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A K. Jain CRPC Criminal Law 2
A K. Jain CRPC Criminal Law 2
L
LAW - II
[LEADING CASES, MATERIALS & Q.A.]
Ascent Publications
21 /29, Shakti Nagar, Delhi-110007
Copyright © 1998 - A SCENT PUBLICATIONS , Delhi.
First Edition, 1998 Reprint 2000/2002/2004/2006/2007 Second Edition, 2008/2009/2010
(withSvpplement2008)
T HIRD E DITION , 2011 F OURTH E DITION , 2013
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Published By Ascent Publications, 21/29, Shakti Nagar, Delhi. Printed at G S. Offset, Delhi.
CONTENTS
CHAPTER 1. INTRODUCTION
(Mens rea when Not Essential (Strict Liability) 17 Some Safeguards in the Cases of
Strict Liability: Case Law 20 Criticism of the Doctrine of Mens rea 28
Mistake 30,94
unsoundness of Mind 39,82
Right of Private Defence 53
Private Defence of Body 56 Private
Defence of Property 74 ..-Intoxication 88
(Section 34 J96 0-
Common Intention 98
Participation 101
Unlawful Assembly
Distinction between 34 121
iv Criminal Law - II
CHAPTER 5. ATTEMPT
CHAPTER 9. BAIL
Definition of Bail: Bailable and Non-bailable Offences 242 Sec. 436. In what
HsesTBaiTto be taken 243 Sec. 437. Cases of Non-bailable Offences 246 Sec.
437-A 249
Sec. 439. Special powers of High Court/Court of Session regarding Bail 250
Cancellation of Bail 251
Discretion in granting bail in cases of non-bailable offences 258
Anticipatory Bail (Sec. 438, Cr. P.C.) 266
Discretion in granting anticipatory bail— Guidelines 269
Secs.265 a to 265L,cr.p.c.303
Plea Bargaining 308
Justification for Plea Bargaining 312
Plea Bargaining. Unconstitutional Short-cut 314
Pros and Cons of Plea Bargaining 318
Defendants ’ Incentivesfor Accepting Plea Bargains 318
Prosecutors ’/Judges ’ Incentives for Accepting Plea Bargains 320
DeMerits of Plea Bargaining 321
Concluding Remarks 322
Compounding of Offences vs Plea Bargaining 325
TABLE OF CASES
B
B. Singh v State 283
Balbir Singh Balwant Singh v State 95
Balchand Jain v State of M.P 271
Balwant Singh v State of Bihar 289
BASDEV v STATE OF PEPSU 91
Bhagwan Bux Singh v State of U.P. 104
Bhagwant Singh 225
Birendra K. Rai v UOI 168,188
3MW case 322
Blackledge v Allison 315
Sonda Kui v Emperor 36
3rady v US 315
Brend v Wood 20
C
Chaffin v Stynchcombe 315
viii Criminal Law - II
F
Farman Ali 274
G
G. D. Chadda v State of Rajasthan 292
G. X. Francis v Banke Bihari Singh 336
Gajanand v State of U.P. 118,124
Gajjan Singh v State of Punjab 100
Ganeshmal Jashraj v Government of Gujarat 315
George William’s Case 259
GIAN KAUR v STATE OF PUNJAB 148
Govind Prasad v State 174
Criminal Law - II
K
K. Chandrashekhar v State of Kerala 227 K.S Layak v State of A.P.
248 Kalyanchandra Sarkar v Rajesh Ranjan 243 Kartar Singh v State
of Punjab 208 Kasambhai Abdulrehmanbhai’s Case 316 Kathi Kalu v
State 191 Kaur Sain 282
Kaushalaya Devi v Mool Raj 293
Kehar Singh v State 182,214
Keki Bejonji v State of Bombay 280
Keso Sahu v State 93
Khatri (II) v State of Bihar 177,179,217,232
Kinaram Das v State 99
KISHAN v STATE OF M.P. 63
Krishna Govind v State of Maharashtra 99
Krishnan v State of Kerala 112
Kultej Singh 177
Kurrim Bux 75
L
Lakshmi Singh v State of Bihar 72 LAKSHMI v STATE 46,83,84
Lakshmipat Choraria 221 Lim Chin Aik v Reginam 22
M
M.L. Sethi v R. P. Kapur 223
M.N.S. Nair v P. Balakrishnan 289
MADAN SINGH v STATE OF BIHAR 116
Madanlal Ram Chandra Daga v State of Maharashtra 315
Madho Sonar v Emperor 238
MADHU BALA v SURESH KUMAR 199
MAHABIR CHOUDHARY v STATE OF BIHAR 68,95
MAHBUB SHAH v EMPEROR 98,102
MAINA SINGH v STATE OF RAJASTHAN 126
Malkhan Singh v State of U.P. 131
Criminal Law - II
Q
Queen Empress v Gedka Gowala 83 Queen Empress v Nidha 155 Queen
v Doyal Bawri 137 Queen v Lakshman 43,83
P
P. Ramchandra Rao v State of Karnataka 329
R
R. v Prince 17,18,32,33
R. v St. Margaret’s Trust Ltd. 24
R.K. Dalmia v Delhi Admn. 224 R.M.
Wasawa v State of Gujarat 178,180
R.P Kapur v State of Punjab 224
Radha Kishan v State of U.P 239
Raghunandan v State of U.P. 232
Rahul Mahajan case 322
Rajesh Govind Jagesha v State of Maharashtra 113
Rajesh Ranjan Yadav alias Pappu Yadav v C.B.I. Director 260
Rajinder K. Jain v State 289
Ram Dular Rai v State of Bihar 116
Ram Kumar Tyagi 274
Rama Shankar v State 223
Rama v Dattatraya 261
Ramaswami A/yangar v State of T.N. 112
Rameshwar Bhartia 280
Ramsakal v State 99
Randhir Singh Rana v State 226
Rao Harnarain Singh v State 262,275
Rathinam v Union of India 149
Reg v Francis Cassidy 153
Rex v White 155 Rodriguez v B.C. 151
S
S. Ramaya v State of Bombay 101,105 S. Sarvanan v State 274
S.N. Paswan v State of Bihar 290
S.N. Sharma v Bipen Kumar 202 Sagayam v State of Karnataka 162
Salim Zia v State of U.P. 71 Samman Singh 89
Samunder Singh v State of Rajasthan 273,274
Santobello v New York 315
Saptawna v State of Assam 177
Sarathi v State of M.P. 91
Sarjoo Prasad v State of U.P. 27
Satya Narain Musadi 225
Shakhu v Crown 81
Shama Tudu v State 49
Shamdasani 280
Shankarlal v State of Gujarat 100
Sheoram Singh v State of U.P 99
Sherras v De Rutzen 17
SHRIKANT ANAND RAO BHOSALE v STATE OF MAHARASHTRA 51
Shyam Lal v State of M.P. 239
Shyam Singh v State 279
Soofi Abdul Mazid v State 118,119
State (CBI) v Anil Sharma 274
STATE (DELHI ADMINISTRATION) v SANJAY GANDHI 253
State of A.P. v Punati Ramube 194
State of Assam v Ravindra Nath Guha 209
State of Bihar v Murad AN Khan 298
State of H.P. v Shreekant Shekari 198
State of Haryana v Ch. Bhajan Lal 197
STATE OF HARYANA v DINESH KUMAR 187
State of Kerala v Dr. C.K. Bharathan 157
State of M.P. v Ahmadulla 51
STATE OF M.P. v NARAYAN SINGH 24
T.N. LAKSHMAIAH v STATE OF KARNATAKA 49
Takaram Ganapat Pandare v State of Maharashtra 112
Talab Haji Hussain 283
Tara Singh 178,281
Tehelka Bribery case 322
TEHSILDAR SINGH v STATE OF U.P. 233
Tolson's Case 93,94
TUKARAM v STATE OF MAHARASHTRA 105 Tyron Nazarath v
State 180
U
Umrao Singh v State of U.R 197
Union Public Service Commission v S. Papiah 329
V
Vidhya Singh v State of M.P. 72 Vineet Narain v UOI 333 Vishvas v
State 56 Vishwa Nath v State of U.P. 80 Vithal v State of Maharashtra
118,132
W
Waryam Singh v Emperor 36 WASSAN SINGH v STATE OF PUNJAB
66 Weatherford v Bursey 315
Y
Y, Narsimha Murthy 214 Yunis v State of M.P. 116
Z
ZAHIRA HABIBULLA H. SHEIKH v STATE OF GUJARAT 293
REFERENCES
Indian Penal Code
1. S.N. Mishra.
2. Ratanlal & Dhirajlal.
3. P. S. Atchuthen Pillai.
4. K.D. Gaur.
5. N.H. Jhabvala.
Criminal Procedure Code
1. Ratanlal & Dhirajlal: Criminal Procedure.
2. R. V. Kelkar: Criminal Procedure.
3. R. V. Kelkar: Lectures on Criminal Procedure.
4. S.N Mishra: The Criminal Procedure Code.
5. Basu: Criminal Procedure Code.
6. N.H. Jhabvala: The Code of Criminal Procedure.
7. Jartak Raj Jai: Bail - Law & Procedures.
Other Sources
1. The Landmark Judgments of 1997-1998 - Ashok K. Jain.
2. Supreme Court Yearly Digests - SCYD (1995-2012) -
Shailendra Malik (Ed.) (Eastern Book Co.).
3. Cases and Materials on Criminal Law-II - Faculty of
Law, Delhi University, Delhi.
4. Question Papers Referred - Delhi and Other Indian
Universities; Competitive Exams like IAS.
1
Introduction
Maintenance of peace and order is essential in any society for human beings to live
peacefully and without fear of injury to their lives, limbs and property. This is possible
only in States where the penal law is effective and strong enough to deal with the
violators of law. In fact, the identity of a ‘State’ depends on how effective it discharges
its primary function of keeping peace in the land by maintaining law and order.
People in a State can afford to be without a highly developed system of constitutional
law, or property law, but they could ill afford to remain without a system of penal law.
“This (Penal) is the law on which men place their ultimate reliance for protection
against all the deepest injuries that human conduct can inflict on individuals and
institutions. By the same token, penal law governs the strongest force that we permit
official agencies to bring to bear on individuals. Its promise as an instrument of safety
is matched only by its power to destroy” (Professor Wechsler).
(11
2 Criminal Law II
The criminal law of India is codified in the Penal Code, 1860, and in the
Criminal Procedure Code, 1973. Whereas the Penal Code is the substantive law, the
Criminal Procedure Code is the adjective or procedural law. The provisions of the
Penal Code do not affect the provisions of any special or local law.
Though by virtue of Sec. 2 of the Penal Code “every person” is liable to
punishment under the Penal Code, the criminal courts have no jurisdiction to try
certain persons even if they have transgressed the provisions of the Code, viz.
President and Governors, Foreign Sovereigns, Ambassadors, Diplomatic agents, Alien
enemies, Foreign army and Warships. The word “person” includes a company or
association. Thus, a corporation is liable to punishment under the Code. In criminal
law, the principal or master can be held responsible To the acts of his
agents_or_servants only where it is proved that of he had instigated or otherwise
abetted the acts of
the person who actually committed the crime
I
Nature and Concept of Crime
Since the dawn of human civilization, crime has been a baffling problem. There is
hardly any society which is without the problem of crime. Violation of norms and
rules do occur in a society. Durkheim in his book “Crime as a Natural Phenomenon” said: “A
society composed of persons with angelic qualities would not be free from violations
of the norms of that society.”
The concept of crime is essentially concerned with the social order. A sense of
mutual respect and trust for the rights of others regulates the conduct of the members
of society inter se. Although most people believe in peace and harmony, yet there are a
few who deviate from this normal behavioural pattern. This imposes an obligation on
the State to maintain . normalcy in society, which it performs through the
instrumentality of law.
The concept of crime is closely related to social policy of a given time. With
changes in ideologies or values, the concept of crime also changes. What is rrime
today may become a permissible conduct tomorrow and vice versa. For example, abortion
which was considered to be heinous crime because of the immorality involved in it is
no longer an offence after the enactment of law legalizing abortion.
Introduction 3
It is for this reason that the criminal law has often been considered as a
barometer to gauge the moral turpitude of the society at a given time. In other words, the
social standards of the society can easily be judged by studying the criminal policy
adopted by it: The legislative measures to legalize abortion in certain cases sufficiently
reflect the changing concept of morality in Indian society. More recently, the stringent
anti-dowry laws enacted to prevent the incidence of dowry-deaths and bride-burning,
and deterrent legislation against the practice of sati providing for death sentence, etc.,
clearly indicates that the society is no longer going to tolerate atrocities against women
and wants to assure them a dignified place in the community.
Further, crime is a relative term. That is to say, what is wrongful (crime) at one
place may not be so at another place. Thus, adultery is a criminal offence in India
whereas in England it is merely a civil wrong redressible by payment of compensation.
This example further reflects that the concept of crime depends largely on the social values, accepted
norms and behavioural patterns of a particular society at a given time.
There has been a considerable increase in crime rate in recent decades. This can
be attributed to the change in social values brought about the modernisation and
industrialisation of the present society. In a society, as competitive as today’s, one is
often compelled to go for ‘unfair means’ to raise one’s status in the society. That is why
“white-collar crimes” have become prominent in recent times. With economic growth,
our thrust for wealth and other luxuries of life has increased beyond limits which
cannot be satisfied with the available resources. The incidence of crime in western
countries is far greater than that of India perhaps, because of the variance of social
conditions in these countries. The factors such as greater control of family over the
children and respect for morality and religion, etc., have acted as effective restraints to
reduce the incidence of crime in India. This leads us to the conclusion that criminal law is
an index of socio-economic progress of the society.
Definition of Crime
It is difficult to give a precise definition of ‘crime’ because of the changing nature of
‘crime’ (an outcome of the equally dynamic criminal and penal policy of a State, see
above). A human conduct that is believed to be inimical to the social interests is
labelled as a crime. Most of the
writers, however, generally agree that every criminal act involves some sort of law-
violation.
“The purpose of criminal law is to express a formal social condemnation of
forbidden conduct, buttressed by sanctions calculated to prevent it” (W Friedman).
The Penal Code of India nowhere defines what a crime is. Sec. 40 of it states that ‘an
offence denotes a thing mad punishable by the Code.’
A ‘crime’ can be said to be an act of commission or omission, contrary to law,
tending to the prejudice of a community, for which punishment can be inflicted as
the result of judicial proceedings taken in the name of the State. When a person
commits a wrong, h? is said t be liable for it.
Broadly speaking, there are two kinds of definition of crime: leg and sociological.
The legal definition is more acceptable, because of ii elaborate and specific nature
and element of certainty.
(a) Legal definitions: According to Blackstone, a crime is an act committed or
omitted, in violation of a public law either forbidding or commanding it.
He later defined crime as ‘a violation of the public rights and duties due to
the whole community considered as a community’. Stephen similarly
defined crime as ‘a violation of a right, considered in reference to the evil
tendenc of such violation as regards the community at large.’
However, both these definitions have been criticized for the reason that the essential
characteristic of a crime is not the infringement of rights as in civil cases but, the
doing of prohibited acts. Instances of crimes which do not violate anyone’s right
may be found in offences, such as, being found in possession of housebreaking tools
by night or possession counterfeit coins. Also, harm or injury to the community is
true of mar crimes, but not all. Even transactions of civil nature will injure the
community. In a way, every illegal act, even a mere breach would usually injure the
community.
