any person any property or
caused it to be so transferred.
(ii) That he did so (a) dishonestly or fraudulently, (b) without adequate consideration and (c)
intending thereby to prevent, or knowing it to be likely that he will thereby prevent the
distribution of that property according to law among his creditors or the creditors of any
other person. (1893-1900) Low Bur Rul 593 (Guj).
(6) Where an offence falls under S. 206 and not under this section, it is not open to the
Magistrate to ignore the essential ingredients of the complaint and treat the offence as one under this
section. A IR 1942 Mad 675.
(7) The Insolvency Act does not take away a Magistrate's jurisdiction to try the insolvent under
this section and S. 424. AIR 1929 Rang 14.
(8) It is open to a District Court to grant permission to the Official Receiver to prosecute an
insolvent for an offence under this section and Section. 424, upon the strength of the Receiver's report,
which is sufficient material fpr that purpose. AIR 1918 Mad 460.
2. Practice.—Evjdence—Prove: (1) That the accused removed, concealed, or delivered the 'property
or that he transferred it or caused it to be transferred to someone.
(2) That such transfer was without adequate consideration.
(3) That the accused thereby intended to prevent, or knew that he was thereby likely to prevent,
the distribution of that property according to law among his creditors, or creditors of another person.
(4) That he acted as above dishonestly or fraudulently.
3. Procedure.—Not cognizable—Warrant—Bailable—Compoundable—Triable by any
Magistrate.
4. Charge.—The charge should run as follows:
I (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
Sec. 422 Of Offences against Property 1325
That you, on or about the—day of—, at—, dishonestly (or fraudulently) removed (br concealed, or
delivered to a certain person, to wit,—without adequate consideration) certain property, to wit,—
intending thereby to prevent or knowing it to be likely that you would thereby prevent the distribution
of the said property accprding to law among your creditors (or the creditors of—); and that you thereby
committed an offence punishable under section 41 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 422
422. Dishonestly or fraudulently preventing debt being available for
creditors.—Whoever dishonestly or fraudulently prevents any debt or demand due to
himself or to any other person from being made available according to law for
payment of his debts or the debts of such other person, shall be punished With
imprisonment of either description for a term which may extend to two years, or with
fine, or with both. .
Cases and Materials
1. Scope.—(l) This section is intended to prevent the defrauding of creditors by making property
available. Any proceeding to prevent the attachment and sale of debts due to the accused will fall under
it. The offence consists in the dishonest or fraudulent evasion of one's own liability. A . transfer of the
equity of redemption by the mortgagor to a third person does not constitute an offence under section.
422 of the Penal Code (14 CrL.J 141).
(2) This section cannot apply unless the prevention is accompanied by a dishonest or fraudulent
intention. It was not applied to a case where the accused mortgaged his house but a year afterwards
sold the house to another person. The mere transfer of his interest by a mortgagor cannot be said to be
fraudulent or dishonest merely because he has, as a matter of fact, previously mortgaged his property.
(1913) 14 GriLl 141 (All).
(3) A mortgaged -his property to B and agreed with him that C shall manage his property Sand pay
B from the realisations. C filed a suit in the name of A against D and got his property sold in
execution. D approached A and A agreed that if D deposited Rs. 1,000.00 into Court the sale can be
set aside. D deposited the amount and A, without reference to C and B applied for its payment to him
by the Court. C then instituted the prosecution against A under this section. It was held that on the
facts A was not actuated by any dishonest or fraudulent intent, of defeating the mortgagee B, in
applying for the payment and was not liable under this section. (1900) 5 Cal W N 174.
(4) Where A entered into an agreement with B not to compromise a case with C because he had
assigned the benefit of the suit to B as a security for the due. payment of some monthly instalments of
money, but notwithstanding this A did afterwards compromise the suit with C, it was held that A
could not be convicted under this section unless the compromise with C was made to defraud B or
cause wrongful loss to him. (1874) 22 Suth W R (CH) 46
2. Practice.—Evidence:—Prove: (1) That the debt or demand was due to the accused, or some
other person. . .
(2) That the accused prevented such debts or demand from being made legally available for his
debts, or for the debts of another person.
1326 Penal Code Sec. 423

(3) That he did as above dishonestly or fraudulently.

3. Procedure.—Not cognizable—WalTant—.Bailable--Compoundable—Triable by any Magistrate.
4. Charge—The charge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, prevented a debt (specify) or demand due to you or to
X, from being made available, according to law for payment of your debt or the debt of X and thereby
you have committed an offence punishable under section 422 of the renal Code and within my
cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 423
423. Dishonest or fraudulent execution of deed of transfer containing false
statement of consideration.—Whoever dishonestly or fraudulently signs, executes
or becomes a party to any deed or instrument which purports to transfer or subject to
any charge any property, or any interest therein, and which contains any false
statement relating t6the consideration for such transfer or charge, or relating to the
person or persons for whose use or benefit it is really intended to operate, shall be
punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Cases and Materials
1 Scope.—(l) This . section deals with fraudulent and fictitious conveyances and trusts. The false
recital of consideration or a false statement of the beneficiary in a deed is made an offence by this
section, if the false recital or statement is made fraudulently or dishonestly. The object is to punish
fraud, when it is perpetrated to the immediate prejudice of their party. If the consideration for sale of
immovable property is, with the consent of the purchaser, exaggerated in a deed of sale in order to
defeat the claim of the preemptor the purchaser will be guilty of this offence.' In such cases it is
necessary to prove the existence of a.right of pre-emption in respect of the subject matter of such sale,
as it is not an offence if the property sold is not subject to such a right. Under this section the.
dishonest execution of benami deed will be punishable: The institutIo n of a civil suit is not a
condition precedent to the maintenance of a charge in a criminal court for this offence. A kabuliyat is
not a document contemplated under section 423 Penal Code (20 CrLf 574). The accused obtained a.
loan fr,,m the Government by making a false statement as to the area of land in their possession .. A
"charge for the consideration was created on the land. It was held that the false statement made did not
relate to the consideration for the charge which was created on the land and hence the accused were not
punishable under section 423 (A IR 1952 Pat. 285).
(2) Appellate Court can make any amendment or any consequential -or incidental order that may be
just & proper. Jahangir Hossain Vs. The State (1988) 40 DLR 545. .
(3) One of the necessary elements of the offence under this section is dishonesty or fraud on the
part of the accused A fictitious sale deed executed for defeating a claim made in a suit is clearly
fraudulent and dishonest. a907) 6CriLf 111. . . .. .
(4) Where certain judgment debtors executed a document with a false recital as to the consent of
the decree-holder to take their land and this was found to havó been done fraudulently with the
Sec. 423 .Of Offences against Property . . 1327

intention of suppoñing at a later stage a case of satisfaction of the money decree which the decree-
holder had obtained against them, it was held that this was enough to bring the act of the judgthent
debtors within mischief of this section. A IR 1933 Pat 495. .
(5) A Kabuliyat is not an instrument contemplated under this section. Although a Kabuliyat when
accepted, operates as a lease for some purposes it is not a document which purports to transfer or
subjects, to any charge, any property or interest therein. A IR 1919 Cal 430.
(6) The law does not make punishable every false statement in an instrument of transfer. The false
statement must relate to the consideratiOn or to the person to be benefited by it in order to become
criminal. (1911) 12 CriLJ 547 (Mad). .
(7) The word "consideration" in this section does not mean the property transferred. Therefore an
assertionthat the whole land beloäged to the transferor is not a statement relating to the consideration
for the transfer and is not an offence even though such statement is untrue; consideration should not be
confused with value or with the property. 1976 HBCJ 407.
(8) When an accused person had unsuccessfully sought to obtain a woman in marriage and
thereafter got registered a document containing a false recital that he had married her and purported to
transfer certain land to her in lieu of her dower, it was held that in addition to an intention to deceive
and mislead, the accused had the further intention to cause injury to the woman and her true husband,
in order to support his own false claim to that status, .andwas guilty u . nder this section. A IR 1921
Cal 226. . . .
(9) In a transaction of sale, the person for whose benefit the sale is intended to operate is the
purchaser and not the vendor who receives the consideration. Where a woman alleging herself to be the
widow of X transferred property by sale to Y and the allegation that she was the wife of X was not true
inasmuch as she had remarried another person, it was held that the case did not fall under this section.
A IR 1958 Cal 130. . . .
2. Practice._EvidenCe—ProVe (1) That the aécused signed, executed, or became a party to the
deed, or instrument in question.
(2) That the purport of such document was a transfer, or to subject to a charge, the property or any
interest in question. .
(3) That such document contained a false statement relating to the consideration, or relating to the
person for whose use or benefit it was really intended to operate.
(4) That the accused did as above dishonestly or fraudulently.
by any Magistrate.
3. Procedure.—Not cognizable_Warrarit_BaiIableC0mP0d abl_T
4. Charge._Thecharge should run as follows:
I (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, dishonestly or fraudulently signed (executed or became
a party to) a deed or instrument which purported to transfer or subject to any charge a property namely
(specify the property) or any interest therein and which contained a false statement relating . to
consideration for the transfer or relating to the, person or persons for whose use or benefit it is really
intended to operate and that you have thereby committed an offence punishable under . section 423 of
the Penal Code and within my cognizance
And I hereby direct that you be tried by this Court on the said charge.:
1328 Penal Code See. 424

