Juris Mitra Complete Ipc Ppt.pdf

Elements Of Crime

By: Prof. Anil Thakur Lloyd Law College [email protected]

Fundamental Elements Of Crime There are four elements which go to constitute a crime, these are:• Human being • Mens rea or guilty intention • Actus reus or illegal act or omission • Injury to another human being

Human BeingThe first element requires that the wrongful act must be committed by a human being. • In ancient times, when criminal law was largely dominated by the idea of retribution, punishments were inflicted on animals also for the injury caused by them, for example, a pig was burnt in Paris for having devoured a child, a horse was killed for having kicked a man. • But now, if an animal causes an injury we hold not the animal liable but its owner liable for such injury. • So the first element of crime is a human being who- must be under the legal obligation to act in a particular manner and should be a fit subject for awarding appropriate punishment. • Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or association or body of persons whether incorporated or not. The word ‘person’ includes artificial or juridical persons.

Mens Rea• The second important essential element of a crime is mens rea or evil intent or guilty mind. • There can be no crime of any nature without mens rea or an evil mind. Every crime requires a mental element and that is considered as the fundamental principle of criminal liability. • The basic requirement of the principle mens rea is that the accused must have been aware of those elements in his act which make the crime with which he is charged. • There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together constitute a crime. • It comes from the maxim that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind.

Actus Reus [Guilty Act Or Omission] • The third essential element of a crime is actus reus. • In other words, some overt act or illegal omission must take place in pursuance of the guilty intention. • Actus reus is the manifestation of mens rea in the external world. • Prof. Kenny was the first writer to use the term ‘actus reus’. • He has defined the term thus- “such result of human conduct as the law seeks to prevent”.

Injury• The fourth requirement of a crime is injury to another person or to the society at large. • The injury should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property.

Stages of A Crime

Stages of A Crime • If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. • In every crime, there is• first intention to commit it, • secondly, preparation to commit it, • thirdly, attempt to commit it and • fourthly the accomplishment.

Exceptional Circumstances when Intention & Preparation alone are punishable

1. Intention• Intention is the first stage in the commission of an offence and known as mental stage. • Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice.

• But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence (exceptions are there as already discussed).

• The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.

2. Preparation• Preparation is the second stage in the commission of a crime. • It means to arrange the necessary measures for the commission of the intended criminal act. • Intention alone or the intention followed by a preparation is not enough to constitute the crime. • Preparation has not been made punishable (exceptions are there as already discussed)because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime.

instances •

If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing B.

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Preparation When Punishable- Generally, preparation to commit any offence is not punishable but in some exceptional cases preparation is punishable, following are some examples of such exceptional circumstances-

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· Preparation to wage war against the Government - Section 122, IPC 1860;

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· Preparation to commit depredation on territories of a power at peace with Government of India- Section 126, IPC 1860;

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· Preparation to commit dacoity- Section 399, IPC 1860;

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· Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255 and S. 257;

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· Possessing counterfeit coins, false weight or measurement and forged documents. Mere possession of these is a crime and no possessor can plead that he is still at the stage of preparation- Sections 242, 243, 259, 266 and 474.

3. Attempt• Attempt is the direct movement towards the commission of a crime after the preparation is made. • According to English law, a person may be guilty of an attempt to commit an offence if he does an act which is more than merely preparatory to the commission of the offence; and a person will be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. • There are three essentials of an attempt:-

1. Guilty intention to commit an offence; 2. Some act done towards the commission of the offence; 3. The act must fall short of the completed offence.

Attempt Under The Indian Penal Code, 1860The Indian Penal Code has dealt with attempt in the following four different ways• Completed offences and attempts have been dealt with in the same section and same punishment is prescribed for both. Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460. • Secondly, attempts to commit offences and commission of specific offences have been dealt with separately and separate punishments have been provided for attempt to commit such offences from those of the offences committed. Examples are- murder is punished under section 302 and attempt to murder to murder under section 307; culpable homicide is punished under section 304 and attempt to commit culpable homicide under section 308; Robbery is punished under section 392 and attempt to commit robbery under section 393.

• Thirdly, attempt to commit suicide is punished under section 309; • Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered under section 511 which provides that the accused shall be punished with one-half of the longest term of imprisonment provided for the offence or with prescribed fine or with both.

4. Accomplishment Or Completion• The last stage in the commission of an offence is its accomplishment or completion. • If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and • if his attempt is unsuccessful he will be guilty of an attempt only. • For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it will be a case of attempt to murder.

Joint Criminal liability

Section 34: Acts Done By Several Persons In Furtherance Of Common Intention-

According to Section 34, when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Object Of Section 34:• Section 34 lays down only a rule of evidence and does not create a substantive offence. • This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. • This section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. • The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing an act.

Elements Of Section 34: To attract the application of Section 34, the following conditions must be satisfied:1. Some Criminal Act 2. Criminal Act Done By Several Persons 3. Common Intention 4. Participation In The Criminal Act

1. Some Criminal Act: • ‘Criminal act’ used in section 34 does not refer to individual acts where a crime is committed by a group of persons. • Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. • ‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal behavior which results in something for which an individual would be punishable if it were all done by himself alone in an offence.

2. Criminal Act Done By Several Persons: • The criminal act in question must have been done by several persons i.e. by more than one person. • The number of wrong doers should be at least two. • Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act.

3. Common Intention:• The words “in furtherance of the common intention of all” were added to section 34 after words ‘persons’ in 1870 the idea for which, possibly, was derived from the following passage of the Privy Council’s judgment: “Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose, as the purpose is common so must be the responsibility.” [Ref. Ganesh Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45]

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The expression ‘common intention’ means unity of purpose or a pre-arranged plan; it has been given various meanings which are as follows· Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group [Ref. Mahboob Shah v. Emperor, AIR 1945 PC 118]. · Common intention means the mens rea necessary to constitute the offence that has been committed [Ref. As per DAS, J., in Ibra Akanda v. Emperor, AIR 1944 Cal. 339]. · It also means evil intent to commit some criminal act, but not necessarily the same offence which is committed [Ref. As per WANCHOO, J., in Saidu Khan v. The State, AIR 1951 All 21 (F.B.)]. · Common intention implies a pre-arranged plan. Pre-arranged plan means prior concert or prior meeting of minds. Criminal act must be done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time. · Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused were seen at the spot or that the two accused fired as a result of which one person died and two others received simple injuries could not be held sufficient to infer common intention [Ref. Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653]. · However, common intention may develop on the spot as between a number of persons and this has to be inferred from the act and conduct of the accused, and facts and circumstances of the case [Ref. Kripal Singh v. State of U.P., AIR 1954 SC 706].

4. Participation In The Criminal Act:The participation in a criminal act of a group is a condition precedent in order to fix joint liability and there must be some overt act indicative of a common intention to commit an offence. The law requires that the accused must be present on the spot during the occurrence of the crime and take part in its commission; it is enough if he is present somewhere nearby. The Supreme Court has held that it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence some way or other at the time crime is actually being committed.

The first leading case on the point is Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 (also known as Shankari Tola Post Office Murder Case). In this case several persons appeared before the sub-post master who was counting the money on the table and demanded the money. In the mean time they opened fire killed the sub-post master and ran away without taking any money. Barendra Kumar was, however, caught with a pistol in his hand and was handed over to the police. The accused was tried under sections 302/34 as according to the prosecution he was one of the three men who fired at the sub-post master. The accused denied his charge on the ground that he was simply standing outside and had not fired at the deceased. The trial court, on being satisfied that the sub-post master was killed in furtherance of the common intention of all, convicted the accused even if he had not fired the fatal shot. The High Court of Calcutta and the Privy Council both agreed with the findings of the trial court and held the accused guilty of murder. Giving his judgment LORD SUMNER quoting a line from Milton’s famous poem, “ON HIS BLINDNESS” said. “even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait….. Section 34 deals with doing of separate act, similar or diverse by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself”.

• Common Object:- Section 149, like Section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence. It runs as under: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the assembly, is guilty of that offence.”

Elements Of Section 149:• The essence of offence under Section 149 is assembly of several (five or more) persons having one or more of the common objects mentioned in Section 141 and it could be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. Section 149 creates joint liability of all members of an unlawful assembly for criminal act done by any member in prosecution of the common object of the said assembly.

the essential ingredients of Section 149 are: 1. There must be an unlawful assembly, as defined in Section 141; 2. Criminal act must be done by any member of such assembly; 3. Act done is for prosecution of the common object of the assembly or such which was likely to be committed in prosecution of the common object; 4. Members have voluntarily joined the unlawful assembly and knew the common object of the assembly. 5. Mere presence and sharing of common object of the assembly makes a person liable for the offence committed even if he had no intention to commit that offence.

Scope Of Section 149:The Section is divided into two parts1.In Prosecution Of The Common Object:- The words “in prosecution of the common object” show that the offence committed was immediately connected with the common object of the unlawful assembly of which accused were members. The act must have been done with a view to accomplish the common object of the unlawful assembly. In Queen v. Sabid Ali, 11 BLR 347 the words “in prosecution of the common object” were construed as meaning “with a view to achievement of the common object”. 2. Members Knew To Be Likely:- The second part relates to a situation where the members of the assembly knew that the offence is likely to be committed in prosecution of the common object. A thing is likely to happen only when the situation is like “it will probably happen” or “may very well happen”. The word ‘knew’ indicates a state of mind at the time of commission of an offence, knowledge in this regard must be proved. The word ‘likely’ means some clear evidence that the unlawful assembly had such a knowledge.

Difference Between Common Intention And Common Object:1. Under Section 34 number of persons must be more than one. Under Section 149 number of persons must be five or more.

2. Section 34 does not create any specific offence but only states a rule of evidence. Section 149 creates a specific offence. 3. Common intention required under Section 34 may be of any type. Common object under Section 149 must be one of the objects mentioned in Section 141. 4. Common intention under Section 34 requires prior meeting of minds or pre-arranged plan, i.e. all the accused persons must meet together before the actual attack participated by all takes place. Under Section 149, prior meeting of minds is not necessary. Mere membership of an unlawful assembly at the time of commission of the offence is sufficient.

5. Under Section 34 some active participation is necessary, especially in a crime involving physical violence. Section 149 does not require active participation and the liability arises by reason of mere membership of the unlawful assembly with a common object.

Common Intention May Also Develop On The Spot: Exception To The General RuleGenerally, it is said that, “a common object may develop on the spot but a common intention cannot”. But, in certain circumstances common intention also may develop suddenly on the spot and such common intention may be inferred from the facts and circumstances of the case and conduct of the accused persons.

Following cases are illustrative on this pointIn Kripal Singh v. State of U.P., AIR 1954 SC 706; the Supreme Court held that a common intention may develop on the spot after the offenders have gathered there. A previous plan is not necessary. Common intention may be inferred from the conduct of the accused and the circumstances of the case.

In Rishi Deo Pandey v. State of U.P., AIR 1955 SC 331; ‘A’ and ‘B’ two brothers were seen standing near the cot of the victim who was sleeping. One of them was armed with a ‘gandasa’ and another with a ‘lathi’, when a hue and cry was raised by the two brothers ran together, and both of them were seen running from the bed room of the victim. The victim died of an incised wound on the neck, which according to medical evidence was necessarily fatal. The court found that the two brothers shared the common intention to cause death. It was held that common intention may develop on the spot also. In Khacheru Singh v. State of U.P., AIR 1956 SC 546; several persons attacked a man with lathis when he was passing through a field. The man eluded them and they gave chase, on overtaking him they once again attacked him. It was held that, these facts were sufficient to prove that the accused persons had been actuated with the common intention to assault the victim. Conviction under Section 326 read with Section 34 was sustained. In Sheoram Singh v. State of U.P., AIR 1972 SC 2555; the Supreme Court held that common intention may develop suddenly during the course of an occurrence, but still unless there is cogent evidence and clear proof of such common intention.

G ENERAL E XCEPTIONS UNDER THE INDIAN PENAL CODE Sections 76-106 of IPC

SECTION 6, IPC Every definition of an offence, every penal provision,

and

illustration

should

be

understood subject to the exceptions contained in the Chapter titled “General Exceptions”

G ENERAL E XCEPTIONS Mistake of fact (S.76, 79) Judicial acts (S.77 and S. 78)

Accident (S.80) Absence of criminal intent (Ss.81-86 & 92-94) Consent (Ss.87- 90) Trifling acts (S.95) Private defence (Ss.96-106)

O NUS O F P ROOF S.105, INDIAN EVIDENCE ACT: A person accused of an offence bears the burden of proving the existence of circumstances to bring the case within any of the General Exceptions. The court shall presume the absence

of such circumstances.

M ISTAKE O F F ACT ‘Ignorantia facti doth excusat’- Mistake of fact is excusable  Mistake as an honest and reasonable belief  In the existence of circumstances,  Which, if true,  Would make the act an innocent one Not applicable if the fact itself is illegalR. v. Prince, 1875- Man was held guilty for abducting a girl below 16 under the belief that she was above 18.

M ISTAKE O F LAW ‘Ignorantia juris non excusat’- Mistake of law is not excusable Legal presumption that everyone knows the law of the land Often untrue as a matter of fact But needed for the purpose of expediency of the law Applicable even for recent statutes Not necessary that law should be published

M ISTAKE O F F ACT, B OUND B Y LAW S.76  If by reason of mistake of fact;and not mistake of law In good faith believes To be bound by law, in doing an act Eg: If a soldier fires on a mob by the rational order of his superior, no offence is committed  Bound by law- Respondeat Superior- Act done by the order of a superior Only obedience to legal orders comes within the ambit Obedience of illegal orders is not justified The servant should exercise his own judgment***

M ISTAKE OF FACT, JUSTIFIED BY LAW S.79 • If justified by law, or • By reason of a mistake of fact and not mistake of law • In good faith believes • To be justified by law, in doing an act.

MISTAKE OF FACT AS A DEFENCE  If the state of things as claimed is actually true, it would justify the act done  Mistake must be reasonable, and  Mistake must relate to factand not to law

IN GOOD FAITH S.52  Done with due care and attention  The question is considered with reference to the position of the accused and the circumstances under which he acted.

JUDICIAL ACTS S. 7 7 •If a Judge does an act •In the exercise of power given by law •Which in good faith he believes to be Eg: Judge sentencing a prisoner, even wrongly S.78 • Act done • By virtue of a judgment or order of a Court • While in force • Even if Court had no jurisdiction, but person in good faith believes Court had jurisdiction

ACCIDENT S.80 Act done by accident or misfortune Without any criminal intention or knowledge While doing a lawful act in a lawful manner by lawful means With proper care and caution “Accident”- Happens out of the ordinary course of things and is unexpected Neither wilfully nor negligently caused.

A CT D ONE T O A VOID O THER GREATER HARM

S.81 Act done with knowledge to cause harm In good faith Without any criminal intention to cause harm To prevent or avoid OTHER harm(BIGGER) to person or property

- In a sudden and extreme emergency, if two evils are inevitable, direct events so that the smaller one occurs. - A crime cannot be committed in order to avoid a greater harm

R v Dudley and Stephens, 1884- A man to save himself from starvation kills another person for the purpose of feeding on his flesh. Benefit of S.81 is not given.

ACT OF CHILD

ACT O F C HILD (Infancy) S.82 Act done by a child Under seven years of age - Absolute incapacity for crime under seven years of age. Presumption of law- Doli IncapaxA child has no discretion to distinguish right from wrong, thus criminal intention does not arise

ACT O F C HILD S.83 Act done by a child Between 7-12 years of age Has no sufficient maturity of understanding To judge the nature and consequences of his conduct - Malitia Supplet Oetatem- Malice Supplies Age If proven to have sufficient maturity of understanding, liability arises

INSANITY-84 IPC Underlying principle of Sec. 84 is that “Every man is presumed to be sane.” This presumption does not apply to a man whose case is governed by Section-84. The exemption under this Section is based on the principle that in order to constitute crime the act should have been committed with a guilty intention, the doer of the act not knowing the nature of the act or the wrongfulness of the act or illegality of the act.

•Section 84 mentions the legal test of responsibility in case of alleged unsoundness of mind. •It is by this act as distinguished from medical test, that the criminality of the act is to be determined. •This section, in substance, is same as the M’Naghten Rules. •These rules in spite of long passage of time are still regarded as the authoritative statement of the law as to criminal responsibility.

WHAT IS UNSOUNDNESS OF MIND “Unsound mind” is not a medical but a legal expression, denoting an incapacity to manage affairs. It would seem to answer to old legal term non-compos mentis which is equivalent to “of no sound memory” and is of four sorts: (1) An idiot (2) one made non-compos by illness (3) a lunatic or a madman

(4) one who is drunk.

four sorts of insanity explained (1) An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals and those are said to be idiots who cannot count twenty or tell the days of the week, or who do not know their father’s or mother’s or the like.

(2) A person made non-compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder.

3.

A lunatic is one who is afflicted by mental disorder only at certain periods, having intervals of reason. Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. Lucid interval: - A temporary cessation of insanity or a restoration to reason in the person of unsound mind at interval is called lucid interval. Any act done by a lunatic in a lucid interval as in the period between two attacks of insanity will be legal and binding on him.

4. •As to persons who are drunk or insanity brought on by drunken is no excuse, but delirium tremens caused by drinking and differing from drunken, if it produces such a degree of madness, even for a time, as to render a person incapable of distinguishing right from wrong, relieves him from criminal responsibility. • If habitual drunken has created fixed insanity whether permanent or intermittent, it is the same as if insanity had been produced by any other cause and the act is excused.

ACT O F AN INSANE PERSON S.84 Act done Due to unsoundness of mind- no free will- born idiot, temporary failure, mad man, unconscious, intoxicated Incapable of knowing the nature of the act, or that it is wrong or contrary to law

The history of "not guilty by reason of insanity"  In the 18th century, the legal standards for the insanity defense were varied. Some courts looked to whether the defendant could distinguish between good and evil, while others asked whether the defendant "did not know what he did." By the 19th century, it was generally accepted that insanity was a question of fact, which was left to the jury to decide.

The McNaughton rule -- not knowing right from wrong

The first famous legal test for insanity came in 1843, in the McNaughton case.

Englishman Daniel McNaughton shot and killed the secretary of the British Prime Minister, believing that the Prime Minister was conspiring against him.

The court acquitted McNaughton "by reason of insanity," and he was placed in a mental institution for the rest of his life. However, the case caused a public uproar, and Queen Victoria ordered the court to develop a stricter test for insanity.

McNaughton rule The "McNaughton rule" was a standard to be applied by the jury, after hearing medical testimony from prosecution and defense experts. The rule created a presumption of sanity, unless the defense proved "at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong." The McNaughton rule became the standard for insanity in the United States and the United Kingdom, and is still the standard for insanity.

The Durham rule -- "irresistible impulse" •Monte Durham was a 23-year-old who had been in and out of prison and mental institutions since he was 17. • He was convicted for housebreaking in 1953, and his attorney appealed. •Although the district court judge had ruled that Durham's attorneys had failed to prove he didn't know the difference between right and wrong, the federal appellate judge chose to use the case to reform the McNaughton rule.

The Durham rule Citing leading psychiatrists and jurists of the day, the appellate judge stated that the McNaughton rule was based on "an entirely obsolete and misleading conception of the nature of insanity. " He overturned Durham's conviction and established a new rule.

