LAW OF CRIMES - General Principles – Bharatiya Nyaya Sanhita, 2023 (Indian Penal Code, 1860)

• BASIS OF CRIMINAL LAW

• Maintenance of law and order is essential for human beings to live peacefully without fear of
injury to their lives, limbs and property.

• For this purpose, State should have a penal law, effective and strong enough to deal with the
violators of law.

• People can afford a less developed system of constitutional law or property law but cannot
afford to remain without an effective system of penal law.

• Every society treats certain acts or omission as improper, incorrect or wrong. Some are
purely individual, against morality or ethics

• Some affect the society as a whole, though injury is caused to individuals. Such acts or
omissions are prohibited and made punishable

• In primitive society, vengeance was the norm and criminal law was based on retribution.
“Tooth for a tooth, an eye for an eye” guided the rule for punishment

• Evolution of society brought in the concept of compensation for injury.

• Later, responsibility of protecting the people, punishing wrong doers and compensating
victims got transitioned to the king. King ensured safety of his subjects in return for their
loyalty and revenue.

• As the State evolved, dispensation of justice was delegated to Judges

• Criminal law ensures that offenders are brought to justice and punished appropriately.

• Criminal law safeguards the interests of both society and individuals. It has two aspects –

• the substantive law and the procedural law

• Law is the command of the sovereign or the political master. Law prohibits certain acts and
sanctions such acts

• In India, criminal law could be traced back to Smritis derived from Vedas and Vedic
principles. Justice was administered through Manu Dharma

• Mohammedan rulers dispensed justice adhering to their religious texts.

• Substantive la– Indian Penal Code, 1860 – BNS, 2023

• Procedural Law – Code of Criminal Procedure – BNSS, 2023, Bhartiya Sakshya Adhiniyam

• Lord Macaulay advocated for codification of all criminal law in India. Charter Act 1833
granted power to legislate and to facilitate legislation, a committee chaired by Macaulay was
formed. The committee drafted the Indian Penal Code which after a series of revisions was
enacted in 1960 and brought into force on Jan 1, 1862.

• IPC has now been replaced by the Bharatiya Nyaya Sanhita, 2023. It came into force on July
1, 2024 (except S. 106(2).

• Salient features of BNS, 2023

• IPC had 511 sections. BNS has only 358

• 1. Reorganisation of chapters

• Offences against women and child brought under a single chapter – Ch. V.

• Prioritisation of crimes affecting the human body – Ch. VI

• Unification of Inchoate offences – Abetment, criminal conspiracy, attempt Ch. IV

• 2. Introduction of new Crimes

• Organised Crime, Petty Organised Crime and Terrorist Act, S. 111, 112, 113

• Mob Lynching – S. 103 (2)

• Deceptive sexual Relations – S. 69

• Abolition of Sedition – replaced with threat to India’s Sovereignty, unity and integrity – S. 152

• Abetment outside India for offences in India – S. 48

• Snatching – S. 304

• Negligence by Medical Practitioner – S. 106 (1)

• Hit and run – S. 106(2) – not implemented

• Causing Grievous Hurt leading to Disability or Vegetative State – 117(3)

• Mob Lynching causing Grievous Hurt –S. 117(4)

• Mischief - S. 324(3) - includes damaging any property including govt. or local authority
property.

• Theft: - definition widened to include stealing a vehicle, theft from a vehicle, theft of govt.
property and theft of idols or objects of worship

• Attempt to commit suicide to compel or restrain public servant from exercising lawful power
(S. 226)

• Hiring, employing or engaging a child to commit an offence (S. 95)

• Possessing counterfeit seal etc and fraudulently using the same as genuine (S.341 (3) and (4)

• 3. Changes in definitions

• Movable property – S.(21) word “corporeal’ removed. All types of movable property –
tangible and intangible are now covered.

• Document includes electronic and digital records – S. 2(8)

• Child – any person below 18 years – word ‘minor’ omitted

• Definition of Gender to include transgender also

• 4. Omission of offences

• Adultery and attempt to commit suicide – 497 and 309 IPC

• Unnatural offences – carnal intercourse against order of nature (S. 377 IPC)

• Abolition of sedition (124 A IPC)

• 5. Modification in Offences

• Gangrape victim – age raised from 16 to 18 – S. 70(2)

• Murder by life convict – Life imprisonment added along with death (S. 104)

• Procuration of child – Under BNS both girl and boy come within offence – (96)

• Assault or use of criminal to women with intent to disrobe and voyeurism – victim must be
female but offender may be male or female (S.76 and 77)

• Importation of persons – under IPC importation of girl was offence. Under BNS, importation
of girl under 21 years and boy under 18 years is an offence.

• Beggary – Expression “Exploitation” includes any act of beggary or practices similar to

beggary (S.143)

• Grievous Hurt: period of severe bodily pain or unable to follow ordinary pursuits has been
reduced to 15 days (S. 116)

• 6. Penalties –

• Introduction of Community Service

• S. 4 introduces ‘community service’ as a form of punishment

• Increased imprisonment and Fines – duration of imprisonment and fine have been increased
for some offences

• Mandatory Minimum Punishments:

• CRIME – not defined in IPC or BNS

• “A crime is a violation of public rights and duties due to the whole community considered as
a community” - Blackstone

• “A crime is an act or omission in respect of which a legal punishment may be inflicted on the
person who is in default either by acting or omitting to act” – Sir James Fitz James Stephen.

• “Crimes are wrongs, whose sanction is punitive and is in no way remissible by any private
person, but is remissible by the Crown alone, if remissible at all” – Kenny.

• Any act or omission is a crime, if such act or omission is forbidden by law.

• Principle of legality is recognized as the keystone of criminal law.

• 1. There can be no crime without a rule of law. (Nullum crimen sine – no crime without law)
Only source of criminal law is the statute.

• An immoral or anti-social act, unless forbidden, is not a crime. An act forbidden by custom is
not a crime.

• 2. A criminal statute should be clear and unambiguous. If ambiguous, it should be

interpreted strictly in favour of accused.
• 3. Crl. Law should not be retrospective. In order to convict a person, a law must be in force at
the time the act was committed.

• CRIME AND TORT

• 1. TORT is an infringement of a private right; it is a private wrong. CRIME is a public wrong.

• 2. In tort, action is brought by aggrieved individual; In crime, State is aggrieved and it brings
the action.

• 3. Damages is the remedy for tort except for malicious prosecution; In crime, object is to
punish the criminal.

• 4. Tort is considered less serious; crime is more serious and it is the duty of the state to
prevent crime.

• ELEMENTS OF CRIME

• 1. A human being

• 2. Mens rea

• 3. Actus reus

• 4. Injury

• 1. A human being - Crime is done by a person. Act prohibited is done by a person. “Person
includes any Company or Association or body of persons, whether incorporated or not”.

• In ancient times, even animals were punished. Now under IPC and BNS, for injuries caused
by an animal, person responsible for the act of the animal is punishable.

• 2. Mens rea (guilty mind)

• Two components to every crime – a physical element (actus reas) and a mental element
(mens rea)

• “Actus non facit reum, nisi mens sit rea” – an act alone does not amount to guilt, unless it is
accompanied by a guilty mind.

• “Mens Rea” /criminal intent/guilty mind refers to the person’s state of mind at the time the
act was committed.

• Intention – person is fully aware of the act or omission and also consequences of such act.

• He knows that his act is forbidden or unlawful.

• IPC/BNS – says that offence must be done maliciously, dishonestly, fraudulently,

intentionally, negligently or knowingly to make it an offence. These terms indicate the
intention or state of mind of the accused.

• Nathulal v. State of Madhya Pradesh (AIR 1966 SC 43)

• To commit a criminal offence, mens rea is generally taken to be an essential element of

crime. For example, a person who is suffering from a mental disorder cannot be said to have
committed a crime as he does not know what he is doing
• Normally full definition of every crime predicates a proposition expressly or by implication as
to a state of mind. If the mental element of any conduct alleged to be a crime is absent in
any given case, the crime so defined is not committed.

• State of Maharashtra v. Mayer Hans George (AIR 1965 SC 722)

• Statute may be silent as to any requirement of mens rea. In such a case, in order to
determine whether or not mens rea is an essential element of the offence, it is necessary to
look at the objects and terms of the statute.

• Offence without mens rea – S. 147 waging war, strict liability

• INTENTION AND MOTIVE

• Intention refers to immediate object while motive refers to remote, final or ultimate object

• Intention is operation of the will directing the overt act; motive is the last and final step in
the direction of the act;

• intention is the prior step in an act; motive is the feeling which prompts the operation of the
will. Motive is thus the end

• Motive is not essential to find an offender guilty. Prosecution is required to prove mens rea
in every crime but not motive.

• Absence of motive is however an important factor where there is no direct evidence against
the accused.

• INTENTION AND KNOWLEDGE both relate to mental attitude and may also go together.

• But there may be intention without knowledge and vice versa

• Knowledge is awareness of the consequences of one’s act. Intention is a state of mind.

• 3. ACTUS REAS – Act or omission

• A person may be convicted of a crime for

• 1. an act or mission done by him or responsibility attributed to him. The act or omission is
forbidden by criminal law and that act or omission caused certain event or state of affairs.

• 2. He had a defined state of mind in doing such act or omission or causing the event or
existence of the state of affairs.

• The event is called actus reas and the state of mind, the mens rea of the crime.

• 4. INJURY

• Injury “denotes any harm whatever illegally caused to any person, in body, mind, reputation
or property. (S. 2(14)

• Injury is thus harm caused to any person’s body, mind, reputation or property.

• Mitigating circumstances and other defences (or exceptions)

• Even though actus reas and mens rea are present, in some situations law excuses or justifies
use of force, even deadly force (General Exceptions)
• STAGES OF CRIME

• 1. Intention to commit it

• 2. Preparation to commit it

• 3. Attempt to commit it – If attempt fails, crime is not complete. (Yet law punishes attempt to
commit the same).

• 4. Commission of the offence.

• INTENTION

• Mere intention without it being followed by an act, cannot constitute an offence.

• Intention should mature into action

• PREPARATION AND ATTEMPT

• Preparation is devising or arranging the means or measures for commission of offence.

• Attempt is direct movement towards commission after preparations are made.

• Preparation and attempt -- explained by SC in Malkiat Singh & Anr v. State of Punjab (AIR
1970 SC 713)

• If a man buys a box of matches, he cannot be convicted of attempt to arson, however clearly
it may be proved that he intended to set fire to haystack at the time of purchase.

• He cannot be convicted of his offence if he approaches the stack with the matches in his
pocket.

