LAW OF CRIME

CRIME
Meaning of crime in Indian Penal Code has been highlighted as the commission of an act
prohibited by law of the land. Criminal law is a branch of public law. Crime means wrongs done
by human beings. In criminal proceedings, State is a party as crime is not only a wrong against
the individual but also against the whole society. Crime means a charge or offence. When an act
is done or not done in accordance with the public law, it is said to be a crime

The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code
intended to cover all substantive aspects of criminal law. The Indian Penal Code indirectly owes
its origin to Jeremy Bentham, who is a well-known jurist on the subject of law reforms and he
gave the meaning of crime as stated in Indian Penal Code.
It was enacted in the year 1860 on the recommendations of the first law commission of India
established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Thomas
Babington Macaulay. The Indian Penal Code of 1860, subdivided into 23 chapters, comprises
511 sections

Definition of crime
An action committed or omitted which constitutes an offence and is punishable by law, is a
crime. Crime is an unlawful act that is forbidden and punished by the State or the law. In other
words, anything which is injurious to public welfare is a crime.
Whatever is injurious to public welfare is an offence.
According to stephen “a crime is said to be an act which is prohibited/forbidden by law and
against the moral morality of the society”.
According to Bentham, “offences are whatever the legislature has prohibited for good or for bad
reasons.”
According to Miller, crime is “to be the commission or omission of an act which the law forbids
or commands under pain of a punishment to be imposed by the State by a proceeding in its own
name.
According to Paton, “the normal marks of a crime are that the State has the power to control the
procedure, to remit the penalty or to inflict the punishment.

According to Paul W. Tappen, “an intentional act or omission in the violation of criminal law.
Blackstone “an act committed or omitted in violation of a public law either forbidding or
commanding it.

Element of Crime
There are four elements which go to constitute a crime and these are:
1) Human being the basic essential element of any crime is that it must be committed by a
human being who is under the legal obligation to act in a particular manner, as an animal
cannot commit a crime. Animals used to be punished in ancient times, now their owners are
made liable.
Section 11 of the Indian Penal Code states that the word ‘person’ includes a company, an
association or a body of persons, whether incorporated or not. The word ‘person’ includes
artificial or juridical persons.

Illustration:
Person A kills Person B – crime
Person A kills animal Z – crime Person A steals from Person C - crime

2) Mens Rea
Maxim - "actus reus non facitreum nisi mens sit reas" meaning "an act is not guilty unless
the mind is not guilty". The various offences defined in the indian penal code have a guilty
intention or knowledge as an essential ingredient. The words like voluntary (under sec.39 of
I.P.C), reason to believe (sec.26 of I.P.C), dishonestly (sec.24 of I.P.C), fraudulently (sec.25
of I.P.C) used in the various provisions of the code incorporate the principle of mens rea.
Mens Rea refers to the mental element of a person’s intention.
The degrees of Mens Rea are:
 Intention: Complete knowledge of harm and its consequences.
 Knowledge: No intention, but knowledge of an apparent harm.
 Reason to Believe: No particular information, but some reason to believe of the
consequences of the act.
 Recklessness: Higher degree of negligence, aware of consequences.
 Negligence: Not aware of consequences.
The Act can be voluntary or involuntary, and the guilt is determined by the facts of the case.
Mens Rea as such is not punishable.
The following factors are examined to establish Mens Rea:

 Previous relation between the accused and the victim, any object of hostility between
them.
 Existence of instigation i.e. whether accused was hired and what prompted him to
commit crime.
 Whether the accused had something to gain out of the whole affair.

Illustration: A person drives under influence and causes an accident which harms others.
He will be held responsible for his actions as he voluntarily made a choice to drink and
drive, even if the crime itself was unintentional.
Case laws: Nathulal vs. State of M.P (AIR 1966 SC 43) In this case, the accused was a
food grain dealer who applied for a licence and deposited the requisite licence fee.
Without knowledge of rejection of his application, he purchased food grains and sent
 returns to the Licencing Authority, who on checking, found that it was in excess of the
quantity permitted by Section 7 of MP Food Grains Dealers Licensing Order, 1958. The
accused was prosecuted. However, he was acquitted on the ground that he had no guilty
mind.

State of Maharashtra v. MH George (AIR 1965 SC 722) In this case, Reserve Bank of
India (RBI) placed some restrictions on the entry of gold into India, thus superseding an
earlier notification. The accused reached Mumbai from Manila, where gold bars were
recovered from his jacket. The accused pleaded that he had no Mens Rea and that he had
no knowledge of the RBI notification. After considering the object and subject matter of
statute, the Court held that there was no scope for the invocation of the doctrine of Mens
Rea in this particular case.

3) Actus Reus Maxim - “actusreus non facitreum nisi mens sit reas” meaning “an act is not
guilty unless the mind is not guilty”. Actus Reus is a wrongful act committed or omission of
an action. Mens Rea is not necessary in every Actus Reus.
The following factors are examined to establish if Mens Rea was present in an act:
 The physical doing or not doing,
 The circumstances, and
 The consequences i.e. if the Mens Rea does not extend to any part of the act, there
will be no guilty mind behind the act.

Illustration:
Person A thinks of killing Person B - not a crime
Person A hits Person B using a rod with the intent to kill him - crime (commission)
Person A sees his child B drowning in water but does not do anything - crime
(omission)

4) Injury-The fourth element of crime is injury occurred to another person or society

at large, in the absence of which crime is not considered committed. However, there
are some exceptions. Illustration: Driving without a driving license is a crime even if
it may not harm anybody. r
These are the cases of strict liability, for example, the offence of ‘bigamy’
under section 494 (Bigamy) is a crime even though the act is not accompanied with
guilty mind. Section 399 of the Indian penal code (Making Preparation to Dacoity),
sec. 402 of I.P.C. (Assembling for the Purpose of Committing Dacoity), attempt of
abetment or conspiracy are crimes, but still no injury has been caused to any person.
According to Section 44 of Indian Penal Code, 1860 the injury denotes any harm
whatever illegally caused to any person in body, mind, reputation or property.

Stages of Crime

The four stages of crime in India are:

Intention
Intention is the first stage of crime, where the accused person forms the mental state or mens rea
to commit a particular offence. It involves a conscious decision or desire to commit the crime,
without taking any physical action towards its execution. Intention may be either general or
specific, depending on the nature of the offences.

In the Indian legal system, criminal intent is considered the first stage in committing a crime.
However, it is important to note that individuals are not punished for their evil thoughts or
unlawful intentions under the law. Criminal intent alone cannot be punished until a crime has
been committed with that intent. The concept of criminal intent plays a crucial role in
determining the culpability of an accused person and guiding the appropriate charges and
punishments.

Illustration:

For instance, if a person intends to steal a valuable item from a store and plans to do so by
entering the store after hours and breaking the lock, the intention to steal is formed in the
person’s mind even before they take any physical action.

Preparation

The preparation stage follows the intention stage and involves taking actions towards the
execution of the intended offences. In this stage, the accused person makes arrangements, gathers
resources, and plans the details of the crime, but has not yet taken any concrete steps towards its
commission.

Preparation When Punishable

When the offence is regarded as a serious offence, preparation to commit offences is penalised
under the Indian Penal Code. A few of them are mentioned below:

 Warfare preparations against the government (Section 122 of IPC).

 Preparing coins or government stamps for counterfeiting (Sections 233 to 235, 255, and
257 of IPC).
 Having counterfeit money, fraudulent documents, or fake weights and measurements
(Sections 242, 243, 259, 266).
 Making plans to commit dacoity (Section 399 of IPC).

Illustration:

Continuing with the previous example, the person who intends to steal from the store
may start gathering tools or instruments, such as lock-picking tools or a crowbar, to break
the lock. They may also survey the store’s layout, identify the best time to commit the
theft, and plan their escape route.

In the preparation stage, certain acts may be punishable under the law, depending on the
nature of the offences and the specific provisions of the relevant laws.
 For example, if the preparation involves possession of weapons, tools, or instruments
with an intent to commit a crime, it may attract charges under Section 399 and 402 of the
IPC, which deal with preparing to commit dacoity (a form of robbery involving violence
or threat of violence). Similarly, if the preparation involves forgery or counterfeiting of
documents or currency, it may attract charges under Section 464 and 489 of the IPC,
respectively.

Attempt

The attempt stage follows the preparation stage and involves taking direct actions towards the
commission of the intended offences. It is the stage where the accused person makes a physical
or overt act towards the completion of the crime, but the offence is not fully consummated.

Illustration:

In the previous example, the person who intends to steal from the store may go to the store after
hours, break the lock using the tools they gathered in the preparation stage, and enter the store
with the intent to steal. However, if they are caught by security personnel or leave the store
without actually stealing anything, it would be considered as an attempt to commit theft.

Under the IPC, an attempt to commit a crime is punishable under Section 511, which provides
for the punishment for attempting to commit an offence punishable with imprisonment for life or
with shorter terms. The punishment for the attempt is generally lesser than the punishment for
the actual offences, but it varies depending on the nature of the offences and the specific
provisions of the law.

Commission

The commission stage is the final stage of crime, where the accused person successfully
completes the offences by performing all the necessary acts to accomplish the intended crime. It
is the stage where the mens rea (mental state) and actus reus (physical act) of the accused
coincide, resulting in the consummation of the offences.

Illustration:

In the previous example, if the person who intended to steal from the store successfully breaks
the lock, enters the store, and steals a valuable item, it would be considered as the commission of
theft.

The commission of a crime is punishable under the relevant provisions of the IPC or other
applicable laws, depending on the nature of the offences.

For example, theft is punishable under Section 378 of the IPC, which prescribes the punishment
for theft as imprisonment of either description for a term which may extend to three years, or
with fine, or with both.
Application & Jurisdiction

Introduction

Generally speaking, jurisdiction is the official power to make legal decisions and judgments. The
extent to which the court of law can exercise its powers relating to suits, appeals, proceedings,
etc., can be said to be the jurisdiction of the Indian Penal Code, 1860. It is the limit within which
the courts can exercise their powers over the cases.

The term ‘territory of India’ includes two types of territories:

1. Geographical territory – Article 1 of the Indian Constitution states that the territory of India
includes the territories of the States, the union territories specified in the First Schedule and
such other territories as may be acquired.

2. Maritime Territory – An area of 12 nautical miles calculated from the appropriate baseline
is known as territorial waters and marks the maritime territory of India. Territorial waters
are regarded as the Sovereign territory of the State. For example, if an offence is committed
within 12 nautical miles in the sea from the coast of Mumbai, then the appropriate Court of
Mumbai would have jurisdiction over this matter.

Jurisdiction of IPC can be understood from sections 1, 2, 3, 4 and 5.

Section 1: Title and extent of operation of the code

As per section 1 of the Code, this Act shall be called the Indian Penal Code and shall extend to
the whole of India.

Note: Before 31st October 2019, the Indian Penal Code was not applicable to the state of Jammu
and Kashmir. But from 31st October 2019, all the central laws applicable to other parts of the
country are applicable to Jammu and Kashmir too. Thus as of now, IPC (being a central law)
applies to the state of Jammu and Kashmir.
 Section 1 of IPC says that the code applies to the whole of India. ‘India’ has been defined
in section 18 of IPC. And, the territory of India is defined under Article 1(3) of the Constitution.
It comprises:
(a) the territories of the States;
(b) the Union Territories defined in the First Schedule;
(c) such other territories as may be acquired.

Note: The territorial waters of India are also a part of the territory of India. Therefore, any
offence committed within the territorial waters of India will also be held to have been committed
within India.

Section 2: Punishment of offences committed within India

Every person shall be liable to punishment under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which, he shall be guilty within India.

Section 2 of IPC speaks about the intra-territorial jurisdiction of the Code. When a crime is
committed within the territory of India, it is known as intra-territorial jurisdiction.

As per this section, the Indian Penal Code applies to every person doing any act or omission as
opposed to the Code. The word ‘every person’ in this section means a citizen of India, as well as
a non-citizen who commits an offence. The person will be liable for the punishment irrespective
of its nationality, rank, caste, etc.

Note: A foreigner cannot plead that he did not know that the act he was doing was wrong
because the act is not an offence in his own country.Although there are no exceptions to the
jurisdiction of the Indian Penal Code, certain persons are immune or exempted from liability
under the Code. They are:

1. Foreign sovereigns.
2. Persons with high dignity of the State: The President of India and the Governors of the
State come under this position. It is given in Article 361 of the Indian Constitution that ‘no
criminal proceedings shall be instituted or continued against the President or a Rajyapal of a
State in any court during the term of his office’.
3. Ambassadors and some foreign diplomats.
4. Alien enemies will not be liable under this Code for anything done in connection with the war
and, for them, martial law will apply.
5. Foreign army.
6. Warships: Man of war of a state in foreign waters is exempted or immune from the
jurisdiction of the State in whose territorial jurisdiction they are.
Note: If a person causes injury to another person on Indian Territory, being physically present in
another country’s territory, the offender or the person causing injury may be prosecuted within
India if his existence in India for the trial can be secured.
In the landmark case of R v. Esop, the accused was charged for the unnatural offence that he
committed in India and he defended himself with the fact that he was not a native of India but of
Baghdad, where the action did not amount to an offence. However, the Court rejected this
defence and convicted him for an unnatural offence.

In another case of State of Maharashtra v. M.H. George, a German national was travelling to
Manila with 34kg of gold, which he failed to declare in the manifest for transit. The plan arrived
in Bombay and the Indian Customs on search recovered the gold and prosecuted him under the
Foreign Exchange Regulation Act. The Supreme Court of India held that, even though the man
remained on the plan, he cannot be exempted from conviction on the plea of ignorance of the law
and convicted him under the said Act.

Section 3: Punishment of offences committed beyond but which by law may be tried within
India

Any person liable, by any Indian law to be tried for an offence committed beyond India, shall be
dealt with according to the provisions of this Code for any act committed beyond India in the
same manner as if such act had been committed within India.

Section 3 of IPC deals with the extra-territorial jurisdiction of the Code. Accordingly, a person
can be held liable for anything done beyond the territory of India.

As per this section, a person who performs an act beyond the territorial boundaries of the country
and the consequences of such an act are such that it is deemed to have been committed within the
territory of India, the person causing an offence can be dealt with the provisions of this Code for
the act done by him, even if the country in which he has committed the act, is not an offence
under the general laws of that country.

The following are the essentials of this Section:

A person must be liable under Indian law. Therefore, a citizen of India or any foreigner who is
bound under Indian law is bound by Section 3 of the IPC.

The offence must be committed beyond the territory of India, either geographical or marine.

Such persons shall be bound by Indian law for any offence committed outside India, as though
the offence was committed within India.
In the case of Mobarak Ali v. The State of Bombay, a Pakistani national made false
representations from Karachi to a man in Bombay on the pretext that he had a stock of rice and
on receipt of money, he would ship the rice. However, no shipment was made after the
complainant paid the amount. On arrest, the accused claimed that he was in Pakistan at the time
of the offence and therefore, he cannot be held liable for his actions. The Court held that though
the offence was committed in Bombay and that he was not present in Bombay at the time of the
commission of the offence, he would still be held liable.

Section 4: Extension of Code to extra-territorial offences

The provisions of this Code also apply to any offence committed by-
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;
(3) any person in any place without and beyond India committing offence targeting a computer
resource located in India.

Explanation: In this section-

(a) the word “offence” includes every act committed outside India which, if committed in India,
would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-
section (1) of section 2 of the Information Technology Act, 2000.

Extra-territorial jurisdiction of IPC is extended to section 4 of IPC. This section describes the
jurisdiction of the Indian Criminal Courts in the following cases:
(a) Offences that are committed by any Indian citizen in any place beyond the territory of India.
(b) Offences that any person commits, Indian citizen or foreigner, on any ship or aircraft
registered in India wherever it may be, within or outside the territory of India.
(c) Offences that are committed by any person, Indian or foreigner, in any place beyond the
territory of India targeting a computer resource(s) located in India.

Note: A foreigner who has committed a crime in India shall be subjected to the provisions of the
Indian laws, and he shall be punished as per the provisions of this act, even if he was not
physically present in India at the time of the commission of the offence.

Section 5: Certain Laws not to be affected by this act

Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of
officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of
any special or local law.

Section 5 is an exception to section 2 of IPC. It is a saving clause and provides for restricting the
jurisdiction of the Indian Penal Code, 1860 by obstructing the application of the Code on the
subject for which specific laws already exists. It also restricts the applicability of the act over a
certain class of people for whom the different laws are already present in the country, such as
soldiers, sailors, etc., in the service of the government of India. Further, offences that are defined
by special or local law have also been excluded from the operation of the Code.

Note: It is possible that an offence may be punishable under both special or local law and the
Indian Penal Code. In such a case, if special or local law was incomplete in itself, the Indian
Penal Code will not be applied. But, if given in the local or special law that the Indian Penal
Code is not to be excluded, it will apply. A person cannot be punished under both the Indian
Penal Code and special law for the same offence.

In Mubarak Ali v. The State of Bombay, a Pakistani national was held liable for an offence in
Bombay despite not being physically present at the time of commission.

Punishment

Punishment is the penalty on someone as a result of their wrongdoing.

Crime is against society. Police aid in preventing the crime by arresting the criminals and
forwarding them to court, where they are punished according to the law. The result of crime
is punishment. The main aim of punishment is to reform the criminals and convert them into
good Samaritans (a person who voluntarily offers help or sympathy in times of trouble) and law-
abiding citizens. According to research, there are several theories of punishment. Let us see the
essential ones.

Theories of Punishment

There are different kinds of punishment that a person can face. In order to understand them, first, we
need to understand the theories of the punishment. There are majorly four theories of punishment.

These theories are the deterrent theory, retributive theory, preventive theory, and reformative theory.
We will discuss these theories in length below.

1. Deterrent Theory of Punishment

The word ‘deter’ means to prevent. Here, deterrent theory refers to refraining from doing a
particular act. The main goal behind using this theory is to restrain criminals from committing a
crime. In such theories, punishments awarded are severe in nature which creates a fear not only
in the criminal’s mind but also in the mind of others. This theory is still prevalent in some
Islamic countries.
 In other words: The object of this theory is not only to prevent the wrongdoer from doing a
wrong subsequently but also to make him an example for society and other people who have
criminal tendencies.

Drawbacks of the Deterrent Theory of Punishment

1. Punishment fails to create fear in the mind of criminals once the punishment is over.
2. This type of punishment fails to create fear in the mind of hardened criminals.
3. Arouses sympathy in the mind of the public for criminals.
Example of the deterrent theory of punishment: Post Nirbhaya judgment, still rape cases are on
the rise.

2. Retributive Theory of Punishment

The word ‘retribute means to give in return the same thing that has been received. To payback. It
is also known as Vengeance Theory. It is based on the principle – tit for tat. This theory is
against the principle of Mahatma Gandhi.

There was a belief that if the offender is subjected to the same torture as he had done to the
victim, then it makes the offender realize what he has done.

In other words: This theory proposes tit for tat, eye for an eye, tooth for a tooth. The punishment
has to be proportional to the crime committed. The believers of this theory say that criminals
must suffer pain. Retributive theory is the most ancient theory of justice.

Drawbacks of the Retributive Theory of Punishment

1. There is no relief for the offence committed by the offender.

2. This type of punishment reflects the wild character of justice.
3. Punishment may not be revengeful always.
Example of the retributive theory of punishment: Rape in return for rape may not be a
punishment for the offender.

3. Preventive Theory of Punishment

The main aim of this theory is to prevent crime. When the criminals are kept in jails, they are
kept out of society. The object of this theory is to prevent or disable the offenders from repeating
the offence by giving them punishment. A supporter of preventive theory is Paton.

Examples of the preventive theory of punishment include death, life imprisonment, forfeiture of
property etc.
 Drawbacks of the Preventive Theory of Punishment
1. Fails to fulfil the aim of juvenile offenders and offenders who have committed the offence for
the first time.
Case Law: Dr Jacob vs the State of Kerala: The apex court stated that punishment should be
deterrent, retributive, preventive, expiatory, compensatory, incapacitation and utilitarian theory.
Preference for one theory over the other is not a good policy to award punishment.

4. Reformative Theory of Punishment

This theory focuses on reforming the criminals and bringing the criminals back to society as
good and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not
the sinner.
This theory was successful to some extent in the case of juveniles. Some work or craftsmanship
is imposed on the offender during his period of confinement with the aim that he will start a new
life after his punishment is over.

Example of the reformative theory of punishment: A, a prisoner, has learned pottery during his
stay in jail. After his release from jail, he started a pottery business, earned his livelihood and
lived happily.

Punishments Under Section 53, IPC

The punishments to which offenders are liable under the provisions of this Code are:

1. Death.
2. Imprisonment for life.
3. Imprisonment, which is of two descriptions, namely:
(I) Rigorous, that is, with hard labour;
(II) Simple.
4. Forfeiture of property.
5. Fine.
6. Solitary confinement
As per section 53 of the Indian Penal Code, there are five types of punishments that a court may
provide to a person convicted of a crime. These are death, imprisonment for life, simple and
rigorous imprisonment, forfeiture of property and fine. And section 73 provides for another type
of punishment, that is solitary confinement. Let us learn about all these in detail.

1. Death Punishment

Punishment of death is also known as capital punishment. Under this punishment, a person is
hanged till he dies.
This punishment is sanctioned by the government and ordered by the court. It is provided only in
the rarest of rare cases. This punishment is provided only for serious offences. A death sentence
is the highest punishment awarded under IPC, and it has always been a controversial subject.
Arguments are made in favour and against the retention of the capital sentence as a form of
punishment.

It was argued in Jagmohan Singh vs the State of Uttar Pradesh that the death penalty is
unconstitutional and hence invalid as a punishment. However, the Supreme Court held the death
penalty as valid. It held that deprivation of life is constitutionally lawful if done according to the
procedure set by law.

Death punishment or capital punishment can be provided for the offences under sections 121,
132, 194, 302, 303, 305, 307, 364A, 376E, 396, and so on of the Indian Penal Code. In these
sections, it is not obligatory for the court to provide capital punishment.

Earlier, for the offence provided under section 303, i.e., murder by life convict, capital
punishment was compulsory. In Mithu vs the State of Punjab, the death penalty was held
unconstitutional for being violative of Articles 14 and 21 of the Constitution.

The Supreme Court in Bachan Singh vs the State of Punjab upheld the validity of the death
penalty, but the court restricted the provision of the death penalty to the rarest of rare cases only.
If the case falls under this theory, then capital punishment may be given.

The court did not elaborate as to what falls under the category. Still, the court has declared from
time to time that the cases like honour killings, assassination, genocide, brutal murder, etc., fall
under the definition of ‘rarest of the rare case’.

As per section 54 of the Indian Penal Code, the appropriate government can commute the
sentence of death for any other punishment provided by this Code.

2. Imprisonment for Life

The words “imprisonment for life” was substituted for “transportation for life” by Act XXVI of
1955.In this type of punishment, an accused convicted of a crime has to remain in prison until he
is alive or until pardoned or otherwise commuted to a fixed period.

In its natural meaning, imprisonment for life means imprisonment for the whole of the remaining
term of the convicted person’s natural life. As per section 57 of the Code, the period for life
imprisonment is 20 years only for calculating purposes. Imprisonment for life can never be
simple imprisonment; it is always rigorous imprisonment.

What is the reason behind 14 years of imprisonment

 As per section 433(b) of the CrPC and section 55 of the IPC, the appropriate government has the
power to reduce or suspend the sentence of imprisonment for life to imprisonment for a term of
not more than 14 years. As the prisoner is under the supervision of the State Government, the
State Government has trust in it and in such case, the State Government can appeal for the
reduction of the punishment.

3. Imprisonment

Imprisonment means taking away a person’s freedom and putting him in prison. According
to section 53 of the IPC, there are two kinds of imprisonment:

1. Simple Imprisonment: It is the type of imprisonment where an accused convicted of a crime is

kept in prison without any hard labour. They are required to do only light duties. The
punishment of simple imprisonment is awarded only for lighter offences such as defamation.
2. Rigorous Imprisonment: It is the type of imprisonment under which a prisoner or an accused
convicted for a crime is kept in prison, and they have to do hard labour such as agriculture,
carpentry, drawing water, etc. Rigorous imprisonment is obligatory for the offences given
under the following two sections (no alternative for simple imprisonment is available):
a. Section 194, IPC: Giving or fabricating false evidence with intent to procure conviction of
capital offence.
b. Section 449, IPC: House-trespass in order to commit offence punishable with death.

4. Forfeiture of Property

Forfeiture implies the loss of property of the accused. Under this punishment, the State seizes the
property of a criminal. It is the result of the wrong or default caused by the person. The property
forfeited may be movable or immovable.

Forfeiture of property as punishment is provided for the offences given under section
126 (committing depredation on territories of power at peace with the Government of
India) and section 127 (receiving property taken by war or depredation mentioned in sections
125 and 126).

5. Fine Under IPC

The court may impose the punishment of a fine as sole imprisonment or as an alternative for
imprisonment, or in addition to imprisonment. It depends upon the court to decide whether either
imprisonment or fine or both are to be awarded in a particular case. According to section 64 of
IPC, the court may order imprisonment if a person fails to pay the fine.

6. Solitary Confinement

It is defined under section 73 of the IPC. Solitary confinement means keeping the prisoner
isolated and away from any kind of intercourse with the outside world. It is believed that a
 feeling of loneliness may exert a wholesome (good) influence and reform the criminal. Solitary
confinement shall in no case exceed three months in total. The scale, as given in section 73, is as
follows:

1. If the term of imprisonment is less than or up to six months, then the period of solitary
confinement shall not exceed one month.
2. If the term of imprisonment is more than six months but less than one year, then the period of
solitary confinement shall not exceed two months.
3. If the term of imprisonment is of more than one year, then the period of solitary confinement
may be up to three months but not beyond that.
It can only be awarded if the following two conditions exist:

1. A person must be convicted for an offence under this Code.

2. The offence must be the one for which the court has the power to sentence the accused to
rigorous imprisonment.
According to section 74 of IPC, the punishment of solitary confinement cannot be awarded for
the whole term of imprisonment, and it must be imposed at intervals. A sentence of solitary
confinement for the whole term of imprisonment is illegal if awarded for more than 14 days at a
time. When the imprisonment awarded is of more than three months, the solitary confinement
shall not exceed seven days in any one month of the whole imprisonment awarded.

Charles vs Superintendent, Tihar Jail

In this case, the Supreme Court observed that solitary confinement means the harsh isolation of a
prisoner from the society of fellow prisoners by cellular detention. It should be imposed
following a fair procedure and only in exceptional cases.

Commutation of Sentence of Death - Section 54

Section 54 of the Indian Penal Code. "Commutation of Death Sentence" In every case
where a sentence of death has been passed, the appropriate Government may, without the
consent of the offender, commute the sentence to any other punishment provided by this
Code, whereas reading section 55 In every case where a sentence of life imprisonment
has been passed, the appropriate Government may, without the consent of the offender,
commute the punishment for the term not exceeding fourteen years other punishment
provided by this Code.

What does appropriate government mean?

The expression "appropriate Government" is defined in sections 54 and 55 to mean the Central
Government in cases where the sentence is a death sentence or for an offence against any law
relating to a matter to which the executive power of the Union extends, and the State
Government in cases where the sentence (whether of death or not) is for an offence against any
law relating to a matter to which the executive power of the Union extends.
Case laws: State of Haryana & others V. Ram Diya (1990): In the absence of an order of
commutation under Section 55 IPC by the appropriate government, which term is defined
under Section 55-A IPC, or under Section 433(b) of the Criminal Procedure Code of 1973
by the appropriate government, or on a clemency order in exercise of empowering under
Article 72 or 161 of the Constitution of India, there is no question of releasing such a
lifer early. In addition, Section 54 of the Indian Penal Code allows the competent
authorities to commute a death sentence to any other punishment specified in the Indian
Penal Code.

sentence may be (in Certain cases of Imprisonment) Wholly or Partly Rigorous or Simple -
Section 60
According to section 60 of the India Penal Code, in the case of imprisonment in certain
cases, sentences may be wholly or partly rigorous or simple. Thus, In cases in which an
offender is punishable with imprisonment of either description, the court which sentences
such offender is competent to direct that the imprisonment shall be wholly rigorous, or
that such imprisonment shall be wholly simple or any part of such imprisonment shall be
rigorous and the rest simple.
Under the Indian penal code, a person is sentenced for an offence committed by him by
considering several factors. The factors which are taken into consideration while imposing
punishments are:

1. The gravity of the violation;

2. The seriousness of the crime; and
3. Its general effect upon public tranquillity.

Then the judges rely on other factors in determining punishment such as the history of the
criminal conduct of the offender. whether the offender was only an accessory to the offence. The
circumstances under which the offence was committed. Thus we can understand that there is a
relation between the degree of punishment and the gravity of the offence.
Amount of Fine, Sentence of Imprisonment for non-payment of fine, when offence
punishable with fine only - Section 63, 64, 65, 66, 67,68,69,70 of Indian Penal Code 1860
The punishment for an offence may be Imprisonment with fine, Imprisonment only or Fine
only. Sometimes the accused may not have the capacity to pay fine. In such circumstances
the accused will be imprisoned for a fixed term for not paying the fine. There are incidents in
which accused die before completion of imprisonment term without paying fine. In such
situation also the accused will not be discharged from the liability for payment of fine.
As per Section 63 of IPC, if no sum is expressed in the order, the fine amount may extend the
amount of fine the offender is liable is unlimited, but the amount shall not be excessive. As
per section 64 of IPC if the offender is not able to pay fine the competent court may
pronounce imprisonment against not payment of fine. As per section 65 of IPC the maximum
period of imprisonment against non- payment of fine shall not exceed one-fourth of the term
 of imprisonment which is the maximum fixed for the offence, if the offence be punishable
with imprisonment as well as fine.
Amount of fine - Section 63 of Indian Penal Code 1860
"Where no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be excessive."

Sentence of imprisonment for non-payment of fine- Section 64 of Indian Penal Code 1860
"In every case, of an offence punishable with imprisonment as well as fine, in which the offender
is sentenced to a fine, whether with or without imprisonment, and in every case of an offence
punishable [with imprisonment or fine, or] with fine only, in which the offender is sentenced to a
fine,] it shall be competent to the Court which sentences such offender to direct by the sentence
that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term,
which imprisonment shall be in excess of any other imprisonment to which he may have been
sentenced or to which he may be liable under a commutation of a sentence."

Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable -
Section 65 of Indian Penal Code 1860
"The term for which the Court directs the offender to be imprisoned in default of payment of a
fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the
offence, if the offence be punishable with imprisonment as well as fine."
Description of imprisonment for non-payment of fine-Section 66
"The imprisonment which the Court imposes in default of payment of a fine may be of any
description to which the offender might have been sentenced for the offence."

Imprisonment for non-payment of fine, when offence punishable with fine only - Section
67 of Indian Penal Code 1860
"If the offence be punishable with fine only, [the imprisonment which the Court imposes in
default of payment of the fine shall be simple, and] the term for which the Court directs the
offender to be imprisoned, in default of payment of fine, shall not exceed tile following scale,
that is to say, for any term not exceeding two months when the amount of the fine shall not
exceed fifty rupees, and for any term not exceeding four months when the amount shall not
exceed one hundred rupees, and for any term not exceeding six months in any other case."

Imprisonment to terminate on payment of fine - Section 68

"The imprisonment which is imposed in default of payment of a fine shall terminate
whenever that fine is either paid or levied by process of law."

Termination of imprisonment on payment of proportional part of fine - Section 69 of Indian

Penal Code 1860
"If, before the expiration of the term of imprisonment fixed in default of payment, such a
proportion of the fine be paid or levied that the term of imprisonment suffered in default of
payment is not less than proportional to the part of the fine still unpaid, the imprisonment
shall terminate."
 Fine leviable within six years or during imprisonment-Death not to discharge property
from liability - Section 70
"The fine, or any part thereof which remains unpaid, may be levied at any time within six
years after the passing of the sentence, and if, under the sentence, the offender be liable to
imprisonment for a longer period than six years, then at any time previous to the expiration of
that period; and the death of the offender does not discharge from the liability any property
which would, after his death, be legally liable for his debts."

RULE OF CONSTRUCTIVE LIABILITY OR JOINT LIABILITY

The rule of constructive liability is based upon the connecting link between the main offender
and the others who are constructively made liable.

Some provisions in the Indian Penal Code determine the liability of a person committing a crime
in combination with some others. In all such provisions, joint liability is created either because
there is a common intention and common object to all the persons forming a group alleged to
have committed a crime. Such connecting link has been identified under section 34 and section
149 of the Indian Penal Code.

This IPC law note tells you about common intention and common object under sections
34 and 149 of the Indian Penal Code and the differences between these two similar-sounding
terms.

Section 34: Common Intention

Section 34 of the Indian Penal Code is enacted on the principle of joint liability in doing a
criminal act. Section 34 IPC deals with the act done by several persons in furtherance of
common intention. The section is a rule of evidence and does not create a substantive offence.

Section 34 of the Indian Penal Code lays down the principle of joint criminal liability. This
section does not create any offence but establishes a rule of evidence. Common means something
which is shared by all, and intention is something which is seen from the overt act of a person.

Essentials of Common Intention

The essential elements of section 34 of IPC are:-

1. There must be some act which is criminal in nature.
2. The act must be done by two or more persons.
3. The act done by persons must be with the common intention of all.
4. Every person who is involved in that act is liable for such act.
5. Every person shall be liable as if he has done that act alone.

Common Intention, Joint Liability

Common intention refers to the sharing of the mind. To constitute joint liability under section 34,
it is essential that there should be prior meeting of minds. Before committing a criminal act, the
persons involved in the act must know about the act. It is necessary for their minds to meet.