The Durham rule states "that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." The Durham rule was eventually rejected by the federal courts, because it cast too broad a net. Alcoholics, compulsive gamblers, and drug addicts had successfully used the defense to defeat a wide variety of crimes.

Requirements to succeed in a plea of defence of insanity

•In order to succeed in a plea of defence of insanity it is not enough to prove that the accused person was having certain abnormal personality traits or imbalance in his behaviour or that he was a mal-adjusted person. •He might have been suffering from depression or exhibiting neurotic behaviour and may be a maladjusted individual.

•It is not every imbalance in behaviour of maladjustment in the personality that will entitle him to claim exemption under section 84 IPC, from the penal consequences of his acts. •The language and message of section 84 is clear and definite as to the requirements of law.

•At the time of committing the offence charged the accused, by reason of unsound mind, must, be incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law

ESSENTIALS OF SECTION-84 TO BE PROVED

•UNSOUNDNESS OF MIND MUST EXIST AT THE TIME OF COMMISSION OF THE ACT •INCAPACITY TO KNOW THE NATURE OF THE ACT •INCAPACITY TO KNOW RIGHT AND WRONG

Distinction between ‘medical’ insanity and ‘legal’ insanity •There is a clear distinction between ‘medical’ insanity and ‘legal’ insanity and the courts are concerned with the legal and not with the medical view of the question. •An accused person may be suffering from some form of insanity in the sense in which the term is used by a medical man, but may not be suffering from unsoundness of mind as contemplated under section 84. •There can be no legal insanity unless the cognitive faculty of the mind to such an extent as to render the accused incapable of knowing the nature of the act or that what he is doing is wrong or contrary to law.

Distinction between ‘medical’ insanity and ‘legal’ insanity According to medical science insanity is another name or term for mental abnormality due to various causes and existing in various degrees and even an uncontrollable impulse driving a man to kill or wound comes within its scope. But the doctrine of uncontrollable impulse and impulsive insanity is not a valid defence in India from the legal point of view as it affects the ‘will’ and ‘emotions’ ofthe offenders leaving the cognitive faculties ofthe mind unimpaired and freedom ofwill has no place in section 84. Every person who is thus mentally diseased is not ipso facto exempted from criminal responsibility.

A CT O F A N I NTOXICATED PERSON S. 85 & 86 IPC

S.85-Involuntary Intoxication Act of a person Incapable of judgment Due to intoxication Caused without his knowledge or against his will***

The Rationale Behind the Defence of Intoxication •The laws in the early nineteenth century concerning intoxication were very stringent. • In fact, according to a statement made by Earl of Birkenhead, voluntary intoxication was considered an aggravation rather than a defence.

•If a person was consuming alcohol, knowing fully well that it would impair his ability to think clearly, then he will be situated in no better condition than a sober man in the judgment of his criminal conduct. • Thankfully, the rule has been mercifully relaxed and a person’s punishment, though cannot be eradicated completely, can be reduced in severity.

S.86- -Voluntary Intoxication Offence requiring a particular intent or knowledge Committed by an intoxicated person Presumption of knowledge, unless proves intoxicated without his knowledge or against his will

Voluntarily intoxicated man is presumed to have the same knowledge as that of a sober man but not the same intention(explained later) Self Induced Intoxication normally is– No defence

The Dutch Courage Rule Sometimes an individual takes to drink to provide him with courage. Drinking causes an individual to become aggressive and lose his sense of self-restraint. It deprives him of his sense of reason to such an extent that he may not even realize that what he is doing is against the law. He may plan or decide what he has to do before he starts drinking, and he may use the drink to provide him with the ‘Dutch courage’ to commit the deed.

Northern Ireland vs. Gallagher [1963] AC 349 •Facts: The accused had a grievance against his wife. She had obtained a maintenance order against him and she had got him detained in a mental hospital.

•The husband decided to kill his wife, and hence having made up his mind, he purchased a knife and a bottle of whiskey to acquire the courage to commit the deed or to be able to put his conscience to rest after the deed had been committed. •He committed the deed and consumed much of the whiskey, before or after the commission is yet to be ascertained. Judgment: The accused was held to be guilty as charged because he had formed the intention before getting intoxicated.

ACT OF AN INTOXICATED PERSON Basdev v. State of Pepsu, 1956 Facts: The intoxicated appellant was seated next to a boy during a meal served at a wedding. He asked the boy to move a little to so that he would occupy a more convenient seat. The boy refused. He shot him in the abdomen and killed him on the spot. SC- So far as attributing knowledge is concerned, the intoxicated man is treated as if he was sober. So far as intention is concerned, it is gathered from the general circumstances of the case and the degree of intoxication.

not a very strong defence After much research on the topic, it can be said that intoxication is not a very strong defence, and even if it serves to mitigate the severity of a punishment, it cannot exculpate a person from liability. This is essential because absolute and cold logic cannot be applied to human affairs, as they require certain flexibility in their dealing. A common man will not have much regard for the law if a drunken man batters him, and the man gets away with his conduct merely because he was too intoxicated to think clearly.

Venkappa Kannappa Chowdhari v. State of Karnataka 1996 Cri LJ 15 (Kant)

•The accused, quarrelsome by nature, was addicted to liquor. The son of the accused died in a motor accident. •The accused wanted the compensation amount of 10000, which was in the name of the accused’s wife. •On the day of the decision, he came home drunk and asked his wife to withdraw the fixed deposit amount. •When his wife refused to comply, he beat her, took a tin of kerosene oil, sprinkled it on her and set her on fire. His wife screamed and the neighbors took her to the hospital. • A dying declaration was recorded. •The accused took the plea of incapacity due to intoxication u/s 85 IPC. •His plea was rejected because he had voluntarily consumed alcohol. He was convicted and sentenced to life imprisonment.

Mavari Surya Sathya Narayan v. State of AP 1994 AP •The accused and the deceased were married for 11 years. He was an alcoholic and quarreled often with her. •One day he came home drunk and asked her to sign on some blank papers. • When she refused, he pulled her by her hair and dragged her into the room and attempted to set fire on her. • The deceased put out the flames and tried to run away. •The accused again pulled her, poured kerosene and set fire to her. The deceased died of the burns. •The Andhra Pradesh High Court, relying on the SC decision in Basudev v. State of Pepsu, held that having regard to the facts, it couldn’t be said that the accused was in total loss of mental power and hence the provisions of s.85 will not apply.

BONA FIDE ACT FOR ANOTHER‟S BENEFIT S.92 Act causing harm to person for whose benefit is done In good faith  Even without person's consent Under emergent circumstances Eg: A is carried off by tiger. D fires at tiger knowing it might hit A, but not intending the same. D bullet gives A a mortal wound.***

COMMUNICATION MADE IN GOOD FAITH S.93 Communication made to a person In good faith For his benefit Even if it causes harm

ACT D ONE U NDER COMPULSION

OR

THREAT

S.94 Act done under compulsion or threat Of instant death Eg: If threatened with a dagger in hand to cause hurt to another person

- Cannot cause murder or offence against State punishable with death - Did not put on his own accord into such constraint

ACT DONE BY CONSENT Ss. 87-91 Acts done with the consent of the victim which do not amount to an offence

S.90- What is not consent?  Given under fear of injury or misconception of fact  Given from unsoundness of mind or intoxication  Given by person under 12 years of age

ACT D ONE BY CONSENT S.87 Act intended or known To cause death or grievous hurt Causes harm to person above 18 years On consent, to suffer

Proceeds from volenti nonfit injuria- he who consents cannot complain

ACT D ONE BY CONSENT S.88 Act done With no intention to cause death In good faith  For victim's benefit  With victim's consent Surgeons, Fireman etc.

ACT D ONE BY CONSENT S.89 Act done In good faith For benefit of child or insane person By or by consent of guardian

T RIFLING A CTS, C AUSING SLIGHT H ARM S.95 - ‘De minimis non curat lex’The law takes no account of mere trifles  A harm  is so slight that a person of ordinary sense and temper would not complain

RIGHT OF PRIVATE DEFENCE S.96 Nothing is an offence which is done in the exercise of the right of private defence.

Private defenceRight inherent in man, which is the duty to help himself.

RIGHT OF PRIVATE DEFENCE Right is exercised when there is real and immediate threat If life is threatened by grave danger, need not wait for State aid, unless aid is available Right is protective or preventive and not punitive Not for self-gratification Should not be deliberate or for retaliation of past injury Right commences as soon as reasonable apprehension of danger arises and continues till the apprehension continues It should be exercised proportionately i.e. not more than necessary.

RIGHT OF PRIVATE DEFENCE The protective measures must be proportionate to injury or threat The right ends with the necessity for it Stateof UP v. Ram Swarup, 1974- The person exercising the right need not chase the feeling attacker and then beat him. Need not weigh the arguments for and against an attack in golden scales The aggressor cannot claim the right to self-defence No private defence against private defence Deo Narain v. State of UP, 1973- One who goes to beat the other cannot claim the right Even if private defence is not claimed, court may consider the plea based on material on record

RIGHT OF PRIVATE D EFENCE OF BODY S. 97 Every person has a right To defend his own body or Of any other person Against an offence affecting the human body - Thus even a stranger may defend the person or property of another person S.98 To exercise the right, the physical or mental capacity of the attacker is no bar (whether with or without mens rea)***

RIGHT OF PRIVATE D EFENCE OF BODY S.99- General restrictions No right if there is no apprehension of death or grievous hurt - If done by public servant under office or if acting under the direction of a public servant - In good faith - Even if not strictly justified by law No right if there is time to have recourse to protection of public authorities Right does not extend to inflicting more harm than necessary for the purpose of defence

RIGHT OF PRIVATE D EFENCE OF BODY S.100 When right extends to causing death -

Assault causing apprehension of death Assault causing apprehension of grievous hurt Assault with intention of committing rape Assault with intention to gratify unnatural lust Assault with intention of kidnapping or abducting Assault with intention of wrongfully confining a person - Act of acid throwing S.101 In other circumstances the defender may cause any harm except death

RIGHT OF PRIVATE D EFENCE OF BODY S.102 Right commences as soon as reasonable apprehension of danger to body arises and continues till the apprehension continues S.106 In case of reasonable apprehension of death if defender cannot exercise the right without risk of harm to innocent person, he may even run that risk

RIGHT O F P RIVATE D EFENCE O F PROPERTY S.97 The right to defend the property (moveable or immoveable) of himself or of any other person Against offence of or attempt of -

theft, robbery, mischief, or criminal trespass

RIGHT O F P RIVATE D EFENCE O F PROPERTY S.105- Continuation of rightTheft - Offender has effected his retreat with property, or - Assistance of public authority is obtained, or - Property is recovered Robbery - Offender causes/attempts to cause death/ hurt/ wrongful restraint, or - As long as fear of instant death/ instant hurt/ instant personal restraint continues Criminal trespass or mischief - As long as the offender continues in the commission of criminal trespass or mischief. House breaking by night - As long as house trespass which has begun by such housebreaking continues.

RIGHT O F P RIVATE D EFENCE O F PROPERTY S.103 Right extends to causing death if - Robbery - House breaking by night - Mischief by fire to any building, tent or vessel used as human dwelling or as place of custody of property - Theft, mischief or house trespass under circumstances causing reasonable apprehension of death/grievous hurt S.104 In other cases, right extends to any harm other than death

Thank You!

Law of CrimesIndian Penal Code

Extent and Operation of Indian Penal Code • The Indian Penal Code was passed in the year 1860. However, it came into effect from January 1, 1862. • The Indian Penal Code applies to the whole of India except for the state of Jammu & Kashmir. It contains 23 Chapters and 511 Sections. Before the Indian Penal Code came into effect, the Mohammedan Criminal Law was applied to both Mohammedans and Hindus in India.

Crime-Meaning • The Indian Penal Code, 1860 uses the word 'Offence' in place of crime. Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes place in two ways, either by commission of an act or by omission of an act. • When a Crime is done, any member of the public can institute proceedings against the person accused of the offence. Only in certain exceptional cases, the persons concerned alone can institute the criminal proceedings. Example of such crimes include Matrimonial cases, dowry cases, defamation etc.

Elements of Crime Four main Elements :• 1. Human Being The first essential element of a Crime is that it must be committed by a human being. In case, the crime is committed by an animal, its owner is subject to Civil/Tortious liability. • 2. mens rea A crime is done with a criminal intent. Mens rea is the mental intention, ill intention, or fudge the defendant's state at the time of offense, sometimes called the guilty mind. In the IPC, 1860, Mens rea is expressed as "ACTUS NON FACIT REUM NISI MENS SIT REA" as a fundamental principle for penal liability. Intent and Act, both must concur to constitute a crime. An act itself is no crime, unless it is coupled with an evil / criminal intent. • 3. actus reus There should be an external act. The Act and the mens rea should be concurrent and related. • 4. Injury There should be some injury or the act should be prohibited under the existing law. The act should carry some kind of punishment.

Various stages of crime • (i) Conceiving the idea of performing a legally defined harm or Mens Rea :- At this stages, a person consolidates his devious ideas and identifies ways of doing it. There is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. So, it is not a crime in itself. But this an essential ingredient of crime because without bad intention to cause harm or do wrong, there can be no crime. Also, even a thoughtless act, without any deliberation, can be crime if there is an intention to cause crime. • Actus non facit reum nisi mens sit rea :- a guilty act together with a guilty mind.

Various stages of crime • (ii) Preparation for crime :- Preparation consists of arranging or building things that are needed to commit the crime. At this stage, the intention to cause harm starts manifesting itself in the form of physical actions. At this stage, it is however possible for the person to abandon his course of action without causing any harm to anyone. Generally, preparation is itself alone not a crime because it cannot be proved beyond doubt the goal of preparation.

Various stages of crime • (iii) Attempt to commit an offence :- This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is bound to happen and prevention of crime is equally important for healthy society.

Differences between Preparation & Attempt • Both preparation and attempt are the physical manifestations of the criminal intention. • An attempt goes a lot farther than preparation towards the actual happening of crime. • In preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. • In general, preparation involves collecting material resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.

Tests to distinguish Attempt and Preparation • (i) Proximity Rule or Last step Test : As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. • Case laws :- R Vs. Riyasat Ali, 1881 Abhayanand Mishra Vs. State of Bihar, AIR 1961. • (ii) Theory of Impossibility or Indispensable Element Test : As per this test, all of indispensable elements must be present to equal attempt. If there is something a person needs to commit the crime but it is not present, then there is not an attempt. • Case laws:- Queen Vs. Collins R Vs. king 1892 ) Rule Bypassed

Tests to distinguish Attempt and Preparation • (iii) Interruption Test:- If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. At means if a person has not been interrupted, he would have committed the crime, he is guilty of attempt even though the past step of the crime has not been performed. • (iv) On the Job or Unequivocality Test:- If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. So, attempt is done when the offender takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one. • Case law:- State of Maharashtra vs. Mohd. Yakub 1980.

Types of Punishments according to IPC • Section 53 of the Indian Penal Code, 1860 prescribes five kinds of punishments. • Death Penalty • Life imprisonment • Imprisonment – Rigorous – Simple

• Forfeiture of property • Fine

Theories of Punishment • (1) Deterrent Theory The aim of this theory is to inflict various penalties on the offenders with a view to deterring them from committing crime. This theory also seeks to create a sense of fear in the mind of others with a view to keep them away from committing such crime. The rigor of the punishment acts as a warning to others. • (2) Retributive Theory 'Retributive' means 'punitive; to re-compensate; to payback'. Retribution is by way of punishment. This theory says that the wrong doer should be given the same punishment as that will be suffered by the victim. 'a tooth for a tooth' and 'an eye for an eye'

Theories of Punishment • (3) Protective or Preventive Theory This theory says that all criminals should be imprisoned and kept them far away from the normal society without any connection to it. Thus, the society will be protected from the criminals. This theory feels that protecting the society from criminals is better that curing the minds of the criminals. • (4) Reformative Theory This theory uses social, economic, physical and psychological methods in bringing about change in the minds of the criminals.

Offences punishable with death sentence • Section 121 of Indian Penal Code, 1860: Waging War against the Government • Section 132 of Indian Penal Code, 1860: Abetment of Mutiny • Section 194 of Indian Penal Code, 1860: Giving or fabricating false evidence leading to procure one's conviction for capital offense. • Section 302 of Indian Penal Code, 1860: Murder • Section 305 of Indian Penal Code, 1860: Abetment of suicide by child or insane person • Section 307 of Indian Penal Code, 1860: Attempt to murder by a life convict, if hurt is caused • Section 396 of Indian Penal Code, 1860: Dacoity with murder • Section 364A of Indian Penal Code, 1860: Kidnapping for ransom

Abetment 107-120 IPC • When the Abetment succeeds, both the abettor and the doer are liable for the same offence.

Abetment under the Indian Penal Code • Law keeps a check on human behaviour. • It categorizes them into criminal and non-criminal behaviours. • However, every non-criminal behaviour even something as simple as buying a knife for your kitchen becomes criminal when there are criminal intentions behind it. • The concept of abetment widens the horizons of criminal law to incorporate these criminal intentions and penalize them even when the person who bought the knife did not actually kill anyone but handed it over to someone else to do it. • To explain the concept of abetment, the word ‘abet’ should be given a deep scrutiny. In general use, it means to aid, advance, assist, help and promote.

Sanju vs. State of Madhya Pradesh (2002) 5 SCC 371

• In the case of Sanju v. State of Madhya Pradesh (2002) 5 SCC 371 the honorable Supreme court defined ‘abet’ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit.

Kartar Singh v. State of Punjab, 1994 Cri LJ 3319

• The definition of ‘abet’ as laid down, makes it clear that abetment only occurs when there are at least two person involved, which further directs us towards the arrangement and operation of the act.

Meaning • A person abets the doing of a thing when• (1) he instigates any person to do that thing; or • (2) engages with one or more other persons in any conspiracy for the doing of that thing; or • (3) intentionally aids, by act or illegal omission, the doing of that thing,

three strategies • Broadly it can be said that the three strategies of committing the crime of Abetment are by • Instigating • Engaging • Intentional Aiding

Instigating • Instigating someone literally means to incite, provoke, urge or bring about by persuasion to do anything. • The word ‘instigate’ has been interpreted in the case of Sanju v. State of M.P (2002) 5 SCC 371• One might argue that the actus reus and the mens reus do not merge to a single person, therefore, abetment to do a thing should not be an offence. • In abetment by instigation, there has to be some active involvement of the abettor towards the preparatory phase of the crime. • This is broadly considered as the actus reus in the crime of abetment, combined with the intention of getting something done or illegally omitted would constitute a complete criminal offence. • However, there needs to be sufficient proof that the individual has willfully influenced and coerced the individual to commit a crime but at the same time, it is not necessary for the person abetted to have the same guilty intention or knowledge.

Instigating • The person abetted can totally have a different set of intention and knowledge, still, the offence is committed because the preparatory phase is being dealt with in isolation to the execution phase. The entire liability of the abettor is decided within the first two stages of the crime. • Now even if the execution gets a different result, the crime has been committed. Advice amounts to instigation only when intended to actively suggest or stimulate the commission of an offence. Mere acquiescence does not amount to instigation.