• But if he bends down near the stack and lights a match which he extinguishes on perceiving
that he is being watched, he may be guilty of attempt to burn it.

• ‘A’ buys poison intending to cause B’s death. If he doesn’t anything more, it is preparation. If
A mixes poison in the food to be given to B, and serves it to B, it is attempt.

• Preparation is not punishable except in case of dacoity – S. 310(4).

• It is preparation if he changes his mind and does not proceed further in its progress, the
acts already done would be completely harmless.

• Attempt is an act done with intent to commit that crime, and forming part of a series of
acts which would constitute its actual commission if it were not interrupted.

• To convict a person for attempt to commit a crime, it must be shown that

• 1. He had an intention to commit the offence

• 2. He had done an act which constituted the actus reus

• Acts which are merely preparatory to commission of a crime has to be distinguished from
acts which are sufficiently proximate to committing crime.

• COMMISSION OF AN OFFENCE:
• If attempt with intention to commit the crime is successful, the act or series of acts result in
actual commission of the crime.

• PENAL LIABILITY

• Liable means “bound or obliged by law”. Liability means “obligation to do a particular thing”.
In criminal law, liability covers every form of punishment to which a person subjects
himself by violating the law of the land.

• INDIVIDUAL LIABILITY

• General principle: Every person is liable for his own actions and omissions

• One is liable for what he has done which he should not have done or he failed to do which
he ought to have done.

• Maxim “Qui facit per alium facit per se (he who acts through another, acts by himself) is not
generally applicable to criminal law.

• VICARIOUS LIABILITY

• In certain cases, IPC/BNS makes a person liable for an act or omission of others – where the
act is done in furtherance of common intention or common object, in criminal conspiracy
etc. In abetment also, person is not directly involved but he is liable.

• STRICT LIABILITY

• There are exceptions to the rule that actus reas + mens rea only constitute an offence.

• One such exception is absolute or strict liability. A statute may impose liability on a person
doing something, irrespective of his intention and he will be held liable for the act. NDPS
ACT, Registration of vehicle, licence, public nuisance.

• RIGHT TO DEFEND (Art. 20, 21)

• Every accused person is presumed to be innocent until proved guilty. Prosecution has to
prove the charge against the accused beyond reasonable doubt.

• Accused has right to defend himself by engaging a lawyer of his choice. If he does not have
means, it is state’s duty to appoint counsel and provide free legal assistance.

• SPEEDY TRIAL – Art. 21 – a fundamental right

• IPC/BNS is substantive law.

• It defines criminal offences and prescribes penalties or punishment.

• S. 1 : The Act applies to all persons regardless of nationality

• INTRA TERRITORIAL AND EXTRA-TERRITORIAL JURISDICTION

• S.1(3) Every person shall be liable to punishment under this Samhita and not otherwise for
every act or omission contrary to the provisions thereof, of which he shall be guilty within
India. (S. 2 IPC)

• 1(4) Any person liable to be tried for an offence committed beyond India shall be dealt with
in the same manner as if such act had been committed within India. (S. 3 IPC)
• Jurisdiction of a criminal court is decided on the basis of place of crime. Any person
committing a crime in India shall be punishable under BNS, irrespective of citizenship,
nationality, race, religion, caste etc., except those who are exempted.

• This is based on principle -- “Crime carries the person” (crimen trahit personam).

• If a foreign national commits an unlawful act, he cannot plead ignorance of law, nor can he
justify his act stating that in his country said act is not an offence

• EXEMPTION FROM CRIMINAL LIABILITY

• Certain categories of persons are exempted from criminal liability. They are:

• 1. foreign sovereigns

• 2. UN officials

• 3. foreign ambassadors, diplomats, envoys

• 4. alien enemies

• 5. President and Governors

• 6. Foreign Armies

• 7. Warships etc.

• OFFENCES COMMITTED OUTSIDE INDIAN TERRITORY

• U/s. 1(4), though offence is committed outside Indian territory, person may be tried within
India if two conditions are fulfilled:

• 1. There is an allegation that the person (citizen or not) has committed, outside India an act
which, If committed in India, would be punishable under BNS

• 2. The person is liable under some Indian law to be tried in India for that offence

• Subject to the conditions, he will be dealt with in the same manner as if the culpable act had
been committed in India.

• S. 1(5): provisions of BNS apply to any offence committed by— (S.4 IPC)

• (a) any citizen of India in any place without and beyond India;

• (b) any person on any ship or aircraft registered in India wherever it may be

• (c) any person in any place without and beyond India, committing an offence targeting a
computer resource located in India.

• Expl: “offence” includes every act committed outside India which if committed in India would
be punishable.

• Ill: A, who is a citizen of India commits a murder in a place without and beyond India. He can
be tried and convicted of murder in any place in India in which he may be found.

• Principle: Jurisdiction of court is not lost by reason of venue of the offence. But a foreign
citizen cannot be tried for his act outside India, even if he acquires Indian citizenship later.
• Ship is a floating island and belongs to the country whose flag it is flying. Admiralty
jurisdiction applies where an offence is committed on a foreign ship in Indian waters,
offender can be tried under BNS.

• A person targeting Computer resource in India from anywhere is also liable.

• S. 1(6): Nothing in BNS shall affect the provisions of any Act for punishing mutiny or
desertion of officers, sailors, soldiers or airmen in the services of the Govt. of India or
provisions of any special or local law, as defined in S. 2(30) and 2(18)

• PIRACY

• Piracy is an act of dacoity or robbery committed on a ship or vessel at sea. If committed on

land, it is a felony. Pirates have no authority or permission from any state or Sovereign. It is
an offence against international law. A pirate is therefore subject to arrest, trial and
punishment by all States as enemy of mankind. Even an attempt of piracy is punishable
(piracy jure gentium).

• Admiralty jurisdiction is to try offences committed on high seas and in territorial waters.

• EXTRADITION

• Extradition is an act of surrendering by one State to another of a person required to be dealt

with a crime for which he has been accused or convicted. It is based on two principles:

• 1. It is in the interest of all civilized societies that no criminal should go unpunished.

• [Link] State should allow its territory to become a place of refuge for criminals of other
countries

• S. 2 DEFINITIONS

• S. 2(1) (S. 33 IPC) “act” denotes as well a series of acts as a single act

• S. 2(25) (S. 33 IPC) “omission” denotes as well a series of omissions as a single omission

• Om Prakash v. State of Punjab, (AIR 1961 SC 1782)

• A married woman was ill-treated by her husband. She was deliberately starved and not
allowed to leave the house. She managed to escape and went to a Hospital. Her brother
made a complaint and doctor also sent a note to police saying she was seriously ill and might
collapse any moment.

• SC observed, ‘act’ does not mean only any particular, specific, instantaneous act of a person,
but denotes as well, a series of acts.

• Court held that the course of conduct adopted by the husband in regularly starving his wife
comprised a series of acts and it come within the purview of S. 307 (attempt to murder) (S.
109 BNS)

• S. 2(2) (S. 47 IPC) “animal” means any living creature, other than human being

• S. 2(3) ‘Child” means any person below the age of 18 years (not defined in IPC)

• Word minor is not used in BNS

• S. 2(4) (S. 28 IPC) “counterfeit” as per the definition

• 1. A person causes one thing to resemble another

• 2. he does so with intention to practise deception by means of resemblance, or

• 3. He does so with knowing it to be likely that deception will thereby be practised.

• Such person is said to counterfeit.

• Explanation: The counterfeiting need not be a total imitation of the product. There should
be intention to deceive another with close resemblance of the actual thing.

• 2. Presumption and burden of proof: 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

• His intention was to practise deception by means of that resemblance, or

• He knew it to be likely that deception would thereby be practised.

• The burden is on accused to prove his innocence with explanation.

• Narayan Maruti Waghmode v. State of Maharashtra (2011 CrLJ 3318 (Bom)

• Definition states that imitation is not required to be exact. It also says that it is not necessary
that counterfeit note should be made with primary intention of its being looked as genuine.
It is sufficient if resemblance to genuine currency note is so caused that it is capable to being
passed as such.

• S. 2(5) (S. 20 IPC) “ Court” denote (a) a Judge who is empowered by law to act judicially
alone, or (b) a body of Judges which is empowered by law to act judicially as a body, when
such judge or body of judges is acting judicially.

• S. 2(16) (S. 19 IPC modified)

• Word ‘Judge’ denotes not only every person who is officially designated as a Judge, but also
every person

• (a) who is empowered by law to give, in any legal proceeding, civil or criminal

• i. a definitive judgment, or

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

• iii a judgment which, if confirmed by some other authority would be definitive, or

• (b) who is one of a body or persons, which body of persons is empowered by law to give
such a judgment

• (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.

• Three ingredients are required for a Judge:

• 1. person is empowered by law

• 2. there should be a legal proceeding; and

• 3. he should give a definitive judgment

• Three categories of judges are included

• 1. persons who are officially designated as Judges

• 2. persons who are empowered to deliver judgment (Officers with judicial power)

• 3. One, who is a member of a body of persons competent to give a judgment (Tribunals)

• S. 2(6) (S. 46 IPC) “Death” means death of a human being unless the contrary appears from
the context.

• S. 2(7) (S. 24 IPC) “dishonestly”

means doing anything with the
intention of causing wrongful gain to one person or wrongful
loss to another person
• S. 2(36) “wrongful gain” means gain by unlawful means of property to which the person
gaining is not legally entitled.

• 2(37) “wrongful loss” means the loss by unlawful means of property to which the person
losing it is legally entitled

• 2 (38) “gaining wrongfully” and “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 lose wrongfully when such person is wrongfully kept out of any property, as well as
when such person is wrongfully deprived of property. (S. 2(36), (37), (38) is same as S. 23
IPC).

• K.N. Mehra v. State of Rajasthan AIR 1957 SC 369)

• The gain or loss contemplated need not be a total acquisition or a total deprivation but it is
enough if it is a temporary retention of property by the person wrongfully gaining or a
temporary “keeping out” of property from the person legally entitled.

• Reading definitions 2(7), (36), (37) and (38) 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

• It is his intention to cause loss, by wrongful means, of property to which the person so losing
is legally entitled.

• S. 2(8) (S. 29 IPC) “document” means

• 1. any matter expressed or described upon any substance

• By means of letters, figures or marks or by more than one of those means

• 2. it includes electronic and digital record

• 3 such matter is intended to be used or which may be used as evidence of that matter.

• It is immaterial by what means or upon what substance the letters, figures or marks are
formed, or
• It is immaterial whether the evidence is intended for, or may be used in, a court of justice or
not.