The meeting of mind may also develop on the spot of crime. It isn’t necessary that it should take
place at the time of planning.

For example, four persons plan to beat A near riverside. And as soon as they reach the spot to
beat A, they found a person B, who is enemy of A. After knowing their plan, B gets along with
those four persons in order to beat A. Here B has joined them on the spot, but he is sharing
common intention with all.

Joint Liability, Liability of All

All the persons who share common intention and are all involved in the act are jointly liable for
the crime. It is immaterial that what amount of participation they have in the act, but their
liability is equal to that of the main offender.

In Barendra Kumar Ghose vs Emperor, 1925

The court held that they also serve who stand and wait. It is not necessary that the participation
of all persons shall be equal. One may do more, and one may do less. But that doesn’t mean that
the person did less shall be free from the liability. His liability is the same.

The court held that they also serve who stand and wait. It is not necessary that the participation
of all persons shall be equal. One may do more, and one may do less. But that doesn’t mean that
the person did less shall be free from the liability. His liability is the same.

For example, Five persons A, B, C, D, and E planned to rob a bank. Four of the members of the
group that is A, B, C, and D, went inside the bank, and E was standing at the gate to aware his
partners on the arrival of police. Here the act of E is nothing but standing at the gate of the bank,
but still, he is responsible for the act in the same manner as everyone is.

Note: It is not necessary for a person to be physically present at the place of crime.
 Essentials of Section 34

The three essential ingredients for section 34 of the Indian Penal Code are as follows:

1. Several Persons

The court held in Sachin Jana vs State of West Bengal (2008) that an act done by two or more
people jointly and intentionally can be treated as if done by each individual individually.

2. Common Intention

The term ‘common intention’ has been given a different meaning in different cases depending
upon the circumstances of the cases as:

 prior meeting of mind

 pre-arranged plan
 desire to commit a criminal act without contemplation of consequences
In Krishna Govind Patil vs State of Maharashtra (1963), it was held that common intention
might develop on the spot also.

3. Criminal Act in Furtherance of Common Intention

When several people commit a crime in furtherance of their common intention, each of them
who does some act – similar or different, big or small – is liable for that act.

In Barendra Kumar Ghosh vs Emperor (1925), the term criminal act was defined as the unity of
criminal behaviour that results in something for which an individual would be punishable if it
were all done by himself alone in an offence.

The case of Barendra Kumar Ghosh v. King Emperor (1925) was one of the early cases where
the scope of Section 34 of the Indian Penal Code, 1860 was taken into consideration by Lord
Sumner of the Privy Council. In this case, the accused had appeared before the Privy Council
after his conviction for murder under Section 302 read with Section 34 of the 1860 Code was
upheld by the Calcutta High Court. The appeal was dismissed as the Privy Council made the
following observation.

Section 34 deals with the commission of separate acts, similar or diverse, by several persons; if
all are done in furtherance of a common intention, each person is liable for the result of all as if
he had done them himself; for ‘the act’ and ‘that act’ in the latter part of the section must include
the entire action covered by a criminal act ‘in the first part’ because they refer to it. In other
 terms, a ‘criminal act’ is a collection of criminal acts that culminate in something that an
individual would be responsible for, if it were all done by himself, i.e., a criminal offence.

In Mahbub Shah vs Emperor (1945), attention was drawn by the Privy Council that care must

be taken between same or similar intention and common intention. That distinction is real and

substantial and, if overlooked, will result in the miscarriage of justice.

In Barendra Kumar Ghosh vs Emperor (1925), the appellant was charged under section 302

IPC read with section 34 of the Indian Penal Code, with the murder of sub-postmaster. The

appellant contended:

 that he did not fire at the sub-postmaster.

 that he was standing outside and that he was compelled to join others for robbery and had no
intention to kill the deceased.
The Privy Council held that even if the appellant did nothing as he stood outside the door, it is to
be remembered that in crime as in other things, they also serve who stand and wait.

Section 149: Common Object

Section 149 of the Indian Penal Code states every member of unlawful assembly is guilty of the
offence committed in prosecution of the common object. Section 149 of the IPC creates a
substantive offence. The term ‘unlawful assembly’ is defined under section 141 of the Indian
Penal Code.

Essentials of Section 149

The two essential ingredients for section 149 of the Indian Penal Code are as follows:

1. Some offence must be committed by any member of an unlawful assembly.

In Yunis vs State of Madhya Pradesh (2003), the Supreme Court held that the presence of the
accused as a member of the unlawful assembly is sufficient for conviction. Even if no overt act is
attributed to the accused, the fact that he was a member of an unlawful assembly and was present
at the time of the occurrence is sufficient to hold him guilty.
2. Such offence must have been committed in prosecution of the common object of the assembly
or must be such as the members of the assembly knew it to be likely to be committed in
prosecution of the common object.

The term ‘common object’ means the purpose or design. To make a common design, it must be
shared by all.

The phrase ‘in the prosecution of the common object’ indicates that the offence committed
was directly related to the common object of the unlawful assembly of which the accused were
members.

In Paran vs State of Rajasthan (1976), the court held that the individual acts cannot be grouped
in such cases, and the individuals are to be held responsible for the individual acts.

In Munna Chandra vs State of Assam (2006), it was observed that the common object is
different from common intention. It does not require a prior concert. The common object can
develop on the spur of the moment.

The word ‘likely’ means knowledge to the members of an unlawful assembly that the offence
was likely to be committed and also that it was likely to be committed in prosecution of the
common object of the assembly.

Difference Between Section 34 and 149 of IPC

Section 34 (common intention) and section 149 (common object) of the Indian Penal Code differ
as follows:

1. Section 34 of the IPC speaks of common intention, but section 149 of the IPC discusses
common object.

2. Section 34 of the IPC does not create a specific offence as it is a rule of evidence, but section
149 of the IPC creates a specific offence.

3. Common intention denotes action in concert and postulates the existence of the pre-arranged
plan, while a common object does not necessarily require proof of prior meeting of minds.
4. Under section 34 of the Indian Penal Code, active participation in the commission of the crime
is necessary. However, mere membership of the unlawful assembly at the time of the
commission of a crime would be sufficient to apply section 149 of the IPC.

5. To hold a person liable for an offence by applying section 34 IPC, at least two or more
members are required. But for application of section 149 of the Indian Penal Code, the offence
must be committed by at least five or more persons.

General Exceptions
Chapter IV of the Indian Penal Code deals with exceptions to criminal liability. These exceptions
cover different acts that, under specific circumstances mentioned in Sections 76 to 106, are not
considered offences.

Here are the 7 general exceptions in IPC:

 Mistake of fact (Sections 76, 79).

 Judicial acts (Sections 77-78).
 Accident (Section 80).
 Absence of criminal intention (Sections 81-86, 92-94).
 An act is done by consent (Sections 87-91).
 Trifling Act (Section 95).
 Private defence (Sections 96-106).
The accused person has to prove that their case falls within one of these exceptions. The court
assumes the absence of such circumstances unless proven otherwise. On the other hand, the
prosecution has the responsibility to prove the accused’s guilt.

76 and 79: Mistake of Fact

Section 76: Mistake of Fact as a Defence

Under Section 76 of the law, a person who, in good faith, believes they are legally obligated to
do something, and acts accordingly due to a mistake of fact (not a mistake of law), is not
considered to have committed an offence. It is derived from the legal maxim “ignorantia facti
doth excusat, ignorantia juris non excusat”.

Examples
 A soldier, following orders from a superior officer and conforming to the law, fires upon
a mob. In this case, the soldier has not committed an offence.
 An officer of a Court of Justice, following a court order to arrest Y, mistakenly arrests Z
after conducting a proper investigation. The officer has not committed an offence.
Section 79: Good Faith Belief in Justification by Law

According to Section 79, if a person genuinely believes in good faith that their actions are
justified by law, they are not considered offences. The key difference between Section 76 and
Section 79 is that a person is assumed to be legally bound in the former, while in the latter, they
are assumed to have legal justification. This means the distinction lies between a real or
perceived legal obligation/compulsion and a real or perceived legal justification for the act.
However, both sections require a sincere intention to act in accordance with the law (without a
guilty mind).

Illustration
Witnesses what appears to be a murder committed by Z. In good faith, A apprehends Z to hand
him over to the police. In this case, A has not committed an offence, even if it turns out that Z
was acting in self-defence.

Sections 77 and 78: Judicial Acts

he second general exception pertains to the acts of judges and courts. According to Section 77,
any act performed by a judge in the course of their judicial duties, which they genuinely believe,
in good faith, is authorized by law, is not considered an offence. For instance, even if a judge
mistakenly sentences a person to death, they are not liable for causing someone’s death.

Similarly, Section 78 states that an act carried out in accordance with the judgment or order of a
court of justice, as long as the person involved genuinely believes in good faith that the court has
jurisdiction, is not an offence. This means that the executioner who carries out the hanging of a
prisoner based on the court’s order would not be held accountable for the act.

It is important to note that under Section 78, the person executing the court’s order is protected,
even if its jurisdiction is questionable. On the other hand, under Section 77, the judge must act
within their jurisdiction to benefit from the protection. Therefore, a mistake of law can be used as
a defence under Section 78.

Section 80: Accident

The third general exception deals with acts committed by accident. According to Section 80, no
offence is committed when an act is done unintentionally or by misfortune:

 Without criminal intention or knowledge.

 In the process of carrying out a lawful act using lawful means in a lawful manner.
 With the exercise of proper care and caution.

Illustrations
Let’s say A is working with a hatchet, and accidentally, the head of the hatchet flies off, killing a
person standing nearby. If A took proper caution and there was no negligence, their act is
excusable and not considered an offence.
An accident is something that occurs unexpectedly, outside the normal course of events. It
involves the idea of something fortuitous and unforeseen. An injury is considered to be caused
accidentally when it is neither intentional nor due to negligence.

For example, during a game of cricket, if a ball strikes a person’s head resulting in their death, it
is considered an accidental death. Similarly, if two wrestlers engage in a bout and during it, one
of them falls and breaks their skull, it is also considered an accidental occurrence.

Some other illustrations include:

 A playfully points a gun at B without checking whether it is loaded and accidentally pulls
the trigger, causing B’s death. In this case, the death is not considered accidental due to
the lack of proper care and caution. However, if A had reason to believe the gun was not
loaded, the death would be considered accidental.
 If A shoots at a bird in B’s house with the intention to steal it but accidentally kills B in
the process, A would be held liable as their act of stealing is not a lawful act.

Sections 81-86 and 92-94: Absence of Criminal Intent

Criminal intention refers to the purpose or intention of committing an act prohibited by criminal
law without any valid justification or excuse.

However, certain acts may appear criminal but are performed without any criminal intent. It is
fair that such acts should not be punished since they lack mens rea, which is the mental element
of criminal responsibility.

There are seven such acts mentioned in Secs. 81-86 and 92-94:

 An act done to avoid other harm (Sec. 81).

 Act of a child (Secs. 82-83).
 Act of lunatic (Sec. 84).
 Act of an intoxicated person (Secs. 85-86).
 Bona fide act for another’s benefit (Sec. 92).
 Communication made in good faith (Sec. 93).
 An act is done under compulsion or threat (Sec. 94).

Section 81: Act Done to Avoid Other Harm/Principle of necessity

An act done with the knowledge that it may cause harm, but performed in good faith and without
any criminal intention to cause harm, to prevent or avoid harm to a person or property, is not
considered an offence.

For example, if a person, during a great fire, pulls down houses to prevent the spread of the fire
or if sailors throw passengers overboard to lighten a boat in a dangerous situation, these acts are
not considered offences under Section 81.
The underlying principle of Section 81 is that in sudden and extreme emergencies where one of
two inevitable evils must occur, it is lawful to choose the lesser evil. Whether such
circumstances exist in a particular case is a matter of fact to be determined.

However, it is important to note that a person cannot intentionally commit a crime to avoid
greater harm. For instance, if a thief intentionally poisons the stolen toddy to catch the thief but
unknowingly causes harm to unsuspecting individuals who consume it, Section 81 cannot be
used as a defence.

Similarly, a starving person cannot justify stealing food by claiming that it was done to avoid
harm, such as their death. Intentionally committing an offence like theft cannot be justified under
the principle of self-preservation.

In the case of Dudley v. Stephens (1884) 14 Q. B. D. 173, it was held that a person who kills
another to consume their flesh to save themselves from starvation is guilty of murder. The
doctrine of self-preservation does not apply in such cases.

Sections 82-83: Act of Child

According to the Indian Penal Code, children under seven are considered incapable of
committing a crime. Section 82 states that the acts of a child under seven are not offences. It’s
important to note that this immunity extends not only to offences under the Indian Penal Code
but also to offences under any special or local law.

By legal presumption, infants are deemed doli incapax, meaning they cannot understand right
from wrong, and therefore the question of criminal intent does not arise. If individuals commit
crimes through children below seven, they will be held responsible while the child will be
exempted.

Under Section 83, acts done by children above the age of seven and below the age of twelve will
be protected if it can be shown that the child in question did not possess sufficient maturity of
understanding to comprehend the nature and consequences of their conduct on that occasion. It’s
important to note that after twelve, there is an unlimited liability for punishment.

In a specific case, if a 10-year-old girl enters into a second marriage during her husband’s
lifetime, with the marriage arranged and performed by her mother, the girl would be liable for
bigamy if she was deemed to possess sufficient maturity of understanding.

Similarly, if a 9-year-old child steals a gold necklace and sells it to someone for a meagre
amount, the child would be liable if it can be proven that they had sufficient maturity of
understanding. The maxim “malitia supplet aetatem” (malice supplies defect of years) applies to
Section 83. The circumstances of a case may reveal a level of malice that justifies the application
of this maxim.

Section 84: Act of an Insane Person

Criminal law provides complete protection to individuals who are deemed to be lunatics. Section
84 states that nothing is considered an offence if it is done by a person who, due to unsoundness
of mind, is incapable of understanding the nature of the act or that it is wrong or against the law.
It’s important to note that the legal insanity referred to in this section is distinct from medical
insanity.

 Insane individuals cannot be held culpable as they lack free will (Furiosi nulla voluntas
est). The term “unsoundness of mind” encompasses various types of individuals,
including:
 Idiot: Someone rendered non-compos mentis due to illness, which may be a temporary
failure.
 Lunatic or madman: A person with a mental disorder.
 Unconscious person, if proven: This can include cases of sleepwalking or
somnambulism.
 Intoxicated person.
To determine the insanity of a person, the following tests or principles are important:

It must be demonstrated that the accused was of unsound mind when the offence was committed.
If they were not insane then but later became insane, they cannot benefit from Section 84.

A related concept to lunacy is known as insane delusion, considered a borderline case. Delusions
are false beliefs that can be complete or partial. Whether a person who commits an offence under
the influence of an insane delusion is excused depends on the nature of the delusion. The law
regarding insane delusions is well-discussed in McNaughten’s case (1843).

Sections 85-86: Act of an Intoxicated Person

Drunkenness is considered a form of voluntary madness for which the individual is responsible.
If a person chooses to get drunk, it is their own voluntary act, distinct from the madness not
caused by any voluntary action.

The Latin maxim “Qui Pecat Ebrius Luat Sobrius” means “Let him who sins when drunk be
punished when sober.” However, Sections 85 and 86 protect an intoxicated person if they
became intoxicated by mistake (e.g., taking the wrong medicine) or against their will through
fraud or force.

Section 85 states that an act done by a person who, due to intoxication, is incapable of knowing
the nature of the act or that it is wrong or contrary to law is not an offence, provided that the
substance that caused the intoxication was administered without their knowledge or against their
will.

The test for drunkenness is the capacity to form an intention to commit the offence, whereas the
test for insanity is the capacity to know the nature of one’s act. However, if insanity is produced
by drunkenness, it can be considered a defence under Section 84.
Section 86 establishes a presumption for certain offences committed by intoxicated persons.
Suppose an act is an offence only when done with a particular intention or knowledge, and an
intoxicated person commits it. In that case, they will be presumed to have the requisite
knowledge for the offence unless they can demonstrate that they were intoxicated without their
knowledge or against their will. It should be noted that there is no presumption regarding the
person’s intention.

Alcohol, medicines, bhang, ganja, etc., can cause intoxication. If the accused drank liquor at the
persuasion of their father to alleviate pain, it could not be considered that the liquor
administration was against their will. Therefore, they could not claim the benefit under Section
85.

In Basdev v. State of Pepsu (AIR 1956 SC 488), it was held that drunkenness is generally neither
a defence nor an excuse for a crime. By law, an intoxicated person is presumed to have the same
knowledge as a sober individual. However, the accused’s intention must be determined from the
circumstances of the case, taking into account the degree of intoxication.

If the accused’s mind was so affected by drink that they more readily gave in to violent passion,
it could not be argued that they did not intend the natural consequences of their actions. To claim
the benefit under Section 86, the accused must be so drunk that they could not form the intent
(Director of Public Prosecutions v. Beard, 1920).

Test of drunkenness
In cases of drunkenness, the focus is on whether the accused was capable of forming an intention
to commit the offence. Insanity produced by drunkenness can be considered a defence under
Section 84.

The correct test is whether, due to drunkenness, the accused was incapable of forming the
intention to commit the offence. It is presumed that a person intends the natural consequences of
their acts. However, this presumption can be rebutted in the case of a drunken person by showing
that they did not know their actions were dangerous or that they were incapable of forming the
specific intent required for the crime [Director of Public Prosecutions v. Beard (1920) AC 479].
The accused can present evidence of their drunkenness affecting their understanding and ability
to form the necessary intent (Dasa Kandha v. State of Orissa, 1976 Cr LJ 2010).

Section 86 states that a voluntarily intoxicated person will be deemed to have the same
knowledge as if they were not intoxicated. The section does not presume the same intention as if
the person had not been intoxicated; it only presumes the same knowledge. Therefore, there is no
presumption regarding intention under Section 86 (only the presumption of knowledge is
provided). The accused’s intention must be determined based on the facts and circumstances of
each case, taking into account the degree of intoxication.

Suppose the existence of a specific intention is necessary for the commission of a crime. In that
case, the fact that the offender was drunk at the time of the act, which would constitute the crime
if coupled with that intention, should be considered in determining whether they had the
necessary intention (Sir James Stephen).

Voluntary drunkenness can be an excuse only with regard to intention, so it is a complete excuse
in crimes where the presence of intention is required. However, voluntary drunkenness is not an
excuse for a crime that only requires knowledge, not intention. If a person was completely out of
their mind at the time of the crime, holding them accountable may not be possible.

Section 92: Bona fide Act for Another’s Benefit

Under Section 92 of the Indian Penal Code, an act is not considered an offence if it causes harm
to a person for whose benefit it is done in good faith, even without that person’s consent, under
emergent circumstances. This provision protects individuals who act in the best interests of
others in urgent and life-threatening situations.

For example, it would not be considered an offence if a surgeon performs an immediate

operation on an accident victim without the victim’s consent but in good faith to save their life.
Similarly, if someone drops a child from a housetop during a fire, knowing that the fall may kill
the child but not intending to kill the child and intending to secure the child’s benefit in good
faith, they would not be held liable for any offence.

In an example where a person fires at a tiger that has carried off someone, knowing that the shot
may kill the person but not intending to kill them, and doing so in good faith for their benefit if
the bullet fatally wounds the person, the individual who fired the shot would not have committed
an offence under Section 92.

This provision recognizes that in emergencies when immediate action is necessary to protect or
benefit someone, the harm caused in the process is exempted from criminal liability. It focuses
on the intention and good faith of the person performing the act to benefit another.

Section 93: Communication Made in Good Faith

Under Section 93 of the Indian Penal Code, any communication made in good faith to a person
for their benefit is not considered an offence, even if it causes harm to that person. This provision
protects individuals who communicate information honestly and with good intentions, even if the
outcome is unfortunate.

For example, if a surgeon, in good faith, communicates to a patient that they cannot survive a
certain condition, and the patient subsequently dies due to the shock caused by the information,
the surgeon would not be held liable for any offence. Despite knowing that the communication
might lead to the patient’s death, the surgeon’s actions would be considered legal because they
were made in good faith for the patient’s benefit.

Section 93 recognizes that sometimes difficult information needs to be conveyed honestly for the
welfare of individuals, even if it may cause harm. The provision focuses on the intention behind
the communication and protects individuals who act in good faith to provide necessary
information for the benefit of others.

Section 94: Act Done under Compulsion or Threat

Under Section 94 of the Indian Penal Code, if a person commits an offence under compulsion or
threat, they may be excused if the threat is to cause instant death. However, there are certain
limitations to this provision. The person under threat cannot commit murder or an offence
against the State that is punishable by death, such as treason, to avail themselves of the benefit of
Section 94. Additionally, the person must not have voluntarily or reasonably placed themselves
under such constraint due to a fear of harm short of instant death.

If a person voluntarily joins a gang of dacoits on their own accord or due to the threat of being
beaten, they would not be entitled to the benefit of Section 94. However, if a person is seized by
a gang of dacoits and forced, under the threat of instant death, to commit an illegal offence, such
as breaking open a door, they would be entitled to the benefit of Section 94.

It is important to note that the threat must be to cause instant death. Merely threatening with
future death or any other injury that is not instant death would not be a valid excuse under
Section 94. For example, if someone threatens another person with a stick to harm someone else,
the person threatened cannot plead the defence under Section 94. However, if the threat involves
a loaded revolver or a dagger held at the person’s throat, causing them to believe they would be
instantly killed if they did not commit the offence, this would be a valid defence under Section
94.

Sections 87-91: Act Done by Consent

Sections 87-91 of the Indian Penal Code outline the circumstances in which an act done with the
victim’s consent will be excused or not considered an offence. Consent is a crucial factor that
distinguishes between innocence and criminal liability in various situations.

Section 90 of the Indian Penal Code specifies instances where consent is not considered valid.
These include:

 Consent is given under fear of injury or misconception of fact.

 Consent is given by a person who cannot understand the nature and consequences of the
act due to unsoundness of mind or intoxication.
 A person under the age of 12 gives consent.
 It is important to note that mere submission by a person who does not understand the
nature of the act is not considered valid consent. Consent and submission are not
synonymous.
Now, let’s discuss the sections that provide exceptions in IPC where acts done with consent will
not amount to offences:
Section 87 states that if an act, not intended or known to cause death or grievous hurt, causes
harm to a person above 18 years of age who has given consent to suffer it, it is not an offence.
This section applies to injuries during games, sports, or similar activities. It is based on the
principle of volenti non-fit injuria, which means that he who consents cannot complain.
However, consent cannot justify acts that are likely to cause death or grievous hurt.

Section 88 states that an act done in good faith for the benefit of the victim, with the victim’s
consent, is not an offence. This section protects surgeons performing surgical operations and
reasonable acts of teachers, such as corporal punishment, to enforce discipline. However, it does
not protect unqualified medical practitioners (quacks).

Section 89 protects acts done in good faith for the benefit of a child or an insane person or with
their guardian’s consent.

Section 92 clarifies that the term “benefit” mentioned in Sections 88 and 89 does not include
mere pecuniary benefits.

Section 91 specifies that the exceptions in Sections 87-89 do not extend to acts that are offences
independently of any harm caused to the person giving consent. For example, causing a
miscarriage (unless done in good faith to save the woman’s life) is considered an independent
offence, and the consent of the woman or her guardian does not justify the act.

Section 95: Trifling Acts/ Acts Causing Slight Harm

The sixth general exception in IPC is laid down in Section 95. This exception is based on the
principle of de minimis non-curat lex, which means that the law does not concern itself with
trifles or minor matters.

According to Section 95, if a person causes harm, even intentionally or knowingly, and that harm
is so slight that a person of ordinary sense and temper would not complain about it, then it is not
considered an offence.

This section applies to acts that result in negligible or trifling harm, including accidental and
deliberate acts. The harm can include actual physical injury as well. It recognizes that certain
acts, while technically falling within the scope of the penal law, are inconsequential and do not
warrant criminal prosecution.

Examples of such trivial acts mentioned in your explanation, such as picking up a wafer from
another person’s plate without permission, lighting one’s cigar with someone else’s matchbox
without consent, or a light blow given with an umbrella, illustrate the types of acts that would
fall within the purview of Section 95. These acts may technically meet the criteria for an offence,
but they are considered insignificant and not deserving of legal consequences.

Section 95 prevents the law from being overly burdensome by exempting trivial matters from
criminal liability, focusing instead on more substantial offences that warrant attention and
prosecution.
Private Defence under Section 96 – 106
Section 96: Things done in private defence.
Nothing is an offence in which a person harms another person in the exercise of private defence.
Section 97: Right of private defence of body and property.
Every person has a right to private defence, provided under reasonable restriction under Section
99.

1. Protecting his body or another person’s body, against any offence in which there is a
danger to life.
2. Protecting his or another person’s movable or immovable property, against any
offence like theft, robbery, mischief or criminal trespass or an attempt to commit
theft, robbery, mischief or criminal trespass.

 Example: A father, in order to protect the life of daughter from the attack of a thief,
shoots him in his leg. But the father will not be liable as he was protecting the life of
his daughter.

Case law for Section 97

In Akonti Bora v. State of Assam, the Gauhati High Court held that while exercising the right of
private defence of property the act of dispossession or throwing out a trespasser includes right to
throw away the material objects also with which the trespass has been committed.
Section 98: Right of private defence against the act of a person of unsound mind etc.
When an act which would otherwise be a certain offence, is not that offence, by reason of the
youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the
person doing that act, or by reason of any misconception on the part of that person, every person
has the same right of private defence against that act which he would have if the act were that
offence.

 Example: A attempts to kill Z under influence of insanity but A is not guilty. Z can
exercise private defence to protect himself from A.
Section 99: Acts against which there is no right of private defence.

 There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by a public servant acting in good faith under color of his
office, though that act may not be strictly justifiable by law.
 There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by the direction of a public servant acting in good faith under
colour of his office though that direction may not be strictly Justifiable by law.
 There is no right of private defence in cases in which there is time to have recourse to
the protection of the public authorities.
 The harm caused should be proportional to that of imminent danger or attack.
Case law for Section 99
In Puran Singh v. State of Punjab, the Supreme Court observed that where there is an element of
invasion or aggression on the property by a person who has no right of possession, then there is
obviously no room to have recourse to the public authorities and the accused has the undoubted
right to resist the attack and use even force, if necessary.
Section 100: When the right of private defence of the body extends to causing death.

 Assault causing reasonable apprehension of death.

 Reasonable apprehension of grievous hurt.
 Committing rape
 Unnatural lust
 Kidnapping or abducting
 Wrongfully confining a person in which that person reasonably apprehends the
assault and not able to contact public authority.
 Act of throwing or attempting to throw acid, causing apprehension in the mind that
assault will cause grievous hurt.

Case law for Section 100

In Yogendra Morarji v. state, the SC discussed in detail the extent and limitations of the right of
private defence of the body. There must be no safe or reasonable mode of escape any retreat for
the person confronted with imminent peril to life or bodily harm except by inflicting death.

Section 101: When such rights extend to causing any harm other than death.
If the offence be not of any of the descriptions enumerated in the last preceding section, the right
of private defence of the body does not extend to the voluntary causing of death to the assailant,
but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the
assailant of any harm other than death.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private
defence is not as onerous as that of a prosecution to prove its case. Where the facts and
circumstances lead to a preponderance of probabilities in favor of the defence case it would be
enough to discharge the burden to prove the case of self-defence.
Section 102: Commencement and continuance the right of private defence of the body.
The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; it continues as long as such apprehension of danger to the body
continues.1

 Example: A, B, and C were chasing D to kill him in order to take revenge, but
suddenly they saw a policeman coming from another side. They got afraid and turned
back to run. But D shoots B in his leg, even when there was no imminent danger of
harm. D will be liable as there was no apprehension of death or risk of danger.
Section 103: When the right of private defence of property extends to causing death.
 1. Robbery;
2. House-breaking by night;
3. Mischief by fire committed on any building, tent or vessel, building, tent or vessel
used as a human dwelling, or a place for the custody of property;
4. Theft, mischief, or house-trespass, under such circumstances, as may reasonably
cause apprehension that death or grievous hurt will be the consequence if such right
of private defence is not exercised.

 Example: C Attempts to stab D maliciously while committing burglary in D’s house.

There is a reasonable apprehension in the mind of D that C will hurt him grievously,
so in order to save himself and property, C throttled D with a knife in his chest,
causing Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting
slogans for demands outside the factory. Some brickbats were also thrown by them which
damaged the property of the owner who fired two shots from outside his office room, one of
which killed the deceased worker. The court held that it was a case of mischief and the accused
will not get the defence of this section.
Section 104: When such right extends to causing harm other than death.
If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other than death.

 Example: If A has committed criminal trespass in order to annoy B or hurt him, then
B will have the right to harm A in proportional manner, not causing death of the
person.

Case law for Section 104

In V.C Cheriyan v. State, the three deceased along with other persons had illegally laid a road
through private property of the church. A criminal case was pending against them. The three
accused belonging to church put up barricades across this road. The deceased was stabbed by
accused and Kerela HC held that private defence does not extend to causing the death of a person
in this case.
Section 105: Commencement and continuance of the right of private defence of property.
The right of private defence of the property commences when:

 A reasonable apprehension of danger to the property commences. The right of private

defence of property against theft continues until the offender has effected his retreat
with the property
 Or, either the assistance of the public authorities is obtained,
 Or, the property has been recovered.
 The right of private defence of property against robbery continues as long as the,
 Offender causes or attempts to cause to any person death or hurt
  Or, wrongful restraint
 As long as the fear of instant death or
 Instant hurt or
 Instant personal restraint continues.
 The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal trespass or
mischief.
The right of private defence of property against house-breaking by night continues as long as the
house-trespass which has been begun by such house-breaking continues.

 Example: Suppose a thief into the house of an individual, and attempts to hurt him
instantly with a knife, then that individual has the right to act in private defence and
harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a
person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away
leaving sheaves. The accused still chased him and attacked him leading to death. The court held
him as guilty of offence.
Section 106: Right of private defence against deadly assault when there is a risk of harm to
innocent person.
If in the exercise of private defence against an assault, a person causes apprehension of death, in
which defender has no choice but harming an innocent person, his right will extend to that
running of risk. 4

 Example: C is attacked by a mob who attempts to murder him. He cannot exercise his
right to private defence without firing on the mob. In order to save himself, he is
compelled to hurt innocent children while firing so C committed no offence as he
exercised his right.

Abetment
In criminal jurisprudence, the crime can be committed by a single person or with the help of two
or more persons. In case several persons are related to a particular crime, it is very essential to
know the degree of participation of each in the said offence. It is possible that some of them will
involve directly whereas a few are indirectly related by way of instigation, assistance and
cooperation that enable others to commit the crime. Our Indian Penal Code, 1860 (IPC) provides
for a specific offence for those who intentionally instigate or lend their support in the
commission of the crime. This offence is popularly known as an Abetment.

Meaning Of Abetment
The term ‘abet’ means to assist, encourage or provoke someone to commit a wrong thing. Thus,
the simple meaning of Abetmentis to help someone in the commission of an offence. Abetment
is not solely related to the actual offence but the abetment is a separate offence in itself and the
punishment has been provided for it.
The chapter V of the Indian penal code, 1860 deals with the provisions of Abetment and
provides for their liability with a suitable punishment. The definition of Abetment is mentioned
under Section 107 of the IPC which mainly involve 3 ingredients-
Firstly: To Instigates any person to do that thing
Secondly: To engage with one or more people in entering a conspiracy for the doing of that
thing.
Thirdly: To Intentionally assist any person by way of any act or illegal omission in the doing of
that thing.
Major Element Of Abetment: Mens Rea
The core element for constituting the offence of Abetment is the “Mens Rea” of the person. The
term “mens rea” means the guilty intention to do an act. Thus, it is essential that the person shall
have deliberate intention while instigating or supporting the main accused to do the act. The
Abetment can be assessed from facts to facts basis and it is mainly ascertained by the conduct of
the person. It is essential to note that mere negligence or carelessness in the facilitation of a
crime cannot make a person guilty under Section 107 of the IPC.

Further, the mere involvement of a person in the happening of an event doesn’t fulfil the
requirement of Abetment. The person shall necessarily have a guilty state of mind while doing
the entire scheme of things. Under the offence of Abetment, the mens rea is an important
element than Actus reus (actual conduct) to accuse the guilty.

In Pramod Shriram Telgote v. the State of Maharashtra, the Hon’ble Supreme

Court held that the explicit “mens rea” to do the offence is a sine qua non (the most essential
thing) for doing conviction under Section 107 of the IPC”.

The landmark case law related to it is the case of Sanju vs the State of M.P –
In this case, there was a bitter quarrel between husband and wife. The husband in anger said to
her wife go and die. The wife committed suicide after 2 days. The court held that the husband
doesn’t have the required mens -ria for the offence. Thus, he is not liable for the offence of
abetment.
Type Of Abetment
There are generally 3 types of Abetment
1). Abetment by instigation
2). Abetment by conspiracy
3). Abetment by intentional aiding.
Abetment By Instigation
The literal meaning of the term Instigation is to incite, provoke or encourage someone in the
commission of an offence. This definition is quite subjective and the court needs to look at the
facts of the case to figure out the element of instigation. The word said in a state of anger or
during a heated conversation with no such intention of the subsequent offence doesn’t fall within
the scope of Instigation. It is very essential that during instigation, the abettor must have full
knowledge of the committed offence.
It is also equally noted that if a person deliberately tries to conceal important information or by
his fraudulent conduct tries to gain a thing, then he is also liable for the offence of instigation.
For example. There is a search warrant in the name of B. The police came there but C
deliberately presented himself as B. Then he is liable for the offence of instigation.
The silent approval of an offence also falls in the definition of abetment. A large number of
dowry death cases fall under this. For example. A wife goes for Sati. The people surrounding
her didn’t say a word and let the event occur. They were liable for abetment to suicide.
Abetment By Conspiracy
The 2nd element of abetment is through conspiracy. For constituting it there shall necessarily be
three things
1). A conspiracy between two or more persons;
2). An act or illegal omission must take place in pursuance of that conspiracy;
3) Such an act or illegal omission must also take place while doing the conspired thing.
For example, A, a servant, makes a conspiracy with some thieves to do the robbery. The
servant while facilitating the act needs to keep the doors of the master’s house open in the night
so that the thieves can commit the offence. A, as per the agreed plan keeps the doors open and
the thieves take away the master’s valuable property. Now, in this case, A is guilty of abetment
by conspiracy.