Commission of the offence is not necessary for the first two clauses of Section 107

• Commission of the offence is not necessary for the first two clauses of Section 107 • Faguna Kanto v. State of Assam, AIR 1959 SC 673-It is immaterial whether the person instigated goes ahead to commit the crime or a group conspiring together executes the object of the conspiracy. • Jamuna Singh v. State of Bihar, AIR 1967 SC 553When the alleged abettor has instigated another or engaged with another in a conspiracy to commit an offence, it is not necessary for the offence of abetment that the act abetted must be committed.

Mere verbal permission or silent assent would not constitute instigation • If A tells B that he intends to loot a bank C, B says do as you like, A succeeds in looting the bank C, here B cannot be said to have instigated.

Willful misrepresentation or Concealment is sufficient to constitute abetment

• A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C

Direct or Indirect Instigation • Where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. • The instigation would be indirect when instead of such an order a person raises a slogan “Cowards die many times before their death, the valiant die but once” will intend to provoke. This is direct instigation whereas indirect instigation would be A instigating B to commit a crime not by saying so but by harping upon the wrongs he has suffered.

Abetment By Engaging in a Conspiracy

• Engaging-Means being actively involved in the suggestion or stimulation of the commission of the crime such as in a conspiracy. • The sections 120A and 107 of the Indian Penal Code dealing with the offences of conspiracy have clearly stated the difference between the two.

Ingredients of Abetment by Conspiracy • A conspiracy between two or more person. • An act or illegal omission may take place in furtherance of that conspiracy. • The case of Noor Mohammad Momin v. State of Maharashtra AIR 1971 SC 885 shows the difference between criminal conspiracy and abetment by conspiracy. Criminal conspiracy has a wider jurisdiction than abetment by a conspiracy. • An individual is guilty of conspiracy with the mere agreement between a group of people to commit an offence.

Abetment by Conspiracy • Under chapter-V of IPC a mere combination of person or agreement is not enough, an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them. • Explanation 2 of Section 107 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It would be sufficient if he engages in the conspiracy in pursuance of which the

offence is committed.

107 vs. 120-A IPC • It has been held in State Of Bihar vs Srilal Kejriwal And Ors AIR 1960 Pat 459 that where a criminal conspiracy amounts to an abetment under Section 107, it is unnecessary to invoke the provisions of Section 120A and 120B, as the Indian Penal Code makes specific provision for the punishment of such a conspiracy.

• A, a servant enters into an agreement with thieves to keep the door of his master’s house open in the night so that they might commit theft. A, according to the agreed plan keeps the doors open and the thieves take away the master’s property. A is guilty of abetment by the conspiracy for the offence of theft. But should the thieves not come; A will not be liable under this section.

Intentional Aiding • A person is said to abet the commission of an offence if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not sufficient. • 1. 2. 3.

Ingredients Doing an act that directly assists the commission of the crime, or Illegal omission of a duty you are bound to do, or Doing any act facilitates the commission of a crime.

• For instance, two factory workers begin quarrelling and the owner in a fit of anger shouts that if he had a weapon he would teach them a lesson. Now, if another labourer in the factory on hearing this hands him a weapon and the owner subsequently injures them with it, the labourer who supplied the weapon which facilitated the act is guilty of abetment through assistance.

Merely being present at the crime scene does not amount to aiding

• Unless the intention was to have an effect by being present or the person was aware that an offence is about to be committed or he actively supports or holds some position, rank in committing of the offence.

Abetment to Suicide Cases • Section 306, IPC reads as if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine. • The definition of abetment in section 306 needs to conform with the definition given under section 107 of the IPC. • If A persuades B to kill himself and he does it, then according to this section, A would be liable as an abettor.

Recent Developments • M. Mohan v. State 2011(3) SCC 626 - Proving the direct involvement by the accused in such abetment to suicide cases is necessary. • However, abetment of suicide is a long mental process and rarely easy to prove. A conviction cannot be handed over under 306 unless clear mens rea is proved. The elements that need to be satisfied in order for an offence to come under section 306 IPC are suicidal death, and abetment thereof held in Sangarabonia Sreenu v. State of Andhra Pradesh AIR 1997 SC 3233

Recent Developments • Let us look at some of the recent developments regarding Abetment to Suicide which put forth the ingredients of the offence as well. • Clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC • Channu v. State of Chattisgarh, 2017 SCC OnLine Chh. 1234 -Merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide. • Gurucharan Singh v. State of Punjab, 2016 SCC OnLine SC 1415-In order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence.

Scheme of Sections • Sec. 107 defines the word Abetment. • Sec. 108 defines Abettor. • Sec. 108-A provides for abetment in India of offences committed outside India. • Sec. 109 is the first penal provision under the code. It is residuary. It provides for punishment for such of the successful abetments which as not punishable under any other section of the code. • Sec.110-120 provide for specific cases of abetment.

• These all sections are only amplification of Sec. 107 & Sec. 108

Section 108 • Who is an Abettor?

Abettor: • The first thing which comes to mind about this section is why at all a definition of ‘abettor’ because the Indian Penal Code gives definitions of various crimes only and the definitions of perpetrators of those crimes are not needed. • For instance, definitions of theft, murder etc. are given but definitions of theft, murderer, etc. are not needed because one who commits theft is a thief or one who commits murder is a murderer, and so on.

Abettor • Therefore, when definition of abetment has been given where is the need to define abettor because one who abets should be an abettor. • At the outset, therefore, it seems that a definition of ‘abettor’ should be unnecessary. • But a careful reading of section 107 leads to the conclusion that such is not the case. • The reason is that section 107 defines ‘abetment of a thing’ and not ‘abetment of an offence’

Why A Separate Definition ? • There may be many abetments of things which cannot lead to criminal liability because criminal liability accrues only when a crime is committed and all abetments of things can obviously not be abetments of crimes. • Therefore, whenever an abetment of a thing will lead to criminal liability had to be stated. • What kind of abetment will bear liability has been done with incorporating the definition of ‘abettor’ who is criminally liable. • That is the reason as to why a separate definition of ‘abettor’ had to be given in the form of a separate section 108.

two ways • There can be two ways by which a person can become an abettor according to this section • firstly, when he abets the commission of an offence, or • secondly, when he abets the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 1 • According to the first explanation the abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. For instance, a husband is legally bound to provide food to his wife. He fails to do so and, therefore, it is an illegal omission on his part. If a person abets the husband for committing such illegal omission, he is liable as an abettor even though he, not being the husband of that woman, is not bound to provide food to her. • Similarly, a public servant has certain duty to perform. He makes a breach of the same which naturally is an illegal omission on his part. Where a person abets him to commit such an illegal omission, he becomes liable as an abettor even though not being a public servant he is not bound to do that act.

Explanation 2 • The second explanation states that to constitute the offence of abetment it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused. This explanation shows that the effect of an abetment is immaterial. In other words, abetment in itself is a crime. The two illustrations given under this explanation explain the point clearly.

Explanation 3 • According to the third explanation it is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention of knowledge as that of the abettor, or any guilty intention or knowledge. The legal status of the person abetted has no bearing on the liability of the abettor. • Therefore, even if the person abetted is incapable by law of committing an offence, the abettor is liable for the abetment of the offence. Similarly, it is not necessary that the abettor and the person abetted must have same guilty intention or knowledge, or the person abetted may have any guilty intention or knowledge at all. For instance, the person abetted may not be guilty at all for the act he does in furtherance of the abetment because some defence like mistake of fact, unsoundness of mind or infancy etc. is available to him, but that does not change the liability of the abettor. The four illustrations under this explanation explain the point clearly but they are not meant to be exhaustive.

Explanation 4 • This explanation says that the abetment of an offence being an offence, the abetment of such an abetment is also an offence. Since it is not necessary that the offence abetted must be committed before the abettor can be held guilty of abetment, it is clear that abetment is an offence by itself. Therefore, it is an offence like any other offence such as murder, theft etc., and since abetment of an offence is an offence, abetment of such an abetment is also an offence. • Where A instigated B, a bench clerk in a court of a presidency magistrate, to instigate the magistrate to accept a bribe with a view to a acquit an accused in a case before him, and В received the gratification as a police-spy with the intention of getting A arrested; and did in fact instigate as a policy-spy with the money, it was held that A was guilty of abetment of an offence under section 161 read with section 116 of the Code.

Explanation 5 • This fifth explanation is applicable only to the offence of abetment by conspiracy. It states that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. The explanation emphasises that for abetment by conspiracy the important thing is engagement between persons and not concert between them. • The illustration very aptly points out as to what is meant by engagement. In it С procures the poison and delivers it to В with full knowledge that the same would be used for an unlawful purpose. Even though С does not know the full details to be liable for the offence of criminal conspiracy, he is liable for abetment by conspiracy to murder as he has sufficiently engaged himself in this crime.

Is attempt of abetment of an offence possible? • Since abetment of an offence is an offence, an attempt of abetment of an offence is also possible. • For instance, A instigates В by a letter to commit murder of X. The letter never reaches B, or if it does reach В but В does not read it. A is guilty of attempt to commit abetment of murder. • Similarly, A instigates В by telephone to commit murder of X” but the telephone becomes dead at B’s side without A knowing about it, A is guilty of attempt to commit abetment of murder. • Yet again, if A instigates B, a deaf person, to commit murder of X without A knowing that В cannot hear, A is guilty of attempt to commit abetment of murder. • In R v Ransford (1874) 13 Cox 9, the accused wrote a letter to X to commit a crime. X did not read the letter. The accused was held guilty of attempting to incite X to commit the crime.

Object 







The provisions of Section 120-A and 120-B, of The I.P.C have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence. The object with which this provision of law was brought to the statue books was to stuck down the intentions and plans to commit crimes. The intention behind the provision was to provide deterrence to persons agreeing or planning to commit offence. Criminal conspiracy therefore is an independent offence. It is punishable separately.

Meaning : 

A criminal conspiracy may be termed as a partnership in crime inasmuch as any act done by any of the conspirators pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefore

Section 120A in The Indian Penal Code Definition of criminal conspiracy.— 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:  Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.  Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 

The Explanation to 120 A The explanation provided under this section states that it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.  In other words, the conspirators are guilty of criminal conspiracy whether the illegal act is the ultimate object of the agreement or it is merely incidental to the object of the agreement. 

act besides the agreement 

in cases of agreement to commit an act which is prohibited by law, or an act which furnishes ground for a civil action, some act besides the agreement must be done by one or more parties to such agreement in pursuance thereof, and only then will the conspirators be held guilty of criminal conspiracy.

For example, 



if the agreement is to commit murder, the conspirators are guilty of criminal conspiracy whether they do something or not in pursuance of the agreement. But if the agreement is to commit a breach of a duty, or the agreement is to effectuate a breach of contract/tort between two persons which furnishes ground for a civil action, agreement alone will not make the conspirators guilty of criminal conspiracy, and in such a case some act besides the agreement, also known as overt act, is required to be done in pursuance thereof to make the conspirators guilty for the offence of criminal conspiracy.

Scope 

The punishment for a criminal conspiracy is more severe if the agreement is one to commit a serious offence, it is less severe if the agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years.



Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime.

Offence of Conspiracy how proved : There is no difference between the mode of proof of the offence of conspiracy and that of any other offence,  it can be established by direct or circumstantial evidence 

State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru, MANU/SC/0465/2005 Parliament House Attack Case  

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There cannot always be much direct evidence about conspiracy, Offence of conspiracy can be proved by either direct or circumstantial evidence. However, conspiracies are not hatched in the open, by their nature, they are secretly planned. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is therefore seldom available. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objections set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all that is necessarily a matter of inference. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.

State of J & K Vs. Wasim Ahmed Malik MANU/SC/0696/2015 

it was observed by Hon'ble Supreme Court that Confession by an accused is substantive piece of evidence against the conspirator also, but for using it against the co-accused i.e. the conspirator, the rule of prudence would require the Court not to rely thereon unless corroborated generally by other evidence on record.

Please noteThis means that out of the three kinds of agreement as mentioned above,  the first kind has been given a different treatment than the other two kinds,  that is to say, that agreement to commit an offence, will be treated differently than agreement to commit an act which is prohibited by law or agreement to commit an act which furnishes ground for a civil action.  In case of an agreement to commit an offence mere agreement makes the conspirators guilty and no act in pursuance of the agreement need be done. 

Sections 34 and 120-A Sections 34 and 120-A of the Code lay down different principles of law and there is substantial difference between the two.  The former lays down a principle when a crime is committed by several persons in furtherance of common intention of all, while in the latter the liability is based on agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal, by illegal means. 

Abetment by conspiracy and criminal conspiracy

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Under the second clause of section 107 a person commits abetment by conspiracy. In criminal conspiracy, there had to be an agreement between two or more persons to do an illegal act. The basis of liability of abetment by conspiracy is ‘engagement’ whereas that for criminal conspiracy is ‘agreement’ between two or more persons. ‘Engagement’ may exist even if the more important details of a conspiracy are not known as is clear from the fifth explanation of section 108, but ‘agreement’ presupposes that at least the more important details of a conspiracy are known to the conspirators. Again, in abetment by conspiracy an act must take place in pursuance of the conspiracy and in order to the doing of the thing, whereas an agreement to commit an offence in case of criminal conspiracy does not require anything to be done in pursuance of the conspiracy and mere agreement to commit an offence makes one guilty even if nothing is done in addition.

CULPABLE HOMICIDE & MURDER

DECIDED CASE • Ruliram v. State of Haryana 2002 Cr LJ 4337 (SC) “An accused threw in water two young boys playing by the side of a pond because of a family members refused to vote in favor of the candidate of the accused. The intention of the accused was not to kill those boys but to create some sort of disturbance to divert the attention at the polling booth in order to capture it”.

HELD : - Act was likely to cause death and punished under Section 304, Part II

R v.GOVINDA (1876) 1 Bom. 342 Accused 18 years old (Husband) Deceased 15 years old (Wife) Accused gave blow on her body Accused put his knee on her chest and few more blows on her face Trial Court convicted him for murder Difference of opinion amongst judges Referred the matter to the third judge HELD:- Culpable homicide under 299(2) and was convicted under 304 Part I

DECIDED CASE Namdeo v. State of Maharashtra 2007 Cr LJ 1819 (SC) The accused believed that Nanaji (deceased) was involved in a witch craft which in turn caused death of the cattle animals of village. On 25thnight of October 2000 the accused was seen stabbing the deceased with axe blow which resulted in death. HELD:- Murder and sentenced under Section 304 Part II

GRAVE AND SUDDEN PROVOCATION

K.M Nanavati v. State of Bombay AIR 1962 SC 605

Navy Officer married with children Wife confessing her relation with another man Hearing this there was no reaction by thehusband He dropped his wife and children to a cinema hall Went to his ship and took his revolver Went to the accused after span of three hours and shot him HELD:- Murder and was sentenced to LIP

RIGHT OF PRIVATE DEFENCE Bhagwan Swarup v. State of M.P. AIR 1992 SC 675 Accused opened fire to rescue his father who was beaten up by lathis The bullet hit a person who was wielding a lathi resulting his death HELD:- Justified action of the accused and sentenced him under Section 304

ACT OF PUBLIC SERVANT • Dakhi Singh v. State of U.P AIR 1955 All. 379 • Accused a constable was taking a suspected thief by train • Thief tried to escape from running train • Constable chased him and fired at him • The bullet missed the suspected thief and hit another person • HELD:- Guilty for Culpable homicide not for murder

SUDDEN FIGHT DECIDED CASE • Muthu v. State of T.N. AIR 2008 SC 1. – Deceased threw garbage into accused shop – Fight started between them – Accused took a knife and stabbed on the deceased chest which resulted in death – Trial Court and High Court sentenced him for murder

• HELD:- The SC convicted him under 304 Part II

DEATH CAUSED BY CONSENT • Dashrat Paswan v. State of Bihar AIR 1985 PAT. 190 • Accused failed in x class exam and decided to die • The wife of the accused told him to kill her first and then die • The accused on the request of wife killed her and he tried to kill himself • He was arrested before he could kill himself • HELD:- Convicted under 304 Part I

Latest Law • Surain Singh Vs State of Punjab, April 2017 • Supreme Court explained the differences between two exceptions of Murder under Section 302 IPC • A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must must necessarily depend upon the proved facts of each case • Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning • A “Sudden Fight” Implies Mutual Provocation And Blows On Each Side: SC Explains...

Theft (Sec. 378 IPC)

Meaning • Theft is an offence in which moveable property of a person is taken away without his consent. • Such property must be taken away dishonesty. Thus in theft there would be a moveable property. • It should be taken dishonestly and without the consent of the possessor(may or may not be owner). Theft has been defined in Section 378 of IPC. • Simultaneously the punishment for the commitment of act of theft has also been prescribed in Section 379 of IPC.

DEFINITION OF THEFT U/S 378 OF IPC Section 378 IPC-

Whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft.

INGREDIENTS OF THEFT Based on this definition, the following are the essential constituents of Theft 1. Dishonest intention to take property 2. Property must be movable 3. Property must be taken out of possession of another 4. Property must be taken without consent 5. Physical movement of the property is must

Dishonest intention to take property • There must be dishonest intention on the part of the offender. • As defined in Section 24 of IPC, dishonestly means that there must be a wrongful loss to one or wrongful gain to another. • For example, A quietly takes money from B's purse for his spending. Here, A causes wrongful loss to B and is thus guilty of theft. • However, if the intention of the offender is not to cause a wrongful loss or wrongful gain, he does not commit theft even if he takes the property without consent. • For example, A gives his watch to B for repairing. B takes the watch to his shop. A, who does not owe any debt to B for which B has the right to retain the watch, follows B and forcibly takes back the watch. Here, A does not commit theft because he has no dishonest intention. • Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it from B, it is not theft.

Cases• In K. N. Mehra v. State of Rajasthan AIR 1957 SC 369, SC held that proof of intention to cause permanent deprivation of property to the owner, or to obtain a personal gain is not necessary for the purpose of establishing dishonest intention. • Thus, In Pyarelal Bhargava vs State AIR 1963 SC 1094, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.

Property must be movable

• An immovable property cannot be stolen or moved from the possession so a theft cannot happen in respect of an immovable property. • However, as per Explanation 1 of section 378, as long as a thing is attached to earth, not being movable, is not subject of theft. However, as soon as it is severed from the earth, it is capable of being the subject of theft. • Further, Explanation 2 says that a moving affected by the same act that causes severance, may be theft. For example, a tree on A's land is not capable of being the subject of theft. However, if B, with an intention to take the tree, cuts the tree, he commits theft as soon as the tree is severed from the earth. • In White's case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.

Property must be taken out of possession of another

• The property must be in possession of someone. • A property that is not in possession of anybody cannot be a subject of theft. For example, wild dogs cannot be a subject of theft and so if someone takes a wild dog, it will not be theft. It is not important whether the person who possess the thing is the rightful owner of that thing or not. If the thing is moved out of mere possession of someone, it will be theft. • For example, A, a coin collector, steals some coins from B, a fellow coin collector. A finds out that they were his coins that were stolen earlier. Here, even though B was not the rightful owner of the coins, he was still in possession of them and so A is guilty of theft. • In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the agreement that in case of default B has the right to take back the possession of the bus. A defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It was held that the C was the employee of A and thus, the bus was in possession of A. Therefore, taking the bus out of his possession was theft.