Professor Kenny has said: ‘Crimes are wrongs whose sanction is punitive and
is in no way remissible by any private person, but is remissible by the Crown alone,
if remissible at all.’ However, under the Indian Penal Code, a number of offences are
remissible by individuals without even
Introduction 5
the court’s intervention. In such offences, private individuals, and not the State, are
allowed to remit the punishment. However, the controlling power of the State with
regard to the criminal prosecutions is an undeniable fact.
According to Professor Paton
, ‘In crime we find that the normal marks are that the State has power to control
the procedure to remit the penalty or to inflict punishment.’ Professor Goodhart has
defined a crime as any act which is punished by the State. It is still the protection of the
public welfare rather than the support of private interests, which is the dominant
purpose of this branch of law.
Russell has said that crime is the result of human conduct which the penal policy
of the State seeks to prevent. Halsbury defines crime as an unlawful act which is an
offence against the public and the perpetrator of that act is liable to legal punishment.
Tappan has defined the crime in his book ‘Crime, Justice and Correction’ as ‘an
intentional act or omission in violation of criminal law, committed without defence or
justification, and sanctioned by the law as felony or misdemeanour.’
Tappan’s definition seems to be narrow as it ignores socio-economic crimes
where the intention to commit an offence is of different nature and extent than the
intention while committing traditional crimes like murder, theft, etc. There are certain
acts in respect of which their moral culpability is a matter of controversy e.g. tax-
avoidance. Further, there are certain acts which could be made punishable on the basis
of knowledge or negligence i.e. strict liability (e.g. in case of food adulteration) It is,
therefore, not essential that an act or omission should be intentional in all forms of
crime.
Further, there is no question of violating the criminal law if some defence or
justification is available for a particular act or omission in certain circumstances. So, his
legal definition would be specific if he only had said that crime is ‘an act or omission in
violation of criminal law’.
(b) Sociological definitions: The Italian criminologist Garofalo rejected the juridical
concept of crime and preferred sociological definition of crime. His theory of
natural crime postulates that crime is an ‘act which offends the basic moral
sentiments of
Introduction 7
Generally, five points of distinction between the two have been put
forward:
(1) Crime is a public wrong, while civil wrong is a private wrong.
(2) The remedy against a crime is (punishment] but the remedy against
the civil wrongs is damages.
(5) All criminal liability is penal ; civil liability is sometimes penal and sometimes
remedial (See below).
(1) There are wrongs against the State or society, but they are not considered as
crimes, for example, a breach of a contract by an individual made with the
State is not a crime. A refusal to pay taxes is an offence against the State but it
is a civil wrong.
8 Criminal Law - II
(2) A criminal proceeding does not always result in punishment and on the
contrary sometimes civil proceedings result in punishment. For example, in
the case of disobedience of an injunction granted by a court, punishment is
awarded although it is a civil proceeding. A criminal proceeding may result
in an order against the accused to make restitution or compensation, while
civil proceedings may result in an award of exemplary or punitive damages.
(3) Some civil wrongs can cause greater general harm than some criminal
offences. The negligence of a contractor resulting in widespread injury and
damage may be far more harmful than a petty theft. Furthermore, the same
act may be a civil injury and a crime, both forms of remedy being available,
e.g., libel and assault.
(4) To say that the measure of criminal liability is intention and of civil liability
is the wrongful act itself is also not correct. In modem times mens rea
(intention) has gone under an eclipse and the question of intention has
become more of a form than of a substance.
The distinction on the basis of proceedings is more sound and contains substantial
truth. From a practical stand point the importance of the distinction lies in the
difference in the legal consequences of crimes and civil wrongs. Civil justice is
administered according to one set of forms, criminal justice according to another set.
Though in some cases civil and criminal both the proceedings can be instituted for the
same act they are always different and are regulated by two different sets of rules.
Remedial and Penal liability - In the case of penal liability the purpose of the law is or includes
the punishment of a wrongdoer; in the case of remedial liability, the law has no such
purpose at all, its sole intent being the enforcement of the plaintiff’s right, and the idea
of punishment being wholly irrelevant. The liability of a borrower to repay the money
borrowed by him is remedial; that of the publisher of a libel to be imprisoned or to pay
damages to the person injured by him, is penal. All criminal liability is penal; civil
liability, on the other hand, is sometimes penal and sometimes remedial.
Introduction
then is the actus accompanied by the mens rea. But this generalisation is subject to two
qualifications. First, the criminal law may include provisions penalising mere
negligence (even inadvertent). Secondly, the law may create offence's of Strict liability,
where guilt may exist without intention, recklessness or even TiegBgence. Where
neither mens rea nor inadvertent negligence is present, punishment is generally
unjustifiable. Hence inevitable f accident or mistake]- the absence both of wrongful
intention or recklessness "culpable negligence — is in general a sufficient ground of
exemption from penal responsibility.
Thus the wrongdoer is liable only for such consequences of his acts,
forbearances or omissions as he either foresaw or must be deemed to have foreseen
because a common man of ordinary intelligence would have foreseen them, and, for
those consequences of his acts done with such absence of that care and skill which the
person alleged to be negligent was under a duty to manifest, in the circumstances,
towards the person alleging negligence.
(a) Act — According to Salmond, ‘an act is any event which is subject to the
control of human will’. An act consists of three stages:
(i) its origin in some mental or bodily activity or passivity of the
to maintain his wife and children. However, where A and B, the husband and wife had
a bitter quarrel and B threatened to commit suicide and ran to a well and A did nothing
to prevent her and she jumped into the well and died, A would not be liable. Similar
would be the case where A did nothing to save a drowning person or an abandoned
infant or a starving person.
the ‘wrongful acts’ are of two types : (1) Acts which cause some harm, and it is
only this ground that they are considered wrong (2) Acts which are considered as
wrong due to their mischievous tendencies. In these acts proof of actual harm is not
necessary for liability. Generally, though not necessarily, the civil liability arises on the
actual damage. But as crime is a wrong against the society in general, so not only the
act but the mischievous tendencies also are considered wrongful. Thus, in criminal law,
attempt and preparation also subjects a person to criminal liability
(b) Mens rea – Mens rea means-guilty mind. It is the second condition,, of penal
liability Criminal intention malice negligence rashness, etc., all are include in
mens rea. Mens rea is loose term and covers a wide range of mental states and
conditions, the existence of which would give a criminal hue to actus reus.
It may be noted that the mens rea is determined on the basis of external conduct.
Therefore, the act is judged not form the mind of the wrongdoer but the mind of
wrongdoer is judged from the act. The law presumes that every man is of the average
understanding and judges his act from that standard. In modem times, mens rea does not
mean enquiry into the mental attitude of the wrongdoer from a subjective point of
view, but it simply means that the mens rea is judged from the conduct by applying an
objective standard. Further, the mens rea has no longer remained the condition of penal
liability in its original sense and it has been replaced by new standards e.g. rule of
absolute liability, rules regulating traffic, electricity, water supply, etc. Moreover, mens
rea or the degree of subjective guilt varies in different classes or offences. For example,
against a charge of kidnapping a girl under the age of 18 an honest and reasonable
belief of the accused that the girl was over 18 is no defence.
The mental elements of different crimes differ widely. ‘Mens rea’ means in the
case of murder, malice aforethought; in theft an intention to steal; and in rape, an
intention to have forcible connection with a
12 Criminal Law II
woman without her consent. In some cases, it denotes mere inattention e.g. in case of
manslaughter by negligence.
Mens rea in Indian Venal law — There is a presumption that mens rea, an evil intention, or
knowledge of the wrongfulness of the act, is an essential ingredient in every criminal
offence; but this may be rebutted by the express words of a statute creating the offence
or by necessary implication. Thus, the general rule that there must be a ‘mind at fault’
before there can be a crime, is not an inflexible rule.
Mens rea in India is a condition of penal liability only to the extent it is codified. If
mens rea is a necessary condition for a particular offence it is included in the very
definition of the offence and it is a part of it. There are certain offences which have
been defined without any reference to mens rea, e.g, offences against the State. Further
“General Exceptions” prescribes all those circumstances in which mens rea is negatived
and hence there is no liability. Nevertheless, mens rea works as a general principle of
criminal law and is applied in matters of interpretation.
From the point of view of the mens rea wrongs may be divided in three classes:
(1) Intentional or reckless wrongs — where mens rea amounts to intention or
knowledge.
(2) Wrongs of negligence - where mens rea assumes the less serious form of mere
carelessness, as opposed to wrongful intent.
(3) Wrongs of absolute or strict liability — where mem rea is not a necessary condition
of liability.
Characteristics of Crime
The main characteristics of a crime are as follows:
(1) External consequences — Crime always has a harmful impact on society, may
it be social, personal, emotional or mental.
(3) Mens rea or guilty mind — It is one of the essential ingredients of a crime. It
may, however, be direct or implied.
(4) Prohibited Act — The act should be prohibited or forbidden under the
existing law.
(5) Punishment — The act should not only be prohibited by the law but
should also be punishable by the State.
Criminal liability has to be established by the proof of some act which is dangerous
from the legal point of view and at the same time, the proof of actual damage which is
commonly necessary in cases of civil liability is not required. Criminal liability is
mainly penal (i.e. punishment is a predominant feature of criminal proceedings). As far
as “measure of criminal liability” is concerned, three factors are taken into account in
determining the appropriate measure of punishment- (i) motive behind the crime, (ii)
magnitude of offence, and (iii) character of offender. As intention is an abstract idea, it
is difficult to establish it and the help is taken of surrounding facts or factors.
again. The keeping of first or juvenile offenders with the habitual offenders can have
adverse effect upon them.
In modem times, the principle is that all the offences do not involve equal guilt
on the part of the wrongdoer and all the offenders are not equally guilty for the same
offence. This being so, the punishment for all kinds of offences and for all wrongdoers
having committed the same offence cannot be uniform. Thus, habitual offenders are to
be given severe punishments.
According to reformative theory of punishment, the purpose of punishment or
criminal justice should be to readjust the prisoner to the demands of the society. The
punishment should educate and make the criminal disciplined. Thus, this theory
considers the offender as a patient and admits punishment to cure him so that he
might become a citizen. However, the theory is considers as it is expensive and thus
more suited to developed nations. Further, very hardened criminals may not be cured
by reformative measures.
In view of the above discussion of various theories of punishment, it is clear that
punishment if properly given can help reduce crime, but if improperly given it may
aggravate crime.
2
The fundamental principle of penal liability is actus non facit reum, nisi mens sit rea, i.e., the
act itself is not criminal unless accompanied by a guilty mind. 1 A crime punishable
under law is not simply an act done by an individual, it is an act done or committed
with full intent and preparedness. In law, thus, crime consists of two elements -
actus reus and mens rea. The former represents the physical aspect of crime and latter
represents its mental aspects.
Actus reus has been defined as “such result of human conduct as the law seeks
to prevent.” The word ‘actus’ connotes a deed i.e. physical result of human
conduct. The word ‘reus’ means forbidden by law. Thus, actus reus consists of the
following parts: (i) human conduct (something voluntarily done: acts of
commission/omission); (ii) the result of such conduct in the specified
circumstances; and (c) such conduct as is prohibited by law. The actus reus is
constituted by the event and not by the activity which caused the event. A deed
may consist of harm and destruction of property/life, but it is not a crime unless
the circumstances are such that it is legally prohibited.
1. Explain the common law principle of ‘Actus non facit reum, nisi mens sit rea' with the help
of illustrations and decided cases. What are the exceptions to this principle?
[D.U.-2011] [L.C.II-93 ]
“Intention and the act both must concur to constitute a crime.” Explain.
[I.A.S.-2000]
It is not at all in doubt that the proof of existence of guilty intent is an essential element
in a crime under common law. Discuss. [I.A.S.-2002]
[1 5 ]
16 Criminal Law II
Mens rea is the state of mind indicating culpability (‘guilty intention’), which is
required by statute as an element of crime. Mens rea means ‘mens’ of the accused person
which is ‘rea’. It simply means that a person has intentionally or knowingly done a
prohibited act. It is a loose term of elastic signification and covers a wide range of
mental states and conditions, the existence of which would give a criminal hue to actual
reus. Sometimes it is used to refer to a foresight of the consequences of the act and at
other times to the act per se irrespective of its consequences. In some cases it stands for a
criminal intention of the deepest dye, such as is visible in a designed and premeditated
murder committed with a full foresight of its fatal consequences. In other cases it
connotes mental conditions of a weaker shade such as are indicated by words like
knowledge, belief, criminal negligence or even rashness in disregard of consequences.
At other times it is used to indicate a colourless consciousness of the act itself
irrespective of the consequences of the act, or in other words, a bare capacity to know
what one is doing as contrasted for example with a condition of insanity or
intoxication in which a man is unable to know the nature of the act (General
exceptions).
Thus, the doctrine of mens rea has been incorporated in two ways: first, the
provisions as to the state of mind required for a particular offence have been added in
the sections of IPC by using words like intentionally, knowingly, voluntarily,
fraudulently, dishonestly, etc. Secondly, it has been incorporated into the provisions
relating to general exceptions. It may be noted that mens rea must extend to all the three
parts of an act, viz. (i) the physical doing or not doing, (ii) the circumstances, and (iii)
the consequences. If the mens rea does not extend to any part of the act, there will be no
guilty mind behind the act.
It may further be noted that mens rea as such is not punishable. Thus if A has
intention to kill B and buys some arms, A cannot be brought to the court on that
ground (though A may be guilty of keeping arms without licence); some act has to be
done by A e.g. if A is discovered with a loaded gun in the compound of B, then A has
done some act and he may be guilty. There are some exceptions to the general rule that
intention as such is no crime e.g. intention to commit some treason (crime against
State) or conspiracy to commit a crime. However, as we shall see later, sometimes an
act alone is sufficient to constitute a crime without the existence of mens rea.
Mens Rea and Strict Liability 17
How to establish mens rea — It is difficult to give a portrait of the accused’s mind or intention
at the given moment as intention is an abstract idea, it is difficult to establish it and the
help is taken of surrounding facts or factors:
(i) previous relation between the accused and the victim, any object of
hostility between them;
(ii) existence of instigation i.e. whether accused was hired and what
prompted him to commit crime; and
(iii) whether the accused had something to gain out of the whole
affair. Thus, guilty intention is always preceded by a motive or real causal factors.
2. "In some exceptional situations, the law dispenses with mens rea and holds a person
responsible for his criminal act, independent of any wrongful state of mind or culpable
negligence.” Comment, pointing out the cases in which it is justifiable to invoke the doctrine
of strict liability. [C.L.C.-91/94/,95; L.C.I-96]
“Although the requirement of mens rea is general throughout criminal law, there are
numerous exceptions to it.” Illustrate. [/.AS.-2009]
Criminal Law - II
(1) Mens rea is not essential in respect of five offences in I.P.C., namely — Sec. 121
(waging war), Sec. 124-A (sedition), Secs. 359 and 363 (kidnapping and
abduction), and, Sec. 232 (counterfeiting coins).