Abetment By Intentional Aiding

For constituting this offence, the person shall facilitate the commission of the offence through his
conduct or by providing necessary help in any other manner. As per explanation 2 of section 107,
the support or facilitation can be given prior to or at the time of the commission of an act. It is
essential to highlight that the Aid may be given by an act or by illegal omission.
Aid By Act
For example, A instigates B to commit suicide and C puts poison in the hand of B. Here A and
C both are abettors. A is liable by instigation and C by intentional aiding.
Aid By Illegal Omission
For example, a policeman has a legal duty to interfere if an offence is being committed in front
of him. If he remains a silent spectator on this, then he will be liable as himself to encourage the
commission of the offence.
Who Is An Abettor ??
The definition of the term Abettor is mentioned in Section 108 of the Code. According to this
Section, an abettor is a person who abets the commission of such a wrongful act that will be
deemed as an offence in the eyes of law An abettor can be an instigator, or a conspirator, or
helper in the commission of a crime as defined in section 107.
It is important that the Abetment shall necessarily be for the commission of a legal offence. For
example. A instigate B to run away all the street dogs from the city. B did the same. This is not
an offence of Abetment as running away the street dogs is not a legal offence.
The exclusive scope and clear interpretation of the term Abettor is mentioned in 5 explanations
of Section 108 which includes –
1. Abetment of illegal omission – This states that the person may be held liable for abating
a person for an act which he is legally required to do and the abettor is legally exempted
for it.
For example, a police constable will be guilty of an illegal omission of his duty by not
interfering in a fight whereas a private individual cannot be held guilty of such offence.
2. The effect of Abetment is immaterial.
As per this explanation, it is not necessary that the act abetted must give the intended effect or
result. For example. An instigated B to kill M by way of stabbing. B did so but M recovered as
the wound was not sufficient to cause death. Now, A is guilty to abet B for committing the
murder.
3. A person abetted need not necessarily be capable of committing the offence.
It is not necessary that the person abetted must be capable in the eyes of the law to commit
offence. For example, a person can employ a child below the age of seven years to commit the
offence. In this case, the child is not punishable as he is exempted under section 82 of IPC and
would be treated as an innocent, where the person that directs him to do the act would be liable
as an abettor.
4. Abetment of Abetment is an offence.
Sometimes, there is a series of abetments that led to the commission of the offence. In that case,
all the people will be held equally liable for the same. For example, X instigates Y to murder M.
Y again instigated Z to kill M. In the influence of Instigation, Z does so and M was murdered in
the end. Now, X and Y are equally liable for the offence of Abetment.
5. Engagement in the conspiracy on account of which the offence is committed is
enough to make him liable as an abettor.
For example. Ram makes a plan with Mohan to kill Raju. It was decided that Ram will give the
poison. Mohan explains the plan to Ravi who arranges the poison and delivers it to Mohan. Ram
gave the poison and Raju dies in consequence. Here, Ravi has committed the offence although he
did not conspire with Ram he engaged himself in the conspiracy to kill Raju.
Punishment For Abetment
The extent of liability of an abettor is mainly dependent on the following four factors:
 which act he had abetted
 With what intention he abetted
 which act was committed
 With what intention the act was committed

The punishment for Abetment is specifically dealt with in Section 109 to 120 of the IPC.

Scope of Section 109

This section states that if there is no separate punishment of abetment provided in the Indian
Penal code as such, then this offence is punishable with the same punishment as provided for the
original offence.

Section 110 of IPC

This section comes into play when the intention of an abettor and the person abetted does an act
that has different intentions from each other. As per this, the abettor will be punished with the
abetted offence irrespective of the intention.
For example, A instigated B to cause grievous injury to M for preventing him from taking part
in a racing competition. Now, B filled with deep anger tries to kill him and in this process inflict
injury to M. Now A will be liable for the attempt to murder.

Principle of Probable Consequence

Section 111 of the Indian Penal Code deals with the Principle of Probable Consequence.
According to this principle, if there is a difference between the intended act of the abettor and the
actual act done, then the abettor will be liable for the actual one. The main precondition is that
the actual act is a probable consequence of the Abetment.

For example. The Abetmentwas done for thrashing a person but the act committed was stabbing.
Now the abettor will be liable for the stabbing if the latter act is done in the influence of
instigation or Abetment.

Scope of Section 112

The extension of section 111 is mentioned in section 112 of the IPC. As per this section, if the
person committed more than one act in the influence of instigation, then the abettor will be liable
for each and every offence.
For example. X instigated Y to commit rape. Y in the influence, not only committed rape but
also killed her. Now X will be liable for the Abetment to rape as well as Abetment to murder.
Scope of Section 113
This section provides for the punishment wherein there is a difference between the intended
effect and the actual effect that occurred after the commission of the offence.
Scope of Section 114
Section 114 deals with those cases wherein the actual crime is committed in the presence of an
abettor. It is important to note that his mere presence will not make him liable for the offence.
He must be sufficiently near to give assistance or he must participate in the alleged offence.

Scope of Section 115

It provides for the punishment of abetment of those offences which attract the death sentence. It
comprises of two situations –
1). When the Offence was not committed in consequence of abetment then the punishment is 7
years and fine.
2). When the Offence was committed in the consequence of abetment then the punishment will
be 14 years as well as a fine.
Scope of Section 116
Section 116 deals with the punishment of abetment for those offences which attract the
punishment of imprisonment for life. It also comprises 2 things
1). When the offence is committed in consequence of abetment then he is entitled to the
punishment of 1/4th of the offence as well as of the fine.
2). When the offence is committed by a public servant then the punishment is 1/2th of the actual
offence as well as a fine.
Scope of Section 118-120 Section 118 of the IPC provides punishment for intentional
facilitation in the crime. Section 119 provides punishment of public servants in the offence of
abetment. Lastly, Section 120 of the code, provides for the punishment of deliberately hiding the
identity for the offence of abetment.
Criminal Conspiracy is a criminal offence defined under Section 120A of the Indian Penal
Code (IPC).

Definition of Criminal Conspiracy under Section 120A of the IPC

Criminal Conspiracy under Indian Penal Code is an agreement between two or more persons to
commit an illegal act or to commit a lawful act by illegal means. In other words, it is a criminal
offence where two or more individuals agree to plan and execute a criminal act.

Section 120A of the IPC states: “When two or more persons agree to do or cause to be done, an
illegal act or an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy.”

For a conspiracy to be established, there must be an agreement between the conspirators, a

common intention to commit an illegal act, and an overt act in furtherance of that intention. The
agreement does not have to be in writing or expressed verbally; it can be inferred from the
conduct of the parties.

The punishment for criminal conspiracy is imprisonment for a term that may extend to six
months or fine, or both unless the illegal act is a minor one, in which case the punishment will be
lighter. However, if the illegal act is a serious one, the punishment can be more severe, up to life
imprisonment.

Ingredients of Criminal Conspiracy under Indian Penal Code

The ingredients of Criminal Conspiracy under the Indian Penal Code (IPC) can be summed up as
follows:

Agreement between two or more persons

This means that there must be a mutual understanding or agreement between two or more
individuals to commit a crime. The agreement does not have to be expressed or written, it can be
inferred from the actions and conduct of the parties.

Intent to commit an illegal act

The agreement must be accompanied by an intention to commit an illegal act or to commit a
lawful act by illegal means. This means that the conspirators must have a common intention to
engage in criminal activity.

Commission of an overt act

There must be some act in furtherance of the conspiracy. This act, known as the “overt act,” is a
step taken to carry out the illegal agreement. It can be any activity that helps to advance the
conspiracy.

Unlawfulness of the act

The act that is the subject of the conspiracy must be illegal or an act that is not illegal but is
being committed by illegal means.

For a criminal conspiracy to be established, there must be an agreement between two or more
persons to commit an illegal act or to commit a lawful act by illegal means, accompanied by an
intention to bring about the illegal act, and the commission of an overt act in furtherance of that
intention.

Punishment for Criminal Conspiracy under Indian Penal Code [Section 120B]
According to this section, whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years
or upwards, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.

In simpler terms, Section 120B lays down the punishment for individuals who are involved in a
criminal conspiracy to commit serious offences. The punishment can range from imprisonment
for a term of up to three years to a fine, or both. The exact punishment will depend on the
seriousness of the offence being conspired to commit.

It is important to note that for a person to be convicted under the offence of criminal conspiracy,
the prosecution must prove beyond reasonable doubt that there was an agreement between two or
more individuals to commit an illegal act and that an overt act was committed in furtherance of
that agreement.

Landmark cases dealing with Criminal Conspiracy under Sections 120A and 120B of the
Indian Penal Code

R v. Barkat Ali (1914)

This was one of the earliest cases related to criminal conspiracy in India. In this case, the court
held that for a conspiracy to be established, there must be an agreement between two or more
persons to commit an illegal act and an intention to bring about the illegal act.

Topandas v. State of Bombay (1955)

This case dealt with the issue of the role of the prosecution in establishing the existence of a
conspiracy. The court held that the prosecution must prove the existence of the conspiracy
beyond a reasonable doubt and that mere suspicion of a conspiracy is not enough.

State of Uttar Pradesh v. K.D. Malpani (1956)

This case dealt with the issue of whether the act of one conspirator could be attributed to another
conspirator. The court held that if two or more persons agree to commit a crime and one of them
commits an act in furtherance of the conspiracy, then that act can be attributed to all the
conspirators.

Leo Roy Frey v. Suppdt. Distt. Jail (1958)

This case dealt with the issue of whether a conspiracy can be established in the absence of a
formal agreement between the conspirators. The Supreme Court held that a formal agreement is
not necessary to establish a conspiracy and that a conspiracy can be inferred from the
circumstances and the actions of the parties.

State of Bombay v. Kathi Kalu Oghad (1961)

This case dealt with the issue of whether a conspiracy can be established in the absence of an
overt act. The court held that while an overt act is not essential to establish a conspiracy, it is
necessary to prove the existence of the conspiracy.

Major E.G. Barsay v. The State of Bombay (1962)

This case dealt with the issue of the admissibility of evidence in a conspiracy case. The Supreme
Court held that evidence that is not independently admissible can be admitted in a conspiracy
case if it helps to establish the existence of the conspiracy.

R. v. Ganesh Narain Hegde (1971)

This case dealt with the issue of the scope of criminal conspiracy. The court held that a
conspiracy can extend to any act committed in furtherance of the conspiracy, regardless of
whether it was a part of the original agreement or not.

Union of India v. S.N. Dhingra (1988)

This case dealt with the issue of when a conspiracy can be said to have come to an end. The
court held that a conspiracy can be said to have come to an end when the object of the conspiracy
has been achieved or when it has become impossible to achieve the object of the conspiracy.

Kehar Singh and others v. State (Delhi Administration) (1988)

This case dealt with the issue of whether a person can be held liable for criminal conspiracy in
the absence of a direct role in the commission of the crime. The Supreme Court held that a
 person can be held liable for criminal conspiracy even if they did not directly participate in the
commission of the crime, as long as they were a party to the conspiracy.

R. v. Basudev Ghosh (1993)

This case dealt with the issue of the difference between criminal conspiracy and abetment. The
court held that while both criminal conspiracy and abetment deal with the commission of a
crime, they are distinct offenses and must be proved separately.

Ram Narain Popli v. C.B.I. (2003)

This case dealt with the issue of the role of the Central Bureau of Investigation (CBI) in
investigating and prosecuting cases of criminal conspiracy. The Supreme Court held that the CBI
has the power to investigate and prosecute cases of criminal conspiracy.

Parveen v. State of Haryana (2021)

This case dealt with the issue of whether a conspiracy can be established when the agreement is
inferred from the circumstances. The Supreme Court held that a conspiracy can be inferred from
the circumstances even if there is no express agreement between the conspirators.

Offences against State

It is the duty of the State to ensure peace in the peace within the society it is governing. This very
concept makes every offence that is committed by the people within the society an offence
against the State or government because these actions disturb the public peace and order and
violates the national integrity. But there are some offences in specific that are directed as offence
towards the State itself such as waging war or attempting or abetting war, sedition, escape of
state prisoner and many more.

These are offences against the sovereignty and integrity of the State. Like all men, even the State
has right of self – preservation to ensure its safeguard and protection. Chapter- VI of Indian
Penal Code, 1860 deals with offences against the State from Section 121 to Section 130. State
imposes severe punishment against the offenders on the presumption that every citizen should
abide by its sovereignty and owes allegiance to the State.

Offences against the State

On basis of the nature and gravity of the offences, offences against the State can be classified
into:

 Waging War (against the Government of India and any power)

 Assault on high officials
 Escape of a state prisoner
 Sedition
 Section 121- Waging War

Preservation of the State is the primary duty of every State and is its highest priority. In the
monarchial form of Government, the violence against the State was considered “a lese majestic-
les majestic human” which means an offence against the power and it was considered that the
right of the State to preserve itself to be a sacred right and such offences were mostly punished
with severe capital sentence.

The Indian Penal Code, 1860 has incorporated the concept of preservation of the State from the
common law system and has provided for strict punishments such death, life imprisonment and
heavy fine penalty.

WHAT DOES WAGING WAR MEAN?

When several people in the State assemble and raise voice against the State by use of violence
and force with an aim to attain object of public nature, such an action is called wagering war.

Section 121 provides as follows:

“Waging, or attempting to wage war, or abetting waging of war, against the Government of
India—Whoever, wages war against the Government of India, or attempts to wage such war, or
abets the waging of such war, shall be punished with death, or imprisonment for life and shall
also be liable to fine.”
Illustration: Mr. A join a revolt against the Government of India. A has committed the offence
defined in this section.

As per provision of Section 121 following can be constituted as ingredients:

1. Accused must wage war, or

2. Attempt to wage, or
3. Abet the waging of such war
4. Against the Government of India

All the stages of waging war viz planning, conspiracy, abetment and attempt are all complete
offence in itself. The distinction is made only for the sake of punishment else all three are
complete offence in the eyes of legislature. The same was held in the case of Mir Hasan Khan
and Ors. v. State of Bihar[1]:

“That for convicting a person under this section it is to be proved that the person planned to
obtain possession of armory and has used rifles against the state troops and also the seizure of
the armory was part of a planned action.”

It is to be kept in mind that a citizen as well as a foreigner can be convicted under this section.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 121

The offence under Section 121 is: (as per schedule 1 Criminal procedure Code)
 Triable by Session Court
 Cognizable
 Non bailable
 Non compoundable (i.e., not listed under Section 320 Criminal procedure Code)

PUNISHMENT: death or imprisonment for life and fine.

Even conspiracy for wagering war (as under Section 121) is punishable Section 121A. this
section was inserted in 1870 and it broadened the scope to punish even conspiracy to wage war
against the State. As per Section 121A, IPC:

“Conspiracy to commit offences punishable by section 121.—Whoever within or without 83

India conspires to commit any of the offences punishable by section 121, or conspires to
overawe, by means of criminal force or the show of criminal force, the Central Government or
any State Government, shall be punished with imprisonment for life, or with imprisonment of
either description which may extend to ten years, and shall also be liable to fine.

Explanation — To constitute a conspiracy under this section, it is not necessary that any act or
illegal omission shall make place in pursuance thereof.”

INTENTION: Unlike most of the offences under Indian Penal Code where actus rea is of far
more importance than mens rea. For an offence of waging war intention and purpose are of vital
importance and murder and force are irrelevant.

WAGING WAR Vs RIOTING?

The two terms waging war and rioting may mean the same to a layman and even it may be
difficult to distinguish between the two, but it is important to note that the two terms are
different.

Rioting is defined under Chapter VII of The Indian Penal Code, 1860 under Section 146 and it is
an offence against public tranquility whereby people engaged in it try to accomplish some
private objective, unlike waging whereby the objective is of public nature and to resist or to
question the Government’s authorities.

Section 122- Preparation to Wage War

Preparation to wage a war is also an offence against the state and is punishable under Section
122 with punishment of either life imprisonment or imprisonment of ten years along with fine.

Section 123 – Concealment of Design War

Illegal omission of information of conspiracy as well as the design plan to wage of war is
punishable under Section 123 of IPC with the punishment of imprisonment 10 years along with
fine.

Section 124 – Assault on a High Official

 State does not commands own its own, there are officials who are vested with power of
execution by the constitution to undertake and execute functions of the state i.e., these officials
are State’s eyes, ears, and hands for functioning. So, these officials must be free from any fear of
personal harm while undertaking the functions of the State and discharging their legal duties.

Thus, such officials are protected from any assault done with intention of compelling or inducing
the official. Refraining higher official from exercising their lawful powers is considered as
offence against the State. Section 124 IPC provides for punishment for assaulting the official
with the intention of inducing him to refrain from discharging his legal duties.

As per Section 124 high official includes President and Governor of any State. And the
protection granted by Section 124 is absolute as long as the official discharge their official
functions.

Section 124 provides as follows:

“Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any
lawful power.—Whoever, with the intention of including or compelling the President of India, or
the Governor of any State, to exercise or refrain from exercising in any manner any of the lawful
powers of such President or Governor, assault or wrongfully restrains, or attempts wrongfully to
restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to
overawe, such President or Governor, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.”

As per above provision following can be classified as ingredients of this section, in order to
convict someone under this section following needs to be fulfilled:

1. The accused should have assaulted the President or the Governor of any state, or
2. The accused should have wrongfully restrained the President or the Governor of any state,
3. The accused attempted to assault or wrongfully restraint the President or the Governor of any
state, or
4. The accused attempts to instigate or influence the President or the Governor with force or
shoes force with intention to compel them from refraining from exercising their powers.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 124

The offence under Section 124 is: (under schedule 1 Criminal Procedure Code)

 Triable by Session Court

 Cognizable
 Non bailable
 Non compoundable (i.e., not listed under Section 320 Criminal Procedure Code)

PUNISHMENT: imprisonment for 7 years and fine.

 Section 124A – Sedition

The law of sedition was introduced in India by insertion of Section 124A in the Indian Penal
Code in 1870. The section finds its inception from Section 113 of Lord Macaulay’s draft of the
Indian Penal Code, 1837. According to Sinha CJ, the rationale behind the law of sedition is:

“Every State, whether its form of Government, has to be armed with the power to publish those
who by their conduct, jeopardize the safety and stability of the State, or disseminate such
feelings of disloyalty as tend to lead to the disruption of the state or public disorder.”

The gist of the offence of sedition was held in the leading case of Niharendu v. Emperor wherein
it was held that:

“The essence of the offence of sedition is incitement to violence; mere abusive words are not
enough and that public disorder or the reasonable anticipation or likelihood of public disorder is
the gist of the offence”

What is Sedition?

Sedition in simple words means defaming the Government established by the law. It refers to an
act whereby it is intended to stir up hatred, rebellion, feelings of enmity and disloyalty towards
the Government. It can be denoted as libel as per English law.

Section 124A provides as follows:

“124A. Sedition—Whoever, by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, the Government established by law in 103 [India], shall
be punished with imprisonment for life, to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine.

Explanation 1—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2—Comments expressing disapprobation of the measures of the Government with a

view to obtain their alteration by lawful means, without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.

Explanation 3—Comments expressing disapprobation of the administrative or other action of the

Government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.”

Thus, the following can be states as two essential ingredients of sedition under Section 124A:

1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite

disaffection towards the government established by law in India.
2. Such an act must be intentional.
3. Such act or attempt may be done by words (either spoken or written), or signs, or visible
representation, or otherwise.

IS SECTION 124A CONSTITUTIONALLY VALID?

Article 19(1)(a) of Indian Constitution guarantees freedom of speech and expression as

fundamental right. Sedition being an offence born from speech and expressions such as spoken
words, written words or representations was challenged to be in conflict with the fundamental
right guaranteed under Article 19(1)(a).

The constitutional validity of Section 124A was challenged for the first time in the case of Ram
Nandan vs State, and it was held by the Allahabad High Court that the section is ultra vires to the
constitution, and it imposed restriction on the fundamental right of speech and expression.

But this decision was overruled in the case of Kedar Nath Singh vs State of Bihar, and rest was
put to all the conflicting and mixed opinions and decisions, it was held that:

“The Section would only limit the acts involving an intention to create a disturbance of law and
order or enticement of violence. Thus, this Section is intra vires to the Constitution.”

Thus, now this section does not violate Art 19(1)(a) of the constitution.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 124A

The offence under Section 124A is: (under schedule 1 Criminal Procedure Code)

 Triable by Session Court

 Cognizable
 Non bailable
 Non compoundable (i.e., not listed under Section 320 Criminal Procedure Code)

PUNISHMENT: the amount and intensity of disaffection is material in dealing with question of
punishment and the offence is punishable with imprisonment for life and fine or imprisonment
for 3 years and fine or fine.

Conclusion

Offences against the State target and disturb public law and order and thus, curbing commission
of such offences is crucial to regulate and maintain public order. In the democracy structure of
Government, the people are free and have right to criticize Government but they cannot use this
right to create disharmony amongst people around them or cause harm to the Government.

To ensure harmony in the State such offences are made punishable with severe punishments and
such punishments are in no way a violation the fundamental rights of the people. Along with the
rights it is also fundamental duty of the people to abide by the sovereignty of the state and above
provisions keeps a check that the duty is followed. And for the sake of betterment of people as
well as the State it is needed that the freedom of the people is restricted.

Offences Against Public Tranquility under IPC

The offences against public tranquility refer to acts or conduct that disturb the peace, calm, and
order in society. These acts or conduct can cause inconvenience, annoyance, or alarm to the
public and can result in the disruption of the normal functioning of society.

In legal terms, offences against public tranquility are described as crimes that are committed in a
public place and that have the potential to create fear or disturbance among the public. Examples
of such offences include rioting, unlawful assembly, affray, and disorderly conduct.

These offences are considered serious in nature and are subject to legal penalties, including
imprisonment and/or fines. The purpose of criminalizing these offences is to ensure the
maintenance of public order and peace, and to prevent individuals from engaging in conduct that
can cause harm to the community or society as a whole.

Offences against Public Tranquility under IPC

The Indian Penal Code (IPC) contains provisions that deal with offences against public
tranquility. These offences are referred to as “unlawful assembly,” “rioting,” “affray,” and
“disorderly conduct.”

Unlawful Assembly: Section 141 of the IPC defines unlawful assembly as an assembly of five
or more persons with the common intention of committing an offence or to resist the execution
of a law or legal process.

Rioting: Section 146 of the IPC, 1860 defines rioting as an unlawful assembly that involves the
use of force or violence against persons or property, or the threat to use such force or violence.

Affray: Section 159 of the IPC, 1860 defines affray as a fight between two or more individuals
in a public place that causes terror or alarm to the public.

Disorderly Conduct: Section 160 of the IPC defines disorderly conduct as a person who
commits an act that is likely to cause annoyance or inconvenience to the public or to a person in
particular.

These offences are considered serious in nature and can result in imprisonment and/or a fine. It is
important to note that the IPC provisions regarding offences against public tranquility are meant
to maintain peace and order in society and to prevent individuals from engaging in activities that
disrupt the peace.

Unlawful Assembly under IPC

Definition of Unlawful Assembly

Unlawful assembly is defined in Section 141 of the Indian Penal Code as an assembly of five or
more persons with the common intention of committing an offence or resisting the execution of a
law or legal process.

An assembly is considered unlawful if the participants have a common objective that is illegal,
such as committing an offence, or if their objective is to prevent the enforcement of a law or
legal process. In other words, an assembly is considered unlawful if its purpose is to engage in
conduct that is harmful or disruptive to society or to the peaceful functioning of the state.

Examples of unlawful assembly include a group of individuals gathering with the intention of
committing a crime, such as theft or vandalism, or a group of individuals gathering to protest or
resist the enforcement of a law or legal process in a manner that is violent or disruptive.

Unlawful assembly is a serious offence and can result in imprisonment and/or a fine. The
purpose of criminalizing unlawful assembly is to maintain public order and peace and to prevent
individuals from engaging in conduct that is harmful or disruptive to society.

Ingredients or elements of an unlawful assembly

The ingredients or elements of an unlawful assembly as defined in Section 141 of the Indian
Penal Code, 1860 are as follows:

Assembly of five or more persons:

An assembly is considered unlawful if it involves five or more individuals coming together for a
common purpose. The presence of five or more individuals is considered to be the minimum
number required for an assembly to be considered unlawful.

Common intention:

The participants in an unlawful assembly must have a common intention, meaning that they must
have a shared objective or goal. The common intention must be illegal or harmful in nature.

Commission of an offence or resistance to a law or legal process:

The common intention of the participants in an unlawful assembly must be either to commit an
offence or to resist the execution of a law or legal process. This means that the assembly must
have the intention of engaging in conduct that is harmful or disruptive to society, or that
interferes with the enforcement of a law or legal process.
It is important to note that the common intention must be present at the time of the assembly and
cannot be established after the fact. Additionally, the individuals participating in the assembly
must have knowledge of the common intention, meaning that they must be aware of the illegal or
harmful nature of their actions.

For an assembly to be considered unlawful, it must involve five or more individuals with a
common intention to commit an offence or resist the execution of a law or legal process. The
common intention must be present at the time of the assembly and must be known to the
participants.

Being a member of unlawful assembly under Section 142

Section 142 of the Indian Penal Code makes it a criminal offence for an individual to be a
member of an unlawful assembly. This section provides that whoever, being aware of facts that
render any assembly an unlawful assembly, intentionally joins that assembly, or continues to be a
member of that assembly, is said to be a member of an unlawful assembly.

In other words, if an individual knows that an assembly is unlawful and still joins it or continues
to be a part of it, they can be held criminally liable under Section 142. The key element of this
offence is the knowledge of the individual regarding the fact that the assembly is unlawful.

It is important to note that in order for an individual to be held liable under Section 142, the
prosecution must prove that the individual had knowledge of the facts that made the assembly
unlawful and that they intentionally joined or continued to be a part of the assembly.

Ingredients under Section 143

The ingredients or elements of the offence of being a member of an unlawful assembly as

defined in Section 142 of the Indian Penal Code are as follows:

Knowledge of facts that render the assembly unlawful:

The individual must have knowledge of the facts that make the assembly unlawful. In other
words, the individual must be aware that the assembly has a common intention that is illegal or
harmful in nature.

Intentional joining or continuing to be a member of the assembly:

The individual must intentionally join the assembly or continue to be a member of the assembly,
despite their knowledge of the facts that make the assembly unlawful. This means that the
individual must act with the intention of participating in the assembly and must not merely be
present at the scene by coincidence.

Assembly of five or more persons:

The assembly must involve five or more individuals with a common intention. This is the
minimum number required for an assembly to be considered unlawful.

In summary, for an individual to be held liable under Section 142, the prosecution must prove
that the individual had knowledge of the facts that made the assembly unlawful and that they
intentionally joined or continued to be a part of the assembly.

Punishment under Section 143 of the Indian Penal Code

Section 143 of the Indian Penal Code, 1860 provides for the punishment for being a member of
an unlawful assembly. The section states that whoever is a member of an unlawful assembly
shall be punished with imprisonment of either description for a term which may extend to six
months, with a fine, or with both.

It is important to note that the punishment provided under Section 143 is only for the offence of
being a member of an unlawful assembly. If the individuals participating in the assembly engage
in additional criminal conduct, such as rioting or causing harm to others, they may face
additional charges and penalties.

Joining unlawful assembly armed with a deadly weapon

Section 144 of the Indian Penal Code provides for the punishment for being a member of an
unlawful assembly armed with a deadly weapon. The section states that whoever, being armed
with any deadly weapon, is a member of an unlawful assembly, shall be punished with
imprisonment of either description for a term which may extend to two years, with a fine, or with
both.

It is important to note that the punishment provided under Section 144 is in addition to the
punishment for being a member of an unlawful assembly. This means that if an individual is
found guilty of both offences, they can face both the penalties provided under Section 143 and
Section 144.

Joining or continuing in unlawful assembly, knowing it has been commanded to disperse

Section 145 of the Indian Penal Code provides for the punishment for joining or continuing in an
unlawful assembly, knowing that it has been commanded to disperse. The section states that
whoever joins or continues in an unlawful assembly, knowing that such assembly has been
commanded to disperse, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

In other words, if an individual knows that an unlawful assembly has been commanded to
disperse by a public servant and still joins or continues to be a part of it, they can be sentenced to
a maximum of two years in jail, or fined, or both. The exact punishment will depend on the
circumstances of each case and the discretion of the court.
It is important to note that the punishment provided under Section 145 is in addition to the
punishment for being a member of an unlawful assembly. This means that if an individual is
found guilty of both offences, they can face both the penalties provided under Section 143 and
Section 145.

Other Connected provisions of Unlawful Assembly

Every member of unlawful assembly guilty of the offence committed in prosecution of

common object

Section 149 of the Indian Penal Code, 1860, 1860, deals with the liability of every member of an
unlawful assembly for an offence committed in the prosecution of the common object of such
assembly. This section provides that if an offence is committed by any member of an unlawful
assembly in prosecution of the common object of such assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the same assembly, shall be guilty of
that offence.

Hiring, or conniving at hiring, of persons to join the unlawful assembly.

Section 150 of the Indian Penal Code, 1860, deals with the offence of hiring, or conniving at the
hiring, of persons to join an unlawful assembly. This section provides that any person who hires,
or connives at the hiring of, any person to join an unlawful assembly, shall be punished with
imprisonment for a term which may extend to one year, or with fine, or with both.

Knowingly joining or continuing in assembly of five or more persons after it has been
commanded to disperse.

Section 151 of the Indian Penal Code, 1860, deals with the offence of knowingly joining or
continuing in an assembly of five or more persons after it has been commanded to disperse. This
section provides that any person who, after an assembly of five or more persons has been
commanded in the name of the government to disperse, knowingly joins or continues in such
assembly, shall be punished with imprisonment for a term which may extend to six months, or
with fine, or with both.

Owner or occupier of land on which an unlawful assembly is held.

Section 154 of the Indian Penal Code, 1860, deals with the offence of joining an unlawful
assembly armed with a deadly weapon. This section provides that any person who joins an
unlawful assembly, armed with any deadly weapon, or with anything which, used as a weapon of
offence, is likely to cause death, shall be punished with imprisonment for a term which may
extend to three years, or with fine, or with both.

Liability of person for whose benefit riot is committed.

Section 155 of the Indian Penal Code, 1860, deals with the offence of possession of arms with an
unlawful assembly. This section provides that any person who, being a member of an unlawful
assembly, carries any arm, whether deadly or not, shall be punished with imprisonment for a
term which may extend to two years, or with fine, or with both.

Liability of agent of owner or occupier for whose benefit riot is committed.

Section 156 of the Indian Penal Code, 1860, deals with the offence of joining or continuing in an
unlawful assembly, knowing it has been commanded to disperse. This section provides that any
person who, knowing that an unlawful assembly has been commanded in the name of the
government to disperse, joins or continues in such assembly, shall be punished with
imprisonment for a term which may extend to six months, or with fine, or with both.

Harbouring persons hired for an unlawful assembly

Section 157 of the Indian Penal Code, 1860, deals with the offence of obstructing a public
servant in the discharge of his public functions. This section provides that any person who
obstructs a public servant in the discharge of his public functions shall be punished with
imprisonment for a term which may extend to three months, or with a fine, or with both.

Being hired to take part in an unlawful assembly or riot; or to go armed

Section 158 of the Indian Penal Code, 1860, deals with the offence of giving or fabricating false
evidence with intent to procure conviction of a capital offence.

The ingredients that must be satisfied in order to establish the offence under Section 158 are as
follows:

Giving or fabricating false evidence: The person must have given or fabricated false evidence,
either in a judicial proceeding or in any other proceeding under the Indian Penal Code.

Intent to procure conviction of a capital offence: The false evidence must have been given or
fabricated with the intention of causing someone to be convicted of an offence which is capital
by the law for the time being in force.

Knowing it to be likely: The person must have known that it was likely that the false evidence
would cause someone to be convicted of a capital offence.

In the event that the above ingredients are satisfied, the person who has given or fabricated false
evidence with the intent to cause someone to be convicted of a capital offence shall be punished
with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

Rioting

Rioting under Section 146

Rioting is defined under Section 146 of the Indian Penal Code as an offence that involves the use
of force or violence by an assembly of five or more persons, or the use of criminal force by an
individual. The punishment for the offence of rioting is imprisonment for a term of up to two
years, or with fine, or with both.

In order to establish the offence of rioting, the prosecution must prove that:

 An assembly of five or more persons was involved in the use of force or violence or the
use of criminal force.
 The use of force or violence, or the use of criminal force, was intentional and not
accidental.
 The use of force or violence, or the use of criminal force, was not in self-defence or in
defence of others.
If the prosecution is able to prove these elements, then the accused can be convicted of the
offence of rioting. It is important to note that the use of force or violence, or the use of criminal
force, must be directed towards a person or property, and not towards an inanimate object.

The offence of rioting is a serious one, as it involves the use of force or violence by an assembly
of individuals, which can result in harm to persons or property and disrupt public peace and
order.

Punishment for rioting

The punishment for the offence of rioting is defined in Section 147 of the Indian Penal Code.
The punishment is imprisonment for a term of up to two years, or with fine, or with both.