Section 424
424. Dishonest or fraudulent removal or concealment of property.—Whoever
dishonestly or fraudulently conceals or removes any property of himself or any other
person, or dishonestly or fraudulently assists in the concealment or removal thereof,
or dishonestly releases any demand or claim to which he is entitled, shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
Cases and Materials : Synopsis
1. Scope. 5. Procedure.
2. Removal—Meaning. 6. Complaint by Court for offence under S. 206.
3. 'Dishonestly or fraudulently conceals or • Charge.
removes any property.
o. rraciIce.
4. Proof
• 1. Scope..—( 1) This section provides for cases not coming within the purview of sections 421 and
422. This section is designed to meet a special class, and has no application to the case where property
is openly seized by a person in the exercise of an alleged right (41 CrLf 111). Taking away property
by others with a view that it might not be attached, if done with a dishonest intention, would amount
to an offence under this section (A IR 1930 Mad. 276). A removal of crops in violation of an order
which the person making it has no authority to make, does not constitute this offence. A partner being
ajoint owner with other partners cannot be prosecuted under section 424 for dishonestly and
fraudulently removing books belonging to a partnership (A IR 1,948 Cal. 292). Unless dishonesty is
proved, conviction under section 424 cannot be sustained (22 CrL..J 142). Therefore when a .bonafide
claim of title is raised, the accused is entitled to acquittal. whether the claim, is raised bonafide or not is
a question of fact, and has to be determined in the circumstances of each case (21 CrLf 609).
(2) This section deals with dishonest or fraudulent removal or concealment of property and is
aimed against such persons as debtors who tryto defraud creditors. It is designed to meet a special
class of cases and has no application to a case where property is openly seized by a person in the
exercise of an alleged right. AIR 1939 All710.
(3) Where property is attached by an officer of the Court, after the date fixed for the return of the
warrant of attachment, the attachment is illegal and if the person whose property is attached, takes the
property for his own use he cannot be held guilty under this section for the accused's , act cannot be said
to be "dishonest". AIR 1933 All 46.
• (4) A case under this section has no connection with any of the proceedings mentioned in
BargadarsAct. AIR 1952 Cal 559.
(5) The penal provisions of the Estates Land Act leave the provisions of the Penal '.Code intact.
AIR 1914 Mad 398.
2. Removal—Meaning.--(1) This section is meant not only to punish . those who conceal but
also those who remove property with or without concealment if the act is done dishonestly or
fraud%ilently. 1956 Pat LR 104.
• 3. "Dishonestly or fraudulently conceals or removes any property".—( 1) The essence of the
offence under this section is that the removal of property is dishonest or fraudulent. The finding as to
dishonesty must be clear and definite. AIR 1961 SC 803.
Sec. 424 Of Offences against Property 1329

(2) A dishonest intention may be presumed only if an unlawful act is done or if a lawful act is
done by unlawful means. A person cannot be said to do anything dishonestly if he has merely an
intention to cause wrongful loss to someone, when he cannot or does not, in fact, cause any such
wrongful loss. AIR 1936 Sind 20.
(3) Concealment of property by debtors or taking away of property by others to avoid its
attachment, if done with a dishonest intention is an offence under this. section. A IR 1930 Mad 670.
(4) Where an accused was prosecuted under this section for having dishonestly removed branches
of trees, a share of which belonged to the landlord, and he admitted having cut and removed the trees
but pleaded a custom to the effect that the landlord was not entitled , to any share in trees cut by tenants
for.domestic use but only to those which were cut and sold. It was held that as the accused faild to
prove the custom alleged by him the plea of bonafide claim of-title was not available to him. AIR 1920
Pat 663.
(5) Where the judgment debtors !.inlawfully took away the cattle seized in attachment in execution
of a decree against them, it was held that they were guilty of an offence under this section. AIR 1961
SC 803.
(6) An attachment without complying with the provisions of law, would be illegal arid the
property would not pass from the judgment debtor to the court; the removal of crops under suchillegal
attachment by the judgment debtor would not constitute an offence under this section. The mere fact
that he has removed the crops does not prove that he has 'done so dishonestly. -AIR 1942 Pat 480.
(7) Reaping of crop and removal thereof by the tenant without the knowledge of the, landlord and
without delivering his share was held to be removal of the crops with intent to defeat the landlord's
claim and hence an offence under this section. But tIe--accused may prove some other reason for the
removal, as for instance, that damage to the crops would otherwise result due to the landlord's default.
AIR 1951 Ajmer 33.
(8) Section 71(4) of the Bengal Tenancy Act provides the Courts with a definite rule as to the
value of crops which have en wrongly removed by the tenant. If the tenant acts dishonestly he is also
liable under this section. AIR 1916 Pat 232. -
4. Proof.—( 1) Unless dishonesty is proved, the conviction under this section cannot be sustained.
AIR 1921 Lah 185.
5. PrOcedure.--(1) The Insolvency Act does not take away a Magistrate's jurisdiction to , try the
insolvent under this section. AIR 1929 Rang 14.
(2) Where the : necessary ingredients for an offence under this section have not been considered in a
trial under Section 379 it is prejudicial to the accused to.convert his conviction under Section 379 to
one under Section 403 or this section. AIR 1914 Mad 61.
(3) Where the complainant and the accused under this section are joint proprietors of the same
property and a partition suit is pending in the civil Court, with regard to their joint property including
the property in respect of which the complaint is made, if the decision 317 the Magistrate entail
prejudging the order of the civil Court, the Magistrate can discharge the accused and 'order custody of
the property to either party on deposit of the value of the other party's share. AIR 1929 Pat 513.
(4) Not cognizable—Warrant—Bailable--Compoundable—Triable by any Magistrate. .
6. Complaint by Court for offence under S. 206.----(1) After attachment has been ; effected by a
civil Court, dishonest removal of movable property would constitute an offence under Section 379 or
1330 Penal Code, Sec. 425
under this section, or under Section 206 for which a complaint by the civil Court is necessary. 1933
Mad 0W 722.
7. Charge.--(I) If the prosecution establishes certain acts constituting an offence under this
section and the Court misapplies the law by charging and convicting an accused person for an offence
under Section 409, and if notwithstanding such error the accused has, by his defence endeavoured to
meet the accusation or the commission of those acts,. then the appellate Court may alter the charge and
finding and convict him under this section, provided the accused is not prejudiced in the finding.
(1904) 1 GriLl 385.

(2) The charge shotild run as follows:

I (name and office of the Magistrate), hereby charge you (name of the accused) as follows:
That you, on or about the—day of, —at—,dishonestly (or fraudulently) concealed (or removed a
certain property, to wit—, belonging to yourself (or to—) (or dishonestly or fraudulently assisted in
the concealment or removal thereof: or dishonestly released certain demand, to wit—) and that you
thereby committed an offence punishable under section 424 Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
8. Practjce.—Evjdnce_prove: (1) That the accused concealed or removed the property, or that
assisted in doing so. .
(2) That he did as above dishonestly 'or fraudulently.
Or Prove: (I). That the accused was entitled to the demand or claim in question.
(2) That he released the same.
(3) That he did so dishonestly, or with intent to defraud.

Of Mischief
Section 425
425. Mischief.—Whoever, with intent to cause, or knowing that he is likely to
cause, wrongful loss or damage to the public or to any person, causes the destruction
of any property, or any such change in any property or in the situation thereof as
destroys or diminishes its value or utility, or affects it injuriously, commits
"mischief". .
Explanation 1.— It is not essential to the offence of mischief that the offender
should intend to cause loss Or damage to the owner of the property injuredor
destroyed. It is sufficient if he intends to cause; or knows that he is likely to cause,
wrongful loss or damage to any person by injuring any property, whether it belongs
to that person or not. . . .. .
Explanation . — Mischief may be committed by an act affecting property
belonging to the person who commits the act, or to that person and others jointly
Illustrations ... .
-(a) A voluntarily burns, a valuable security belonging' to Z intending to cause
wrongful loss to Z A has committed mischief
Sec. 425 Of Offences against Property 1331

(bj A introduces water into an ice-house belonging to Z and thus causes the ice to
melt, intending wrongful loss to Z, A has committed mischief
(c) A voluntarily ,throws into a river a ring belonging, to 2, with the intention of
thereby causing wrongful loss to Z A has committed mischief.
(d) A , knowing that his effects are alout to be tqken in execution in order to satisfy a
debt due from him to Z destroys those effects, with the intention of thereby preventing Z
from obtaining satisfaction of the debt, and of thus causing damage to Z, A has
committed mischief
(e) A having insured a ship voluntarily causes the same to .be cast away, with the
intention of causing damage to the underwriters. A has committed mischief
A causes .a ship to be cast away, intending thereby to cause damage to Z'who has
lent money on bottomry,on the ship. A has committed mischief.
(g) A , having joint property with Z in a horse, shoots the horse, intending thereby to
cause wrongful loss to Z, 4 has committed mischief
(h) 4 causes ccittle to enter upon a field belonging to Z, intending to cause
and knowing that he is likely to cause damage to Z's crop. A has committed mischief.
Cases
1. Scope-41) Sections 425 to 440 relate to offence of mischief in all its varying degree. The
offence of mischief is defined in section 425. There are three essential ingredients to constitute the;
offence of mischief—(a) intention or knowledge or likelihood to cause wrongful loss or damage to. any
person or the public; (b) causing destruction . of some property, of some charge in such property; or in
the situation thereof; and (c) such change must destroy or diminish its value or utility. No mischief'
can, therefore, be committed where the acts complained of amount to an invasion of a civil right (AIR,
1958 Cal 668). The intention, to cause wrongful loss is the main ingredient of an offence under this
section. Without mens rea there can be no offence under this section (A IR 1949 Mad. 400). The section
• contemplates a direct ' act leading to the wrongful loss or damage. Intention is not necessary but guilty
knowledge is essential for an offence of mischief (20 CrLf 612). Taking earth from someone's land
deprives him of or destroys some property which has some value and such an act will amount to
mischief (AIR. 1955 Cal. 558). The expression "wrongful loss or damage" in sections 425, Penal Code
must mean loss or damage by unlawful means. Where the accused, has a bonafide claim of right, he
cannot do more harm than it is necessary for him to .do in exercise of his right. The element of
dishonesty, that is to say, causing of wrongful loss or wrongful gain .to some person is a common
element in both offences under section .378 and 425. Wrongful loss to a person can be caused in .a
variety of ways. The nature of the loss in both cases is different. and falls under the definition of
distinct offences. If a person set fire to his own house in order to eject a trespasser he cannot be said to
cause wrongful loss to any person or the public and .cannot be convicted of mischief (23 CrLf 321).
(2) Section 425 PC which defines niiscbief does not contemplate that a plea of civil right will
exonerate the wrongdoer from.the operation of the law, if all other elements of the section are fulfilled.
W azir Hassan Ansari Vs. The State (1969) 21 DLR 231.
2. For more cases relevant to this section, see under section 426. '
1332 Penal Code. Sec. 426