Thus, where the accused is charged with kidnapping a minor girl, his plea that he
honestly believed that the girl was .lot minor was not accepted by the court [R. v Prince],
Similarly, a person who attempts to pass a counterfeit currency note or in whose
possession such notes were found, should not be permitted to raise plea that he was
not aware of notes being counterfeit, unless the person is an ignorant and illiterate
villager.
(2) Where a statute imposes strict liability, the presence or absence of a guilty mind
is irrelevant. Several modem statutes passed in the interests of public safety
and social welfare imposes such strict liability. In matters concerning public
health, food, drugs, etc., such strict liability is imposed, e.g. The Motor
Vehicles Act; The Arms Act; Narcotic Drugs and Psychotropic Substances
Act, 1985;3 The Public Liability Insurance Act, 1991; Infant Milk Substitutes,
Feeding Bottles and Infant Foods (Regulation of Production, Supply and
Distribution) Act, 1992. Similarly, in other statutory offences like bribing,
smuggling, Forex violations, sale of adulterated articles, etc., the guilty mind
is not taken into account by the courts.
The underlying principle of justification for such statutory offences is pointed out by
Roscoe Pound: “Statutory crimes express the needs of society. Such statutes are not
meant to punish vicious will, but to put pressure on the thoughtless and inefficient to
do their whole duty in the interest of public health, safety or morals.”
The accused collected a parcel of fruits from the office of First Flight Courier Services.
While he was going back home with the parcel he was intercepted by a Police Officer going
around in a PCR van. On opening the parcel it was found to contain packets of drug hidden
within the fruits. On being charged under the Drugs Act the accused pleaded total
ignorance and argued that since he did not have the necessary MENS REA which is a must
for any crime to be committed he should not be charged under any crime. Decide with the
help of decided cases. [C.L.C.-2002]
Mens Rea and Strict Liability 19
Such offences are listed with a view to stamp out the evil from society and also
that an offender, whether he knows about the offence or not, should not be permitted
to take the shelter of mens rea or lack of true knowledge. The purpose is that the person
who attempts to commit them, should be aware of the consequences and also he
should presume that what he chooses to undertake is an offence. Thus, where a sweet-
meat seller, after selling the sweets, discovered that sweets were not worth consuming,
and then he sent messengers all over the city to inform people, held that his such
actions now did not mitigate the offence and he could not take the plea that he did not
know at that particular moment that sweets were bad. Similar is the case where a
person is found in the possession of smuggled items.
(3) When it is difficult to prove mens rea, where the penalties are petty fines and
where a statute has done away with the necessity of mens rea on the basis of
expediency, strict liability in criminal law may be imposed, e.g. parking
offences.
(4) Public nuisance is another exception to the doctrine of mens rea.
(5) Another exception to the doctrine of mens rea is to be found in those cases
which are criminal in form, but are in fact only a summary mode of enforcing a
civil right.
(6) Another exception that might be mentioned here is related to the maxim
“Ignorance of the law is no excuse”. If a person violates a law without the
knowledge of the law, it cannot be said that he has intentionally violated the
law, though he has intentionally committed an act which is prohibited by law.
In such cases, the fact that he was not aware of the rule of law and that he did
not intend to violate it, is no defence, and he would be liable as if he was aware
of the law. The reason underlying this rule is that a man could have known the
law if he had taken care to do so. However, this rule is not applicable to cases
where there is no legislative provision for publication of order designed to
enable the man concerned, to find out by appropriate enquiry, what provisions
of law affect him.4
Sec 6 (2) of Immigration Ordinance provided that it shall be unlawful for any person other
than a citizen of Singapore to enter (Singapore) from the Federation or having
entered...remain in (Singapore) if such person has been Proh'^e'1 by order... from entering
(Singapore). Decide the case. [C.L.C.-
92/96]
[Note: Strict liability cannot be invoked against F, as he could not have known that an
order against him had been passed. Also See, Nathulal v State of M.P., discussed later ]
5. The doctrine of criminal liability - actus non facit reum, nisi mens sit rea - was developed
at the Common Law courts in England. The legislature can, however modify it in the
interest of the nation and impose absolute liability by doing away with one of the two
elements. The courts, however, find it difficult to exclude mens rea simply because the
object of the statute is to promote welfare activities or to eradicate a grave social evil and
developed a principle which they apply to decide whether the statute has done away with
the requirement of one of the two elements and imposed absolute liability. Explain the
rloctrine-and also the principle which the courts have to apply whether in a given statute
absolute liability has been imposed or not. [C.LC.-93]
Explain distinction between the cases where principle of mens rea is justifiably dispensed
with and the cases in which the common law rule Actus non\feat reum nisi mens sit rea
is invoked. [D.U.-2011] [C.LG.-98]
Whether mens rea - in the sense of actual knowledge of the acts being done contrary to
law, is an essential requisite for convicting an accused for contravention of any law of the
State? Discuss with reference to case law
[L.c./-yoj
“There is a presumption that mens rea is an essential ingredient in a statutory offence but
this presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject-matter with which i deals_ Elaborate this statement with the help
of decided cases. [D. U.-
“In absence of any clear term of mens rea in statutory offences it' s always necessary to
look to its object and purposes.'' Discuss in the light of decided case. I•
Mens Rea and Strict Liability 21
6. Critically examine the majority and the minority judgments of the Supreme Court in State of
Maharashtra v M.H. George (AIR 1965 SC 722) and give your own view in the matter with
supporting reasons. [D.U.-2012]
“It is not enough merely to label the statute as one dealing with a grave social evil and from
that to infer that strict liability was intended. It is pertinent also to inquire whether putting the
defendant under strict liability will assist in the enforcement of regulations ... Unless this is so,
there is no reason in penalizing . . and it cannot be inferred that the legislature imposed strict
liability merely to find a luckless victim.” Elucidate the cases where it is justifiable to invoke
the doctrine of strict liability and the requirement of mens rea can be dispensed away.
IC.L.C.-2000]
22 Criminal Law - II
by their act or omission to assist the promotion of law [lim Chin Aik v Reginam
(1963) 1 All ER 223].
After considering the language of the relevant provisions of the
FERA, 1947, the object and subject matter of statute, and the nature and
character of the Act to be punished, their Lordship held that there was no
scope for 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’ would exclude an involuntary bringing or sending (absolute
embargo). If the bringing into India was a conscious act, the mere ‘bringing’
constitutes the offence, and no further mental condition is postulated as
necessary to constitute an offence.
The Act is designed to safeguard Forex and to control smuggling
which affect national economy to a large extent. The provisions are thus to
be stringent and so framed as to prevent unauthorised or unregulated
transactions. Also, the persons who actually carry out the physical part of
smuggling are only ‘agents’ and behind them stands a well-knit
organisation. Thus, the very object and the purpose of the Act would be
frustrated if the accused should be proved to have knowledge that he was
contravening the law, before he could be held to have contravened.
It was also observed that there would be no question of individual
service of general notification on every member of the public in the instant
case and all that the subordinate bodies can do is to publish the notification.
The accepted propositions in this case could be summarized as
7
below:
(1) Unless a statute, either clearly or by necessary implication
rules out mens rea as the constituent part of crime, an accused
should not be found guilty unless he has a guilty mind.
7. Discuss the importance of mens rea in criminal law. Also explain the role of
mens rea in statutory offences with the help of relevant case law.
[I. A. S. -2005]
Mens Rea and Strict Liability 23
a hearing before rejection. In fact, they continued to accept returns submitted by him.
These facts confirmed the belief of the accused and he was under a bona fide impression
that the licence was issued to him, though not actually sent to him, and thus he stored
the grains. He could not therefore, be said to have intentionally violated the provisions
of the Act. Therefore, in view of the facts of the case, no serious view of the
contravention of the provisions of the Act may be taken. The conviction of the accused
was thus set aside.
In R v St. Margaret’s Trust Lid.8 (1958) 2 All ER 289, the mens rea was justifiably
excluded. In this case, a company even though innocendy transgressed upon the credit
agreement order was held liable because object was to curb inflation, which was
proving the bane of British economy.
In Inder Sain v State of Punjab (1973) 2 SCC 372, a case under the Opium Act, 1978, the
mens rea was justifiably excluded. Another case in which it was justifiably held that
object of statute was such that mens rea was excluded, is Indo-Cbina Steam Navigation Co. v Jasjit
Singh (AIR 1964 SC 114), which is a case under the Sea Customs Act, 1878.
In this case, a lorry driver and a coolie were prosecuted for exporting
fertilizers without a permit from Madhya Pradesh to Maharashtra in
contravention of the Fertilizers (Movement Control) Order, 1973, read with
Secs. 3 and 7 of the Essential Commodities Act, 1955. In both the cases, the
Trial Magistrate and the High Court held that they were not liable for
conviction since the prosecution had failed to prove mens rea on their part in
transporting fertilizer bags.
The accused did not deny the factum of the transport of fertilizer bags in
their respective lorries or the interception of the
lorries and the seizure of the fertilizer bags or about the fertilizer bags not
being covered by a permit issued under the FMC Order. The defence
however was that they were not aware of the contents of the documents
seized from them and that they were not engaged in exporting the fertilizer
bags in conscious violation of the provisions of the FMC Order. In such
circumstances what falls for consideration is whether the prosecution must
prove mens rea on the part of the accused in exporting the fertilizer bags
without a valid permit for securing their conviction.
The Supreme Court observed: The Trial Magistrate and the High Court have
failed to comprehend and construe Sec. 7(1) of the Act in its full perspective.
The words used in Sec. 7(1) are “if any person contravenes whether knowingly,
intentionally or otherwise any order made under Sec. 3.” The section is
comprehensively worded so that it takes within its fold not only
contraventions done knowingly or intentionally but even otherwise i.e. done
unintentionally. The element of mens rea in export of fertilizer bags without a
valid permit is therefore not a necessary ingredient for convicting a person
for contravention of an order made under Sec. 3 if the factum of export or
attempt to export is established by the evidence on record.
The sweep of Sec. 7(1) in the light of the changes effected by the
legislature has been considered in Swastik Oil Industries v State 1987(19) Guj. Law
Reporter 117. Dealing with the matter, the High Court referred to Sec. 7 of the
Act as it originally stood and the interpretation of the section in Nathu Lai v
State of M.P. (AIR 1966 SC 43) wherein it was held that an offence under Sec.
7 of the Act would be committed only if a person intentionally contravenes any
order made under Sec. 3 of the Act as mens rea was an essential ingredient of
the criminal offence referred to in Sec. 7. The High Court then referred to the
change brought about by the legislature to Sec. 7 viz. the words “whether
knowingly, intentionally or otherwise” were added between the word
“contravenes”. The plain reading of the section after its amendment made it
clear that by amendment, the legislature intended to impose strict liability for
contravention of any order
made under Sec. 3. In other words, by the express words, the element of
mens rea as an essential condition of the offence was excluded so that every
contravention whether intentional or otherwise was made an offence under
Sec. 7. Thus, by introducing these words in Sec. 7 by the aforesaid statutory
amendment, the legislature made its intention explicit and nullified the
effect of the Supreme Court dicta in Nathu Lai case.
In Swastik Oil Industries case, Swastik Oil Industries (a licencee under the
Gujarat Groundnut Dealers licensing Order, 1966) was found to be in
possession of 397 tins of groundnut oil in violation of the conditions of the
licence and the provisions of the Licensing Order. Consequently, the
Collector ordered confiscation of 100 tins of groundnut oil under Sec. 7(1) of
the Essential Commodities Act. It was held tiiat the firm was liable, for mens
rea is not an essential ingredient of Sec. 7(1).
The Apex Court, in the present case, held: We are in full agreement
with the enunciation of law as regards Sec. 7 of the Act in Swastik Oil Industries.
We therefore hold that the Trial Magistrate and the High Court were in error
in taking the view that the respondents in each of the appeals were not liable
for conviction for contravention of the EMC Order read with Secs. 3 and 7 of
the Act since the prosecution had failed to prove mens rea on their part in
transporting fertilizer bags from Madhya Pradesh to Maharashtra.
In this case, the respondent was found to have sold adulterated cumin (Jira)
on March 13, 1976 punishable under Sec. 16(l)(a)(i) read with Sec. 7(1) of the
Prevention of Food Adulteration Act,
9. A few samples of adulterated mustard oil were seized from X's shop. X was charged with an
offence under Section 16 of the Prevention of Food Adulteration Act, the material provision of
which reads: "No person shall or by any person on his behalf manufacture for sale, or store,
sell or distribute : (i) any adulterated food; ...” In his defence, X contends that he had no
knowledge of the adulterated nature of mustard oil seized from his shop, which he purchased
from others. Examine the liability of X, pointing out the cases in which it is justifiable to
invoke the doctrine of strict liability. [C.LC.-99]
Mens Rea and Strict Liability 2
out, “every offence is defined and the definition states not only what the accused must
have done, but the state of his mind with regard to the act when he was doing it.” For
example, theft must be committed dishonestly, cheating must be committed fraudulently,
murder must be committed either intentionally or knowingly, and so on. Thus, there is no
room for the general doctrine of mens rea in the Indian Penal Code. Each definition of the
offence is self-sufficient. All that the prosecution has to do, in India, is to prove chat a
particular act committed by the accused answers the various ingredients of the offence
in the particular section of the I.P.C.
3
General Exceptions
The general rule is that a person is presumed to know the nature and consequences of
the act that he does and is, therefore, responsible for it in law. However, there are
various kinds of acts done under the circumstances mentioned in Secs. 76 to 106 which
will not amount to offences under the Code. In other words, these acts (exceptions) are
exempted from the category of offences under the I.PC. Some of the important general
exceptions are discussed below.
It may be noted that there are two classes of exceptions: (i) excusable exceptions
(where there is lack of mens rea on the part of the person committing the offence either
by reason of mistake of fact, or by reason of the act being done accidentally, or by
reason of infancy, insanity, etc.); justifiable exceptions (where the circumstances under
which the act is committed provide legal justification like the act is done in the
exercise of the right of private defence).
MISTAKE
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 mistake of law, in good faith, believes himself to
be bound by law to do it.1
Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity
with the commands of the law. A has committed no offence.2
(b) A, an officer of a Court of Justice, being ordered by that court to arrest Y, and
after due inquiry, believing Z to be Y, arrests Z. A has committed no offence.
‘Mistake’ is a slip made, not by design, but by mischance. Even under English common
law, an honest and reasonable belief in the existence of circumstances which would
have made that act an innocent act, has always been a valid defence. In Russell on Crime,
the law is stated thus: “When a person is ignorant of the existence of relevant facts, or
mistaken as to them, his conduct may produce harmful results which he neither
intended nor foresaw. Mistake can be admitted as a defence provided (1) that the state
of things believed to exist would, if true, have justified the act done, and (2) the
mistake must be reasonable, and (3) that the mistake relates to fact and not to law.”
Ignorance of fact is excusable (Ignorantia facti doth excuse). Ignorance includes mistake,
but mistake does not necessarily includes ignorance. Ignorance means lack of
knowledge, a general inertia of human mind. While, mistake is not the result of
foolhardiness nor it is caused by any lack of mental alertness. Thus, mere forgetfulness
is not mistake. Mistake of fact implies mistake as to true identities or mistake in
sensory perceptions such as temporary distortion of imagination. As put succinctly in
Ratanlal and Dhirajlal’s Law of Crimes, 23rd edn, p. 199, “it is an erroneous mental
condition or conviction induced by ignorance, misapprehension or misunderstanding
of the truth and resulting in some act/omission done or suffered erroneously by one or
both of the parties to a transaction but without its erroneous character being intended
or known at the time.”