Rioting, armed with a deadly weapon

Rioting armed with a deadly weapon is defined under Section 148 of the Indian Penal Code,
1860. The offence involves the use of force or violence by an assembly of five or more persons,
or the use of criminal force by an individual while being armed with a deadly weapon.

In order to establish the offence of rioting armed with a deadly weapon, the prosecution must
prove the following elements beyond a reasonable doubt:

 The existence of an assembly of five or more persons who were involved in the use of
force or violence, or the use of criminal force.
 The use of force or violence, or the use of criminal force, was intentional and not
accidental in nature.
 The use of force or violence, or the use of criminal force, was not carried out in self-
defence or in defence of others.
 One or more persons in the assembly were armed with a deadly weapon.
Upon establishment of the aforementioned elements, an individual may be held liable for the
offence of rioting armed with a deadly weapon. The punishment for this offence is imprisonment
for a term of up to three years, or with fine, or with both, as stipulated under Section 148 of the
Indian Penal Code, 1860.
If the prosecution is able to prove these elements, then the accused can be convicted of the
offence of rioting armed with a deadly weapon. It is important to note that the use of a weapon
must be intentional, and not accidental, in order for the offence to be established

Other Connected provisions of Riot

Assaulting or obstructing public servants when suppressing riots, etc.

Section 152 of the Indian Penal Code, 1860, deals with the offence of assaulting or obstructing a
public servant when suppressing a riot or affray. This section provides that any person who
assaults or obstructs a public servant while such public servant is engaged in the suppression of a
riot or affray, or who rescues or attempts to rescue any person from the custody of such public
servant, shall be punished with imprisonment for a term which may extend to three years, or with
fine, or with both.

Voluntarily giving provocation, with intent to cause a riot—if rioting is committed; if not
committed.

Section 153 of the Indian Penal Code, 1860, deals with the offence of wantonly giving
provocation with intent to cause a riot. This section provides that any person who gives
provocation with the intention of causing a riot, or who knowingly joins or continues in any
assembly of five or more persons likely to cause a riot, shall be punished with imprisonment for
a term which may extend to one year, or with fine, or with both.

If a riot actually takes place as a result of such provocation, the person who gave the provocation
shall be punished with imprisonment for a term which may extend to three years, or with fine, or
with both.

Difference between Riot and Unlawful Assembly

The offences of Riot and Unlawful Assembly are defined under the Indian Penal Code, 1860.
While both offences involve the use of force or violence, or the use of criminal force, by an
assembly of individuals, there are distinct differences between the two offences.

Unlawful Assembly is defined under Section 141 of the Indian Penal Code, 1860, as an assembly
of five or more persons which has the common object of using force or violence, or the use of
criminal force, or which causes reasonable apprehension of the use of force or violence.

In order to establish the offence of Unlawful Assembly, it is not necessary for the assembly to
actually use force or violence, or to actually use criminal force. It is sufficient if the common
object of the assembly is the use of force or violence or the use of criminal force.

On the other hand, Riot is defined under Section 146 of the Indian Penal Code, 1860, as the use
of force or violence by an assembly of five or more persons, or the use of criminal force by an
individual, which causes disturbance to the public tranquility.
In order to establish the offence of Riot, it is necessary for the assembly to actually use force or
violence, or to actually use criminal force, and for the use of force or violence, or the use of
criminal force, to cause disturbance to the public tranquillity.

While both Unlawful Assembly and Riot involve the use of force or violence, or the use of
criminal force, by an assembly of individuals, the key difference between the two offences lies in
the fact that Unlawful Assembly is established by the common object of the assembly, while Riot
is established by the actual use of force or violence, or the use of criminal force, which causes
disturbance to the public tranquility.

Affray under Section 159

Affray is a common law offence defined as the fighting of two or more persons in a public place
to the terror of the people. It refers to a disturbance of peace by two or more people who engage
in a fight or violent behaviour in a public place that causes alarm or terror to others.

An affray is considered to be a less serious form of disorder than a riot, as it involves a smaller
number of participants and does not necessarily involve the destruction of property.

The ingredients that must be satisfied in order to establish the offence of affray under Section
159 of the Indian Penal Code are as follows:

 Two or more persons: There must be two or more persons involved in the commission
of the offence.
 Use of force or violence: The use of force or violence by one or more of the persons
involved must have been used in such a manner as to cause alarm to the public.
 Alarm to the public: The use of force or violence must have caused alarm to the public,
or have created a disturbance of the peace.
In the event that the above ingredients are satisfied, the persons who have committed the offence
of affray shall be punished with imprisonment for a term which may extend to one month, or
with fine, or with both as per Section 160 of the IPC, 1860.

Giving False Evidence And Fabricating False Evidence

Introduction:

Evidence is information which is used in the court to prove something which exists or true.
Giving false evidence and fabricating false evidence is an offence under Indian penal Code,
1860. The provisions of False evidence and fabricating false evidence are specifically mentioned
in Section 191 and section 192 respectively of the IPC under Chapter XI.

To fabricate means to make up for the purpose of deception whereas giving false evidence is
something the person has given false statement to divert the verdict of the case.
Definitions:

 Giving false evidence:

Whoever being legally bound by an oath or by an express provision of law to state the truth, or
being bound by law to make a declaration upon any subject, makes any subject, makes any
statement which is false, and which he either knows or believes to be false or does not believe to
be true, is said to give false evidence.

 Fabricating false evidence:

Whoever cause any circumstances to exist or [makes any false entry in any book or record, or
electronic record or makes any document or electronic record containing a false statement],
intending that such circumstance, false entry or false statement, may appear in evidence in a
judicial proceeding, or in proceeding taken by law before a public servant as such, or before an
arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence,
may cause any person who in such proceeding is to form an opinion upon the evidence, to
entertain an erroneous opinion touching any point material to the result of such proceeding, is
said “to fabricate false evidence.”

Object of Chapter XI of IPC:

 To punish those who have given and fabricated false evidence

 To prevent fraud and falsehood
 To ensure the criminals get punishment
 To give justice to the innocent
Difference between Giving false evidence and fabricating false evidence

Following are the differences of giving false evidence and fabricating false evidence –

1. In case of false evidence, general intention is required whereas in Fabricating false evidence,
particular intention is necessary. Intention is the essence of both the offence. In short it must be
intentionally given.

2. In false evidence, the statement which are false not necessary that it should be material. On the
other hand, in fabricating false evidence statements must be on material point only.
3. The offence of giving false evidence is committed by the person who is legally bound by an
oath to the state the truth whereas its opposite in the fabricating false evidence i.e. the offence is
committed by a person who is not legally bound to take an oath to state the truth.

4. In Giving false evidence, the question of effect of the evidence on the officer before whom the
evidence is given is of no consequences while this effect of the evidence is important in
fabricating false evidence.

5. In giving false evidence, it is necessary that there should be a proceeding of judicial or non-
judicial being conducted whereas in fabricating false evidence, it is not necessary of judicial or
non-judicial proceeding because it is enough that there is reasonable prospect of the proceeding.

Important Provisions:

Section 191: Giving false evidence

It is an offence if –

 The person is legally bound by the oath to state truth or to make declaration
 He has given false statement- it is not necessary that the false evidence should be
concerning a question material to the decision of the case; it is sufficient if the false
evidence does not bear directly on material issue in the case being relative to incidental
that would be a matter to be taken into consideration in fixing the sentence.
 The false statements which he has been giving he must know that they are false and not
true.
Abatement of giving false evidence- the person who instigate or induce other person to make
false statement, then he will not be guilty of giving false evidence but he will be guilty of
abatement of that offence.

Section 192: Fabricating false evidence

It is an offence if-

 It causes any circumstance to exist, or makes any false entry in book

 Makes any document containing false statement
 Above acts done intentionally by the person
 There is fabrication of a material point
 Forming of erroneous opinion, there could be no fabrication if on the basis of the
fabrication no erroneous opinion could be formed touching any point material to the
result of proceeding.
Section 193: Punishment for false evidence or fabricates false evidence

 Any person intentionally gives false evidence or fabricates false evidence for being sued
in the judicial proceeding then the punishment will be


 Imprisonment which may extend to 7 years and
 Fine
 Any person either gives false evidence or fabricates false evidence in all other cases, then
the punishment will be


 Imprisonment which may extend to 3 years and
 Fine
This offence in non- c ognizable, bailable, non-compoundable and triable by the Magistrate of
first class.

Section 194: Giving or fabricating false evidence with intention to procure conviction

 Any person gives or fabricates false evidence with an intention and reason to believe that
it may cause person to be convicted for capital punishment, the he shall be punished-


 Rigorous imprisonment which may extend to ten years and
 Fine
This section provides for more severe punishment if an innocent person is convicted and
executed in consequences of such false evidence.

Section 195-A: Threatening any person to give false evidence

 If any person threatens or threat to cause injury to the person, his property, reputation
with an intention to induce that person to give false evidence the such person shall be
punished-


 Imprisonment for a term which may extend to seven years or
 Fine or
 Both
Case laws:

 Abdul Majid v. Krishna Lal Nag

In this case, it was held by the court that the false evidence must be given in a proceeding in
which the accused was bound by law to speak the truth. If the court has no authority to
administer an oath the proceeding will be coram non-judice and prosecution for false evidence
cannot stand. Similar will be the case where a court is acting beyond the jurisdiction.

 Gobind Chandra Seal

It was held by the court that when in a court a person binds himself on oath to state the truth he
cannot say that as he was not bound under law to go into the witness box or make an affidavit, a
false statement which he had made after the oath is not covered by this section. The offence may
be committed although the person giving evidence has neither been sworn nor affirmed.

 Baban Singh v. Jagdish Singh

It was held by the Supreme Court that where a false affidavit is sworn by a witness in a
proceeding before a court, the offence would fall under sections 191 and 192. It is the offence of
giving false evidence or of fabricating false evidence for the purpose of being used in a judicial
proceeding.

Conclusion:

It can be concluded that there is a difference between these two terms. The intention is important
in both terms i.e. general intention in giving false evidence and material or particular intention in
fabricating intention. The person who will threaten or induce to give or fabricate false evidence
will also liable for the punishment. It is to be noted that the person who is giving false evidence
must have knowledge that he is giving a false statement or believe it to be false. The person who
will commit an offence of giving and fabricating an evidence will be punished according to the
punishment period mentioned in the IPC, 1860.

196. Using evidence known to be false.

Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he
knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated
false evidence.

CLASSIFICATION OF OFFENCE
Punishment—The same as for the giving or fabricating false evidence—Non- cognizable—
According as offence of giving such evidence is bailable or non- bailable—Triable by court by
which offence of giving or fabricating false evidence is triable—Non-compoundable.

197. Issuing or signing false certificate.

Whoever issues or signs any certificate required by law to be given or signed, or relating to any
fact of which such certificate is by law admissible in evidence, knowing or believing that such
certificate is false in any material point, shall be punished in the same manner as if he gave false
evidence.

CLASSIFICATION OF OFFENCE
Punishment—The same as for the giving or fabricating false evidence—Non- cognizable—
Bailable.—Triable by court by which offence of giving false evidence is triable—Non-
compoundable.

198. Using as true a certificate known to be false.

Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the
same to be false in any material point, shall be punished in the same manner as if he gave false
evidence.

CLASSIFICATION OF OFFENCE
Punishment—The same as for the giving or fabricating false evidence—Non- cognizable—
Bailable—Triable by Court by which offence of giving false evidence is triable—Non-
compoundable.

199. False statement made in declaration which is by law receivable as evidence.

Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice,
or any public servant or other person, is bound or authorised by law to receive as evidence of any
fact, makes any statement which is false, and which he either knows or believes to be false or
does not believe to be true, touching any point material to the object for which the declaration is
made or used, shall be punished in the same manner as if he gave false evidence.

CLASSIFICATION OF OFFENCE
Punishment—The same as for the giving or fabricating false evidence—Non- cognizable-
Bailable—Triable by court by which offence of giving false evidence is triable—Non-
compoundable.

COMMENTS
No specific averment in the complaint that certain averments in the affidavit before Rent Control
Officer are false complaint cannot be held as maintainable;
Chandrapal Singh v. Maharaj Singh, AIR 1982 SC 1236.
200. Using as true such declaration knowing it to be false.

Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be
false in any material point, shall be punished in the same manner as if he gave false evidence.

Explanation-
A declaration which is inadmissible merely upon the ground of some informality, is a declaration
within the meaning of sections 199 to 200.

CLASSIFICATION OF OFFENCE
Punishment—The same as for giving or fabricating false evidence—Non- cognizable—
Bailable—Triable by court by which offence of giving false evidence is triable—Non-
compoundable.

201. Causing disappearance of evidence of offence, or giving false information to screen

offender.

Whoever, knowing or having reason to believe that an offence has been committed, causes any
evidence of the commission of that offence to disappear, with the intention of screening the
offender from legal punishment, or with that intention gives any information respecting the
offence which he knows or believes to be false;

If a capital offence- shall, if the offence which he knows or believes to have been committed is
punishable with death, be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine;

If punishable with imprisonment for life- and if the offence is punishable with imprisonment
for life, or with imprisonment which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be
liable to fine;

If punishable with less than ten years’ imprisonment- and if the offence is punishable with
imprisonment for any term not extending to ten years, shall be punished with imprisonment of
the description provided for the offence, for a term which may extend to one-fourth part of the
longest term of the imprisonment provided for the offence, or with fine, or with both.

Illustration-
A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B
from punishment. A is liable to imprisonment of either description for seven years, and also to
fine.
CLASSIFICATION OF OFFENCE
Para I: Punishment—Imprisonment for 7 years and fine—According as the offence in relation
to which disappearance of evidence is caused is cognizable or non- cognizable—Bailable—
Triable by Court of Session—Non-compoundable.
Para II: Punishment—Imprisonment for 3 years and fine—Non-cognizable— Bailable—Triable
by Magistrate of the first class—Non-compoundable.
Para III: Punishment—Imprisonment for a quarter of the longest term provided for the offence,
or fine or both—Non-cognizable—Bailable—Triable by court by which the offence is triable—
Non-compoundable.

202. Intentional omission to give information of offence by person bound to inform.

Whoever, knowing or having reason to believe that an offence has been committed, intentionally
omits to give any information respecting that offence which he is legally bound to give, shall be
punished with imprisonment of either description for a term which may extend to six months, or
with fine, or with both.

CLASSIFICATION OF OFFENCE

Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable— Bailable—

Triable by any Magistrate—Non-compoundable.

COMMENTS
Assuming that the prosecution has not positively proved that the death was homicidal yet from
the medical evidence it is clear that it was not a natural death and consequently the death should
at least be noted as one of suicide. Even in the cause of suicide an offence of abetment
punishable under section 306 is inherent. Therefore, even in the case of suicide there is an
obligation on the person who knows or has reason to believe that such a suicidal death has
occurred, to give information;
Bhagwan Swarup v. State of Rajasthan, (1991)

203. Giving false information respecting an offence committed.

Whoever knowing or having reason to believe that an offence has been committed, gives any
information respecting that offence which he knows or believes to be false, shall be punished
with imprisonment of either description for a term which may extend to two years, or with fine,
or with both.

Explanation-
In sections 201 and 202 and in this section the word “offence“, includes any act committed at
any place out of India, which, if committed in India, would be punishable under any of the
following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435,
436, 449, 450, 457, 458, 459 and 460

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable—Triable
by any Magistrate—Non-compoundable.

204. Destruction of document to prevent its production as evidence.

Whoever secretes or destroys any document or electronic record which he may be lawfully
compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before
a public servant, as such, or obligates or renders illegible the whole or any part of such document
or electronic record with the intention of prevention the same from being produced or used as
evidence before such Court or public servant as aforesaid, or after he shall have been lawfully
summoned or required to produce the same for that purpose, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable
by Magistrate of the first class—Non-compoundable.

205. False personation for purpose of act or proceeding in suit or prosecution.

Whoever falsely personates another, and in such assumed character makes any admission or
statement, or confesses judgment, or causes any process to be issued or becomes bail or security,
or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable— Bailable—Triable
by Magistrate of the first class—Non-compoundable.

206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in

execution.

Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any
interest therein, intending thereby to prevent that property or interest therein from being taken as
a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he
knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from
being taken in execution of a decree or order which has been made, or which he knows to be
likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable— Triable
by any Magistrate—Non-compoundable.

207. Fraudulent claim to property to prevent its seizure as forfeited or in execution.

Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing
that he has no right or rightful claim to such property or interest, or practices any deception
touching any right to any property or any interest therein, intending thereby to prevent that
property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a
sentence which has been pronounced, or which he knows to be likely to be pronounced by a
Court of Justice or other competent authority, or from being taken in execution of a decree or
order which has been made, or which he knows to be likely to be made by a Court of Justice in a
civil suit, shall be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.

CLASSIFICATION OF OFFENCE

Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable— Triable

by any Magistrate—Non-compoundable.

208. Fraudulently suffering decree for sum not due.

Whoever fraudulently causes or suffers a decree or order to be passed against him at the suit of
any person for a sum not due or for a larger sum that is due to such person or for any property or
interest in property to which such person is not entitled, or fraudulently causes or suffers a decree
or order to be executed against him after it has been satisfied, or for anything in respect of which
it has been satisfied, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.

Illustration-
A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him,
fraudulently suffers a judgment to pass against him for a larger amount at the suit of B, who has
no just claim against him, in order that B, either on his own account or for the benefit of Z, may
share in the proceeds of any sale of Z’s property which may be made under A’s decree. Z has
committed an offence under this section.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable— Triable
by Magistrate of the first class—Non-compoundable.
209. Dishonestly making false claim in Court.

Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a
Court of Justice any claim which he knows to be false, shall be punished with imprisonment of
either description for a term which may extend to two years, and shall also be liable to fine.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable—Triable
by Magistrate of the first class—Non-compoundable.

210. Fraudulently obtaining decree for sum not due.

Whoever fraudulently obtains a decree or order against any person for a sum not due or for a
larger sum than is due, or for any property or interest in property to which he is not entitled, or
fraudulently causes a decree or order to be executed against any person after it has been satisfied
or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any
such act to be done in his name, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable— Bailable—Triable
by Magistrate of the first class—Non-compoundable.

211. False charge of offence made with intent to injure.

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any
criminal proceeding against that person, or falsely charges any person with having committed an
offence, knowing that there is no just or lawful ground for such proceeding or charge against that
person, shall be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both;

and if such criminal proceeding be instituted on a false charge of an offence punishable with
death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

CLASSIFICATION OF OFFENCE

Para I: Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable—Bailable—

Triable by Magistrate of the first class—Non- compoundable.

Para II: Punishment—Imprisonment for 7 years and fine—Non-cognizable— Bailable—Triable

by Magistrate of the first class—Non-compoundable.

Para III: Punishment—Imprisonment for 7 years, and fine—Non-cognizable— Bailable—

Triable by Court of Session—Non-compoundable.

Culpable Homicide under Indian Penal Code

Introduction
The word culpable homicide is a combination of two Latin terms one is “culpabilis” which
literally means worthy of blames and the second term “homo” which means a man and
“caeder” which means to kill or cut. So, when these two words are put together mean “worthy of
blame for the killing of a human being”. Any crime to constitute the main ingredients are guilty
mind and guilty act i.e. mens rea and actus reus. Many authors, writers, scholars have different
opinions on culpable homicide and murder because these two penal offenses are confusing in the
Indian Penal Code. Known scholars, writers, jurists, professors have stated that culpable
homicide is “genus and murder is its species”. Sir James Stephen is of the opinion that these two
definitions that are culpable homicide and murder are deficient/defective parts of the code. These
two definitions are a mirror to each other and often are difficult to differentiate between because
the phrase “causing of death” is common in both. However, culpable homicide and murder are
distinct and both are depending upon the severity and gravity of the offenses or the manner in
which the crime is committed. Chapter XVI OF IPC 1860, from Sec. 299- Sec. 377 deals with
offenses relating to the human body. In this article, we will be discussing section 299
specifically.

Lawful & Unlawful Homicide

Homicide is considered either as lawful homicide or as unlawful homicide.

Lawful Homicide is listed under the general exceptions of IPC. They are
A Simple / Lawful Homicide is said to have been committed when death is caused by accident or
misfortune and without any criminal intention or knowledge in doing any lawful act, by lawful
means, in a lawful manner and with due care and caution. There exist a few provisions under
Chapter IV of the Indian Penal Code wherein it justifies the homicide by virtue of general
exceptions such as:

1. Death caused by accident whether without any criminal intention Or with information of
doing the lawful act and taking proper care and caution.
2. Death caused by justifiable under the following circumstances
 A person bound by law

a. An act done by a person in good faith, who is bound, by any mistake of fact and not that of
mistake of law, believing that the person is bound by law to commit the homicide is justified.
  The judge in a judicial capacity

Judges, when delivering a judgment or acting judicially in exercise of any power, which
he believes to be in good faith, given to him by law is justified.

 A person obeying the order or decree of the court

It should be noted that a person isn’t immune if he is exceeding the limit and is found
abusing his position as a public servant but it is justified by a person acting in pursuance of
an order or judgment of the Court.

 An act done by a person justified himself

By a person who is justified or by any reason of mistake of fact, in good faith, believes
him to be justified by law

 Harm to person or property

By any person acting without any criminal intention to cause harm and in good faith does
it solely for the purpose of preventing or avoiding other harm to property or persons

 Right of private defense

Any act done for the purpose of right of private defence of the property or person

3. Death is caused by the child, the person who is insane or is under the influence of drugs.
4. When the death is caused unintentionally in good faith thinking it was for the good of the
person killed when
 He is a minor, lunatic and there is express and implied consent of his/her parent or
guardian
 When the death is caused due to incapacity of consent

Some acts are also excluded by this chapter and are protected under the general exceptions such
as death caused by a person of unsound mind, a child below seven years of age or between seven
to twelve depending upon the maturity, an intoxicated person who is forcefully administered the
intoxication, etc. are declared as lawful

Unlawful Homicide includes murder, rash, negligent acts, and suicide.

Culpable Homicide [Sec. 299 IPC]
This section states that
 any person who causes the death of a person by an act or
 with the object/aim to cause bodily injury with the expected end result would be death or
 knowing that his actions will cause the death of the person
 is said to have committed the offense.

To further simplify, in Sec.299 of IPC there are 3 essential ingredients. They are
(i) intention (ii) bodily injury (iii) knowledge. The culprit should have an intention. The culprit
must have caused bodily harm or injury to the person and lastly, he must have done the act
knowing that his actions will cause the death of the person.

According to the definition, following are some of the ingredients:

i) There must occur death of a person,

ii) It should have been caused by another person,

iii) The death must have been:

a. Caused with the intention of causing death,

b. Caused with the intention of causing such injury as it would result in death,

c. Caused with the knowledge that by his act he is likely to cause death.

It should be noted that the words “intention” and “knowledge” must not be confused wherein it
does not deal with the first two categories but it does in relation to the third one. Knowledge can
be said to be a bare state of conscious awareness of some facts in which the mind remains
inactive whereas intention means a conscious state in which instincts are active and summed up
into action for a specific purpose.

Illustration
I. Sam digs a pit hole, covers it with dry grass leaves making it look as if nothing was dug. With
the intention to cause the death of Pintu. Pintu not knowing that there is a pit hole walks over it,
falls, and dies. Sam is liable for culpable homicide.

II. Rex is aware that Jill is behind the bush. Maddy doesn’t know it. Rex with the purpose to kill
Maddy force Jill to fire behind the bushes and Maddy is killed. In this illustration, Jill may not be
liable for killing Maddy but Rex is liable for culpable homicide.

There are 3 explanations to Section 299 IPC.

Explanation I
This explanation states the person who causes another injury, who is disabled or suffering from
any kind of disorder, that speeds up the death are considered to have caused death.

Explanation II

This explanation states that if the death is due to bodily injuries then it is considered that such
person has caused the death, even if proper remedies were taken and good treatment was given
the death could be prevented.

Explanation III

This explanation states that when the child is in the womb of the mother and death is caused it is
not considered to be a homicide. But when the death of a living child is caused then it may
amount to culpable homicide. Further, the child is visible during the natural delivery of the
pregnant lady regardless of the fact that the child has not breathed or is completely born.

Intention
Under sec.299 the use of word intention is done in a normal way volitional act without knowing
the result with certainty. An act is called intentional when the end result is desirous and the
criminal/ culprit already knows the consequences of his action. When any act is anticipated or
the person who commits the crime knows that the situation is inevitable and, in such
circumstances, there is no difficulty arises because we can conclude by saying that the act was
done with intention.

Under sec. 299 IPC we cannot say that there was any planning to kill the person. The mere
intention at the spear of the moment is enough to establish an intention to kill a person. The
requirement that the act of the person will result in death is enough to constitute intention. The
general rule is that every person knows that his act will either result in a good or bad situation.
Hence intention or knowledge is important under this section.

State of Andra Pradesh v. Rayavarapu Pannayya (AIR 1977 SC 45)

The SC recognizes 3 degrees of culpable homicide:

(a) lowest degree culpable homicide. Punishment with a fine only or with the conviction of 10
years or with both.

(b) second-degree culpable homicide. Punishment with conviction up to a limit of 10 years or

with the conviction of life to either of which fine may be added.
 (c) the highest degree of culpable homicide or murder. Punishment with death or conviction for
the life of which fine may be added.

Mohammed Arif v. State of Uttarachal (2009) 11 SCC 497

In this case, it was stated that if a person in executing some act (i) anticipates the death to be the
ultimate result (ii) anticipates dangerous injuries to be the result of the act (iii) knows that in the
first and second case that death will be the result of his action and his purpose and in the third
case knowledge will exhibit the act of homicide.

Kashi Ram v. State of Madhya Pradesh (AIR 2001 SC 2002)

In this case, the accused open fired a gunshot at a member of the opposition. But unfortunately,
the gunshot was hit at another person and he was killed. The Supreme Court used the Doctrine of
Transferred Malice so that the accused is guilty under Sec.304 of IPC.

Joginder Singh vs State of Punjab (AIR 1979 SC 1876): The Supreme Court held that there
has to be a proximate causal link between the two, i.e. death and the act. The death must be a
direct consequence of such an act

Punishment for Culpable Homicide

Section 308 of the IPC talks about an attempt to commit culpable homicide. Punishment is
confinement for life or confinement for a term of 10 years or fine or both.

The punishment given under this section differs from a wide range of confinement for life to
enforcement of fine. A different sentence is given depending on the extent of intention and
knowledge of causing death done by the accused. It is quite clear that the first part of the
punishment shows that the offense where the intention to commit the offense is visible and the
second part of the punishment shows that the offense where the act was done with the knowledge
to cause death was present but there was no intention to cause any bodily harm or death of the
other person.

Murder under Indian Penal Code

The term murder can be traced back to the German word “morth” which means secret killing. It
refers to intentional killing of one person by another person with any forethought. It is
considered to be a more serious offence as compared to culpable homicide. Section 300 of the
Code state what acts under culpable homicide amount to murder. Moreover, an offence of
murder will not be considered as murder unless it includes an offence that falls under culpable
homicide. Hence it can be said that a culpable homicide is a genus whereas a murder is a species.
Just like in the case of culpable homicide, intention and knowledge is very important. The
probability of death is more is more in murder than in culpable homicide.

Section 300 IPC is one of the provisions relating to the offence of “Murder. According to this
section, culpable homicide is considered as murder if:
 1. The act by which the death is caused is committed with an intention to cause death.
2. The act is done with the intention of causing such bodily injury that the offender has
knowledge that it would likely result in death.
3. The act is committed with the intention of causing bodily injury to a person and the
bodily injury intended to be inflicted is sufficient to cause death in the ordinary course of
nature.
4. The person committing the act knows that his act is so imminently dangerous that it must,
in all probability, result in death or such bodily injury as is likely to cause death.

The ingredients of section 300 are as follows–

Causing Death – There must be an intention of causing death.

Doing an act – There should be an intention to cause such bodily injury that is likely to cause
death.

The act must be done – it must be done with the knowledge that the act is likely to cause the
death of another.

There are some exceptions to section 300 of IPC where Culpable Homicide is not considered as
murder- Clauses 1-4 of section 300 mention the essential ingredients, wherein culpable homicide
amounts to murder. Section 300 after laying down the condition in which culpable homicide
becomes murder states some exceptional situations under which, if murder is done, it is reduced
to culpable homicide not amounting to murder punishable under section 304 of IPC and not
under section 302 IPC.

The exceptions are –

1. Grave and sudden provocation

2. Exercise of legal power
3. Private defence
4. Consent in case of passive euthanasia and
5. Without premeditation in a sudden fight.

Is IPC 300 cognizable offence or non-cognizable offence?

The offence of murder under section 300 of IPC is a Cognizable Offence and arrests can be made
by a police officer without any prior permission or order of the Court. The offences under section
300 are triable by the Court of Session.

Is IPC 300 bailable or non-Bailable?

The offence under section 300 of IPC has been categorized as a non-bailable offence. It is also
regarded as a non-compoundable offence.

What is the punishment for an offence under IPC 300?

The punishment for IPC 300 is covered under section 302 of IPC. Section 302 deals with the
punishment for murder. According to this Section whoever commits murder is punishable with:

1. Death;
2. Life imprisonment;
3. Imposition of fine.
There exist in all six types of murders which are as follows:

Some ingredients of murder are as follows:

i) The act by which a death is caused is done with an intention of causing death:

It is culpable homicide amounting to murder when the act is done with an intention of causing
death. It is to be noted that death may be caused by illegal omission where it is the act of a
person with the clear intention of killing that person.

ii) The act with the intention of causing bodily injuries as the offender knows it will likely
cause death:

As per Section 300(2) of the Code, it would be a culpable homicide amounting to murder if the
offender intentionally causes bodily injury knowing that such an injury will cause death of the
other person. The offence falling under this criteria consists of intention of causing bodily harm
and then the knowledge that it will consequently cause death of the injured.

iii) The act with the intention of causing bodily injury to any person as it is sufficient in
normal sense to result in death of the injured:

According to Section 300(3), it is sufficient that there is intention to cause the injury which was
actually caused. The subjective factor ends there itself and that there shouldn’t be any further
enquiry.

iv) The act wherein the person committing it knows that it is so dangerous that it must, in
all probabilities, cause death or such injury will cause death:

Under Section 300(4) cases which are included are that of dangerous action without an intention
to cause bodily injury to any person. Nevertheless, there should be knowledge that the act was
imminently dangerous that it would cause death or such bodily injury, which would be inflicted,
is likely to cause death.

In one of the cases, the deceased was kicked and beaten lot of times by the offender even after he
fell senseless. The Court held that the murderer would have known that inflicting such wounds
will result in death of that person and thus he was accused of murder.

In the case of B. N. Srikantiah VS. Mysore State there was 24 injuries and out of them 21 were
incised on neck, head, shoulder, etc. The Court held that the intention of causing bodily injuries
were established as many of them were on the vital parts and thus it was covered under Section
300
 Doctrine of Transferred Malice
This doctrine is a design of Anglo-American law to make the defendant responsible for the harm
caused to a different person other than the one aim in mind which is caused due to the mistake.
Though this doctrine is not stated in the Penal Code, it is indirectly related to section 301 of IPC
where Culpable homicide is causing the death of the person whose death was not planned.
Malice refers to the intention of the person that has caused injury to another person. There is
expressed malice and implied malice. Any calculated act to kill a person with an intention is
known as expressed malice and any intention that is clearly seen from the person’s body
language or behavior is implied malice.

The essentials are as follows

1. Causing the death of a person

2. An act done with purpose or with the knowledge to cause the death of the person
3. Causing injury which leads to death
4. Causing the death of another person instead of the person intended.

Case law: State of Maharastra v. Kashirao

In this case, it was stated that when a person is killed in course of doing an act, that person
knows that there might be death with intention. So, as per his action, the purpose of causing
death to another person he should be liable accordingly.

Knowledge
Knowledge here means some kind of originality, to further state here it means knowledge not to
be presumed but to understand the probability of act done. It is to be understood that any action
to be regarded as an act of culpable homicide the requirement of a mental element or having
knowledge that the end result will ultimately be death. It is to be noted here that, in some
situations, the mind of a human being is very active and in certain situations, the human mind
remains inactive, this is in the context of the state of consciousness of certain facts. The culprit or
the offender should have known that his action will cause harm or death to the other person even
though his intention was not to cause death. The term “likely” indicates a lower degree of death.

Caselaw: R v. Cunningham

This is an English case in the House of Lords, wherein the conviction of the defendant was
upheld. The victim was killed by hitting a chair in his head. Though there was no intention to kill
the victim, the defendant’s intention was to grievously cause bodily harm and that was enough to
prove conviction of murder.
 For years the mens rea in murder related cases have been described as malice “afterthought”.
This is a misleading phrase as there is no need to show any kind of ill-will.

Difference Between Culpable Homicide & Murder

The main reason why Sections 299 and 300 are known to be overlapping offences is due to the
difficulty in differentiating and understanding the difference between them as a real yet thin line
of difference exists. The most confusing aspect between the two is that of “intention” of the
offender as it is to cause death under both the provisions. Thus, the degree of intention of the
offenders is to be considered.

If a victim was killed by a well-planned method then it can be regarded as a murder because the
intention to kill was in high degree whereas if a victim is killed without any pre-planned method
then such a death can be regarded as a culpable homicide as it would take place in a sudden fight.
The major difference is that murder is more aggravated form of culpable homicide. There
doesn’t exist any ambiguity in murder that the act may or may not kill as in the case of culpable
homicide. Hence, it could be safe to say that whether the act committed is a culpable homicide or
a murder totally is a question of facts.