• Illustrations

• (a) A writing expressing the terms of a contract, which may be used as evidence of the
contract, is a document.

• (b) A cheque upon a banker is a document

• (c) A power of attorney is a document

• (d) A map or plan which is intended to be used or which may be used as evidence, is a
document

• (e) A writing containing directions or instructions is a document.

• 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 back of a bill of exchange payable to his order. Meaning of
endorsement, as per mercantile usage, is that the bill is payable to holder.

• The endorsement is a document, and must be construed in the same manner as if the words
“pay to holder” or words to that effect had been written over the signature.

• S.2(9) (S. 25 IPC): “Fraudulently”: A person is said to do a thing

fraudulently, if
• 1. he does that thing with intent to defraud

• 2. but not otherwise

• Fraud is not defined in BNS but in S. 17 Contract Act.

• Surendranath Ghose v. Emperor (1911 ILR 38 Cal 75):

• Intent to defraud implies - Conduct coupled with intention to deceive and thereby to injure.

• Word ‘defraud’ involves two conceptions viz., deceit and injury to the person deceived, that
is, an infringement of some legal right possessed by him, but not necessarily deprivation
of property.

• Dr. Vimla v. Delhi Administration (AIR 1963 SC 1572)

• Dr. Vimla purchased a motor car with her own money in her minor daughter’s name.
Insurance policy was transferred by her in the name of minor daughter by signing her name.
In respect of 2 accident claims, Dr. Vimla received compensation by signing the claim forms
and receipts as Nalini, her daughter.

• SC held, Dr. Vimla was guilty of deceit and observed that:

• “Expression “defraud” involves two elements, namely deceit and injury to the person
deceived.

• Her act of deceit did not either secure to her advantage or cause any non-economic loss or
injury to the insurance company. It is a non-economic or non-pecuniary loss.

• A benefit or advantage to deceiver will almost always cause loss or detriment to the
deceived. Even in those rare cases where there is a benefit or advantage to the deceiver,
but no corresponding loss to the deceived, the second condition of injury is satisfied.

• SC compared ‘defraud’ and ‘dishonestly’ and observed as follows:

• The word ‘defraud’ includes an element of deceit

• Deceit is not an ingredient of definition of word “dishonestly” while it is an important

ingredient of the definition of word “fraudulently”

• Former involves a pecuniary or economic gain or loss while the latter by construction
excludes that element.

• Md. Ibrahim v. State of Bihar (2009) 8 SCC 751:

• To ‘defraud’ or do something ‘fraudulently’ is not by itself an offence under IPC (BNS). But
various acts when done fraudulently or “fraudulently and dishonestly” are made offences.

• Therefore, by merely alleging or showing that a person acted fraudulently, it cannot be said
that he committed an offence punishable u/BNS or any other law unless that fraudulent act
is specified to be an offence u/BNS or any other law.

• S. 2(1) (S. 8 IPC)“gender”. Pronoun “he” and its derivatives are used of any person, whether
male, female or transgender

• Explanation: Transgender shall have the meaning assigned in S. 2(k) of Transgender Persons
(Protection of Rights Act. 2019.

• Inclusion of transgender in the definition of ‘he’ is a modification in BNS.

• S. 2(11) (S. 52 IPC) “good faith”: Nothing is said to be done or believed in

good faith, which is done or believed without due care and attention.
• S.K. Sundaram v. Unknown (2000 Crl LJ 2932):

• “Good faith” is what is done with “due care and attention” - denotes the degree of
reasonableness in the care sought to be exercised.

• “Reasonable care” is “such a degree of care, precaution or diligence as may fairly and
properly be expected or required, having regard to

• The nature of the action, or --of the subject matter and -- circumstances surrounding the
transaction – (Black’s Law Dictionary)

• It is such care as an ordinary prudent person would exercise under conditions existing at the
time he is called upon to act”

• Sukaroo Kobiraj v. The Empress (1887) ILR 14 Cal 566)

• Accused caused death of a woman patient by performing a very dangerous operation,
namely, cutting out of internal piles. Consequently, patient died.

• Accused contended that he did the act in good faith, without any intention to cause death
and for benefit of patient. Patient accepted the risk and the act was not an offence as stated
in S. 88 IPC (S. 26 BNS).

• Calcutta High Court held that accused had not acted in good faith as defined in S. 52 IPC
(2(11) BNS) for the reason that he did the operation without due care and attention and he
was an uneducated person in matters of surgery and with no regular education in matters of
medicine.

• S. 2(12) (S. 17 IPC) “Government” means the Central Govt. or a State Govt.

• S. 2(13) “harbour”: word “harbour” includes supplying a person to evade apprehension,

• With shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the
assisting of a person by any means,

• Whether of the same kind as those enumerated in this section or not.

• S. 2(14) (S. 44 IPC): Word ‘injury’ denotes any harm

• (a) whatever illegally caused to any person,

• (b) in body, mind, reputation or property

• Illustrations: Bodily harm, property damage, Defamation, causing annoyance

• S. 2(15) (S. 43 IPC) “illegal” and “legally bound to do”

• Word “illegal” is applicable to everything

• (a) which is an offence, or -- (b) which is prohibited by law, or --

• (c) which furnishes ground for a civil action

• Legally bound to do: When a person is compelled by law to do an act, he is legally bound to
do and it is illegal if he omits to do it.

• (S. 33 BNSS: every person is legally bound to give information to the nearest Magistrate or
police officer about commission of an offence or intention of any other person to commit
such offence)

• Zeenath v. Kadeeja (2007 Cri LJ 600): Kerala High Court observed that

• Expression “illegal” and “unlawful” are synonymous and convey the same idea in ordinary
and legal language.

• When a statute employs an expression with intention of conveying a special meaning and
with the said purpose defines the expression in such statute as the expression “illegal” is
defined in S. 43 IPC (S. 2(15) BNS)

• S. 2(17) (S. 45 IPC): “Life” means the life of a human being unless the contrary appears from
the context
• S. 2(21) (S. 22 IPC with modification): “movable property” includes property of
every description, except land and things attached to the earth or permanently fastened to
anything which is attached to the earth.

• Movable property includes property of every description except

• Land and things attached to the earth, or

• Permanently fastened to anything which is attached to the earth

• Following are not movable assets:

• Land, things attached to the earth, house constructed on land, permanently fastened to
anything which is attached to the earth; Doors or windows in the house.

• S. 2(22) (S. 9 IPC)

• Unless the contrary appears from context, words importing

• -- singular number include the plural number and

• Words importing -- plural number include the singular number – “he” applies to multiple
individuals

• S. 2(23) (S. 51 IPC): “Oath” includes a solemn affirmation substituted by law for an oath, and
any declaration required or authorised by law to be made before a public servant or to be
used for the purpose of proof, whether in a court or not.

• S. 2(24) (S. 40 IPC) “Offence” means a thing made punishable by BNS

• Under two clauses, it gives a different definition for certain specific section

• S. 2(25) omission ( see act)

• S. 2(26) (S. 11 IPC): “Person” includes any Company or Association or

body persons, whether incorporated or not. (same as S.3(42) Gl. Clauses Act, 1897)
• Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd. (AIR 2021 SC 4587)

• Corporate entity is an artificial person which acts through its officers, Directors, Managing
Director, Chairman etc. If such company commits an offence involving mens rea, it would
normally be intent and action of that individual who would act on company’s behalf. It is
more so, when criminal act is that of conspiracy.

• Cardinal principle of criminal jurisprudence is that there is no vicarious liability unless statute
specifically provides so.

• An individual who has perpetrated commission of an offence on behalf of a company can be

made an accused along with the company, if there is sufficient evidence of his active role
coupled with criminal intent.

• 2. He can be implicated in those cases where the statutory regime itself attracts the doctrine
of vicarious liability, by specifically incorporating such a provision
• When company is the offender, vicarious liability of Director cannot be imputed
automatically, in absence of any statutory provision to this effect. (S. 141 NI Act)

• S. 2(29) (S. 26 IPC): “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.

• Joti Parshad v. State of Haryana (AIR 1993 SC 1167):

• Guilt in respect of almost all offences is fastened either on the ground of intention or
knowledge or reason to believe.

• Knowledge is an awareness on part of person concerned indicating his state of mind. Reason
to believe is a higher level of state of mind.

• Knowledge is slightly on higher plane than “reason to believe”. A person can be supposed to
know, where there is a direct appeal to his senses and a person is presumed to have a
reason to believe if he has sufficient cause to believe same

• S. 2(31) (S. 41 IPC) Special law means a law applicable to a particular subject (Medical
termination of pregnancy Act; Juvenile Justice (Care and Protection Act)

• S. 2(32) (S. 30 IPC): Valuable security denotes

• 1. a document which is, or purports to be, a document

• 2. such document creates, extends, transfers, restricts, extinguishes or releases any legal
right or

• 3. by such document, a person acknowledges that

• He lies under legal liability or

• Has no a certain legal right.

• Expression include not only documents of title to immovable property (sale/mortgage deed)
but also such documents as promissory notes, bonds, Govt. Securities etc.

• Daniel Hailey Walcott v. State (AIR 1968 Mad 349: A passport creates a legal right, and
therefore a valuable security within S. 30 IPC.

• S. 2(32) (S. 48 IPC) “vessel” means anything made for the conveyance by water of human
beings or property.

• S. 2(33) (S. 39 IPC) “voluntarily”

• 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.

• Ill: ‘A’ sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating
a robbery and thus causes death of a person.
• A may not have intended to cause death. Yet, if he knew that he was likely to cause death, he
has caused death voluntarily.

• If an act is probable consequence of the means used by him, a person is said to have caused
it voluntarily. Whether he really meant it or not is immaterial.

• S. 2(34) (S. 32 IPC) “Will” means any testamentary document

• S. 2(35) (S. 10 IPC): “woman” means a female human being of any age

• S. 2(39) (new section) Words and expressions used but not defined in BNS but defined in IT
Act, 2000 and BNSS 2023 shall have the meaning respectively assigned to them in that Act
and Sanhita)

• GENERAL EXPLANATIONS

• S. 3(1) (S. 6 IPC) Every definition of an offence, every penal provision and every illustration of
every such definition or penal provision shall be understood, subject to exceptions contained
in Ch. “General Exceptions”, though those exceptions are not repeated in such definition,
penal provision or illustration.

• General exceptions contained in S. 14 to 44 make an offence a non-offence. General

exceptions are of universal application.

• Shankar Narayan Bhadolkar v. State of Maharashtra (AIR 2004 SC 1996)

• Legislature by S. 6 (S. 3(1) BNS) enacted that all definitions must be regarded as subject to
general exceptions. Therefore, general exceptions are part of definition of every offence. But
burden to prove their existence lies on the accused.

