Criminal Law II - Exam Notes

Criminal Law - II Part A - General Principles of Criminal Liability Principal of Mens Rea & Strict Liability (Actus not facit reus, Nis mens sit rea) Section 52 - defines Good faith in the negative - No act is said to be done in good faith if it is done without due care and caution. (1) St of Mah vs Mayer Hans George (1965) 1 SCR 123 24th Nov 1962, RBI placed sme restrictions on the entry of gold into India (U/S 8 FERA, 1947), thus superseding its earlier notification (gold can be brought into India if it ws on transit to a place outside India), by providing tht gold can be brought into India on a transit provided tht such gold ws declared in the "manifest for transit" in the same bottom cargo. The accused left Zurich by plane on Nov 27th, 1962 & reached Bombay(on way to Manila), whr the gold bars were recovered from his jacket by custom officers. The plea of the accused ws tht he hd no mens rea & tht he hd no knwldge of the RBI notification. SC obsrvd: Merely becoz a statute deals with a grave social evil is nt sufficient to infer strict liability, it must also be seen tht whthr imposition of strict liability wud assist in the enforcement of regulations ( can he do anything to promote the observance of the law?) Unless this is so thr is no reason in penalizing him & it cannot be inferred tht the legislature imposed strict liability merely in order to find a luckless victim. Thus mens rea by neccessary implication cn be excluded frm a statute only whr it is absolutely clear tht the implementation of the object of a statute wud othrwise be defeated & its exclusion enables those put under strict liability by their act or omission to assist the promotion of law [Lim Chin Aik vs Reginam - Entry into Singapore barred - Order issued against him by a minister - Unpublished - no mens rea - no strict liability ] After considering the language of the relevant provisions of the FERA, 1947, the object & subject matter of statute & the nature & character of the Act to be punished, their Lordship held tht thr ws no scope fr the invocation of the doctrine of mens rea in this particular case. According to the provisions of the Act, the very concept of bringing or sending wud exclude an involuntary bringing or sending (absolute embargo). if bringing into India ws a conscious act, the mere bringing constitutes the offence & no further mental condition is postulated as neccessary to constitute an offence. - Act designed to safeguard FOREX and to control smuggling which effect national economy to a large extent, the provisions are thus to be stringent & so framed as to prevent unauthorized or unregulated transactions. Also the the person who actually carry out the physical part of smuggling are only agents & behind them stands a well knit organization. Thus the very object & purpose of the Act wud be frustrated if the accused shld proved to hv knwldge tht he ws contravening the law, befr he cud be held to hv contravened. It ws observed tht thr wud be no question of individual service of general notification on every member of the public in the instant case & all tht the subordinate bodies can do is to publish the notification. Accepted propositions summarized (i) Unless a statute, either clearly or by necessary implication rules out mens rea as the constituent part of crime, an accused shld nt be found guilty unless he hs a guilty mind (ii) Ques of necessary implication is to be determined frm object of the statute. Strict liability wud be implied, if the object of statute wud be defeated by reading mens rea into it. (iii) Mere fact tht the object of statute is to promote public welfare or curb grave social evil is nt enough to exclude mens rea. it is also necessary to inquire tht a person on whom strict liability is sought to be enforced cn do anything to further the enforcement of law. Whr it cn be shown tht imposition of strict liability wud result in the conviction of a class of persons whose conduct cud nt in any way effect the observance of law, strict liability is nt likely to be intended. (iv) Maxim "ignorance of law is no excuse" does nt apply to delegated legislation when thr is no provision of publication of the order, to enable a person to find out by appropriate inquiry wht the law is R v Prince (1875) LR 2 CCR 154. The defendant ran off with an under-age girl. He was charged with an offence of taking a girl under the age of 16 out of the possession of her parents contrary to s55 of the Offences Against the Person Act 1861 (now s20 of the Sexual Offences Act 1956). The defendant knew that the girl was in the custody of her father but he believed on reasonable grounds that the girl was aged 18. It was held that knowledge that the girl was under the age of 16 was not required in order to establish the offence. It was sufficient to show that the defendant intended to take the girl out of the possession of her father. Held he took the girl on his own peril. In Vardharajan vs State - court assumed mental capacity of girl(becoz of urban education -obsrvd no active participation by accused in taking away the minor girl(little under 18) - acquitted accused. R v Hibbert (1869) LR 1 CCR 184. The defendant met a girl under sixteen years of age in a street, and induced her to go with him to a place at some distance, where he seduced her, and detained her for some hours. He then took her back to where he met her and she returned home to her father. The defendant was charged under s55 OAPA 1861. It was held that in the absence of any evidence that the defendant knew, or had reason for knowing, or that he believed, that the girl was under the care of her father at the time, that a conviction under s55 OAPA 1861 could not be sustained. Sweet vs Parsley ( Landlady arrested for cannabis found in her house which had rented out - no knowledge & no mens rea- convicted by lower court which held that this ws a strict liability offence - In appeal the court held that there is a presumption of mens rea in truly criminal offences and acquitted the landlady on the ground that she had no way of knowing each and everything that the tenants are doing.) The Gammon Tests In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984) the Privy Council decided there were five factors which should be considered when deciding if an offence was one of strict liability.

- there is a PRESUMPTION OF MENS REA with statutory criminal offences - this presumption can only be displaced if this is expressly or by necessary implication the effect of the WORDS OF THE STATUTE - the presumption is particularly strong where the offence is 'truly criminal' in nature (GRAVITY OF PUNSIHMENT) - the presumption can only be displaced if the statute is concerned with an ISSUE OF SOCIAL CONCERN such as public safety - strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act (PURPOSE) R vs Tolstoy - Husband disappear - lady on inquiry finds out frm brother of husband tht he ws on a ship on way to America which sunk - believing her husb to be dead - remarries after 6 yrs of his disappearing (short of 7 yrs mandated by law) - husb returns - files case of bigamy - lower court sentences lady to 1 day of jail - in appeal higher court acquits her - acted on good faith - made reasonable inquiry - no mens rea (2) St of MP vs Narayan Singh, (1989) 3 SCC 596 Bags of fertilizer being taken in a truck proceeding frm Indore to Maharashtra - Intercepted 8 miles frm border at Sendhwa sales tax barrier - Driver & Coolie hd invoices & other documents but did nt include permit under FMC Order- Driver & coolie arrested and charged with exporting fertilizer without valid permit - accused contended no knowlegde & Mens Rea - Accquital by Trial Court & High Court - In appeal to SC - Apex court held - strict liability offence S7 of ECA which gives punishment fr S3(which gives power to frame FMC Order) contained words "if any person contravenes whether knowingly, intentionally or otherwise any order made u/s 3" -(a) he shall be punishable.. " the words "or otherwise" indicated a strict liability offence hence accused were convicted though nt given any sentence ECA S2 defines export - to take or cause to be taken out of any place within a State to any place outside tht state S3 Prohibits export of fertilizers - export, attempt to export or abet export S7 Mentions punishment of offences u/s 3 - if any person contravenes whether knowingly, intentionally or otherwise any order made u/s 3 Swastik Oil Industries vs State - 397 tins of groundnut oil more than provision of license - 100 tins confiscated - defence contened that contravention ws not willful and merely technical - no mens rea - HC held introduction of the words "knowingly, intentionally or otherwise" in the S7 of ECA nullifies the SC dicta in Nathu lal case Nathu Lal vs St of MP for having in stock 885 maunds and 21/4 seers of wheat for the purpose of sale without a licence and for having thereby committed an offence under Section 7 of the Essential Commodities Act,The appellant pleaded that he did not intentionally contravene the provisions of the said section on the ground that he stored the said grains after applying for a licence and was in the belief that it would be issued to him (as the inspector hd told him tht the license hd been issued and ws just pending transit to him. The learned Additional District Magistrate, Dhar, found on evidence that the appellant had not the guilty mind and on that finding acquitted him. On appeal a Division Bench of the Madhya Pradesh High Court, Indore Bench, set aside the order of acquittal and convicted him on the basis that in a case arising under the Act "the idea of guilty mind" was different from that in a case like theft and that he contravened the provisions of the Act and the order made thereunder, it sentenced the appellant to rigorous imprisonment for one year and to a fine of Rs. 2,000 and in. default of payment of the fine he was to undergo rigorous imprisonment for six months. On appeal SC acquitted him - read section 7 of the ECA "if any person contravenes any order made under Section 3 he shall be punishable" - no mention of intention - presumption of intention Some strict liability offences in the IPC - S121 Waging war against India, S124A Sedition, Kidnapping & Abduction, S232 Counterfeiting Govt Coins General exceptions to cases where Mens rea is excluded - Statutory Offences - Offences against State, Army etc - Public Nuisance - Contempt of Court - Acts not criminal but quasi criminal in nature & prohibited in public interest - Public welfare offences which include socio economic offences - Weights & Measurement - License & Revenue - Environmental offences (eg M C Mehta case, Bhopal Gas leak case ) - Custom offences - Offences created by statute that are regulatory in nature - although proceeding is criminal, its really a mode of enforcing a civil right eg. violation of muncipal laws, town planning laws, etc. depends on time & condition of society