Property must be taken without consent • In order to constitute theft, property must be taken without the consent of person possessing it. • As per Explanation 5, consent can be express or implied. For example, A, a good friend of B, goes to B's library and takes a book without express consent of B, with the intention of reading it and returning it. Here, A might have conceived that he had B's implied consent to take the book and so he is not guilty of theft. • Similarly, when A asks for charity from B's wife, and when she gives A some clothes belonging to B, A may conceive that she has the authority to give B's clothes and so A is not guilty of theft. • In Chandler's case, 1913, A and B were both servants of C. A suggested B to rob C's store. B agreed to this and procured keys to the store and gave them to A, who then made duplicate copies. At the time of the robbery, they were caught because B had already informed C and to catch A red handed, C had allowed B to accompany A on the theft. Here, B had the consent of C to move C's things but A did not and so A was held guilty of theft.

Physical movement of the property is must • The property must be physically moved. It is not necessary that it must be moved directly. • As per Explanation 3, moving the support or obstacle that keeps the property from moving is also theft. For example, removing the pegs to which bullocks are tied, is theft. • Further, as per Explanation 4, causing an animal to move, is also considered as moving the things that move in consequence. For example, A moves the bullock cart carrying a box of treasure. Here, A is guilty of moving the box of treasure. • In Bishaki's case 1917, the accused cut the string that tied the necklace in the neck of a woman, because of which the necklace fell. It was held that he caused sufficient movement of the property as needed for theft.

Theft of one's own property •

As per the definition of theft given in section 378, it is not the ownership but the possession of the property that is important. A person may be a legal owner of a property but if that property is in possession, legally valid or invalid, of another, it is possible for the owner to commit theft of his own property. • This is explained in illustration j of section 378 - A gives his watch to B for repairs. B repairs the watch but A does not pay the repairing charges, because of which B does not return the watch as a security. A forcibly takes his watch from B. Here, A is guilty of theft of his own watch. • Further, in illustration k, A pawns his watch to B. He takes it out of B's possession, having not payed to B what he borrowed by pawning it, without B's consent. Thus, he commits theft of his own property in as much as he takes it dishonestly. • In Rama's Case 1956, (State vs Rama AIR 1956 Raj 190) a person's cattle was attached by the court and entrusted with another. He took the cattle out of the trustee's possession without recourse of the court. He was held guilty of theft.

Extortion (Sec.383 IPC)

Section 383 of IPC • According to Section 383 of IPCWhoever intentionally puts any person in fear of any injury* to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property* or valuable security or anything signed or sealed, which may be converted into a valuable security, commits extortion.

Ingredients of Extortion The following are the constituents of extortion – 1. Intentionally puts any person in fear of injury* 2. Dishonestly induces a person so put in fear to deliver to any person any property*

Injury* Defined in Section 44 of The Indian Penal Code:

“Injury”.—The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

important- injury to that person, or to any

other person

Property • any property , • valuable security*(Sec 30 IPC) or • anything signed or sealed which may be converted into valuable security .

For example• A threatens to publish a defamatory libel about B unless B gives him money. A has committed extortion. • A threatens B that he will keep B's child in wrongful confinement, unless B will sign and deliver to A, a promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A has committed extortion.

1. Intentionally puts any person in fear of injury

• To be an offence under this section, putting a person in fear of injury intentionally is a must. The fear of injury must be such that is capable of unsettling the mind of the person threatened and cause him to part with his property.

• So fear must precede the delivery of property

1. Intentionally puts any person in fear of injury • Thus, it should take away the element of freeness and voluntariness from his consent. The truth of the threat under this section is immaterial. • For example, A's child is missing and B, who does not have A's child, threatens A that he will kill A's child unless A pay's him 1 lac Rs., will amount to extortion.

Case Laws • In Walton's case 1863, the accused threatened to expose a clergyman, who had criminal intercourse with a woman of ill repute, unless the clergyman paid certain amount to him. He was held guilty of extortion. • However, in Nizamuddin's case 1923, a refusal by A to perform marriage and to enter it in the register unless he is paid Rs 5, was not held to be extortion.

2.Dishonestly induces a person so put in fear to •

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deliver to any person any property The second critical element of extortion is that the person who has been put to fear, must deliver his property to any person. Dishonest inducement means that the person would not have otherwise agreed to part with his property and such parting causes him a wrongful loss. Further, the property must be delivered by the person who is threatened. Though, it is not necessary to deliver the property to the person threatening.

2. Dishonestly induces a person so put in fear to deliver to any person any property • For example, if A threatens B to deliver property to C, which B does, A will be guilty of extortion. • The delivery of the property by the person threatened is necessary. The offence of extortion is not complete until delivery of the property by the person put in fear is done.

Dishonestly induces a person so put in fear to deliver to any person any property • Extortion can also happen in respect of valuable security or anything signed that can become a valuable security. • For example, A threatens B to sign a promissory note without the amount or date filled in. This is extortion because the note can be converted to valuable security.

Case Laws • Duleelooddeen Sheikh's case 1866, where a person offers no resistance to the carrying off of his property on account of fear and does not himself deliver it, it was held not to be extortion but robbery.

• In Romesh Chandra Arora's case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.

Case Laws • In R S Nayak vs. A R Antuley and another AIR 1986, it was held that for extortion, fear or threat must be used. • In this case, chief minister A R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for consideration, to donate money and promised to look into their cases. It was held that there was no fear of injury or threat and so it was not extortion.

Difference between Theft & Extortion

Extortion Theft 1. The property is taken by 1. The property is delivered to the offender the offender without by consent although the consent. consent is not free. 2. There is an element of 2. There is no element of threat or instilment of threat. fear because of which the consent is given. 3. Only movable property 3. Any kind of property can is subject to theft. be subjected to extortion. 4. Offender takes the 4. Property is delivered to property himself. offender.

Robbery (S.390) &

Dacoity (S.391)

Robbery (S.390) &

Dacoity (S.391)

• Robbery is a severe form of either – 1. theft or 2. extortion • In certain circumstances1. a theft or 2. an extortion aggravates to robbery.

Robbery

Section 390 –In all robbery there is either theft or extortion. • So every robbery is, primarily, either theft or extortion. • Robbery is an aggravated form of theft or extortion.

When theft is robbery ? Section 390: Part-I:"Theft is robbery, if: 1. a) In order to the committing of the theft; or b) In committing the theft; or c) In carrying away or attempting to carry away property obtained by theft. 2. The offender for that end, 3. Voluntarily causes or attempts to cause to any person - Death or hurt or wrongful restraint, or - fear of instant death or fear of instant hurt or fear of instant wrongful restraint. - hurt includes both simple hurt and grievous hurt.

For example A holds Z down, and fraudulently takes Z's money from Z's clothes, without Z's consent. A has committed theft and in order to commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed robbery.

When theft is robbery ? • Robbery can be committed even after the theft is committed if in order to carrying away the property acquired after theft, death, hurt, or wrongful restraint or an instant fear of them is caused. • The expression "for that end" implies that death, hurt, or wrongful restraint or an instant fear of them is caused directly to complete the act of theft or carrying away the property. • In Hushrut Sheik's case 1866, C and D were stealing mangoes from tree and were surprised by B. C knocked down B and B became senseless. It was held to be a case of robbery.

Case Laws • Further, the action causing death, hurt, or wrongful restraint or an instant fear of them must be voluntary. • Thus, in Edward's case 1843, a person, while cutting a string tied to a basket accidentally cut the wrist of the owner who tried to seize it. He was held guilty of only theft.

When extortion is robbery ? Section- 390: Part-II: "Extortion is robbery, if : 1. The offender, at the time of committing the extortion, is in the presence* of the person put in fear; and 2. Commits the extortion by putting in fear of instant death, or instant hurt or of instant wrongful restraint and to that person or to some other person. 3. By so putting in fear, induces the person to deliver up then and there the things extorted. (explanation)-*Present means-the offender is said to be present which is sufficiently near to put the other person in fear of instant death, instant hurt or instant wrongful restraint.

In presence of the person • The offender must be present where a person is put in fear of injury to commit the offence of robbery. • By present, it means that the person should be sufficiently near to cause the fear. By his presence, the offender is capable of carrying out his threat immediately.

• Thus the person put in such fear delivers the property in order to avoid the danger of instant death, hurt or wrongful restraint.

For example •

A meets Z on high road, shows a pistol, and demands Z's purse. Z in consequence surrenders his purse. Here, A has extorted the purse from Z by putting him in fear of instant hurt and being present at the time of committing the extortion in his presence, A has committed robbery.

In another example, • A meets Z and Z's child on the high road. A takes the child and threatens to kill the child, unless Z delivers his purse. Z in consequence, delivers the purse. Here, A has extorted the purse from Z by causing Z to be in fear of instant death of his child who is present there. Thus, A has committed robbery.

Examples • For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint is must. • Thus, when A obtains property from Z by saying, "Your child is with my gang and will be put to death unless you send us ten lac rupees", this is extortion but not robbery because the person is not put in fear of instant death of his child.

Case Law In Shikandar vs State 1984, the accused attacked his victim by knife many times and succeeded in acquiring the ear rings and key from her. He was held guilty of robbery.

Punishment for Robbery Section- 392: • Rigorous Imprisonment up to 10 yrs and also fine • If robbery committed at night (after sunset and before sunrise) on the highway- Rigorous imprisonment up to 14yrs and also fine.

Dacoity - Section- 391 • Section 391 - When five or more persons conjointly commit or attempt to commit 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.

Conjointly • Conjointly implies a collective effort to commit or attempting to commit the action. • It is not necessary that all the persons must be at the same place but they should be united in their efforts with respect to the offence. • Thus, persons who are aiding the offence are also counted and all are guilty of dacoity.

Conjointly • It is necessary that all the persons involved must have common intention to commit the robbery. • Thus, dacoity is different from robbery only in the respect of number of people committing it and is treated separately because it is considered to be a more grave crime.

Whether less than five persons may be convicted of Dacoity?

Whether less than five persons may be convicted of Dacoity : Case Laws • Lingayya’s Case, 1958, A.P.: Where there were only five named accused who committed the dacoity and out of five two were acquitted holding that only three took part in the offence, it was held that the remaining three could not be convicted of dacoity, as the offence of dacoity could not be committed by less than five persons.

Ghamandi’s Case, 1970: • Where in spite of the acquittal of a number of persons, it is found as a fact that along with the persons convicted there were other unidentified persons who participated in the offence, bringing the total number of participants to five or more, it was held that the conviction of the identified persons, though less than five, was perfectly correct.

• Because it was established that total accused were 5 or more but only less then 5 could be caught, they can be convicted. Conviction is not bad.

Ram Chand's case 1932, • it was held that the resistance of the victim is not necessary. The victims, seeing a large number of offenders, did not resist and no force or threat was used but the offenders were still held guilty of dacoity.

Punishment for Dacoity Section- 395: Life imprisonment or rigorous imprisonment up to 10yrs and also fine.

Dishonestly receiving stolen propertySec. 410 & 411 IPC

Object behind such a law • It is a crime to receive any property that you know or believe to be stolen • The crime is separate from theft, robbery, extortion, or dacoity etc. • Receiving stolen property is a crime in order to deter people from aiding or rewarding thieves by buying stolen property, concealing stolen property, and to deter theft in general

What If I Did Not Know That the Property Was Stolen?

• The key factor between receiving and possessing stolen property is the timing of the knowledge that it was stolen. • If the person receiving the property knew it was stolen at the time of acquisition, then the person is guilty of receiving stolen property.

• If the person discovered the property was stolen after accepting it, but still intends to keep it or use it for a dishonest purpose (such as selling it to someone else), then the person is guilty of possessing stolen property.

SECTION 411 IPC states: • Whoever dishonestly receives or retains any stolen property, • knowing or having reason to believe the same to be stolen property, • shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

The essential of the offence u/s 411 : 1. That the property in question was stolen property; 2. That the stolen property was in the possession of the accused; 3. That it was dishonestly received or retained; and 4. The accused knew or had reason to believe that the, property was stolen property.

What is stolen property u/s 410 IPC? • Property, the possession whereof has been transferred by • theft, or • by extortion, or • by robbery, and • property which has been criminally misappropriated or • in respect of which criminal breach of trust has been committed, • is designed as "stolen property".

Re Gaune Vithu Ghode (1942) Cri. Appeal No. 187 of 1942 (Bom.) • In this case it was observed that if a gold necklace is stolen and exchanged for another necklace or melted down and converted into an ingot, • it does not cease to be the same golden necklace that was stolen. • What was stolen was gold in the form of a necklace, and what is produced is the same necklace in the form of an ingot. • So offence u/this section is complete.

Receive or Retain? • The court in order to convict for an offence under section 411 must be satisfied that the property was stolen by some other person to the knowledge of the accused and • there must be some evidence to show this, and • that in relation to the property, the accused either received it dishonestly or having received it honestly he retained it dishonestly

Burden of Proof-Evidence Act • Section 114-Indian Evidence Act 1872-Court may presume existence of certain facts. — • The Court may presume the existence of any fact which it thinks likely to have happened, • regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. • Illustrations: The Court may presume—(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

Dishonest retention & receiving • The dishonest ‘reception’ is different from dishonest ‘retention’. • in dishonest retention, the dishonesty supervenes after the act of acquisition of possession • while in dishonest reception, the dishonesty is contemporaneous with the act of acquisition.

Possession • This second element of the offence is established by the recovery of the stolen articles from the possession of the accused • Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even close proximity to the object • The prosecution has to establish that there is possession of the stolen goods. • The mere fact of the presence of the accused in a house where the stolen goods was found cannot amount to possession.

Trimbak v. State AIR 1954 SC 39 • It was observed that- the field from which the ornaments were recovered is an open one and accessible to all and sundry, • it is difficult to hold positively that the accused was in possession of those articles. • That being so that fact of discovery could not be regarded as conclusive proof that the accused was in possession of those articles.

Receiving or retaining stolen property with knowledge • The accused must have known or must have had reason to ‘believe’ the property to be stolen. • The word ‘believe’ is a much stronger word than ‘suspect’ and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. • It is immaterial whether the receiver knows or not who stole it. • Initial receipt of property may be innocent but its retention becomes dishonest if he continues to possess it even after he comes to know that property is stolen.

Bhanwarlal v. State of Rajasthan(1995) CrLJ 625 (Raj) • The accused purchased 9 kgs silver for a paltry sum deliberately knowing to be stolen property, it could not be said of him that he was a bona fide purchaser. • Silver ingots were recovered at his instance from several persons. • His conviction was held to be sustainable

Nagappa Dhondiba v. State AIR 1980 SC 1753 • it was observed that where stolen ornaments of the deceased which she had been wearing when she was last seen alive are discovered within three days of the murder in pursuance of an information given by the accused and there is no other evidence, the accused can be convicted only under Section 411 and not under Section 302, IPC or Section 394, IPC as there is nothing to connect him with the murder or the robbery.

State of Karnataka v. Abdul Gaffar 2000 CrLJ 4456 (Kant)

• a copper pot with Rs. 200 in it was stolen from a temple, • the presumption was raised against the person in whose possession it was found • Considering the fact that it was stolen from a temple, a fine of Rs. 2000 was imposed under Section 411.

Dishonestly receiving property stolen in the commission of a dacoity Section 412 IPC• Whoever dishonestly receives or retains any stolen property, • the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or • dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, • shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Habitually dealing in stolen property • Section 413 of Indian Penal Code Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ajay Sethi vs State on 30 August, 2017 • Delhi High Court held that• Something more is required to establish that the offender is in the habit of dealing with or receiving stolen property. • Since the offence under Section 413 IPC is inter-related with and is an aggravated form of Section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the habit of dealing with or receiving stolen property. • Therefore, the conviction under Section 413 IPC is based on repeated convictions for offence under Section 411 IPC. • Due to previous conviction, a punishment of different kind is prescribed in Section 413 IPC which the accused is required to undergo.

Ajay Sethi vs State on 30 August, 2017 • Hence, while prosecuting a person for offence under Section 413 IPC, the prosecution has to prove the following factors: • Firstly, the property in question has been stolen from a place. Thus, the prosecution must bring the property within the ambit of Section 410 IPC within the definition of stolen property. • Secondly, the offender has been dealing with or receiving stolen property. • Thirdly, the offender knew or had a reason to believe the property to be stolen. • Fourthly, he has been repeatedly convicted, i.e twice or more than twice, of offence under Section 411 IPC. • It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is habitually dealing with or receiving stolen property and in imposing the punishment as prescribed by Section 413 IPC.

Assisting in concealment of stolen property – Section 414 of IPC • Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Never Receive Stolen Property

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CRIMINAL MISAPPROPRIATION Section 403 IPC

Section 403 IPC Section 403 says that• • • •

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.

Essential Ingredients of the offence • Essential Ingredient of Criminal misappropriation are: i) The property must be a movable one. ii) There should be a dishonest misappropriation or conversion of a property for a person's own use.

Explanations Explanation1: A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Illustration : A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has committed an offence under this section. Explanation 2: A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it. It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it: it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believes that the real owner cannot be found

Dishonestly misappropriates or converts to his own use • There are two things necessary before an offence under section 403, IPC can be established. • Firstly that the property must be misappropriated or converted to the use of the accused, and • secondly that he must misappropriate or convert it dishonestly.

Criminal misappropriation means• Dishonest misappropriation or conversion of movable property • which is already in the possession of the offender. • In the case of criminal misappropriation the offender gets the possession of the movable property innocently • but subsequently uses the property dishonestly for his own benefit.

Conversion to one’s own use • the words ‘converts to his own use’ necessarily connotes the use or dealing with the property in derogation of the rights of the owner. • In other words, it means, dealing with property of another in a way as if it’s his property. The of fender converts to his own use the property which he knows isn’t his own, not believinghimself to be authorized to do so.

For example:

• X, a student, finds a premium watch lying on the floor of his college washroom. He picks it up and puts it in his pocket. Till now, he has not committed any offence. But when he instead of submitting the watch in the college’s lost and found room (so that it may reach its rightful owner), he goes and pawns the watch as he was in urgent need of money. Now, here it can be said that by pawning the watch, the finder is dealing with it, as if the watch was his own property; he thereby converted property belonging to someone else to his own use, and has committed the offence of criminal misappropriation under Section 403, IPC. • His intention was absolutely dishonest, because by doing that act he caused wrongful gain to himself and also wrongful loss to the owner. The essence of Section 403 lies in putting to one’s own use or converting to own use another’s property.