• S. 3(2) (S. 7 IPC): Every expression which is explained in any part of BNS, is used in every part
of BNS in conformity with the explanation.

• Object is to ensure that a word which occurs at one place in BNS is given same meaning
throughout BNS.

• S. 3(3) (S. 27 IPC): When property is in possession of a person’s spouse or clerk or servant, on
account of that person, it is in that person’s possession.

• Ex; 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.

• S. 3 (4) (S. 32 IPC): Except where a contrary intention appears from the context, words which
extend to acts done extend also to illegal omissions.

• S. 2(1) and 2(25) also deal with omission. Criminal liability for an omission is well accepted
where person acting has a legal duty and capacity to act. Inaction often carries no implication
of intention unless it is shown that person acting knows of his duty to act and the
opportunity to do so.

• Liability for omission requires a legal duty to act.

• S. 3(5) (S. 34 IPC: 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 it
were done by him alone.

• DOCTRINE OF CONSTRUCTIVE OR VICARIOUS PENAL LIABILITY

• S. 3(5) and 3(6) deal with individual responsibility for single criminal act perpetrated by a
large number of persons who either share a common intention or possess the criminal
knowledge

• S. 3(8) deals a single criminal act done, perpetrated with co-operation between several
accused in the completion of the criminal act.

• S. 3(9) provides that responsibility for the completed criminal act may be of different grades
according to the share taken by the different accused in the completion of the criminal act.
This sub-section does not mention about intention, common or otherwise, or knowledge

• Ingredients of S. 3(5) Common intention

• 1. A criminal act is done 2. Such act is done by several persons

• 3. it is done in furtherance of common intention of all

• Each of such persons is liable for that act in the same manner as if it was done by him alone.

• CONSTRUCTIVE CRIMINAL LIABILITY:

• S. 3(5) deal with constructive criminal liability.

• If common intention leads to commission of the criminal offence charged, each one of the
persons sharing the common intention is constructively liable for the criminal act done by
one of them.

• Chhota Ahirwar v. State of M.P. (2020) 4 SCC 126: SC considered the scope of common
intention in S. 34 IPC (3(5) BNS) and held as follows:

• Joint liability: It is a settled principle of criminal law that person who actually commits the
offence can be held guilty and sentenced in accordance with law. However, S. 34 lays down a
principle of joint liability in a criminal act. Essence of liability is to be found in existence of
common intention, instigating the main accused to do the criminal act in furtherance of such
intention

• Separate acts: Even when separate acts are done by two or more persons in furtherance of a
common intention, each person is liable for result of all the acts as if all the acts had been
done by all of the persons.

• Intention of each one known to others: There must be a common intention to commit the
particular offence. To constitute common intention, it is absolutely necessary that intention
of each one of the accused should be known to rest of the accused.

• No overt act needed: To attract S. 34 IPC (S.3(5) BNS), no overt act is needed on the part of
the accused, if they share common intention with others in respect of the ultimate criminal
act. Such act may be done by any one of the accused sharing such intention.
• To be inferred from proved facts: Common intention can only be inferred from proved facts
and circumstances

• Common intention implies acting in concert: Existence of pre-arranged plan has to be

proved either from conduct of accused or from circumstances or from any incriminating
facts. Same intention independently of each other is not enough.

• In Joginder Singh v. State of Haryana (AIR 1994 SC 4610), SC observed:

• To be inferred: Common intention must be anterior in time to commission of the crime.

Intention of the individual has to be inferred from the overt act or conduct or from other
relevant circumstances

• Circumstances: Totality of circumstances must be taken into consideration in order to arrive

at a conclusion whether accused had a common intention to commit the offence under
which they could be convicted.

• On the spot: Pre-arranged plan may develop on the spot. All that is necessary in law, is the
said plan must precede to act constituting the offence.

• Where participation of accused in a crime is proved and common intention is also

established, S. 34 (S. 3(5) BNS) would come to play – Ram Naresh v. State of UP (2023 INSC
1037).

• To attract S. 34 (S. 3(5) BNS), it is not necessary that there must be a prior conspiracy or
premeditated mind. Common intention can be formed in the course of the incidence i.e.
during the occurrence of the crime.

• Common intention can be formed just a minute before the actual act happens. It is a
psychological fact as it requires prior meeting of minds. In such cases, direct evidence
normally will not be available and in most cases, common intention has to be determined by
inference from the facts proved.

• To attract S. 3(5), two factors must be established: (1) common intention and (2)
participation. If common intention is proved but no overt act is attributed to the individual
accused, S. 3(5) will be attracted as essentially it involves vicarious liability.

• But if participation of accused in the crime is proved and common intention is absent, S. 3(5)
cannot be invoked.

• S. 3(6)(S. 35 IPC): Act done with a criminal knowledge or intention:

• 1. An act is criminal only by reason of its being done with a criminal knowledge or intention

• 2. Such act is done by several persons

• 3. Each of such persons who joins in the act with such knowledge of intention is liable for the
act in the same manner as if the act were done by him along with that knowledge or
intention.

• S. 3(6) lays down that every person, based on his intention or knowledge, is liable for the act
as if it had been done by him alone.

• If all had the same intention or knowledge, then all should be punished equally
• Ill: A, B and C were separately in enmity with D. There was no common intention or purpose.
All had the same intention to attack him. On a certain, they attacked D as follows:

• A attacked D with a gun. He is guilty of murder

• B attacked D with a knife to grievous hurt. He is guilty of voluntarily causing grievous hurt

• C attacked D with a stick to cause hut. He is guilty of voluntarily causing hurt.

• S. 3(7) (S. 36 IPC): 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 omission is the same offence.

• Ill: A intentionally causes Z’s death, partly by illegally omitting to give Z food and partly by
beating Z. A has committed murder.

• 1. The causing of a certain effect, or an attempt to cause that effect by an act or omission, is
an offence.

• 2. It is to be understood that the causing of that effect partly by an act and partly by an
omission is the same offence.

• Sushil Ansal v. State (2014) 6 SCC 173

• Uphar Cinema fire was one of the worst fire tragedies in India. Fire accident took place in a
cinema theatre in Delhi. There were electrical faults and repairs were conducted to
transformer in an unsatisfactory manner earlier that day and power supply was restored. In
the evening, loose connection in the transformer caused intense and heavy sparking and fire
accident. Fire and smoke caused death of 59 persons and left many injured.

• SC held accused guilty under S. 304A IPC (S. 106 BNS) – Causing death by negligence

• S. 337 & 338 IPC (S. 125 BNS) Causing hurt by act endangering life or personal safety of
others (S. 125 BNS) read with S. 36 IPC (S. 3(7) BNS (Effect caused partly by act and partly by
omission)

• S. 3(8) (S. 37 IPC) When an offence is committed by means of several acts, whoever
intentionally cooperates in commission of that offence by doing any one of those acts, either
singly or jointly with any other person, commits that offence.

• Illustrations:

• A and B agree to murder Z by severally and at different times giving him small dozes poison,
A and B administer the poison according to the agreement with intent to murder Z. Z dies
from the effects of the several dozes of poison so administered. Here A and B intentionally
cooperate in the commission of murder and each of them does an act by which death is
caused. Both are guilty of murder though their acts are separate.

• A, a jailor, has charge of Z, prisoner. A, intending to cause Z’s death, illegally omits to supply Z
with food. In consequence, Z is much redued in strength, but starvation is not sufficient to
cause his death. A is dissed from his office. B succeeds him. B, without collusion or
cooperation with A, illegally omits to supply Z with food, knowing that he is likely thereby to
Z’s death. Z dies of hunger. B is guilty of murder. But since A did not cooperate with B, he is
guilty only of attempt to commit murder.
• S. 3(9) (S. 38 IPC): 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.

• U/s. 3(9), A person is only responsible ordinarily for what he does. S. 3(9) ensures that.
Responsibility for the completed criminal act may be of different grades according to share
taken by different accused in the completion of the criminal act. S. 3(9) does not mention
anything about intention, common or otherwise, or knowledge.

• Illustrations:

• A attacks Z under such circumstances of grave provocation that his killing of Z would be only
culpable homicide not amounting to murder.

• B having ill-will towards Z and intending to kill him, and not having been subject to
provocation, assists A in killing Z.

• Here, A and B are both engaged in causing Z’s death. B is guilty of murder as the act was with
intention to kill and A is guilty on only culpable homicide as the act was on grave
provocation.

• CHAPTER II – OF PUNISHMENTS

• R. G. Goswami v. Delhi Administration (AIR 1973 SC 1457):

• Main purpose of sentence … accused must realise that he has committed an act, which is
harmful to the society of which he is an integral part and to his own future, both as an
individual and as a member of the society.

• Punishment is designed to protect society by deterring potential offenders as also by

preventing guilty party from repeating the offence;

• to reform and reclaim the offender as law abiding citizen for good of the society as a whole.

• Reformatory, deterrent and punitive aspects of punishment thus play their due part in
judicial thinking while determining this question. In modern civilized societies, reformatory
aspect is being given greater importance.

• Too lenient and too harsh sentences lose their efficaciousness. One does not deter and the
other may frustrate, making offender a hardened criminal.

• PRINCIPLES OF PUNISHMENT

• 1. Deterrent Theory

• 2. Retributive Theory

• 3. Preventive Theory

• 4. Reformative Theory

• 5. Theory of Compensation

• 1. DETERRENT THEORY advocates for harsh penalties to deter offenders from committing
crime in future. This theory presumes that severe punishment will discourage offender and
others from engaging in criminal activities. In ancient times, even minor crimes were met
with severe and inhumane punishments.
• Punishment should serve as a warning to wrong-doers and like-minded persons

• Aim is to deter future crimes and enhance societal well being

• Theory assumes that criminals derive mental satisfaction or pleasure from their acts and
equivalent pain should be inflicted on him deterring future offences.

• This theory fails often as the convicted criminal has a tendency to re-offend and return to
prison after committing new offences.

• 2. RETRIBUTIVE THEORY

• Oldest and the most brutal of all punitive doctrines.

• Seeks to eliminate crime through retribution – no focus on social welfare and safety

• Based on the principle of “eye for an eye; a tooth for a tooth”

• Advocates that punishments must be proportionate to the crime committed.

• Assumes that retributive justice provides solace to the victim or family

• 3. THEORY OF DETERRENCE/PREVENTIVE THEORY

• By implementing punishments, it aims to prevent crime

• Punishment is viewed from humane perspective recognising societies’ need for protection
from further crime.

• By detaining criminals, society is safeguarded from anti-social elements.