----------------------------------------------------------------------------------------------------------------(General exceptions) - Mistake (general exception 1) ( S76, S79 IPC) Sec 76. Act done by a person bound, or by mistake of fact believing himself bound, by law. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. Illustrations

or by mistake of fact believing himself justified.beleiving himself to be under attack. robbery.Accused shot at military personal mistaking them to be a wild animal. Held to be a mistake of fact. under the influence of madness. (1987) 2 SCC 498 Accused killed deceased with a lathi blow when deceased went to collect bell metal fr pond after recital of Bhagbat. robÂbery. subject to the restrictions contained in section 99. Explanation 1 A person is not deprived of the right of private defence against an act done. etc. in doing it. Secondly. Section 79. and the body of any other person. Two other cases Waryam Singh vs Emperor Bouda Kui vs Emperor person kills believing the other to be a ghost. (b) A enters by night a house which he is legally entitled to enter Z. Act against which there is no right of private defence There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt.Nothing is an offence which is done in the exercise of the right of private defence. in order to bring Z before the proper authorities. or which is an attempt to commit theft. of the power which the law gives to all person of apprehending murderers in the fact. Held to be protected by S79. that the person doing the act is such public servant. mischief or criminal trespass. A has committed no offence. a soldier. But A has the same right of private defence against Z. the want of maturity of understanding. Held tht accused protected by S79. Act done by a person justified. every person has the same right of private defence against that act which he would have if the act were that offence.(a) A. believes himself to be justified by law. 161 . In all these cases hd the accused taken reasonable care to ascertain who the person was. Even if deceased ws a thief thr ws no reason to strike a lathi blow on the head as he hd nt tresspassed his house and thr ws no threat to his life. and after due enquiry. by reason of the youth. (3) St of Or vs Ram Bahadur Thapa. unless he knows or has reason to believe. Right of private defence against the act of a person of unsound mind. mischief or criminal trespass.-. an officer of a Court of Justice. Explanation 2 . if done. or attempted to be done. in conformity with the commands of the law.106) Section 96.—The property.Servant kills women collecting firewood believing them to be ghosts.Under a moment of delusion believed his son to be a tiger. IPC.— His own body. Emperor vs Jagmohan Thukral . (b) A. though it may turn out that Z was acting in self-defence. There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt. When an act. it wud be reasonably inferred tht he believed in good faith tht he ws attacking a ghost & not a human being. attempts to kill A. Dhara Singh vs Emperor . the unsoundness of mind or the intoxication of the person doing that act. Right of private defence of the body and of property Every person has a right. Here Z. to defend— First. being ordered by that Court to arrest Y. though that direction may not be strictly justifiable by law. in the exercise. Section 97. Section 98. seizes Z. is not that offence. Illustration A sees Z commit what appears to A to be a murder. attacks A. Extent to which the right may be exercised The right to private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence. AIR 1960 Ori. Illustrations (a) Z. which would otherwise be a certain offence. or attempted to be done. Section 99. to the best of his judgment exerted in good faith. against any act which is an offence falling under the definition of theft. or by reason of any misconception on the part of that person. assailed with an axe. by law Nothing is an offence which is done by any person who is justified by law. arrests Z. may not be strictly justifiable by law. Things done in private defence. by a public servant acting in good faith under colour of his office. A has committed no offence. Prosecuted under 304 Part II as knowledge ws thr but no intent. fires on a mob by the order of his superior officer. becoz the circumstances under which the apparition appeared before him and hi predisposition. as such. Held to be a mistake of fact. ------------------Private Defence (general exception 2) (Ss 96 . There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. commits no offence. But A has the same right of private defence which he would have if Z were sane. in good faith. against any offence affecting the human body. Z is guilty of no offence. Nevertheless the HC held tht assailant ws protected by S79. Chirangi vs State . believing Z to be Y. Held not to be a mistake as previous strained relations with accused. whether movable or immovable. (4) St of Or vs Bhagaban Barik. by the direction of a public servant acting in good faith under colour of his office. by attacking A under this misconception. A. by a public servant. of himself or of any other person. which he would have if Z were not acting under that misconception. though that act. A has committed no offence. or who by reason of a mistake of fact and not by reason of a mistake of law in good faith. if done. he wud have easily known tht he ws attacking a human being & not a ghost. taking A for a house-breaker.shot at ppl who hd surrounded his house . or attempted to be done.

AIR 1999 SC 1083. occasions the exercise of the right of private defence. under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Jai Bhagwan v. or criminal trespass. the committing of which. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. or attempted to be done. tent or vessel. to the voluntary causing of death or of any other harm to the assailant. State of Punjab.A person is not deprived of the right of private defence against an act done. which building. Fifthly. Section 103. or house-trespass. tent or vessel is used as a human dwellÂing. Section 105. namely:— First. subject of course to restrictions mentioned in section 99. the right of private defence of the body does not extend to the voluntary causing of death to the assailant. and it continues as long as such apprehension of danger to the body continues. under the restrictions mentioned in Section 99. namely:— First. or the property has been recovered.— An assault with the intention of kidnapping or abductÂing.— Mischief by fire committed on any building. then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. Puran Singh v. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint of as long as the fear of instant death or of instant hurt or of instant personal restraint continues. Secondly. if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated. When such right extends to causing any harm other than death If the offence . under the restrictions mentioned in the last preceding section. Section 104.— Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.— Robbery. Fourthly. Section 102. or if he has authority in writing. be an offence of any of the descriptions hereinafter enumerated. if the offence. Comments Time to have recourse to the protection of the public authority Where there is an element of invasion or aggression on the property by a person who has right to possession.—House-breaking by night. if demanded. When such right extends to causing any harm other than death If the offence be not of any of the descriptions enumerated in the last preceding section. to the voluntary causing to the wrong -doer of any harm other than death. not of any of the descriptions enumerated in the last preceding section. that right does not extend to the voluntary causing of death. Comments Right of private defence short of death Section 104 will apply if the wrong doers commit or attempt to commit any of the following offences: (1) theft. by the direction of a public servant. under the restrictions mentioned in section 99. and in such a case the right of private defence of property would extend only to causing harm other than death to him. subject to the restrictions mentioned in section 99. Commencement and continuance of the right of private defence of the body The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. 1975 Cr LJ 1479 SC. State of Haryana.—An assault with the intention of gratifying unnatural lust. or has reason to believe. Fourthly. Thirdly. or the attempting to commit which. When the right of private defence of the body extends to causing death The right of private defence of the body extends. or as a place for the custody of property. if such right of private deÂfence is not exercised. or the attempting to commit which. unless he knows. Sixthly. but does extend. to the voluntary causing of death or of any other harm to the wrong-doer. When the right of private defence of property extends to causing death The right of private defence of property extends. Section 101. be theft. Thirdly. Commencement and continuance of the right of private defence of property The Right of private defence of property commences when a reasonable apprehension of danger to the property commences.— An assault with the intention of committing rape.—Theft. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such . mischief. occasions the exercise of the right. Section 100.— An assault with the intention of wrongfully confining a person. mischief. Secondly.—Such an assault as may reasonably cause the apprehenÂsion that grievous hurt will otherwise be the consequence of such assault. or unless such person states the authority under which he acts. unless he produces such authority. but does extend. (2) mischief or trespass not of the description which is covered under section 103. to the voluntary causing to the assailant of any harm other than death. under such circumÂstances as may reasonably cause apprehension that death or grievÂous hurt will be the consequence. the committing of which. that the person doing the act is acting by such direction.

.started beating him up .S99 .what law authorizes him .Apellant snatched Khutai frm Bucha's hand and gave him 3 blows on the head Then carried away Har Charan in cart . .106 Body.7 O'Clock incident.P.Ram Swarup fired shot killed Munimji .upheld sessions judge conviction of Ram Swarup (reduced sentence to life term) . Gov Serv S14. the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person his right or private defence extends to the running of that risk. Bucha died soon afterwards . Illustration A is attacked by a mob who attempt to murder him. and he cannot fire without risk of harming young children who are mingled with the mob. two other sons (Lathis) .HC disbelieved 7 O'Clock incident . He cannot effectually exercise his right of private defence without firing on the mob.no RPD against Pub Serv in a legal or irregular act.C. it is lawful to repel that force in self-defence.young daughter(15yrs) compromising position with accused . This right rests on the principle that where a crime is endeavored to be committed by force. Ram Swarup(Gun). If. [60D-H. But while the trial Court acquitted all the accused on the ground that the accused were exercising their tight of private defence. however. Knwldge nt defn.Bucha picked up Khutai lying nearby & gave 3 blows to Har Charan on the head(died soon after) .In appeal SC -> Acquitted Ganga Ram on all counts .General RPD. I.nothing is an offence done in RPD S97(1) RPD of body S97(2) RPD of Property S98 Availability S99 No RPD against Public Servant unless apprehension of Grievious hurt or death [Pub Serv S21. Allowing the appeal to this Court. Acquitted (othr two sons. danger. the High Court held that the .appellant exceeded his right of private defence on the sole ground that he had used his spear with greater force than was necessary.held Bucha acted in self defence . The threat. 61A] Therefore. Color of his office . though the offence may not have been committed. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence Committed by him. 302/149.house-breaking continues. Ganga Ram(Life u/s 302 rw 34).HC right in convicting accused.killed accused with spade lying nearby .held no indication of Right of Private Defence (6) Deo Narain vs St of UP (1973) 1 SCC 347: AIR 1973 SC 473 There was a clash between the parties of the accused and complainant over the possession of certain land. preventive nt punitive right. acquitted Ganga Ram of a knife attack on Nanak Chand) .. and not to remote or distant.held presence in Sabzi Mandi fr purpose of buying melons nt fr killing .RPD granted Vishwanath vs UP. Criminal Trespass S441) RPD in Recapture of property in same transaction of being taken away is authorized .HC acquitted Ganga Ram & Ram Swarup under right to Private Defence . he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.held burden of prosecution to estb case beyond a reasonable doubt is neither neutralized nor shifted becoz the accused pleads RPD.appellant appealed to SC claiming RPD -contended tht they went to Bucha's house unarmed.C.dragged him out .SC dismissed appeal . It is a preventive and not a punitive right.P. [61A-B] (b)The approach of the High Court that merely because the complainant's party had used lathis. in which the appellant inflicted a fatal spear injury on the chest of the deceased.learned Sessions Judge Sentenced Ram Swarup(Death u/S 302).held too trifle anyhow to justify shooting .Appellants went to deceased(Bucha's) house .doing a legal act .104.after interval of time however justifiable cannot be called RPD [Amar Singh vs St of Raj) (5) St of UP vs Ram Swarup (1974) 4 SCC 764: AIR 1974 SC 1570 Ganga Ram contract of Tehbazari in market fr 1954-69. Ganga Ram(knife). in a prosecution for offences under s. that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head.102.101. and that such forcible obstruction and prevention were unlawful. Good faith S52. Govt Serv Specie. the trial court and the High Court found that the party of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons. as soon as the appellant reasonably apprehended danger to his body even from a threat (which is real) on the part of the complainant's party to assault him for the purpose of forcibly taking possession of the land in dispute or of obstructing their cultivation. rest Ganesh & Damrulal convicted u/s 323 IPC imposed fine of Rs 50 each (didn't appeal) by HC . Mischief S425-440. Reason to believe S26) Public Servant Genus. 102. available in a illegal act(whr apprehension of griev hurt or death) Yeshwant Rao vs St of MP . A commits no offence if by so firing he harms any of the children. I. (7) Kishan vs St of MP (1974) 3 SCC 623: AIR 1974 SC 244 Dispute over using bricks . Section 106. According to that section the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in s.Appellant convicted to life u/s 302 IPC.went to police station & filed an FIR. Robbery(S390). HELD:The High Court erred in convicting the appellant on the ground that he exceeded his right of private defense. Right of private defence against deadly assault when there is risk of harm to innocent person If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death. and such right continues so long as such apprehension of danger to the body continues. S96 .RPD granted RPD of Property availability (Theft(S378). Nanakram vs State -> Paramour kills husband while husband forcefully taking away wife. 100. and convicted him for an offence under s. S96 . must reasonably give rise to the present and imminent. 304.Case comes u/s 300(3) . deceased Munimji outbid him in 1970-71 . after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. 103.105 Property . 302 and s. the appellant was not justified in using his spear is equally misconceived aid cannot be supported under s. Ss 100.