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

Bhagiram Dome v. Abar Dome (1965) Cr LJ 562 • Criminal misappropriation takes place when the possession has been innocently come by, but where, by a subsequent change of intention, or from the knowledge of some new fact with which the party was not previously acquainted, the retaining becomes wrongful and fraudulent

Ram Bais Rai v. Emperor, AIR 1918 Pat 489 • The chief element for a conviction under section 403 is the dishonest misappropriation or conversion to one's own use. • • In the absence of any overt act on the part of the accused no dishonest motive can be imputed to him simply because he has detained certain documents in his custody

Gadgayya v. Guru Siddeshvar,(1897)CrC 919 • Temple property The property of an idol or a temple must be used for the purpose of that idol or temple; • any other use would be a malversation of that property, and if dishonest, would amount to criminal misappropriation

Sham Soondur’s case (1870) • Retention of money paid by mistake Where a money is paid by mistake to a person, and such person, either at the time of receipt or at anytime subsequently, discovers the mistake, and determines to appropriate the money, that person is guilty of criminal misappropriation

DISHONEST MISAPPROPRIATION OF PROPERTY POSSESSED BY DECEASED PERSON AT THE TIME OF HIS DEATH (SEC.404)

• Section 404 deals with dishonest misappropriation of property possessed by deceased person at the time of his death. • Section 404 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 death and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine • and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years.

Object of 404• This section relates to a description of property* needing protection. • The essential ingredient of offence under section 404, was the knowledge on the part of the accused that the property in question as in possession of the deceased person at the time of that person's death and had not since been in the possession of any person legally entitled to such possession. • *There was a controversy relating to interpretation of property explained in subsequent cases.

Dhulji vs Kanchan 1956 CriLJ MP 224 • Section 404 deals with dishonest misappropriation or dishonest conversion of property peculiarly needing protection particularly when the previous owner, who was possessed of it, is dead and the subsequent legal owner has not obtained possession thereof. • The Section prescribes different sentences where the offence is committed by strangers and when the offence is committed by persons who occupy position of confidence. • Thus if the word property in Section 404, I.P.C. is read as movable property it will mean that offence under Section 404, I.P.C. is an aggravated form of an offence under Section 403, I.P.C.It is for this reason that a provision is made by which dishonest misappropriation or conversion under these circumstances is made specially punishable with a higher sentence. • It is clear that in the case of immovable property no such risk is involved except where the immovable property is first demolished and converted into moveable property and thereafter it is dishonestly misappropriated or converted. • It is therefore clear that the word property in Section 404, I.P.C. can mean no other property

Calcutta and Bombay High Courts’ view Both Calcutta and Bombay High Courts have taken the view in• 'Jugdown Sinha v. Queen Empress' 23 Cal 372 (A) • 'Reg v. Girdhar' 6 Bom HCR Cr 33 (B)

that the word property in Section 404, I.P.C. does not include immovable property

'Daud Khan v. Emperor' AIR 1925 All 675 • In 'Daud Khan v. Emperor' AIR 1925 All 675 • Allahabad High Court differed from this view mainly on the ground that the word used in Section 404, I.P.C., is 'Property' and not 'movable property' as in Section 403, I.P.C. • The case law, therefore, is more in favour of the wider meaning being given to the word 'property' in sections where the word is not qualified by any other expression like movable'.

CRIMINAL BREACH OF TRUST (SECTION 405)

S.405 defines Criminal Breach of Trust • whoever, being in any manner entrusted with property, or with any dominion over property• dishonestly misappropriated 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 any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do, commits 'criminal breach of trust'.

Example • A, being executer to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriated them to his own use. • A has committed criminal breach of trust.

Explanation- I & II I-Deductions made for Provident Funds

II-Deductions for Employees State Insurance Fund

Ingredients of the offence(a)The accused must be entrusted with property or dominion over the property; and (b) The person so entrusted (i.e., the accused) must(i) dishonestly misappropriate, or convert to his own use, that property, or (ii) dishonestly use or dispose of that property or willfully suffer any other person to do so in violation of any(1) direction of law, prescribing the mode, in which such trust is to be discharged, or (2) any legal contract made touching the discharge of such trust.

Entrustment of property • As the title to the offence itself suggests, entrustment of property is an essential requirement before any offence under this section takes place. • The language of the section is very wide. The words used are ‘in any manner entrusted with property’. • Entrustment means that the person handing over any property, or on whose behalf that property is handed over to another, must have confidence in the person, taking the property, so as to create a fiduciary relationship between them (K Lakshman Das v K Krishno Murthy, 1981 CLR 60).

Entrustment of property • So, it extends to entrustments of all kinds- whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. • The word entrust implies all cases in which a thing handed over by one person to another for specific purpose. • It not only covers the relationship of a trustee and beneficiary between the complainant and the accused, like master and servant, guardian and ward, and the pledgor and pledgee. • It connotes that the accused holds the property for, and on behalf of another. Hence in all such transactions like that of a consignor and consignee, bailor and bailee and hirer and hiree, there is an element of trust implied in the transaction because in all such relation, the property entrusted to the accused is ‘property of another person’.

‘dominion’ over property • The word ‘dominion’ connotes control over the property. • In Shivnarayan Laxminarayan Joshi vs State Of Maharashtra AIR 1980 SC 439 it was held that a director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same.

Krishan Kumar V UOI AIR 1959 SC 1390 • In Krishan Kumar V UOI AIR 1959 SC 1390 the accurse was employed as an assistant storekeeper in the Central Tractor Organisation (CTO) at Delhi. • Amongst other duties, his duty was the taking of delivery of consignment of goods received by rail for CTO. • The accused has taken delivery of a particular wagonload of iron and steel from Tata Iron and Steel Co, Tatanagar, and the goods were removed from the railway depot but did not reach the CTO. • When questioned, the accused gave a false explanation that the goods had been cleared, but later stated that he had removed the goods to another railway siding, but the goods were not there. • The defence version of the accused was rejected as false. However, the prosecution was unable to establish how exactly the goods were misappropriated and what was the exact use they were put to. • In this context, the Supreme Court held that it was not necessary in every case to prove in what precise manner the accused person had dealt with or appropriated the goods of his master. The question is one of intention and not direct proof of misappropriation.

PUNISHMENT • Section 406 defines punishment i.e.

• Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.

Surendra Prasad Verma v State of Bihar AIR 1973 SC 488

• the accused was in possession of the keys to a safe. • It was held that the accused was liable because he alone had the keys and nobody could have the access to the safe, unless he could establish that he parted with the keys to the safe.

Shiv Sagar Tiwari v Union of India(1996) 6 SCC 558 • In the case of Shiv Sagar Tiwari v Union of India, the apex court levied a fine of 60 lakhs on Mrs. Sheila Kaul, former Union Minister for Housing and Urban Development and former governor of Himachal Pradesh and cancelled the allotment of 52 shops and kiosks (stalls) for arbitrarily, oppressively and un-constitutionally allotting the shops to her relatives, friends and staff members during her tenure as Minister. • The court directed the Government to formulate an allotment policy within two months and complete the process of allotment within four months. • Justice Kuldeep Singh and Justice Hansaria, while imposing the fine said • “Since the properties she was dealing with were Government properties, the government by the people has to be compensated for breach of public trust. Mrs. Kaul should pay for causing pecuniary loss to the exchequer for action in an “oppressive and mala fide manner”, while making shop allotments.

Karanavir v. State of H.P. AIR 2006 SC 2211

• In this case, Supreme Court ruled that once entrustment of money is proved, prosecution need not prove further and it is for the accused to prove how the property entrusted to him was dealt with.

Common Cause, A Registered Society v. Union of India (1996) 2 SCC 752 • In this case, the apex court imposed a fine of Rs 50 lakh on Captain Satish Sharma, former petroleum minister in the P. V. Narsimha Rao’s government for arbitrary exercise of discretionary power of minister in allotment and distribution of petrol pumps and cooking gas agencies; and ordered the central Bureau of Investigation. • To probe into the allotment scam and institute criminal proceedings for committing breach of trust against Captain Satish Sharma for abuse of office during his tenure as minister.

Common Cause, A Registered Society v. Union of India(1996) 2 SCC 752

• The bench consisting of justices Kuldeep Singh and Faizanuddin, setting aside order of allotment of petrol pumps said,• “Not only the relatives of most of the officials working for Captain Satish Sharma but even his own driver and the driver of his additional Private Secretary have been allotted a petrol pump and a gas agency respectively……………. There is nothing on the record to indicate that the Minister kept any criteria in view while making the allotments………….. no criteria was fixed, no guidelines were kept in view, none knew how many petrol pumps were available for allotment, applications were not invite and the allotments of petrol pumps were made in an arbitrary and discriminatory manner.” • The court explained that in a welfare state the Government provides a large number of benefits to the citizens and held:• “A Minister who is the executive head of the department concerned distributed these benefits and largesse (generosity)s. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the peoples’ property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people.”

Cheating Sections 415-420 IPC

Legal Provisions Regarding “Cheating” • • • • •

Sections 415 to 420 IPC explain about cheating. S.415 defines “Cheating”. S.416 explains about “Cheating by personation”. S.417 explains the punishment for cheating. S.418 explains cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. • S.419 explains the punishment for cheating by personation. • S.420 explains cheating and dishonestly inducing delivery of property.

Sec. 415. Cheating: • Section requires deception of any person dishonestly or fraudulently • (a) inducing that person to : (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property or • (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and • which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property • Explanation : A dishonest concealment of facts is a deception within the meaning of this Section.

Illustrations: • A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats. • A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats • A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats. • A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed and thereby dishonestly induces Z to pay money. A cheats.

Ingredients of Cheating: The ingredients of Section 415 are as follows: • The accused must have induced fraudulently or dishonestly a person. • The deceived should be induced to deliver any property to any person or to consent that any person shall retain any property. • If the person deceived, must be intentionally induced by the wrong-doer to do or omit to do anything which he would not do or omit if such deceived person was not so deceived. • The deceived should suffer any damage or harm in body, mind, reputation or property by the deceitful act of the wrong doer. • A dishonest concealment of facts is also treated as a cheating (explanation to section 415).

various ways of cheating • Cheating can be done by various ways. Some of them are given here:• Misrepresentation as to caste- A offence of cheating is deemed to be done if a person is represented as a person of some other caste then the caste to which that person belongs actually (Ratanlal & Dhirajlal, Indian Penal Code, Nagpur. Wadhwa & Co . 2002 at 601). • Making false entries in book of accounts:- if some person make some false entries in books of accounts of some other person or himself to give effect to any debt or its repayment then it would amount to offence of cheating. • Attempt to create false evidence:- If accused gives false evidence regarding some event then he can be held guilt of the offence of cheating as it is taken as to induce the court to believe that event. • Showing False professional qualifications:- if some person gives some false representation with regard to any professional qualification which he actually does not posses the it amounts to cheating.

CHEATING – A CONCEPTUAL ANALYSIS • In cheating, there should be first of all deception. • By means of this deception, a man is deceived or cheated in two ways as indicated in code itself. • In first* case victim is induced to deliver property. This delivery is indeed brought about as the result of fraudulent and dishonest means used by the accused. • In second* part there is no delivery of property, but victim is intentionally induced to do or omit to do anything which he would not do or omit if he was not induced. In short he is induced to do something to his own prejudice.

Main ingredients for the first part. 1.The accused deceived some person. 2.By deception he induced that person. 3. The above inducement was fraudulent and dishonest. 4.The person so induced delivered some property to or consented to the retention of some property by any person.

Main ingredients for the second part 1. The accused deceived some person 2. The accused thereby induced him 3. Such inducement was intentional 4. The person so induced did or omitted to do something

5. Such act or omission caused or was likely to cause damage or harm to the person induced in body, mind, reputation or property.

DECEPTION

• One of the initial ingredients of Cheating which has to be provided to establish the offence of cheating is deception, which must precede and thereby induce the other person to either (a) deliver or retain property ; or (b) to commit the act or omission as referred in sec 415 of the code. • Deceiving can be said as making a person believe what is false or not letting him believe what is true, and either words or actions may represent such deception. • As to what constitutes deception has been held by the courts to be a matter of evidence in each case and dependent upon the facts and circumstance of each case. • But nevertheless it is the first stage of cheating. So it can be said that if the deception is not proved then it becomes hard for the prosecution to prove the offence of cheating

INDUCEMENT • The second essential ingredient of cheating can be said as inducement which leads to either delivery of the property or any act or omission. • Mere deceit is not sufficient to prove the offence of guilt but also its effect on the person is also to be take care of. • Similarly just defrauding or doing something dishonestly does not in itself suffice the offence but also the its after effects has to be seen while framing the charges.

Case Laws • In Chinthamani vs. Dyaneshwar (1974 CrLJ 542 Bombay) case, the accused sold the property to the complainant. • In fact, they said property was already mortgaged to some other person. • The accused concealed the mortgage and registered it in favour of the complainant and received full consideration. • The High Court held that it was a clear cheating offence.

Bhola Nath v. State 1982 Cr. L J 1482 (Delhi) • This case is regard to deception being done by the petitioner regarding the payment of a cheque given by them to complainant for the purpose of inducing them to deliver certain property to the petitioner. • The Cheques given were post dated and were not cleared by the bank for lack of funds in the particular account on which cheques were drawn. • That bank account was opened by the petitioner for that business deal only which clearly shows their intention to deceive the complainant. • The court emphasize on harmonious construction of the various statues to derive the true meaning out of them. Also the matter of jurisdiction was being looked into by the court. • Judgment the question of proving the cheating on the basis of dishonour of cheques was established as the facts clearly said that at no time any effort was done by the accused to pay the necessary amount in the bank to clear the cheque.

Cheating by Personation S. 416 Section 416 lays down that• a person is said to “Cheat by personation” if he cheats by pretending to be some other person, or • by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. • the offence is committed whether the individual personated is a real or imaginary person. Illustrations: • (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation • (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation • In Baboo Khan v. State of Uttar Pradesh (AIR 1961 All 639), the accused misrepresented himself to be a certain well known surgeon and induced the complainant to let him perform an operation on the eye of the complainant’s 12 year old son. The accused was held guilty of cheating by impersonation.

re R.Matameswara Rao, AIR 1957 AP 4. • Usage of someone else’s ticket is a crime

• Using a railway ticket issued in the name of a different person by pretending to be that person is an offence under Section 416 of the IPC.

M.N.A. Aachar vs. Dr. D.L. Raja Gopal (1977 CrLJ 228 Karnataka) • In this case, the accused was already married. • He represented himself to be a bachelor and married with the complainant’s daughter. • The accused was held guilty of offence of cheating by personation and also under Section 494 (Bigamy)

Punishment for Cheating: • Section 417 imposes the punishment for cheating with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 418 • Section 418 provides that whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Punishment for cheating by personation:

• Section 419 imposes punishment for the offence of cheating by personation with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Cheating and dishonestly inducing delivery of property: Section-420

• Section 420 provides• that whoever cheats and thereby dishonestly induces the person deceived • to deliver any property to any person, or • to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or filed, and which is capable of being converted into a valuable security, • shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 420 is an aggravated form of cheating: • In Section 417 a general provision is made defining the cheating. • For the cases in which property is transferred, the specific provision is made in Section 420. • However the offence of cheating of any person by delivery of property is punishable under either of the two Sections. • But where the case appears to be of a serious nature, then the prosecution may be conducted under Section 420.

Mobarik Ali Ahmed vs. the State of Bombay (Air 1957 SC 857) • • •

•

• • • • • • •

Brief Facts: The appellant/Mobarik Ali Ahmed was doing business in the name of “Atlas Industrial and Trading Corporation” and “Ifthiar Ahmed & Co.” in Karachi. The complainant/Luis Antonio Correa was a businessman, doing business in Goa. In the year 1951, there was scarcity of rice in Goa. The complainant contacted the accused/appellant for the supply of 2,000 tons of rice, which was agreed by the accused subject to the condition that 50% of the value payable in advance, before the shipping and remaining after the documents of shipping received. Accordingly the complainant paid Rs. 81,000/ – (on 23-7-1951) Rs. 2,30,000/- (on 288-1951) and Rs. 2,36,900/- (on 29-8-1951) to the appellant/ accused through his agent. The appellant received the above mentioned cash but did not supply the rice. The complainant waited for one year and then initiated criminal proceedings against the four directors of the appellant company, i.e., MobarikAli, Santran, A.A. Rowji and S.A. Rowji. The last three accused absconded. The appellant fled to England. The Indian Authorities made an application to the Metropolitan Magistrate, Bow Street, London, who ordered the arrest of the appellant. He was brought to Bombay and then was tried. The trial Court proceeded against the appellant and found him guilty under Section 420, and imposed penalty and imprisonment for three years and ten months. On appeal Bombay High Court confirmed the conviction. The appellant appealed to the Supreme Court.

Judgment: • The Supreme Court held: “The appellant ceased to be an Indian citizen and was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under IPC notwithstanding he is not being corporeally present in India at that time.” • Principles: • 1. A conviction of an accused person under Sec. 420 would be valid though the charges under Sec. 420 read with Sec. 34 unless prejudice is shown to have occurred. • 2. That all the ingredients necessary for finding the offences of cheating under Sec. 420 read with Sec. 415 occurred at Bombay. In that sense the entire offence was committed at Bombay and not merely the consequence, viz., delivery of money which was one of the ingredients of the offence. • 3. Though the appellant was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under the Penal Code notwithstanding his not being corporeally present in India at the time because on a plain reading of Section. Section 2 of the Penal Code applied to him. • 4. That the fastening of criminal liability on the appellant, who was a foreigner, was not to give any extra-territorial operation to the law, in as much as the exercise of criminal jurisdiction in the case. Where all the ingredients of the offence occurred within the municipal territory was exercise of municipal jurisdiction.

John McIver vs. Emperor (AIR 1936 FB Mad. 353) • Brief Facts: J. McIver (A-1) was a Stock Broker under the name “Huson Tud & Co.” in Madras. K.S. Narasimha Chari (A-2) was an employee of accused-1. A-1 met one Rao Bahadur Boora Lakshmaiah Chetty on 143-1935 representing that their company had entered into a contract with the Imperial Bank of India under which they were under an obligation to sell and to deliver them 6 1/2% interests. 1935 Bombay Development Loan Bonds of the face value of Rs. 3,50,000/- and that the last date was 27-3-1935. Believing the words of A-1, the complainant/Rao Bahadur handed over the cash. • Accused-1 did not hand over the Bonds and postponed under one pretext or the other. The complainant filed a complaint in the Court of the Presidency, Egnore against the accused-1 & 2, under Sec. 403 & 420 of the I.P.C. (Cheating and Criminal Breach of Trust) • The accused compromised with the complainant and as a result he was acquitted from the charges. At this junction the State interfered and appealed to the Madras High Court contending that the Magistrate had no powers to compound the case, when once he issued summons. The accused pleaded “autrefois acquit”, (the accused once acquitted cannot be punished or tried on the same charge). The question of law arose.

Judgment: • The Madras High Court Full Bench gave the judgment in favour of the accused. Principles: • 1. There can be no consent by a person who is cheated and of there is deceit which prevented any true consent arising there could be no entrusting; the terms are mutually exclusive. • 2. The word “entrusted” should be construed as it access in the Section headed “criminal breach of trust”. The notion of a trust in the ordinary sense of that word is that there is a person the transferee or the entrusted, in which confidence is reported by another who commits property to him; and this again supposes that the confidence is freely given. • A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term and Sec. 405 given no sanction to regarding him as a trustee. The essence of the criminal breach of trust is the dishonest conversion of property entrusted, but the act of cheating itself involves a conversion. • Conversion signifies the depriving of the owner of the use and possession of his property. When the cheat afterward sells or consumes or otherwise uses the fruit of his cheating he is not committing an act of conversion for the conversion is already done, but he is furnishing evidence of the fraud he practised to get hold of the property. Therefore, cheating is a complete offence by itself.