It is to be remembered that ‘mistake of law’ is no defence, but ‘mistake of fact’ is
(Ignorantia facti excusat, Ignorantia juris non excusat - Ignorance of fact is excusable, but ignorance
of law is not excusable).-5
2004]
3. Ignorantia facti excusat, Ignorantia juris non excusat. Discuss.[D.U.-2008/2009]
Everybody is bound to know the law of the land, and ignorance of the law is no
excuse. This is based on the assumption that if a person exercises due care and
diligence (e.g. by consulting a lawyer), he would know the law. However, there may
arise circumstances neutralising die presumption of knowledge of law in every
individual, as in the case of a newly enacted statute.
‘Mistake of law’ means mistake as to the existence or otherwise of any law on a
particular subject as well as mistake as to what law is. Ignorance of law is not excused
because if it is admitted as a ground of exception, the administration of justice will
become impracticable. It would then always be alleged by the party and the court
would be bound to decide whether the party was really ignorant of law.
A mixed question of law and fact is treated as a question of fact if the accused
was misled into an error of fact on account of an error of law. The following rules are
laid down in R. v Prince (1683) 2 Ch. C. 154 to determine the question of justification of
an offence either due to mistake of fact or of law:
0 When an act is in itself plainly criminal, but is more severely punishable if
certain circumstances exist, then ignorance of those circumstances is no
answer to a charge for the aggravated offence.
(ii) If, however, an act is prima Jade innocent, but is an offence if certain
circumstances exist, then ignorance of those circumstances is a good defence
to the charge.
(iii) If the act itself is wrong, and becomes criminal under certain circumstances,
the person who commits such a wrongful act cannot argue that he was
ignorant of the facts which turned the wrong into crime.
(iv) The state of the defendant’s mind must amount to absolute ignorance of the
existence of the circumstances which alter the character of the act, or to a
belief in its non-existence.
When mistake of fact is no defence — Mistake of fact is no defence if the fact itself is illegal. One
cannot do an illegal act (e.g. selling adulterated foodstuffs) and then plead ignorance of
a fact. Thus, a person cannot by mistake of fact, shoot X and then plead in defence that
he did not intend to kill X at all, but mistaken him for Y, whom he wanted to kill.
General Exceptions 33
Similarly, taking an unmarried girl under the age of 16 years out of possession
and against the will of her father was held not to be a good defence to an indictment
for abduction because the accused intended to do and did a wrongful or immoral act,
and not an innocent act [R. v Princes (1875) LR 2 CCR 154]. However, where A sees a
young girl about to jump into the river; believing that the girl is about to commit
suicide A grapples with her and drags her away, he is not guilty of molestation
although it may turn out that the girl was actually doing sun worship.
The maxim respondeat superior (‘act done by the order of a superior’) has no
application in criminal law. The order of a superior to an inferior servant to commit an
offence is not a valid defence. Thus, where under order of their naik, three sepoys of a
regiment fired a shot at a mob which, otherwise, was by no means violent, it was held
that they were guilty of culpable homicide not amounting to murder, and they were
not bound to obey an illegal order. If commands are obviously illegal, an inferior
would be justified in refusing to execute such commands [Gurdit Singh (1812) P.R. 16].
One cannot plead ignorance of fact when ‘responsible inquiry’ would have
elicited the true facts. For example, when a person marries on an honest belief that his
previous marriage has been dissolved by a decree of divorce whereas the divorce
decree has not been granted, he will be guilty of bigamy. He should have made
responsible inquiries about dissolution of previous marriage.
Sec. 79. Act done by a person justified, or by mistake of fact believing himself
justified, by law - Nothing is an offence which is done by any person who is justified
by law, or who by reason of a mistake of fact and not by reason of a mistake of law in
good faith, believes himself to be justified by law, in doing it.
Illustration - A sees Z commit what appears to be murder. He in good faith seizes Z, to
hand him over to the police. A has committed no offence, though it may turn out that
Z was acting in self-defence.4
The distinction between Sec. 76 and Sec. 79 is that in the former, a person is
assumed to be bound, and in the latter to be justified by law.
Illustrative Cases
Cbirangi v State (1952 Cr LJ 1212) - Where an accused, in a moment of delusion,
considered that his own son, was a tiger and he accordingly assaulted him with an
axe, thinking by reason of a mistake of fact that he was justified in destroying the
deceased whom he did not regard to be a human being but a dangerous animal, it
was held that he was protected by Sec. 79. The court stated: “It is very clear that if
Chirangi had for a single moment thought that the object of his attack was his son, he
would have desisted forthwith. There was no reason of any kind why he should have
attacked him. In short, all that happened was that he in a momenc of delusion had
considered that his target was a tiger and he accordingly attacked it with his axe.”
The accused, a Nepali servant went along with his master to see ‘ghosts’ at a
place believed to be infested with ghosts by the villagers. The servant and
his master were outsiders. On seeing a flickering light and shadows, the
servant reached there, and considering them to be ghosts, he attacked them
with a khukri.
As a result of which, one died and several persons got injured; the ghosts
were actually some villagers who were collecting mahua
and attention, the incident might have been averted, was no ground for
denying him that protection. It was held that it was clear that the accused
had a torch in his hand but he could not flash the torch due to fear and he
was acting in good faith.
In Waryam Singh v Emperor (AIR 1926 Lah 554), the appellant’s wife was
taking a bath over the grave of her child (in the belief that she would in this
way get a son) along with her husband. It was a dark night and a villager
took the husband to be a ghost and killed him by beating him from a stick.
He was held not liable under Sec. 303/304/304A because he believed in
good faith at the time of the attack that the object of his assault was not a
living human being, but a ghost or some object other than a living human
being. The court made it clear that the ground for its opinion was that mens
rea or an intention to do wrong or commit an offence did not exist in the
case and that the object of culpable homicide could only be a living human
being. This view was followed in Bonda Kui v Emperor (AIR 1943 Pat 64).]
Emperor v Jagmohan Thukral (AIR 1947 All 99) - The accused, while travelling
from Saharanpur to Dehradun near the Mohand pass picked up a loaded
gun when he saw the eyes of an animal and fired at it which unfortunately
hit two military officers. There was nothing to show that the accused knew
that there was a military camp. The court held that the accused was
protected by Sec. 79 observing: “If he mistook something else as an animal,
then Sec. 79 comes to his rescue.”4h
In this case, the question was whether the accused-respondent could get the
benefit of Sec. 79, IPC for having committed an offence under a ‘mistake of
fact’. On being questioned, he stated that during the daytime his bell metal
utensil had been stolen and he was keeping a watch for the thief. He saw a
person coming inside his premises and thinking him to be a thief he dealt a
lathi blow but subsequently discovered that it was the deceased. The
High Court held that in the circumstances, the respondent had not
committed any offence and was protected under Sec. 79.
The Apex Court observed: Such cases are not uncommon where the
Courts in the facts and circumstances of the particular case have exonerated
the accused under Sec. 79 on the ground of his having acted in good faith
under the belief, owing to a mistake of fact that he was justified in doing the
act which constituted an offence. The question of good faith must be
considered with reference to the position of the accused and the
circumstances under which he acted. ‘Good faith’ requires not logical
infallibility but due care and attention.
The question of good faith is always a question of fact to be
determined in accordance with the proved facts and circumstances of each
case. ‘Mistake of fact’, (as put succinctly in Ratanlal and Dhirajlal’s Law of
Crimes, 23rd edn, p. 199) means: “‘Mistake’ is not mere forgetfulness. It is a
slip ‘made, not by design, but by mischance’. Mistake, as the term is used in
jurisprudence, is an erroneous mental condition, conception or conviction
induced by ignorance, misapprehension or misunderstanding of the truth,
and resulting in some act or omission done or suffered erroneously by one or
both of the parties to a transaction, but without its erroneous character being
intended or known at that time.”
It may be laid down as a general rule that an alleged offender is
deemed to have acted under that state of things which he in good faith and
on reasonable grounds believed to exist when he did the act alleged to be an
offence. In the classical work Russell on Crime, vol. 1, p. 76, the concept of
‘mistake of fact’ is tersely stated thus: “When a person is ignorant of the
existence of relevant facts or mistaken as to them, his conduct may produce
harmful results which he neither intended nor foresaw.” At p. 79, the law is
stated in these words: “Mistake can be admitted as a defence provided (1)
that the state of things believed to exist would, if true, have justified the act
done, and
(2) the mistake must be reasonable, and (3) that the mistake relates to fact
and not to law.”
38 Criminal Law - II
In Dhara Singh v Emperor (AIR 1947 Lahore 249), the accused shot and
killed another person under a mistaken belief, in good faith, that such person
had intruded his house for the purpose of killing him and that he has a
reasonable belief that he was entitled to open fire in exercise of his supposed
right of private defence.
In the present case, the court however held: There was complete
absence of good faith on the part of the respondent. The deceased and the'
respondent were having strained relation and the respondent knew foil well
that the deceased had come for the recital of Bhagbat at the house of PW 2
which he attended along with others. From the dying declaration as well as
the extrajudicial confession it is apparent that the deceased after the recital of
Bhagbat had gone near the pond to take the bell- metal utensil. Apparently,
the respondent was waiting for an opportunity to settle the account when he
struck the deceased with the lathi blow and there was no occasion for him in
the circumstances proved to have believed that he was striking at a thief.
This is not a case where a person being ignorant of the existence of the
relevant facts or mistaken as to them is guilty of conduct which may
produce harmful result which he never intended. Even if he was a thief, that
fact by itself would not justify the respondent dealing a lathi blow on the
head of the deceased. The deceased had not effected an entry into the house
nor was he anywhere near it. He had gone to the pond to fetch his bell metal
utensil. It appears that the respondent stealthily followed him and took the
opportunity to settle score by dealing him with a lathi with great force on a
vulnerable part of the body like the head which resulted in his death.
Although it cannot be said from the circumstances appearing that the
respondent had any intention to kill the deceased, he must in the
circumstances be attributed with knowledge when he struck the deceased on
the head with a lathi that it was likely to cause his death. The respondent was
therefore guilty of culpable homicide not amounting to murder under Sec. 304
Part II of the Indian Penal Code.]
General Exceptions 39
UNSOUNDNESS OF MIND5
Sec. 84. Act of person of unsound mind - “Nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act or that he is doing what is either wrong or contrary to
law”.
This section provides that a man who is, by reason of unsoundness of mind,
prevented from controlling his own conduct and deprived of the power of passing a
rational judgment, on the material character of the act he meant to do, cannot be
legally responsible for the act. The section is based on the principle that an action does
not constitute an offence unless done with a guilty intention (‘actus non facit reum, nisi mens sit
rea'). Therefore, insanity is recognized as a general defence, because insane persons are
incapable of entertaining blame worthy intention; they do not know what they are
doing. No culpability can be fastened upon insane persons as they have no free will
(Furiosi nulla voluntas est).
The words ‘unsoundness of mind’ include following kinds of persons: idiot
(born); one made non compos mentis by illness (temporary failure); a lunatic or a mad man
(mental disorder); a person in unconscious state, if proved (e.g. sleep walking) 6; an
intoxicated person.
6. A, with a known background of sleep-walking, got up from sleep one night, walked to the
garage while asleep and drove away in his car in that condition for quite some distance. He
halted the car at his brother-in-law's place, entered the room where his brother-in-law was
asleep and gave a hard blow to him, thereby severely injuring him. In a prosecution for
attempt to commit murder, A’s lawyer pleads non- insane automatism, on the basis of which
he seeks an acquittal. Decide. Do you think that this case should be dealt with under Sec. 84,
IPC? [I.A. S.-96]
7. Insanity as ground from exemption to crime is based on the theory "that at the time of the
commission of the act the person should be deprived of the cognitive faculty to the extent
that he is unable to differentiate between right and wrong." Discuss. [D.U.-2011]
40 Criminal Law
He thought a gang of persons followed him about and slandered him and prevented
him from getting a job. One day, at a railway station, he shot one Mr. D, thinking him
to be Sir Robert Peel, the Prime Minister of England, who, he thought, was responsible
for all his misfortunes. Some witnesses stated that at the time of the act he was
impelled by an uncontrollable impulse, while others stated that he was insane. The
jury acquitted him on the ground of insanity. The trial caused a sensation in England.
The opinions given in this case laid the foundation of the law of insanity. The House
of Lords laid down four propositions:
® Every man is presumed to be sane and to possess a sufficient degree of reason
to be responsible for his crimes, until the contrary be proved to the
satisfaction of the court.
(ii) To establish a defence on the ground of insanity, it must be clearly proved
that at the time of committing the act, the party accused was labouring
under such a defect of reason or from a disease of the mind as not to know
the nature and quality of the act he was doing, or (if he did know this) not
to know what he was doing was wrong.
If accused was conscious that the act was one which he ought not to do and
if the act was at the same time contrary to the law of the land, he is
punishable. Thus the test is in the power of distinguishing between right
and wrong, not in the abstract but in regard to the particular act committed.
(iv) Where a criminal act is committed by a man under some insane delusion as
the surrounding facts, which conceals from him the true nature of the act he
is doing, he will be under the same degree of responsibility as if the facts
had been as he imagined them to be. For example, if under the influence of
his delusions,
“ Legal insanity' is not the same thing as 'medical insanity’ and a case that falls within the
latter category need not necessarily fall within the former. Further, the case where a
murderer is stuck with an insane delusion is different from the case of a man suffering
from organic insanity." Critically examine the above statement and bring out clearly the
essential requirements of defence of unsoundness of mind to a criminal charge under Sec.
84, IPC and the judicial interpretation of the provision in various decided cases.
[D.U.-2009/2012] [I.A.S.-90]
“Mere medical insanity is not a valid defence under the Indian Penal Code but legal
insanity is.” Discuss [I.A.S.-2001]
General Exceptions 41
he supposes another man to be in the act of attempting to take away his life,
and he kills that man, as he supposes in self defence or he may kill another
under the imagination that he is an executioner lawfully carrying out a
judicial sentence.
The tests/principles to determine the insanity of a person as laid down in the above-
mentioned case and other cases could be summarized as below:
(1) The crucial point of time for deciding whether the benefit of Sec. 84 is to be
given or not, is the time when the offence takes place (“who at the time of
doing it”). It must be shown that the accused was of unsound mind at the time
of the commission of the offence. If he was not insane at that time but
became insane later, he cannot take the benefit of Sec. 84.
(2) In order to see whether the accused was insane at the time of the commission
of offence, the state of his mind before and after the commission of offence is
relevant. For instance, evidence of pre-meditation, an attempt to evade or
resist arrest, etc.
(3) History of previous insanity including any medical history of the same, the
behaviour of the accused on the day of occurrence, and his post-occurrence
behaviour are also relevant to be taken into consideration.
(4) Absence of any motive, absence of secrecy, want of prearrangement and
want of accomplices are also relevant factors. However, taken alone these
factors would not be sufficient.
(5) What Sec. 84 expects is an inherent or organic incapacity (i.e., incapability)
and not a wrong or erroneous belief which may be the result of a perverted
illusion.