from disease of mind. at the time of the committing of the act. by reason of intoxication. by reason of unsoundness of mind. at the time of doing it.Prosecution version that factory open defence version that factory gates closed & bandh activists jumped over gate . but in the circumstances of the case. The mere fact that no motive was proved as to why the accused murdered his wife and child nor the fact that he made no attempt to run away when the door was broken open. for having caused the death of his wife and a female child with a chopper. as soon as the threat becomes so imminent.P.Called Mc Naghten's Rule . or if he did know it.Kusi Village Bund -Malpura villager broke bund . and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct. or that he is doing what is either wrong. State of Maharashtra. Thus the court set aside TC & HC judgement & acquitted accused -----------------------------------Unsoundness of Mind & Intoxication ( general exception 3) (S84.4(with guns sentenced by TC u/s 304 Pt I 5 years & u/s 25(1) of arms act 9 othrs acquitted) .HC found all guilty u/s 302 rw 149 held tht accused didn't have RPD at any stage . Due weightage has to be given to.Two versions .(8) Mahabir Choudhary vs St of Bihar (1996) 5 SCC 107 Drought . appellants still continued firing . Alexander Cockburn. S85. State of Andhra Pradesh. the appellants had exceeded right to private defence. Mirza Ghani Baig v.period of sanity in a person who is Non compos mentis(not of sound mind) Section 84. I.was a Scottish woodturner who assassinated English civil servant Edward Drummond(thinking him to be the Prime Minister) while suffering from paranoid delusions . a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances. AIR 1972 SC 2443. Such situations have to be pragmatically viewed and not with high. COMMENTS Ingredients of involuntary drunkenness Voluntary drunkenness is no excuse for commission of a crime.C.outrage . Principle (i) So far as knowledge is concerned. Section 85.M'Naghten's defence team was led by one of London's best-known barristers. Act of a person incapable of judgment by reason of intoxication caused against his will Nothing is an offence which is done by a person who. The State of Punjab (AIR 1991 SC 1316). is.that to establish a defense on the ground of insanity. the standard of test is same as in case of intention. is incapable of knowing the nature of the act. Rejecting the plea of insanity the Supreme Court observed that the law presumes every person of the age of discretion to be sane unless the contrary is proved. The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing―. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime.13 accused . as not to know the nature and quality of the act he was doing.change in brain tissue due to drug abuse.HC upheld conviction . or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will. where self-preservation is the paramount consideration.Trial court held Appellants guilty (7 yrs RI + Rs2000 fine) .Dementia Naturalist (by birth) . it must be clearly proved that.Acquitted on grounds of insanity .altercation between mob & Appellants . bullets injured some locals . the number of injuries required to disarm the assailants who were armed with weapons. this court upheld the judgment of the sessions court holding that since the appellants had right to private defence to protect their property.. (1997) 2 Crimes 19 (AP). could not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence. or that he is doing what is either wrong or contrary to law. Seralli Wali Mohammed v.Appeal to SC Apex Court held that “the High Court erred in holding that the appellants had no right to private defence at any stage. Act of a person of unsound mind Nothing is an offence which is done by a person who. Mohan requested appellants not to shoot at bandh activists. Mirza Ghani Baig v. COMMENTS Insanity needs to be proved The accused was charged and committed under section 302. incapable of knowing the nature of the act. .powered spectacles or microscopes to detect slight or even marginal overstepping.on being questioned by the Queen the jurors gave the Mc Naughten rule Mc Naughten Rule states:"Every man is to be presumed to be sane. it would be lawful to repel the force in self-defence and the right of private-defence commences." .bullet hit Basheer. State of Andhra Pradesh. case was prosecuted by the solicitor-general.SC obsrvd in Butta Singh v. at the time of doing it.. intoxication over period of time Lucid interval .who then set fire to the factory & mill . that he did not know he was doing what was wrong. S86) Principles of Legal insanity based on R vs Daniel Mc Naghten . and .However.Dementia Accidentialis/Adrentitia (Accquired Insanity) Derilium tremeus .Appellants fired frm inside the house .St appealed to HC .Bread factory & flour belonging to accused open . In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force. (1997) 2 Crimes 19 (AP). (9) James Martin vs St of Kerala (2004) 2 SCC 203 Bandha Imposed by a political group .two casualties Mohanan(on the spot) & Basheer(at hospital). the party ACCUSED was laboring under such a defect of reason. Sir William Follett (the attorney-general being busy in Lancaster prosecuting Feargus O'Connor and 57 other Chartists following the plug riots) .Appeal to SC .

dream .diff between medical insanity & legal insanity held accused guilty Anandi vs Emperor . State of Andhra Pradesh.broad daylight .Sessions Judge found appellant guilty becoz of lack of motive sentences accused fr Life term u/s 302 . unless the thing which intoxicated him was administered to him without his knowledge or against his will.Lady named Anandi kills boy .paranoid schizophrenia (iv) Within a short span(5 months) soon after incident he hd to be taken fr treatment 25 times (v) Appellant ws under regular treatment for the mental ailment (vi) Weak motive of killing of the wife .learned sessions judge disagreed & sentenced him u/s 302 IPC.committed murder in broad daylight & did nt try to hide it or tht motive ws very weak or did nt have required mens rea does nt amount to insanity of mind .pleaded unsoundness of mind .court upheld sentence changed conviction frm u/s 302 to u/s 304 II .pleaded protection u/s 84 .(ii) The court must attribute to the intoxicated man the same knowledge as if he was quite sober unless he was besides his mind altogether at the time of incident.but some secrecy in act of accused (concealing the corpse & hiding in the jungle) .mosque .murdered Chedi Lal (step brothr) .grndfthr insane .evidence by Civil Surgeon & anothr doctor in her favor .accused hd been in unsound state of mind preceeding the incident for some months due to the shock recvd by him frm the destruction of his house & property by fire . (1997) 2 Crimes 19 (AP).no attempt to hide or flee Resonable doubt in the mind of the court tht appellant.doli incapax @time of incident hs to be proved. Mirza Ghani Baig v.obsrvd prosecution evidence may be divided into 3 catergories (i) Motive (ii) Conduct before incident & after incident (iii) Subsequent conduct of appellant & his conduct during trial Court held conduct subsequent to killing & after killing does not support contention that he ws insane .two assessors favored acquittal .TC judgement upheld (11) Lakshmi vs State.it hs to be noted tht not all forms of unsoundness of mind is exempt frm criminal responsibility .demand money fr relatives .heavily drunk . Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all.pleaded insanity u/s 84 Circumstances proved by appellant (i) Family history .diagnosed .went to his uncle but seeing a chowkidar took him some distance away & told him the story .ws calm & composed in police station answered all questions frm magistrate . AIR 1959. Mirza Ghani Baig v. Section 86.held guilty .SC held tht delusion no grnd for protection u/s 84 .accused .cal bench held insanity u/s s84 . a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated. State of Andhra Pradesh.evidence showed accused fond of boy & no quarrel with father . S149 ) Section 34. (10) Queen Empress v Kader Nasyer Shah (1896) ILR 23 Cal 604 Accused arrested fr murdering 8 yr old .sacrifice son . each of such persons is liable for that act in the same manner as if it were done by him alone. (1997) 2 Crimes 19 (AP). COMMENTS . Dahyabhai Chhaganbhai Thakkar vs St of Gujarat . S141.doli incapax @time of incident. All 534 Lakshmi . Offence requiring a particular intent of knowledge committed by one who is intoxicated In cases where an act done is not an offence unless done with a particular knowledge or intent. Life term .heredity plays a part (iii) Appellant ws being treated fr unsoundness of mind since 1992 .killed wife .hid in the jungle . COMMENTS Ingredients (i) The prosecution has to prove that in spite of drunkenness the accused had intention to commit the act forbidden by law.protection u/s 84 nt granted (13) Basdev v St of PEPSU (1956) SCR 363: AIR 1956 SC 488 Appellant .father suffering frm psychiatric illness (ii) Cause of illness nt known .Court disagreed with appelant counsel .only incapable of knowing the nature or one's act .hence grntd protection u/s 84 (12) Shrikant Anandrao Bhosale vs St of Mah (2002) 7 SCC 748 Appellant police constable -quarrel . (1997) 2 Crimes 19 (AP). (ii) Sometimes intention on the part of the person who is drunk can also be assessed from the nature of weapon used in the comÂmission of the offence.being tht she ws opposing the idea of the appellant resigning the job of police constable (vii) Killing in daylight . given protection u/s 84 conviction by HC set aside Held anger element a part of schizophrenia Also added a rider frm [Sheralli Wali Mohd vs St of Mah] tht mere fact tht appellant did nt run away .hereditary insanity .letter to father of girl showing motive behind act . If a person uses a weapon which is not dangerous and the attack results in death. State of Andhra Pradesh.did not deny assault . a malicious intention cannot be drawn against him even though drunkenness is no excuse.did nt run away.decided nt to confess . hide or flee .fled scene of crime surrendered later .strangled 8yr old boy to death . Mirza Ghani Baig v.protection u/s 86 nt granted as intoxication ws nt voluntary ---------------------------------------------------------Group Liability ( S34.habited to ganja & bhang .Appeal to HC unsuccessful .killed wife with grinding stone while she ws washing clothes .used to beat wife & mother .doli incapax .no motive in crime .evidence of motive thr .conduct of appellant at time of incident & both antecedent & subsequent conduct negate the plea of insanity u/s 84 IPC Ashiruddin Ahmed vs The King .shoots young boy(15-16) at marriage party .