Section 426
426. Punishment for jnischief.-Whoever commits mischief shall be punished
with imprisonment of either description for a term which may extend to three months,
or with fine, or with both.
Cases and Materials Synopsis
1. Scope. . 16. Employer's liability for employee's
2. Mischief- Elements of offence. . negligence.
3. Intention or knowledge. .. 17. A ct causing slight harm.
4. Mischief and theft-Distinction. 18. Destruction of property of trespasser.
5. Mere . negligence or carelessness not 19. Evidence and onus.
sufficient. 20. Procedure.
6. Wrongful loss. 21. Summary trial.
7. Cutting off overhanging branches of tree. 22. Conviction for theft and mischief.
8. Damage. . 23. Jurisdiction and powers.
9. 'Property'. . 24. Charge, conviction and sentence.
10. Damage to Public Property. 25. Joint trial.
11. Causing destruction of or change in any 26. A batement
property or in the situation thereof. 27. Complaint by aggrieved person.
12. Cutting off electric or water supply. 28. Sections 279, 379 and this section (Section
13. A S destroys or diminishes its value or utility 425).
or affects It Injuriously. 29. Practice.
14. Bona fide claim of right or bona fide dispute.. 30. Charge.
15. A ct affecting one's own property-
Explanation 2.
1. Scope.--41) This section provides the punishment for mischief. Any value; however trifling it
maybe quite sufficient for an offence under section 426 Penal Code. The complaint of a person
aggrieved is not essential in respect of an offence under section 426 Penal Code, since that offence is
not covered by section 198 or by section 199 of the CrPC. It is for the prosecution 'to prove that the
accused caused -damage with a wrongful intent-with a knowledge that he was not justified in doing it,
andthat the party under whose orders he was acting had no real title.
(2) Mischief in respect of one's own property may amount to an offence. It is not necessary that
the act by which the mischief results must also be done on the property of the complainant; one may
well commit an act on one's own property which may result in mischief, namely, wrongful loss to the
property of the complainant or any other person. In this sense the criminal law does not require that
both title and possession in the property on which an act itself is committed has to . be found to have
been with the complainant before a conviction in respect of such an offence can be made. Mamtazuddin
Vs. Crown (1956) 8 DLR 95.
(3) Separate sentences under section 147 as well as under section 426 not legal-Conviction under
both the sections is valid. Mamtazuddin Vs. Crown (1956) 8 DLR 95.
• (4) When common object alleged is causing mischief, conviction under section 147, P.C.,
automatically goes, if conviction under section 426 is set aside. Mamfazuddin Vs. Crown (1956) 8
DLR 95.
Of Offencés against Property 1333
Sec 426
(5) Evidence (including document) on accused's behalf must be considered by the, trial Court to
find out if there are ingredients of intent or knowledge. Sakir Mullah V s. Didar Mulla (1963) 15
DLR 287.
2. Mischief—Elements of offence.-( 1) In order that 9.425 may apply: .
(i) The accused must have caused the destruction of some property or some change in it or in its
situation; .
(ii) Such change must have destroyed or diminished the, value or utility of the property or
affected the property injuriosuly; . .. ..
(iii) The causing of destruction or change in the property or in its situation must have been' With.
I.
the intention to cause, or with the knowledge of the likelihoOd of thereby causing, wrongful
loss or damage to the public or to any person. AIR 1972 SC' 665.
(2) A person cannot be prosecuted for the offence of mischief where the dispute between the parties
is purely of a civil nature. AIR 1958 Cal 668.
() Mischi6f, , U6 most crimes, comprises two elements:—Mental and physical. The mental
element consists of intention, express or implied, to cause wrongful loss or damage and the physical
elements is in the act of &estruction or causing injurious change to the property. The mental element is
the same in all kinds of mischief but the physical element is found aggravated in the offences defined
in Ss. 427 to 440 of the Code. A IR 1960 Mad 240. " .....' "
3. Intention or knowledge^ (]) The mre causing of loss is not enough for a conviction under
this section. Criminal intention to cause or the knowledge of the likelihood of causing such wrongful
loss should also be established. AIR 1969 Born 20.
(2) Intention to cause wrongful loss or damage or knowledge of the likelihood of causing such
wrongful loss or damage is thus an essential element of the offence. AIR 1931) Rang 158. .
(3) Municipal employee removing plants of he complainant's stall and not returning till the
municipal rent is paid. The Municipal employeeeld not guilty of theft or mischief for want of
necessary intention to cause wrongful gain or loss. A\"R 1960 Mad 186'
(4) Where it was only accidentally that the truclk of the accused struck against the buffalo, of the
complainant whih as a result fell down from a bidge and died of the injury later on held the
conviction of the accused for an offence under S. 429 could not be sustained. AIR 1958 Raj 347.
(5) Accused digging earth from his own land—Fact that change in land diminished its value or
utility not proved—Intention to cause wrongful loss of damage to complainant doubtful—Mens rea
which is one of essential ingredients of offence of mischief held was not proved—Conviction set aside.
A IR 1955 NUC (Tripura) 5114.
(6) Accused instructing her material uncle to raise the roof which necessitated cutting of
complainant's eaves—He must be deemed to have intended to cause annoyance and wrongful loss to
complainant and hence is liable not as a principal offender but as an abettor under Ss. 447 and 426
read with S. 109, Penal Code. AIR 1953 Sau 158.
4. Mischief and theft—Distinction.--(I) The essential difference between theft, and mischief is
that when a person commits mischief he only causes loss to another but does not gain anything
himself, while in theft, the wrongdoer makes dishonest gain at the, expense of the victim. 1971 CriLJ
1361 (All).
1334 Pejl Code s. 436

L Mere n egl igence or carelessness not sufficient.-Q) Met negline or carelessness is not
mischief, (11)•13 61U 536
6, Wrongful Jps,—( I) To constitute an offence p f,mischicf, it is neQs5gy that wrongful loss or
damage should be caused. 1975 Mad LW (ri) 10.
(2) Wrongful toss is the loss by unlawful means of property to which the person suffering loss In
legally entitled. A IR 1968 Orissa 18.
(.) Over the chabulTa of mosque the was p p Image of a Hindu Qod which wa swrounded by a
wall the wall being the property of Muhammaans. The accused whq was a Hindu widened the
doorway in the south wall of the compound round the image of the idol b y deniollshing a part of the
wall on both side of the doorway. It was held that by breaking the wall and taking out the bricks, the
accused caused wrongful loss to the Muhammadan public and therefore gri offence under this section
was committed. AIR 1926 All 704.
(4) Where the right of the accused is not in any way impaired h ca nnot take law into his own
hands and employ unlawful means for the purpose of causing loss to the complainant which in law the
complainant Is not bound to suffer. In such a case the accused cannot escape conviction under this
section. A IR 1938 Gal 669.
(5) A dominant owner cannot himself abate a wrongful obstruction of an easement His remedy is
to Qbtaip an order. of Injunction from a Court of law. If he himself removes the gbstrq tln he will be
guilty of mischief. A IR 1958 Mad/i Pra 341.
(6) There is nothing unlawful in the accused installing qn oil engipQ in his awn propertyand
working it in any way he. chooses, althou gh if his working caises darn ge to a neighhour!s property
the accused would be liable for damages enforceable by a civil suit. The damage cannot be said to b
caused by unlawful means, the working of the engine on the accused's own property being a lawful. act
AIR 1935 Born 164.
7. Cutting off overhanging branches of tree.—(1) A person has a legal right to cut off the
branches of a tree growing on his neighbour's lands which overhangs his laud, The exercise of such
right does not by virtue of S. 79 ante amount to the offence of mischief. 1957 cr11,..! 166 (Kr).
8. Damage.—.( I) To sustain a conviction for mischief accused's intention to cause loss or damage
to the public or to any person or knowledge that such loss or damage is likely to be caused must be.
proved. (1916) 22 Mys CCR (81) P. 1084.
(2) Where the accused caused damage to the standing crops grown by the complainant on
Government land in his cultivating possession, the damage caused to the complainant constitutes
mischief. 'Even if the accused had any senblance of right on the land, they are not entitled to take the
law into their hands and cause damage by unlawful means. AIR 1969 Orissa 200,
(3) Where A was directed by authorities to remove fish fingerlings from river by a certain date and
on expiry of such date B cut the embankment and allowed the fish being washed away. it was held that
B had caused wrongful damage to A. AIR 1971 Manipur 13.
9. "Property."—(l) Property means tangible property capable of being physically destroyed and
does not include an easement. If the owner of land over which other people have a right of passage
throws earth upon that land so that the use of the land by the others becomes disadvantageous or
impossible, that does not amount to mischief for the reason that what is affected is not any property or
its value but only a right of easement. 1967 CriL.J 1227.
Sec. 426 Cifetices aalfist Property 1335
(2) Taking earth from another perso&s land deprives him of some property Which was sonie value.
A IR 1955 Cal 338,
(3) R.es nuillus ferac naturae are not property. AIR 1961 Assam 18.
(4) A bull the ownership of which Is not established is not "property" and is not capable of being
the subject of an offence of mIschief tinder this section. A IR 1966 Pal 141.
(5) The legal conception of an animal branded and let loose on the occasion of the funeral of
obsequies of a Hindu differs widely from that of a dedication to a particular deity. In the case of one it
is renunciation of all proprietary tight, In thp ease of the other it Is a transfer of the proprietary right
from the individual to the deity, In the latter Case, the animal is* not res'ullius. Consequently, being
to death a buffalo dedicated to a deity Is an offence under S. 429 of the Penal Code, AIR 1945 All 430.
(6) The killing of a young calf branded at the Shradh of the complainant's deceased father, and fed
and kept at the complainant's house thereafter, amounts to mischief as the calf does not cease to be the
complainant's property. AIR 1937 Pat 406,
10. Damage to public property.—(l) Causing damage to public property will amount to
mischief under this section. 1979 Crlf 187(Ke),
ii Causing destruction of or change In any property or In the situation thereof.—( I) The
èipression "destruction of any property, or any such change in any property or in the situation thereof
as destroyes or diminishes its value or utility or affects It iijuriouslt" in this 'sectioii carries the
implication that something should be done to the property contrary to its natural use and
serviceableness. Where some graziers by allowing their goats to graze did no more than put the grass to
its normal use, their act would not amount to mischief. A IR, 1929 Mad J.
(2) The section provides for cases in which property is either destroyed or altered or otherwise
• damaged with a particular intention. AIR 1944 All 60.
(3) In the absence of a clear finding to the effect, that the fact of the accused has caused extraction
or change in property the accused cannot be convicted: AIR 1954 Pat 309.
(4) A, mortgage cutting a few trees on the mortgaged property to repair another portion thereof is
not guilty of mischief. AIR 1914 Mad 379.
12. Cutting off electric or water supply.—(I) The word 'change" in the section means a physical
change and a landlord cutting off the electric supply to the tenants premIses in not guilty of mischief
within the meaning of this section. AIR. 1928 Sind 49. .
(2). The cutting off of water supply of the, premises in not an offence undór this: section. A IR 1948
Cal 197. . . . . . .
12. As destroys or diminishes its value or utility or affects it injuriously.-- a-(I) It is necessary
to constitute "mischief' that the property should either be destroyed or such a change caused therein or
in its situation as destroys or diminishes its value or utility or affects it (the property) injuriously.
1969 CrILJ 242 (Cal). . . .
(2) When one of several co-sharers in constructive possession of joint land, dug part of it and
appropriated it for his exclusively use, it was held, that the digging amounted to mischief as the,
retuoval of earth would diminish the value of utility of the land and affect it injuriously. AIR 1934,
All 829.
(3) If, in order to 'diminish the utility of the property rubbish etc. are dumped such' prevention
from using the 1roperty will amount to mischief. A IR 1954 Cal 192. .
1336 Penal Code Sec. 42t)