There are certain ways to differentiate between these two concepts and it is latent with the term
“seriousness of intention”. The word “likely” is used in Section 299 which states one of the
probabilities which amount to culpable homicide but the word “sufficient” is used in Section 300
which denotes most probably.

Subsequently, another difference can be that of the chance of death wherein it is high in case of
murder and less under culpable homicide. Another difference is of mens rea where it is involved
with a difference of degree in both the offences. This difference was cleared by Justice Melvin in
the case of Reg. VS. Govinda. In this case the accused knocked his wife down, then put one knee
on her chest and then struck two or three blows with a closed fist. This produced extraversion of
blood on the brain and she died consequently but there was no intention to cause death and also
the injuries were no sufficient to cause death in the ordinary course. The accused was thus held
liable for culpable homicide not amounting to murder.

Moreover, the courts have developed a system which would decide under which section will the
case fall. The very first stage out of the three stages is whether the accused has committed the act
which caused the life of the victim. If the answer is positive, then the net stage is to consider
whether the act is under Section 299 of the Code. The last stage of the process is reached if the
answer is found to be affirmative. This is the stage where the Court decides if the facts of the
case bring it under any of the four clauses of murder in Section 300 of the IPC. However, it is
difficult to categorically distinguish between the two.

Culpable homicide (CH)- There is the purpose of causing death

Murder (M) – There is the aim present in causing death

 Intent to cause harm to the body,
 Offences know that his action caused the death of the person.

CH- intention that is likely to cause death due to bodily injuries

M- there is a specific intent to cause bodily injuries that will result in death in the ordinary course
of nature.

CH- all culpable homicide is not murder

M- all murders are culpable homicide

CH- is considered a genus

M – is considered a species.

Force, Criminal Force And Assault Under I.P.C.

INTRODUCTION

This article deals with the terms “force”, “criminal force” and “assault” in the Indian Penal Code
1860. In India, we can always see the news about crimes in regards to battery, assault etc. such
crimes are common in our country and it happens almost every day. Because of this people were
facing many problems, therefore for ensuring strict punishment to those who committed such
crimes, our Government had to step, thus such crimes can be reduced. Besides, the article also
focuses on the distinction between criminal force and assault and also the important decisions
made by courts.
FORCE (Section-349)

The term ‘force’ in IPC examines force used by a human being on another human being. It does
not contemplate force against inanimate objects. Force means efficacy and signifies strength,
vigour, might, energy, power, violence, armament, necessity.

A definition close to the exact meaning of ‘force’ is violence, the power exerted against will or
consent. It does not constitute any offence but section 349 of IPC merely explains what amounts
to force. It is necessary to understand what force is, to understand the definition of criminal
force.

Section 349 provides that “A person is said to use force to another if he causes motion, change of
motion, or cessation of motion to that other, or if he causes to any substance such motion, or
change of motion, or cessation of motion as brings that substance into contact with any part of
that other’s body, or with anything which that other is wearing or carrying, or with anything so
situated that such contact affects that others’ sense of feeling:

Provided that the person causing the motion, or change of motion, or cessation of motion, causes
that motion .change of motion or cessation of motion in one of three ways hereinafter describe:-

Firstly:– By his own bodily power.

Secondly:– By disposing of any substance in such a manner that the motion or change or
cessation of motion takes place without any further act on his part, or on the part of any other
person.

Thirdly:– By inducing any animal to move, to change its motion, or to cease to move.”

CRIMINAL FORCE (Section- 350)

The term criminal force is defined in section 350 of IPC. And criminal force uses the meaning of
force in section 349 as for more clarity to section 350. Section 350 of IPC provides what is
criminal force; as if someone intentionally uses force to any person, without that person’s
consent, in order to the committing of any offence, and the use of such force by intention to
cause, or knowing that such force will cause injury to that person whom the force is to be used,
or cause fear or annoyance, is said to use criminal force to that other.

Illustrations:
 1. A person X encourages a dog to jump upon Y without Y’s consent. Here, if X intends to
cause injury, fear or annoyance to Y, he uses criminal force to X.
2. A person A is bathing, B another one poured boiling water into the bathing water by
knowing it is boiling water. This shows the intention of A to bring that water in contact
with B which affects his sense of feeling A has, therefore, intentionally used force to B;
and if he has done this without B’s consent intending or knowing it to be likely that he
may thereby cause injury, A has used criminal force.
ESSENTIALS OF CRIMINAL FORCE

Criminal force constitutes the following essentials:

1. There must be use of force.

2. The force should be used intentionally.
3. The force must have been used;
a. For committing of an offence; or

b. With the intention to cause fear, injury or annoyance to the other with knowledge.

From this, we understood that the use of force is mandatory but mere force is not punishable
under law. Section 349 defines force but it is not treated as an offence. That can be used in a
positive sense also;

Eg: If someone uses force to protect someone from falling down, to protect from an injury. It is
not an offence. Hence, criminal force requires more than the use of force. They are:-

CONSENT

The meaning of consent is provided in section 90 of IPC. The act of using force must be without
the consent of the person to whom such force is being used. The terms “without consent” and “
against his will” are different. “Without consent” means there is a physical and active opposition
and “against his will” means there is a mental and active opposition. Thus, the law requires the
accused to be without consent.

INTENTIONAL USE OF FORCE

The word intentional excludes all voluntary, accidental or even negligent acts from the ambit of
criminal force.
Eg: when a person negligently or carelessly pulls the veil of a woman, even though without
consent as it was not an intentional act of force, neither I sit for committing an offence nor it is
caused by an intention or knowledge to cause injury or fear or annoyance.

Thus the act cannot be considered as a criminal force.

PRESENCE OF PERSON

To prove that there was the use of criminal force, the presence of the person against whom the
force is to be alleged to be used is mandatory. Thus, the law does not consider the act as a force
when a thief broke into a house whose owner is not present there. There is no external force used
upon the person. It is not done without any use of force.

If the force does not cause any injury; it is constituted as a criminal force as it is executed with a
mental element, and is externally acted to achieve the results. And the mere fact that the result
was somehow escaped by some act will be immaterial.

Eg:- the accused tried to beat a person with a stick and raise it with force against the victim, but
the victim escaped and frustrated the achievement of the intended result. It will not be called a
mere force.

Thus, the cause of injury or hurt is immaterial when other essentials of section 350 satisfy, ie; the
intention or knowledge is enough.

ASSAULT (Section- 351)

According to Tomlins Law Dictionary, assault is “ an attempt with force and violence, to do
corporate hurt to another as by sticking at him with or without a weapon. But no words
whatsoever, be they even so provoking can amount to an assault, notwithstanding the many
ancient opinions to contrary”

Section 351 provides that: If a person makes any gesture, or any preparation by knowing and
with the intention that it will cause apprehension in the mind of the person present there. It is the
use of criminal force to that person. It is said to commit an assault.

Explanation:– Mere words do not amount to an assault. But the words which a person uses
may give to his gestures or preparations amount to an assault.”

Illustrations:
  A person A untied the wrap of a vicious dog by knowing it will cause harm on B. So A
has committed an assault upon B.
 X shows clenched fist at Y which causes an apprehension in the mind of Y that X is
about to strike Y. X has committed an assault.
ESSENTIALS OF ASSAULT

1. Gestures or preparation:- that the accused should make a gesture or preparation to use
criminal force.
2. Such gestures or preparation should be made in the presence of the person in respect of
whom it is made.
3. The act was with an intention to cause an apprehension of harm or injury;
4. The act caused apprehension in the eyes of the victim that he would be harmed by
another person’s action.
Assault is a non-cognizable offence, bailable and compoundable. It is triable by any Magistrate.

Following are some instances of assault:

1. Throwing brick into another’s house.

2. Advancing with a threatening attitude to strike.
3. Pointing of a gun on someone at a short distance. If it is loaded or unloaded is immaterial.
4. Lifting one’s lathi.

PUNISHMENT FOR ASSAULT OR CRIMINAL FORCE

Section 352 of IPC provides punishment for assault or use of criminal force when there are no
aggravating circumstances provided in sections 353 to 358.

When someone assaults or uses criminal force on another by the grave and sudden provocation
by another person, he may be sentenced to imprisonment which may extend to three months, or
fine up to INR 500, or both. It is defined under section 352.

CASE LAWS

Ramakant Rajaram v. Manuel Fernandes

Here court observed that when the motion is caused or change in motion caused, or cessation of
motion is caused to the external object or substance or thing which is in possession or in contact,
it does not affect that person, then it cannot be considered as force, it will not be the use of force.
Chandrika Sao v. State of Bihar

In this case, the lower court rejected the argument that merely snatching the book away from the
hands of the official, which he was in the official’s possession at that time, was not a use of
force. The Supreme court observed otherwise, saying that the snatching of the book was capable
of fulfilling the essence of section 349. The book which was in possession of the official was
caused to have a motion or change in motion by mere snatching it; this affects a sensation of
feeling to the official’s hands. Therefore it is the use of force by the accused.

Nani Gopal Das v. Bhima charan Rakshit

The court stated that the presence of the person whom the force is alleged to be used is
mandatory to prove that there was the use of force or criminal force.

Bihari Lal v. Emperor

In this case, the court observed that in criminal force the physical presence of a person, against
whom the criminal force is alleged to be used is required.

DISTINCTION BETWEEN CRIMINAL FORCE AND ASSAULT

FORCE / CRIMINAL FORCE ASSAULT

1. It is the use of intentional force on It denotes the preparatory acts which cause
any person to cause any injury or apprehension of use of criminal force against
harm or fear of injury. the person.

2. Even use of criminal force includes an There is an apprehension of use of force only
assault. and no use of real force.

3. Physical contact exists. There is no physical contact.

4. The action of the wrongdoer is

It is an attempt to commit criminal force.
completed.
5. In criminal force, assault is In assault, the accused must be having enough
consummated by means and ability of that means and ability to carry his threat into the
person. intended result.

It is necessary that the person assaulted

6. No belief of ability is needed. The
believes that the assaulting person has the
application of force is actionable even
ability to apply the force so attempted by him,
though it is the slightest amount of force.
on reasonable grounds.

7. It has something more in it as the It is an overt act indicating sudden intention to

intentional application of force to the commit criminal force coupled with the
person of another without lawful capacity of carrying out the intention into
justification is necessary. effect.

8. As soon as the thrown falls on the

Throwing water upon a person is an assault.
person, it becomes a criminal force.

9. More serious form of offence when A less serious form offenece compared to
compared to assault. criminal force.

10. Force is defined under section 349 and

Defined under section 351 of IPC.
criminal force under section 350 of IPC.

INTRODUCTION
The most heinous crime related to women is Rape. Rape, not only physically but also
emotionally and mentally destroys a woman. And, even society pushes the girl towards a severe
mental trauma. It completely kills a woman from inside and all her dreams and feelings come to
an end.

Some laws have been made describing Rape and its punishment under the Indian Law. But, any
punishment for Rape won’t ever do justice with the pain of rape victim. Like, even death
punishment for rape will not be enough, some strict punishment should be made for the rapists to
give complete justice for the rape victim. But, if compared to the early times, the laws have been
amended and made slightly strict.

And, on the other hand, unnatural offences covers unnatural sexual intercourse that is against the
normality of nature. Unnatural, here means sexual intercourse, which does not form a part of
 reproductive sexual intercourse. The guilty or the accused commits this offence either with a
man, woman or animal.

Laws on Rape
The word ‘rape’ arises from the Latin word ‘rapio’ , which means ‘to seize’. So, rape basically
means a forcible seizure. Rape is the sexual violation without the consent of woman, with fraud
or force.

The Indian Penal Code describes sections related to the laws on rape and its punishment. Section
375 defines rape and Section 376 defines its punishment. Section 376A makes husband liable to
punishment for intercourse with his wife during separation and Sections 376B to 376D gives
punishment for ‘custodial rape’.

Section 375
According to section 375, a man is said to commit rape if he-

1. Penetrates his penis, into the vagina, mouth, urethra or anus of a woman or makes her to do so
with him or with any other person, or
2. Inserts any object or part of his body(not penis) into the vagina, urethra or anus of a woman, or
3. Manipulates any part of the woman’s body, so as to cause penetration into the vagina, urethra,
anus or any other part of woman’s body, or
4. Applies his mouth to the vagina, urethra or anus of a woman
And explanations given under this section are that the term ‘vagina’ should also include the
‘labia majora’. And also, that if a woman physically, does not resist the act of penetration then,
this can not be regarded as consenting to the sexual activity.

Necessary ingredients of Section 375

The section lists some ingredients that prove that the act was against the will and consent of the
woman. So, a woman is not liable for rape. The essential ingredients are:

1. Against her will: It requires that there should be an explicit opposition on the part of the victim
towards the act and still the accused committed the act.
2. Without her consent: Absence of consent is the essence of rape. A man is the best judge of
his/her own interest and will never put herself/himself in any act that can cause injury. The
definition of consent is given under Section 90 of the IPC.
3. By obtaining her consent by putting her or any other person, she is interested in, with fear of
death or of hurt is no consent in law. Obtaining consent by such practices is not a valid
consent.
4. When her consent is obtained by making her believe that she is lawfully married to that man:
In this case, the consent of the woman is obtained by making her believe the misconception, so
that she allows for sexual intercourse but in fact, the person is not the lawful husband of the
woman but just pretends her to be one. So, this is no consent in law.
5. Consent obtained through unsoundness of mind: When the consent of woman is obtained by
reason of unsoundness or when she can not understand the nature of the act is no consent in
law. This clause is the new addition in this section after the Criminal Law (Amendment) Act
43 of 1983. It is to protect and safeguard the interest of the woman, who gives consent to the
man for sexual intercourse without knowing the nature of the act by reason of unsoundness of
mind or under the influence of stupefying or unwholesome substance.
6. Act done when she is under 18 years of age: Consent obtained, when the girl is under 18 years
of age is not a valid one. Since, she is unknown to the nature and consequences of the act. So,
she is incapable of giving her consent to any such sexual act.
7. When she is unable to communicate consent: Any condition or circumstances that resist her to
give consent to such acts can not be a reason to commit the offence.

Exceptions under Section 375

There are two exceptions under section 375, that does not form part of rape:

1. Any act which is done during the medical procedure or intervention.

2. Any sexual act done by a man with his own wife, wife not being under fifteen years of age.

Amendments after 2013

Certain amendments have been made after the Act 13 of 2013. They are as following:

1. Meaning of penetration has been given a different form. Penetration now amounts to any kind
of sexual penetration done by a man into the body of a woman. And in case of a girl child, of
tender age, then trying to do the act of penetration will also amount to rape.
2. The punishment of rape: Section 376 of IPC describes the minimum punishment of rape, i.e.
seven years of imprisonment under clause (1) which may extend to life imprisonments.
3. The meaning of consent has also been expanded by adding the clause (5) under section 375.

Section 376
In 2013, certain changes in the punishment of rape were made to deter people from committing
this crime. It has been divided in two sub-sections to fix punishment relating to the seriousness
of the crime

Sub-section (1) describes the punishment of rape with a minimum of seven years of
imprisonment that may extend to the imprisonment of life and fine.

Sub-section (2) describes the punishment of rape which is not less than 10 years of imprisonment
but may extend to the imprisonment of life till death and fine. This sub-section gives punishment
of rape, if committed by a public servant, police officer, member of armed forces, person being
on management or staff of a jail, or other place of custody of women’s or children’s institution or
by a near relative of the person raped.
In a recent judgement of State of Karnataka v. Puttaraja (2004), the Supreme Court through
Justice Arijit Pasayat, said that the rapist not only causes physical injuries but also leaves scars
on the dignity, honour and reputation of a woman. So, leniency in punishment of the sexual
offences is against the public interest and such animals should be punished to commit such
heinous crime.

376A. Punishment for causing death or resulting in persistent vegetative state

of victim.
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376
and in the course of such commission inflicts an injury which causes the death of the woman or
causes the woman to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural
life, or with death.

376AB. Punishment for rape on woman under twelve years of age.

Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural
life, and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation ofthe victim:
Provided further that any fine imposed under this section shall be paid to the victim.

376B. Sexual intercourse by husband upon his wife during separation.

Whoever has sexual intercourse with his own wife, who is living separately, whether under a
decree of separation or otherwise, without her consent, shall be punished with imprisonment of
either description for a term which shall not be less than two years but which may extend to
seven years, and shall also be liable to fine.

376C. Sexual intercourse by person in authority.

Whoever, being-
(a) in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or
under any law for the time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff of a hospital,

abuses such position or fiduciary relationship to induce or seduce any woman either in his
custody or under his charge or present in the premises to have sexual intercourse with him, such
sexual intercourse not amounting to the offence of rape, shall be punished with rigorous
imprisonment of either description for a term which shall not be less than five years, but which
may extend to ten years, and shall also be liable to fine.

Explanation 1-
In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of
section 375.

Explanation 2-
For the purposes of this section, Explanation 1 to section 375 shall also be applicable.

Explanation 3-
“Superintendent“, in relation to a jail, remand home or other place of custody or a women’s or
children’s institution, includes a person holding any other office in such jail, remand home, place
or institution by virtue of which such person can exercise any authority or control over its
inmates.

Explanation 4-
The expressions “hospital” and “women’s or children’s institution” shall respectively have the
same meaning as in Explanation to sub-section (2) of section 376.

376D. Gang rape.

Where a woman is raped by one or more persons constituting a group or acting in furtherance of
a common intention, each of those persons shall be deemed to have committed the offence of
rape and shall be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to life which shall mean imprisonment for the remainder of
that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

376DA. Punishment for gang rape on woman under sixteen years of age.
Where a woman under sixteen years of age is raped by one or more persons constituting a group
or acting in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

376DB. Punishment for gang rape on woman under twelve years of age.
Where a woman under twelve years of age is raped by one or more persons constituting a group
or acting in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

376E. Punishment for repeat offenders.

Whoever has been previously convicted of an offence punishable under section 376 or section
376A or section 376AB* or section 376D or section 376DA* or section 376DB* and is
subsequently convicted of an offence punishable under any of the said sections shall be punished
with imprisonment for life which shall mean imprisonment for the remainder of that person’s
natural life, or with death.

Unnatural Offence - Section 377

The sixth kind of offense against the human body is an unnatural offense. S. 377 defines
unnatural offenses as under:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or
animal, shall be punished with imprisonment for life or 10 years and a fine.

Explaining: Penetration is sufficient to constitute the carnal intercourse necessary to the

offense described in this Section 377.

This section provides punishment for terms known as sodomy, buggery, and bestiality. The
offense consists of carnal intercourse committed against the order of nature by a man with a man,
or in the same manner with a woman, or by a man or woman in any manner with an animal. A in
rape, penetration, however slight, is essential. Consent is immaterial in a case under this section.
The person who takes a passive part is equally guilty as an abettor with the person acting in the
act.

Section 377 IPC - Consensual Sex

Consensual sex is private between adults of the same sex criminalized vide section 377 IPC is
not violated of the fundamental right to personal liberty (Article 21), Equality (Article 14), the
and prohibition against Discrimination on Grounds of sex (Article 15), of the constitution
Supreme Court - 2014 - Overruled 2018 by a common cause- a registered society.
In Suresh Kumar Koushal v Naz Foundation, AIR 2014 SC 563, given the recognition of the
right to personal freedom as a fundamental human right, Naz Foundation, working on HIV/AIDS
filed a PIL in Delhi High Court seeking that homosexuality between consenting adults should not
be penalized.

The constitutional validity of Section 377

it deserves to be noted that S. 377, which was enacted by the British Colonial Rulers in 1863,
was devised to prevent and criminalize homosexual sex, as well as certain consensual
heterosexual acts, both of which were formed upon in those days.

It was widely felt that today, such provisions in the penal law of the country are outdated and
impose an unreasonable- and unnecessary-restriction on an individual’s freedom, and therefore,
ought to be repealed.

In 2001, an activist group, the Naz Foundation, filed public interest litigation(PIL) in the Delhi
Court, seeking legalization of such acts between connected adults. In 2003 the High Court passed
an order refusing to hear such a PIL, observing that the Naz Foundation had no locus standi in
the matter. When the Foundation appealed to the Supreme Court, the apex court held the
foundation did have locus standi and remanded the case back to the High Court for disposal on
merits.

On July 2, 2009, that is, eight long years after the PIL was filed, a Bench of the Delhi High Court
headed by the Chief Justice, Ajit Shah, delivered a historic ruling to this effect that this section,
as it stands, violates Art, 14 of the constitution. The court Thus overturned the 150 years old
provision that punished consensual homosexual activities between consenting adults,(Naz
Foundation a Govt. Of NCT, Delhi,(2009) 160 Delhi law times, 227)

The Delhi Court also observed that its judgment would hold good until Parliament chooses to
amend the IPC suitably. Ut also clarified that S. 377 would continue to apply to non-consensual
intercourse and intercourse with minors.

When the case reached the supreme court in appeal, the apex court reversed the judgment of the
High court and restored S. 377 to its infamous glory. On December 11, 2013, it ruled that S. 377
rightly makes homosexuality a criminal offense. The Bench of the Supreme Court upheld the
validity of s. 377 which makes such acts of sex a punishable offense. It also put the ball in the
Government’s court, observing that punishment was free to modify or annul the law by situation
legislation. (2014 1 SSC 1)

Thereafter, in 2016, a private Member’s bill was introduced in the Lok Sabha by Mr. Shashi
Tharoor, in an attempt to decriminalize homosexuality, but the Lok Sabha frustrated this attempt
by majority vote against the Bill.

Full justice in the matter was finally done on September 6, 2018, when the Supreme Court, in a
landmark judgment, held S. 377 of the code is arbitrary and unconstitutional to it punishes
consensual intercourse between adults, irrespective of their gender identity and sexual
orientation(Native Singh Johar & others v. Union of India, 2018 1SCC 991)
 In the course of his judgment, Chief Justice Dipak Mishra quoted the German Thinker, Goethe,
who had observed.

“I am what I am; so, take me as I am”

As Justice Indu Malhotra, the lone female judge on the bench observed, “Sexual orientation is
innate to human beings. It is an important attribute of one’s personality. Homosexual and
bisexual are natural variants of human sexuality”

The apex court did not, however, strike down S. 377 in its entirety, leaving non-consensual
unnatural intercourse and bestiality still punishable under this section.

Offence Punishment Cognizance Bail Triable By

Unnatural Imprisonment for life or up to Cognizable Non - Magistrate of the

Offences 10 years along with a fine Bailable first class.

Offence against Property

People own two types of property, movable and immovable. Concept of property is quite
significant in modern times. Any offence with regard to either type of property is punishable
under the provisions of criminal law. This article focuses on the categories and types of offences
against property as under Indian Penal Code, 1860 (IPC).

Offences against property and their punishments are defined in Chapter XVII of Indian Penal
Code in Sections 378 to 460. Mainly, ten offences are identified under Crimes against property
under the IPC. Theft, Extortion, Robbery and dacoity, Criminal misappropriation of property,
Criminal breach of trust, Receiving stolen property, Cheating, Fraudulent deed and disposition of
property, Mischief, Criminal trespass.

There are different types of offences one of them is against the property. Any offence which is
committed in regard to any property whether it is movable or immovable is punishable under the
provisions of the Law of the Crimes or the Indian Penal Code. Chapter 17 of the Code contains
these provisions. Such offences include Crimes like:

 Theft
 Extortion
 Robbery and dacoity
 Criminal misappropriation of property
 Criminal Breach of trust
 Receiving stolen property
 Cheating
 Fraudulent deed and disposition of property
 Mischief
 Criminal trespass

These offences and the punishments relating to them are explained in details in Section 378 to
460. Let us understand two of the offences against property.

Theft and Extortion

Theft
In simple terms ‘when a person takes away the property from the possession of an individual
who is in charge without his consent amounts to theft. Theft has been dealt under Section 378 to
Section 382‘. Whoever, planning to take deceitfully and dishonestly any movable property out of
the possession of any individual without that person’s consent, moves that property, such taking,
is called theft according to Section 378, Indian Penal Code.

What constitutes theft?

The first thing we do is break up the definition into parts:

 Whoever, intending to take dishonestly

 any moveable property
 out of the possession of any person
 without that person consent
 moves that property in order to take it.

So, now let us understand that to constitute theft what are the essential elements which have to be
satisfied.

 Dishonest intention to take property;

 The property must be movable;
 The property should have taken out of the possession of another person;
 The property should have taken without the consent of that person and,
 There must be moving of the property in order to accomplish the taking of it.

Elaborated Explanation:

 Dishonest Intention
The term ‘dishonestly’ has been duly defined under IPC as ‘whoever does anything with the
 intention to bring about wrongful gain to one person or wrongful loss to another person is said
to do that act dishonestly‘. A key factor for dishonest intent is doing any act deliberately. If the
property is taken out of possession without any dishonest intention that is without the intention
of causing wrongful loss or wrongful loss to anyone, it is not theft.

Example
If you take the car keys of your neighbour, knowing that it’s his, then that’s theft but if you took
it thinking it’s your own then that’s not theft. – Simple because there is no ‘dishonesty’ here.

 The property must be movable

Property is classified as movable and immovable. Property attached to the earth is considered
immovable property. A property so long as it is attached to the earth, which is not a movable
property, is not the matter of theft but as soon as it is severed from the earth it becomes capable
of being the subject matter of theft.

Example
Param cuts down a tree on Shyam’s ground dishonestly with the intention of taking the tree out
of Shyam’s possession without his consent. Here as soon as Param has severed the tree in order
to such taking he has committed theft.

 Out of the possession of another person

Theft is an offence against possession. Possession means ‘the state of having rights over, owning
or controlling a property be it movable or immovable’. In order for a theft to have occurred the
property being stolen must be taken from the possession of the owner of that property. The
person should be in possession although he may not be the owner of that movable property. It is
not relevant how the victim got the possession that is the possession may be lawful or unlawful.

Example
Aleen brought home Yashi’s book without Yashi’s permission. Zeeshan dishonestly took away
the book from Aleen’s house. Although Aleen’s possession was unlawful, Zeeshan committed
theft because he took the property from Aleen’s possession without his consent.
Ajay finds a ring belonging to Lovika on the table in the house which Samar occupies. Here, the
ring is in Samar’s possession and if Ajay dishonestly removes it Ajay commits theft but if Ajay
finds a ring lying on the road, not in possession of any person and he takes it, he has not
committed any theft.

 Without the consent of that person

If a person allows another into taking away his property, it cannot be considered as theft. If the
property in question is moved with the consent of the possessor then it is not theft. Consent may
be given expressly or impliedly. It can be given by the possessor or anyone who has the authority
to give such consent.

Example
Riddhiman who had a job interview in the afternoon entered his good friend Sandeep’s room in
his absence he took his watch without his permission with the intention to return it soon after the
 interview. Here Riddhiman did not commit theft if he took the watch under the expression that
he had Sandeep’s implied consent to use the watch.

 Moving the property – In addition to all the ingredients, there must be the moving of the
property with the intention to take it. The moving does not need to be out of the ‘person
possession’ but rather simply moving it in any direction with the intention or objective to
ultimately move it out of the person’s possession. Also moving it not only constitutes essentially
moving it but also committing an act which allows for that property to move.

Example
If a boat is tied up to pier on Zayn’s property and Parag remove the ropes so that it floats into the
part of the lake which is his property although he is not physically moving the property, he
commits theft

Punishment for Theft

Section 379 of the Indian Penal Code tells us about the punishment for theft. Any individual
who commits theft shall be penalized with imprisonment of either description for a term that may
extend to three years or with fine or in some cases with both.

Aggravated forms of Theft;

 Section 380 – any individual who commits a theft in building, tent or vessel which is used as a
human residence or used as the custody of the property
 Section 381 – Theft committed by a clerk or a servant of property whose possession is with the
master
 Section 382 – Theft committed after the preparation or planning made for causing death, hurt
or restraint of an individual in order to the committing of the theft

Extortion
In simple terms, Extortion means making threats to another person or forcing them to give up
something they have in their possession. Or it can be defined as when a person put another
person in fear of any injury and induces him to deliver any property or valuable security commits
extortion.

If a person intentionally puts another person in apposition of fear or of a threat to cause him
injury, or deceitfully persuade him so that he may deliver the property or any other valuable
goods to another person or any document which has been signed and can be turned into a
valuable security.

Section 383, Indian Penal Code – The definition of Extortion can be understood by the following
illustration –

 Purva threatens Roshan that she will kill his wife if Roshan failed to pay Rs 1 crore. This is a
clear cut case of extortion against Purva.
 Ronak threatens Ziva to keep Ziva’s child in wrongful confinement unless Ziva signs an
agreement by which Ziva would be bound to pay some money to Ronak and being pressurized
by such threat Ziva agrees to signs the agreement. In this case, Ronak has committed the offence
of extortion.

The main object of Section 383 is to obtain the delivery of property or any item of value in
consequence of an inducement that is dishonest or malafide in nature. To be more precise an
intention to cause wrongful loss to one and wrongful gain to another

Now let us understand that to constitute the act of Extortion what are the essential elements to be
satisfied

Essential Ingredients of Section 383:

 A person must intentionally put any person in fear of injury to himself or other
 inducing the person so put in fear to deliver to any person with the Dishonest intention
 Any property
 Valuable security or

 Anything which is signed and sealed and that can easily be converted into a valuable security

Explanation
Intentionally positioning an individual in fear of injury to himself or another.
The fear so caused must be real or apparent and must an unsettling effect on the mind of the
person so threatened which takes away from his acts the element of free consent. The fear can be
in respect of injury in mind, body, reputation or property to the person himself or someone else.

 Arjun, along with his wife and children was travelling in a train when a gang of armed robbers
enters the compartment and demands the valuables from all the passengers. Arjun and his wife in
fear of getting hurt or losing life in the hands of the robbers hand over them the cash.

Dishonest inducement of a person to deliver any property, valuable security

or anything signed and sealed which can be converted into valuable security
to any person.
The person so threatened must be induced by the threat that he is must be forced, influenced or
pressurized to do as the accused wants him to do. The victim must be asked to deliver any person
any property, valuable security or anything signed and sealed which can be converted into a
valuable security. Delivery of property is very important in extortion. The property should be
delivered to the accused person by the person who is threatened.
 Punishment for Extortion:

Section 384 of the Indian Penal Code tell us about the punishment for extortion. Any
individual who commits extortion shall be punished with imprisonment of either description for
a term of 3 years or with fine or in some cases with both.

Section 384, Indian Penal Code – The offence under this section is –

 Cognizable meaning the police can arrest the person without the warrant
 Non–Bailable offence that is bail is the matter of the discretion of the court
 Non-Compoundable mean the question of entering into a compromise doesn’t even arise

Example
Aman threatens to kill the son of Badri if he fails to provide him with a blank signed stamp paper
with the malafide intention of extorting from him. Aman has induced Badri to give him a signed
stamp paper. A has committed extortion. A could be punished with imprisonment for a term up
to 3 years or with fine or with both.

Punishment for the attempt of Extortion

Section 385 of the Indian Penal Code deals with the punishment for an attempt of extortion.
Any individual who in order to commit the crime of extortion, puts any person in fear or attempts
to put any person in fear of any injury, shall be penalized with imprisonment of either description
for a term which may extend up to 2 years or with fine or in some cases with both.

Section 385, Indian Penal Code – It shall be understood that merely putting a person under the
fear of injury of any kind is more than enough to attract punishment under this section.

Aggravated forms of Extortion

 Section 386: Extortion by putting an individual in fear of death or grievous hurt

 Section 387: Put or attempts to put a person in fear of death or grievous hurt
 Section 388: Putting any person in threat of an accusation against that person or any other
 Section 389: Putting any person in fear of accusation of offence in order to commit extortion

Difference between Theft and Extortion

BASIS THEFT EXTORTION

Taking property without Intentionally puts any person in fear

COMMISSION OF
consent / against the owner of injury thereby dishonestly induce
ACT
will. to deliver the property to the person
 The offence of theft can be
In case of the crime of extortion, the
only committed in respect of
SUBJECT MATTER property can either be a movable
the properties which are
property or an immovable property
movable in nature.

DELIVERY OF THE There is no delivery of the There is the delivery of the property
PROPERTY property by the owner by the owner

ELEMENT OF THE In theft, there is no element In extortion, there is an element of

FEAR of force or fear force (fear of injury).

Robbery can be defined as a criminal act where theft or extortion occurs, accompanied by certain
additional elements. It involves the use or threat of violence, harm, or wrongful restraint to
compel a person to give up their property or belongings. Robbery is a crime against
property under IPC.

Robbery and Dacoity Section 390 to 402 of IPC deals with robbery and dacoity. These sections
can be divided into broadly these categories:

(1) Robbery, (and) attempt to commit robbery, punishment for robbery (ss390, 392, 393 and 401)

(2) Aggravated forms of robbery (ss 392 and 394)

(3) Dacoity (ss 391 and 395)

(4) Aggravated form of dacoity (s 396)

(5) Offences connected with dacoity:

(a) preparation to commit dacoity (s 399)

(b) assembling for purposes of committing dacoity (s 402)

(c) belonging to a gang of dacoits (s 400).

(6) Minimum sentence in certain cases of robbery and dacoity (ss 397 and 398)

Section 390 - Robbery This section says robbery is either theft or extortion. Thus, robbery is an
aggravated form of either theft or extortion. Robbery has the same essential elements as theft and
extortion which are: Dishonest attention Removal or inducement to deliver movable property
from the possession of other Caused to any person's death, hurt or wrongful restraint, or the fear
of instant death or instant hurt or instant wrongful restraint.
Section 390 of the IPC defines Robbery and Section 392 lays down the Punishment for the
offense of Robbery.

Section 390 states, “All Robbery is theft or extortion”. Now theft is defined under Section 378 of
the IPC as “whoever intends to take dishonestly any movable property out of the possession of
any person without that person’s consent and moves it, he/she is said to have committed a theft.”
And, extortion is defined under Section 383 as “any person who intentionally puts another
person in fear of injury and dishonestly induces him or her to deliver any valuable property or
anything signed which can be converted into valuable security is said to have committed
extortion“.