(ii) It requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior meeting of mind. Mere distancing from the scene cannot absolve the accused. Nethala PothuraÂju v. Chittarmal v. (1989) Cr LJ 875: AIR 1989 SC 1137. Distinction between ’common intention’ and ‘common object’ A clear distinction is made out between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds. State of Bihar. no bar in convicting the accused under substantive section read with section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all. Rangaswami v. The nonapplicability of section is. State of Andhra Pradesh. Jai Bhagwan v. as a result of which one man died. he is equally liable like his co-accused. State of Punjab v. Section 141. (1991) Cr LJ 3133 (SC). disability due to polio on his lower limbs. While one faction was waiting on the roadside for a bus. Ram Blias Singh v. Jamun v. State of Tamil Nadu. State of Goa. (1997) 2 Crimes 666 (Bom). there was a long standing enmity between two rival factions in a village. (ii) In order to convict a person vicariously liable under section 34 or section 149 it is not necessary to prove that each and everyone of them had indulged in overts acts. AIR 2003 SC 333. State of Uttar Pradesh. (iv) In the instant case. Sadashivaiah Din Kodimallappa. T. the common intention can be formed in the course of occurrence. Abdulla Kunhi v. Hari Om v. State of Bihar. two factors must be established: (i) common intention. (1989) Cr LJ 1782: AIR 1989 SC 1593. State of Kerala. Santosh Desai v. (iv) It has been held that the requirement of statute is sharing the common intention upon being present at the place of occurrence. The fact that the accused held the hand of one of the deceased to facilitate assailants to assault deceased. AIR 1999 SC 3229: 1999 (8) SCC 154: 1999 (6) JT 14: 1999 (4) Crimes 78 (SC). (ii) In order to bring a case under section 34 it is not necesÂsary that there must be a prior conspiracy or pre-meditation. On the day fixed for a hearing in the Magistrate’s Court in a neighbouring town. State of Orissa v. Difference in operation of section 34 and section 149 (i) Both sections 149 and 34 deal with a combination of persons who become liable to be punished as sharers in the commission of offences. to hold the hand of the deceased cannot be accepted.K. Unlawful assembly An assembly of five or more persons is designated an “unlawful assembly―.Common intention (i) The burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherence of common intention at a prior concert. Ingredients (i) When an offence is sought to be proved only on circumstanÂtial evidence. AIR 1991 SC 452. read with section 34. (iii) When the accused rushed with sword drawn itself showed that he shared the common intention hence liable for conviction under section 300. members of both factions left their village armed with sticks and lathis. section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent. (1997) 3 Crimes 170 (P&H). AIR 1957 SC 469. while common object does not necessarily require proof of prior meeting of minds or pre-concert.C. by their conduct. and proceedings under the Criminal Procedure Code were pending against members of both factions. State v. apart from the fact that there should be two or more accused. if the common object of the persons composing that assembly is— . Participation in the Criminal Act (i) To apply section 34. because for the purpose of section 34 only such presence makes a man a participant in a joint crime as is established to be with the intention of lending weight to the commission of a joint crime. is said to have shared common intention of committing murder of deceased. 1999 (8) SCC 555: 1999(6) JT 560: 1999 (2) JCC (SC) 471. If common intention is proved but no overt act is attributed to the individual accused. the allegations of common intention under section 34 normally cannot be established in absence of meeting of mind. State of Punjab. Arjun Das. State of Rajasthan. (iv) The contention that the appellant was physically not in a position because of the sixty per cent. section 34 cannot be invoked. therefore.P. Fauja Singh. Major Singh v. Though there is a substantial difference between the two sections namely 34 and 149. AIR 2003 SC 342. (ii) Where the evidence did not establish that particular accused has dealt blow the liability would devolve on others also who were involved with common intention and as such conviction not sustainable. The members of the opposite faction were charged and convicted under sections 302/34 I. State of Haryana. the other faction arrived and a fight ensued in which severe injuries were caused on both sides. by using the weapons by their utterance of words. State of Bihar. AIR 1999 SC 1083. State of Punjab. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert: Ramashish Yadav v. and (ii) participation of accused in the commission of an offence. (iii) If some act is done by the accused person in furtherance of common intention of his co-accused. It was held that the mere presence of a person armed with a deadly weapon at the spot of a crime does not necessarily make him a participator in a joint crime in every case. 1999 (1) CCR 152 (Kant). Lallan Bhai v. (1993) 1 Crimes 294 (SC). (iii) Mere surrender by appellant alongwith accused before police does not show meeting of minds as to bring the case within ambit of section 34. AIR 2003 SC 796. the overt act of the accused. they also to some extent overlap and it is a question to be determined on the facts of each case.

Joseph Mingel Koli. whose version of the story has been accepted as ture by the High Court and summarised as follows: Quasim Shah then caught the rope and tried to snatch it away. Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah. Mere membership of the unlawful assembly is sufficient. the presence of the accused as part of unlawful assembly is sufficient for conviction. is a member of the same assembly. Every member of unlawful assembly guilty of offence committed in prosecution of common object If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly. HC sentenced Mahbub Shah u/s 302 rw 34 IPC . AIR 1945 PC 118 On August 25. While the boat was being pulled upstream by means of a rope Ghulam Quasim Shah. or other offence. at sunrise. (1997) 2 Crimes 228 (Bom). he warned them against collecting reeds from land belonging: to him. 10 and Nur Mohammad P. State of Maharashtra v.— By means of criminal force. Allah Dad. State of Madhya Pradesh.— To commit any mischief or criminal trespass. Ignoring his warning they collected about sixteen bundles of reeds. to any person. when the charge is under section 149. or any public servant in the exercise of the lawful power of such public servant. Court held that a furtherance of the common design is a condition precedent to convicting each one of the persons who take part in the commission of the crime. is guilty of that offence. or show of criminal force. (iii) Even if no overt act is imputed to a particular person. at the time of the committing of that offence. every person who. When they had travelled for about a mile downstream. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick but it was warded off on the rope. deceased. 1[the Central or any State Government or Parliament or the LegisÂlature of any State]. or Second. They had guns in their hands. nephew of Mohammad Hussain Shah-acquitted by the High Court-who was standing on the bank of the river asked Ahah Dad to give him the reeds that had been collected from his uncle's land. or show of criminal force. 1999 (6) JT 560: 1999 (2) JCC (SC) 471.First. CLASSIFICATION OF OFFENCE Punishment—The same as for the offence—According as offence is cognizable or non-cognizable—According as offence is bailable or nonbailable—Triable by court by which the offence is triable—Non-compoundable.— To overawe by criminal force. the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed to him. or to enforce any right or supposed right. or to deprive any person of the enjoyment of a right of way.W. or to omit to do what he is legally entitled to do. State of Maharashtra v. Yunis alias Kariya v. On being told that they were going to collect reeds. may subsequently become an unlawful assembly. State of Madhya Pradesh. Joint liability of members of unlawful assembly (i) It is well settled that once a membership of an unlawful assembly is established. (14) Mahbub Shah v Emperor. to compel any person to do what he is not legally bound to do. Ramashish v. Section 149.— By means of criminal force. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up. He refused. Allah Dad then picked up the Iari from the boat and struck Quasim Shah. or such as the members or that assembly knew to be likely to be committed in prosecution of that object. (ii) Every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed. (ii) Conviction by taking recourse to section 149 cannot be made out unless five specified objects enumerated in section 141 are not proved. AIR 2003 SC 539. father of Wali Shah (absconder) bathing on the bank of the river. or of any legal process. (1997) 2 Crimes 228 (Bom).W. or Third. When Allah Dad and Hamidullah tried to run away. causing injuries to him. 11. also convicted of attempted murder sentenced to 7yrs RI (which is nt appealled) . Joseph Mingel Koli. State of Bihar. to take or obtain possession of any property. What happened subsequently was spoken to by two boys Nur Hussain P. or show of criminal force. AIR 2003 SC 539. they saw Mohammad Shah. and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime. or Fourth. 1943. Yunis alias Kariya v. or of the use of water or other incorporeal right of which he is in possession or enjoyment. it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. with a few others left their village Khanda Kel by boat for cutting reeds growing on the banks of the Indus river.— To resist the execution of any law. or Fifth. COMMENTS Scope and applicability (i) When the charge is under section 149. (15) Pandurang v St of Hyd (1955) 1 SCR 1083: AIR 1955 SC 216 . Appeal allowed & Set aside conviction u/s 302 rw 34 and death sentence of Mahbub Shah. Explanation An assembly which was not unlawful when it assemÂbled. and then started for the return journey.