14. Bona fide claim of right or bona fide dispute.—(1) A mistake as to criminal law only will
not give rise to a claim of riht; an error as to civil law may do so. So far as the offence of mischief is
concerned, a claim of right believed to exist, even though unreasonably, is a valid defence. (1975) 2,
CriLT 385 (Him Pra).
• (2) If the accused honestly believed in good faith that he had the right to do what he did even if he
did not in law have that right, he. cannot'be said to have had the necessary intention or knowledge that
he was likely to cause wrongful loss or damage. He cannot, therefore, be guilty of an offence of
• mischief. 1978 CriLl 715 (Born)..
• (3) A mere assertion of a claim of right is in itself not a bona fide claim of right. (1975) .41
CutLT'228. .
(4)The onus of proving that the accused acted under a bona fide belief of his having a right to do
the act is on him. (1973) 39 Cut LT200.
15. Act affecting one's own property—Explanation '2.—( 1) Ordinarily no offence of mischief
can be said to be committed by the accused causing damage to his own property, but if the act causes
damage to or injuriously affects another person's prqperty it would amount to the offence of mischief.
(1972) 38 CutLT 496 . . . . .. .
(2) A dispute between the, accused and the complainant about the ownership of the Pardhawall
would not entitle that the accused to demolish the wall, when it is found that the wall was the
common property of both. AIR 1953 All 409. .
(3) The Explanation to the section makes it clear that the utility affected need not be to the owner
of the property. Hence, where a right of way allowed to the complainant over the accused's plots is
interfered with by the later digging a ditch, which makes the passage of carts impossible, the accused
is guilty. A IR I94BQudh97........
(4) Where the complainant had dug a well in the land which belonged to him and the accused
along with others, thinking,, without proper enquiry and informhtion, that the land belonged to him,
went recklessly upon the land and damage the well, it was held that even if the accused believed in
good faith that the well was in his land and that the complainant wasa trespasser, he had no right
whatever to damage the complainant's property in the Way he did,. AIR 1943 Sind 127.
(5) A man may beheld to commit "mischief" even by damaging his Own property, provided he
does so in order , to cause wrongful loss to somebody else or knowing it to be likely to cause wrongful
' loss to somebody else. A IR 1968 Orissa 18.
16. Employer's liability for employer's negligence.—(l) The employer is notriininally liable
for the damage caused to his neighbour as a result of a contractor's negligence in omitting to prop the
neighbour's wall. AIR 1919 All 385.
17. Act causing slight harm.—(1) Taking-some earth of hardly any appreciable value from an
open piece of land does not amount to offence of mischief, (1882) All WN 229.
18. Destruction of property of trespasser.—( I) The ownr of land has no right to destroy the
property of a trespasser found upon the premise even if he has a sight to eject the trespasser. 1964 Ker
LT 757
19. ,Evidence an4 onus.- (I) It, is for the prosecution to prove that the accused 'caused damage;
with wrongful intent with a knowledge that he was not justified in doing it and that the party under
whose orders he was acting had no real title. (1966) 32 Gut LT 788. ' -
Sec. 426 Of Offences against Property - 1337

• (2) Possession is prima facie proof of title and for a conviction for mischief the complainant need
not prove his ownership in the property in respect of which mischief is committed. AIR 1927 All 724.
20, Procedure.--(I) Thé Irrigation Act provides for punishment where the act of the accused does
not amount to mischief. It isñot permissible to split up into different parts the act of the accused and
of pick up that part of the act which would not amount to mischief but obtain a c6nviction under the
said A ct. 1873 CriL.J 1052 (Orissa)
(2) Not çognizable—Summons—Bailable—Compoundab1e—Triable by any Magistrate, Village
Court—Triable summarily.
21. Summary trial.--(I) Offences of criminal trespass and mischief unless they involve a. bona
fide dispute of right can be tried summarily. (1884) ILR 10 Cal 408:
(2) Where the accused persons were summoned and placed on trial summarily under this section
and the Magistrate convicted them under S. 427 of the Code, this charge in procedure was held to be
wrong. AIR 1955 NUC (Cal) 4268.
(3) In a summary trial, if the Magistrate neither records the accused's plea and examination nor
gives a brief statement of the reasons for conviction under this section the conviction is bad. AIR 1928
A1l 266. .
• 22. COnviction for theft and mischief.--(I) If-the accused steals a bullock and kills it, separate
sentences for theft and mischief (Sec. 429) are not illegal. Rat UN C'ri C 430.
23. Jurisdiction and powers.—( 1) The. authority vested in a criminal Court of .punishing persons
• for acts of mischief should be exercised with great caution. (1866) 6 Suth WR 59.
(2) Where a Magistrate applies his mind to the evidence and in finding that the accused had
committed mischief he was satisfied that the ingredients of the offence under this section were present
in the case, the finding is sufficient to warrant a conviction. It is not necessary to embody in the
judgment the precise expressions used in the section. AIR 1941 Cal 185.
(3) Where a case fallingunder S. 430 of the Code which a Bench Court had no jurisdiction to try,
was treated as one under this section and sent to the Bench Court which tried the same for the lesser
offence under this section it was held that the trial was not void. A IR 1966 Raj 115.
(4) Where the complainant, had grown plants under the belief that he had a right to do so and the
accused cut them down and the Magistrate acquitted the accused holding that the complainant had no
right to grow the trees, the acquittal was set aside holding.that it was not a matter for the Magistrate to
• decide in a case of a mischief. AIR 1963 Manipur 15. .
24. Charge, conviction and sentence.—(l) The addition of a char rider S. 143 of the Code by
• the Appellate Court to - the charges under S. 451 and this section prejudices the accused. A IR 1916
Mad 1222. . .. .. . . •-
(2) Section 222(2) Criminal P. C justifies conviction under this section where the original charge
was made under S. 452 of the Code. AIR 1925 Oudh 89. .. . .
(3) A conviction under this section cannot be altered into one under S. 352 of the Code in appeal
when there is nothing to show that the accused was informed by the Magistrate that he had to defend
himself against the offence of assault as well. AIR 1936 Pat 536. .
(4) Where on a complaint-against A and B for offences under this section and Ss. 504 and 506, the
L. Magistrate proceeds against A only under this sectiorrand passes an order, the order would amount to a
dismissal of the complaint against B and will further show that no charge under Ss. 504 and 506 . is
made out against A and B. AIR 1948 All 46.
1338 Penal Code Sec. 427
(5) An appellate Magistrate dealing with an appeal against conviction under S. 423(1)(b) of the
Criminal P. C., was held to be competent to alter the conviction under this section into one under S.
24, Cattle Trespass Act, on the same facts proved against the accused. AIR 1954 Orissa 145.
(5) Accused, a young man, convicted, of offence under this section read with Section 149
(rioting). In circumstances of the case it was held by the S. C. that he must be dealt with under the
Probation of Offenders Mt and released after admonition. AIR. 1976 SC 2566.
25. Joint trial.—(1) Various independent acts connected either subjectively or objectively and
producing a particular result form one transaction. When the series of acts that took place were (i) rash
and negligent driving of the bus by the driver of the bus; (ii) rash and negligent drivingof the car by
the driver of the car; (iii) the acts of both the drivers in acting negligently leading to the collision it
was held that all the three acts were no doubt independent transactions. The connection was established
by the result which followed. Therefore, for óffences under Sections 279, 327 and this section the
drivers of the two vehicles could be tried together. AIR 1962 Raj 155.
26. Abatement..— .( 1) The death of the complainant in a case under this section does not put an
end to the prosecution. The trying Magistrate has discretion in proper cases to allow the complainant
to continue by a proper and fit complainant ifthe latter is willing to continue the complaint. AIR 1926
Born 178.
27. Complaint by aggrieved person.—(l) An offence under this section not being covered either
by S. 198 or by S. 199, Criminal P. C., a complaint of-the aggrieved person for the offence is not
necessary. AIR 1952 Mad 170.
-.28. Section 279, 379 and this section (S. 425).—(1) Driving rashly on a public road so as to
collide with another's carriage and to injure the horse of that carriage amounts to. an offence under S.
279ofthe Code and not under this section. 1980 Pun Re (Cri) No, 13 P. 31
29. Pract j ce._Ev j dence__ prove : (1) That the accused caused the destruction of some property, or
sOme change in such property or in the situation thereof.
(2) That the above act destroyed or diminished the value or utility of such property, or affected it
injuriously. .
(3) That the accused did as in (1) intending or knowing that he was likely to cause loss or damage
to the public or to any person.
(4) That the causing of such damage or injury was wrongful.
30. Charge.-.-.-(1) The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, committed mischief by causing wrongful loss or
damage to the property of X valued, at Tk.—and that you have thereby committed the offence under
section 426 of the Penal Code and within my cognizance.
And I hereby direct you be-tried by this Court on the said charge.