Abhayanand Mishra vs. State of Bihar (AIR 1961 SC 1698) • Brief Facts: • The appellant sought the permission of Patna University for appearing M.A. examinations (English) in 1954. He enclosed the attested copies of B.A. Degree and permission letter from the Head Master of the school in which he was working. • Permission was granted by the University. Before commencing the examinations, the University authorities received the information that the appellant did not pass B.A., and was not working as a teacher, and that he was debarred from the University. • They reported the matter to the police, who investigated and filed the charge, sheet against the appellant under Section 420, and 511. The trial Court convicted him. • On appeal the High Court upheld the conviction. He appealed to the Supreme Court contending that an admission card to sit for M.A. examination had no pecuniary value and therefore the provision of Sec. 420 would not be attracted. • Further he contended that he applied to the University for the permission, and it was a mere preparation and it could not be treated as an attempt under Sec. 511.

Judgment: • The Supreme Court dismissed the appeal. It upheld the judgments of the Lower Court and the High Court. Principles: • 1. An admission card to sit for an examination of a University is property within the meaning of Sec. 420. Though the admission card as such has no pecuniary value it has immense value to the candidate for the examination. • 2. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly a culprit first intends to commit the offence, then makes preparation for committing it and therefore, attempts to commit the offence. • If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. • Therefore, attempted to commit the offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence.

Breach of contract & Cheating: Dr.Vimala vs Delhi Administration (AIR1963 SC 1572) • There is a clear distinction between mere breach of contract and the offence of cheating. • It depends upon the intention of the wrong-doer at the time of the inducement and his subsequent conduct. • If at the time of entering into contract one did not intend to perform it, its cheating otherwise not • Mere breach of contract cannot give rise a criminal prosecution under cheating.

Nageshwar Prasad Singh vs. Narayan Singh and others (1998 (5) SCC 694) Brief Facts: • Nageshwar Prasad Singh the appellant herein has certain property in Patna. Narayan Singh and others, the respondents herein, contracted Nageshwar Prasad Singh to purchase a plot for certain consideration. Sale deed was concluded. Narayan Singh paid earnest money to the appellant and agreed to pay the balance at a future date. Nageshwar Prasad handed over the site to Narayan Singh. • Narayan Singh started construction. Narayan Singh filed a civil case for specific performance of the contract in a civil Court against Nageshwar Prasad. Besides it, Narayan Singh being an advocate also filed a cheating case against Nageshwar Prasad alleging that Nageshwar did not fulfil the contract. • Nageshwar Prasad contended that being it was a breach of contract from the respondent Narayan Singh the provisions of Section 420 would not attract in this case. The High Court dismissed his appeal. On appeal, the Supreme Court held that it was purely a breach of contract and the tricks played by Narayan Singh to delay the payment and harass the land owner. It quashed the trial Court’s judgment under Section 420, and also the decision of the High Court’s decision, and ordered Narayan Singh to pay Rs. 10,000/- to the appellant/Nageshwar Prasad for the vexatious proceedings.

Ram Prakash Singh vs. State of Bihar (1998 (1) SCC 173) • Brief Facts: The accused/appellant was a development officer in LIC. • He introduced some false and fake insurance proposals in the name of LIC with a view to earn promotion on the basis of inflated business. • Contents of proposals were in the handwriting of accused. • The trial Court punished the accused under Sections 420. • He appealed to the High Court. • The High Court upheld the conviction. • He appealed to the Supreme Court contending that on the basis of the proposals the policies were not issued and no loss occurred to LIC, and his acts should be treated as preparation. • The Supreme Court held that the accused was rightly convicted by the Courts below.

Mischief S.425 IPC

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S. 425-Mischief • Sec. 425 defines “Mischief-Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". • e.g. A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z A has committed mischief.

Explanation 1. • Explanation 1.-It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. • e.g. if A, a student destroys any mobile phone lying on any bench without knowing to whom it belongs but causes wrongful loss to some person.

Explanation 2 • Explanation 2.-Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. • e.g. A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the insurance co. A has committed mischief. • A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.

Ingredients: •

The accused shall have intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person.

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He caused destruction or damage or changed the shape/situation of the property.

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Due to his acts, the value of the property is decreased

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By doing the wrongful acts of mischief, the accused need not personally benefitted.

Case Laws • In Gopi Naik vs. Somnath (1977 CrLJ 1665 Goa) case, the accused had cut the water pipe connection of the complainant. • The Court held that the accused was guilty of the offence of Mischief, as he had diminished the value of the property, i.e., water supply.

Case Laws • In Arjuna vs. State (AIR 1969 Ori 200) case, the accused damaged the standing crops grown by the complainant. The Court held that the accused was guilty under Sec. 425.

Shriram vs. Thakurdas • In Shriram vs. Thakurdas (1978 CrLJ 715 Bom.) case, the accused was an officer of Municipal Corporation. He gave notices to the complainant/house owner for the unauthorized construction. • After giving notices, the accused demolished the unauthorized construction. The complainant contended that it would attract the offence of “Mischief”. • The Bombay High Court held that it was not an offence, as the accused demolished the unauthorized construction as per law.

Punishment • Punishment for mischief: Section 426 prescribes punishment for mischief. • It says that whoever commits mischief shall punish with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

Different Between Theft and Mischief • When a person commits mischief he only causes loss

to another but does not gain any thing himself. • But in case of theft the offender make dishonest gain at the expense of the victim. • Theft is committed in respect of movable property only whereas , mischief may be committed in respect of both movable and property .

Different Between Theft and Mischief • In Sippattar Singh And Ors. vs Krishna AIR 1957 All 405 case, the accused had cut the sugar cane from the field of the complainant, and taken away it.

• The Court held that the accused was not the guilty of mischief, but he was guilty of theft, because no damage was caused to remaining field of the sugar cane, and the accused moved certain quantity of sugar cane from the field with a dishonest intention to misappropriate it.

Criminal Trespass

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Trespass • Trespass (Transgressio) ordinarily is a civil wrong for which the defendant can sue for damages. • Trespass signifies a passing over or beyond our right, i.e., a transgression or wrongful act. • The object behind making trespass a criminal wrong seems to be to keep the trespasser away from the property of private persons or public property and thereby to enable them to enjoy their property without any interruptions.

Draft Penal Code (Note N.P. 168) • Regarding the object of making criminal trespass an offence: “We have given the name of trespass to every usurpation, however slight, of domination over property. We do not propose to make trespass, as such an offence, except when it is committed in order to commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with light punishment, unless it be attended with aggravating circumstances”. • The essence of the offence of criminal trespass lies in an unauthorized entry or an unlawfully retention of the lawful entry with intention to commit an offence or to intimidate, insult or annoy the person in possession of the property.

Criminal Trespass under section 441 of Indian Penal Code

• Section 441 of the Indian Penal Code states that: “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, • having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ‘criminal trespass’.”

Ingredients Of Criminal Trespass 1. Entry into or upon property in the possession of another; 2. If such entry is lawful, then unlawfully remaining upon such property; 3. Such entry or unlawful remaining must be with intenta) To commit an offence; or b) To intimidate, insult or annoy the person in possession of the property.

‘whoever enters’ means • The words ‘whoever enters’ means that in order to constitute an offence under Section 441, there must be an actual personal entry, but not constructive entry, upon property by the accused. • The entry need not necessarily be by use of force. It is sufficient if the entry is unauthorized and against the will or without the consent of the person in possession of the property.

‘Property’ • ‘Property’ in Section 441 means immovable corporeal property, and not incorporeal property such as a right of fishery or a right of ferry. • • Section 411 uses the term ‘property’ in a wide way to cover both movable and immovable property. The accused should enter into or upon property with the intention stated in the provision, to constitute the offence of criminal trespass. • Hence, there can be criminal trespass to a motor car, aeroplane, railway carriage or a boat.

Possession means here • The possession must be actual possession of some person other than the alleged trespasser. • The offence can only be committed against a person who is in actual physical possession of the property in question. • Section 441 contemplates actual physical possession to the exclusion of all other persons and the object of the provision is to protect possession and not ownership. • • It is not essential that the person who is in possession of the property should be present in the property when the trespass takes place.

‘intent’ means • Entry into property of another with intention to commit an offence or intimidate, insult or annoy the person is the essence of the offence of criminal trespass. • The word ‘intent’ implies ‘aim’ and connotes an ability to carry on an offence with the dominant motive, without which the action would not have been taken. • In order to commit an offence under Section 441, it is not necessary that the person concerned should actually commit an offence, or intimidate or annoy or insult the person in possession upon trespass.

‘intimidate’, ‘annoyance’, ‘Insult’ • The word ‘intimidate’ must be understood in its ordinary sense ‘to overawe, to put in fear, by a show of force or threats of violence. • The word ‘annoyance’ must be taken to mean annoyance that would generally and reasonably affect an ordinary person, not what would specially and exclusively annoy a particular short tempered individual. • ‘Insult’ means ‘speak or act in a way that hurts or is intended to hurt a person’s feelings or dignity’. • It is sufficient that he has the intention to do so. • No overt act is required to complete the offence, though the overt act may sometimes be part of intention.

‘remaining unlawfully after lawful entry’ • The second mode of criminal trespass is ‘remaining unlawfully after lawful entry’. The entry of a person into or upon the property is lawful, but his continuing presence there becomes unlawful. Not only should the continuing presence become unlawful, but it should be with the intent to intimidate, insult or annoy any such person or with intent to commit an offence.

• If a person enters on land to the possession of another in the exercise of a bona fide claim of right but without any intention to intimidate, insult, or annoy the person in possession, or to commit an offence, then although he may have no right to the land, he cannot be convicted of criminal trespass, because the entry was not made with any such intent as constitute the offence. • When a person enters lawfully and if his remaining is unlawful, but not with the requisite intention to commit an offence or to intimidate, insult or annoy the person in possession, then it will not amount to an offence under Section 441.

House-trespass under S.442 IPC

Section 442 House-trespass • Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. • Explanation.—The introduction of any part of the criminal trespasser’s body is entering sufficient to constitute house-trespass.

Difference bet. S. 441 & 442 • The difference between criminal trespass as defined in Section 441 and house-trespass, as defined under Section 442 is that the offence of criminal trespass is committed when a person enters into or upon any ‘property’ of any one with intent to commit an offence or to intimate or to insult or to annoy him,

• while house trespass can only be used as a human dwelling or any place used for worshipping or as a place for the custody of property. The offence of house-trespass must have all the ingredients of a criminal trespass, including the intention to commit an offence, annoy, intimidate or insult the possessor of the property. • In addition to that, the only other essential ingredient required is that the property (building, tent or vessel) entered into or entered upon must be used as a human dwelling or a place of worship or a place for the custody of property.

Meaning of word ‘building’ • Building is defined as a structure intended for affording some sort of protection to the persons dwelling inside it or for the property placed therein for custody. • The mere surrounding of an open space or ground by a wall or fence of any kind cannot be deemed to convert the open space itself into a building and trespass thereon does not amount to house trespass. • To consider a building used as human dwelling, building need not be used as a place of permanent residence. • Hence, school is a building used as human dwelling •

Similarly, a Railway waiting room is also a building used as a human dwelling.

Meaning of lurking house trespass (S.443 of IPC)

S. 443 IPC • Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”.

Meaning of lurking house-trespass: • Lurking house-trespass is an aggravated form of house- trespass. • Lurking house- trespass means that the accused took some active means to conceal his presence. • It requires the accused to have taken some steps to escape notice. • The essential difference between house-trespass and lurking house-trespass is that the person should take some active precautions or effective steps to conceal his identity or presence from the person who has a right to prevent that person from entry or who has a right to throw him out upon entry.

why “exclude or eject” are used •

These two words are used deliberately

• The collocation of the words “exclude or eject” is intended to convey a sense more or less similar, but one word is intended to supplement any defect discovered in the sense conveyed by the other. • Primarily, however, the word ‘exclude’ would suggest unlawfulness of the initial entry, while the word ‘eject’ should apply to the expulsion of a person whose previous possession was not unlawful. • A person having no right to exclude may acquire the right to eject, as in the case of a lessee ejected on breach of condition.

S. 444 Lurking house trespass by night

S.444 Lurking house-trespass by night.—

Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit “lurking house-trespass by night”.

House-breaking (S. 445 of IPC)

House-breaking S. 445 •

A person is said to commit “house-breaking” who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described;

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or if, being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say-

Enters or Quits any of such six ways

• Firstly:- If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. • Secondly:- If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance, or through any passage to which he has obtained access by scaling or climbing over any wall or building, • Thirdly:- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened, • Fourthly:- If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass. • Fifthly:- If he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault. • Sixthly:- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Explanation:-Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.

‘house-breaking’ • The term ‘house-breaking’ implies a forcible entry into a house • ‘to break a house’ used to mean the removal or setting aside with violence and a felonious intent any part of a house or of the fastening provided to secure it. • Section 445 describes six ways in which the offence of house-breaking may be committed. • Clauses 1 to 3 deal with entry which is effected by means of a passage which is not ordinary. • Clauses 4 to 6 deal with entry which is effected by force.

term ‘house’ means • Where a hole was made by burglars in the wall of a house but their way was blocked by the presence of beams on the other side of the wall, it would be considered that the offence committed was one of attempt to commit house-breaking and not actual house-breaking.

• The term ‘house’ in Section 445 has been used in the same sense as a ‘building used as a human dwelling or any building used as a place for worship or as a place for the custody of property within the meaning of Section 442. • The explanation extends the meaning of the term ‘house’ by including therein any out-house or building if it is connected therewith by an immediate internal communication.

Housebreaking by Night S.446 IPC

Section 446:- House-breaking by night • Whoever commits house-breaking after sunset and before sunrise, is said to commit “house-breaking by night”.

Case Laws

Kishore Jain v. State of Delhi 2002 CriLJ 1154 • In Kishore Jain v. State of Delhi, the premises of the petitioner were sealed by the officer of Municipal Corporation in exercise of power envisaged under section 345-A, Delhi Municipal Corporation Act, 1957. • After sealing the de facto control over the property stood transferred to the municipal corporation. • The petitioner made unauthorized construction in the premises after breaking the seal put upon that by the corporation without seeking order of removal of seal. The Delhi High Court held him guilty under section 441 of the Code even though he himself was the owner of the property.

Mathri vs. State of Punjab AIR 1964 SC 986 • In Mathri v State of Punjab , the accused along with others, entered the property with warrants.

• However, at the time they entered the property, the warrants had ceased to be executable in law. • The Supreme Court held that since the accused only entered with the intention of executing the warrant, this act did not constitute the offence of criminal trespass.

Punjab National Bank Ltd v. All India Punjab National Bank Employee’ Federation AIR 1960 SC 160 • In Punjab National Bank Ltd v All India Punjab National Bank Employee’ Federation , the employees went on a strike in which they occupied their seats but refused to work or vacate the premises. The bank contended that the employees’ entry was only lawful on the condition of them working. They also contended that the employees had entered the property with the intention of insulting and annoying their superior officers and hence it amounted to criminal trespass. • The Court held that even if the strikers had knowledge that their strike might annoy their seniors, such knowledge cannot amount to intention. Thus, the acts of the employees did not amount to criminal trespass. • In order to constitute the offence of criminal trespass, it is not necessary that the accused actually commits an offence or actually intimidates, annoys or insults the person in possession of the property. Mere intention to do so will amount to criminal trespass. This intention can be inferred from the circumstances but it must be actual and not a probable one.

Maharashtra v Tanba Sadadhio Kumbi AIR 1964 Bom. 82 • In State of Maharashtra v Tanba Sadadhio Kumbi the accused, the vice chairman of the school committee, entered the school and beat up two boys who had a fight with his nephew.

• On being reprimanded by the headmaster, the accused abused and threatened him. • The Court held that this would be covered by S. 441, IPC. • If the accused enters the property lawfully but subsequently remains on it unlawfully, it would amount to criminal trespass if the above mentioned intention is present.

. No trespassing please

-----Thanks.

Forgery S.463 IPC

Section 463 of the Indian Penal Code  “Whoever makes any false documents or  false electronic record or part of a document or electronic record,  with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

ELEMENTS OF FORGERY The elements of forgery under Section 463 are: 1. The document or electronic record or the part of it must be false in fact; 2. It must have been made dishonestly or fraudulently within the meaning of the words used in Section 464, IPC; and 3. The making of false document or electronic record should be with intent to: a) Cause danger or injury to:(i) the public, or (ii) to any person b) Support any claim or title; or c) Cause any person to part with property; or d) Enter into any express or implied contract; or e) Commit fraud or that fraud may be committed.

term ‘fraud’ • The term ‘fraud’ in Section 463 implies an infringement of someone’s legal right though not necessarily connected with deprivation of property. • Intent to defraud implies (a) an intention to deceive and (b) such deception involving the causing of legal injury. • Unless there is an element of fraud, the making of a false document would not amount to a forgery. • It should be noted that intention to cause injury is not an essential ingredient of the offence of forgery. • As per Section 463, intention to cause damage or injury to the public or person is only one of the five situations. The other situations being: (i) to support any claim or title (ii) cause any person to part with property; (iii) enter into any implied or express contract; or (iv) with intent to commit fraud. • The first component, namely, intention to cause damage is intent complete in itself.

Making a false document (Section 464 of IPC) Section 464 of the Indian Penal Code provides that: “A person is said to make a false document or false electronic record-

Firstly -Who dishonestly or fraudulently(a) Makes, signs, seals or executes a document or part of a document; (b) Makes or transmits any electronic record or part of any electronic record; (c) Affixes any digital signature on any electronic record; (d) Makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other persons, whether such person be living or dead at the time of such alteration; or

Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration”

Explanation-I A man’s signature of his own name may amount to forgery. • Illustration-A signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery.

Explanation 2 The making of a false document in the name of fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. • Illustration: A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.

Explanation 3 • Explanation 3:-For the purposes of this section, the expression “affixing digital signature” shall have the meaning assigned to it in clause (d) of sub-section (1) of Section 2 of the Information Technology Act, 2000.”

false document • According to Section 464, making a false document or false electronic record means creating of a document or an electronic record or part thereof, execution of the document or the electronic record, or signing of the document or the electronic record fraudulently or dishonestly. • A false document is also said to be made when the signature, seal or date is false. • It covers also the cases when the document or electronic record is signed by the accused.

Ways in which a false document can be made: 1. By making, sealing, signing or executing a document or a part thereof, or by making or transmitting any electronic record or a part thereof, or by affixing any digital signature on any electronic record. 2. By alteration of a document or an electronic record; or 3. By causing a person, who is innocent of the contents or nature of the alteration done to a document or an electronic record, to sign, seal or execute. Some illustrations of making false documents are: i) Alteration of birth of dates to deprive other eligible persons; ii) Forged document comprehends creating a new document; iii) Making documents through mechanical means; iv) Additions and alterations to documents.