P. 5 Cr.P.Accused appealed to HC .SC held tht mere fact tht no overt act has been attributed to each of the accused is nt sufficent to hold tht charge u/s 149 IPC hs nt been proved against them . 3 were acquitted by the trial court . In a case like that.out of the remaining 15 accused persons. I. Even if the offence committed was not in direct prosecution of the common object of the assembly. Queen v. 731.massacre of Ramesh's family incl . Sabid Ali. ^ HELD: It was not permissible for the High Court to invoke s. to have the same intention independently of each other. Indian Penal Code. . and if overlooked will result in miscarriage of justice. I49 if it could be shown that the offence was such as the members knew was likely to be committed. While Tej Singh stood guard. each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others. and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. Maiku started ploughing and overturning the jowar that had been sown in one portion of the field and the others started cutting the sugarcane which stood in another portion. Rasika Bai started to pick chillies in the field while Ramehander went to another field "Vaniya-che-seth" which is about a furlong away. referred to. requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another. But there must be pre-arrangement and premeditated concert.C. about 3 o'clock in the afternoon. 34.Pandurang. 149 Indian Penal Code. Their petition was granted. The extent to which the members of the unlawful assembly were prepared to go in prosecution of the common object.7).R. his nephew Subedar. On 7-12-1950. A.. The fact that he used the pistol at the instance of his father was not a mitigating circumstance. the partition which divides their bounds is often very thin.othrs were convicted u/s 302 rw S149 IPC and sentenced to life . his son Mizaji armed with a pistol which he carried in the folds of his dhoti. . The appellants contended that the other appellants could not have the knowledge that Mizaji carried a pistol in the folds 941 of his dhoti. We gather that this field is near a river called Papana. the act must have boon done in furtherance of the common intention of them all. 34 of tile Indian Penal Code presupposes prior concert. that the appellants had been rightly convicted and sentenced under S.The plan need not be elaborate. whereupon all the accused gathered near Tej Singh and asked the complainants to go away otherwise they would be finished.1) and his servant Subhana Rao (P. Tej Singh asked Mizaji to fire at them and Mizaji shot Rameshwar dead. The circumstances show that the appellants must have known that Mizaji was carrying a pistol.W. common intention in s. The trial court acquitted the four accused but convicted the appellant under s.no blow in individual capacity to cause death of deceased (17) Mizaji vs St of UP. namely the intention to kill.Contended that even if accused were seen on spot of crime they cannot be convicted as prosecution fails to prove common object an essential element of S149 . who were sentenced to death. Under the first part Of S. 302/149 I.C. Chikkarange Gowde v. In appeal to this Court.149 or s. Accordingly there must have been a prior meeting of minds.W.I. He shared the common object of the unlawful assembly and carried the pistol from his house to use it in prosecution of the object and did use it. nor is a long interval of time required. such as might or might not happen. The High Court dismissed the appeal of the State against acquittal as also the appellant's appeal against conviction. The prosecution case is this.3 were convicted u/s 302 sentenced to death .TC right in conviction as confirmed rightly by HC . I49 the offence committed in prosecution of the common object must be one which was committed with a view to accomplish the common object and must be connected immediately with the common object of the unlawful assembly of which the accused were members. It is not enough. (1956) S. I.C. The Courts below found that the common object of the unlawful assembly was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if interfered with.shot indiscriminately around 300 . It accordingly convicted the appellants under s.set fire to it . is indicated by the weapons carried by them and their conduct. and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case.P. The fact that the appellants went to take possession in the absence of the complainants did not show that the common object was not to take forcible possession as proceedings were going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with lethal weapons prepared to overcome the opposition which they knew they would meet. 302 read with s.C. nevertheless the distinction is real and substantial. SC reduced sentenced to transportation fr life fr Bhilia & Tukia and fr Pandurang conviction u/s 326 & sentenced fr causing grievious hurt (16) Maina Singh v St of Raj (1976) 2 SCC 827: AIR 1976 SC 1084 The appellant and four others were charged with offences under ss.to prove case prosecution examined 8 witnesses named 16 appellants out of which one died Mani Singh (A16) . 302 read with s. 302 read with s. (1873) 20 W. When Rameshwar and others arrived they protested to Tej Singh. It could arise and be formed suddenly.Not to confuse same or similar intention with common intention.400 rounds of shots terrifying the whole locality -defence contended tht only Manoj Kumar cud be convicted but rest were only bystanders . Rasika Bai heard shouts from that direction. SC changed conviction of accused fr 302 rw s34 ..Appealed to SC . The other two have not appealed.HC upheld conviction but changed sentence of death to life term . Tukia and Bhilia. Held. 34.A3 Parvati Devi . Ramchander Shelke (the deceased) went to his field known as "Bhavara" with his wife's sister Rasika Bai (P. the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp-edged weapon. IPC to S326 IPC reduced sentence to 10 yrs IPC. Mizaji was rightly given the sentence of death. On their refusal to go. (18) Chandra Bihari Gautam v St of Bihar (2002) 9 SCC 208 300-400 people in khaki dress armed with deadly weapons attacked house of victim . AIR 1959 SC 572 Early one morning the five appellants. The expression 'know' does not mean a mere possibility. that the murder was not committed in prosecution of the common object to take forcible possession nor did the other appellants know that murder was likely to be committed in furtherance of the common object. his cousin Machal and his servant Maiku armed with lathis went to take forcible possession of a field which was in the cultivatory possession of Rameshwar and others.. . State of Mysore. applied here for special leave to appeal. Several persons can simultaneously attack a man and each can have the same intention. 149. Allowing the appeal in part. and sentenced Mizaji to death and the others to imprisonment for life. The appellants were prepared to take forcible possession at any cost and the murder was immediately connected with the common object.Appeal dismissed accordingly (19) Suresh vs St of UP (2001) 3 SCC 673 Animosity among Suresh(A1) & A2Ramji(appellants) & Ramesh(deceased) over piece of land . so she ran to the river bank with Subhana and they both say that they saw all five accused attacking Ramchander with axes and sticks. Tej Singh armed with a spear. it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of the other accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity.R. it would yet fall under s.

A2 wid death . shall. with the intention of causing the death of a child of tender years.reasonable doubt . Nothing to show tht A3 acted in furtherance of common intention . JT 1994 (3) SC 392. be punished with death. and under such circumstances that.nothing to show tht case is nt a rarest of rare case . A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. or with both. if hurt is caused. (c) A. Gian Kaur v.one survivor PW3 (Jitentra) 7 yr old son of Ramesh . though the death of the child does not ensue. Attempt to murder Whoever does any act with such intention or knowledge. There is no requirement of awarding any minimum sentence. the offender shall be liable either to 1[imprisonment for life]. Attempts by life convicts. he may. Dhirajia. A is guilty under this section. JT 1996 (3) SC 339. A1. Union of India. Right to die vis-a-vis Right not to die The Supreme Court has set aside its earlier judgment in P. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence. A has committed the offence defined in this section. The sentence of imprisonment or fine is not compulsory but disÂcretionary. and therefore is guilty under this section. he would be guilty of murder.Case went to SC Held S34 two aspects are indispensable (1) Criminal Act shld hv been done not by one person (2) Doing of every such individual act cumulatively in furtherance of common intention of all such persons. if death ensued. Article 21 of the Constitution. Illustrations (a) A makes an attempt to steal some jewels by breaking open a box. that there is no jewel in it. AIR 1940 All 486. A fires the gun at Z. or to such punishment as is hereinbefore mentioned. the right to die by suicide cannot be granted to any person.HC aquitted A3 . and finds after so opening the box. (b) A. shall be punished with simple imprisonment for term which may extend to one year 1[ or with fine. he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section. and shall also be liable to fine. A would be guilty of murder. be punished with 2[imprisonment of any description provided for the offence. where no express provision is made by this Code for the punishment of such attempt. intending to murder Z by poison. 4 Stages of a crime (i) intent : Lord Mansfield observed.refused to reduce sentence ----------------------------------------------------------Attempt ( S511. Law does not take notice of mere . or both—According as the offence is cognizable or non-cognizable—According as the offence attempted by the offender is bailable or not—Triable by the court by which the offence attempted is triÂable—Non-compoundable. COMMENTS ‘Attempts to commit suicide’ as under sections 306 and 307 A person who jumps into a well in order to avoid and escape from her husband and subsequently comes out of the well herself. it is not punishable by our laws―. exposes it in a desert place. wherein the Court had struck down section 309 as unconstitutionÂal. State of Punjab. purchases poison and mixes the same with food which remains in A’s keeping. Section 309. one-half of the longest term of imprisonment provided for that offence]. RathiÂnam/ Nagbhushan Patnaik v. (d) A. A has not yet committed the offence defined in this section. 307. He has done an act towards the commission of theft. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment. if he by that act caused death. He has committed the offence defined in this section. A fails in the attempt in consequence of Z's having nothing in his pocket. intending to murder Z.no corroboration of PW3 against A3 by PW1(unlce of Ramesh) & PW2(Amar Singh a neighbour) who just saw her standing outside. cannot be convicted under this section if there is no evidence to show that she wanted to commit suicide. for a term which may extend to one-half of the imprisonment for life or.wife little kids . and if hurt is caused to any person by such act. or fine. under such circumÂstances that. A has committed the offence defined by this section.A3 holding his mother by the hair & saying everyone shld be killed then going outside . which gives right to life and personal liberty. Emperor v.narrated incident of A1 & A2 killing his entire family cutting sleeping children with knife & chopper .] (Whether Constitutional ?) llustrations (a) A shoots at Z with intention to kill him. shall be punished with imprisonment of either description for a term which may extend to ten years.TC sentenced all 3 u/s 302 rw 34. 309 IPC ) Section 511. A has not yet committed the offence. and if by such firing he wounds Z. or with such fine as is provided for the offence. Section 307. by no stretch of imagination can be said to impliedly include right to death by committing suicide. The section is also not violative of article 14. A is liable to punishment under this section. In a country where one-half of its population still live below the poverty line. and in such attempts does any act towards the commission of the offence. or to cause such an offence to be committed.acquttal of A3 upheld by SC .—2[When any person offending under this section is under sentence of 1[imprisonment for life]. as the case may be. or with both]. “so long as an act rests in bare intention. (b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. buys a gun and loads it. Attempt to commit suicide Whoever attempts to commit suicide and does any act towards the commission of such offence. SC upheld conviction & sentence of A1 & A2 .

or which might lead to harassment of innocent persons.387. and Making preparation to commit dacoity (section 399. Thus. that in taking this step. IPC). Preparation punishable in Exceptional cases:. Tests laid down by court in cases of attempt 1.200. 243. being merely preparation. or was done with an evil motive or intent. It is impossible to prove the mental state or man and a tribunal can not punish a man for that which he can not know. It would be impossible in most cases to show that the preparation was directed to a wrongful end. as with any other crime. whether due to charge of heart or due to reasons. (ii) preparation : consist in devising or measures necessary for the commission of crime. 237. and 3. but in efficacy to some harmful consequences. 259 and 266.198.causal factor which is closest. nor could society be disturbed or its sense of vengeance aroused by what to all outward appearances would be an innocent act . In other words. Sections 121. Scofield. The reason is obvious. b) In some cases attempts are treated as separate offences and punished accordingly. Besides.153A.213.thought of a person. But there are some exceptions to this rule. 392(prep fr dacoity) Preparation punishable] Attempt in IPC The code does not define this expression. IPC).130. 235. or is arrested before he is able to complete the offence.240. namely. Purchasing a gun is not punishable . which would constitute a specific felony or misdemeanor.251. followed thereafter in R v.131. Whatever be the nature of intervention. in English Law.161. or fires without effect. As it came to be crystallized subsequently. not necessarily in time or space.and 460. clearly conveys with it the idea that if the attempt had succeeded. Making or selling or being in possession of instrument for counterfeiting coin or Government stamps (section 223-235and 257. False weight. S503 Intent punishable. III) Attempt to commit suicide (section 309). it would harass the suspected persons.391. or the act committed by the accused was something which in the eye of law marked the commission of an offence.241. an attempt should also have the two elements mens rea and actus reus. I) Attempt to commit murder (section 307).389. attempt is the direct movement towards the commission of an offence after the preparation has been made (iv) Forbidden consequence ensuing frm act of the accused after the stage of preparation is over From Preparation to ‘Attempt’. because a preparation apart from its motive would generally be a harmless act. 233. 234.Legal Principles: -It is when an act has gone beyond the stages of preparation. the following are the provision wherein it has dealt with attempt: a) In some cases the commission of an offence as well as the attempt to commit it is dealt within the same section and the extent of punishment prescribes is the same for both.162. law does take the notice of an overt act of expression. In England. II) Attempt to commit culpable homicide (section 308). But when such evil intent is expressed in words and can be inferred from his acts. If it were made punishable. IPC).163. IV) Attempt to commit robbery (section 393). that law of attempt begins and criminal liability covers the acts committed.397.385. Generally preparations to commit an offence are not punishable.239.In general preparation is not punishable. Higgins (1801). said chief justice Cockburn. 126. Preparation not Punishable. There are twenty seven such section in this Code.) There must be evidence of some Overt Act.There are exceptional cases wherein the contemplated offence may be so grave that it would be of the utmost importance to stop it at initial stage and punish it at the preparatory stage itself. 2. There are four such offences. this amounts to attempt and. by going beyond the stages of preparation. in it must be sufficiently near the accomplishment of the substantive offence. . IPC).124A. but for the interruption. none of the considerations which justify the exclusion of preparation from the crime will apply.152.) There must have been an interruption to the series of acts and omission which. in that cases mere preparation to commit the offence are punished because they preclude the possibility of an innocent intention.124.) There must be evidence of mens rea. the law of attempt came to be formulated in 1784 in R v. takes the offender close to achieving the evil intention or the crime. would have culminated in the commission of an offence. IPC).[15] Take a case of murder.196. [Ss 122. and 2) With reference to mens rea . the very act of attempt ought to be punished in a manner similar to the completion of offence itself. In other words. or measure (section 242. the person can be held criminally liable. a mere preparation would not ordinarily affect the sense of security of the individual intended to be wrong . The Proximity test .125. the offence charged would have been committed. with the intention of waging war against the Government of India (section 122. Committing depredation on territories of power or at peace with the Government of India (section 126. These are preparations thereto:-[16] 1) 2) 3) 4) 5) Collecting arms. and it is not the policy of law to create offences that in most cases it would be impossible to bring home the culprit. and therefore. (iii) Attempt:. etc. he was inspired with the serious intention to attain a particular or definite object. Government Stamp. the burden is on the prosecution to prove the following:1) That the actus reus. but fails to overtake him. but if a man having procured the gun pursues his enemy with it.165. towards achieving the intention. Possession of counterfeit coin. other words.The word ‘attempt’. there are three elements liability in an attempt: 1. both the actual commission of the offence and the attempt to commit are made punishable equally. In all these cases.398. This is based on the premise that the attempt.