Now, in both theft and extortion, there is no voluntary threat to life or fear of instant threat or
hurt. But, when theft is robbery, the offender, for that end, voluntarily causes or attempts to
cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt,
or of instant wrongful restraint. When extortion is robbery, the offender, at the time of
committing the extortion, is in the presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful
restraint to that person or to some other person, and, by so putting in fear, induces the person so
put in fear then and there to deliver up the thing extorted.

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

It is important to note the expression "for that end" in the above definition of theft. This section
will apply to only those theft cases where death, hurt, wrongful restraint is used with the object
of facilitating the committing of theft or must be caused while the offender is committing theft or
is carrying away or is attempting to carry away property obtained by theft. It is very crucial for
distinguishing a case of theft with assault (s 379 and 323) from that of robbery. For example,
when the accused abandoned the property obtained by theft and threw stones at his pursuer to
deter him from continuing the pursuit, it was held that the accused was guilty of theft and not of
robbery.

In the case of State of Maharashtra vs. Joseph Mingel 1997(1) BOM CRLJ 362, the court held
that in order to prove robbery by theft all the essentials are necessary and even if one condition is
missing, robbery cannot be imposed on the accused.

Abdul Rashid vs. Nausar Ali

In this case, an armed person had entered the field of the plaintiff and was cutting the crops of
the plaintiff. However, it was held that this did not amount to Robbery rather it amounted to
theft, as the element of threat was missing.

Illustrations
 Abhijeet fraudulently takes Bulbul’s purse and keys without Bulbul’s consent. Here, Abhijeet
has committed the offense of theft.
 Ananya takes Bhuvan’s child and tells him to give Rs 5 Crs or she will kill the Child. Here,
Ananya has committed the offense of Extortion and not robbery. Now, if Ananya says give Rs 5
cr right now or I will shoot your son this very second, he commits the offense of Robbery. In the
latter part of the illustration what is important is the threat of INSTANT HARM or INSTANT
DEATH.
 Shyam holds Raju down and fraudulently takes Raju’s purse and keys without Raju’s consent.
Here, Shyam has stopped Raju’s movement since he is holding him down. Therefore, he has
committed the offense of robbery as he voluntarily caused wrongful restraint.

Thus, theft becomes robbery when the following conditions are satisfied

 When the offender voluntarily causes or attempts to cause:

 Death, wrongful restraint or hurt or
 Fear of instant death, instant wrongful restraint or instant hurt.
 And the above act(s) is done
 While committing the theft
 To commit the theft
 While carrying away the property obtained by theft or
 While attempting to carry away property obtained by theft.

Examples:

 1. A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes without
Z’s consent. Here A has committed theft, and in order to the committing of that theft, has
voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
 2. A meets Z and Z’s child on the high road. A takes the child and threatens to fling it
down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here
A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child
who is there present. A has therefore committed robbery on Z.

When extortion is robbery

According to section 390 of IPC: Extortion is “robbery” if the offender, at the time of
committing the extortion, is in the presence of the person put in fear, and commits the extortion
by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to
that person or to some other person, and, by so putting in fear, induces the person so put in fear
then and there to deliver up the thing extorted.
Essentials:
 Intentionally puts in fear of injury
To that person or any other person
Deliver any person
Any property, valuable security or anything signed or sealed

Example:
A obtains property from Z by saying—“Your child is in the hands of my gang, and will be put to
death unless you send us ten thousand rupees”. This is extortion, and punishable as such; but it is
not robbery, unless Z is put in fear of the instant death of his child.

Punishment for robbery

According to section 392 of IPC: Whoever commits robbery shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if
the robbery be committed on the highway between sunset and sunrise, the imprisonment may be
extended to fourteen years.

Dacoity
Dacoity is an aggravated form of robbery which is committed by five or more than five persons.
These persons should be involved in either committing. Attempting to commit, or in aiding the
commission of a robbery.

Dacoity has been defined under Section 391 of the IPC as “When five or more persons conjointly
commit or attempt to commit a robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons present and aiding such commission
or attempt, amount to five or more, every person so committing, attempting or aiding, is said to
commit dacoity“. The punishment for the offense of Dacoity is mentioned under Section 395
which declares it to be cognizable, non-bailable, non-compoundable, and triable by the Court of
Sessions.

Illustrations

 Ali and his gang of 5 people broke into the house of Ram and locked his family in a room. They
took the money and other valuable items. Here each and every member of Ali’s Gang has
committed the offense of Dacoity.
 Abhimanyu and his 2 friends people broke into the house of Laddi and locked his family in a
room. They took the money and other valuable items. Here each and every member of
Abhimanyu’s Gang has committed the offense of Robbery.
 Asaduddin, Bakruddin, and Akbaruddin are gang leaders with 2 members each in their respective
gang. All the Gangs work in isolation and have no knowledge of each other. One day,
coincidentally, they break into the house of Surya and locked his family in a room. They took the
money and other valuable items. Here, since the gangs were not conjointly committing or
 attempting to commit a robbery, they did not commit the offense of Dacoity. Each person is said
to have committed Robbery.

Essentials of Dacoity

 There must be 5 or more people.

 The embers must be committing the act or must attempt to commit the act conjointly or Joined
together; combined.
 Robbery must take place by 5 or more people with dishonest intentions.

The State v. Sadhu Singh Ors.

Kurda Singh along with 4 other armed offenders committed the act of Dacoity at the house of
Gharsiram. They caused injuries to the Plaintiff and his family and were only able to take a
wristwatch and shawl. Out of the 5 people, one was not able to take anything. However, since the
5 were working conjointly, they were booked under Section 391 and punished under Section 395
of the IPC.

In the case of Raj Kumar @ Raju v State of Uttaranchal AIR 2008 SCC 709, the Supreme Court
has reiterated that for the commission of the offence of dacoity a minimum of five persons is an
essential ingredient of dacoity and s 396 does not come intoplay if persons convicted for
committing dacoity happened to be less than five.

In the case of Ram Baran vs. Emperor 1983 15 ALL 299, a large number of people under the
influence of religious sentiments attacked and deprived a group of Muslim people of their cattle.
The court held that it was dacoity as it was committed by 5 and more people.

Section 392 - Punishment for robbery Rigorous Imprisonment up to 10 years and also fine If
robbery committed at night (between sunset and sunrise) on the highway-Rigorous Imprisonment
may extend to 14years. And also fine.

Section 393 - Attempt to commit robbery · this section punishes any person who attempts to
commit robbery with rigorous imprisonment whose term can be extended to 7 years and he or
she will also be liable to pay the fine.

Section 394 - Voluntarily causing hurt in committing robbery If a person causes hurt during
committing robbery or attempt to commit robbery The person causing hurt and other persons
involved in committing robbery shall be punishable with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine. Section
394 is a special provision, which is applicable to cases where the offender has actually caused
hurt to the victim for the purpose of committing robbery or in an attempt to commit robbery. The
punishment provided for under s 394 is more severe than that provided under the first part of s
392.
Section 395 - Punishment for dacoity · Life imprisonment or rigorous imprisonment
which may extend to 10yrs and also fine. Dacoity is considered a very grave and serious crime
and hence, courts have held that in cases of dacoity, a deterrent sentence is called for. In
awarding punishment for an offence under this section, two things are to be considered: (i)
having regard to the gravity of the offence committed, the punishment that each individual
deserves; and (ii) on the facts and circumstances of a particular case, whether an unusually heavy
sentence is required to protect the interests of the public at large by acting as a deterrent to
others.

Section 396 - Dacoity with murder

·If a murder is committed during dacoity, all the persons involved shall be punished with death,
or imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and
shall also be liable to fine.

It is not necessary that murder should be committed in the presence of all. It is not even
necessary that murder should have been within the previous contemplation of the perpetrators of
the crime. The essence of an offence under this section is murder committed in the commission
of dacoity. However, if the dacoits were forced to retreat without collecting any booty, the
offence of dacoity would be completed as soon as they left the house of occurrence and took to
their heels. And if one of the dacoits kill someone of the persons chasing them, then only the
actual murderer will be liable under s 302 of IPC and others will be liable under s395 of IPC.
Shyam Behari v State of Uttar Pradesh AIR 1957 SC 320

In Laliya v State of Rajasthan AIR 1967 Raj 134, for conviction under this section court must pay
attention to these rules: · whether the dacoits retreated without plunder and the murder was
committed while retreating · the interval between the attempt of dacoity and the commission of
the murder · the distance between the places where the attempt at dacoity was committed and the
murder was committed · whether the dacoits abandoned all the booty and the lapse of an interval
between the abandonment of the booty and the commission of the murde
Landmark Cases on Difference Between Robbery And Dacoity

In Ram Shanker Singh v State of Uttar Pradesh, there were six persons accused of dacoity.
Upon trial, it was found that three of the six defendants were not guilty. Since three of them were
acquitted, it was held that the remaining three defendants could only be charged with robbery
under Section 392 and not with dacoity under Section 395.

Similar to the previous case, in Om Prakash v State of Rajasthan, the Supreme Court held that
if a case of dacoity is brought against five people and two of them are acquitted, the remaining
three cannot be held guilty of dacoity under Section 395. Accordingly, the defendants, in this
case, were convicted under Section 392.
Basis of
Robbery Dacoity
Differentiation

Robbery is an aggravated form of Dacoity is an advanced form of

theft or extortion, wherein there is robbery wherein at least 5
Meaning
fear of death, (grievous) hurt, or perpetrators are involved conjointly
wrongful restraint. in its commission.

X meets Y on the high roads, shows X boards a bus at night. He finds

a pistol, and demands Y’s purse. Y that A, B, C, D, and E are standing,
in consequence, surrenders his armed with weapons. They induce
purse. Here X has extorted the purse X to deliver all his valuables,
Illustration from Y by putting him in fear of falling which, they warn him of
instant hurt, and being at the time of breaking his bones. X, fearing
committing the extortion in his grievous hurt, instantly delivers his
presence. A has therefore valuables. A, B, C, D and E have
committed robbery. conjointly committed dacoity.

Section 395 of the IPC prescribes

Section 392 of the IPC prescribes
the Punishment for dacoity, which
the punishment for robbery, which
is life imprisonment, or upto 10
is upto 10 years of rigorous
years of rigorous imprisonment as
imprisonment as well as fine.
well as fine.
Punishment Further, upto 14 years of
imprisonment has been specified if
robbery is ‘committed on the
highway between sunset and
sunrise’.

Robbery is only punishable in the Dacoity is the only offense in IPC,

Liability for last two stages of crime, viz., which is punishable at all stages of
Intention/ attempt and accomplishment. crime.
Preparation/
Attempt/
Commission
i) Attempt to commit robbery is i) Intention to commit dacoity is
 punishable by a separate Section of punishable under Section 402 of
IPC that is Section 395. It is IPC. Under Section 402, intention
punishable with up to 7 years of is inferred from the conduct of the
rigorous imprisonment as well as person, viz., ‘assembling for the
fine. An attempt to commit robbery purpose of committing dacoity’. It
when armed with deadly weapons is is punishable with up to 7 years of
punishable under Section 398 with a rigorous imprisonment as well as
minimum of 7 years of fine.
imprisonment.

ii) Preparation to commit dacoity

ii) Commission of robbery is is punishable under Section 399 of
punishable under Section 392. IPC. It prescribes a punishment of
up to 10 years of rigorous
imprisonment as well as fine.

iii) Punishment for an attempt to

commit dacoity is contained in
Sections 395, and also 398.

iv) Commission of dacoity is

punishable under section 395.

It is a Cognizable, non-bailable, and

It is a Cognizable, non-bailable,
Nature of the non-compoundable offense and is
and non-compoundable offense and
Offense triable by Magistrate of the first
is triable by the Court of Session.
class.

There must be five or more

perpetrators. It must be noted that
Number of The minimum number of
aiders and abettors are also
Perpetrators perpetrator(s) is one.
included while counting the
number of perpetrators.

Dacoity is a graver and more

Robbery is relatively less grave than heinous offense than robbery and is
Gravity an aggravated form of robbery.
dacoity.
This is because dacoity comprises
robbery, and because robbery is an
 extreme form of theft or extortion,
dacoity also comprises theft and
extortion.

Criminal misappropriation
Section 403 & Section 404 of the Indian penal code, 1860 deals with Criminal Misappropriation of
Property. Section 403 of the Indian penal code deals with criminal misappropriation and prescribes the
penalization for the offence. Also, Section 404 of the Indian penal code deals with dishonest
misappropriation of a deceased person’s property. Criminal misappropriation of property is a
serious criminal offence in India that involves the dishonest appropriation of someone else’s
property without their consent.

riminal misappropriation of property is a type of criminal offence that involves the dishonest
appropriation of someone else’s property without their consent. It is defined under Section 403
of the Indian Penal Code as follows:

“Whoever dishonestly misappropriates or converts to his own use any movable property, shall be
punished with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.”

The offence of criminal misappropriation of property is a non-violent crime that can take many
forms. For example, it can involve an employee stealing money from their employer’s cash
register, a friend taking a valuable possession from another friend’s home without permission, or
a contractor using construction materials for personal use without the owner’s consent. In all
cases, the accused must have had a dishonest intention and must have taken or converted the
property without the owner’s consent.

Illustrations

a. Ajay takes property belonging to Zeeshan out of Zeeshan’s possession, in good faith,
believing, at any time when he takes it, that the property belongs to himself. Ajay is not
guilty of thef. But if Ajay, after discovering his mistake, dishonestly appropriates the
property to his own use, he is guilty of an offence under this section.

b. Ajay, being on friendly terms with Zeeshan, goes into Zeeshan’s library in Zeeshan’s
absence, and takes away a book without Zeeshan’s express consent. Here, if Ajay was
underneath the impression that he had Zeeshan’s implicit consent to take hold of the book for
the aim of reading it, Ajay has not committed theft. But, if Ajay subsequently sells the book
for his own profit, he is guilty of an offence under this section.
Ingredients
To establish the offence of misappropriation following ingredients have to be satisfied:
(i) the defendant embezzled property and converted the property to his own use.
(ii) he does so dishonestly.
(iii) the property is movable; and
(iv) the movable property belonged to the complainant
The offence underneath Section 403 of the Code is non-cognizable, bailable, compoundable
with the permission of the court and triable by any magistrate.

Dishonest Intention

To constitute the offence of criminal misappropriation of property, the accused must have had a
dishonest intention. This means that the accused must have intended to take or convert the
property for their own use without the owner’s consent. The intention must be dishonest,
meaning that the accused must have intended to deceive the owner of the property in some way.
This deception can take many forms, such as false representation, concealment, or abuse of
power.

For example, if a person borrows money from someone with the intention of using it for their
own purposes without the owner’s knowledge or consent, this would constitute a dishonest
intention. Similarly, if an employee takes cash from their employer’s cash register with the
intention of using it for their own purposes, this would also constitute a dishonest intention.

Appropriation

The second essential element of criminal misappropriation of property is appropriation. This

means that the accused must have taken or converted the property for their own use. The act of
appropriation can take many forms, such as physical taking, use, transfer, or disposal of the
property. The accused must have exercised control over the property in some way.

For example, if a person takes a piece of jewellery from someone else’s home without their
consent, this would constitute appropriation. Similarly, if an employee transfers funds from their
employer’s bank account to their own account without authorization, this would also constitute
appropriation.

Without Consent

The third essential element of criminal misappropriation of property is without consent. This
means that the accused must have taken or converted the property without the owner’s consent.
The consent must be genuine, meaning that the owner must have had knowledge of the act and
agreed to it willingly. If the owner did not know about the act or did not agree to it, then the
accused would have acted without consent.
For example, if a person takes a vehicle from someone else’s garage with their permission, this
would not constitute criminal misappropriation of property. However, if the person takes the
vehicle without the owner’s knowledge or permission, this would constitute criminal
misappropriation of property.

Finder of goods

If the intention wasn’t dishonest at the time possession was taken a subsequent alter of intention
doesn’t make the possession unlawful. Explanation to the section emphasizes that in case of the
finder of goods if he has taken all precautions to ascertain the true owner and kept the goods for a
reasonable time for restoring it to actuality owner, he may use the property for himself if actuality
owner isn’t found. But if forthwith misappropriate the property he would be liable underneath the
section.

Criminal Misappropriation of Property Case Laws

The case of State of Madhya Pradesh vs Pramod Mategaonkar (1964) established that
misappropriation of property can be deemed as temporary or permanent, and no endorsement or
approval is necessary to establish this offence.

Similarly, in the case of Ramaswamy Nadar vs the State of Madras (1957), the Supreme Court
interpreted the phrase “converts to his own use” as mentioned in Section 403 of the Indian Penal
Code. The court held that it implies the accused has utilized the property in a manner that goes
against the rights of the actual owner of the property

Dishonest misappropriation of property possessed by a person who passed away:

Section 404 of the Indian Penal Code deals with the aggravated form of dishonest
misappropriation of property that is in the possession of a deceased person at the time of their
death. Section 404 of the Indian penal code says that, whoever dishonestly misappropriates or
converts to his own use property, knowing that such property was in the possession of a deceased
person at the time of that person’s decease, and has not since been in the possession of any person
legally entitled to such possession, shall be punished with imprisonment of either description for a
term which can reach 3 years, and shall also be liable to fine, and if the offender at the time of such
person’s decease was utilised by him as a clerk or servant, the imprisonment may extend to 7 years.

Ingredients

To invoke Section 404 of the Indian penal code following ingredients should be met.
(i) The property must be a movable property
(ii) Such property was in possession of the deceased at the time of his death
(iii) The defendant misappropriated it or converted it to his own use
(iv) The accused did so dishonestly.
Offence underneath this Section is non-cognizable, bailable, non-compoundable, and triable by a
magistrate of the first class.
Criminal Breach of Trust in
It finds mention in Section 405 to 409, Indian penal code, 1860 chapter XVII deal with criminal
breach of trust. Under these sections are definition, punishment, and various forms of this
offence are mentioned.

In simple words, criminal breach of trust means that there were at least two parties, one of whom
entrusted his property to others. And the other person dishonestly misappropriated or used or
converted or disposed of that property.

“Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or wilfully suffers any other person so to do, commits
“criminal breach of trust”.

For understanding the offence of criminal breach of trust correctly, let us split it into 3 parts:

criminal, breach and trust.

 Criminal: Criminal refers to something related to a wrong or crime or something

prohibited by law.
 Breach: Breach can be defined as breaking the agreement, violating rules and
regulations, or contravention of some rule.
 Trust: Trust can be defined as some kind of fiduciary relationship or a belief in
something; to be honest and sincere. For example, the relationship between master and

servant, lawyer and client, etc.

For example: Ajay entrusts his watch to Karan for two days. Karan dishonestly converts the
watch to his own use. Here, Karan has committed the offence of criminal breach of trust under
section 405 of IPC.

s per section 405, the following are the essential ingredients of the offence of criminal breach of
trust-

1. That the person who is accused was entrusted with the property or had dominion
(sovereignty or control) over the property.
 2. That the accused dishonestly misappropriated or converted to his own use or dishonestly
uses or disposes of the property.
Thus we can say that the essential ingredients of the offence are ‘entrustment’ and ‘dishonest
misappropriation’.

Entrustment

Entrustment of property means creating a fiduciary relationship between the owner and the
trustee (accused) wherein-

 The owner may transfer the possession of the property to accused but retains the
ownership or proprietary rights.
 This transfer of possession is for some specific purpose out of faith and trust that
transferor has over accused.
 The transfer must be done by free will and not under any pressure.
 It is not necessary that the property is entrusted to the accused by the owner himself. It
can be entrusted by some other person as well (refer Somnath puri v. state [AIR 1972
SC1490]).
The domain over property means control over the property. The accused was in charge of the
property and enjoyed control over the property. For instance, the director of a company has
domain over the property because of his position in the company. In case of a partnership, a
partner does not have domain over the firm’s property unless there is an entrustment of the
domain through a special contract between the partners.

Dishonest Misappropriation

The term ‘dishonest’ is defined under section 24 of IPC, 1860. It means anything done with the
intention of causing a wrongful gain or wrongful loss to a person. And ‘wrongful gain or loss is
defined under section 23 wherein term ‘wrongful’ means a violation of someone’s legal rights.
So, any gain or loss by violating someone’s legal rights or by an act which is not legally
permissible would amount to wrongful gain or loss.

So, when the accused misappropriates, converts, use or dispose of the property with an intention
to have wrongful gain to himself or wrongful loss to another person, and he is not legally
permitted to do so, and his actions would violate the rights of transferee it will amount to the
offence of criminal breach of trust.

Examples of CBT

1. A was the executor of B’s will. As per will the property of B was to be divided equally
among his two sons. But A dishonestly divides and keeps half of the property for his own
use. Here A has committed the offence.
 2. Sam was going on a journey, so he entrusted his friend to take care of his furniture, and
he will pay him for this. His friend dishonestly sells the furniture. Here sam’s friend has
committed criminal breach of trust.
Nature of the Criminal Breach of Trust

The nature of the offense, i.e., Criminal breach of trust is cognizable and non-bailable. It is
triable by a Magistrate of the First Class. Although it is also a compoundable offence, it is only
compoundable by the property owner who has entrusted the property to the accused, and the
owner must primarily seek the court’s authorization for arresting the accused without a warrant.

Punishment for Criminal Breach of Trust

The punishment for the offense of criminal breach of trust is dealt with under Section 406 for
‘simple’ criminal breach of trust, the definition of which is contained in Section 405 of the IPC.
It provides for imprisonment up to 3 years, or fine, or both.

Landmark Cases Dealing with Criminal Breach of Trust

Some of the landmark cases dealing with criminal breach of trust are listed
below:
Sohan Lal v Emperor: This is a case of dishonest misappropriation of property for the own use.

Superintendent and Remembrancer of Legal Affairs, WB v SK Roy: Misappropriation of property

by making false entries is punishable under section 409 of IPC.

State of UP v Babu Ram: In a village, the accused, a sub-inspector (SI), investigated a theft case.
In the evening, he saw Tika Ram hurrying across a field, coming from the canal’s side. In the
folds of his dhoti, he seemed to be carrying something. When the accused searched him, he
found currency notes in a bundle. The accused took the bundle and returned it later. The amount
returned was 250 rupees short. The SC held that the currency notes were given to the sub-
inspector for a specific purpose and that Tika Ram had trusted the accused to return the money
once the accused was satisfied with it. It would be a criminal breach of trust if the accused had
taken the currency notes.

K. Dalmia v Delhi Administration: The word property was to be interpreted in a wider sense. It
held that whether an offence has been committed under this act will be determined based on how
property has been interpreted.

Mohammad Adil v PP: held headmaster liable for criminal breach of trust.
Mohammed Sulaiman vs Mohammed Ayub: Section 405 IPC requires doing of something to
property which would indicate either misappropriation or conversion or its use or disposal in
contravention of any legal contract, express or implied. A mere dispute of civil nature will not
attract the provisions of this section.

Rashmi Kumar vs Mahesh Kumar Bhada: According to the Supreme Court, a husband or
specific member of the family, who dishonestly misappropriates or steals a wife’s stridhana
property for his use, or permits another person to do so, commits criminal breach of trust

Criminal Breach of Trust by Carrier, or wharfinger, or warehouse-keeper

(Section 407)

Section 407 encompasses Criminal breach of trust by the following categories of persons:

1. Carrier: A common carrier is defined under the Carriers Act of 1865 as an individual,
enterprise, or company (other than the government) that conveys products for money from one
location to another, through land or inland waterways, for all individuals (consignors).

2. Wharfinger: A wharfinger is defined as “one who owns or keeps a wharf, for the purpose
of receiving and shipping merchandise to or from it, for hire.

3. Warehouse-keeper: In ordinary usage, a warehouse keeper is one who is in charge of

operating, storing and handling cargo deposited in the warehouse.

Criminal Breach of Trust by clerk or servant (Section 408)

Section 408 encompasses Criminal breach of trust by the following categories of persons:

1. Clerk: A clerk is a white-collar employee who does routine office activities. Recordkeeping,
filing, staffing service counters, screening callers, and other administrative duties are standard
responsibilities for clerical employees.

2. Servant: In the general sense, a servant is an employee who works for the master, however,
does not hold any power to exercise authority on behalf of the master.

Criminal Breach of Trust by Public Servant, or by Banker, Merchant, or

Agent (Section 409)
This is a graver form of criminal breach of trust as it involves persons who hold a special trust
with the public at large or have enormous control over the property entrusted to them. Under the
section, persons in such an arrangement are broadly identified as:

1. Public servant: Section 21 of the IPC defines ‘public servant’. Broadly, the term refers to
a person holding any office or position in a public body.

2. Banker: A banker is a person who conducts banking operations such as receiving deposits,
lending money, withdrawing funds, and exchanging money. In other terms, a banker is someone
who works directly in the banking industry.

3. Merchant: A merchant is someone who trades in items made by other people, particularly
in other countries.

4. Factor: A factor is a commission-based trader who receives and sells items on commission.
A factor is a mercantile fiduciary who transacts business in his own name while keeping his
principal undisclosed.

5. Broker: A broker is a person or company that facilitates transactions between buyers and
sellers in lieu of a commission after the transaction is completed. A broker who also serves as a
seller or a buyer is considered a principal in the transaction.

6. Attorney: The term “attorney” refers to a person who has been designated by another to do
a task in his or her absence and who has the power to act in the place and on behalf of the person
to whom he or she has been authorized.

7. Agent: Section 182 of the Indian Contract Act, 1872 defines an ‘agent’ as a person
employed to do any act for another, or to represent another in dealings with a third person. An
agent can be made liable under the section only when he or she dishonestly misappropriates or
converts for personal use. It must be noted that an agent cannot be made liable for merely
exercising control or taking decisions against the principal’s lawful directions as the agent is not
bound by them.

Landmark Cases and Judicial Pronouncements on Criminal Breach of Trust

State of Gujarat v. Jaswantlal Nathalal

The government sold cement to the accused only on the condition that it be utilised for
construction work. A part of the cement purchased, on the other hand, was directed to a godown.
The accused was pursued on criminal breach of trust charges. The Supreme Court ruled that the
term ‘entrustment’ implies that the person who hands over or on whose behalf a property is given
over to another continues to be the owner of such property.

Furthermore, in order to establish a fiduciary relationship, the individual handing over the
property must have trust in the person receiving it. A simple sale transaction cannot be
considered an entrustment. If the accused breached the terms of the sale, the sole recourse is to
punish him under the cement control laws. However, no offense of criminal breach of trust was
committed.

Jaswant Rai Manilal Akhaney v. State of Bombay

In this case, it was ruled that entrustment occurs when securities are deposited with a bank for a
specific purpose under defined circumstances. Similarly, properties handed to a company’s board
would be considered entrustment because directors are in some ways trustees. However, there
can be no issue of entrustment when money was provided as unlawful gratification.

State of UP v. Babu Ram

The accused, a police sub-inspector (SI), had gone to investigate a theft case in a hamlet. In the
evening, he noticed a man named Tika Ram hurrying over the canal and into a field. In his dhoti
folds, he looked to be holding something. When the accused was searched, he discovered a
bundle of cash notes. The accused took the package and subsequently handed it back to the
police.

The amount refunded was less than Rs. 250/-. The monetary notes were given to the SI for a
specific purpose, according to the Supreme Court, and Tika Ram had trusted the accused to
return the money once he was satisfied with it. It would be a criminal breach of trust if the
accused had removed the money notes.

Rashmi Kumar vs Mahesh Kumar Bhada

In this case, the Apex court ruled that when a wife entrusts her stridhana property to her husband
or any other member of the family with dominion over that property, and the husband or such
other member of the family dishonestly misappropriates or converts that property to his own use,
or wilfully allows any other person to do so, he commits criminal breach of trust.

Difference Between Criminal Breach of Trust and Criminal Misappropriation

Basis of
Criminal Breach of Trust Criminal Misappropriation
Differentiation

The provisions related to Criminal

The provisions related to CBT are
Provisions and Misappropriation are contained in sections
contained in sections 405 to 409. It is
Definition 403 and 404. It is defined under Section
defined under Section 405 of IPC.
403 of IPC.

Nature of The property may either be movable

The property in this case is movable.
Property or immovable.

There is a fiduciary and contractual

Contractual There is no such contract between the
arrangement between the owner and
Arrangement parties.
the perpetrator.

The perpetrator gets possession or The perpetrator gets possession of the

Possession control of the property by virtue of property naturally, or by casualty, or by
an entrustment. other means.

It is cognizable, non-bailable,
compoundable by owner with the
permission of the Court and triable It is non-cognizable, bailable, and triable
Nature of the by a magistrate of first class. by any Magistrate. In case of
offence Criminal breach of trust by a public misappropriation of property of a deceased,
servant, or by banker, merchant or it is triable by a Magistrate of first class.
agent is non-compoundable, rest
remaining the same.

It is comparatively less grave. ‘Dishonest

It is a graver offence than
Gravity misappropriation’ itself is an ingredient to
misappropriation.
constitute ‘criminal breach of trust’.

It is punishable with 3-year It is punishable with 2-year imprisonment,

Punishment imprisonment (7 years in case of or fine, or both. As per section 404,
aggravated forms of CBT under misappropriation of a deceased’s property
sections 407 and 408; life is punishable by 3-year imprisonment
imprisonment or 10-year along with a fine. Moreover, if the offence
 imprisonment in case of section is committed by a clerk or person
409), or fine, or both. employed by a deceased person,
punishment is of 7 years along with a fine.

Stolen Property

The property, being an important part of the law, holds an important part in the Indian Penal Code.
There are various provisions related to it under IPC. Section 410 to Section 414 of the Indian Penal
Code, 1860 discusses provisions of ‘Receiving Stolen property’. Section 410 of the Code states the
Stolen Property provision. In this article, we will look at the various aspects of such provisions.
Section 410 of the Indian Penal Code says deals with the property, where a person transfers the
possession of the property. It can happen in any manner either by theft or by extortion or by
robbery. Moreover, it includes all the properties which a person misappropriates in respect to a
commitment of criminal breach of trust.

All such instances of property are “stolen properties”. It is applicable even if the transfer or the
misappropriation or breach of trust takes place within or outside India. But if in the later stages, the
property reaches its rightful legal owner then the property ceases to be a ‘Stolen Property’.

Moreover, according to Section 410 of the Indian Penal Code, all the properties which a person
transfers through any of the modes will be a stolen property:

1. Theft

2. Extortion

3. Criminal Misappropriation

4. Criminal Breach of Trust

Dishonestly Receiving the Property

Section 411 of the IPC deals with any person who holds any property even after knowing the fact
that the property is a stolen one. Firstly, he will be a criminal in the eyes of law.
And lastly, he will have to go through the imprisonment of at least 3 years. In certain cases, he will
just have to pay fine. Moreover, in certain cases, he has to go through both the punishments.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non- bailable—Triable
by any Magistrate—Compoundable by the owner of the property stolen with the permission of
the court.

Dishonestly receiving Property stolen in the Case of a Dacoity

Section 412 of the IPC deals with the person who receives or retains any stolen property, the
possession of which he knows is happening by a commission of dacoity.

It also applies where someone receives from a person, whom he knows or has justification to
believe to belong or to have belonged to a group of dacoits, property which he knows or has reason
to believe to have been robbed or stolen.

All such people are punishable with imprisonment for life or with rigorous imprisonment for a term
which can extend to ten years and are also liable to big fine. Section 412 of the Code seeks to punish
all the people receiving any property taken in the commission of dacoity.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for life, or rigorous imprisonment for 10 years and fine—
Cognizable—Non-bailable—Triable by Court of Session—Non- compoundable.

Habitually dealing in Stolen Property

Section 413 deals with the people who habitually receives or deals in property which he knows or
has reason to believe to be stolen property.

All such people are punishable with imprisonment for life or with imprisonment of either
description for a term. It can increase to 10 years and are also be liable for a big fine.

The offense of this Section is cognizable, non-bailable and triable by the Session Court.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for life, or imprisonment for 10 years and fine— Cognizable—Non-
bailable—Triable by Court of Session—Non-compoundable
 Assisting in Concealment of Stolen Property

Section 414 of the IPC deals with the people who voluntarily assists in concealing or disposing of or
making away with the stolen property. Hence, all such people are punishable with imprisonment of
either description for a term which can extend to 3 years.

CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non- bailable—Triable
by any Magistrate—Compounded by the owner of the property stolen with the permission of the
court.

Introduction:-
Chapter XVII of the Indian penal code discussed about the offences against property. This
chapter is the second longest chapter, it holds 85 sections (378- 462). The basic element common
to the offences under this chapter is dishonesty, which the code is describes as the intention of
causing wrongful gain to one person or wrongful loss to another, but the manner in which
dishonesty is exercised, differs in unrelated issue. Hence the offences have been classified into
various categories for a clear understanding of the different concepts involved therein. In this
article we discussed about the offence of cheating under section (415-420)

Section 415:- cheating

Cheating at common law was a misdemeanor and punishable with imprisonment and fine.
According to Hawkins, cheating is untrustworthy practices; in defrauding or else endeavoring
toward deceive another of his personal right by means of means of some crafty tool, opposing to
the plain rule and regulation of general truthfulness.

Section 415 of IPC deals with here types of cheating. They are:-

1. Fraudulently:-

By fraudulently deceiving and inducing the person so deceived

1. To deliver any property

2. To consent to the retention of any property by any person
3. Dishonestly:-

By dishonestly inducing the person to deliver any property or to give consent to the retention of
any property

3. Intentionally:-
 By intentionally inducing the individual deceived in the direction of do or to omit to do anything
which he would not have accomplished, condition is, if he was not consequently deceived along
with such act of him caused or else was to be expected to cause injure or damage in body, brain,
reputation or property, and it was held in the case of N.M. Chakrabarty v. state of West
Bengal.