Words ‘claim’ & ‘defraud’ • The word ‘claim’ is not intended to mean to a claim of property only, it includes claim to the custody of children or wife or a claim to be admitted as a student to any course of study or to any examination. • The offence of forgery requires two things, an intention to defraud and the possibility of some person being defrauded, although there may not be any person who could actually defrauded. • The expression ‘defraud’ involves two elements, namely, deceit and injury to the person deceived. • ‘Injury’ is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include a harm whatever caused to any person in body, mind, reputation or such others. It is noneconomic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived.

‘makes’ means • The word ‘makes’ means creates or brings into existence. Making of a document does not mean writing out of the form of the instrument, but the sealing or signing it as a deed or note. • A false document does not mean the writing of any of words which in themselves are innocent, but the affixing of seal or signature of some person to the document, knowing that the seal or signature is not his and that that he gave no authority to affix it. • Falsity consists in the document, or part of it, being signed or sealed with the name or seal of a person who did not in fact sign or seal it.

• Signing or sealing a document completes its execution. •

Putting a seal to genuine signature to a document which is invalid without a seal is a forgery..

Fraudulent Alteration or cancellation of document • Clause second of Section 464 deals with fraudulent alteration. A fraudulent alteration of a deed, whether it is a deed executed by himself or by another, amounts to the alterations, for instance, as are contemplated in illustrations (a), (b), (c), (d), (e), (f) and (g) given in Section 464 which are also clear instances of forgeries. • The five material elements common to all such cases are:i) Completion of the deed before its alteration; ii) Its alteration; iii) In a material part; iv) The said alteration being made without lawful authority; v) Dishonestly and fraudulently.

Alteration means • The alteration must be made after the deed has been completed, for before a deed is executed, there may be nothing wrong to alter any portion or clause. • However, once a deed or document has been executed, if, it is altered at the instance of the accused, so as to gain some benefit by the alteration for himself or others, and which would affect the rights of the other party, then it would certainly amount to a forgery by alteration. • The alteration has to be of a material aspect of the deed or document. A material alteration is one which alters or attempts to alter the character of the instrument itself, which affects or may affect the contract which the instrument contains or of which it furnished the evidence. •

Any alteration which does not affect the liability of the parties would be deemed to be immaterial as not to wholly vitiate the deed.

Procuring signature of person incompetent or not properly informed

• S.464 Clause 3- deals with the cases where the person making the document is not supposed to know its contents owing to unsoundness of mind or intoxication or deception.

Cases Noor Ahemad vs. Jagadish Chandra Sen (AIR 1934 Cal. 839) • Brief Facts: The accused tampered the electoral rolls. Thus he caused injury to the public. • Voting rights of some of the voters were affected. • He was held guilty under this Section.

Cases • In L.K. Siddappa v. Lalithamma [1954 CrLJ 1235 Mysore) • the accused printed marriage invitation cards and distributed with an intention to defame the complainant. • The accused was convicted of the offence of forgery under Section 463 .

Cases • In G.S. Bansal v. Delhi Administration [AIR 1963 SC 439] • the accused encashed the post office national saving certificates after making necessary endorsements and signature of the deceased. • He also attested them. • It was held that the accused was guilty of the offence of forgery under Section 463.

BIGAMY (Section-494) Marrying again during lifetime of husband or wife:

What is bigamy? • Bigamy is the act of entering into a marriage with someone, while still being legally married to another. • In other words, it is a condition of having two spouses at the same time; a man may have two wives or a woman may have two husbands. Either way when this happens, the second marriage is considered null and void and is therefore annulled. • The person who knowingly enters into the second marriage, that is, the bigamous marriage is guilty of the crime of bigamy. Most often the act of bigamy takes place accidentally. • For instance, if one thinks that their divorce has been finalized, but in reality it isn’t and they go ahead with their second marriage, then the second marriage is considered the bigamous marriage. However, there are some cases where it is done intentionally so as to acquire another’s property and wealth. The person accused of this fraudulent scheme is then prosecuted for bigamy.

Sec.494 of IPC says:

• Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. • Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, • nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Ingredients-Section 494 Ingredients of offence of BigamyFor an offence of bigamy to have been committed the following ingredients are required (i) the accused must have contracted first marriage (ii) he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has taken place) (iv) the first spouse must be living

Exception • In other words, this section is inapplicable to two cases. • First, it does not apply to a person whose marriage with such husband or wife, as the case may be, has been declared void by a competent court. • Secondly, it does not apply to a person who marries when the husband or the wife, as the case may be, is alive but has been continually absent from such person for at least seven years and has not been heard of by him as being alive during that time.

Note• This section does not apply to Mohammedan men. • But it does apply to Mohammedan women. • By virtue of section 17, Hindu Marriage Act, 1955 it does apply to all Hindus whose marriage has been solemnized after the coming into existence of the Hindu Marriage Act, 1955. • It is applicable to Christians by virtue of Act XV of 1872, • to Parsis by virtue of Act III of 1936, and to all whose marriages have been solemnized under the Special Marriage Act, 1954.

Note• The mere admission of the second marriage by an accused is not enough, it must be established that the essential conditions of a valid marriage had been gone through. • Where the complainant produced oral evidence that ‘saptapadi’ and ‘kusundika’ (i.e., applying vermilon at the place of parting of hair on the head of the bride) had been gone through along with ‘homa’ in respect of the first marriage, and certain documentary evidence in the form of letters by the husband to his wife and by the husband’s father to the wife’s mother were also adduced, there could be no doubt as to the validity of the first marriage.

Sarla Mudgal v. Union of India (1995 AIR 1531 SC) In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held that: •If a man after renouncing Hindu religion has adopted Muslim religion and he without taking divorce from his wife has married again, then this marriage is not legal. •He will be punished for committing bigamy under section 494 IPC

•C S. Nagalingam v. Sivagami, (2001) 7 SCC 487. • To prove the offence of Bigamy, the prosecution must prove that the second marriage was valid Kashiram Rajaram Ahir And Ors. vs Sonvati W/O Kashiram Ahir And Anr. 1992 (0) MPLJ 610 in Kashiram v. Sonvati, the High Court observed that previous marriage must be properly proved. If it is not proved properly, the offence of bigamy could not be established.

Note • It is obvious that to hold a person guilty under this section it is necessary to prove that the previous marriage of the accused was valid and subsisting. • Naturally, in the event of the previous marriage being illegal and thus non-existent, contracting another marriage would not bring the accused within the purview of this section. • This is clear from the words ‘whoever marries’ which means whoever marries validly or whoever marries and whose marriage is a valid one. • If there is no valid marriage there is no marriage in the eye of law. Where the essential conditions of a valid marriage have not been fulfilled, such as ‘homa’ and ‘saptapadi’ in the case of Hindus the second marriage is not a valid marriage, and consequently the charge of bigamy against the accused must fail.

Section 498A -Indian Penal Code Domestic Violence

Necessity for Section 498A • During the 1980s, dowry deaths were steadily rising in India. • With the increasing number of dowry deaths in India, need arose to address the matter in an effective way. • Organizations across the country pressurized and urged the government to provide legislative protection to women against domestic violence and dowry. • The objective was to allow the state to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry demands of their in-laws. • With this object, the Government of India amended the Indian Penal Code, 1860 (IPC) by way of the Criminal Law (Second Amendment) Act, 1983 and inserted a new section 498 (A) under Chapter XX-A, Of Cruelty By Husband Or Relatives Of Husband on 26th December, 1983. • The offence of dowry death has been inserted in the IPC as Section 304-B by the Dowry Prohibition (Amendment) Act, 1986. Section 304- B has been inserted with a view to curb the growing atrocities against women, where thousands of young women were done to death due to failure to pay up the dowry demanded. • The amendment focuses not only on dowry deaths but also cases of cruelty to married women by their in-laws. • Section 498 (A) IPC is the only section in the IPC that recognizes domestic violence against women as a crime.

Section 498A Sec. 498A- Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, “cruelty” means(a) any willful 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 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.”

The basic essentials to attract this section are: a) b) c)

The woman must be married She must be subjected to cruelty or harassment; and Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband

A bare glance of the section shows that the word ‘cruelty’ covers any or all of the following elements: (i) Any ‘willful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or (ii) any ‘willful’ conduct which is likely to cause grave injury to the woman; or (iii) any ‘willful’ act which is likely to cause danger to life, limb or health whether physical or mental of the woman

Cruelty & Dowry Death • It was held in ‘Kaliyaperumal vs. State of Tamil Nadu 2004 (9) SCC 157’, that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. • The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. • The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498A applies in section 304-B as well. • Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A.

Kinds of cruelty covered under this section • In the case of ‘Inder Raj Malik vs. Sunita Malik 1986 (92) CRLJ 1510 , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty. • Kinds of cruelty covered under this section includes following:(a) Cruelty by vexatious litigation (b) Cruelty by deprivation and wasteful habits (c) Cruelty by persistent demand (d) Cruelty by extra-marital relations (e) Harassment for non-dowry demand (f) Cruelty by non-acceptance of baby girl (g) Cruelty by false attacks on chastity (h) Taking away children • The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.

CRIMINALITY ATTACHED TO WORD Also, criminality attached ‘HARASSMENT’ to word ‘harassment’ is free of (even without)

‘cruelty’ and punishable in the following instances: (i) Where the harassment of the woman 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 (ii) Where the harassment is on account of failure by her or any persons related to her to meet such demand

It is evident that neither every cruelty nor harassment has criminal culpability for the purposes of Section 498-A. So, we can see that, this law deals with four types of cruelty: (i) Any conduct that is likely to drive a woman to suicide, (ii) Any conduct which is likely to cause grave injury to the life, limb or health of the woman, (iii)Harassment with the purpose of forcing the woman or her relatives to give some property, or (iv)Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.

Working of Section 498A- Developments The Supreme Court in Suvetha v. State By Insp.Of Police & Anr. [2009] INSC 981 (6 May 2009) held that: Clause (a) deals with aggravated forms of cruelty which cause grave injury. Firstly, wilful conduct of such a grave nature as is likely to drive the woman to commit suicide falls within the ambit of clause (a). The second limb of clause (a) lays down that willful conduct which causes grave injury or danger to life, limb or health (whether mental or physical) of the woman is to be regarded as ‘cruelty’. Dowry related harassment is within clause (b) of the Explanation.

When the FIR coupled with the statement of the victim woman discloses cruelty of grave nature falling within clause (a), the police officer has to act swiftly and promptly especially if there is evidence of physical violence. In the first instance, proper medical aid and the assistance of counsellors shall be provided to the aggrieved woman and the process of investigation should start without any loss of time. A punishment extending to 3 years and fine has been prescribed. The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’

mental cruelty • In the case of Ramesh Dalaji Godad v. Sate of Gujrat 2003 CriLJ 2445 the Supreme Court held that to prove that cruelty was caused under Explanation (a) of S.498A IPC it is not important to show or put forth that the woman was beaten upabusing her verbally, denying her conjugal rights or even not speaking to her properly would fall into the ambit of mental cruelty.

BASIC DIFFERENCE BETWEEN THE TWO SECTION I.E. SECTION 306 AND SECTION 498A • The Supreme Court in Sushil Kumar Sharma v. Union of India And Ors 19 July, 2005 said that: The basic difference between the two Section i.e. Section 306 and Section 498A is that of intention. • Under the latter, Cruelty committed by the husband or his relations drag the women concerned to commit suicide, while under the former provision suicide is abetted and intended. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. • It is to be noted that Sections 304-B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. • The explanation to Section 498A gives the meaning of `cruelty’. In Section 304- B there is no such explanation about the meaning of `cruelty’. But having regard to common background to these offences it has to be taken that the meaning of `cruelty’ or `harassment’ is the same as prescribed in the Explanation to Section 498A under which `cruelty’ by itself amounts to an offence.

Misuse of Sec. 498 A • The section was enacted with the aim to protect women from dowry harassment and domestic violence. However, more recently, its misuse has become an everyday affair. • The Supreme Court, hence, in the landmark case of Sushil Kumar Sharma v. Union of India (2005 (6) SC 266) condemned this section as ‘Legal Terrorism’. Since cruelty is a ground for divorce under section 13 (1) (ia) of Hindu marriage Act, 1955. Wives often use this provision in order to threaten husbands.

Preeti Gupta v. State of Jharkhand,AIR 2010 SC 3363 • In another case of Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the Supreme Court observed that “serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of overimplication is also reflected in a very large number of cases”. • Even an innocent person accused under S.498A IPC, does not get the chance of getting quick justice owing to the offence being nonbailable and cognizable. We well know that ‘justice delayed is justice denied’, hence came the 243rd report of Law commission on section 498A of IPC laying down various changes ought to be made in order to remove the flaws of this section and its misuse. • A strict law in this regard needs to be passed by the parliament in order to punish those who act malafidely and tries to misguide the system of law. Law commission in its 243rd report opined that the Section along with its alliedCr.PC provisions shall no t act as an instrument of oppression and counter-harassment.

Latest Guidelines of SC Arnesh Kumar Vs. State of Bihar & Anr (2014) 8 SCC 273 • It was held that there will be no Automatic Arrest in 498-A Cases, SC Issues Strict guidelines to Police and Magistrates, Non Compliance will Attract Disciplinary & Contempt Proceedings • Arnesh Kumar was arrested under Section 4 of the Dowry Prohibition Act, 1961 after his wife alleged that he demanded dowry from her. Denying the allegations, Kumamr requested anticipatory bail, but his request was denied. This led him to file a Special Leave Petition, which was granted by the court. • In order to ensure that an arrest or detention is necessary and legal, the police and the Magistrate are required to follow certain protocol. The protocol is often ignored, as was the case here. In this judgment, the court outlined certain measures and internal reforms to curb these kinds of unnecessary and illegal arrests and detentions.

Defamation

Defamation S.499 •

Every man is entitled to have his reputation.

• Reputation is the state of being held in high esteem and honor or the general estimation that the public has for a person. •

Reputation depends on opinion, and opinion is the main basis of communication of thoughts and Information amongst humans.

• In simpler words, reputation is nothing but enjoyment of good opinion on the part of others. So, the right to have reputation involves right to have reputation inviolate or intact.

• There is a need to balance the public right to free speech & expression with the private right to reputation. • Legislation about defamation is an attempt to do the same.

Defamation & its definition: • The word defamation is driven from Latin word ‘Diffamare’. • Semantics or Etymology of the Latin word ‘Diffamare’ provides that it means 'Spreading evil report about someone'. • Thus, defamation is nothing but causing damage to reputation of another.

• Thus the question of defamation is primarily linked up with one’s reputation.

Section 499 • defines defamation as – • Whoeverby words either spoken or intended to be read, or by signs, or by visible representations, • makes or publishes any imputation • concerning any person • intending to harm, or knowing or having reason to believe that such imputation will harm, • the reputation of such person, is said, • except in the cases hereinafter excepted, to defame that person.

Essentials-499 • Under Criminal Law three essentials are to be proved to establish wrong of Defamation – • There should be existence/publication of an imputation made by a person • Such imputation may be words spoken or written signs, or visible representation • It should be made to injure or having knowledge to believe that it will injure reputation of a person.

Explanations Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful.

Explanation-II Vishwa Nath vs Shambhu Nath Pandeya 1995 CriLJ 277

• it was held that where in an article of a magazine imputations were made against a certain community in general and not any particular group, • and nor were the said imputations related to the complainant, and the said community was also not found to be a definite identifiable body of people, • continuance of the case after the death of the complainant under the representation of his advocate would not be proper.

Explanation 3 MKT Subramanium v. State 1970 Mad. • Where the accused author through imaginary conversation between two parliamentarians of a political party brought out, through satirical and ironical expressions, confessions out of them about the misdeeds of the ministers belonging to that political party • it was held to be defamation, • because, even though the whole situation was imaginary, the imputation against the chief minister was very real and intended to harm the reputation of the complainant who had been shown to have amassed wealth by cheating the public and abusing political power.

Explanation 4 • Mere vulgar abuse does not amount to defamation. •

Where, for instance, a woman had uttered the word ‘chhinal’ against another woman meaning thereby that she was a woman of easy virtue, no case was held to be maintainable as the use of such kind of a language in villages by women fighting with one another is not uncommon.

• But describing as being the keep of a named man is obviously defamatory. • Or, imputing a woman with having paramours wherever she goes amounts to defamation. • Where a photograph was published showing certain persons as soldiers of a goonda war, it was held to be defamatory.

Exceptions: There are ten exception under which a person can escape his liability from an action of Defamation: 1. True Imputation made / published for the public good 2. Public conduct of public servants 3. Public Question of a Person 4. Publication of true reports of proceedings of Courts 5. Merits of case decided in Court or conduct of witnesses and others concerned 6. Merits of public performance 7. Censure passed in good faith by person having lawful authority

8. Accusation preferred in good faith to authorized person 9. Imputation made in good faith by person for protection of his or other's interests 10. Caution intended for good of person to whom conveyed or for public good

1. True Imputation made / published for the public good

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

Exception 1-instances • For instance the competent authority of a bank suspended a branch manager on the ground of gross misconduct • all his powers were withdrawn • the bank management forewarned the public by issuing a public notice to this effect in newspapers with a view to protect the interest of the general public • it could not amount to defamation in view of exception 1 to section 499 of the Code.

2. Public conduct of public servants • It is not defamation to express in a good faith • any opinion whatever respecting the conduct of a public servant • in the discharge of his public functions, • or respecting his character, so far as his character appears in that conduct and no further.

Sasikumar B. Menon vs S. Vijayan And Anr 1998 CriLJ 3973

• In this case, Kerala Police.

a news was broadcasted about

• Kerala Police complaint against it u/s 499,500. • the Kerala High Court held that where the allegation in the complaint was that Kerala Police had been defamed, the complaint is not maintainable as the Kerala Police is not a definite and determinable body and the complainant, a member of the Kerala Police, is not a person affected by the alleged defamatory statement.

Jawaharlal Darda v. Manoharrao Ganpatrao Kapsikar(1998) 4 SCC 112

• In this case a minister when he was questioned about misappropriation of government funds. • He replied that preliminary inquiry by the government disclosed that some misappropriation had taken place and he stated the names of persons involved including the complainant. • The accused published in his newspaper an accurate and true report of these proceedings in good faith. • The Supreme Court ruled that the offence of defamation was not made out and the accused had not intended to harm the reputation of the complainant

3. Public Question of a Person • Conduct of any person touching any public question • It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further Illustrations: • It is not defamation by A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question • in presiding or attending a meeting • in forming or joining any society which invites the public support

Instances of Exception 3 • Suppose the death of a married woman gave rise to much suspicion and rumors and the public was keen to know as to whether her husband and some others including some family members were involved in it or not • a news item to this effect was published in the newspaper of the accused which brought the appellant within the area of suspicion • the whole matter having become a public question in the town, the accused was entitled to the benefit of the third exception.

4. Publication of reports of proceedings of Courts• It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. • It's essential that it be just a report and no further expression of statements on conduct of persons or proceedings and further it must be substantially true. • Explanation:• A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

5. Merits of case decided in Court or conduct of witnesses and others concerned• It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations: • a) A says – “I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest”. A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.

• b) But if A says – “I do not believe what Z asserted at that trial because I know him to be a man without veracity”. A is not within this exception, inasmuch as the opinion which he expresses of Z’s character, is an opinion not founded on Z’s conduct as a witness.