Section 427
427. Mischief causing damage to the amount of fifty 5[ta'kal.—Whoever
commits mischief and thereby causes loss or damage to the amount of fifty 5 [taka] or
Sec. 427 Of Offences against Property 1339

upwards shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
Cases and Materials Synopsis
1. Scope. well as under Special'Act.,
2. Ingredients of the, offence. 8. Jurisdiction over offenders on the high seas.
3. Abetment of offence under this section. 9. Charge and, conviction.
4. Evidence. 10. Security order,
5. Procedure. iL Sanction.
6. Jurisdiction. 12. Practice.
7. Act of accused falling under this section as 13. Charge.
1. Scope.—(I) The difference between sections 427 and 426 of the Penal Code. is that whereas
section 426 provides for punishment for mischief generally, section 427 provides for enhanced sentence
in cases where loss or damage occasioned by the mischief is to the amount of Tk 50.00 or upwards.
Criminal intention is necessary ingredient of the offence under this section. Where the accused in
bonafide belief that the complainant had encroached upon his land removed the encroachment and sold
the materials, held that in the absence of criminal intention he had not committed any offence under
section 427 (AIR 1950 Orissa 196). In the absence of a finding as to the extent of damage caused by
the mischief of uprooting paddy seedlings, conviction of the accused under section 427 Penal Code
cannot be sustained (1957 CrLJ 149). Actual possession of property by the complainant must be
proved before a charge under section 427 Penal Code can be brought home to the accused (Ref 21
DLR 231). . S . . .. . .

(2) Intention inferred from facts—Intention must be a dominant intention. Intention which is state
of mind can never be proved as a fact; it can only be inferred from facts which are proved. It may well
be that in doing a particular act a man may have more intentions than one and to bring a case within
section 427 of the Ceylon Penal Code , the intention specified in the section must, be the dominant
intention. S. Selvanayagan Vs. King (1952) 4 DLR (PC) 74:
(3) Acquittal under section 427 does not lend support to the view that the accused ,cannot be tried
and convicted for offence under section 447. Held: The trial Magistrate had jurisdiction to try the case;
simply because he acquitted the accused on the charge under section 427 he cannot furnish an argument
that he had no jurisdiction to try this case and convict the accused. Jogesh Chandra 'Mondal Vs. Kani
La! Mondal (1966) 18 DLR 79. . ..
(4) Initial complaint discloses an offence of theftS—Conviction under.. Section 427 not lawful.
Where the initial complaint and charge against the accused disclosed an offence under S. 379 of the
Penal Code, his conviction under section 427 cannot be maintained. Tarab Ali Mondal Vs. Jafaruddin
Mondal (1954) 6 DLR 32. .. . ., .
(5) Plea of bonafide claim of right by demolishing a boundary wall is not available when the act
of construction was long ago complete. On the charge of mischief under section 427. Penal Code for
demolition of a boundary wall 4 months after its construction, the plea was that the wall had been
raised on the land in exclusive possession of the accused, it was held. A mere plea of bona fide claim
of right cannot exonerate, him from the i esponsibility. He cannot take the law in his own hands. He
had no right to abate the wrong and demolish the wall even if it had slightly encroached upcn his land.
He could very well take resort to section 133 Cr: P. C. to undo the nuisance. Wazir HassanAnsari
Vs. The State (1969) 21 DLR 231. . .
1340 Penal Code Sec. 427

(6) Offence triable by Magistrate and not by village court—Where in a case an offence triable by
the village court is joined with the offence triable, by the Magistrate, the case shall be triable by the
Magistrate and not by the village Court. A bul Kalamand others Vs. A bu Daud Gazi and another-4,
MLR (1999) (AD) 414. .
(7) Concurrent findings of the Courts of facts that the complainant party possessed the land and
grew paddy thereon and that the petitiQners cut and damaged the Same, while it was green, offer no
scope for interference. Ramfan A ll & others V s. The State, 1 BSC'D 248.
(8) Conviction under this section of the Code set aside in view of civil courts deciSion on the
question of title and possession. The complaint (respondent) claiming possession in the land
constructed latrine but the civil court on evidence found both title and possession in the land in favour
of the appellant. This finding related back to the date of the alleged occurrence. Observed:—When the
land as found by the civil court, was in-the possession of appellant, the complainant respondent had no
authority to go upon this land and raise any construction. The appellate was fully justified in removing
the latrine an bonafide assertion of his title and possession in the land. Held: In view of the decision
of the civil court finding title and possession in favour of the appellant, the order of conviction and
sentence under Sec. 427 of the Penal Code cannot be sustained. Moazzem Hossain Vs. Mossaraf A ll
Sowdagar & another, 3 BSCD 13.
(9) Case involxing offence u/s. 427, PC punishable with sentence of imprisonment exceeding one
year–i--order of acquittal—Single Bench of the High Court Division not competent to hear a Criminal
Revision Case involving an offence u/s. 427 P. C. which is punishable with sentence of imprisonment
exceeding one year. A hsan Sarfun Nur @ Makul & ors. Vs. N. 1. Sarkar & ors; 42 DLR (A D) 90
1990 BLD (AD) 90=BCR 1990 AD 435.
(10) The only distinction between an offence punishable under Section 426 and an offence
punishable under this section is the extent.of the damage done by the mischief. AIR 1942 Mad 594.
(11) The section contemplates some direct act on the part of the accused. Where the accused stored
earth and other materials on the open space between his house and that of the complainant and owing
to the accumulation of water due to abnormal heavy rains, the wall of the complaint's house was
damaged, it was held that the accused could not be convicted under this section as there was no direct
act on the part of the accused. AIR 1950 All 464.
2. Ingredients of the offence.—(1) The ingredients of the offence under this section includeall
the ingredients of the offence of mischief. In addition, the loss or damage caused must amount to Rs.
50 or upwards. (1916) 22 Mys CCR No. 81 pp. 1084.
3. Abetment of offence under this section.—(l) A person aiding another tOcommit the offence
of mischief will be guilty of abetting that offence. AIR 1973 SC 1388.
4. Eyidene.—(1) The prosecution must establish all the ingredients of "mischief' as defined in
S. 425 and must further prove that, the loss or damage caused amounted to Rs. 50 or more. In a
proseéution for mischief by uprooting paddy seedlings the onus is entirely .upon the prosecution to
• prove that the seedlings alleged to have been uprooted had been grown by the complainant and that
possession of the plot in question was with the complainant. AIR 1955 NUC (Assam) 2823.
5. Procedure.—( 1) When an officer charged under S. 409 of the Code was found guilty under S.
• 409 or under this section and convicted, it was held that alternative conviction under this section was
bad inasmuch as mischief is not a minor form of criminal breach of trust but was quite distinct from
Sec. 427 Of Offences against Property 1341
it, that there was not an alternative charge under this section and that the accused had no chance of
defending himself as to the allegation of mischief. AIR 1930 Rang 158.
(2) It is competent to the Sessions Judge to commit a person on a charge not excessively triable
by a Sessions Court e.g., under this section, if it . is intimately connected with a charge exclusively
triable by the Sessions Court (e.g., a charge under S. 436 of the Code) and if it forms part, of the same
transaction, but it is clear.that the above requirementsare not satisfied in a direâtion for commitment
to the Sessions Court for trial' on a charge under S. 380 of 'the Code, theoffence thereunder being
totally different from the category of offences under which are included charges, undetthis set!on and
S. 436 of the Code. A IR 1926 Cal 1090.
(3) Not cognizable—Warrant—Bailable—Compoundable by the person to whom the loss or
damage is caused—Triable by any Magistrate, Village Court,
6. Jurisdiction.—(l) Unless it has been found at the very outset-that the allegations are
exaggerated with the intention, of seeking a particular Court for redress the statement of the
complainant has to be accepted for the purpose of jurisdiction. AIR 1925 All 290.
(2) A complaint alleging'an offence under this section cannot be taken on file for an offence under
S. 426 of the Code and the Magistrate has no jurisdiction to acquit the accused under S. 256, Criminal
P. C. which has no applieation to warrant cases. 41R 1942 Mad 594. . . . . .
7. Act of accused falling under this section as well as under a Special Act.—(1) The fact that
on the same facts, the accused may be guilty under a Special Act, cannot prevent a prosecution under
this section, see Section 26 of the General Clauses Act 1897. ILR (1972) 1 Cal 72.
8. Jurisdiction over offenders on the high seas.--( 1) A Magistrate having jurisdiction near sea
shore has jurisdiction to try offenders committing offences under this section on the high seas within
three miles from the shore. (1871) 8 Born 11CR 63. .
9. Charge and conviction.—(l) The general principle underlying Section 403, Criminal P. C. is
that aman should not be put on his trial twice over on the same facts. Where an accused was once
charged with mischief under this section and acquitted on the ground that he was not present at the
scene of oqcurrence, he could not on the same factsbe subsequently charged with rioting under Section
147 of the Code. AIR 1924 Mad 478.
(2) If a . person is charged with dacoity, but an offence under this section which has no connection
whatsoever with the offence of dacoity and with whiCh he was not charged is proved to have been
committed he cannot be convicted of the 'latter offence under this section although it may be a
comparatively less serious offence and as such it may be described as a minor offence. A IR 1950
411 47/....
(3) In a case of rash and negligent driving leading to c 'ollision causing hurt to persons on the road
a conviction of .the driver under this section is illegal. AIR 1962 Guj 318.
10. Security order.—(1) No order under Section 106, Criminal P. C. can be passed upon
conviction of the accused for an offence under section 143 of the Code' or this section. A IR 1927
All 136.
.11. Sanction.----(I) No sanction is necessary to prosecute a public servant for an offence punishable
under this section when the complaint. does not allege that the accused 'committed mischief while
acting or purporting to act in the discharge of his official duty as a public servant. AIR 1954 Sari 132.
12. Practice.—Evidence---Prove: (1) That the accused caused destruction of some property, or
some charge in such property or in situation thereof. ' ' '
1342 Penal Code Sec. 428
(2) That the above act destroyed or diminished the value or utility of such property, or affected it
injuriously.
(3)That the accused did as in (I) intenting or knowing that he was likely to cause wrongful loss
or damage to the public or to any person.
(4) That the causing of such damage or injury was wrongful.
13. Charge.—The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the day of—, at—, committed mischief by causing wrongful loss or
damage to the property of X valued at Tk— .-(more than taka fifty) and you have thereby committed an
offence punishable under section 427 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 428
428. Mischief by killing or maiming animal of the value of ten 5 ltakaj.-
Whoever commits mischief by killing, poisoning, maiming or rendering useless any
animal or animals of the value often 5 [taka] or upwards, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
tine, or with both.
Cases and Materials : Synopsis
I. Scope. 5. "Animal."
2. Killing. 6. Practice.
3. poisoning. 7.. Procedure.
• 4. Maiming or rendering useless. 8. Charge.
1. Scope.—(1) This section is intended to prevent cruelty to animals and consequent loss to the
owner. 'Maiming' implies a permanent injury. The intention to cause wrongful loss will have to be
established. Hen is covered by the definition of "animal" in se6tion47 of the Penal Code and hence
conviction of accused can be legally maintained (1972) A ll CrLJ 590.
(2) The killing, poisoning or maiming or rendering useless any animal must be done. with
intention or knowledge specified in Section 425. So, throwing a stone at a cow and thereby breaking
its leg would not amount to mischief in the absence of evidence as to the size of the stone used, to
indicate the intention or knowledge on thepart of the accused. (1881) 1 W eir 497.
(3) Where there is no evidence as to whether the accused who threw only a small strike at a
bUllock did it merely for driving it away and intending no harm, or where. he made use of such a strike
as, at the time of using it, he knew or had reason to believe that it would, be likely to injure the
animal, the conviction cannot be sustained. (1906) 3 CriLJ 107. ..
(4) Where the accused gave axe and lohangi blows to a cow, it co4ild not be said that they had no
knowledge of their being likely to cause wrongful loss or damage to the complainant; 1955 MBLJ
1600. . .
(5) Where the accused struck a mare with dandas for some time and fractured its bone, the
intention to maim the animal was presumed. A IR 1948 Oudh 113.
Sec. 428 Of Offences against Property . 1343