Note: Dishonestly hiding a fact will also come under the offence of “cheating”.

Ingredients:-
Section 415 of IPC has two alternate parts, while in the first part the person must ‘dishonestly’ or
‘fraudulently’ induce the complainant to deliver any property and in the second part, the person
should intentionally include the complainant (the person so deceived) in the direction of do or
omit to do a thing, in other words, we can say in the primary branch, inducement must be
dishonest. In the next branch, inducement should be on purpose. In the direction of comprise the
offence of cheating dishonesty is a regular element in both the branch.

In the case of Ramnarayan Popali vs. C.B.I, held that it is not necessary that deception should
be by express words but it may be by conduct or implied in the nature of transaction itself.

The word fraudulently does not cover the whole of the definition of cheating, but only the first
part. The person deceived must have acted underneath the power of dishonesty along with the
damage must not be moreover inaccessible.

 There should be a deception of any individual.

In the case of Ramdas vs. state of U.P, the court held that Deception means causing to believe
what is false or misleading as a matter of fact or leading into an error.

Ishwarlal Girdharilal vs the State of Maharashtra (1969)

The court stated that the term “property” as used in section 420 of the IPC does not necessarily
refer to only those properties with monetary or market value. It also comprises features that are
not monetary.

Suppose a property does not have a monetary value for the person in possession of it, but after
being cheated by another person, it becomes a property with a monetary value for the person
who obtains it through cheating. In that case, it can be considered as an offence of cheating under
section 420 of the Indian Penal Code.

Sushil Kumar Datta vs State (1985)

The accused pretended to be a scheduled caste candidate and took the Indian Administrative
Service examination. Due to his false claim of being a scheduled caste, he was assigned that
position.
The court stated that the accused was liable for cheating by personating under section 416 of the
IPC as he did not belong to a scheduled caste and falsely represented himself as one and that his
conviction for cheating was justified under that section.

Illustration-
A deceives Z by pledging him a diamond article which is in reality not Diamond but a fake
article and Z is dishonesty induced and lends money to A. Now offence of cheating is completed
because if Z would have known that the article is not real then he would have refused to give the
money so the real fact was concealed from Z.

1. A intentionally deceives Z by falsely claiming to be in the civil service and dishonestly

encourages Z to give certain items on credit for which he never intended to pay. A commits the
offence of cheating.

2. By placing a counterfeit mark on an item, A deceives Z into believing that the item was
created by a well-known manufacturer and thereby defrauds Z into purchasing and paying for the
item. A commits the offence of cheating.

3. X purposefully deceives Y by pledging certain items with him and telling him that the items
are diamonds. But he knows these are not diamonds. Therefore, he dishonestly encourages Z to
lend money. A commits the offence of cheating.

4. P deceives X by taking a loan and making him believe that he will repay the loan that P never
intended to repay and therefore deceives X into lending him money. A is a cheater.

5. A deceives Z into believing that A has fulfilled his portion of a deal with Z, which he has not,
and thereby defrauds Z into paying money. A is a cheater.

Section 416:- cheating by personation.

This section says about cheating by personation. The offence of cheating by false representation
is a provoked structure of cheating. False personation consists of personating another, or by
knowingly substituting another person and pretending to be that other person and representing
that other person.

Personation by itself is no offence but when a person fraudulently and dishonestly does a
fraudulent act and represents as if he is himself that other person, section 416 under IPC will be
attracted. A person is said to “cheat by personation” if he cheats by claiming to be someone else,
or by knowingly replacing one person for another, or by falsely representing him to be some
other person.
Note: The offence will be committed whether the person personated is a real or imaginary
person.

Illustration of Cheating by Personation

1. A deceives by pretending to be a wealthy banker by the same name. This is how A cheats by
personation.

2. A deceives by pretending to be a person B who has already died. Here, A cheats by

personation.

In the important case of Baboo Khan v. state of Uttar Pradesh, the court held that the accused,
which pretended to be a certain well-known eye specialist and encourage the claimant to agree to
him to carry out a procedure on the eye of his 12 year old son, and he was found guilty under this
IPC section.

In the same way, in the case of R. Matameswara Rao (in re: ), held that when the accused used
the railway season ticket issued in the name of a dissimilar individual by make believe to be that
person, the offence fell under this.

Section 418:- cheating with the knowledge that wrongful loss may ensue to person whose
interest offender is bound to protect.
This section prescribes the punishment for cheating by a person standing in a fiduciary capacity
to the person who cheated. Such relationship exists between a banker and a customer, the
principal and an agent, guardian and the ward, director of a company and a shareholder, a
solicitor and a client, etc.

Thus in the case of Q.E. v. Moss where a director of a banking company got placed before the
shareholder a balance sheet which he knew to be false and misleading, concealing the true
position of the company , he was held liable under the section.

Ingredients:-
The accused cheated a person whose interests he was under a legal obligation to protect or
underneath a contract bound to save from harm.

The accused was on well-known terms by means of that he was to be expected to cause wrongful
loss to such person.

The offence is non-cognizable, bailable and compoundable with the authorization of the court
and the punishment may make longer to imprisonment for a time of three years or with fine or
with both.
 Section 420:- the cheating and the dishonestly inducing delivery of property.
Cheating involving delivery of property-

This section is an aggravated form of cheating and provides enhanced punishment which may
extend to seven years of imprisonment (simple or grievous) and fine. The section applies to those
cases of cheating which involves delivery of property or destruction of valuable security.

Ingredients:-

 The offence of cheating is established when the following ingredients are proved-
 That the representation made by the accused was false
 That the accused knew that the representation was false at the very time when he made it
 That the accused made the false representation with the dishonest intention of deceiving the
person to whom it was made

In the case of Mahadeo Prasad v. state of west Bengal, the accused thereby induced that person
to deliver any property or else in the direction of do or to omit to do something which he would
unless not have completed or not there.

The basic ingredient of the offence under section 420 of the IPC would be cheating with the
intention to cheat from the very inception. In other words, to hold a person guilty of the offence
of cheating it has to be shown that his intention was dishonest at the time of making the promise
and such dishonest intention cannot be inferred from the mere fact that he could not subsequently
fulfill the promise.

CRIMINAL TRESPASS SEC.441-462 IPC When somebody enters into the property of
another person without their permission it is known as a Trespass. And if the intention behind
such trespass is criminal, then it’s an offence under Sec.441 of IPC and is called as a Criminal
Trespass.

Section 441 of the Indian Penal Code, 1860, elucidates that, a person who enters into the
property which is in possession of another person with an intention to insult, annoy or to commit
an offence against the person or property of the person in possession is said to have committed
the offence of ‘criminal trespass’. In the same manner, if a person lawfully enters into the
property of another but stays there with an intention thereby to commit an offence, insult or
intimidate such person is charged under Section 441 of the IPC for ‘criminal trespass’.

REASON BEHIND MAKING IT A CRIMINAL OFFENCE:

Everybody has a full right to enjoy their property freely according to their wish & will.
Ordinarily trespass is considered as a civil wrong and if somebody enters into the property of
another the owner of the property can claim damages. But if the trespass is done with a criminal
intent, then one can file a case under IPC. If somebody causes disturbance in the enjoyment of
your property, whether movable or immovable, with a criminal intention by causing theft or
assault, it is a punishable offence.

ILLUSTRATION
A enters into the property of B without his permission and steal his cow. Then B is liable for a
criminal trespass along with theft. In the same situation, if A enters into the property of B
without his permission steals his cow and at the same time assaulted B as well. Then B is liable
for a criminal trespass along with theft and assault.

Ingredients of a Criminal Trespass

Entry
To attract the charges of criminal trespass under Section 441 of the IPC, it is imperative for the
trespasser to be a physical person and his entry into the property of another needs to be an actual
one. It must also be noted that on instances of the constructive entry, wherein authorisation has
been provided to enter the property of the person, such as, a servant, cannot be construed to
trespass, even though there was no possession in law, there was possession in fact.[4] In certain
situations, a man may be guilty of criminal trespass without personally entering upon the
property of the other person. Say if ‘X’ instigates ‘Y’ to trespass the property of ‘Z’ in order to
steal from him. As was stated in –

Emperor v. Ghasi: It was held that a man may be guilty of criminal trespass on the land of
another without ever personally setting foot on the land, for instance if he causes others to build
on the land against the wishes and in spite of the protest of the owner of the land.

Property & its possession

The word ‘property’ under this Section constitutes a moveable as well as immovable and
corporeal property, into or upon which, one is capable of entering. One may be convicted not
only of walking onto the land belonging to someone else, but also if he gets into a car or boat
belonging to someone else.The possession of such property is also considered to be of paramount
importance. Under this section both – the actual as well as constructive facets or concept of
possession of property are embraced. When possession exists in law but not in fact, it is termed
as constructive possession. What is to be noted is that ownership is not in the question here, just
the possession of the property at the time of offence is material.

In Dakamarri Kannayya v. Vadali Venkatesam, what was alleged to be a trespass was done on a
piece of vacant site with the complainant devoid of its actual possession.

In cases covering entry in or upon the property of another person with intent to cause annoyance
or commit an offence, the presence or absence of the person against such intention is held
irrelevant. [9] What is not included within the ambit of property under the section is the
incorporeal property, property which can not be touched, such as right to collect tolls. [10] Also
the states are empowered to consider certain acts that fall within criminal trespassing laws, such
as hunting on someone else’s land, however a proper notice needs to be provided.

Criminal Intent
An ‘intent’ or precisely a ‘criminal intent’ is a sine qua non for an act to be considered under
criminal trespass. A mere unlawful presence of a person on property possessed by someone does
not attract criminal trespass unless it is proven that the accused trespasser had entered the said
premises with an intention to insult, to cause annoyance or harm to the said possessor. Presence
of mens rea here is as profound as it is in other crimes. If one fails to put forth that – the
dominant motive of the alleged trespasser was to commit the crime, or that he was aware of not
being permitted to enter or be upon the property in question, which he still decided to go on, will
not attract criminal trespass. In such cases, the knowledge of a person who is accused of such
trespassing is inferred when there is a fencing he jumps upon or a sign board saying ‘no trespass’
he neglects to go on the said property. In a similar manner, the test to determine the intention
behind the person’s entry depends upon his aim at the time of such entry. It is mandatory for the
court to ensure the satisfaction over the aim of entry being to annoy, intimidate or insult the
person in possession of the said property. It is not sufficient to merely present that annoyance,
intimidation or insult was likely the natural consequence of the entry which the person entering
was aware about.

It is also pertinent to note that ‘staying in’ or ‘entering’ a public place also attracts criminal
trespass. One can be guilty of trespass in a public place if he/she enters or stays within such place
after the closing time. However, it needs to be proven that such unlawful entry was made with a
criminal intent as it was decided in Chelpark Company Limited v. The Commissioner Of Police,
Madras and ors.: In this case, it was held that – a proof of the intention to commit an offence or
to intimidate, insult or annoy the employer on the part of workmen staying unlawfully within the
factory premises was required to consider it as criminal trespass.

Punjab National Bank Ltd v. All India Punjab National Bank Employees’
Federation
In this case, the court considered that the entry of employees on strike into the bank was with an
intention to put pressure on the bank management to pay a heed to their demands and since the
intent to insult, harm or annoy any of the superior officers was absent, it would not amount to
criminal trespass. It was also pointed out by the Hon’ble court that had the said strikers stormed
into the offices of the superior staff, with intent to annoy any such member, it would amount to
criminal trespass.

Ramzan Mistry & Ors v. Emperor

It was held that the intention of the accused was not probable but an actual one needs to be
proven. It is insufficient to show that the alleged trespasser possessed the knowledge that his
entrance would lead to annoyance, it has to be proved that there was an intention to intimidate,
insult or annoy or to commit an offence against such person for a criminal trespass to take place.

PUNISHMENT FOR CRIMINAL TRESPASS The offence is penalised under Section477 of the
IPC. The offender is either ppunished with imprisonment of either description for a term which
may extend to three months, with fine or which may extend to five hundred rupees, or with
both.’

EXTENTION OF CRIMINAL TRESPASS

The offence of criminal trespass is too vast to be just covered under one section. It is divided
into 22 sections starting from Sec.441 and going up till Sec.462 under IPC. Hence based on the
magnitude and the intensity of the crime, criminal trespass is broadly divided into 4 categories:
House Trespass- Sec.443 Lurking House Trespass- Sec.444 Lurking House Trespass by Night-
Sec.445 House Breaking- Sec.446
Section 442 of the IPC, 1860 explains house trespass as-

When a person as whole or a part of his body enters into or remains within any building, tent or
vessel used by another person as a dwelling, place of worship or as a place of custody of the
property, he is said to have committed house trespass. It is not compulsory for a place of human
developing a to b e a permanent residence of the defendant. Temporary residences such as school
or railway platforms also count as a human dwelling. What constitutes a building shall depend
upon what is ordinarily understood by the term. Hence to consider a particular structure as a
building or place of dwelling within the ambit of Sec 442 of the IPC, facts, evidence & material
of the case are to be analysed. It must have a semblance of dwelling, mere fence cannot amount
to human dwelling.

HOUSE TRESPASS
Trespassing into the house of another where a man lives and keeps his belongings and valuables
is considered an aggravated form of trespass. It is not necessary that it is always a permanent
house structure; the dwelling can be temporary also. However to term it as a human dwelling, it
should be surrounded by four walls and should have some security around. A mere fencing
around a plot does not come under human dwelling. As per Section 448 of IPC, the defendant
guilty of house-trespass may be imprisoned for a term not exceeding 1 year, fined for INR 1,000
or less or both.

Lurking House – Trespass (Sec- 443)

Lurking house-trespass is an aggravated form of the house-trespass. When an offence of house
trespass is committed with precautions to conceal such offence from the person who possesses
the right to eject such trespasser from the building or such dwelling place which is the subject of
trespass, it is dealt under Section 443 of the IPC as lurking house-trespass. However, it must be
eminent that the accused trespasser has taken active steps to conceal his presence.Also such steps
to conceal the house-trespass have to be taken before committing the house trespass & as such if
a person makes an effort to hide himself after committing house trespass on seeing the resident
of the house, it is wrong to presume that such precaution has been taken beforehand and as such
does not attract lurking house trespass.The same was reiterated by the High Court of Delhi in the
case of Tilak Raj v. State (NCT) of Delhi. So an active means taken by the trespasser is the
essence of the lurking house-trespass in addition to other elements of the general house trespass.
In Lokesh Kumar v. State (NCT of Delhi) And Another, setting aside the contention of
complainant according to which the accused lurking house trespasser was seen jumping from the
balcony and running away while the door of the balcony was open despite being closed by the
complainant himself, the court observed that the prosecution in such cases does not only has to
establish house-trespass but has also to prove that the accused has taken precautions to conceal
such house-trespass from some person who has a right to exclude or reject the trespasser.

Since no such evidence of precaution to conceal such house-trespass was put forward, the
offence of lurking house trespass was not made by the court.

Punishment: Section 453 of the IPC, 1860 punishes a person who is guilty of lurking house-
trespass with imprisonment of either description which shall not exceed 2 years and shall also be
liable to fine.

Lurking House-Trespass by Night (Sec- 444)

Section 444. Lurking house-trespass by night:

Lurking house trespass by night is an aggravated degree of simple lurking house-trespass. When
lurking house trespass is committed after sunset & before sunrise, it attracts lurking house-
trespass by night under section 444 of the IPC. It is pertinent to mention that the term night
covers a period after sunset & before sunrise. If a house trespass is committed during the night, it
does not count as lurking house trespass by night. For it needs to possess all the elements of a
‘lurking house trespass’ and needs to be committed after sunset & before sunrise.

Punishment (Sec 456)

The aggravation considered in committing lurking house trespass by night is clearly evident in its
punishment. A person who commits lurking house trespass by night shall be punished with
imprisonment which may extend for three years and fine. Hence the maximum punishment given
in lurking house trespass by night is one year extra to that of simple lurking house trespass under
section 453.

House Breaking: (Sec- 445)

House-trespass would become house-breaking if the trespasser effects his entrance into the house
or any part of it or if being in the house or any part of it for the purpose of committing an offence
or having committed an offence therein he quits the house or any part of it in any of the
following ways:

1. through passage made by the house breaker himself

2. through any passage not used by any person other than the intruder
3. Through any passage opened for committing an offence of housebreaking which was not
intended by the house occupier to be open

4. By opening any lock

5. By using criminal force at either entrance or departure

6. By entering or quitting any passage fastened against such entrance or exit. The word
‘fasteners’ implies something more than being closed, merely pushing of door shutters would not
amount to house-breaking.

Explanation: Any out-house or building occupied with a house, and between which and such
house there is an immediate internal communication, is part of the house within the meaning of
this section.

As such, breaking open of a cattle-shed which serves as storage for agricultural implements
would amount to house-breaking. Further entering the house using a window, by making a hole
in the wall or by assaulting the doorkeeper, the accused will be guilty of house-breaking.

Illustration: A few illustration depicting house breaking include:

1. Amit by making a hole through the wall of Zeeshan house commits house-trespass &
once he puts his hand through the aperture, he commits house breaking.
2. Amish by creeping into a ship at a port-hole between decks commits house-breaking.
3. Rana commits house-trespass by entering Zainab’s house through a window. This is
house-breaking.
Punishment: (Sec-453)
Apart from the offence of lurking house trespass section 453 of the IPC also provides the
punishment for housebreaking. A person who is guilty of house breaking shall be punished with
imprisonment of either description which may extend upto 2 years and shall also be liable to pay
fine.

House-Breaking by Night: (Sec-446)

Housebreaking by night is an aggravated form of house breaking in which the offence of
housebreaking is committed after sunset and before sunrise. Thus term night in the title of
section 446 of the IPC encompasses within itself the time after sunset & before sunrise.

Punishment: (Sec- 456)

The offence of housebreaking by night is considered to be an aggravated form of housebreaking
and hence attracts a maximum punishment of 1 year on top of the maximum punishment for
simple housebreaking. Speaking precisely, housebreaking by night attracts an imprisonment of
either description which may extend to 3 years, and shall also be liable to pay fine.
The offence of housebreaking & lurking house trespass aggravated further if it is done with the
purpose of committing such an offence which is punished with imprisonment under the Indian
Penal Code. If committed, the offender shall be punished with an imprisonment of either
description which may extend to 5 years and shall also be liable to pay fine. However, if it is
done with an intention to commit theft, the term of imprisonment may extend to 14 years.

Section 359 to 369 of the Indian Penal Code, 1860 talks about the definition of kidnapping and
abduction, and the punishment stated for these offences, along with that we will be going to
discuss the essentials of kidnapping and abduction.

Kidnapping. (Section 359 – Section 361)

If any person takes away a person by force, threat or deceit against his or her will, it is called
“Kidnapping”.
The literal meaning of kidnapping is child stealing; the age of consent for the offence of
kidnapping is 16 years for boys and 18 years for girls, some people have a misconception about
kidnapping that only minors can be kidnapped but an adult also can be kidnapped[2].
Types of kidnapping.
As per section 359, there are two types of kidnapping;
1. Kidnapping from India.
2. Kidnapping from lawful guardianship.
These two types are explained in Section 360 and 361, both the types are different from each
other but in some cases, they can overlap each other.
For example;
If a minor child named Ram was kidnapped by a person named Vijay from the lawful
guardianship of Ram’s guardian without his consent and taken that child Ram beyond the legal
border of India
Kidnapping from India
Section 360 explains kidnapping from India – Could be of a minor or of a major.
If any person takes a person of any age beyond the legal limits of India against their consent, in
case of minors without the consent of someone who is authorised to give consent on their behalf
then the offence of kidnapping from India is committed.
For example;
If Aman kidnaps Bhavin and tries to escape from India but on his way before reaching
Bangladesh, Police caught him. Here, the offence of kidnapping though not complete, amounts
to the offence of attempt to kidnap from India.
Kidnapping from lawful guardianship
Section 361 explains kidnapping from lawful guardianship – Could be a minor
or a person of unsound mind only.
If any person takes away or entices a minor person (that is a boy under the age of 16 years and a
girl under the age of 18 years) or a person of unsound mind from their lawful guardian without
the consent of the guardian then that person commits the offence of kidnapping from lawful
guardianship.
Essentials: -
· Taking away or enticing.
· A minor or any person of unsound mind.
· Out of the keeping of lawful guardian.
· Without the consent of such guardian.
For example;
Atul is a boy of 9 years living under the lawful guardianship of his mother if his neighbour takes
away the child without the consent of his mother then he has committed the offence of
Kidnapping from lawful guardianship.
This section does not extend to the act of any person who in good faith believes himself to be the
father of an illegitimate child, or who in good faith believes himself to be entitled to lawful
custody of such child unless such act is committed for an immoral or unlawful purpose.
Age of a Minor
Section 361 of the Indian Penal Code clearly states that minor is:

 A male under the age of 16 years,

 A female under the age of 18 years.

But in the state of Manipur, in section 361, they reduced the age of a minor girl to 15 years.
In the case of S. Varadarajan vs State of Madras on 9 September 1964
Where Varadarajan was charged with the offence of enticing and taking a minor girl named
Savitri from the custody of the lawful guardian (her father) without his consent. But Varadarajan
stated that it was her own will where he did not take away or entice her.
The decision of the honourable court held Varadarajan was not guilty of taking away Savitri as
she voluntarily accompanied Varadarajan. Savitri was on the verge of attaining the majority and
she was capable of knowing what is good and bad for her. Therefore, the appeal is allowed[4].
Lawful guardian
A lawful guardian is the one who gets custody of the minor by virtue of law. Thus, a legal
guardian is also a lawful guardian, for example, when a minor stay in the hostel the caretaker of
that hostel act as his/her lawful guardian as they have gained his custody by law, on the other
hand, his parents are his legal guardian.
Abduction (Section 362)
Section 362 of IPC states that abduction is when a person with some deceitful or malicious
intention forces or induces another person to move from any place. Abduction in itself is not a
crime when it is in its pure and simple state, however, when abduction is accompanied by an
intention to commit another offence it becomes punishable under this section.
For example;
Gurcharan Singh vs State of Haryana on 13 September 1972
The accused induced a minor girl to go with him by threatening her by pointing a pistol at her the
act amounted to an abduction from lawful guardianship because the element of compulsion by
force was present in the case
Punishment for kidnapping
The provision for punishment of kidnapping is given under section 363 which says whoever
kidnaps any person from India or lawful guardianship, shall be punished with Simple
imprisonment or Rigorous imprisonment extendable up to 7 years, and shall also be liable to
fine.
Imprisonment in the Indian Penal Code:
· Simple imprisonment
Simple imprisonment means lodging of a person inside the prison with only light duties and such
persons are not required to do hard labour. Prisoners sentenced to simple imprisonment are given
work only based on their request and subject to their physical fitness. Simple imprisonment is
imposed for lighter offences.
· Rigorous Imprisonment
Rigorous Imprisonment means lodging a person inside the prison withhard labour.
Aggravated forms of kidnapping or abduction
Kidnapping or maiming for begging
According to Section 363A Kidnapping of any minor or obtaining his custody for evil purposes
of begging, the accused shall be liable for imprisonment up to 10 years and a fine.
If a person maims a minor so that the minor can be employed in begging, that person is liable for
imprisonment for life and fine.
Kidnapping or abduction takes place with the object of murder
According to Section 364 If a person is kidnapped or abducted by a person with the intention or
knowledge that the person is going to be murdered or is going to put in danger of being
murdered, such person is liable for the imprisonment of life or rigorous imprisonment for a term
up to 10 years and fine.
Kidnapping or abduction of Ransom
Section 364A makes those persons punishable who kidnaps and detains a person to cause
death or grievous hurt to that person. The action of the accused causes reasonable apprehension
in the person's mind. The maximum punishment under this section is the death penalty or life
imprisonment and fine.
Kidnapping or abducting with intent secretly and wrongfully to confinement
As per Section 365 kidnapping or abduction of the personal intention of secretly confining him
or not letting him live as per his will are punishable with imprisonment up to 7 years and a fine.
In this type of case intention matters a lot if the intention is found to be guilty then that person
becomes liable under this section.
Kidnapping, abducting or inducing woman to compel her marriage
According to Section 366 if a person kidnaps or abducts a woman without the consent or will of
the woman to force her and compel her to marry him not only this if a person kidnaps a woman
to have illicit intercourse with her shall be liable for imprisonment up to 10 years and fine.
Procuration of a minor girl under the age of 18 years
As per Section 366A if any person induces any minor girl under the age of eighteen years to go
from any place or to do any act with the intent that such girl maybe, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with another person shall be punishable
with imprisonment which may extend to ten years, and shall also be liable to fine.
Importation of girls from the territory of a foreign country
According to Section 366B if a person imports a girl from the territory of a foreign country
under the age of twenty-one years to India with the intent that she may be, or knowing it to be
likely that she will be, forced or seduced to illicit intercourse with another person, shall be
awarded in this case extends to an imprisonment of 10 years and fine.
Kidnapping or abducting someone with the intention of inflicting hurt
As per Section 367, any person kidnaps or abducts someone for purpose of wreaking hurt to him
or to subject that person to slavery, in this section the person shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.
Wrongfully concealing or keeping in confinement, kidnapped or abducted
person
According to Section 368, If a person knows that a person has been kidnapped or abducted, and
wrongfully confides such kidnapped person, would be punished as if he had kidnapped or
abducted the person with the intention to keep or confide in him/her.
Kidnapping or abducting a child under ten years with the intent to steal from
its person
As per Section 369, whoever kidnapped or abducted a child under the age of 10 dishonestly try
to ask for the money or any movable property of that child is liable for punishment awarded in
this section extends to the imprisonment of seven years and fine.

Offences relating to marriage

Chapter XX of IPC deals with offences relating to marriage. All these offences are within the
institution of marriage. chapter XX-A containing only one section (s.498A) dealing with cruelty
to a woman by her husband or relatives to coerce her and her parents to meet material greed of
dowry was added to the IPC by criminal law (Second amendment Act,1983).

Introduction
Offences relating to marriage within the IPC are listed between Section 493-498A of the Indian
Penal Code. These sections serve as a legal safeguard against actions that can cause harm,
deception, or injustice within the institution of marriage. By defining and punishing such
offences, the law aims to maintain the integrity of marriages and promote fairness, trust, and
equality between spouses. This article will analyze Sections 493-495 of the Indian Penal Code
and try to understand better the offences related to marriage.

Section 493 of the Indian Penal Code

The legal system often grapples with complex cases involving relationships, trust, and the
consequences of deceit. Section 493 of the legal code addresses the issue of cohabitation
resulting from a man deceitfully inducing a belief of lawful marriage.

For instance, Shyam, a man with a history of deceitful behavior, convinces Sunita that they are
lawfully married by forging documents and holding a fake wedding ceremony. Sunita, unaware
of Shyam’s deceptive actions, begins cohabiting with him, only to discover the truth later.
Shyam’s intentional deception and Sunita’s subsequent cohabitation would fall under the
purview of Section 493.
Ingredients of Section 493
Deception: In order to qualify as a violation of Section 493, the man must intentionally deceive
his partner by inducing a belief of a lawful marriage. This deception can involve false
representations, fraudulent promises, or misleading actions that lead the victim to believe they
are legally married.

Cohabitation: The deceived partner must begin living together with the man under the belief
that they are lawfully married. Cohabitation refers to sharing a domestic environment, including
residing in the same house or apartment, and engaging in a marital relationship.

Intent to deceive: The man’s actions must be carried out with the intent to deceive the partner
into believing they are in a legally recognized marriage. Without the element of intent, the
offense under Section 493 may not be established.

One of the important case in this regard is Arun Singh v State of UP. The case involved the
Respondent’s daughter who was engaged to the Appellant (Accused). They began spending time
together and one day, the Appellant convinced Jyoti to engage in a physical relationship with
him.

Subsequently, the Appellant started demanding a dowry of Rs. 5 lakhs. Initially, a complaint was
filed at the Mahila Thana, but no action was taken. Later, it was discovered that the Appellant
had arranged a marriage with another woman for financial gain. As a result, an FIR was lodged
against the Appellant under Section 493 of the Indian Penal Code and Sections 3 and 4 of the
Dowry Prohibition Act.

However, the Court ruled that the essential elements of Section 493 IPC were absent in this case.
The allegations did not establish that the Appellant induced Jyoti to believe that she was lawfully
married to him, nor did they demonstrate that Jyoti cohabitated with the accused due to deceitful
misrepresentation. Consequently, the allegations made in the FIR were deemed to be outside the
scope of Section 493 of the IPC.

Section 494 of the Indian Penal Code

Section 494 deals with the legal provision that applies to individuals who enter into a second
marriage while already being married to another person. According to this section, if a person,
who is presently in a valid and legally recognized marriage, enters into another marriage contract
with someone else during the lifetime of their first spouse, they will be held liable under this
section of the Indian Penal Code.

Section 494 outlines that such offenders will be prosecuted under this provision. It is important
to note that this offence is classified as non-cognizable, meaning that the police cannot arrest an
individual without a warrant, and it is also considered a bailable offense.
However, it is worth mentioning that cases of bigamy can be compounded or settled outside of
court, but only if the consent of the first spouse is obtained, and the competent court permits
such a resolution. This allows for potential reconciliation or resolution between the parties
involved.

Ingredients of Section 494

The elements or requirements outlined in Section 494 are as follows:

Validity of the first marriage: The initial marriage must have been conducted in accordance
with the law, ensuring its legal validity.

Occurrence of the second marriage: The individual must have entered into a subsequent
marriage, indicating their intention to form a new marital bond.

Continuation of the first marriage: The first marriage should still be in effect and not have
been terminated or dissolved legally.

Survival of the spouse: The spouse from the first marriage must be alive at the time of the
second marriage.

Validity of both marriages: Both marriages, the first and the second, should be legally
recognized and complywith the requirements set by the law.

One of the important cases in this regard is Sri. T. Manjanna v State of Karnataka. The
petitioner sought to quash the FIR filed against him under Section 494 of the IPC. The
complainant, who was the petitioner’s legally married wife, alleged that he had contracted a
second marriage during the pendency of their divorce proceedings. However, the court found
that there was no evidence supporting the accusation of a second marriage.

Forwarding photographs of another woman does not establish an offence under Section 494 IPC.
The complaint lacked the necessary elements to constitute an offence under Section 494 IPC. It
was concluded that the prosecution of the petitioner based on these allegations was illegal and an
abuse of court processes. The court allowed the petition, quashing the proceedings against the
petitioner for the offences under Section 494 IPC.

Section 495 of the Indian Penal Code

Sec-495 of the Indian Penal Code deals with the offence of marrying again while concealing a
former marriage from the person with whom the subsequent marriage is contracted. This section
aims to prevent deceitful actions in matrimonial relationships and protect the rights and interests
of individuals involved in such relationships. It encompasses specific ingredients that must be
fulfilled to constitute the offence.

Ingredients of Section 495

The accused must be legally married to someone.

The accused must marry again.

The accused must conceal the fact of their former marriage from the person with whom they
contract the subsequent marriage.

The subsequent marriage must be valid under the law.

Govinda, who is legally married to Raveena, marries Madhuri without informing Madhuri about
the existence of the previous marriage with Raveena. Govinda conceals this fact from Madhuri.
In this scenario, A can be charged under Section 495 as all the essential ingredients are satisfied.

One of the landmark cases in this regard is Subhash Babu v State of Andhra Pradesh. In this
case, the interpretation of the term “wife” and “aggrieved person” under Section 495 of the
Indian Penal Code was broadened. The Court looked beyond the technical explanation of the
section and focused on the objective of the law in applying it. The Court recognized that the
second wife should be considered a lawful wife because she was deceived by the concealment of
her husband’s first living spouse.

The Court deemed this act as the most severe form of fraud recognized by the law and
emphasized the need for strict punishment. It was established that a second wife can file a
complaint against her husband under Section 495, and such a complaint is maintainable.

4. Adultery (section 497)

The word “adultery” comes from the French word “avoutre”, which is derived from the Latin
verb “adulterium”, which means “to corrupt”.[1] A married man commits adultery if he has sex
with a woman with whom he has not entered into wedlock, according to the dictionary.

Adultery is a criminal offence in India, according to Section 497 of the Indian Penal Code,
1860 (hereinafter as IPC) which carries a penalty of up to five years in prison and a fine.

When compared to the misconduct of adultery as understood in divorce proceedings, the offence
of adultery under Section 497 has a very limited scope. Only a man who had sexual relations
with another man’s wife without the latter’s consent or knowledge commits the crime.

The wife is not held accountable for being an adulteress or even aiding and abetting the crime.
A “person aggrieved” is defined in Section 198 of the Criminal Procedure Code (hereinafter
as CrP.C).
 Subsection (2) considers the woman’s husband to be harmed by an offence under Section 497
IPC, and in the absence of the husband, any person who was caring for the woman on his behalf
at the time the offence was committed, with the court’s permission. It does not consider the
adulterer’s wife to be an aggrieved party.

Sections 497 IPC and 198(2) of CrP.C, taken together, form a legislative package to deal with
the crime of adultery, which has been declared unconstitutional and overturned by the Supreme
Court in the recent judgment of Joseph Shine v. Union of India

Section 497 of IPC – Adultery

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor.”
Adultery, according to this section in IPC, is defined as a man having sexual relations with
someone’s wife without her husband’s consent. According to the section, whoever has sexual
intercourse with a woman who he knows or has reason to believe is the wife of another man and
does so without her husband’s consent, and when such sexual intercourse does not amount to
rape, is guilty of adultery.