• Ex: Revoking a convicted driver’s licence serves as a deterrent.

• 4. REFORMATORY THEORY

• Punishment is a curative measure, to prevent crime and rehabilitate offenders.

• Aims to transform criminals into law abiding citizens.

• Opposes corporal punishment

• Ex: S. 401 BNSS allows court to release offender on probation of good conduct or after
admonition.

• Community service is recognized as a form of punishment for certain offences.

• Effective for reforming juveniles and first-time offenders but less so for serious criminals.

• This theory is also criticised – some criminals are incorrigible, incurable and hardened.

• 5. THEORY OF COMPENSATION

• Punishment should also involve compensation to the victim. BNS recognizes it.

• S. 124: voluntarily causing grievous hurt by acid will attract fine to cover victim’s medical
expenses, which must be paid to the victim.

• Victim suffering grievous hurt and in vegetative existence are compensated out of fine
imposed.
• Similarly, compensation to rape victims are paid out of fine imposed

• Bhim Singh v. State of J & K (AIR 1986 SC 494)

• Bhim Singh, MLA was not allowed to attend assembly session and was illegally detained.
Compensation of Rs. 50,000 was awarded as he was deprived of his fundamental rights.

• PUNISHMENTS

• Under BNS, punishments to which offenders are liable are:

• A. Death

• B. Imprisonment for life

• C. Imprisonment - two descriptions – Rigorous (with hard labour) and simple

• D. Forfeiture of property

• E. Fine

• F. Community service

• S. 53 IPC enumerated punishments. Community service is a new addition.

• DEATH SENTENCE

• Known also as capital punishment is the most severe form of legal punishment.

• It is awarded for the most heinous offences – murder, Gang rape, terrorism.

• Death sentence is awarded only in rarest of rare cases.

• In Bachan Singh v. State of Punjab (AIR 1980 SC 8980), SC observed that life imprisonment is
the rule and death sentence an exception.

• LIFE IMPRISONMENT

• Life imprisonment is a severe form of punishment where convicted individual is sentenced to

spend remainder of his life in prison. It is an alternative to death penalty and is awarded for
serious crimes - murder, treason and certain aggravated offences.

• For calculating fractions of terms of punishment, S. 6 BNS (S. 57 IPC) provides that life
imprisonment shall be regarded as equivalent to imprisonment for 20 years.

• U/S. 475 BNSS, min. term of imprisonment for an offence where death is one of the
punishments and where death sentence has been replaced, is prescribed as 14 years.

• Except under powers granted to President u/A. 72 and Governor u/A. 161, life sentence
cannot be reduced to less than 14 years, even with earned remissions

• Mulla v. State of U.P. (2010) 3 SCC 580:

• It is open to the sentencing court to prescribe the length of incarceration, especially in cases
where death sentence has been replaced by life imprisonment.
• IMPRISONMENT -is a form of legal punishment where an individual confined to a prison or in
a place declared to be a prison, on conviction, for purposes including detention, retribution,
incapacitation and rehabilitation.

• TYPES OF IMPRISONMENT

• Simple imprisonment: Convict is subject to confinement without hard labour

• Rigorous imprisonment: Convict is required to perform hard labour during the period of
imprisonment.

• FORFEITURE: is aimed to ensure that criminals do not profit from their illegal activities. Legal
assets linked to criminal activities are seized, following judicial procedure and safeguards.

• Ex: S. 154 (Committing depredation on territories of foreign state at peace with GOI. S. 155
(Receiving property taken by war or depredation in S. 153 and 154)

• COMMUTATION OF SENTENCE

• S. 5 BNS (S. 54, 55 and 55A IPC) provides that

• Appropriate Govt. may -Without consent of offender, commute any punishment u/BNS to
any other punishment and commutation should be in accordance with S. 474 BNSS.

• Appropriate Govt, in case of sentence of death or offence against a law relating to executive
power of Union, is Central Govt., and

• In cases where sentence (including death) is for an offence against any law relating to
executive power of State, Govt. of the State

• S. 474 BNSS states

• A sentence of death may be commuted for imprisonment for life

• A sentence of imprisonment for life may be commuted for imprisonment for a term not less
than 7 years

• A sentence of 7 years or more may be commuted for imprisonment for a term not less than 3
years

• A sentence of imprisonment for less than 7 years may be commuted for fine

• A sentence of rigorous imprisonment may be commuted for simple imprisonment

• S.6, which states that for the purpose of calculating fractions of terms of imprisonment,
imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years, unless
otherwise provided.

• S. 62: Attempt to commit an offence punishable with imprisonment for life, where no
express provision is made for punishment of such attempt, shall be punished with
imprisonment for one-half of imprisonment for life.

• For attempt to commit such an offence, imprisonment shall be 10 years.

• Swamy Shraddananda v. State of Karnataka (AIR 2008 SC 3040)

• S. 57 IPC (S.6 BNS) does not in any way limit the punishment of imprisonment for life to a
term of 20 years.

• S. 7 (S. 60 IPC): Where offender is sentenced to imprisonment, sentence

• Can be entirely rigorous imprisonment, or

• Can be entirely simple imprisonment, or

• Can be combination of both, part rigorous and remainder simple

• S. 8(1); Amount of fine. Where no sum is expressed, the amount of fine to which the offer is
liable is unlimited. But it shall not be excessive.

• Quantum of fine is ruinous to a labour and may be easily borne by a trader and absolutely
unfelt by a rich man. Therefore, BNS provides min. and max. fine for most of the offences but
does not fix the amount for some offences, leaving it to the discretion of the court.

• Adamji Umar Dalal v. State of Bombay (AIR 1952 SC 14) – In imposing a fine, it is necessary
to have as much regard to pecuniary circumstances of accused persons as to character and
magnitude of offence, and where a substantial imprisonment is inflicted, an excessive fine
should not accompany except in exceptional cases

• S. 8(2) Default of fine: where offender is sentenced to fine, court may direct that in default
of payment of fine, offender shall suffer imprisonment for a certain term.

• Such imprisonment shall be in excess of any other imprisonment

• (a) to which he may have been sentenced

• (b) he may be liable under a commutation of sentence

• Shanti Lal v. State of M.P. (2007) 11 SCC 24:

• Term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a

person incurs on account of non payment of fine.

• S. 8(2) is applicable to cases

• (a) where offence is punishable with imprisonment as well as fine; and

• (b) where offence is punishable with imprisonment or fine or fine only

• 8(3) Limit to imprisonment in default of fine:

• If offence is punishable with imprisonment as well as fine, imprisonment in default of fine

shall not exceed one-fourth of term of imprisonment which is fixed max. for the offence.

• 8(4) Default imprisonment for non-payment of fine or in default of community service may
be simple imprisonment or rigorous imprisonment to which offender might have been
sentenced for the offence.

• 8(5) Where offence is punishable with fine or community service, default imprisonment shall
be simple.

• Default imprisonment shall not exceed

• (a) 2 months where amount of fine does not exceed Rs. 5000/-
• (b) 4 months where amount of fine does not exceed Rs. 10,000/-

• (c) one year in any other cases

• S. 8(6) Default imprisonment shall terminate when fine is paid or levied by process of law.

• PROPORTION OF FINE

• Imprisonment shall terminate before expiration of default sentence, if

• (a) a proportion of fine is paid or levied and

• (b) term of imprisonment suffered in default is more than proportional to fine still unpaid.

• S. 8(7); LEVY OF AMOUNT: Fine or part of fine remaining unpaid

• (a) may be levied at any time within 6 years after passing of sentence, or

• (b) if, under sentence, offender is liable for imprisonment for more than 6 years, at any time
previous to expiration of that period.

• Death of offender does not discharge from liability any property legally liable for his debts,
after his death.

• Court can take action for recovery of fine u/s. 461 BNSS.

• S. 9(1) Offence made up in parts

• (a) Anything, which is an offence, is made up of parts

• (b) any of which part is itself an offence

• (c) Offender is not punishable for more than one such offence, unless it is expressly provided.

• Illustration:

• A gives Z 50 strokes with a stick. A may have voluntarily caused hurt to Z by the whole
beating as well as by each stroke.

• If A is liable for imprisonment for each stroke, he is liable for imprisonment for 50 years. But
he is liable for one punishment for the whole beating.

• But, while A beats Z and Y interferes and A beats Y also, he will be separately liable for
voluntarily causing hurt to Z and Y.

• S. 9(2) Offender shall not be punished with a more severe punishment that the Court which
tries him could award for any one such offence in following cases:

• (a) An act is an offence and it falls within two or more separate definitions of any law by
which the offence is defined or punished

• (b) where there are several acts

• I) of which one or more than one would by itself or themselves constitute an offence, and

• II) when combined, constitute a different offence.

• If case is governed by first sub section, sentence can be awarded in respect of one offence
only
• If case falls under second sub section, limitation is that offender shall not be punished with a
more severe punishment than the court which tries him could award for any one of such
offence.

• Illustration: A commits robbery B’s house. While committing robbery, he voluntarily causes
injury to B.

• S. 115 – punishment for voluntarily causing hurt : S. 309(4) punishment for robbery.

• S. 309(6) voluntarily causing injury in commission of robbery

• A shall not be punished for any of such offence with a punishment more severe than that the
Court trying him may award

• Tiny v. State (AIR 1952 All 92)

• S. 10: (S. 72 IPC) 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 is doubtful of which of these offence
he is guilty, offender shall be punished for offence with lowest punishment (if same
punishment is not provided for both offence)

• S. 11 Solitary confinement (S. 73 IPC)

• Whenever any person is convicted for offence for which, court has power to sentence him to
rigorous imprisonment, court may by its sentence, order that

• Offender shall be kept in solitary confinement for any portion or portions of imprisonment.

• Solitary confinement shall not exceed

• 1. 3 months in the whole

• 2. one month, if term of imprisonment does not exceed 6 months

• 3. 2 months, if term if more than six months but less than a year

• 4. 3 months, if term is more than one year

• Sunil Batra v. Delhi Administration (AIR 1980 SC 1579)

• No solitary or punitive cell, no hard labour or dietary change as pain additive, no other
punishment or denial of privileges and amenities, no transfer to other prisons with penal
consequences, shall be imposed without judicial appraisal of Sessions Judge and where such
intimation, on account of emergency, is difficult, such information shall be given within two
days of the action.

• SC has again held that solitary confinement cannot be awarded except for prison indiscipline.