(6) When a buffalo trespassed into the accused's field and the accused tried to drive it away by
throwing at it a stone which hit and killed the buffalo, it was held that the accused was within, his
right to protect his property and was hence not guilty of mischief for want of knowledge or intention
to kill or maim. A IR 1953 Sau 158.
2. Killing.---(1) In this case arising under an analogous provision on a charge for unlawfully and
maliciously, killing a mare, it was ,proved that the prisoner caused the death of the mare through
injuries inflicted by his inserting the handle of a fork into her vagina. It was held that though the
prisoner did not intend to kill the mare he knew that what he was doing would or might kill her, and
he was therefore guilty Of the offence. (1876) 1 QBD 23.
3. Poisoning.--(I) Where the prisoner had mixed sulphuric acid with the corn intended for the
feed of horses and then gave each horse this feed from this mixture, he as held not guilty since the
acid was given under the impression that it would improve the appearance of the horses and not with
intent to kill them. (1830) 172 ER 741.
4. Maiming or rendering useless.--(I) In its primitive meaning the verb "to maim" involves the
notion of mutilation of some part of the body useful for fighting. the framers of the Code did not
intend to give the word thjs restricted meaning. The expression would fairly include the amputation of
any member or the injury of an animal by which its speed, or endurance, or use is permanently.
diminished. (1872-1892) Low' Bur Ru! 404.
(2) The term maiming refers to injuries permanently affecting the use of a 'limb or other member of
the body. A IR 1947 Sind 66 .
(3) The word maiming includes
(a) Pouring acid into the eye of a mare and thereby blinding her. (1828) 168 ER '1242.
(b) Cutting off the ears of a horse. (1911) 12 CrILJ.482 (Mad).
(c) Cutting the ears of an ass clean off at their base. so as to affect their hearing. AIR 1918 Mad 638.
(d) Mutilating or permanently diminishing the use of a limb and breaking a rid. (1921) 2 Pat LT
26N. ' . . . .
(4) The word 'maim' connotes a permanent injury and not a mere disfigurement. Cutting off one-
half of one ear of an animal without impairing its sense of hearing does not amount to maiming. AIR
1916 Born 220. .
5. "Animat."—(l) The word "animal" is defined in S. 47 ante as denoting any living creature
other than human being. The animal destroyed must be the subject of property. Ferrae naturae are not
'property'. Where a bull is released and set at large at a funeral, as a religious ceremony, the question
whether the owner had abandoned his rights to it depends upon the particular facts of the case. The
mere release of the bull Is not necessarily an abandonment of rights over it. I Weir 500.
6 Practice.—Evidence—Prove: (I) That the accused caused the destruction of some property or
some change in such property or in the situation thereof.
(2) That the above act destroyed or diminished the value or utility of such property, or affected it
injuriously.
(3) That the accused did as in (1) intenting or knowing that he was likely to cause loss or damage
to the .public or to any person;
(4) That the causing of such'darnage or injury was wrongful.
(5) That the prOperty injured consisted of an animal.
1344 . Penal Code Sec. 429
(6) That the value thereof at the time of injury was Tk. 10.00 or more.
(7) That the injury in questin was caüsed . by killing, poisoning, maiming, or rendering useless
such animals.
7. Procedure.— Cognizable—Warrant—Bailable—Compoundable when permission is given by
the Court before which the prosecution is pending—Triable by any Magistrate, Village Court.
8. Charge—The charge should run as follows:
I, (name and office of the Magistrate, etc.) hereby charge you (name of the accused) as follows:
That you, on or about the—day of,—at to wit—, of the value of—, and thereby committed an
offence punishable under section 428 of the Penal Code, and within my cognizance.
And U hereby direct that you be tried by this Court on the said charge.

Section 429
• 429. Mischief by killing or maiming cattle, etc. of any value or any animal
of the value of fifty 5 l taka l .—Whoever commits mischief by killing, poisoning,
maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow Or
ox, whatever may be the value thereof, or any other animal of the value of fifty 5[taka]
or upwards, shall be .punished with imprisonment of either description for a term
which may extend to five years, or with flue, or with both. . .
• . Cases and Materials
1. Scope.—(l) This section provides enhanced punishment owing to the greater value of the
animals mentioned therein Intention is the gist of the offence The animals enumerated in the section
are all domestic animals as opposed to wild animal. Killing a wild animal in a forest is not covered by
this section (A IR 1961 A ssam .18).A n offence may fail under the Motor Vehicles Act and section 429
and separate convictions may be ordered under two enactments. . . . .
(2) The commission of a "mischief' involves intention or knowledge such as is referred to in S.
425.. When the accused had no intentiOn of either killing,- poisoning or maiming or rendering useless
animal, this section does not-apply; A IR .i9'0 Raj 203 . :.. •. . .
(3) Where an accused drove a lorry in the evening with poor lights and in the outskirts of a village
the lorry ran into a herd of animals, killing four buffaloes and injuring two others, it was held that he
must be presumed to have had the knowledge that he was likely to cause wrongful loss or darnageto
any person though there might be no intention to cause wrongful loss or damage to any person. AIR
1957 A na'hPraIOO. . .. . ., .. ;. .. •. . . .
(4) The causing of non-permanent-injuries maybe an offence under S. 426. AIR 1960 Ker 74.
(5) Beating to death .a buffalo dedicated to a deity in an offence under this section. An animal
branded and let loose on the occasion of the funeral .or obsequies. in a Hindu family may be n011ius
proprietas, but an animal dedicated to a deity is not res nu!lus. AIR . 1945 .1/430. .
(6) A mare will come within the meaning of the word 'horse' in the section. AIR 1948 Ozidh 113.
(7) The , words'or any other animal" in the section refer toanimals of the same kind or class i.e.
ejusdem generis with domestic animals and not wild animals. AIR 1961 Assam 18.
2. Practjce._—Evjdence_Prove: (1) That the accused caused the destruction of some property, or
some change in such property or in the situation thereof. . . ..
Sec. 430 Of Offences against Property 1345

(2) That the above act destroyed or diminished the value or utility of such property, or affected it
injuriously. .
(3) That the accused did as in (1) intending or knowing that he was likely to cause loss or damage
to the public or to any person.
(4) That the causing of such act or injury was wrongful.
3. Procedure._Cognizable_WaITaflt_-Bailable—00mP0u ndable when permission is given by
the Court before which the prosecution is pending—Triable by Metropolitan Magistrate or Magistrate
of the first class, Village Court.
4. Charge.—The charge should run as follows:
I, (name and office of the Magistrate), hereby charge you (name of the accused) as follows:
That you, on or about the—day of—, at—, committed mischief by killing .(poisoning, maiming
or rendering 'useless) (specify the animal: where the animal is not of.the kind mentioned in the section
specify its value), and that you thereby committed an offence punishable under section 429 of the
Penal Code and within my cognizance.
And I herebyiirect.that you be tried by this Court on the said charge.