(6) Naturally impaired cognitive faculties of mind form a ground of the defence
of unsoundness of mind. The agitation of mind (or uncontrollable impulses)
does not necessarily lead to an inference that it has affected one’s mental
capacity. Similarly, ‘moral insanity’ or weak/defective intellect is no defence.
Further, insanity is different from eccentricity or strange behaviour.
(7) Medical/Legal insanity — The courts are concerned with the legal and not with the
medical view of the question. A man may be
42 Criminal Law • II
suffering from some forms of insanity in the sense in which the term is used
by medical men but may not be suffering from unsoundness of mind as is
described in Sec. 84. Mere unsoundness of mind is not sufficient to bring a
case within the exception. If the facts of a particular case show that the
accused knew that he had done something wrong, it did not matter how,
though he might be insane from the medical point of view, he could not be
exonerated under Sec. 84. Legal insanity recognizes only the impairment of
cognitive faculties and when cognitive faculties are not impaired and only
will and emotions are affected, insane impulses are not a defence [Queen
Empress v Kader Najser Shah (1896) IA 23 Cal 604],
(8) Insane delusions - Akin to lunacy, is what is known as insane delusion which is a
borderline case. Whether a person who, under an insane delusion as to the
existing facts commits an offence in consequence thereof, is to be excused,
depends upon the nature of the delusion. If he labours under a partial
delusion only, and is not in other respects insane, he must be considered in
the same situation as to responsibility as if the facts, with respect to which
the delusion exists, were real. In other words, he will be responsible for the
crime committed by him. Similar is the case with fancied delusions.
Example — A was suffering under an insane delusion that X and Y were persecuting
him. He bought a knife in order to revenge himself on them, and that very evening he
went to their club and stabbed them dead. The fact that he actually bought a knife and
went to the club of his victims shows that he knew what he was going to do, namely,
an act contrary to law; he had an intention to kill. Thus, A would be guilty of murder.
But this would not be so if, at the time of committing the act, A is so deranged as not to
know what he was doing or that he was doing an act contrary to law.
(9) Delirium — Persons who are occasionally “possessed” by the ‘spirits’ and
those who, being in fits of delirium, very often conjure up visions or images
are given the benefit of Sec. 84.
General Exceptions 43
Illustrative Cases
Queen v Lakshman Dagdu (1886) 10 Bom 512 - In this case, A was suffering from fever,
which at times produced paroxysms which, while they lasted, left him bewildered and
unconscious. A killed his children because he was annoyed at their crying. After the
act, he went to bed and falls asleep. The accused had shown no previous symptoms of
insanity. The court held that he was guilty of murder. At the time when he killed his
children, he had no paroxysms and he knew what he was doing.
It was conceded that if the case had to be decided by medical tests, the accused
would have to be acquitted. But the question was whether the test was legally
applicable. It was found that unless the act is shown to have been committed in a state
of delirium the accused must be found guilty. As there was no evidence of delirium,
the court confirmed the
conviction.
In this case, the accused had been suffering from mental derangement for
sometime, after the destruction of his house by fire. He often complained of
pain in head. A person let his son in the company of the accused. When he
returned, he found the accused hiding in a jungle and his son being killed by
him. The accused was charged but the committal proceedings for murder
were delayed for about a year because he was not in a fit state of mind to
defend himself.
44 Criminal Law - II
The court observed that medical insanity is not equal to legal insanity.
Legal insanity recognizes only the impairment of cognitive faculties of mind
and when cognitive faculties are not impaired and only will and emotions
are affected, insane impulses are not a defence. Insanity affects not only the
cognitive faculties which guide our actions but also our emotions which
prompt our actions and the “will” by which our actions are performed. But,
the law does not extend to cases where emotions and “will” are affected. 8 In
the present case, the accused at the time of commission of offence was not
by reason of unsoundness of mind capable or knowing the nature of the act
or that he was doing what was either wrong or contrary to law.
In this case, the accused was tried for the murder of his wife and children. The
court observed that one must look outside the act itself for the evidence as to
how much the accused knew about it; the central point for examination is
whether the accused knew what the killing was and meant to do it. In other
words, whether the accused knew that he was killing human beings or was
under disorder which made him unaware that he was doing
8 Amplify the view that our penal law does not recognize insanity that affects our emotions
which prompt our actions, and the will by which our action are
performed.
General Exceptions 45
so. It was held that although there was absence of any motive, absence of
secrecy, want of pre-arrangement and want of accomplices, these
circumstances were insufficient to support the inference that the accused
suffered from unsoundness of mind of the kind referred to in Sec. 84.
Various acts of the accused, after the incident, show that he was not
insane:—
(i) He knew what he had already done. He threatened his
brother-in-law that he had killed others and will kill him too.
(ii) He went to a neighbour’s house and asked him for poison to
kill himself, as he had finished everybody. When the
neighbour tried to disarm him, he ran away.
(iii) He then went to his brother. He knew who were his brothers
and sisters and the way to their place, there he declared his
intention to kill them.
(iv) He was clear-headed at the time of confession before the
magistrate (however, before the Session Judge, he took the
plea that he was not in his senses and did not know as to
what he did and what he did not do and also did not
remember having made a confession).
(v) It was in evidence that the accused had closed the doors
before attacking the inmates which showed preparation for
the deal.
It was, thus, held that the accused knew what killing was and what he had
done already; he was not only capable of knowing the nature of the act but
did know as well as any sane man. It was held that a person is not entitled to
exemption from criminal liability in cases in which it is only shown that he is
subjected to insane impulses while the cognitive faculties so far as can be judged
from his acts and words remain unimpaired. It is only that unsoundness of
mind which materially impairs the cognitive
46 Criminal Law II
faculties of mind that can form a group of exemption from criminal liability. 9
In this case, the accused, a drug-addict, was convicted for the murder of his
step-brother with whom he had strained relations. He used to make
demands for money from his relations including his step-brother. A few
days before the incident, he had an altercation with his step-brother. When
he assaulted his step-brother with a pharsa, the latter raised an alarm, a
number of persons reached the spot, at this he fled away taking the pharsa
along with him.
The accused took the defence that he was liable to recurring fits of
insanity at short intervals. The High Court held that there was evidence of
motive against the accused; the conduct of the accused prior to the incident
as well at the time of the incident and his conduct subsequent to the incident
shows that he was not entitled to the benefit of Sec. 84. For instance, he fled
away after assaulting his step brother, thus there was an attempt to evade
arrest. Also, during trial, he was clear-headed.
The court observed: “To claim protection under Sec. 84, it is not that
person should not know an act to be right or wrong, but that he should be
incapable of knowing whether the act done by him is right or wrong. The
significant word in Sec. 84 is ‘incapable.’ The capacity to know a thing is quite
different from what a person knows, the former is a potentiality, the latter is
the result of it. If a person possesses the capacity to know a thing, he cannot
be protected in law, whatever may be the result of his potentiality. What is
protected is an inherent organic incapacity, and not a wrong or erroneous
belief which might be the result
the accused was of unsound mind at the time of the commission of the offence.
In order to see whether the accused was insane at the time of the
commission of offence, the state of his mind before and after the commission of
offence is relevant. For instance, evidence of pre-meditation, motive, an
attempt to evade or resist arrest, etc.
In the present case, the accused had a motive to commit the murder
(evidenced by his letter to the father of the deceased).
The entire conduct of the accused from the time he killed his wife up to the
time the proceedings commenced is consistent with the act that he was not
under any fit of insanity at the time of commission of the offence.]
Jailal v Delhi Admn. - In this case, the appellant stabbed the daughter of his neighbour,
then returned to his house and bolted the front door. When a crowd collected outside
the door, he went out by back door and attacked two neighbours in the process. He
then ran back to his house and started throwing brick bats from the roof. The
appellant was prone to lose temper, as reported by his colleagues. The appellant was
cured of the mental disorder (delusions) and was allowed to rejoin duties. On the day
of the incident also he was normal. He had an enmity with his neighbour, thus he has
a motive also. Further, he knew that the act of stabbing was wrong as evidenced by
his conduct viz., he concealed the weapon, bolted doors to prevent arrest. Thus, held
that he was not a person of unsound mind.
Other cases - Where a mother murders her own children without any motive for the
same, the act itself is intrinsic evidence of insanity (Mst. Shanti Devi v State AIR 1968 Del
177). In (Mt.) Anandi v Emperor (AIR 1923 All 327), the male members of the family were
in the fields and when the other women of the family returned from the well they
found the outer door chained from inside. The accused opened it. When they asked
the accused what she had done she said that she had destroyed her issue.
The court held: “It seems to us that from the previous history of the accused
before the murder and from her family history after the murder and for several
months subsequently she was insane, from the want of real motive for the murder
itself and the woman’s conduct
General Exceptions 49
immediately after it, there is sufficient evidence in our opinion that the woman was
not accountable for her action when she killed the child. Therefore, when she killed
her child, she was of unsound mind and cannot be convicted of murder.”
Where the accused killed his wife and only son and it was in evidence that he
had made no attempt to conceal the commission of the offence and rather had been
sitting outside the house with his clothes smeared heavily with blood, with the
blood-stained dagger lying near him, and he saluted the people who came near him
and besides laughing he had himself been uttering something to himself, it was held
that the accused was entitled to acquittal (Shama Tudu v State, 1987 Cr. L.J. 618).
In this case it was held that in relation to the defence of insanity, the court
has to examine the accused’s claim having regard to his entire conduct up
to commencement of the proceedings before the trial court. The accused
murdered his wife and son and took the plea that he acted under a spell of
insanity. He led no evidence to that effect. Also his conduct was of a fully
conscious man. He carried the victims, wife and son, to a secluded place
(water Ms) and killed them. He led them downwards telling them that he
would show the beauty of the falls from a very near point. He then pushed
his son from that place and also tied the saree of his wife around her neck
and dragged her to a rock, notwithstanding her pleadings and protests.
Then he came back home and sleep well for the night. Later, he applied for
bail. Thus, he showed signs of full normalcy. So no benefit of Sec.
84 could be given to him.
10 A killed his wife and daughter with a chopper, locked himself inside the house and shouted, “Save
my wife, Save my child, Call the police. When he door was opened from outside with an
axe, he was found standing near the doo with a chopper in his hand, while his wife and
daughter were lying on the ground with bleeding injuries. A plea of insanity was set up. Will
he succeed?
50 Criminal Law II
accused is not enough for availing of the benefit of the exceptions under
Chapter IV, IPC (State of M.P. v Ahmadulla AIR 1961 SC 998).
In the present case, the appellant has not led any evidence in proof
of the plea of insanity. His behaviour at the time and subsequent to the
commission of the crime clearly indicates that he knew and was capable of
knowing the nature of the act done by him. Being annoyed with the
attitude of the deceased, he appears to have taken a conscious decision of
taking them away from the house and committed the crime at a secluded
place. There was no record showing the appellant to be suffering from any
mental disease when he is stated to have applied for bail. The plea of
insanity raised, on the face of it, is an afterthought and bereft of any
substance.
The court also observed: “We are not satisfied with the submission
of the appellant that the prosecution had failed to prove the complete
chain of circumstances connecting the accused with the commission of the
crime. In its detailed judgment, the trial court has referred to proved
circumstances which lead to the only inference of the involvement of the
accused in the commission of the crime. The trial court has referred to
relevant evidence and the incriminating circumstances.”
the murder of his wife as there was a fight between them that morning
and there is nothing to show that at the relevant time the appellant was
under an attack of paranoid schizophrenia. If an act is committed out of
extreme anger and not as a result o unsoundness of mind, the accused
would not be entitled to the
benefit of Sec. 84.
The court found that the appellant has a family history as his father
was suffering from psychiatric illness. While the cause of ailment was not
known, the heredity plays a part. The accused was being treated for
unsoundness of mind and was diagnosed as suffering from paranoid
schizophrenia. Within a short span soon after the incident, he had to be
taken for treatment of illness to hospital 25 times. The accused was under
reguar treatment for the mental ailment. The motive of killing of wife was
weak being that she opposed the idea of resigning the job of a police
constable. After killing his wife in day light, he made no attempt to hide
or run away.
It was held that the unsoundness of mind before and after the
incident would be a relevant fact. From the totality of the circumstances of
the case an inference can reasonably be drawn that the accused was under
a delusion at the relevant time. He was under an attack of ailment. The
anger theory on which reliance has been placed by the prosecution cannot
be ruled ou under schizophrenia attack. In the circumstances it cannot be
said that the crime was committed as a result of extreme fit of anger A
reasonable doubt can be raised that at the time o commission of the crime,
the accused was incapable of knowing the nature of the act by reason of
unsoundness of mind and thus he would be entitled to the benefit of Sec.
84, IPC •]
INTOXICATION
(See under the Questions Section)
General Exceptions 53
The right of private defence is the right to protect one’s own (or another’s) person
and property against the unlawful aggression of others. It is right inherent in man,
and is based on the cardinal principle that it is the first duty of man to help him
even by taking law into his own hand. The law does not require a citizen, however,
law-abiding he may be, to behave like rank coward on any occasion “The law does
not expect a citizen to be a rank coward or to leave his house at the mercy of a
burglar” (C.J. Gajendragadkar). The right of self-defence must be fostered in the
citizens of every free country.
Sec. 96. Things done in private defence — “Nothing is an offence which is done in
the exercise of the right of private defence”.
(i) A private citizen whose life is threatened by a grave danger need not wait
for the State aid; however, where aid is available, it must be obtained. The
State cannot come to a citizen’s aid as speedily as a grave situation would
normally demand.
(iii) The right cannot be availed of for the sake of self-gratification or to satisfy
one’s ego or to satisfy one’s malicious or sadistic
11. Discuss the law relating to right of private defence under the IPC with the help of judicial
decisions in respect of offences against human body with special reference to
commencement and continuation of this right, extent of force that can be used, the limitations
on the exercise of this right and the circumstances in which this right can be used even
against public servants. [D.U.-2009]
“Right of private defence can be exercised only against the offender.” Discuss.
[I.A.S.-2008]
54 Criminal Law - II
(v) The right of private defence is always related to time and space Thus,
only ‘when’ and “where’ the threat to life and property of persons
become imminent he can exercise the said right and not otherwise. A
present and imminent danger (not remote or distant) should be present.
Thus, X cannot shoot his enemy Y who is at a great distance, even if Y is
armed with a sword. The reason is that, as yet Y has not attacked X and
therefore, it cannot be said that X has a present and reasonable
apprehension of being attacked by X’s sword. Similarly, a person is not
entitled to go to the house of a person who beat his son or daughter in
order to chastise him
(vii) The protective measures employed must be relative to the danger ahead i.e.,
violence used must be proportionate to the injury or threat to be averted,
and must not exceed such limits; however in such situations it cannot be
expected of a person to minutely calculate the correct proportion of force to
be used in defence.
(viii) The right of defence ends with the necessity for it. Thus, the person exercising
such right need not chase the fleeing attacker and then beat him. Similarly,
a person is not entitled to go to the house of a person who beat his son in
order to chastise him.
(ix) The law does not require that a person should not exercise his right to self-
defence if by running away he can avoid injury from his assailant.
(x) The law does not require that a person placed in such circumstances should
weigh the arguments for and against an attack ‘in golden scales’.