and therefore.she managed to escape frm house once but brothers of appellant forcibly dragged her inside the house whr she ws severly beaten .claims preparation & nt attempt The Supreme Court explained the offence of attempt with help of the proximity test.relations strained . as decided by the Madras High court. AIR 1933 Cal 893 (test of impossibility) Apellant married . In R v.presents .nt given food fr days at end given gram husk mixed with water after 5-6 days . the sound of a mechanized sea-crafts engine was heard near the side of the creek. Respondent no-1 had a pistol. the Court decided that there was no attempt to commit the offence export. cud be the 1st whras fr offence u/s 307 it hs to be the last act . It was merely a preparation. he could not be convicted. in this case. This was precisely the position in English Law before Houghton v. On the questioning it was found that the respondents were not the dealers in silver.copper sulphate powder . Distinguishing between attempt and preparation . a truck carrying a paddy was stopped at Samalkha Barrier. or else it is a mere preparation.time to repent & withdraw frm the crime 3. The High Court upheld the acquittal.promised to marry.TC conviction S312 Causing miscarriage rw S511(Attempt) .Attempt to cheat (22) Om Parkash vs St of Punjab (1962) 2 SCR 254: AIR 1961 SC 1872 Bimla Devi married to appellant . The social danger test A) The seriousness of the crime attempted B) The apprehension of the social danger involved. does an act towards its commission. a place 32 miles away from Delhi.thrafter she ws she ws locked inside a room . Shivpuri [23] it has been held that. A criminal attempt bears criminal intent upon its face.TC gives benefit of doubt to appellant fr offence u/s 342 IPC Contended by the appellants counsel tht no duty of husb to spoon feed wife . the Imports and Exports (control) Act and the Custom Act. The impossibility test .appellant & mother went to hosp & tried best to take her away but nt allowed to do so by lady doctor . such an act need not to be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. it is an attempt. 4. Even the appeal court held the accused liable because the circumstances in this case seemed to be exactly covered by the illustration to section 511 IPC. In other words. The Supreme Court however allowed the appeal and set aside the acquittal. saying that:“A person commits the offence of ‘attempt to commit a particular offence’ whena) he intends to commit that particular offence. and b) he having made preparation with the intention to commit the offence. The trial court convicted the accused u/s 135(1)(a) read with section 135(2) of the Customs Act for attempting to smuggle out of India silver ingots worth about Rs 8 lakhs in violation of Foreign Exchange Regulation Act.Attempting to cause miscarriage .only provide funds & food (court held findings of case contrary to fact tht appellant provided food & funds to wife -appellant counsel contnded ingredients of S307 diff frm S511 . (20) Asgarali Pradhania vs Emperor.[21] an attempt is possible.nt allowed to leave house sometimes morsel or so thrown to her as though she ws a beggar . if the mental element has proceeded to commit the act but failed his responsibility for attempt would be evaluated in the light of facts as he thought them to be (putative facts). Emperor[22].SC upholds conviction of appellant u/s 307 IPC (23) St of Mah vs Mohd Yakub (1980) 3 SCC 57: AIR 1980 SC 1111 A jeep driven by the respondent and a truck was stopped at about midnight near a bridge. Smith case.contended even if Bimla Devi hd been deprived of food fr a certian period the act does nt come within purview of S 307 ( court disagreed w/ this contention quoted SC in Abhyanand Mishra Case ) .went back to brother's place . there was no export of paddy within the meaning of para 2(a) f the Punjab Paddy (Export Control) Order. 1959.HC held impossibility of miscarriage with tht amount of copper sulphate (21) Abhyanand Mishra v St of Bihar. At this time customs officials acting on a clue reached the spot and accosted the respondents. the Bombay high court held that within the meaning of section 511 of IPC. At the same time. Two persons from the neighborhood were called and in their presence silver ingots were recovered from the vehicles.In Queen Express v. an attempt is an act of such a nature that it speaks for itself or that it is in itself evidence of the criminal intent with which it is done. The locus poenitentiae test . Evidently. Mangesh Jivaji.on assurance fr Maternal uncle tht she wudn't be maltreated went back to husb's place .pregnant . a knife and some currency notes. But the Additional session judge acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had ‘attempted’ to export silver in contravention of the Law. 5. Held his conviction u/s 420 rw S511 IPC .met lady doctor & told her of her sufferings .hd affair with young divorcee lady .It is a situation wherein there are two opinions about the crime here. AIR 1961 SC 1698 (Proximity test) Forges marksheet & work experience certificates to gain admission to MA course of Patna UNiversity.social workers got involved in matter & informed Madan Mohan brother of Bimla Devi who came down to Ludhiana & after learning all facts sent info to Police St by letter . In Asagarali Pradhaniu v.maltreated .diff tht fr an act amounting to commission of the offence of attempting to commit an offence u/s 511 need nt be the last act. even when the offence attempted cannot be committed. But in a Malaysian case the accused was held liable for an attempt to cause abortion when the woman was not pregnant.Case filed against appellants .2.good terms with father(lent money) . what the appellant did was not an “act done towards the commission of offence―.once few months later she found room unlocked with m-i-l & husb away went out of house -managed to reach Civil Hosp Ludhiana . if what is done indicates unequivocally and beyond reasonable doubt the intention to commit the offence. The act itself is impossible of performance and yet it constitutes an offence of attempt to commit crime. The respondents started removing the bundle from the truck. The equivocal test . Malkiat Singh case [locus poenitentiae test] explains this second test.

and are not void or ultra vires.306. The 'right to death'. is inherently inconsistent with the 'right to life'. S327 ) S 41. or (b) who has in his possession without lawful excuse.306 on the ground that it punished an act which was nothing but assistance to a person in the enforcement of his fundamental 'right to die' under Article 21 as S.309. There is no correlation between the two sections. or a reasonable suspicion exists. for a police officer to enter such place and search therein. the apex Court held S. i. arrest any person :(a) who has been concerned in any cognizable offence.306. the Court said that the 'right to life' guaranteed under Article 21 of the Constitution did not include the 'right to die' or 'right to be killed'. IPC or even abetment of suicide under S. the acts already done would be completely harmless. whether that of the person to be arrested or of any other person. an attempt to commit suicide under S.309. on demand of such person acting as aforesaid or such police officer. Gian Kaur v St of Punjab (1996) 2 SCC 648 (Euthanasia case) Appellats Gian Kaur & Harbans Singh convicted of abetnment of suicide of Kulwant Kaur u/s 306 IPC (both sentenced to 6yrs RI + Rs2000/.309 was held unconstitutional.SC overruled its 1994 decision P Rathinam case and upheld the consitutional validity of S309 P. the apex court said 'it is a cruel and irrational provision violative of Article 21 of the Constitution'.] CrPc (Amendment) Act. or any police officer having authority to arrest. or is within. 2005 (Notes on Clauses) Sub-section (4) has been added to prohibit arrest of a woman after sunset and before sunrise except in exceptional circumstances and where such circumstances exist the prior permission of the Judicial Magistrate of the first class is to be obtained. (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested. The Court further held that S. AIR 1994 SC 1844 In 1994. and afford all reasonable facilities for a search therein. obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. ----------------------------------------------------------CrpC . such police officer or other person may use all means necessary to effect the arrest. (1) If any person acting under a warrant of arrest. Union of India.Appeal to SC challenging constitutional validity of S306 since in P Rathinam Case S309 hd been struck down as against Article 14 of the constitution . Rathinam / Naghbhusan Patnaik. no woman shall be arrested after sunset and before sunrise. any place. S57. and demand of admittance . any implement of house-breaking. Gian Kaur v. by making a written report. it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue. S50. IPC is concerned. overruled Andhra ruling (in Chenna Jagdeshwar's case). or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. has reason to believe that the person to be arrested has entered into. Rathinam / Naghbhusan Patnaik v.306 constitutes a distinct offence and can exist independently of S.fine) . to end one's life if one so desires. if after notification of his authority and purposes. of his having been so concerned. Extinction of life is not included in protection of life. (2) If ingress to such place cannot be obtained under sub-section (1). S 50A. allow him such free ingress thereto. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. such place shall. or attempts to evade the arrest. and where such exceptional circumstances exist. but cannot be obtained without affording the person to be arrested an opportunity of escape.309. While striking down S.e. 46-47.Introduction Right of arrested persons ( Ss 41-41D. (1) Any police officer may without an order from a Magistrate and without a warrant. or credible information has been received.. as is death with life. 'right to life' includes 'right not to live a forced life'. if any. S303. 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution. to break open any outer or inner door or window of any house or place. IPC as constitutional and said that the 'right to life' doesn't include 'right to die'. Arrest how made. S 47. As regards S. the burden of proving which excuse shall lie on such person. a five member Constitution Bench of the apex court overruled its decisions of 1994 in P. The two petitioners assailed the validity of S. it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. the woman police officer shall. Dismissing the petition challenging the constitutionality of S. (2) If such person forcibly resists the endeavour to arrest him.In Appeal to HC conviction upheld but sentence of Gian Kaur(alone) reduced to 3yrs . Expanding the scope of Article 21. or (c) who has been proclaimed as an offender either under this Code or by order of the State Government. and in order to effect an entrance into such place. or being in charge of. IPC. S304. When police may arrest without warrant. Search of place entered by person sought to be arrested. any person residing in. 1[(4) Save in exceptional circumstances. IPC are well within the constitutional parameters. unless there be a submission to the custody by word or action. 309. (1996) 2 SCC 648: 1996 Cr LJ 1660 However in 1996. the Court upheld that. S 46. IPC. In the present case. State of Punjab.Supreme Court observed that the test of distinction between two is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress. and therefore. or against whom a reasonable complaint has been made. (24) Smt.