• Section 430
430. Mischief by injuIy. to works of irrigation or by wrongfully. diverting
water.—Whoever commits mischief by doing any act which, causes, or which he
knows to be likely to cause, a diminution of the supply of water for agricultural
purposes, or for food or drink for human beings or for :animals which are property, or
for cleanliness or for carrying on any manufacture, shall be punished with .
imprisonment of either description for a term which may extend to five years, or with
fine, or with both..
Cases and Material. ,:. Synopsis .
1. Scope of the section. 8. Procedure..
2. Diminution of water supply. 9. Charges separately under Ss. 144 and 430—
A cquittal on charge under,-Section 430-
3. Diverting water. ., . Effect. •• ••
4. Cutting embankment or band. . 10. Evidence and proof.
5. Bona fides. 11. Charge.
6. W rongful loss or damage. ii. Punishment. .
7. Civil dispute. 13. Practice.
1. Scope of the section.—( 1) This section is intended to protect sources of water supply against•
mischief. It also applies to irrigation through channels, other sources of irrigation, tanks and ponds.
For conviction under this section, the prosecution must prove criminal intention or knowledge of the
accused (A IR 1920 Cal 835) This section applies only to mischief likely to diminish water supply in
certain cases. This section speaks of an act. An act includes an . illegal omission. If a person was bound
by law to do -an act and he failed to perform it, he would be liable in the same as he would be for a
positive act. Where, therefore, a landlord was bound by law to make arrangement for supply of
drinking water for his tenant and he neglected to do so, he would be liable under section 430 Penal
1346 Penal Code Sec. 430
Code (PLD 1959 Kar. 392). Before a landlord or his agent can be convicted under section 430 on a
complaint by his tenants, for interfering with water supply of the tenants, it is absolutely necessary to
prove that there was intentional inflicting of loss and that the landlord had no right to interfere in any
way and the tenants had a right to the supply or preservation of water (A IR 1930 Cal 318). Every.
person has a perfect right to do a particular act upon his own land, and if a person breaks open his
'bund' or opens his own sluice, no one can complain of until some injurious consequence follows
from it. The cutting of a 'bund' erected on a channel Whereby a person is wrongfully deprived of use of
water, is an offence under section 430 of the Penal Code; Even where cutting of a dam was done by the
accused with the object of saving his crop, it would be an offence under section 433, if it can be
proved that he caused diminution of water for the complainant (AIR 1932 Pat, 224). Cutting a bund on
a channel wrongfully depriving a person of the use of water, is punishable under section 430 Penal
Code (19 CriLJ 356). If a supply channel is filled up or is obstructed by a dam put up or by raising a
dam already existing there is a change made in the channel which diminishes its value or utility, and
which, if it was done with the intention to cause or with , knowledge that it was likely to cause and if it
does cause, wrongful loss to any person, would constitute the offence of mischief (24 GrLJ 30). Where
the matter is primarily of a civil character, there sound be no criminal proceedings against the accused
(27 CrL.J 1354).
(2) Mischief by stopping irrigating water cannot be caused unless right over supply of water
existed for 20 years. The question, at issue is whether the complainant acquired any right to get water
from the land of the accused, the complaint being that the accused closed the drain through which the
complainant got his supply of irrigating water for 12 years. Held: Even assuming that he was getting
such water for about 12 years it would not create any right or title for him if he claims prescriptive
right. There must be use of such water passage for the minimum period of 20 years. But as he has not
done it, he cannot get such right 'except by uninterrupted use for a period of 20 years. .Jaidhar All Vs.
A bdul Male/c (1966) 18 DLR 291. ,
(3) Diversion of water—Offence committed. Accused forcibly diverting water from another's field
to his own field—Offence committed under section 430. (1955) PLD (Lah) 170.
(4) This section deals with mischief causing a particular kind of wrongful loss, namely loss caused
by the diminution of the supply of water br the purposes specified in the section. It is necessary
therefore that the act of the accused amounts to mischief as defined in Section 425 before he can be
convicted under this section. (1949) 35 Cut LT 1176. . .
(5) It must be shown that the accused intended to cause or knew that he was likely to cause
wrongful loss to any person. AIR 1925 Mad 577.
(6) "Wrongful loss" is defined by S.23 of the Code as loss by unlawful means of property to
which the person losting it is legally entitled. The prosecution must therefore show in a charge under
this section that the complainant was legally entitled to the supply of water and: that the accused
wrongfully interfered with the right. A IR 19?4 Oudh M.
2. Diminution of water supply.—(1) Diminution of water supply for the purposes mentioned in
the section is an essential ingredient of the offence under this section. (1971) 2 Cut WR 779.
• (2) The taking of water from a source of supply causes loss, but in order that the section may
apply the loss must amount to a diminution of the supply of water for the purposes specified. AIR
1930 Cal 289 (289); 31 CriLl 751.
(3) Where the accused forcibly opened the canal distributors and diverted the water but there was
nothing to show that they diminished the supply of Water to the complainant, it was held that the
accused was not guilty under this section. AIR 1934 All 687(2).
Sec. 430 Of Offences against Property 1347
(4) The words "diminution of the supply of water for agricultural purposes" cannot be limited to
cases where the water has been allowed either to go waste or has been diverted to non-agricultural
purposes. The section, read as a whole, also refers to a case where the water is intended for use by
particular persons for particular purposes (specified in the section such a, for example, for food or
drink for human beings or animals) and is delivered by an accused for his own purposes though of a
like nature. AIR 1939 Mad 794.
(5) Preventing a person from opening a sluice which had been closed for . some day before the date
of occurrence would not amount to mischief under this section. AIR 1940 Mad 144.
3. Diverting water.'—(l) Cutting a watercourse and forcibly diverting the water to on own field
comes within the purview of this section. AIR 1955 NUC (Pak) 3501.
(2) Where the accused took water for agricultural purposes to which he was not entitled and
thereby diminished the supply to other ryots who were entitled to it, his conviction was held good AIR
1924 Pat 704.
4. Cutting embankment or bund.—(1) To throw a bund across a supply channel is to destroy.
its utility and is prima facie an act of mischief. 1933 Mad W N427.
(2) Where the accused cut adam created by the complainant in order to secure their own crops and
it was not proved that the act of the accused caused any diminution of water for agricultural purposes
nor was it proved that he knew that it was likely to cause such diminution in the future, it was held
that the accused was not guilty under this section. (1904) 1 C,iJJ 245 (Cal).
5. Bona fides ^ ( 1) To constitute an offence of mischief it is necessary to show that the act was
done with mischievous intent and not in the bona fide assertion -of a right. 1 W eir 505.
(2) There cannot be a conviction under this section when there is a right or bonafide claim of right.
A IR 1917 Cal 67.
(3) Accused knowingly diminishing supply of water without a bona fide claim are guilty. AIR
1924 Pat 704.
(4) Where the accused was alleged to have cut open a , bund and caused diminution of Water supply
to the complaint's fields, but the bund was not found to belong to the complainant and there was
evidence that the accused had been in the habit of obtaining a permit for diverting the water, in the
previous years, and he did the act anticipating the permit, it was held that as the accusea acted in the
bona fide belief that he would get the permit, his action did not amount to mischief. A IR 1920
Mad 119.
6. Wrongful loss or damage.—(1) Intention to cause wrongful loss (or the knowledge of being
likely to cause such loss) is one of the essential ingredients of the offence of mischief as defined in S.
425 and is, therefore, an. ingredient of the offence under this section. also. AIR 1916 Mad 102 1.
(2) For constituting an offence under this section, it must be shown that the complainant had
some right to carry water to his fields through a channel and there was an intention on the pail of the
accused to cause wrongful loss. AIR 1923 Mad 141.
(3) The accused who without any right, dammed the water of a channel and diveñed it in another
way were held to be rightly convicted as they had an intention to cause wrongful loss. A IR 1921
Mad 536.
(4) If the intention of the accused was only to protect his ?'h1 property from danger of injury the
fact that the accused by butting through a bund and permitting4 -portion of the water of a tal to escape,
1348 . Penal Code Sec. 430
caused a diminution in the supply of water for agricultural purposes without proof of actual wrongful
loss or damage resulting therefrom to some person does not afford sufficient basis to convict the
accused. No presumption that loss or damage was caused to some person can arise from a mere
diminution of water supply. AIR 1943 Sind 130.
(5) Where a Sessions Judge dismissed an appeal against a conviction under this section, by
referring to the reason given in the judgment in a tonnected case, convicting the accused under S. 379,
the. Sessions Judge was held to have acted irregularly in not taking into consideration , the intention.
requisite for an offence under this section. AIR 1916 Mad 1021.
(6) If a person breaks open or opens his own sluice, the mischief would consist, not in breaking
the bund in opening the sluice but in flooding or withering up the complainant's crops. but where the
property was not of the accused but Government ; property (Kotwah) and the mischief complained of as
givinaa cause of action to the Crown was the change in the kdtwah which diminished its utility nd
affected it injuriously, it was held that it was not necessary for the Crown to rely on the injury caused
to other persons who were receiving water as giving a cause of action and to prove actual damage
therefrom. AIR. 1927 Sind 39. . .. .
7. Civil.—(1) ACruninal Court has authority to decide the case, on the rights asserted, for the
purpose of a criminal charge though its decision would not determine the civil rights of the, parties; I
Weir 508 (509). . . ... .
(2) A conviction of an accused under this section is not proper where there is a dispute regarding
the right to use water which is pre-eminently a matter fofthe civil Court to decide. AIR 1927,411112:
(3) Where the Amin had opened the"riuiddle sluice of a tank to irrigate certain lands registered as
wet and it was closed by the accused, unless it can be said that the opening of the middle sluice was
according to custom, it cannot be said that the closing of it was with the intention of causing any
wrongful loss or wrongful .gain. AIR 1940 Mad 306. .
8. Procedure,--(I) In the absence of any intention or knowledge to cause wrongful lois to justify
a conviction for mischief, a Magistrate should not act on his own impulse to deal with the case. (1876)
25 Suth W R Cr 69. . . . ., .. .
(2) Procedure—Cognizable---Warrant--Bailable---Compoundable when permission is given by the
Court before'which the prosecution is pending—Triable by Metropolitan Magistrate or Magistrate of
the first class.
9. Charges separately under Ss; 114 and 430—Acquittal on charge under S. 430—Effect.-
(1) When the accused was charged separately under Ss. 144 and.430 and he was acquitted of the offence
under S. 430 the common object not being to commit mischief under S. 430, but to commit mischief
connected with the offence of rioting, the acquittal under S. 430 does not entitle him to acquittal under
S. 144. 1972 CriLJ 700 (Pat). . .
10. Evidence and Proof.—(l) For a conviction under this section it must be proved that the
accused has brought himself within the true meaning of S. 425 of the Code. Otherwise this provision
of law will be frequently'resorted to as a trenchant mode of deciding disputed question of civil right.
(1866) 6 Suth W R Cr 59. . .
(2) For a conviction under this section the prosecution must prove that there has been an unlawful,
and intentional interference by the accused with the admitted or proved rights of the complainant. AIR
1920 Cal 835.
Sec. 431 Of Offences against Property 1349
(3) Before a landlord or his agent can be convicted under this section on .a complaint by the
tenants for interfering with the water supply of their tenants, it is absolutely necessary to prove that
there was an intentional inflicting of loss and that the landlord had no such right to interfere in any
way and that the tenants had a.riht to the supply or preservation of water. AIR 1930 Cal 318.
11. Charge.--(I) When the accused were charged under this section for committing mischief by
cutting the .bandh of a river causing thereby diminution of water supply for agricultural purposes and
they were also charged for being members of an unlawful assembly with the common object of cutting
the bandh and the Magistrate did not convict them on the ground that no diminution in water supply
was caused, it was held that the accused were entitled to be acquitted of the offence under Ss. 143 and
144 of the Code. AIR 1934 Pat 505. . ..
(2) The charge should n.m as follows:
I, (name and office of the Magistrate etc.) hereby charge you (name of the accused) as follows:
That you, on or about the-.-.day of—, at—, committed mischief by doing—which act caused (or
which you knew to be likely to cause) a diminution of the supply of water for agricultural purposes (or
for food, etc.) and thereby committed an offence punishable under section 430 of the Penal Code and
with my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
12. Punishment.—(l) An accused wrongfully obstructed a channel and failed to remove the
obstruction and continued the wrong; the Panchayati Adalat imposed a recurring fine of Rs. 2/- per
diem till he removed the obstruction. It was held that the, imposition of recurring fine was illegal. AIR
1970 J and K3I.
• 13. Practice.—Evidence .--Prove: (1) That the accused committed mischief (section 425).
(2) That the mischief caused or was. likely to cause diminution of supply of water.
(3) That such supply was for agricultural purposes for food or drink of human being or animals or
for cleanliness or any manufacture. . . .. . . .. . . .
(4) That such mischief was committed with knowledge that it would or was likely to cause
diminution of the supply of water for agricultural purposes. .