• S. 12 (S. 74 IPC) Limit of solitary confinement

• 1. Shall not exceed 14 days at a time

• 2. Interval between 2 spells of solitary confinements shall not be less than 14 days

• If imprisonment awarded exceeds 3 months, solitary confinement shall not exceed 7 days in
any one month of the whole of imprisonment with interval of not less than 7 days

• S. 13 (S. 75 IPC) REPEAT OFFENDER

• A person convicted of an offence punishable under Ch. X (Offences relating to Coin and
Stamps) or Ch. XVII (Offences against property) with imprisonment for 3 years or more, is
again found guilty of any offence under any of the two chapters with imprisonment of like
term, shall be liable for every such subsequent offence to punishment for life, or to
imprisonment up to 10 years.

• CHAPTER III – GENERAL EXCEPTIONS

• General exceptions in Ss. 14 to 44 make an offence a non-offence. It is of universal

application

• S. 3 states “throughout this Sanhita 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 in Ch. III, though those exceptions are not repeated in such definition/penal
provision

• General exceptions are thus part of definition of offence.

• 1. Acts of some categories are excused, even though those acts constitute an offence

• 2. Some acts are justified under certain circumstances – acts done in private defence, out of
necessity

• Burden of proof lies on accused to prove the exceptions. In Harbhajan Singh v. State of
Punjab (AIR 1966 SC 97), SC laid down the standard of proof thus:

• Where burden of an issue lies upon accused, he is not required to discharge that burden by
leading evidence to prove his case beyond a reasonable doubt.

• Test prescribed while deciding whether prosecution has discharged its onus to prove guilt of
accused, is not applicable in case of burden proof of accused.

• Where an accused is called upon to prove that his case falls under an exception, law treats
onus as discharged if accused succeeds in proving a preponderance of probability.

• A MISTATE OF FACT

• Ss. 14 (S. 76 IPC) and 17 (S. 79) deal with acts done under mistake fact.

• S. 14 deals with a person who does something by reason of a mistake of fact in good faith
with a belief that he is bound by law to do it.

• S. 17 also deals with a person who does something by reason of a mistake of fact in good
faith with a belief that he is justified by law, in doing it.

• These sections are not applicable when there is mistake of law.

• U/s. 14, nothing is an offence which is done by

• A person who is bound by law to do it, or

• A person who by reason of a mistake of fact (not by reason of mistake of law) and in good
faith believes himself to be bound law to do it.

• In GOOD FAITH BELIEVE: “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.
• MISTAKE FACT: “A”, an officer of a court of justice was ordered by that Court to arrest ‘Y’.
After due enquiry, believing Z to be Y, officer arrested Z. A has committed no offence.

• King Emperor v. Sree Narayan (1949 Cri LJ 1013)

• Accused struck victim on forehead with a piece of firewood. Victim fell down and did not
regain her senses. Accused stacked fuelwood, placed the body thereon and poured ghee and
set fire to the wood.

• Orissa HC held that appellants could not be allowed to plead mistake of fact.

• S. 17: Nothing is an offence which is done by

• (1) any person who is justified by law, or

• (b) any person who by reason of a mistake of fact and (not by mistake of law)

• In good faith, believes himself to be justified by law, in doing so.

• ‘A’ sees ‘Z’ commit what appears to A to be a murder. A seizes Z, to bring Z before the proper
authorities. He exercised power, which the law gives to all persons for apprehending
murderers, to the best of his judgment and in good faith.

• A has committed no offence, though it may turn out that Z was actually in self-defence.

• Chirangi v. State (1952 Cri LJ 1212)

• Actually Accused had actually mistaken his son for a tiger and assailed him with his axe. He
had bona fide mistaken his son for a magic tiger and was incapable of knowing the nature of
his act. Bombay HC held that he was in the circumstances protected by S. 79 IPC

• B. JUDICIAL ACT

• U/S. 15 (S. 77 IPC), Nothing is an offence which is done by a Judge, if

• (1) the act is done while acting judicially in the exercise of any power, and

• (2) such power is (a) given to him by law, or

• (b) in good faith he believes to be given to him by law

• Only Judges are protected under this provision

• Surendra Kumar Bhatia v. Kanhaiya Lal (2009) 12 SCC 184

• “A Collector is neither a Judge u/s. 19 IPC (S. 2(16) BNS), nor does he act judicially, when
discharging functions under L.A. Act. He is not entitled to protection.

• U/S. 16: (1) An act done in pursuance of, or warranted by judgment or order of a Court, and
(2) it is done while such judgment or order remains in force

• (3) person doing the act in good faith believes that court had such jurisdiction,

• Act not an offence, even if Court had no jurisdiction to pass such judgment/order

• S. 16 protects officers who executes order of Judges. It is to ensure that officers of court
should discharge their duties independent of fear of any consequences.
• An officer of court, acting on an attachment order issued by a court lacking jurisdiction, has
committed no wrongdoing.

• S. 18 ACCIDENT IN DOING A LAWFUL ACT (S. 80 IPC)

• An act is not considered an offence if all of the following conditions are met:

• 1. It is done by accident or misfortune, and

• 2. it is done without any criminal intention or knowledge, and

• 3. such act is done in doing a lawful act in a lawful manner by lawful means, and

• 4. it is done with proper care and caution.

• ‘A’ is at work with a hatchet; its head flies off and kills a man standing by. There was no want
of proper caution on A’s part, his act is excusable and not an offence.

• State of Orissa v. Khora Ghasi (1978 Cri LJ 1305)

• Accused shot an arrow under bona fide belief and impression that he was shooting at a bear
which had entered his field and destroying maize crop. But the arrow hit a person and
caused injury, who later dies.

• Orissa HC held that on facts and circumstances of the case, accused was entitled to
protection u/S. 80 IPC (S. 18 BNS).

• D NECESSITY – inevitable accidents

• S. 19 (s. 81 IPC) – Quod necessitas non habet legem – necessity knows no law.

• Nothing is an offence, merely by reason of its being done with knowledge that it is likely to
cause harm, if following conditions are complied with:

• 1. It is done without any criminal intention to cause harm, and

• 2. It is done in good faith, and

• 3. it is for purpose of preventing or avoiding other harm to person or property

• ‘A’, captain of a vessel, suddenly and without any fault or negligence on his part, finds himself
in such a position that

• Before he could stop his vessel, he must inevitably run down a boat ‘B’ with 20 or 30
passengers on board,

• If he changes course of his vessel, he must incur risk of running down boat ‘C’ with only two
passengers on board.

• If A alters course without any intention to run down boat ‘C’ and in good faith for purpose of
avoiding danger to passengers in boat B, he is not guilty of an offence

• R. v. Dudley and Stephens (1884 14 QBD 273)

• The 2 defendants and a boy were cast away in an open boat at sea following a storm. Boat
drifted in the ocean and was more than 1000 miles away from land. After 7 days without
food and 5 days without water, the 2 defendants colluded to kill the boy for their survival.
They killed him and ate his flesh for 4 days until they were rescued. Defendants argued that
 they believed that in the circumstances they would die unless the boy was killed. Court held
that defence of necessity was not available as a defence in murder on these facts.

• E. INFANCY – S. 20 AND 21

• S. 20 (s. 82 IPC) -Nothing is an offence which is done by a child under seven years of age

• S. 21 (S. 83 IPC) – Nothing is an offence which is done by a child above seven years of age
and under 12 years of age, who has not attained sufficient maturity of understanding to
judge nature and consequences of his conduct on that occasion.

• An act of a child under 7 years of age is not an offence

• Act done by child above 7 years but under 12 years, who has not attained sufficient maturity
of understanding to judge nature and consequences of his conduct on that occasion, is not
an offence.

• Date for determination of age of the juvenile is the date of offence and not date when he is
produced before authority or in Court – Pratap Singh v. State of Jharkhand (2005) 3 SCC 551.

• F. INSANITY –

• S. 22 (S. 84 IPC) – 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.

• Ingredients: 1. An act is done by a person

• 2. At the time of doing such act, by reason of unsoundness of mind,

• A. he was incapable of knowing the nature of the act, or

• B. he was incapable of knowing that – what he was doing is either wrong or contrary to law

• 3. such an act is not an offence

• Illustration: An insane person beats another with a stick

• He may not be aware that such an act would cause harm to the victim, indicating that he
does not understand the nature of his actions, or

• He may know that such an act would cause harm to the victim, but does not understand that
the act is wrong or contrary to law.

• Legal insanity and medical insanity -Legal insanity is different from medical insanity.

• A person may suffer from some form of insanity recognised by doctors. That may not be
unsoundness of mind as contemplated by S. 22.

• Despite insanity, doctor may find, particular person is able to recognize nature and quality of
act for which he is tried or he is capable of knowing that what he was doing was either
wrong or contrary to law. Benefit of s. 22 is not available to such person.

• S. 22 – part 1: By reason of unsoundness of mind, person is incapable of knowing nature of

his act. He gets protection under first part. Second part does not arise in his case.
• Part 2: Even if he knew nature of act but, if by reason of unsoundness of mind, he is
incapable of knowing that what he is doing is either wrong or contrary to law. He gets
protection under part 2.

• Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563)

• Burden of proof: Prosecution must prove beyond reasonable doubt that accused had
committed the act with requisite mens rea. This burden always rest on the prosecution from
beginning to end of trial

• Rebuttable presumption: Accused was not insane, when he committed the crime, in the
sense laid down in S. 22. Accused may rebut it by placing before court all relevant evidence –
oral, documentary or circumstantial. Burden upon him is no higher than that rests upon a
party to civil proceedings.

• If appellant raises reasonable doubt in mind of court regarding ingredients of the offence,
including mens rea, court would acquit the accused on the ground that general burden
resting on prosecution was not discharged.

• Prakash Nayi @ Sen v. State of Goa (2023 LiveLaw SC 71): A mere medical insanity cannot be
said to mean unsoundness of mind. There may be a case where a person suffering from
medical insanity would have committed an act, however, the test is one of legal insanity to
attract mandate of S. 84 IPC (S. 22 BNS). There must be an inability of a person in knowing
the nature of the act or to understand that it is either wrong or contrary to law.

• G INTOXICATION

• S. 23 (S. 85 IPC): 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 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.

• Act is not an offence, if following conditions are complied:

• 1. It was done by a person who was under intoxication

• 2. At the time of doing such act, by reason of intoxication

• A. he was incapable of knowing nature of the act, or

• B. he was incapable of knowing that what he was doing is either wrong or contrary to law.

• 3. the thing which intoxicated was administered to him without his knowledge or against his
will.

• Baron Parke in Pearson’s case (1835) 168 ER 1108:

• “Voluntary drunkenness is no excuse for crime. If a party be made drunk by strangers (by
truck or plan) or the fraud of another, he is not responsible”.