and where it appears to the court that the accused has not sufficient means to engage a pleader. for carrying out the purposes of sub-section (1). (c) The fee payable to such pleaders by the Government. exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. Person arrested not to be detained more than twenty-four hours. section 376C or section 376D of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the presiding Judge may. S 304. (1) Where. relatives or such other persons as may as may be disclosed or nominated by the arrested person for the purpose of giving such information. . and such period shall not. the room building used by the court. by notification. if he thinks fit. Legal aid to accused at State expense in certain cases. the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session. 1(1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court to which the public generally may have access. Cr PC Amendment Act 2005 (Notes on clauses) Section 50A requires the police to give information about the arrest of the person as well as the place where he is being. or trial of. allow any particular person to have access to. he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Right of person against whom proceedings are instituted to be defended. 2[(2) Notwithstanding anything contained in sub-section (1). direct that. shall not have access to. S 303. (b) The facilities to be allowed to such pleaders by the courts. S 57. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who. he cannot otherwise obtain admittance Provided that. as from such date as may be specified in the notification.duly made. Person arrested to be informed of grounds of arrest and of right to bail. such person or police officer shall. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. to a nominated person. does not appear in public. so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may. in a trial before the Court of Session. and may then break open the apartment and enter it. in the absence of a special order of a Magistrate under section 167. that the public generally. or against whom proceedings are instituted under this Code. S 50A. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable. S 50. the court shall assign a pleader for his defence at the expense of the State. if he thinks fit. held to any one who may be nominated by him for sending such information. Any person accused of an offence before a Criminal Court. Court to be open. before entering such apartment. with the previous approval of the State Government make rule providing for(a) The mode of selecting pleaders for defence under sub-section (2). Obligation of person making arrest to inform about the arrest. and generally. etc. section 376A. having lawfully entered for the purpose of making an arrest. (2) The High Court may. according to custom. any particular case. may of right be defended by a pleader of his choice. give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence. is detained therein. section 376B. (1) Every police officer or other person making any under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends. the inquiry into and trial of rape or an offence under section 376. or be or remain in. (3) An entry of teh fact as to who has been informed of the arrest of such person shall be made in a book to be kept in teh police station insuch form as may be prescribed in this behalf by the State Government. S 327. the accused is not represented by a pleader. or on an application made by either of the parties. or any particular person. if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who. (3) The State Government may. order at any stage of any inquiry into. (4) It shall be the duty of teh magistrate before whom such arrested person is produced to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied within respect of such arrested person.

it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso. Such panel fr all Tehsils & Districts as well. SC held both cases amt to arrest . 1-5-1984]. visible & clear identification & name tags w/ designation. The information disclosed by them was held to be suppression of the fact that they had been involved in a criminal case though the tenor of the query was not to that effect and was confined to the question as to whether they had been arrested. though nt throughout. appeared before the Ilaka Magistrate on 7th June. for the word “discharge” the word “release” shall be substituted. Signed by one witness (member of family or respectable person of locality) (iii) Arrested person . (2) Notwithstanding anything contained in sub-section (1). and shall. such person shall be released on bail: Provided that such officer or Court. Cr PC (Amendment) Act. to section (1). therefore. 10 (w. Inspection memo to be signed both by arrestee & the police officer effecting the arrest & its copy provided to arrestee (viii) Arrestee shld be subjected to medical examination by a trained doctor every 48hrs during his detention in custody by a doctor on the panel of approved doctor apptd by Director Health Services of the State or UT concrnd. when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under section 446. (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station. (ix) Copies of all docs incl the memo of arrest. the custody of such officer or at any stage of the proceeding before such court to give bail. discharge him on his executing a bond without sureties for his appearance as hereinafter provided: 3[Explanation. . (xi) A PCR shld be provided at all district & state headqrtrs whr all info rgdng arrest & place of custody of the arrestee shall be communicated by the offr causing the arrest. or appears or is brought before a court. if such person is indigent and in unable to furnish surety. Mahendergarh. 2[may. the appellants who had been implicated in FIR 108 dated 26th May 2002 under Sections 323/324/34 Indian Penal Code of Police Station Nangal Chaudhary. and were released on their personal bonds without being placed under arrest or being taken into custody. sec. – Where a person is unable to give bail within a week of the date of his arrest. the Court shall release him on his execution of a bond without sureties. if prsnt in body must be recorded at tht time. a person has to remain in jail for his inability to furnish bail. names of all personal must be recorded in register (ii) Memo of arrest. In what cases bail to be taken. 2005 (Notes on Clauses) In respect of bailable offences.] Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 1[or section 446A]. instead of taking bail] from such person. within 12 hrs of effecting the arrest & at the police control room it shld be displayed on a conspicuous notice board (26) St of Haryana vs Dinesh Kumar (2008) 3 SCC 222 Recruitment of constable — drivers — withholding of important information — (i) the respondent had not surrendered to the police but had appeared before the Magistrate with his lawyer of his own volition and was immediately granted bail. referred to above. [Vide Uttar Pradesh Act 1 of 1984. With regard to column 13(A). if he or it thinks fit. the court may refuse to release him on bail. till the case is disposed of. (x) Arrestee may be permitted to meet his lawyer during interrogation. it shall not be lawful for any person to print or publish any matter in relation to any such proceedings. had quite truthfully answered that they had not been convicted by any Court of any offence. (vii) Arrestee shld whr he so requests shld be examined at the time of his arrest & any major & minor injuries. 2002. (3) Where any proceedings are held under sub-section (2).f. shld be sent to the Illaqa Magistrate fr his record.or be or remain in. any. Admittedly. the respondent had not surrendered to the police but had voluntarily appeared before the Magistrate and had prayed for bail and was released on bail. since they had been acquitted of the charges brought against them. and is prepared at. in the first proviso. where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance. Sub-section (1) has been amended to make a mandatory provision that if the arrested person is accused of a bailable offence and he is an indigent and cannot furnish surety.however both appellants to be appointed as constable drivers .place of arrest & venue of custody to be notified by Police whr next frnd or relative lives outside district/town thrgh Leg Aid Org & the police st of the area concerned within a period of 8 to 13 hrs frm arrest (v) Person arrested must be made aware of this right to hv smeone informed of his arrest or detention at time of arrest/detention (vi) Diary Entry made at place of detention rgdng arrest of person which shal also disclose name of next frnd of person who hs been informed of the arrest.hwever salary effective frm date of judgement ----------------------------------------------------------Law relating to bail ( S436 to 439 CrPC ) S 436.] (25) Dilip K Basu v St of WB (1997) 6 SCC 642 Court laid down certain guidelines to be followed in all cases of arrest to prevent custodial violence (i) Accurate. except with the previous permission of the court. the room or building used by the court.e. time-.right to have one frnd/relative intrstd in his welfare informed of arrest (iv) Time. STATE AMENDMENT Uttar Pradesh: In section 436. while-in. so that as per the respondents understanding at no point of time was he taken into custody or arrested (ii) the appellants in response to the query in column 14.

2005 (Notes on Clauses) There has been instances. is released on bail under sub-section (1) 5[the Court shall impose the conditions. (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death. imprisonment for life. at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. and may also impose. has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence. with or without sureties. Chatter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of. (1989) Cr LJ 2317: AIR 1989 SC 2292. or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI. or. he may be released on bail. if the offence allege to have been committed by him is punishable with death. Maximum period for which an undertrial prisoner can be detained.COMMENTS It is true that Supreme Court does not interfere with an order granting bail but judicial discipline will be sacrificed at the alter of judicial discretion if jurisdiction under article 136 is refused to be exercised. or suspected. he should be released on his personal bond. subject to the provisions of section 446A and pending such inquiry. of the commission of which he is suspected.(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter. in the interests of . Captain Buddhikota Subha Rao. Where a person has. 1[Maximum period for which an undertrial prisoner can be detained. State of Maharashtra v. any such offence. S 436 A. inquiry or trial as the case may be. during the period of investigation. or conspiracy or attempt to commit. 4[the accused shall. As remedial measures section 436a has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishments. When bail may be taken in case of non-bailable offence. imprisonment for life or imprisonment for seven years or more. 1[(1) When any person accused of. the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session. after hearing the Public Prosecutor and for reasons to be recorded by it in writing. order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.] (2) If it appears to such officer or court at any stage of the investigation. Explanation. or he had been previously convicted on two or more occasions of 2[a cognizable offence punishable with imprisonment for three years or more but not less than seven years]: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court:] 3[Provided also that no person shall. and (c) that such person shall not directly or indirectly make any inducement. that there are not reasonable grounds for believing that the accused has committed a non-bailable offence.. but(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence. 437.In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded. or suspected of. be released on bail]. threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law. where under-trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. but that there are sufficient grounds for further inquiry into his guilt. (b) that such person shall not commit an offence similar to the offence of which he is accused.] Cr PC (Amendment) Act. he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may.