Section 431
431. Mischief by injury to public road, bridge, river or channel—Whoever
commits mischief by doing any act which renders or which he knows to be likely to
render any public road, bridge, navigable river or navigable channel, natural or artificial,
impassable or less' safe for travelling or conveying property, shall be punished with
imprisonment of either description for a term which may extend to five years, or with
fine, or with. both.
Cases and Materials . . . .. ..
1. Scope.—(l) "Public road" as used in this section means a road which is used by the public
generally. Road used by the public for going from village to village for over thirty years is public
road. To support a conviction under this section there must be evidence of intention of causing
wrongful loss or damage or knowledge that wrongful loss or damage was likely to be caused. Where
the accused dug a trench adjoining a public road to protect his land from drainage water, it was held
that no offence was committed though the road was incidentally damaged, where there is no evidence
to prove mischief there can be no conviction under this section. •
1350 Penal Code Sec. 432

(2) Cutting a public road making it impassable or making it less safe for travelling or conveying
property is an offence under this section. 1967 All W R (HC) 572.
(3) The word "public" in the section refers to user by people at large and not to ownership.. A car-
track used by the public for over 30 years though passing through the patta land a person was held to
be a 'public road' under this section. 1973 GriLl 508.
• (4) Floating timber down the river which strikes against and causes injury to bridges across the
river may amount to mischief. Where, however, the accused was not proved to have the necessary
intention or knowledge envisaged by the section he would not be guilty of the offence.(1 975) 77 Pun
LR 57.
2. Practice.—Evidence—Prove: (1) That the accused committed mischief within the meaning of
section 425.
(2) That the act was committed by doing an act which rendered or which the accused knew it
likely to render a public road, bridge, navigable river or channel, natural or artificial, impassable or less
safe for travelling or conveying of property.
3. Procedure.—Cognizable—Warrant—Bailable----Not compoundable—Triable by Metropolitan'
Magistrate or Magistrate of the first class.
4. Charge.—The charge should run as follows:
1, (itan'ie and office of the Magistrate), hereby charge you (name of the accused) as follows:.
That you 'on or about the--day of—, at—, committed mischief by doing an act (specify the act)
which rendered or which (you knew to be likely to artificial) impassable (or less safe) for travelling or
conveying property, and you have thereby committed an offence punishable under section 431 of the
Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court an the said charge.

Section 432
432. Mischief by causing inundation or obstruction to public drainage
attended with damage.—Whoever commits mischief by doing any act which causes
or which he knows to . be likely to cause an inundation or an obstruction to any public
drainage attended with injury or damage, shall be punished with imprisonment .. of
either description for a term which may extend to five years, or with fine, or with
both.
Cases and Materials .
1. ' Scope.—( 1) This section provides for a more severe punishment where the mischief is
committed by causing inundation to public drainage as it affect the health of the community.
• (2) A erected a dam across the bed of a river claiming ' a right to do so. This resulted inundation of
• B's land. There was no evidence to show that inundation or other injuiywas likely to be caused by , the
dam put up. It was held that the accused was not guilty under this section. ('1968-.1$69) 4 Mad 11CR.
App 15 (xvii) (FB)
(3) Merelyby
because some inconvenience has been caused to the complainanror the person living
in the vicinity the stoppage of the flow of water, S. 432 would not be attracted. The complainant
See. 433 Of Offences against Property .1351

has to prove that the inundation or obstruction to the public drainage was likely to cause injury or
damage and that it was within the knowledge of the accused that it would cause such injury. (1982) 84
Pun LR 55. -
(4) Where the necessary intention or knowledge required for. the offence of mischief is absent, no
offence under..this section is committed. (1876) 25 Suth W R (Cri) 69.
(5) Subject-matter of criminal case and civil suit same—Nature of offences with which accused had
been charged, not so .serious as to warrant continuance of criminal case stayed till disposal of civil suit.
(1975) 77 Pun LR. 57.
• 2. Practice.—Evidence—Prove: (1) That the accused committed mischief within the meaning of
se 6tion 425.
(2) That the mistake consisted of inundation or obstruction to drainage.
(3) That the said drainage was a public drainage.
(4) That such inundation of obstruction was likely to result in injury or damage.
(5) That the said mischief was done with the knowledge that it was likely to cause injury to
damage.
3. Procedure. —Cogiilzable-----Warrant—Bailäble—Not Compoundable—Triable by Metropolitan
Magistrate or Magistrate of the first class.
4 Charge.—The charge should run as follows:
1, (name and office o the Magistrate) hereby charge you (name of the accused) as follows:
That you on or about the—day of—, at—, committed mischief by doing (specify the act) which
caused (or which you knew to be likely to cause) inundation (or an obstruction) to a certain public
drainage, to wit—attended with injury or damage and that you have thereby committed an offence
punishable under section 432 of the Penal Code and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.

Section 433
433. Mischief by destroying, moving or rendering less useful a light-house
or sea-mark.—Whoever commits mischief by destroying or moving any light-house
or other light used as a sea-mark or any sea-mark or buoy or other thing placed as a
guide for navigators, or by any act which renders any such light-house, sea-mark,
buoy or other such thing as aforesaid less useful as a guide for navigators, shall be
punished with imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.
Materials
1. Scope.--(I) This section deals with destruction of sea-marks intended to be the main guides for
safety in navigation. Any tempering with or destruction of such marks lead to serious consequence.
The offence under this section is more serious and the punishment is also more severe.
2. Practice.—Evidence—Prove: (1) That the accused committed mischief as defined in section 425.
(2) That the mischief was committed by destroying or moving any light-house (or other lights
used as a sea-mark or buoy or other things intended as a guide -for navigators).
1352 Penal Code Sec. 434

(3) That mischief was committed by an act which rendered such light-house, etc. less useful as a
guide to navigators.
3. Procedure.—Cognizable—Bailable ,—Not compoundable—Triable by Metropolitan Magistrate
or Ma

Common questions