In Dominic Varkey v State of Kerala (AIR 1971 SC 1208), the Supreme Court observed:
“Broadly stated, the right of private defence rests on three ideas: First, that there
must be no more harm inflicted than is necessary for the purpose of defence;
secondly, that there must be reasonable apprehension of danger to the body from
the attempt or threat to commit some offence; and thirdly, that the right does not
commence until there is a reasonable apprehension”. In short, right of self-defence
is not available to a person who resorts to retaliation for past injury but to him who
is suddenly confronted with the immediate necessity of averting an impending
danger not of his creation.
The implications of the right embodied in Sec. 96 are very wide. Thus, when a
person commits any act, howsoever grave it may be, it would not be deemed to be
an offence. Sec. 96 is deeming section and by a fiction of law any act which is an
offence for all purposes, shall not be an offence, if the act comes within the exercise
of the right of private defence. That also means that the right of private defence can
be exercised only in a very limited area i.e. ‘self-defence.’
The right of private defence does not mean an unlimited right. The right of
private defence is not available in the following situations:-
56 Criminal Law - II
(i) The aggressors cannot claim the right to private defence, an aggr essor himself
creates a danger to his own life.12"
(ii) There cannot be private defence against private defence. There is no right
of private defence under the Code against any act which is not in itself an
offence under it (an act done in exercise of the right of private defence is
not an offence).
(iii) In a case when two parties are having a free fight without disclosing as to
who is the initial aggressor, it would be dangerous as a rule to clothe
either of them or his sympathiser with a right of private defence. In such a
case, no right of private defence is available to either party and each
individual is responsible for his own acts (Vishvas v State AIR 1978 SC 44).
Burden of Proof
According to Sec. 105 of the Indian Evidence Act, 1872, the burden of proving the
exception is on the person who benefits from it (i.e. on the accused). It is well setded
that even if an accused does not plead self- defence, it is open to the Court to
consider such a plea if the same arises from the material on record.
12. The accused received information one evening that the complainants intended to go on his
land and uproot the corn sown on it. Next morning, at about 3 o’clock he got information
that the complainants had entered his land and were uprooting the corn; thereupon the
accused at once proceeded for his field, followed by the remaining accused and
demonstrated with the complainant who started attacking the accused. In the fight which
ensued both sides received serious injuries and the leader of the complainant’s party was
killed by the accused. Decide. [C.L.C.-2001]
13 When a crime is endeavoured to be committed by force, it is lawful to repel that force in self-
defence. Discuss the legal provisions regarding the right of self-defence. [LC./-95]
[Note: Also see 'Private defence of property’ under the Questions section].
General Exceptions 57
This section is much wider than the corresponding provisions under English
law. Under Indian law, even a stranger may defend the person or property of
another person, whereas under the English law, there must be some kind of existing
relationship e.g. master and servant, husband
and wife, etc.
Sec. 98. “Every person has the right of private defence of the body against an act,
which would otherwise be a certain offence, but is not that offence by reason of the
doer being of unsound mind, a minor, an intoxicated person or a person acting under
misconception of fact.
Thus, the right of private defence is available against such persons who are
exonerated by law if they commit any offence. This section lays down that for the
purpose of exercising the right of pnvate defence, the physical or mental capacity of
the person against whom the right is exercised is no bar. In other words, the right of
defence of the body exists against all attackers - whether with or without mens rea.
Thus, if Z, under the influence of madness, attempts to kill A, Z is guilty of no
offence. But A has the same right of private defence which he would
have if Z were sane.
(i) There is no right of private defence against an act which does not
reasonably cause the apprehension of death or grievous hurt, if done or
attempted to be done by a public servant acting in good faith under colour
of his office, though that act may not be strictly justifiable by law.
(li) Similarly, there is no right of private defence, when the act is done by the
direction of a public servant, though that direction may not be stricdy
justifiable by law.
(iii) There is no right of defence in cases in which there is time to have
recourse to the protection of public authorities.
14. What are the general restrictions on the right of private defence under Sea
1
99, IPC? '
58 Criminal Law - II
(iv) The right of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence.
Explanations 1 and 2 to Sec. 99 provides that a person is not deprived of the right of
defence against an act of public servant, unless he knows or has reason to believe
that the attacker is a public servant or is acting under the direction of a public
servant.
Thus, the right of private defence of body/property can be exercised against a
public servant only in the following three cases:
(a) When the act of the public servant reasonably cause apprehension of
death/grievous hurt.
(b) When the public servant does not act in good faith under colour of his
office.
(c) When the person exercising the right does not know or have any reason to
believe that the attacker is a public servant or is acting under the direction
of a public servant.
There is a marked difference between the acts which are wholly illegal and the acts
which may not be stricdy justifiable by law (or irregular acts). Where the police had
illegally arrested a person, and certain villagers with a view to rescuing that person
launched attack on the police but only after a constable had fired at them, it was held
that the villagers had acted in exercise of right of private defence as the act of firing
shots caused reasonable apprehension of death/grievous hurt in their minds (State of
U.P v Niyamat AIR 1987 SC 1646). On the other hand, if a police officer, acting bona fide
under colour of his office, arrests a person without authority, the person so arrested
has no right of self defence against the police officer.
There is no right of defence in case in which there is time to have recourse to
the protection of public authorities. 15 However, this does not mean that a person
must run away to have recourse to the protection of public authorities when he is
attacked, instead of protecting himself. In
15. “Under the Indian Penal Code there is no right of private defence in cases in which there is
time to have recourse to the protection of public authorities. Examine. ll.A.S.-
97\
General Exceptions 59
one case, the accused received information one evening that the complainants were
to trespass on his field the following day. In the early morning, he was informed
that the complainants were already on the field. Thereupon, he proceeded to the
field with his friends and in the fight which ensued, the leader of the complainants’
party was killed. Held that the complainants being the aggressors, the accused and
his friends had the right of self-defence. The court observed that the accused were
not bound to act on the information received on the previous evening and seek the
protection of public authorities, as they had no reason to expect an attack on the
field at night [Narsang Pathabhai (1890) 14 Bom 441].
Sec. 99 also lays down the extent to which the right may be observed. The
measure of self-defence must always be proportionate to the quantum of force used
by the attacker and which it is necessary to repel. The extent of force which may be
used depends upon the circumstances of each case. The nature of the attack, the
danger apprehended, the imminence of danger and the real necessity of inflicting
harm by retaliation for the purpose of self-defence, are some of the important factors
to be considered in deciding whether the right of defence has been exceeded.
Sec. 100. When the right of private defence extends to causing death16
The right of private defence of the body extends (subject to the restrictions
mentioned in Sec. 99) to the voluntary causing of death or of any other harm to the
assailant in cases of:
(i) an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
16. When and under what circumstances or conditions can death lawfully be caused in the
exercise of the right of private defence? Explain with the help of provisions of law and
judicial decisions. [D.U.-2008/2011] [C.L.C.-94]
[Note: Also see Sec. 103 under the Questions section].
60 Criminal Law - II
(B) Private Defence of Property (See under the Questions Section) Illustrative Cases
Amjttd Khan v State (AIR 1952 SC 165) - In this case, during a communal riot, a mob of
Hindus was on the rampage. When the mob started attacking the appellant’s shop,
he fired, which caused death and injuries to some persons. The court held that the
appellant had no time to have recourse to the public authorities, and there was a
reasonable apprehension of death or grievous hurt to the appellant. The court
negatived the contention that appellant had to wait until the mob actually broke into
his shop. The court said that a person is not expected to wait in such extreme threat
(a case under Sec. 102) for the actual happening of some harm to him. In the face of
an imminent danger, it cannot be expected of a person to minutely calculate the
correct proportion of force to be used in self-defence.17
17. The shops of the accused and his brother, along with their residences, were near each
other. During the communal riots a mob approached the accused s locality and looted the
shops of his brother and his own. On hearing the alarming news through his mother and
finding the mob beating the doors of his house with lathis in an effort to enter in, the
accused fired at the crowd through a hole in the wall of his dwelling house. The shots
resulted in the death of one of the wielders of the lathi and seriously injured some other
persons of the mob. The accused was charged with the offence of murder/grievous hurt. He
pleads the right of private defence of person/property. Decide. [C.L.C.-2002]
During a riot in a particular locality, persons belonging to community A targeted the
properties of community B and resorted to loot/arson. A group of the community A armed
with lathis/sticks proceeded to attack the shop and house of X who belonged to community
B. X and his family members received this information from a relation on mobile phone. X
took out his rifle, loaded it an kept it ready for his protection. He fired at the mob belonging
to community A when he saw approaching his house and shop but before they actually
attacked his shop and house. His act resulted in death of Y, one of the members of the
group A who was hit in the abdomen and succumbed to his injuries soon thereafter causing
panic in the group who ran helter-skelter. X, when tried for Y’s murder, pleads right of
private defence. Will he succeed? [D.U.-2012]
[Note- In the second case, X could have 'fired in air’ to cause panic in the incoming group;
if after that, the group continued to proceed then X would be justified in firing i.e. his right
of private defence. Thus, X might not succeed.]
18 Where the accused struck a blow with a spear causing death in return for an attack by the
deceased with a lathi, has accused exceeded the right of private defence? [D.U.-
2008]
62 Criminal Law II
In this case, an altercation occurred between the accused and one Bucha.
The accused left the place, and after sometime returned with his friends
and started beating Bucha. Bucha picked up a khutai lying nearby and gave
three blows with it on the head of one of the friend of accused, who
became unconscious. Thereafter, the accused (Kishan) and his friends
caught hold of Bucha, Kishan snatched the khutai from the hand of Bucha
and gave some blows on his head which led to his death.
19. "An aggressor cannot claim the right of private defence in criminal law”. Explain the statement
with illustrations and decided cases. [LC.//-93]
A entered B’s house with the intention of committing theft. B and other members of his family
surrounded and attacked A with lathis. Finding his life in danger, A whipped his knife and
stabbed B in the heart region. B died immediately thereafter. A is being tried for the murder of
B. He pleads that as he apprehended danger of his own death he was entitled to defend his
body in exercise of right of private defence. Decide. [LC./HW; I.A.S.-90\
66 Criminal Law II
In this case, the question related to the exercise of the ‘right of private
defence’ by the appellant who had received as many as nine injuries out of
which first two injuries were on a very vital part, namely, on his head and
injury no. 1 was an incised wound which was caused by a sharp-edged
weapon. Under these circumstances, if the appellant fired one shot from
his gun in his self-defence can it be said that he had exceeded the right of
private defence. In other words, whether the nature of assault by the
complainant party which left him with the aforesaid injuries can be said to
have caused a reasonable apprehension in his mind that grievous hurt
would otherwise be the consequence of such an assault.
The Supreme Court observed: It is difficult to appreciate the
reasoning of the High Court that the reasonable apprehension in the mind
of the appellant who had received two injuries on his head and seven
other injuries on his body would be the apprehension that only simple
hurt would be caused to him and not grievous hurt. It is true that the first
injur)' caused on his head had fortunately not resulted into a fracture but
when it was caused with a sharp cutting instrument on the vital part of his
body, namely, right side of head, it cannot be gainsaid that at least a
reasonable apprehension would arise in his mind at the spur of the
moment that if he does not retaliate by using his weapon, namely, the gun
with which he was armed he would certainly suffer a grievous hurt as a
consequence of the assault. Under these circumstances the right of private
defence of the body available to the appellant would extend to even
causing death.
It is of course true that his gun shot unfortunately hit an innocent
person like Smt. Bholan who was present on the scene
of occurrence. It is obvious that if an accused with an intention to kill his
victim fires a shot at him which misses the target and hits any other
innocent person fatally he would remain guilty of an offence of murder but
if the accused had no such intention and was protected by right of private
defence under the situation and circumstances in which it could extend to
even causing death of assailant as laid down by Sec. 100, IPC, and, if in
exercise of that right of private defence the blow fatally falls on an
innocent person the action would still remain protected under Sec. 100.
While judging the nature of apprehension which an accused can
reasonably entertain in such circumstances requiring him to act on the
spur of moment when he finds himself assaulted by number of persons, it
is difficult to judge the action of the accused from the cool atmosphere of
the court room. Such situations have to be judged in the light of what
happens on the spur of the moment on spot and keeping in view the
normal course of human conduct as to how a person would react under
such circumstances in a sudden manner with an instinct of self-
preservation. Such situation have to be judged from the subjective point of
view of the accused concerned who is confronted with such a situation on
spot and cannot be subjected to any microscopic and pedantic scrutiny. In
Mohd. Rampant v State of Delhi (1980 Supp. SCC 215), a Division Bench of this
Court speaking through Sarkaria, J. made the following pertinent
observations:
“... the onus which rests on an accused person under Sec. 105,
Evidence Act, to establish his plea of private defence is not as onerous as
the un-shifting burden which lies on the prosecution to establish every
ingredient of the offence with which the accused is charged, beyond
reasonable doubt. It is further well established that a person faced with
imminent peril of life and limb of himself or another, is not expected to
weigh in ‘golden scales’ the precise force needed to repel the danger. Even
if he in the heat of the moment carries his defence a little further than what
would be necessary when calculated with precision and exactitude by a
calm and unruffled mind, the law makes due allowance for it....”
68 Criminal Law - II
In the present case, the court held: The appellant had a right of
private defence of body which extended to even causing death and in
exercise of that right if he fired one gun shot which unfortunately killed
an innocent person, it cannot be said that he was guilty of an offence even
under Sec. 304, Part I, IPC on the ground that he had exceeded his right of
private defence.
In this case, the question related to the exercise of the ‘right of private
defence’ by the appellants. The facts in brief are: All the deceased hailed
from a village called Malpura which is situate a litde north of Kusi village
of which the appellants were inhabitants. A water stream starting from
another village (situated south of Kusi village) flowed northwards
reaching up to Kusi. As there was acute drought condition, people of
Malpura were in need of water. The three deceased visited Kusi village on
the eve of the occurrence and cut open a bund which blocked the water
flowing further north. This act of the deceased was questioned by some of
the appellants, but their protestations were not heeded to by the deceased.
On the morning of 15-10-1974, situation further deteriorated with
exchange of words between the two factions when those hailing from
Malpura forcefully resisted the attempt of the appellants to restore the
bund. All the appellants gathered up with guns, lathis, etc. The four
appellants who were convicted by the trial court used guns to fire down
one or the other of the three deceased and consequendy the deceased died
of gunshot injuries.
The learned Sessions Judge took the view that the appellants had
right of private defence of property as the deceased committed mischief
by cutting open the bund to block the water flow. The High Court, in
reversal of the above findings, concluded that all the 13 accused had
formed themselves into an unlawful assembly with the common object of
murdering the three deceased and that none had the right of private
defence at the relevant time. Even if mischief had been committed by
Malpura people
General Exceptions 69
the same was continuing for three days preceding the occurrence, and
hence there was no occasion for them to take the law into their own hands
for attacking Malpura people.
In such a situation it is difficult to accept that the accused persons
were protected by the right of private defence of person and property. So
far as property is concerned mischief was caused to the property but it was
not caused under such circumstances as may reasonably cause
apprehension in the minds of the accused persons diat death or grievous
hurt will be the consequence if such right of private defence was not
exercised. The High Court further observed that simply because some
persons came shouting from village Malpura was not enough to give rise
to a reasonable apprehension that grievous hurt would be inflicted on the
accused.