be released on bail to the satisfaction of the Magistrate. (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence. the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for . 438. it shall be open to an officer in-charge of a police station to arrest. Anil Sharma v.] (2) When the High Court or the Court of Session makes a direction under sub. if he is in custody during the whole of the said period. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court. where the High Court or. (ii) Unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial. any case triable by a Magistrate.section (2). at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence. State of Himachal Pradesh. where any condition is imposed for the release of a person on bail. AIR 2003 SC 707. (iii) the possibility of the applicant to flee from justice. and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrersted. he shall not be released except in the circumstances specified in the provision.section (1). the Court of Session. if on an application made to it by the Public Prosecutor. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witness. it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. shall record in writing his or its 6[reasons or special reasons] for so doing. direct that such person be arrested and commit him to Custody. together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police. on the execution by him of a bond without sureties for his appearance to hear judgment delivered. or sub. Under sub-section (3) the Court has got the discretion to impose certain conditions for the grant of bail. including (i) a condition that the person shall make himself available for interrogation by a police officer and when required. Anil Sharma v. 2005 (Notes on Clauses) Section 437 has been amended to provide that if a person commits a cognizable and non-bailable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years. as it may thinks fit. such person shall.section (2). (1997) 3 Crimes 135 (HP). such other conditions as it considers necessary. (6) If. after taking into consideration. Cr PC (Amendment) Act. namely:(i) the nature and gravity of the accusation. or a prayer for bail is made on his behalf. without warrant the applicant on the basis of the accusation apprehended in such application. with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. . imprisonment for life or imprisonment for not less than 7 years. Under section 441 (2). if the offence allege to have been committed by the accused is punishable with death. It has further been provided that if an accused appears before the Court while in judicial custody and prays for bail. (iii) It has been held that since the jurisdiction is discretionary. the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. the Court shall grant bail only after giving an opportunity of hearing to the prosecution. it may include such conditions in such directions in the light of the facts of the particular case. inter alia. unless for reasons to be recorded in writing. as the case may be. Irsan. (5) Any court which has released a person on bail under sub-section (1). and that Court may. it shall forthwith cause a notice being not less than seven days notice. if he is in custody.justice. the following factors. (1A) Where the Court grants an interim order under sub-section (1). it shall release the accused. or sub. 1[(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. Mansab Ali v. (1997) 3 Crimes 135 (HP). either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that. the Magistrate otherwise directs.] (4) An officer or a court releasing any person on bail under sub-section (1). the Court considers such presence necessary in the interest of justice. the court will exercise its discretion in favour of granting bail subject to sub-section (3) of section 437 if it deems necessary to act under it.taking evidence in the case. sub-section (3) has been amended to specify certain conditions. (7) If. he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. COMMENTS (i) In non-bailable cases in which the person is not guilty of an offence punishable with death or imprisonment for life. State of Himachal Pradesh. if it considers it necessary so to do. Direction for grant of bail to person apprehending arrest. the bond shall contain that condition also. may. which are mandatory. has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail.

in the event of their arrest on the aforesaid charges. (31) St vs Captain Jagjit Singh. (iv) Such other condition as may be imposed under sub-section (3) of section 437.the witnesses who gave stmnts in favor of appellants later confirmed tht they hd made their stmnt under pressure . (ii) if the Court does not reject the application for the grant of anticipatory bail. and under other sections.court ordered Magistrate to release appellant on surety of Rs 1000/.S.refused surety frm brother on accnt of him & his assets being in anothr district . Use of words "may if it thinks fit" in 438(1) absent in 437(1). as if the bail were granted -under that section. the character-of the evidence circumstances peculiar to the accused. Gurcharan Singh (Supdt. Use of expression "reason to beleive" in S438(1) shws tht beleif to be founded on reasonable grnds . (iii) a condition that the person shall not leave India without the previous permission of the court.make any inducement. 13. State of Tamil Nadu.C. It did not express any opinion whether the case fell under s. 3 in view of the commitment proceedings which were going on at the time. a learned single Judge referred the applications to a Full Bench. Sennasi v. against the orders of the learned Sessions Judge for cancellation of the bail.Magistrate denied to release them on bail . Charge sheet was submitted on 9th August. Grave allegations of political corruption were made against him and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438 of the Criminal Procedure Code. 1977. State of Tamil Nadu. Considering the importance of the matter.. I.3 and 5 of the Official Secrets Act.G. 1977 dismissed them. The 13th accused who was also a policeman has been evading arrest.thrfr no restriction on anticipatory bail just becoz offence is punishable with death or life term (ii) Rationale of direction u/s 438(1) is the belief of the applicant founded on reasonable grnds tht he may be arrested fr a non-bailable offence. Delhi Admin moved HC u/s 439(2) Cr. (1997) 3 Crimes 112 (Mad). 5 or s.no right of judiciary to create a divide in the country (33) Gurcharan Singh v State(Delhi Admn). threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. 1977 against 13 accused including all the appellants under Section 120-B read with Section 302.SC upheld the HC order (34) Shri Gurbaksh Singh Sibbia vs St of Punjab. and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail.C. (iii) Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is to be disposed of or even a few day thereafter to enable the accusesd to move the higher court if he so desires. (1962) 3 SCR 622 The respondent who was a former Captain of the Indian Army and was employed in the delegation in India of a French Company was prosecuted along with two others for conspiracy and passing on Official Secrets to a foreign agency under ss. he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1). State of Tamil Nadu.held no right to deny liberty on basis of affluence in society or the lack of it .P. Bhinder (D. Sennasi v.double denial of bail benefit . possibility of his absconding. His application for bail was rejected by the Sessions judge but the High Court allowed bail on the ground inter alia that his case might fall only under s. laid down various principles in this regard (i) legislature .wide discretion on HC & TC to grant bail. It should have then taken into account the various considerations such as. which by its judgment dated September. COMMENTS (i) Section 438 makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. directly or indirectly. Appellants appealed to SC . AIR 1978 SC 179 Appellants ranging from DIG to Constables held fr murdering Sunder (a known dacoit) by drowning him in the Yamuna as he became a security risk fr Sanjay Gandhi .mere fear nt belief . SC however allowed the application. and the State and similar other considerations Which arise When bail is asked for in a nonbailable offence. (32) Moti Ram v St of MP (1978) 4 SCC 47 Magistrate ordered surety of Rs 10. Held. and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person.000 frm appellant . (1997) 3 Crimes 112 (Mad). HC set aside bail. nature and seriousness of the offence.438(1) cannot be invoked on basis of vague & general allegations (iii) HC or CoS may impose conditions with a view to strike balance btw liberty of individual& investigational rights of Police (iv) Legal to pass an ex-parte order to anticipatory bail bt ordinarily a notice shld be sent to prosecution giving it an opportunity to oppose the application . he shall be released on bail. 1977 and of the eight other police personnel on 11th August. (1997) 3 Crimes 112 (Mad). Limitation imposes u/s 437 nt relevant u/s 438(though court is free to consider them) . 2005 (Notes on Clauses) Section 438 has been amended to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances. and (iii) the presence of the person seeking anticipatory bail in the Court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.Approached sessions judge u/s 439(2) CrPC (1973 briefly the new code ) secured release on bail of the four appellants. of Police). of Police). praying that the appellants be directed to be released on bail. and makes an interim order of bail.applicant for bail might not abscond was not by itself a sufficient ground for granting bail. forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties.HC correctly apprieciated the entire position & ws right in cancelling the bail . (ii) The grant of bail under section 438 (1) by the High Court or the Court of Session is dependent on the merits of a case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant. tampering with witnesses larger interests of the public. Cr PC (Amendment) Act. namely. 3 and therefore not bailable.5 which was bailable and not s. that the High Court should have proceeded to deal with the application for bail on the assumption that the offence was under s. On appeal by the State.(ii) a condition that the person shall not. AIR 1980 SC 1632 Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. 3 which was not bailable. Amarjit Singih (Inspector) and Constable Paras Ram on 1st August.SC obsrvd tht sessions judge ws nt alive to the realties of the case . The fact that the. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation. P. P. Sennasi v. it should.I.

during raid conducted at the Gurgaon premises of the Maruti Ltd some incriminating material found viz boxes containing the spoils of the film burnt & destryd in factory premises . can be summed up as: 1.nature & seriousness of proposed charges. etc. Allowed appeal partly.appl dismissed by Single Judge . High Courts are granted supervening jurisdiction in all matters concerning the grant of bail (Section 439) The Supreme Court has added several criteria of its own to the list of factors to be taken into account when granting bail in non-bailable offences. There is also a provision for individuals to seek bail if they apprehend arrest. Set aside judgement of Delhi HC. Proving the test of balance of probabilities tht the accused hs abused his liberty or tht thr is a reasonable apprehension tht he will interfere with the course of justice is all tht is neccessary fr the prosecution to do in order to succeed in an application fr cancellation of bail.witness turning hostile & giving inconsistent testimony can no more be abscribed by itself to the influence of the accused than it can be ascribed to the pressure of the prosecution .censorship declined to pass certificate . (Section 436. There are two sorts of offences in the province of the criminal law.Apex court informed tht nt possible to screen the film fr evaluation by Judges .eg. the grant of bail is at the discretion of the Court and it cannot be demanded by the accused as a matter of right. contrary to popular belief.(v) No Blanket Order . Lastly. bail has to be granted to the accused and it is a matter of right for the accused to demand and be granted bail. In non-bailable offences. bailable and non-bailable. the probability of guilt. 1973 lays out certain basic criteria to canalise the exercise of judicial discretion as regards non-bailable offences. The rules for grant/denial of bail simply put. The Code of Criminal Procedure. possibility of frightening witnesses. the seniority of the accused and his consequent circles of influence in affecting the investigation if released. such as probability of recommission of the offence. 437) 5.No "Whenever arrested fr whichever offence whatsoever" (vi) Filing of FIR nt a conditional precedent (vii) No anticipatory bail after arrest . (S.Delhi Admin filed appeal in SC . influencing witnesses. this is called anticipatory bail (Section 438) 6. (Section 437. Samunder Singh vs St of Raj (A dowry death case) (x) Considerations to be kept in mind . women etc. CrPC) 3. probability of evidences being tampered. bail can be granted.writ petition in SC fr writ of Mandamus . and carves out exceptions for minors .held rejection of bail when applied fr a non bailable offence is one thing and cancellation of bail is quite another .after arrest bail to be sought u/s 437 or 439 CrPC (viii) Bail to be effective till conclusion of trial (ix) Cancellation of anticipatory bail . tampering of evidence. such as the nature of offence. In bailable offences. past criminal record. larger interest of Public or the State (xi) Granting of anticipatory bail only in exceptional cases (35) State(Delhi Administration) vs Sanjay Gandhi. so as to prevent even the otherwise brief incarceration. (1978) 2 SCC 411 Film titled "Kissa Kursi Ka" .Court held tht prosecution can estb its case in an application fr cancellation of bail by showing on a preponderance of probabilities tht the accused hs attempted to tamper or has tampered with its witnesses. 2. Only here. .Delhi Admn filed appeal in HC fr cancellation of bail of repsondent on grnd tht he attempted to thwart the course of Justice . 439) 4.

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