It is important to note that the woman who commits adultery is not punished, even if she aids and
abets the crime. Only the man who commits adultery is held accountable. It is also worth noting
that every instance of sexual activity result in adultery.

Sexual relations with an unmarried woman or widow, on the other hand, are not considered
adultery. Adultery is also a crime committed against the husband, not the wife.

Illustration: ‘X’ knowingly has sexual relations with his friend ‘Y’’s wife without Y’s
knowledge.

Adultery is punishable by imprisonment for up to five years under section 497 of the Indian
Penal Code 1860, which may or may not be combined with a fine. It is a non-cognizable,
bailable, and compoundable offence that is tried by a first-class magistrate.

From the above explanation we can confer the following essentials of Section 497:

 The accused had sexual relations with a woman who was the wife of someone else.
 The accused knew, or had reason to believe, that the woman in question was married to
someone else; and
 The said sexual intercourse occurred without the consent or knowledge of another person, that
is, the woman’s husband and the case’s complainant.
 As stated earlier, adultery is a crime against the husband, so he can only file a complaint against
the adulterous man. Even as abettors to the crime of adultery, women are not punished under the
IPC.

While upholding Section 497 in the case of Sowmithri Vishnu v. Union of India a four-judge
bench led by then-CJI Y V Chandrachud said, “It is commonly accepted that the seducer is the
man, not the woman”.

This position may have evolved over time, but it is up to the legislature to decide whether
Section 497 should be amended to reflect the society’s “transformation”.

Section 198(2) of CrP.C – Prosecution of offences against marriage

“Prosecution for offences against marriage – (2) For the purposes of sub- section (1), no
person other than the husband of the woman shall be deemed to be aggrieved by any offence
punishable under section 497 or section 498 of the said Code: Provided that in the absence of
the husband, some person who had care of the woman on his behalf at the time when such
offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.”
This section states that only the husband of the woman who commits adultery is considered an
aggrieved party, and he is the only one who can file a complaint. In his absence, however, if the
court permits, another person who was caring for the woman on his behalf at the time the crime
was committed may file a complaint on his behalf.

Landmark judgements

 Yusuf Abdul Aziz v. State of Bombay

The constitutionality of Section 497 was challenged in this case on the grounds that it violates
Articles 14 and 15 by stating that a wife cannot be a perpetrator or even an abettor. The validity
of the said provision was upheld by a three-judge panel because it is a special provision created
for women and is protected by Article 15. (3). And because Article 14 is a general provision that
must be read in conjunction with other Articles, and because sex is simply a classification, it is
valid when both are combined.

 V. Revathi v. Union of India

The court upheld the constitutional validity of Section 497 read with Section 198 in this case,
stating that it prevents both the wife and the husband from punishing each other for adultery,
making it non-discriminatory. It only punishes an outsider who attempts to desecrate marriage’s
sanctity. As a result, it is discrimination in her favour rather than against her.

 W. Kalyani v. State through Inspector of Police and Anr.

The constitutionality of Section 497 was not a factor in this case, but it states that simply because
appellant is a woman, she is immune from charges of adultery and cannot be prosecuted for it.
Joseph Shine v. Union of India

Joseph Shine filed a writ petition under Article 32, challenging the constitutionality of Section
497 of the IPC, read with Section 198 of the Cr. P.C., as being in violation of Articles 14, 15, and
21. This was the first Public Interest Litigation against adultery. The provision for adultery,
according to the petitioner, is arbitrary and discriminatory based on gender. The petitioner
claimed that such a law degrades a woman’s dignity. The petition was heard by a constitutional
bench of five judges.

Contentions

The petitioner in his writ contended that the provision criminalises adultery solely based on sex
classification, which has no rational nexus to be achieved. The wife’s consent is irrelevant. As a
result, it is in violation of Article 14 of the Constitution. The petitioner argued that the provision
is based on the idea that a woman is the husband’s property.

Adultery is not committed if the husband consents or connives, according to the provision. The
provision for adultery is gender discriminatory because it only gives men the right to prosecute
for adultery, which is a violation of Article 15.

The provision is unconstitutional, according to the petitioner, because it degrades a woman’s

dignity by failing to respect her sexual autonomy and self-determination. It is a breach of Article
21. Sections 497 of the IPC and 198 of the CrP.C must be repealed.

Adultery is an offence that destroys family relationships, according to the respondents, and
deterrence should be in place to protect the institution of marriage. Adultery has an impact on the
spouse, children, and society. It is a crime committed by an outsider with full knowledge of the
marriage’s sanctity.

Article 15(3), which grants the state the right to enact special laws for women and children,
protects the provision’s discrimination. They ask the court to strike out the part that was found to
be unconstitutional but keep the rest of the provision.

Adultery means ” sexual intercourse” by a man with a married woman, who is not his wife, with
her consent and without the consent or connivance of her husband, not amounting to
rape.Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which may extend to five
years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.

INGREDIENTS

In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to
believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or
connivance of her husband.

Punishment:

In adultery, man alone is punishable with imprisonment for a term which may extend to five
years or with fine or with both. The woman is not subject to punishment even as an abettor,
though she is a consenting party.

4. Criminal elopement- seduction (section 498)

1) Taking or enticing away or concealing or detaining the wife of another man from
a) that man; or
b) any person having care of her on behalf of that man

2) Knowledge or reason to believe that she is wife of another man;

3) Such taking , concealing or detaining must be with the intent that she may have illicit
intercourse with any person.

This section punishes person who takes away or entices or detains the wife of another with
criminal intent. The main locus of the offence is taking the wife of a husband from his custody. It
does not have to be forceful. This section therefore provides protection to husbands, The subject-
matter of this offence is married women only.

5. Cruelty by husband or relatives of husband (section 498 A)

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years and
shall also be liable to fine.

Explanation. — For the purposes of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.

Period of Limitation

As per Section 468 CrPC, a complaint alleging commission of an offence under Section 498-A
can be filed within 3 years of the alleged incident. However, Section 473 CrPC enables the Court
to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary
so to do in the interest of justice.

The essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each
occasion on which the woman was subjected to cruelty, she would have a new starting point of
limitation, Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

INGREDIENTS
Woman must be married;

Such woman should be subjected to harassment or cruelty and

Such harassment or cruelty should have been caused by that woman’s husband or his relatives

Punishment:

As per the provision under 498A IPC, the husband or his relative who commits cruelty against a
married woman can be punished with imprisonment upto 3 years along with fine.

In this case, too, the Supreme Court gave directions to prevent misuse of Section 498-A IPC
which were further modified in Social Action Forum for Manav Adhikar v. Union of
India,2018 SCC online SC 1501. These directions include:

(a) Complaints under Section 498-A and other connected offences may be investigated only by a
designated Investigating Officer of the area.

(b) If a settlement is reached between the parties, it is open to them to approach the High Court
under Section 482 seeking quashing of proceedings or any other order.

(c) If a bail application is filed with at least one day’s notice to the Public
Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery
of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other
rights of wife/minor children can otherwise be protected.

(d) In respect of persons ordinarily residing out of India impounding of passports or issuance of
Red Corner Notice should not be a routine.
(e) These directions will not apply in case of tangible physical injuries or death.

Reema Aggarwal v. Anupam AIR 2004 SC 1418

It was argued that ‘husband’ of ‘second wife’ who marries her during the subsistence of his
earlier legal marriage, is not husband within the meaning of section 498 A and the second wife,
therefore, cannot invoke section 498 A for cruelty and harassment caused to her by him or his
relatives. The appellant, Reema Aggarwal, who was harassed by her husband and his relatives
for not bringing sufficient dowry, consumed poisonous substance .She admitted that she married
him during lifetime of his first wife. Based on this fact her husband with others, was charged-
sheeted under sections 307 and 498 A.

Defamation
Introduction The Constitution of India, under Article 19 protects the right of freedom of speech
and expression of the citizens. But no right is absolute. Certain restrictions have been placed on
this right as per Article 19(2), and one of them is Defamation. If the Right to freedom of speech
and expression is used to defame a person, then such right can be curtailed. Defamation is both a
civil tort (punishable by awarding damages) as well as a criminal offense (punishable with
imprisonment). As a civil tort, defamation is punishable under the law of torts and as a criminal
offense under the IPC. Section 499 of the Indian Penal Code 1860 defines defamation. Any
person, either through his words spoken, written, or by signs or representations or publication of
imputation that harms the reputation of any other person is said to have defamed that person.

Libel is defamation that is in written form while slander is defamation made orally. But under the
Indian Penal Code, no such distinction is made. Section 500 contains the punishment for
defamation, which is simple imprisonment for a term that may extend to 2 years or fine, or both.
Defamation of the Dead Section 499 also provides for cases where a person defames another
who is dead, either by means of writing, speaking, gestures, or others. Such defamation of
deceased persons will also be an act of defamation, as such an accusation or statement would
have lowered his reputation if he was alive, and would harm the reputation of his relatives and
close family. Recently, In the case of Babuji Shah vs. Hussain Zaidi and others [SLP(c)
15711/2021], the Apex court dismissed a petition seeking the stay of the Alia Bhatt movie
‘GangubhaiKathiwadi’ which was filed by the alleged adopted son of Gangubai. The authors of
the book ‘Mafia Queens of Mumbai’, on which the movie is based, were made respondents as
well. The ‘son’ alleged that the movie portrayed his ‘mother’ as a brothel runner, and prostitute,
thereby lowering her reputation in the eyes of the general public. The learned judges held that for
maintenance of an action in the tort of defamation, certain conditions are to be satisfied for
securing relief, them being:

(I) The applicant for interim relief has to be near a relative or a member of the family of the
deceased who was defamed
 (II) The allegations or statements made about the deceased or their family and relatives must be
untrue.

(III) The statement or allegation must lower the reputation and character of the deceased in the
eyes of the general public. If the character of the deceased is not lowered, and merely hurts the
sensibilities, then it would not amount to defamation.

The Imputation should be made with intention of harming or with the knowledge that such an
imputation would lower the reputation of the person in all possibilities. It is enough to prove that
the person who made the Imputation had reasons to believe that the remark made by him would
harm the person’s reputation. Thus, Mens Rea is an essential ingredient in the offense of criminal
defamation. It is inconsequential as to whether the other person actually suffered any harm from
this lowering of reputation. Exceptions provided under Section 499 Section 499 prescribes
certain situations where the alleged false statement made against the said person does not amount
to defamation. There are 10 such exceptions provided under this section. Let us examine them
one by one.

Imputation of truth required to be made for the public good

If the statement or allegation made against the person is truly made for the public good at large,
then such an act does not amount to criminal defamation. It is pertinent to note that 3 essentials
are to be fulfilled to claim this exception. Firstly, the statement made must be absolutely true,
secondly, the statement must be made in the public interest, and lastly, the allegation/statement
must be published. If these conditions are satisfied, then it does not amount to defamation.

Fair criticism of the public conduct of a public servant.

If the statement made is in criticism of the discharge of duties by a public servant during his
course of work, then such an act of criticism of such conduct and character when such discharge
appears to be wrong, does not amount to defamation. For instance, if A makes a statement that B,
who is a government officer, has failed to discharge his duties effectively and is poor at his job,
genuinely believing it to be so, then such a statement is exempted
2 conditions are to be sat

1.Criticism must be honest and fair. The statement or allegation made against the public officer,
criticizing his manner of work, character, and conduct, must be honest.If the opinion made
proves to be unfair and wrong, then it will be deemed as criminal defamation.
2.Must be a Bona fide Statement The statement, view, or allegation made by the person, must be
Bona Fide, i.e., made in good faith.If the comment made is Mala Fide, i.e., made with bad
faith/with the intention to deceive, then such statement or view would amount to defamation
under the Act.

Statement made on the conduct of public persons (except public servants)

Views expressed, statement made by a person on the conduct of any public person (not a public
servant), who discharges any public function, does not amount to defamation, if such statement
is Bona Fide and Fair.

Case Law
The Apex court in the case Google India Pvt. Ltd. v. Visakha Industries, [2019 SCC OnLine SC
1587], where an article was published by a group under Google, with the caption Poisoning the
system, which made allegations against VisakhaIndustries. The article also mentioned the names
of many politicians, and linked them to Visakha Industry, while in reality they were not related.
The Supreme Court held that some parts of the article could be construed as defaming, and thus
Google has to face trial.

Reporting Proceedings of Court Publishing

the judgment or proceedings of any court of law does not amount to defamation as long it is true
and accurate.

Comment on Cases
Publishing information with regard to the merits of a case, and regarding the conduct of persons
who were witnesses in the case made Bona Fide, will not amount to defamation

literary criticism
Expression of view or opinion regarding any book or literary work of any author, which the
author has submitted to the public for their judgment, will not amount to defamation. To avail of
this exception, it is essential that the author has expressly submitted his work to the general
public. If the author has neither by his acts nor expressly submitted it, then the act will be
deemed as defamation.

Censure by One in Authority

If a person, by law or by rights arising out of a contract has lawful authority over a person and
condemns or criticizes the conduct of such person in good faith, then such conduct does not
amount to defamation. For instance, teacherscensure students in class in good faith.

Complaint to Authority
Any person who possesses authority over another, accuses such person, then such an act will not
amount to defamation as long as it is Bona Fide

Case Law The Supreme Court in Kanwal Lal vs State of Punjab [1963 AIR 1317], held thatin
order to avail this exception, the publication has to be made before the authority of law, and as
per the provisions of the Punjab Gram Panchayat Act 1952, Panchayats only have jurisdiction
and does not possess lawful authority.
 Imputation Made in Good Faith for the Protection of Interests
Accusations or imputations made with the intention of protecting the interests of oneself, then it
does not amount to defamation. For instance, if an employee who is entrusted with the
responsibility of preparing reports on his subordinates, makes any accusation or imputation on
any employee, then such imputations will not be defamation.

Caution in Good Faith

If any caution is made in good faith or in the interest of the public, then it would not fall under
defamation

Landmark Judgements Related to Defamation Laws In India

Let's look at some landmark judgments related to defamation laws in India.
Subramanian Swamy vs. Union Of India

 The Supreme Court held the freedom of expression as a “highly treasured value under the
Constitution”
 In application of the concept of reasonable restrictions it held that – “Notwithstanding the
expansive and sweeping ambit of freedom of speech, as all rights, the right to freedom of speech
and expression is not absolute. It is subject to the imposition of reasonable restrictions.”
 The court held that the reputation of a person is an integral part of the right to life granted under
Article 21 of the Indian Constitution.-“Reputation of one cannot be allowed to be crucified at the
altar of the other’s right of free speech.
 The court differentiated a defamatory attack from criticism, dissent by speaking for tolerance to
criticism, dissent and discordance but professed no tolerance to defamatory attack.

Ram Jethmalani vs. Subramanian Swamy

The court held Dr. Swamy guilty for defaming Ram Jetmalani by saying that he received money
from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of the
assassination of Rajiv Gandhi.
Chintaman Rao vs. The State of Madhya Pradesh
The Supreme Court explained the meaning of “reasonable restrictions” imposed in Article 19 (2).
It implies intelligent care and deliberation and that is required in the interests of the public.
CRIMINAL INTIMIDATION

Under Section 503 of the Indian Penal Code, 1860, the offence of criminal intimidation is
defined. This provision states that anybody who, on the following grounds, threatens any other
person is guilty of criminal intimidation. Threatens injury to his person; Threatens injury to his
reputation; Threatens injury to his property; Threatens injury to the person or reputation of
anyone in whom the person is interested
In addition, it should be the intention to warn this person, or put him into motion any act he is not
legally obliged to do, or omit any act that he or she is legally entitled to do. This leads to criminal
intimidation as they are required to perform one of these acts as a means of preventing such a
crime from being executed. The explanation of this provision indicates that this clause also
includes a danger to the image of a deceased person with which the person threatened is
involved.

Example: ‘A’ with the intent of inducing B to refrain from filing a complaint against him,
threatens to kill B’s wife. A will be punished for the offence of criminal intimidation.

The explanation of this provision indicates that this clause also includes a danger to the image of
a deceased person with which the person threatened is involved. Example: ‘A’ with the intent of
inducing B to refrain from filing a complaint against him, threatens to kill B’s wife. A will be
punished for the offence of criminal intimidation.

The Supreme Court elaborated on the scope of Section 503, IPC in Romesh Chandra Arora vs.
State (1960). In this case, the accused threatened a person X and his daughter, of injury to
reputation by releasing a nude picture of the girl if the money was not paid. The accused-
appellant was charged with criminal intimidation basically the intent was to cause alarm. The
Court specified that the purpose of the accused was to cause alarm to get the money and to
ensure that he did not go ahead with the threat of releasing the damaging photographs on a public
platform.

PUNISHMENT FOR CRIMINAL INTIMIDATION

In Section 506 of the Indian Penal Code, 1860 the sentence for criminal intimidation is laid
down.The arrangement is split into two parts: 1. When you commit criminal intimidation, you
will be imprisoned for a term of two years or a fine or both. For those who commit criminal
intimidation.

Classification of the offence: This part is a non-cognizable, bailable, and compoundable

offence. It can be tried by Any Magistrate

2. If the threat is to cause:

Death or grievous hurt;

Destruction of any property by fire;

To cause an offence to be committed which is punishable with imprisonment up to a term of

seven years, life imprisonment or death;

To attribute unchastely to a woman.

 In the above-mentioned cases, the given punishment is simple or rigorous imprisonment for a
term extending to seven years; or a fine; or both. The second segment of the provision deals with
punishing serious forms of criminal intimidation, as opposed to the first. It can be tried by the
Magistrate of First Class. This part is bailable,non-cognizable and non-compoundable offence. It
is important to note that, to attract the second part of this section there must be a threat of either
causing death or grievous hurt.

In Keshav Baliram Naik vs. State of Maharashtra (1995), It was alleged that while she was
unconscious, the defendant touched the hand of the prosecutor, a blind child, and then tried to
strip her quilt and put his hand inside her coat. he threatened to kill herIf she disclosed the
accused’s identity, The Court held that, aside this was a form of criminal intimidation in Section
II of the Section.

Chapter XXII of the Indian Penal Code deals with Offences related to Criminal Intimidation,
Insult, and Annoyance. It includes Criminal Intimidation, Intentional insult with intent to
provoke breach of the peace, Statements conducting public mischief, Punishment for criminal
intimidation, Criminal intimidation by an anonymous communication, Act caused by inducing
person to believe that he will be rendered an object of the Divine displeasure, Word, gesture or
act intended to insult the modesty of the woman and Misconduct in public by a drunken person.
This Chapter contains Section 504 to 510 of the IPC. This blog deals with Section 504 of IPC.

Section 504 of IPC

This section deals with the provisions and punishments of an offense relating to Criminal
Intimidation, Insult, and Annoyance. The explanation of this section is Whoever intentionally
insults and thereby gives provocation to any person, intending or knowing it to be likely that
such provocation will cause him to hinder public peace. Such a person will be liable under
Section 504 of IPC.

For understanding this Section we have to first understand the word “ Insult” properly. It does
not include the words which we use in daily life. The object of this Section is to prevent a person
from using such offensive language or provoking someone to say such words which can cause a
breach of peace. In this section, it is shown how a person can be intentionally provoked to
commit an offence that is criminal in nature that can harm public peace at large.

It is essential that an insult is involved to commit an offence under this section. The term insult
means the words used must be of such nature that hurts the dignity of a person or causes
humiliation to the person. It can also include daily songs such as bastard, bitch, rascal, or foolish,
etc. to bring offence under this Section it is important that insult should be intentional.

An intention of insult is a matter of fact and not law. It depends on case to case or situation to
situation. such insult caused should give provocation of breach of public peace. For
example: when there is an insult that involves chastity of mother or sister (i.e a woman) this
comes under Section 504 of IPC.

Every insult cannot be classified as an intentional insult. For example mere lack of good manners
and casual talks between friends.
Hence, the abuse that comes under Section 504 of IPC should be accompanied with the intention
to provoke a person intending or knowing that such provocation will cause the person to break
the public peace or commit an offence.

Punishment under Section 504

The commitment of an offence under this Section leads to Imprisonment of either description for
a term which may extend to two years or with fine or both.

Nature of Section 504

1. Offences under this Section are non-cognizable which means the offences for which a
police officer cannot arrest a person without a warrant and there has to be court
permission taken.
2. These offences are bailable offences i.e the grant of bail is a matter of right and it is not a
court’s discretion. These offences are not so grave and serious and hence their
punishment is up to two years or with fine or both.
3. These offences are compoundable offences i.e where the complainant (who has filed the
complaint i.e the victim) enters into compromise and agrees to have charges dropped
against the accused. Here only the person whose insult is done has the authority to
compound the offence.

IPC 504 can be tried in the Court of any Magistrate. The Ministry concerned with this offence
would be the Ministry of Home Affairs and the department in this offence is the Department of
Internal Security.

Ingredients of Section 504

1. The accused should have insulted the person intentionally.

2. There should be an intentional provocation to insult any person to commit an offence.
3. Such provocation should have caused the breach of peace and this should be known by
the accused.

Some Famous Judgements:

1. B. R Meena v/s Mangal Das Chiman Lal Barot and Another, 1987.

In this case, the appellant was the Divisional Commercial Superintendent of the Western
Railway during an investigation at Kandala Railway Station lost his temper and uttered
some abusive words against Mangal Das Chiman Lal Barot (the Assistant Station
Master). He has filed this complaint under Section 504 of the Indian Penal Code, 1860.
 The prosecution was not able to prove the ingredients of offence under Section 504 of
IPC. The mere utterance of any words under this Section does not constitute offence. The
ingredients of this Section are that there should be an intentional insult and such insult
must give provocation to any person and he should have knowledge that such
provocation will result in the breach of public peace or any offence.

The court held that since there was a lack of essential ingredients of this Section the
judgment was set aside and the appellant was acquitted of the offence for which he was
charged.
2. Surendra Prasad v/s State of UP, 2019

The accused (applicant) along with his companions ran cows into the field on the night of
18.6.2019 at around 8 pm. The cattle were pushed in such a manner that they started
grazing the crops grown in the field. When an informant saw this he tried to stop the
accused but instead of stopping he started abusing that person and started threatening to
kill him and attacked him with lathi and danda. When the informant cried for help his
wife came to save him but they also assaulted her. There was FIR filed against the
accused under Section 323, 504, 506 of IPC read with section 3(1)(D) SC/ST Act.

According to the facts of the case, it is clear that it comes under Section 504 of IPC as
this offence of insult was intentionally done with the intent to provoke breach of peace.
The accused did insult the informant with the intention to destroy the grown crops and
when the informant forbade him to do so the accused started using abusive language and
beat him. FIR also fulfills the allegations of intentional insult with intent to provoke
breach of peace. The court held that the accused was liable for offence under Section 504
of IPC.

How can you file/defend your case for Section 504 of IPC?

1. Since Section 504 IPC is a Non-Cognizable Offence, the police cannot arrest the accused
without a warrant as well as cannot start an investigation without the permission of the
Court. So the police should refer the informant to the Magistrate as he is incompetent to
investigate a non-cognizable case. If the Magistrate is of the opinion that the case should
be investigated then he will direct the police officer to start investigating the matter.
2. The police will then investigate the matter and might arrest the victim if they find enough
proof. If no evidence is found the case will not proceed.
3. After investigation, a charge sheet would be prepared in which all the records would be
mentioned.
4. The case will then be taken to court where both the parties will be heard through their
lawyers and the judgment will be given.
ATTEMPT TO COMMIT OFFENCES (SECTION
INTRODUCTION
The crime rate is at increase in our society. To constitute an offence, there are various stages.
These stages include intention, preparation, attempt and commission. The first stage is the
intention. If there is only intention to commit an offence, then it is not punishable because, at any
point in time, a person can change his mind. There has to be an evil intention or bad intention
(mens rea) to constitute an offence. The second stage is the preparation. Preparation includes the
arrangement of various methods that are required for the commission of the offence. In many
cases, preparation is not punishable. It is only in exceptional cases where preparation is
punishable by law. The third stage is an attempt. Attempt is the a step forward towards the
commission of a crime after the preparations. The fourth stage is the commission of offence. It is
the completion of criminal conduct. There is punishment under the Indian Criminal Law
regarding the attempt and commission of offence. This article explores the attempt to commit
offences provided under the Indian Penal Code, 1860.

Steps to crime
Generally, attempt to commit a crime is been defined as an extremely difficult and intricate
branch of a crime. The accused either prepares intentionally or unintentionally to commit a crime
or just commits it in a spur of the moment. In these sudden committed crimes, stages of
preparation and attempt overlap and fuse into one another. But with crimes that are intentionally
planned out, there are 4 below mentioned stages to crime:

1. Intention
2. Preparation
3. Attempt
4. Commission
An attempt could be seen as the direct movement to commit the crime just after the preparation
is completed. An attempt can also be understand as an “intentional prepared action”. If a man has
committed an intentional action to seek a certain object that is to say- the completion of the
crime, and if that objective or completion of crime fails due to any reason that is independent of
commissioner’s own will, then it is said that the man has attempted to commit that crime.

Meaning of Attempt
Section 511 of the IPC deals with the attempt of a crime in more formal way without actually
defining it. Attempt has not been given a proper and universal meaning anywhere in criminal
law. Syed Shamsul Huda in his book titled, “the Principles of Law in British India” states that

“an act or a series of acts constitutes an attempt if the following are fulfilled:

 If all the steps of the offence or all the important steps of the offence have been completed
other than the consequences of the offence.
 If the offender has not completed all the necessary steps needed to complete the crime but
has proceeded far enough to entitle punishment in order to protect society.
In order for a crime to constitute an attempt, there must be:
 1. Intent to commit the crime. ‘Mens Rea’ (guilty mind)
2. Act towards the accomplishment of the crime. ‘Actus Reus’ (guilty act).
3. Failure of that act.
An act will be considered accomplishment on the basis of two things- the means to make sure the
act is seen into completion must be adapted and it must be beyond preparation.”

The section does not apply to cases of attempts that have specific sections mentioning their
punishment of attempt. Such sections that has specifically provided punishment for attempt are
Section 121, 124, 125, 130,196, 198, 200, 213, 239, 240, 241, 307, 308, 309, 385, 387, 389, 391,
393, 394, 398 and 460.

Section 511 of IPC talks about the nature of the crime in general and Section 307 talks about it in
particular nature i.e. attempt to murder. Despite these sections, there is a difference in opinion
among jurists and scholars’ regarding what is the scope of attempt on crime. The Allahabad High
Court opined that Section 511 cannot be applied in cases of attempt to murder because the same
is provided for in Section 307 specifically. On the other hand, the Bombay High Court does not
second with this view. In the case of Om Parkash vs. State of Punjab, the Supreme Court of
India held that “just as stated in Section 511 and in Section 307 as well, the act towards the
crime need not be the penultimate act. In this case, the act of the accused to accelerate the death
of his wife by denying her food for several days amounts to an act under Section 307.”

Statutory provisions of attempt

The attempts can be divided in 4 kinds:

1. Where the attempt and the main offence is punishable in the same manner without any
distinction.
2. When an attempt is merged into the main offence.
3. Where the attempt are separately made punishable.
4. When attempts are made punishable in general.
The first category of offence includes attempts to offences which comes under the category of
offence against the state, forces, public peace, election, false evidence, public morality and
decency, human body as well as property.

The second category of attempts is in the cases where the attempt is a part of the transaction.
Despite being attempts, crimes are made punishable without using the actual word ‘attempt’.
Such offences include abetment, unlawful assembly and criminal intimidation. In offences which
are related to coin and against the government, every step of the crime such as the preparation,
the attempt and the completion is prima facie punishable. Each step is seen as an offence in itself
for the purpose of these offences.

The third category is the attempts which are seen as a separate crime or offence and have their
own punishments defined under IPC. Examples include attempt to commit murder, attempt
to culpable homicide and attempt to suicide. These offences are punishable independently.

The fourth categories are other attempts and are defined under Section 511 of IPC.
Section 511 of IPC is only applicable to a very limited set of offences. It is not applicable to
attempts of very grievous crimes, rather it is for attempts to crimes that are not punishable by
capital punishment and do not have a set of punishments prescribed in the Indian Penal Code. It
is also not applicable to such offences that are punishable by fine only. Attempts to commit
offence which are punishable by a special law or local law are also out of the applicability of
Section 511. For example, false statement in connection with an election, making the atmosphere
dangerous to health and public nuisance.

Distinction between attempt and preparation

The difference between attempt and preparation has been a matter of dispute from ages. But
there are many tests in demarcating what attempt and preparation is. The main differences
between the two of them are:

 First, preparation is the procurement of the means to attempt the offence while the
attempt is the direct movement towards committing the crime right before the
commencement of the offence.
 Secondly, preparations are not punishable but attempts are punishable except in few
cases.
The reason why preparation is not punishable is given below:

 Preparations are usually harmless.

 It is almost impossible to prove that preparation was done in order to commit that
particular crime, and even if the preparation of offence was done with malice in mind,
one might have changed his mind on the way.
 If preparation is made punishable by law then number of offences in the statutes would
increase drastically
 Mere preparation of offence does not cause harm or does not raise alarm in the society.

Mental element in attempt

Mens rea is the bad intention to commit the crime while the actus reus is a guilty act. In the case
of R v Mohan (1976), a specific attempt was defined as the “decision to bring a certain
condition to the aim. The question judges must ask themselves when making a demarcation
between mere preparations and attempt to commit the crime is usually a question of fact. It is
very hard to lay down any hard rules or mechanical set of principles for drawing this line of
demarcation.” There have been tests which have been set down. They are discussed below:

The Proximity Test

This test states that “an act or series of acts if considered an offence of all the essential steps that
constitute the crime have been committed and the only consequence of the crime has not taken
place. The act of attempt should be sufficiently proximate to the crime. It should not be a remote
act to the crime. The act should place the accused in direct relationship to the victim and should
have contributed to the final act”. This theory originates from the case of Regina vs
Eagleton where Justice Baron Parke stated that “a criminal attempt begins when the offender
loses all control over the crime by doing that last act”. Many courts are of the opinion that an
offender’s action does not or cannot proceed beyond preparation until he has the power to
complete that crime.
Locus Paenitentiae Test
This test or maxim means that “the law provided time to every offender before he is in the grips
of the law”. If he is still in the stages in the process of crime where he can undo his crime and
not continue with his crime, then the law cannot punish him. If he continues to follows through
with his criminal plan or design, it will be said he has crossed the stage of preparation of crime.
In a case of Regina vs. Padala Venkatsamy, the court did not punish the accused for attempt of
forgery despite him having procured all the required material and information for forgery
because he does not go beyond the stage of preparation and the law allows from locus
paenitentiae.

Case laws
 Narayan Das vs. State of West Bengal
In the case, the accused had undeclared notes sewn in the pants on his trousers and the same was
discovered by the customs officer. The court held that the accused went beyond the stage of
preparation. The court held that an attempt to take out currency notes is an act punishable under
the Sea Customs Act.

 Bashir Bhai Mohammed Bhai vs. the State of Bombay

In the case, the accused has a complaint filed against him which states that he was in possession
of duplicate/fake currency notes. These notes were recovered by authority. The court held that
the act had gone way beyond the stage of preparation and thus it was an attempt towards the
commission of a punishable offence.

 Om Parkash vs. State of Punjab

In the case, the accused husband deliberately starved his wife to accelerate her death. It was held
that his act had amounted to attempt to commit murder under section 307. The court held that, “a
person commits an offence under Section 307 when he has an intention to commit murder and
acts towards the commission”. The court made a differentiation between the ‘intention to commit
an offence’ and ‘the intention or knowledge necessary to make an act an offence’. “In section
511, the expression ‘whoever attempts to commit an offence’ means whoever attends to commit
an act with the knowledge necessary to commit the offence. It is similar to the expression in
Section 307 that states ‘whoever does any act with such intention or knowledge and under such
circumstances that if he, by that act caused death, he would be guilty of murder’”.

 Abhayanand Mishra vs State of Bihar

In the case, the accused falsely showed that he was a graduate. He attempted to appear as a
private candidate in an MA examination through a prior permission letter but was debarred from
appearing in the same and prosecuted. In this case, the court held that “the attempt to commit an
offence begins when all the preparations are complete and he takes a step towards the
commission of the offence. It does not matter if this direction towards the commencement fails
due to external factors, it is still an attempt.”

 Malkiat Singh vs State of Punjab

In the case, a truck carrying paddy from Punjab was stopped by a sub-inspector and was taken
into custody around 18 miles from Delhi border. He was accused for violating the Punjab Paddy
order. The driver himself admitted that he was transporting the paddy to Delhi. The court held
“the driver was not guilty of violating Section 7 of the Essential Commodities Act and Paddy
Export Control Order as he still has not crossed the stage of preparation and still had time to
change his mind.”

The court commented in the case that, “preparation consists of arranging the means necessary
for the commencement of the offence. On the other hand, attempt is a direct movement towards
the commission after preparations have been made”. The court set down the test to demarcate
the two is that “if the act in question is such that if the offender changes his mind, the act and the
previous acts would be rendered harmless.”

 State of Maharashtra vs. Mohammed Yakub

In the case, the accused tried to smuggle silver out from India. They were convicted for the
violation of the Foreign Exchange Regulation Act, Import as well as Export (Control) Act,
1947 and Customs Act, 1962. While the appellate court acquitted the accused, the Supreme
Court of India convicted them for an attempt to export silver. The court held that “for an act to
be considered an attempt, there must be three ingredients. First, there must be an intention to do
the act. Second, some act must have been done which would have been done towards the
commission of the act and third, the act must be proximate to the crime. Proximity is not with
regards to time and place but with regards to intention. The act must show an intention that is
distinguished from mere desire or object to commit the particular offence. It must be seen in
conjunction with other facts and circumstances and not necessarily in isolation. They also
established that what constitutes an attempt depends largely on the facts of the case”.