The Supreme Court observed: Sec. 97, IPC recognizes the right of a
person not only to defend his own or another’s body but to defend his own
or another’s property even against an attempt to inflict any offensive act as
against the property. It is now well settled that the rule of retreat which
common law courts espoused is not relevant under the Indian Penal Code.
If a man’s property is in imminent danger of being impaired or attacked he
has the right to resort to such measures as would be reasonably necessary
to thwart the attempt to protect his property. In Jai Dev v Stale of Punjab this
Court has, observed that in India there is no rule which expects a man to
run away when confronted with a situation where he can exercise his right
of private defence.
No doubt Sec. 103 IPC, which deals with right of private defence as
against an act which might be mischief or theft or criminal trespass,
conditions that there should be reasonable apprehension that death or
grievous hurt would otherwise be the consequence. But that provision
deals with the farthest extent of the right of private defence as against the
above three categories of wrongs against the property. But a man pitted
against such wrongs or even against attempts thereof need not wait for
exercising right of private defence until the apprehension of death or
grievous hurt is burgeoned in his mind. The Penal Code
70 Criminal Law II
envisages two measures of right of private defence. One is the first degree
which shall not reach up to causing of death of the wrongdoer. The other
is the full measure which may go up to causing death. Both measures are,
however, subjected to the restrictions enumerated in Sec. 99. Sec. 104 IPC
contains the bridle that right of private defence shall not cross the limit of
first degree as against acts which would remain as theft, mischief or
criminal trespass. But Sec. 103 recognizes extension of the said right up to
the full measure, even as again t the aforesaid acts but only if such acts or
their attempts are capable of inculcating reasonable apprehension in the
mind that death or grievous hurt would be the consequence if the right is
not exercised in such full measure.
The emerging position is, you have the first degree of right of
private defence even if the wrong committed or attempted to be
committed against you is theft or mischief or criminal trespass simpliciter.
This right of private defence cannot be used to kill the wrongdoer unless
you have reasonable cause to fear that otherwise death or grievous hurt
might ensue in which case you have the full measure of right of private
defence.
The court held: When the acts of Maplura people amounted to mischief,
the appellants had a right of private defence to thwart the same. In the
course of exercise of such right the appellants who gunned down the
mischief-makers have obviously acted far in excess of the right of private
defence. Nonetheless the first degree of right of private defence cannot be
denied to them. We are, therefore, of view that the High Court was in
error in holding that the appellants had no right of private defence at any
stage.
prove its case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea in the
cross-examination of the prosecution witnesses or by adducing defence
evidence.”
The court, in the present case, further observed: The number of
injuries is not always a safe criterion for determining who the aggressor
was. It cannot be stated as a universal rule that whenever the injuries are
on the body of the accused persons, a presumption must necessarily be
raised that the accused persons had caused injuries in exercise of the right
of private defence. The defence has to further establish that the injuries so
caused on the accused probabilise the version of the right of private
defence. Nonexplanation of the injuries sustained by the accused at about
the time of occurrence or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to
cases where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and creditworthy, that it far
outweighs the effect of the omission on the part of the prosecution to
explain the injuries (Lakshmi Singh v State of Bihar AIR 1976 SC 2263).
In order to find whether right of private defence is available or not,
the injuries received by the accused, the imminence of threat to his safety,
the injuries caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all relevant
factors to be considered. Due weightage has to be given to, 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, where self-preservation is the paramount
consideration. The right of self-defence is a very valuable right, serving a
social purpose and should not be construed narrowly (Vidhya Singh v State of
M.P. AIR 1971 SC 1857). This right is, however, available only when the
circumstances clearly justify
General Exceptions 73
20. A makes an attack upon B, it appeared by the manner of the assault, the weapon used and
the other circumstances attending the assault that life of B was in imminent danger. B killed
A, will the killing of A be justified under the provisions of private defence? [D.U.-2008]
74 Criminal Law - II
FURTHER QUESTIONS
Q.1 (a) On one night, D was sleeping on the roof of his building, while other
members of his family were sleeping inside their rooms. He got
awakened by vibrations and repeated sounds of beatings on the wall.
He saw that some armed men were entering his room after making a
hole in the wall of his house. D had his gun ready at hand and without a
moment’s delay, he gingerly and stealthily came down the stairs and
fired two shots at the gang, killing one on the spot. The others fled. On a
trial for murder, A pleads right of private defence. Decide.
(b) While J was committing theft in K’s house, L, a tenant of K, saw him. J
took to his heels carrying with him the stolen jewellery. L chased him but
J managed to enter his house and shut the door. L scaled over the wall
and jumped into J’s house. With a view to take back the jewellery, L,
raised a lathi to strike J who forestalled the danger and shot L dead. On
a trial for murder, J pleads right of private defence. Decide.
[C.L.C-94/95/98]
(1) Acts against which right of defence of property can be exercised Every person has the right to
person -
(i) against theft, robbery, mischief or criminal trespass, or any act which
is an attempt to commit theft, robbery, etc. (Sec. 97); and
(ii) against the act of a lunatic, a minor, or an intoxicated person or a
person acting under a misconception of fact (Sec. 98).
Illustration. A enters by night a house, which he is legally entitled to enter. Z, in good
faith, taking A for a house-breaker, attacks A. Here Z, by
General Exceptions 75
attacking A under this misconception, commits no offence. But A has the same right
of private defence against Z, which he would have if Z were not acting under this
misconception.
In a case, A, finding a thief entering into a house in the middle of night
through an entrance in the side wall, seized him while intruding his body and held
him with his face down to the ground to prevent s further entrance and thereby
caused his death by suffocation. At the trial,
A pleads the right of private defence. Held that the right of private defence was a
good justification. It is not the intention of the law that right to defend property is
available only when the thief has already effected entry, for property may be
protected by attacking the thief inside the house as much as by preventing his entry
into it Kurrim Bux, (1865)
3 WR (Cr, 12).
In Puran Singh v State of Punjab (AIR 1975 SC 1674), the Apex Court discussed about
the nature of possession which may entitle a trespasser to exercise the right of private
defence of property. In this case, the appellants had taken forcible possession of the
land m dispute a month before the occurrence and had grown wheat crop on it and the
complainant party (armed with gun, axes, etc.) tried to re-enter the and destroy the
crop grown by the appellants. It was held that for a trespasser to be entitled to exercise
the right of private defence of property, he must be in actual physical possession of the
property over sufficiently long period and the possession must be to the knowledge
(express or implied) of the owner or without any attempt of concealment and which
contains an element of animus possidendi.
The process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced in by the true owner. One of the usual
tests to determine the quality of settled possession in the case of cultivable land,
would be whether or not the trespasser after having taken possession had grown any
crop. If so, then even the true owner has no right to destroy the crop grown by the
trespasser and take forcible possession, to which case the trespasser will have a right
ot
private defence.
(2) Acts against which there is no right of private defence of property Sec. 99 lays down the limitations
(iii) Mischief by fire to any building, tent, or vessel used as human dwelling
or as a place for the custody of property,
(iv) Theft, mischief, or house-trespass under such circumstances as may
reasonably cause an apprehension that death/grievous hurt will be the
consequence, if such right of private defence is not exercised.
Sec. 103, is subject to the restrictions mentioned in Sec. 99. According to Sec. 104, if the
offence is not of the descriptions enumerated in Sec. 103, then the right extends to
causing any harm other than death.
Q.2 (a) A’s wife B was having illicit intimacy with C. One night, B quietly left the
house to visit C; A followed her and on peeping through a window of C’s
house, he found B sharing the same bed with C. A got highly provoked,
jumped in through the window, picked up a hatchet lying nearby and
raised it to hit his wife. C in order to defend B overpowered A, snatched
hatchet from him and gave a fierce blow with it on the left temple of A
killing him on the spot. On charge of murder, C argues that after A was
in possession of the hatchet there was reasonable apprehension of
grievous hurt being caused to B and A’s death was caused in the
exercise of right of private defence. Decide. [C.L.C.-91/92]
(b) C, a thief was trying to escape with a buffalo stolen from D’s field. D and
his brother both armed with lathis chased him and shouting and
swearing at C. C left the buffalo on the way and redoubled his efforts to
make good his escape. D and B continued the pursuit. Apprehending an
imminent fierce attack on him, C turned around and in a desperate bid
snatched away lathi from D and gave violent lathi blows on D’s head
and thereby caused his death. On his trial for murder of D, C set up the
plea of private defence. Shall C succeed? [C.L.C.—
96/99]
(c) X, a thief enters in the house of A in the dead of night and steals a
valuable necklace "er breaking open a steel safe. Somehow, A wakes
up and witnesses X running away with the stolen necklace. A chases X
on the road where a police station is situated nearby. Getting scared, X
throws *he necklace and enters in the house of C. A carefully picks up
the necklace, enters in the house of C, catches X and starts beating
him. Further, A picks up a heavy lathi lying in a corner of the room and
gives a blow on X's head. Enraged, X takes out a knife from his pocket
and stabs A to death. In the trial for murdering A, X pleads that he was
merely exercising his right of private defence. Decide. [C.L.C.-2000]
A.2 (a) Assault with a hatchet can raise reasonable apprehension of death or
grievous hurt. Thus, the right of private defence of C (for B) extended to
causing the death of A under Sec. 100. C is entided to the benefit of the
exception.
General Exceptions 79
(b) When C retreated leaving the stolen property behind, the right of private
defence of property of D ended. When D and his brother continued to
chase him (C), the right of private defence of body could be said to accrued
to C. However, as there was not a present and imminent danger C cannot
take this defence. D and his brother were chasing C, but they have not yet
attempted to attack him (even raising of lathi by them could have given the
right of defence to Q. They might not have attacked C after getting hold of
him.
Q.3 A, B and C went to Badkal lake for a picnic and while A and B got busy in
playing cards, C was moving about surveying the area. After sometime A
and B heard cries and recognizing C’s voice rushed in the direction from
which the cries were coming and saw X and Y attacking C with sticks. A,
in order to save C, picked up a heavy piece of stone and hurled it at the
assailants. The stone hit X on his head who fell down and died two hours
later. A at his trial for X’s murder pleads private defence. Decide.
[L.C.I-96]
A.3 A will succeed.
(ii) A caught a thief in his house at night and deliberately killed him with a
pike-axe to prevent his escape.
(iv) A continued to assault the deceased after he had fallen down and was
rendered harmless.
A.4 (i), (ii), (iii) and (iv) - In all these cases, the right of private defence will not be
available to the accused.
Q.5 (a) X and Y fight each other and Y receives a good thrashing from X After an hour
or so, Y along with some friends carrying hockey sticks approach the
house of X. While they were about 50 yards from the house, X fires
killing Y. In his trial for Ys murder, X pleads the right of private defence.
Decide.
(b) W the wife of H, goes to her parents and refuses to return even after a
great deal of persuasion by H. Eventually getting desperate, H one day
goes to W to bring her back. After heated arguments, H dragged W
towards the exit of the house whereupon one of the brothers of W
inflicted a knife injury on H’s neck which proved fatal. Can a plea of
private
defence be successfully raised by W’s brother?
[D.U.-2011][L.C.I-94\
A.5(a) Sec. 102 provides that the right of self-defence commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or
threat to commit the offence, though the offence may not have been
committed; and it continues as long as such apprehension of danger to
the body continues.
It is to be noted that the apprehension must be reasonable and not fanciful.
Further, present and imminent danger should be present. Thus, X cannot shoot his
enemy Y who is at a great distance (50 yards), even if Y is armed with hockey
stick. The reason is that, as yet Y has not attacked X, and therefore, it cannot be
said that X has a present an reasonable apprehension of being attacked by Y.
Hence there is no right of private defence, in fact, there is no attack at all.
(b) In Vishwa Nath v State of U.P. (AIR I960 SC 67), the appellant’s sister was
being abducted from her father’s house by her husband. The appellant
under his right of the private defence of the body of his sister stabbed the
husband and caused his death thereby.
General Exceptions 81
The Supreme Court upheld the appellant’s right of private defence even to
the extent of causing death.
The court observed that each of the six clauses of Sec. 100 speaks of an assault and
assault is an offence against the human body. An assault with the intention of
kidnapping’ is mentioned in clause five of Sec. 100. Therefore, when the appellant’s
sister was being abducted, even though, by her husband, there was an assault on her
and she was being compelled by force to go away from her father’s* place.
In Shakhu v Cnm (AIR 1951 Nag 349), the husband attempted to take away his
wife by force from her father’s house. When he had physically entered into the
house, the wife rushed at him and inflicted 2 or 3 injuries with a knife on his neck
resulting in his death. It was held that the wife had the right of private defence and
had not exceeded it.
Thus, in the present case, a plea of private defence can be successfully raised
by Ws brother.
Q.6 Nasiruddin was a devout Muslim. One day, his Pir (Preceptor) induced him
to sacrifice his son if he wanted a berth in heaven. Next day, he took his
son to a mosque and killed him there. Leaving the dead body there, he
came to tell his uncle all that he had done to his son to secure a berth in
heaven. But when he found a policeman sitting with his uncle, he took
him aside and told him the entire episode. On a trial for murder, he took
the plea that he was suffering from insanity and deserved the benefit of
Sec. 84, I.PC. The prosecution, however, was of the view that not only
he knew the nature of the act but also that it was contrary to law. Decide.
[D.U.-200S] [C.L.C.-93; L.C.II-94]
A cuts off the head of a sleeping man because ‘it would be great fun to
see a headless man looking for his head after waking up ’ The crime was
committed openly. The accused neither concealed the act nor did he try
to avoid detection. He was taken away by the police, while waiting for the
headless man to wake up, without any resistance. Can the plea of
insanity be raised on behalf of the accused?
The following tests or principles are important to determine the insanity of a person:-
(1) It must be shown that the accused was of unsound mind at the time of the
commission of the offence.
(2) History of previous insanity, the behaviour of the accused on the day of
occurrence, the state of his mind before and after the commission of
the offence are relevant factors to be taken into consideration.
(3) Absence of any morive, absence of secrecy, want of pre arrangement and
want of accomplices are also relevant factors.
General Exceptions 83
However, taken alone, these factors would not be sufficient {Queen Empress v
Gedka Goivala AIR 1937 Pat 333).
(5) There is a clear distinction between medical and legal insanity. A man may
be suffering from some forms of insanity (e.g. eccentric or strange
behaviour, psychotic personality showing delusions, etc.) in the sense in
which the term is used by medical men but may not be suffering from
unsoundness of mind as described in Sec. 84 (viz., naturally impaired
cognitive faculties of mind) (Queen v Laksbman).
In Queen Empress v K.N. Shah (1896) IA 23 Cal 604, the accused had been suffering from
mental derangement for sometime, after the destruction of his house by fire. A
person let his son in the company of the accused. When he returned, he found the
accused hiding in a jungle and his son being killed by him. The court observed that
insanity affects not only the cognitive faculties which guide our actions but also our
emotions which prompt our actions and the “will” by which our actions are
performed. But, the law does not extend to cases where emotions and “will” are
affected. The court held that the circumstances attending the murder go to show that
he could not have been deprived of such reasoning power to distinguish between
right and wrong (e.g. he hid himself in a jungle), though they go to show that he
must at that time been suffering from the mental derangement of some sort (also, he
has no sane motive), thus it was a ‘borderline’ case.