6. Merits of public performance• It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further • A public performance can be work like a book, drama, movie etc, and statement made should be an opinion and that too expressed in good faith • Explanation:-A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Illustrations • A person who publishes a book submits that book to the judgment of the public. • A person who makes a speech in public submits that speech to the judgment of the public. • An actor or singer who appears on a public stage submits his acting or singing to the judgment of the public.

7.Censure passed in good faith by person having lawful authority• It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. • Censure cannot be considered to be defamation if it's passed in course of exercising authority like the authority of a father over son, a teacher's over student.

Illustration: • A Judge censuring in good faith the conduct of a witness, or • of an officer of the Court; a head of a department censuring in good faith those who are under his orders • a parent censuring in good faith a child in the presence of other children ; • a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; • a master censuring a servant in good faith for remissness in service • a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.

8. Accusation preferred in good faith to authorized person-

• It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. • The accusation should be made in good faith and that too within extent of lawful authority over the other person. • Illustration: If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, child to Z’s father-A is within this exception.

P.M. Kathiresan vs Shanmugham, Retired Captain 1995 CriLJ 2508 • In P. M. Kathiresan v. Shanmugham a complaint allegedly having defamatory remarks filed by the accused before the Superintendent of Police to take necessary action against the respondents resulted into conviction. • It was held that the case squarely comes under exception 8 of section 499, and the proceedings were quashed.

9. Imputation made in good faith by person for protection of his or other's interests• It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. • Though it is a vague exception but the Imputation should be made in good faith and for interest of own or some other person concerned. Illustrations: • a) A, a shopkeeper, says to B, who manages his business- “Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. • b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Vedurumudi Rama Rao vs Chennuri Venkat Rao And Anr. 1997 CrLJ 3851 • In V. Rama Rao v. C. Venkat Rao, the accused who was the Regional Manager of a Bank issued a confidential circular to the Branch Managers of his region to the effect that they should be vigilant while dealing with the complainant and others mentioned therein in their business transactions. • The circular was issued in his official capacity, in public interest and as per instructions of the Central and Zonal Office. • The Andhra Pradesh High Court held that the case would be covered by exception 9 to section 499 and that truth of imputation need not be proved by the accused while claiming privilege under exception 9 and so even if the allegations made in the complaint are true no offence under section 500 is made out against the complainant.

10. Caution intended for good of person to whom conveyed or for public good• It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good • It is generally a warning to someone for protection of his/public good about another person’s character in good faith.

K.V. Ramesh And Ors. vs H.C. Ramesh2001 CriLJ 3556 • In K. V. Ramesh v. H. C. Ramesh, a newspaper published extracts from a book written about a former Prime Minister of India alleging corruption by him. The extracts also contained imputations against his other family members including sons, daughter and wife. • The Karnataka High Court observed that sons could thus be said to be persons aggrieved and so complaint filed by a son cannot be quashed. • The editor of the newspaper is liable for prosecution and his plea that he was merely a publisher and not an author of the matter is not tenable. • • The court held that application for quashing of proceedings on the ground that only the editor was responsible for the said publication cannot be allowed. • Publication of extracts of the book in the newspaper gives a fresh cause of action for prosecution against the publisher of the newspaper.

PROVOCATION & INSULT S. 504 & S. 509

PROVOCATION AND INSULT- S. 504 AND S. 509 The Indian Penal Code contains two provisions relating to insults aimed at people other than public servants. These are S. 504, which deals with provocation of offences, and S. 509, which defines a specific crime against women, and deals with insults to the modesty of women. SECTION 504 of the IPC reads: Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The purpose of this section is to punish those who intentionally use insulting language, with the object of provoking a breach of the peace. The section has three essential ingredients1. The offender must intentionally insult the complainant. 2. The insult must be such as to provoke the complainant. 3. The offender must intend, or know it to be likely, that this provocation will cause the complainant to break the public peace, or commit any other offence.

Interpretation of S. 504 1. ‘Intentional Insult’ • The first ingredient of the offence is that there must be an ‘intentional insult’. • The insult referred to in the section need not be in the form of spoken wordsa. it may be written, or b. it may arise from the conduct and actions of the accused. • However, irrespective of its form, not every kind of abusive language can be classed as an ‘intentional insult’. Insult must be provocative.

2. Insult must be provocative

• The second essential ingredient of S. 504 is that the insult must be provocative- it must be “likely to incite the person insulted to commit a breach of the peace” There is a requirement that the intentional insult should be “such as to give provocation to the person insulted, and the provocation given should be of the nature as would cause the person to break the public peace or commit any other offence” • In Sisir Kumar Roy v. Udayanath Malik AIR 1959 Ori 155, a graduate student abused his companion using words like ‘Chhokara’ and ‘Badmash’, during a dispute between the two over a criminal case between them. It was held that the words, in the context of the quarrel, were not provocative, and unlikely to cause a breach of the public peace. • Therefore, to satisfy the second ingredient, the complainant must show “that the abusive language was such as would ordinarily provoke the man or woman of his or her position to commit a breach of the peace.

3. Intention to Provoke

• The third requirement under S. 504 is that the accused must either intend to provoke a breach of peace, or some other offence, or must know that his insult is likely to have this result. A “hurling of mere insulting words does not satisfy the ingredients of the offence under Section 504 of IPC.” • Therefore, it is immaterial whether the complainant was actually provoked or not, if the mental element required by the section is proved. • In Muhammad Sabed Ali v. Thulesver Borah AIR 1955 Assam 211, the facts were that the complainant had been asked by a constable to take certain witnesses in a murder case to a neighbouring village, as the Inspector of Police was coming to investigate. The complainant was unable to do so, as the witnesses were too frightened to go. When the Inspector came, he abused the complainant and called him a dog. Although the complainant did not react by breaking the peace, it was held that his reaction was irrelevant to the question of the Inspector’s guilt under S. 504. The Orissa High Court has held that “the defence (sic) of intentional insult punishable under S. 504 derives its criminality from the fact that it is intentional and gives provocation which is likely to lead to retaliation. It is the likelihood of the complainant’s reaction to the insult leading to breach of the public peace and not the complainant’s actual reaction which is material.” • In gauging whether the requisite mental element was present in the offender, the Court considers the actual words used, or their gist, along with the circumstances of the case.

Section-509 INSULTING THE MODESTY OF A WOMAN Also called

Eve Teasing Section

SECTION 509 – • This section says that- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. • This section is referred as the Eve Teasing Section. The object of the section is to protect the modesty and chastity of a woman. • The essential elements of the section are: i.

Accused uttered any word, made any sound or made a gesture or exhibits any object or intrude the privacy. ii. Accused intended that words uttered, sound made or gesture shown or object exhibited seen or heard by the woman. iii. It has to be directed towards a woman or group of women

Interpretation of S. 509 1.

Intention to insult the modesty of a woman

• The first requirement under the section is an intention, on the part of the accused, to insult the modesty of a woman. • In the case of State of Punjab v. Major Singh MANU/SC/0295/1966, the Supreme Court went into the question of what ‘modesty’ means. The accused had caused injuries to the vagina of a seven and a half month old female child, and was prosecuted under S. 354 of the IPC. The trial court held that the offence under the section had not been committed as an infant child was not possessed of a sense of modesty. On appeal to the High Court, this verdict was upheld, by a majority of two judges to one. • The matter reached the Supreme Court, on appeal by the State. By a majority of two to one, the Court reversed the trial court and High Court verdict, and held that the accused had committed the offence defined in S. 354. SC held that “the essence of a woman’s modesty is her sex…Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged”. This interpretation of ‘modesty’, which leads to the conclusion that the “modesty of a woman…has very little to do with the physique of the woman”

Rupan Deol Bajaj v. K.P.S. Gill • Supreme Court in Rupan Deol Bajaj v. K.P.S. Gill AIR 1996 SC 309 held that “if intention or knowledge is one of the ingredients of the offence, it has got to be proved like other ingredients for convicting a person, But, it is also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case • In Rupan Deol Bajaj’s Case , it was held that to establish intention, the question that requires answering is “Is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman”. In the case before the Supreme Court, the accused was a high-ranking police officer who had slapped the complainant on her buttocks at a party, in the presence of other ladies and guests. The Court held that, given the facts of the case, the accused must be inferred to have had the requisite intention under both S. 354, and S. 509.

2. The Manner of Insult • The manner of insult covered in the section extends to words, sounds, gestures, the exhibition of objects and the intrusion upon the woman’s privacy. • Of these, the two types of insult that will be considered here are the exhibition of objects, and the intrusion upon privacy. • The words ‘exhibits any object’ do not imply that the object must be displayed to the complainant, in the presence of the accused. • The meaning of this phrase was gone into by the Bombay High Court in Emperor v. Tarak Das Gupta AIR 1926 Bom 159. The accused had been convicted by the trial court under S. 509 for sending a letter containing indecent overtures to an English nurse. On appeal to the High Court, he pleaded that his act did not come under the words ‘exhibits any object’. The Court rejected this argument, and held that just because the accused had not personally shown the nurse the letter did not mean he had not exhibited it to her, also held that, while “the word ‘exhibit’ does ordinarily express the idea of actually showing a thing to a person…such showing need not be immediate…a thing can be exposed or exhibited to a person, although at first sight it may be wrapped in something which prevents that person from actually seeing the object contained in the wrapper.

2013 Amendment in Sec. 509 • Recently the criminal law (amendment) Act, 2013 was passed in which section 509 of the Penal Code, for the words “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine” shall be substituted.

Be A Gentleman Because-

Otherwise

CRIMINAL INTIMIDATION- S. 503 • The offence of criminal intimidation is defined in S. 503, and the punishment for its commission is provided in S. 506, of the IPC. Furthermore, S. 507 acts as a corollary for S. 506, by providing for an additional punishment when the person committing criminal intimidation does so via an anonymous communication, or otherwise conceals his identity. This is in view of the greater alarm caused by such a communication. • Section 503 reads: Criminal Intimidation– Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

This definition has two parts-

• “The first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested; • the second part refers to the intent with which the threatening is done and it is of two categories: i. one is intent to cause alarm to the person threatened, and ii. the second is to cause that person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat.”

This implies that there are two essential ingredients to the section. This implies that there are two essential ingredients to the section. There must be a threat of injury to a person, either i) To his person, reputation or property; or ii)To the person, reputation or property of anyone in whom that person is interested. The threat must be made with the intent i) To cause alarm to that person; or ii) To cause that person to do an act which he is not legally bound to do or iii) To cause that person to omit to do any act which he is legally entitled to do, as the means of avoiding the execution of such threat.

Interpretation of S. 503 1.

Targetting of the Threat-

• As implied by the words ‘whoever threatens another’, the section requires that a threat, in order to constitute criminal intimidation, must be communicated by one party to another. This is also necessary given that the basis of the offence is the effect of the threat on the mind of the person threatened, which presupposes that “it must be either made to him by the person threatening or communicated to him in some way. Communication of the threat need not be direct, and in the presence of the complainant- it is sufficient even if addressed to a third party, so long as it is intended to reach the victim. • This was the case in Romesh Chandra v. State AIR 1960 SC 154, where the accused had sent letters to a person X, threatening to make public nude photographs of his daughter, and thereby injure the reputations of both of them, unless he was paid ‘hush money’. He was charged and found guilty of criminal intimidation against both X and his daughter, although the threat had been directly communicated only to X. • In addition, the threat made need not be targeted at any one person in particular. The offence under this section is made out if the threat is addressed to a class or group of persons. However, it must be aimed at a “defined and ascertained body of individuals”

Targetting of the Threat• In Re A.K. Gopalan AIR 1949 Mad 233, at 234, the accused delivered a speech at a cinema shed, wherein he made several vulgar comments, strongly critical of the police force. His defence was that these comments pertained to the police force in general, and were not threats towards any particular group. This argument was not accepted, and the Court convicted him of criminal intimidation, holding that he had intended to frighten by threats members of the police force of Malabar, and especially those stationed at Badagara, where he had made the speech. • In a case before the Bombay High Court Anuradha R. Kshirsagar v. State of Maharashtra 1991 CRI L.J. 410. the facts were that a meeting of lady teachers was interrupted by the accused shouting that the teachers should leave the hall, and that they should be caught by the hair, kicked on the waist, and pulled out. To the charge of criminal intimidation, the defence he adopted was that these words were general, and not targeted at a specific individual or group. The Court struck down this argument, holding that the threats had been addressed to all the ladies in the hall. • To conclude, the section envisages that the threat be targeted at either a particular person, or a definite group of persons, and that it be communicated, either directly or indirectly, to such person or group.

2. Injury to person, reputation or property i)

‘Injury’

• The section requires that the threat be of injury to person, reputation or property. The term ‘injury’ is defined in S. 44 of the IPC as denoting “any harm whatever illegally caused to any person in body, mind, reputation or property” • Therefore, to attract liability under S. 503, the harm threatened must be illegal. In Priyanath Gupta v. Lal Jhi Chowkidar AIR 1923 Cal 590., the President of a self-constituted Arbitration Court served a notice to the complainant requesting him to be present at a certain time and place for the settlement of a claim, and stating that if he did not attend, the suit would be decreed ex parte. It was held that the threat of decree so made was covered by the section, since “by no legal process or means could [the Arbitration Court] make or give effect to such a decree” • This point was also upheld in Jowahir Pattak v. Parbhoo Ahir (1902) 30 Cal 418, where the accused had threatened to ruin the complainant by filing cases against him. The Court reversed his conviction on the grounds that although a threat to file false cases would amount to a threat of illegal harm, it was not clear whether by ‘cases’, the accused meant ‘false cases’.

ii) Person, Reputation, Property • •

•

•

•

As laid down in the section, the threat in the offence of criminal intimidation must be directed against ‘person, reputation or property’. These terms have not been precisely defined by the Courts, but their meaning can be gauged through the following examples. In Muhammad Ahmad Khan v. Emperor AIR 1936 All 171a constable served a notice on the accused and asked him to make an endorsement at the back of the notice, acknowledging its receipt. The accused proceeded to write something on the back of the notice, and when the constable told him that nothing but a signature in acknowledgement was to be written, he reacted by throwing the notice at the constable, and shouting “Go away, otherwise I will break your hands and feet.” This was held to be an offence under S. 503, as it involved a threat to the person of the officer. The case of Romesh Chandra v. State AIR 1960 SC 154, mentioned earlier, is a clear instance of threat to reputation. ‘Reputation’ can therefore be understood as “credit, honour, character, good name”; it is the “estimation in which one is held…that by which we are known… the total sum of how we are seen by others. As to ‘property’, the Supreme Court in R.K. Dalmia v. Delhi Admn. AIR 1962 SC 1821 opined that “whether the offence defined in a particular section of the Indian Penal Code can be committed in respect of any particular kind of property will depend, not on the interpretation of the word ‘property’ but on the fact whether that particular kind of property can be subject to the act covered in that section…It is not therefore necessary to consider in detail what types of property will be included in the various sections of the IPC. In Raghubar Dayal Misra and another v. Emperor AIR 1931 All 263, losses caused to a business were regarded as harm to ‘property’. Therefore, it can at least be concluded that a threat of injury to the material possessions or to the economic interests of a person, is a threat to ‘property’.

3.Threats to persons in whom target is interested

• According to S. 503, a threat of injury to the person or reputation of anyone in whom the target of the threat is interested can amount to criminal intimidation, provided that the rest of the ingredients are satisfied. This portion of the definition excludes ‘property’, so a threat to the property of a third party is not within the purview of the section. A threat to the reputation of a deceased person is specifically included in the section, under the Explanation, provided that the deceased be someone in whom the target of the threat is interested. • In Q.E. v. Mangesh Jivaji (1887) I.L.R. 11 Bom 377, an ex-clerk of the Forest Department sent a petition to the Revenue Commissioner, purportedly written by the inhabitants of certain villages, threatening to kill a Forest Officer unless he was transferred to another area. It was held that this was not an offence under S. 503, as the Revenue Commissioner had neither personal nor official interest in the Forest Officer. • A threat of suicide is also not within the section, unless the target of the threat is interested in the person making it.

4. Intention of the Offender

• Another essential ingredient of the section is that the threat must be made with intent, either to cause alarm, or to cause the victim to do an act which he is not legally bound to do, or to abstain from an act he is entitled to perform. The question of whether or not the target of the threat was in fact alarmed, or whether he or she actually performed or abstained from performing any act, to avoid the execution of the threat, is immaterial. • It is “the intention of the speaker [accused] that has to be considered in deciding whether what he stated [threatened] comes within the mischief of S. 503” • The Orissa High Court in Amulya Kumar Behera v. Nabhagana Behera 1995 CRI L.J. 3559 has held that the gist of the offence is “the effect, which the threat is intended to have upon the mind of the person threatened.” In the case before it, the Court also stated that “intention is a mental contention, which has to be gathered from the circumstances of the case.” If the threat is such as would overcome the ordinary free will of a firm and prudent man, or if, irrespective of the nature of the threat, it is made with the intention mentioned in the section, then the offence will be made out. Practically, however, the intention must be gauged from the facts of the case.

4. Intention of the Offender

• In Amulya Kumar Behera v. Nabhagana Behera the accused was acquitted on the grounds that a mere expression of words without any intent to cause alarm would not invite punishment under the section. • An example of how intent is determined from surrounding circumstances is the case of S.S. Sanyal and another v. K.V.R Nair and others 1987 CRI L.J. 2074, where the President of a company threatened his employee, saying “your days are numbered” The Calcutta High Court decided that there was no criminal intimidation here, as the “words are to be understood in the context of the circumstances in which they were uttered”, and under such an interpretation the President’s words meant simply that the service of the complainant under the company may be terminated. • Although the meaning of the expressions ‘any act which he is not legally bound to do’ and ‘any act which that person is legally entitled to do’ is clear, the meaning of ‘alarm’ was investigated in Amulya Kumar’s Case, where the Court held that though the degree of alarm could vary, its essential nature was to “unsettle the mind of the person on whom it operates and take away from his acts the elements of free voluntary action which alone constitute consent”

5. ‘Avoiding the execution of such threat’ • In In Re Doraiswamy Aiyar AIR 1925 Mad 480, the Madras High Court took the view that the words ‘as the means of avoiding the execution of such threat’ in S. 503 implied that “the threat must be one, which can be put into execution by the person threatening.” In that case, the accused was sought to be punished under S. 507 of the IPC, which imposes an additional punishment for criminal intimidation by an anonymous communication, for sending anonymous letters to the complainant which read “if you don’t pay me the money demanded from you, God is going to punish you and your family with ruin and death.” Since a punishment by God was not one which the accused could inflict, or cause to be inflicted, he was not convicted. It is submitted that this decision is incorrect, as S. 503 does not require that the accused have the capacity to fulfil his threat. • • It only requires that there be a threat of a particular kind, backed by a particular intention. If capacity to execute the threat were a requisite for the offence, then a person who forced another to do something, by pointing an unloaded gun at him, would not be guilty of criminal intimidation. • Therefore, it is submitted that S. 503 does not require a capacity to execute the threat on the part of the person making it, just as it does not require that the threat be successful. The words ‘as a means of avoiding the execution of such threat’ only constitute part of the required intention of the offender- i.e. he must intend that the victim act, or abstain from acting, so as to avoid the threat.