• If a person is drugged by his enemies or made to drink liquor, person intoxicated may not be
responsible for the consequences.
• Jethuram Sukhra Nagbanshi v. State of MP (AIR 1960 MP 242)

• An act which is against the will must be an act which the performer performed not out of
his own conscious volition but on compulsion of some outside agency by overpowering or
paralysing his will by some physical acts.

• Moral persuasion acting as an incentive is not considered an adequate excuse for

imposition on young, inexperience or weak minds by calculating adults of superior strength
of mind or will.

• On this view, if friends or relatives persuade a person to drink a little more than he can
reasonably digest, he cannot complain that he was made to drink against his will

• Onus of proof about reason of intoxication due to which accused had become incapable of
having particular knowledge in forming the particular intention is on accused (Bablu @
Mubarik Hussain v. State of Rajasthan (2006) 13 SCC 116)

• S. 24 (S. 86 IPC) – An act done is not an offence unless done with a particular knowledge or
intent,

• A person who does act in a state of intoxication shall be liable to be dealt with as if he had
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.

• Husband, in a state of intoxication, sets his wife on fire. It is presumed that he had same
knowledge, as he would have had, if he had not been intoxicated. Here, presumption is, that
he knows that his act would result in injury or death. No presumption of intention.

• Mancheria Balaswamy v. Unknown (AIR 1953 Mad. 827):

• A person who gets into a state of intoxication voluntarily, is presumed to have same
knowledge he would have had if he had not been intoxicated. When state of intoxication is
such as to make him incapable of knowing the nature of the act or that he is doing what is
either wrong or contrary to law, he can only be punished on the basis of knowledge and not
of particular intention.

• H. CONSENT – Ss. 25 to 30

• Uday v. State of Karnataka, (2003) 4 SCC 46

• “Consent is an act of reason, accompanied with deliberation, the mind weighing as in a

balance, the good and evil on each side”

• Process of consent plays an important role in deciding whether an act amounts to an offence
or not.

• Ex: Sexual act with free consent is not an offence but if consent is obtained by fraud or
compulsion, it is not a valid consent, hence an offence.

• Tulhsidas Kanolkar v. State of Goa, (2003) 8 SCC 590):

• Consent: It has to be a conscious and voluntary act. For constituting consent, there must be
exercise of intelligence based on knowledge of significance and moral effect of the act.
• Submission: There is a gulf of difference between consent and submission. Every consent
involves a submission, but converse does not follow. Mere act of submission does not
involve consent,

• An act of helpless resignation cannot be considered to be consent as understood in law, if it

happened in the face of inevitable compulsion, quiescence, non-resistance or passive
giving, when ability to think is either clouded by fear or vitiated by duress or impaired due to
mental retardation or deficiency.

• S. 25 (S. 87 IPC): Based on maxim “volunti non fit injuria” (to a willing person, injury is not
done).

• I An act is done

• 1. without intention to cause death, or grievous hurt, and

• 2. without knowledge by doer that it is likely to cause death or grievous hurt

• Consent to suffer harm: It is not an offence by reason of any harm which

• It may cause, or is intended by doer to cause to any person

• If such person is above 18 years of age, and

• He has given express or implied consent to suffer that harm.

• Ex: Consent to suffer harm given to dentist to pull the teeth.

• II Consent to take the risk of harm. It is not an offence by reason of any harm which

• It may be known by doer to be likely to cause to any person if such person, above 18 years of
age, and gave express or implied consent to take the risk of that harm.

• Ex: Consent to take risk of getting hurt in wrestling competition

• Ill: ‘A’ and’Z’ agree to fence with each other for amusement. Agreement implies consent of
each to suffer any harm which, in course of such fencing may be caused without foul play. If
A, while playing fairly, hurts Z, A commits no offence.

• Thunda v. Rex (AIR 1950 All 95)

• Appellant and deceased were friends. Both were fond of wrestling. Deceased suffered injury
accidently while wrestling. No proof of foul play by appellant. Allahabad HC held that when
they agreed to wrestle, there was implied consent and this case fell within S. 80 and 87 IPC
(S. 19 & 25 BNS)

• S. 26 (S. 88 IPC): Nothing, which is not intended to cause death, is an offence by reason of
any harm which it may cause, or be intended by doer to cause, or be known by doer to be
likely to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, express or implied, to suffer that harm, or to take the risk of that harm.

• Ill: A, a surgeon knowing that a particular operation is likely to cause death of Z, who
suffers under a painful complaint, but not intending to cause Z’s death, and intending in
good faith, Z’s benefit, performs that operation on Z with Z’s consent. A has committed no
offence.
• U/s. 26, An act done is not an offence by reason of

• (a) any harm it may cause, or (b) it is intended by the doer to cause, or

• (c) it is known by the doer to be likely to cause, to any person

• Provided following conditions are satisfied:

• 1. such act is done without intention to cause death

• 2. Act is done for benefit of such person and 3. it is done in good faith, and

• 4. such person has given consent (a) to suffer that harm, or (b) to take the risk of that harm.

• Pan Singh v. Emperor (153 Ind Cas 425): A woman had been ill. Appellants, devil dancers,
attempted to cure her by making her to dispossess a devil. She objected to the treatment
and abused them. They thought that though her body was her own, her mind was in
possession of the devil. To dispossess Chunni’s wife from the devil, they applied a hot ladle to
her mouth and throat and to various parts of her body. As a result, she died.

• Defence argued that their acts came u/s. 88 ad 92 IPC (Ss. 26 & 30 BNS). All. HC held that the
woman did not give consent to this shockingly rude treatment.

• S. 27 (S. 89 IPC): Act done in good faith for benefit of child or person of unsound mind by,
or by consent of guardian.

• U/s. 27, acts done by guardian or with consent of guardian in good faith for benefit of child
or insane person.

• (1) An act is done in good faith – for benefit of a person under 12 years of age, or of unsound
mind

• (2) with consent of guardian or other person having lawful charge of that person

• (3) consent may be express or implied

• Such act is not an offence by reason of any harm which – it may cause, or – is intended by
doer to cause or – is known by doer to be likely to cause to that person,

• Exceptions: (provisos)

• 1. Intention of causing death: Exception shall not extend to intentional causing of death, or
to attempt to cause death.

• 2. Knowledge of likely to cause death: Exception shall not extend to doing of anything which
person doing it knows to be likely to cause death – for any purpose other than preventing of
death or grievous hurt, or – curing of any grievous disease or infirmity.

• 3. Voluntary causing of or attempting to cause grievous hurt: Exception shall not extend to
voluntary causing of grievous hurt, or to attempting to cause grievous hurt, unless – it is for
purpose of preventing death or grievous hurt, or – curing of any grievous disease or
infirmity.

• Ill: ‘A’ in good faith for his child’s benefit without child’s consent, has his child cut for stone by
a surgeon – knowing it to be likely that operation will cause child’s death – but not intending
to cause the child’s death.
• A is within the exception, inasmuch as his object was, cure of the child.

• M. Natesan v. State of Madras (AIR 1962 Mad. 16); When a parent entrusts a child to a
teacher, he on his behalf impliedly consents for teacher to exercise over the pupil such
authority. Person of the pupil is certainly protected by penal code. But it has recognized
exceptions in S. 88 and 89 (Ss. 27 and 28 BNS).

• Where a teacher exceeds authority and inflicts unreasonable and immoderate harm, he
would naturally lose the benefit of the exceptions. (parent patriae)

• S. 28 (S. 90 IPC): Consent known to be given under fear or misconception:

• Consent obtained in following cases is not a consent under BNS:

• 1. Fear of injury and misconception of fact and knowledge thereof

• (a) consent is given by a person under fear of injury or under a misconception of fact, and

• (b) person doing the act knows, or has reason to believe that consent was given in
consequence of such fear or misconception, or

• 2. Unable to understand the nature and consequences:

• Consent is given by a person who is unable to understand nature and consequences of the
act to which he gives his consent – due to his unsoundness of mind or intoxication, or

• 3. Consent of child: Unless contrary appears from the context, consent if given by a person
who is under 12 years of age, is not a consent as is intended by BNS.

• S. 29 (S. 91 IPC – Exceptions in Ss. 25, 26 and 27 do not extend to offences caused
independently of the act for which consent was given.

• Ill: ‘A’ publishes a statement regarding ‘B’ with his consent. Even if it injures B’s reputation, it
is not an offence as it is published with consent.

• But if the same statement is against public policy (obscene statement) it is an offence
against State. His act is an offence.

• S. 30 (S. 92 IPC) – Act done in good faith for benefit of a person without consent

• Nothing is an offence by reason of any harm which it may cause to a person,

• (a) for whose benefit it is done in good faith, (b) even without that person’s consent

• (c) if 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.

• This exception shall not extend to

• 1. Intentional causing of death or attempt to cause death

• 2. Causing with knowledge likely to cause death: Doing of anything which person doing it
knows to be likely to cause death – for any purpose other than preventing of death or
grievous hurt, or curing of any grievous disease or infirmity.
• 3. Voluntary causing of hurt: or to attempting to cause hurt, for any purpose other than
preventing of death or hurt.

• 4. Abetment: of any offence, to committing of which, it would not extend

• Mere pecuniary benefit is not benefit within meaning of Ss. 26, 27 and 30.

• 31. (S. 93 IPC) – Communication made in good faith (based on maxim ‘de minimis non curat
lex’ = the law does not govern trifles. It says

• 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.

• RIGHT OF PRIVATE DEFENCE (Ss. 34 to 44)

• Doctrine of private defence is based on principle that a person, whose life is under threat of
grave danger, need not wait till State comes to help him. He is permitted to do something
to protect his body and property or/and to prevent any injury. His action should be
preventive and not punitive.

• Munney Khan v. State of Madhya Pradesh (AIR 1971 SC 1491) – Scope of pvt. defence

• 1. No private defence in favour of aggressor: Right of private defence is available against an

offence. When an act is done in exercise of right of private defence, such act cannot give rise
to any right of private defence in favour of aggressor.

• 2. Not to exceed limit: If person exceeds limit of pvt. Def., he commits the offence

• 3. Time to have recourse: There is no pvt. Defence where there is time to have recourse to
protection from authorities

• 4. No vindicate, aggressive or retributive action: Right of pvt. Defence is essentially a

defensive right. It is available only when circumstances justify it. It is not allowed to be
pleaded or availed as a pretext for vindicative, aggressive or retributive purpose.

• S. 34: (S. 96 IPC) Nothing is an offence which is done in exercise of the right of private
defence

• James Martin v. State of Kerala (2004)2 SCC 203

• Accused and his father had their residence, a bread factory and a flour mill in the same
compound. In defiance of a bandh call, their factory was working. Bandh activists entered
the factory by scaling the walls. An unruly situation prevailed as a result of violence
perpetrated by the bandh activists. They assaulted the workers and made them flee, without
shutting down the machines. Accused took out the gun and shot at the activists and a person
died.

• SC held that the acts done by the accused were within limits of exercise of private defence
and accused was entitled to protection u/s. 96 IPC (S. 34 BNS)

• Periyasamy v. State rep. by Inspector of Police (2024 LiveLaw SC 244)

• Person claiming such a right, bears onus to prove legitimacy of actions done in furtherance
thereof and it is not for Court to presume presence of circumstances or truth in such a plea
being taken.

• S. 35 (S. 97 IPC)

• Right to defend: Every person has a right to defend (subject to restrictions in S. 37)

• 1. Body: his own body, and the body of any other person – against any offence affecting
human body;

• 2. Property: property, whether movable or immovable of himself or of any other person –

against any act which is an offence falling under definitions of theft, robbery, mischief or
criminal trespass, or – which is an attempt to commit theft, robbery, mischief or criminal
trespass.

• Faiyaz Khan v. Rex (AIR 1949 All 180) – Offence

• Right of private defence does not arise merely because an unlawful or wrongful act has been
done. It arises only when unlawful or wrongful act is an “offence”, of a particular kind…
“affecting the human body” or in case of defending property, it must be either theft,
robbery, or mischief or crl. Trespass or attempt to commit such an offence.

• Even trespassers may have right of private defence:

• Puran Singh v. State of Punjab (AIR 1975 SC 1674) – A trespasser to exercise right of defence
of property, he should have following attributes:

• 1. He is in actual physical possession of property over a sufficiently long period;

• 2. His possession must be to knowledge, either express or implied, of owner or without any
attempt at concealment

• 3. process of dispossession of true owner by trespasser must be complete and final and must
be acquiesced in by the true owner.

• S. 36 (S. 98 IPC): Right of pvt. Def. against act of a person of unsound mind etc.

• Right of private defence is available even against persons whose acts are excused and not
treated as offence. Physical or mental capacity of person against whom the right is exercised
is no bar.

• Ill: A, a child attempt to kill ‘B’. B has the right of private defence against ‘A’, a child, even
though his act is not an offence

• u/S. 36, (1) An act is not an offence: An act which would otherwise be a certain offence is
not an offence by reason of

• (a) the youth, (b) want of maturity or understanding, (c) unsoundness of mind or (d)
intoxication of person doing that act, or (e) by reason of any misconception on the part of
that person

• 2. Private defence against such acts: Every person has same right of private defence against
such act, which would have been otherwise considered as an offence
• Ill: Z under influence of madness, attempts to kill ‘A’. Z is guilty of no offence. ‘A’ has same
right of private defence which he would have if Z were sane.

• ‘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 misconception commits no offence.
But A has same right of private defence against Z which he would have if Z were not acting
under misconception.

• S. 37 (S. 99 IPC) –Acts against which there is no private defence

• 1. Act done by public servant:

• (a) an act is done by a public servant – (b) He acts in good faith under colour of his office (c)
such act does not reasonably cause the apprehension of death or of grievous hurt, if done,
or attempted to be done. Though the act may not be strictly justifiable by law, there is no
private defence against such act.

• 2. Act done at direction of a public servant: (a) An act is done at direction of a public
servant. (b) He acts in good faith under colour of his office (3) Such act does not reasonably
cause apprehension of death or of grievous hurt, if done, or attempted to be done. Though
that direction may not be strictly justifiable by law, there is no right of private defence
against such act.

• 3. Protection of public authorities: There is no private defence in cases in which there is time
to have recourse to protection of public authorities.

• Expl: 1. Knows he is a public servant: A person is deprived of right of private defence against
an act done or attempted to be done, by a public servant, only when – he knows or has
reason to believe, that person doing the act is such public servant

• 2. Action under Direction – A person is deprived of right of private defence against an act
under direction of a public servant only under following circumstances:

• (a) he know, or has reason to believe that person doing the act is acting by such direction, or

• (b) such person states the authority under which he acts, or

• (c) if he has authority in writing, he produces such authority on demand.

• S. 38 (S. 100 IPC) When right of private defence of body extends to causing death

• If a person has right of private defence of body u/s. 35, his right extends u/s. 38 to causing
death if there is reasonable apprehension that death or grievous hurt would be the
consequence of the assault.

• Subject to restrictions in S. 37, right of private defence of body extends to causing of death
or of any other harm to assailant: if

• (a) Death: such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.

• (b) Grievous hurt: Such assault as may reasonably cause apprehension that grievous hurt will
otherwise be the consequence of such assault.

• (c) Rape: An assault with intention of committing rape.

• (d) Unnatural lust: An assault with intention of gratifying unnatural lust

• (e) Kidnapping or abduction: Assault with intention of kidnapping or abduction

• (f) Wrongful confinement: Assault with 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

• (g) Throw or administer acid: An act of throwing or administering acid or an attempt to

throw or administer acid which may reasonably cause apprehension that grievous hurt will
otherwise be consequences of such act.

• S. 39 (S. 101 IPC) – When such right extends to causing any harm other than death.

• If offence is not one coming under descriptions listed in S. 38, right of private defence of
body does not extend to voluntary causing of death to assailant. Right extends to voluntary
causing to assailant harm other than death subject to restrictions in S. 37.

• Right of private of defence governed by S. 39 is subject to limitations:

• 1. in exercise of right of private defence, any kind of hurt can be caused, but not death

• 2. Use of force does not exceed minimum required to save the person in whose defence the
force is used.

• Yogendra Morarji v. State of Gujarat (AIR 1980 SC 660)

• Five persons attempted to stop vehicle of accused to wrongfully restrain him with common
object of “getting money” from him by putting him in fear of physical harm. Appellant took
out his revolver and fired three shots, third shot hit the deceased. Appellant sped of in his
vehicle.

• SC observed: as accused apprehended some physical harm, a right of private defence had
accrued to accused but he exceeded this limit, because he could have accelerated his vehicle
and easily run through the cordon or fired one shot and waited for response before firing the
next shots.

• S. 40 (S. 102 IPC): Commencement and continuance of right of pvt. Def of body

• 1. Right of pvt. Defence of body commences as soon as a reasonable apprehension of

danger to body arises from an attempt or threat to commit the offence

• 2. It commences even if the offence has not been committed

• 3. it continues as long as such apprehension of danger to the body continues

• Threat must reasonably give rise to present and immediate danger and not remote or distant
danger.

• Principle: Where a crime is endeavoured to be committed by force, it is lawful to repel that

force in self-defence.

• SC in Yogendra Morarji v. State of Gujarat (AIR 1980 SC 660) explained rules of private
defence of body as under:

• 1. There is no right of private defence against an act which itself is not an offence
• 2. Reasonable apprehension: Secondly, right commences as soon as and not before a
reasonable apprehension of danger to body arises from an attempt or threat to commit
some offence. i.e., right avails only against a danger imminent, present and real

• 3. Not for vindictive, aggressive or retributive purpose: Thirdly, It is a defence.

Consequently, in no case right extends to inflicting of more harm that it is necessary to
inflict for purpose of defence.

• It is difficult to expect from a person exercising this right in good faith to weigh “with golden
scales” what amount of force is necessary to keep within maximum force within the right.
Every reasonable allowance should be made for the bona fide defender “if he with instinct
of self-preservation strung upon him, pursues his defence a little further than may be
strictly necessary in the circumstances to avert the attack”.

• 4. Right to kill: fourthly, right extends to killing of actual or potential assailant when there is
a reasonable and imminent apprehension of atrocious crimes enumerated in S. 38

• 5. No reasonable mode of escape: Fifthly, there must be no safe or reasonable mode of

escape by retreat, for the person confronted with an impending peril to life or of grave bodily
harm, except by inflicting death on assailant

• 6. Time to have recourse to the protection: Sixthly, right being a defensive right, does not
accrue and avail when there is “time to have recourse to protection of public authorities (S.
37).

• S. 41. (S. 103 IPC) When right of private defence of property extends to causing death

• Right of private defence of property extends to voluntary causing of death or any other harm
to wrong-doer, if act attempted or being committed is one of following:

• (a) Robbery (b) house-breaking after sunset and before sunrise (IPC stated– housebreaking
by night)

• (c) mischief by fire or any explosive substance committed on any building, tent or vessel,
which building, tent or vessel is used as a human dwelling, or as a place for custody of
property (new provision)

• (d) theft, mischief or house trespass – under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be consequence – if such right of private
defence is not exercised.(subject to s. 37)

• Jassa Singh v. State of Haryana (2002 Cri LJ 563 SC)

• Private defence is available in respect of criminal trespass or mischief as against property

owned by himself or of any other person.

• But criminal trespass is not enumerated as one of the offences u/s. 103

• Therefore, right of private defence of property will not extend to causing death, if act of
trespass in respect of an open land. Only house trespass is enumerated.

• S. 42 (S. 104 IPC) When such right extends to causing any harm other than death

• Right extends to voluntary causing to wrong-doer of any harm other than death, where
offence being committed or attempted is one of following crimes:
• (a) theft, mischief or criminal trespass

• (b) but of not of any descriptions specified in s. 41, to extend the right of voluntary causing of
death.

• This right is subject to S. 37

• S. 43 (S. 105 IPC): Commencement and continuance of right of pvt. Defence of property.

• 1. Right of private defence of property commences when a reasonable apprehension of

danger to the property commences

• 2. Theft: Right of private defence of property against theft continues till

• (a) offender has effected his retreat with property, or

• (b) either assistance of public authorities is obtained, or the property has been recovered.

• 3. Robbery: Right of private defence against robbery continues

• (a) as along as offender causes or attempts to cause to any person death or hurt or
wrongful restraint, or

• (b) as long as fear of instant death or of instant hurt or of instant personal restraint continue

• 4. Criminal trespass: Right of private defence against criminal trespass or mischief continues
as long as offender continues in commission of criminal trespass or mischief.

• 5. House-breaking after sunset and before sunrise: Right continues as long as house
trespass which has begun by such house-breaking continues.

• S. 44 (S. 106 IPC): Right of private defence against deadly assault when there is risk of harm
to innocent person:

• 1. A person exercises right of private defence

• 2. against an assault which reasonably cause apprehension of death

• 3. Defender is so situated that he cannot effectually exercise that right with risk of harm to
an innocent person.

• 4. Under such circumstances, his right of private defence extends to the running of that risk.

• 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.