In A. Ahmed v The King (AIR 1949 Cal 182), the accused in his dream was
commanded by someone in paradise to sacrifice his own son of five years. The next
morning the accused took his son to a mosque and killed him by a knife. He then
went straight to his uncle but finding a chowkidar nearby, took the uncle to a tank
at some distance and slowly
84 Criminal Law - II
told him the story. It was held that of the three elements necessary to be established
under Sec. 84, any one of which must be established by an accused to obtain the
benefit of the provisions, the first, the nature of the act, was clearly known to the
accused; the accused also knew that the act was contrary to law; but he certainly did
not know that the act was wrong. The accused was clearly of unsound mind and
acting under the delusion of his dream, he had made the sacrifice of his son
believing it to be right. He was, therefore, entided to the benefit of Sec. 84.
However, it has been held in Lakshmi v State (AIR 1959 All 534) and some other
cases that what is expected by Sec. 84 is incapability, Le., an inherent or organic
incapacity, not a wrong or erroneous belief which may be the result of a perverted
illusion.
In a case where a father and his relatives sacrificed a 4-year old son to
propitiate a deity, the Supreme Court held that this does not, by itself, prove
insanity. On the other hand, the court observed that such primitive and inhuman
action involving a blood-curdling butchery of one’s own son ought to be punished
severely to deter such deviant behaviour [Paras Ram v State of Punjab (1981) 2 SCC 508].
In a case, the accused killed his child by throttling him in a pooja room
labouring possibly under some delusion that he was a Sidhi Baba possessed of
supernatural powers and that the child would come to life after three days bringing
in addition wealth and prosperity. Evidence of conduct before and after the crime
showed that it was not a case of feigned insanity but that he was affected by some
mental disorder because of which his cognitive faculties were greatly impaired. The
accused was held entided to the second limb of Sec. 84 (1974 M.P.L.J. 406).
It is clear that A is not aware of his act and its consequences. A can take the benefit of
Sec. 84.
Q.7 (a) P had a history of insanity in his family. One evening P picked up his only
son and threw him out of the window. After this he strangled two of his
daughters to death and then tried to throttle his wife also. Her cries
brought the neighbours on the spot. On seeing them P ran away and by
the shortest route reached the police station where he surrendered
himself to the police. On trial for murder, the defence counsel for P
pleads insanity and urges that the history of family coupled with the
presence of the five circumstances - (i) the absence of motive, (ii)
absence of secrecy, (iii) multiple murders, (iv) want of pre-arrangement,
and (v) want of accomplices - detailed both in Lyon’s Medical
Jurisprudence and Modi s Medical Jurisprudence, leads to the
irresistible conclusion that he was suffering not only from paralysis of the
will, but also from that of mind. Decide. [D.U.-2011][C.L.C.-91/2000]
Y had a history of insanity in his family. His father had died in a mental
hospital where his sister was also under treatment. On the fateful day Y
picked up his only son and threw him into the village well. Thereafter he
strangled his two daughters to death and then tried to throttle his wife
too. Her cries brought the neighbours out in the street. Seeing them Y
cried loudly, “I have myself killed the members of my own family.” O n
trial for murder, the defence counsel for Y pleads insanity and argues
that the history of family coupled with the presence of the five
circumstances : (i) the absence of motive, (ii) the absence of secrecy,
(iii) multiple murders, (iv) want of prearrangement and (v) want of
accomplices-detailed both in LYON'S Medical Jurisprudence and MODI’S
Medical Jurisprudence, leads to irresistible conclusion that he was
86 Criminal Law - It
suffering not only from paralysis of the will, but also from paralysis of
the mind. How would you, elaborating the law on unsoundness of
mind, decide the case? [C.L.C.-
99]
(b) A, a devoted and inoffensive maid-servant, loved dearly the only son of
her mistress. One morning, while her mistress was away for a walk, A
suddenly caught hold of the boy and threw the child out of the window of
third floor without any apparent sane motive. When her mistress
returned, A told her what she had done. From the investigating police
officer, she asked whether she would be hanged or imprisoned. On a
charge of murder, A pleaded insanity. Medical evidence established that
she had been suffering from grave mental disorders which paralyzed
both the will and the emotions as also impaired the power of self-
restraint. Argue the case EITHER for the prosecution OR the defence.
[C.L.C.-96]
The accused was totally obsessed with the idea that his two- month old
child was a devil and he was a potential danger to himself, his wife and
to the whole world, therefore he should be killed. Any amount of
counselling and entreaties from his wife and mother did not dislodge him
from this obsession. He was mortally scared of being killed by his infant
son. He kept crying for hours sitting in one corner of his house. He did
not eat any food and had started withdrawing himself from day-to-day
life because of the fear of the devil in his own house. He was seen
eating turmeric powder the whole day to keep the devil away. The
obsession of the devil was so overpowering at the time of killing the
child that he almost reduced him to pulp. Then, after the incident he
neither tried to run away nor did he try to resist his arrest. In fact after
killing the infant he himself went and told the police subinspector that he
had removed the devil from the world. Did these symptoms prove that
he was suffering from legal insanity? Give arguments for or against his
conviction.
[C.L.C.-2002\
A.7(a) The “incapacity” contemplated by Sec. 84 is absent in the present case. P knew
the nature of his act and that it was contrary to law, as evidenced by his
conduct in running away on seeing the neighbours and surrendering
himself to the police. The conduct of the accused after the incident is a
relevant factor to determine
General Exceptions 87
Defence Case:
(i) She had no sane motive to kill the son of her mistress.
(ii) There was an absence of secrecy, as evidenced by her conduct before her
mistress and the police officer after the incident. No sane person could
have done so as what she had done.
88 Criminal Law - II
(iii) Medical evidence established that her cognitive faculties were seriously
impaired.
Q.8 S was a watchman in a floor mill. While darkness was setting in, he saw a
very young girl trying to sneak through the gate of the mill to reach her
home, situated at the back of mill. S was drunk heavily. He caught hold
of her, took her to a room to rape her. She struggled and screamed, S
put his thumb on her throat, pressed it a little to stop her from screaming.
She died of suffocation caused by the pressure of S’s thumb. On trial for
murder, S pleaded that he was too drunk to form an intention and
therefore within th3 meaning of Sec. 86, IPC, he could not be convicted
of murder i.e. homicide with intention. Decide. [D.U.-2008\ [C.L.C.-93]
“Under the Indian Penal Code an act which is done by one against his
will is not his act." Examine. [I.A. S.-95/2003]
A. 8 Intoxication
Whereas lunacy is a disease and is therefore to be pitied, drunkenness is a vice and
is therefore to be condemned. Drunkenness is a species of madness for which the
man is to blame. The law pronounces that the obscuration and divestment of that
judgment and human feeling which in a sober state would have prevented the
accused from offending, shall
Criminal Law - II
90 92 Criminal Law - II
Q.9 (a) There was a ship wreck on the high seas. A, the husband of W, was also
on a voyage on this ship. Most of the people on this ship died because
of the mishap. After about five years of this mishap, W
General Exceptions 93
(b) P, a police officer seeing a horse resembling one which his father, F, had
lost a short time ago, tied up in A’s premises, jumped at once to the
conclusion that B had either stolen it or had purchased it from a thief. On
inquiry he was told that B had bought the horse from C. P arrested B and
charged him with offence of theft. The trial court found that the house
lawfully belonged to B and it was not the one that F had lost.
B wants to file a criminal complaint against P for committing offences of
wrongful confinement and defamation. Advise B. [L.C. 11-94]
A.9 Mistake
under Sec. 79, although an act may not be justified by law, yet if it is one under a
mistake of fact, in the belief in good faith that it is justified y law, it will not be an
offence. According to Sec. 52, IPC, “Nothing is aid to be done or believed in good
faith which is done or believed to >e done without due care and attention.” Due care
and attention implies i genuine effort to reach the truth and not the ready
acceptance or ill- latured belief. The question of good faith is a question of fact and
must be gathered from the surrounding circumstances and the capacity and the
intelligence of the person whose conduct is in question.
There should be a bona fide intention to advance the law. The accused cannot
simply allege that he had a good motive, but he must give a prima facie justification of
the good faith, and that he exerted best of his judgment; or that he has a right to act
as he does. Where the accused stopped buffalo carts and the cartmen on the asking
of a police constable and believing in good faith that an offence of smuggling of rice
was going to be committed by the cartmen, it was held that the accused were
entitled to the protection of Sec. 79 (Keso Sahu v State, 1952 Cr.LJ 1212).
It is well settled that ignorance of the law will not excuse any person who has
capacity to understand the law. Mistake of law, however, normally relates to
mistake as to accused’s right under the law to do a particular act. The courts are not
concerned with the legality or otherwise of the rights under which the accused
purported to act. The only question that the courts have to decide in such case is
whether the claim of right was honestly and bonafide held by the accused. This
question will essentially be one of ‘fact’. In this sense, a mistake of law can, to a
certain extent, be a defence to a criminal charge. It was observed in Tolson’s case
(1889) 23 QBD 168, that “an honest and reasonable mistake stands, in fact, on the
same footing as absence of the reasoning faculty, as infancy or lunacy .
It is now well settled as a principle of English criminal law that as a general rule, an
honest and reasonable belief in a state of facts, which, if
94 Criminal Law
they existed, would make the accused’s act innocent, affords an excuse for doing an
act which would otherwise be an offence. And in this connection, the difference
between a mistake of fact and a mistake of law would not be material. In Tolson’s
case, the accused was convicted of bigamy, having gone through the ceremony of
marriage within 7 years, after she had been deserted by her husband. The jury took
the view that at the time of second marriage she, in good faith and on reasonable
grounds, believed her husband to be dead and that this bona fide belief afforded a
good defence to the indictment, and that the conviction was wrong.
Q.10 Discuss the doctrine of ‘retreat to the wall’ and its applicability iii India.
[D.U.-2012]
A.10 Doctrine of 'Retreat to the Wall' in Private Defence
U.S. self-defence law, which stems from English common law, has long favoured
the principle of “retreat to the wall”, which means that only after no longer being
able to retreat safely could one respond to an attacker with deadly force (Vilos and
Vilos, 2010). The exception to this rule is if the attack is inside one’s home, or
“castle”, in which case there is no longer a duty to retreat. Later, laws also removed
the duty to retreat from places outside the home (any place one has a legal right to
be).
New York State law, however, imposes a major restriction on the use of self-
defence. An individual cannot use deadly force to defend oneself if “he knows that
with complete safety to oneself and others he may avoid the necessity of so doing
by retreating.” Deadly force was permitted to be used only when an individual had
his “back to the wall.” It was initially required that one had to have attempted to
flee the scene altogether; if that proved impossible, one must attempt to get as far
away as possible from the enemy - until one’s back was up against the wall. It was
only at that time, were the threat to still be continuing, that one may use force in
self-defence.
There are, however great difficulties in the application of the retreat doctrine.
First, the test is a subjective one. An actor is required to have known that he had the
option of a completely safe retreat. But how can the prosecutor be expected to show
that the defendant actually had such knowledge and that, therefore, the use of
deadly force was not necessary? The fact-finders are not to apply a reasonable
person standard and
General Exceptions 95
assume, therefore, that this defendant knew of the retreat option. In the common
situation where the aggressor possesses a gun and is threatening its use, how can a
jury determine that the defendant knew he could retreat from the threat in complete
safety?
Because, in part, of these practical concerns, there has recently been a steady
trend to abolish the retreat requirement. It was in Ohio, in 1876, where the “true
man” concept originated. A “true man” is not a coward who retreats from a
confrontation; he stands his ground and uses the force required to meet the threat. Law-
abiding citizens should know that “if they make a decision to save their lives in the
split second they are being attacked, the law is on their side.” Thus, if an individual
is attacked in a place where he has a right to be, then he has “no duty to retreat and
has the right to stand his or her ground and meet force with force, including deadly
force if he or she reasonably believes it is necessary to prevent death or great bodily
harm to himself or herself or another.”
In Balbir Singh Balwant Singh v State (AIR 1959 P&H 332), the Court observed: Life of
an antagonist may not be taken if it can be avoided by retreating, and if retreat is
practicable consistently with one’s safety. The strict common law doctrine of “retreat
to the wall” or “retreat to the ditch” was thus expressed in the words of Blackstone
(Commentaries, Book 4, page 185): “The party assaulted must, therefore, flee as far as
he conveniently can either by reason of some wall, ditch, or some other impediment;
or as far as the fierceness of the assault will permit him; for it may be so fierce as not
to yield a step, without manifest danger to his life; and then in his defence he may
kill his assailant. And, this is the doctrine of universal justice, as well as of the
municipal law.”
This doctrine has undergone modification. A person attacked in his own premises
or where he has a legal right to be, is not bound to retreat. The exemption from
retreating is available to the faultless, but those in fault must retreat if able to do so,
there being a safe avenue of escape unless prevented by fierceness of the attack. In a
situation where the accused is either an aggressor or has intentionally sought his
adversary or is a trespasser, it is his clear duty to retreat, if reasonably possible, in
case he believes that his life or safety is menaced.
In Mahabir Choudhaty v State of Bihar [(1996) 5 SCC 107], the Apex Court observed: It
is now well settled that the rule of retreat which common law courts espoused is not
relevant under the Indian Penal Code. If a man’s property is in imminent danger of
being impaired or attacked he has the right to resort to such measures as would be
reasonably necessary to thwart the attempt to protect his property. In Jai Dev v State of
Punjab this Court has observed that in India there is no rule which expects a man to
run away when confronted with a situation where he can exercise his right of private
defence.
4
Group Liability
“A mortal stroke, though given by one of the party, is deemed in the eyes of the law
to have been given by every individual present and abetting. The person actually
giving the stroke is no more than the hand or instrument by which the other strike.”
The principle of vicarious/joint liability is stated in Sections 34 and 149 of the Indian
Penal Code, 1860.
The underlying principle is a well-recognized canon of criminal
jurisprudence that the courts cannot distinguish between co-conspirators, nor can
they inquire as to the part taken by each in the crime. Where parties go with a
common purpose to execute a common object, each and everyone becomes
responsible for the acts of each and every other in execution and furtherance of their
common purpose; as the purpose is common so must be the responsibility.
Sec. 34. Acts done by several persons in furtherance of common intention - “When a
criminal act is done by several persons in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as if it is done by
him alone.”
Sec. 34 is an instance of what is called constructive criminality, i.e., liability of all for
the acts of one or some of them. Sec. 149 also deals with constructive criminality
Principle - Sec. 34 is an interpretative provision and embodies the principle that if two
or more persons intend to do a thing jointly, it is just the same as if each of them had
done it individually. If the intention or purpose is common, so must be the
responsibility
[96]
Group Liability 97
Sec. 34 is a rule of evidence and does not create a substantive offence; its object
is to find out the acts committed by individual members or to find out what part
was taken by each of them in furtherance of common intention of all. Sec. 34
Rationale - The common belief that ‘more the people, less the guilt’ has in law, no
application to the act or commission of a crime. Gravity of a crime cannot be diluted
because it is committed by several persons, nor can the quantum of liability be
redistributed among the doers because it is very difficult to pinpoint the separate
participation of each. If the law allows such distribution of liability, no one would
get the punishment intended by the law. And, it would encourage ‘group criminals.’
Sec. 34 is framed to meet cases in which it may be difficult to distinguish
between the acts of individual members of a party, or to prove exactly what part
played by each of them. The reason why all are deemed guilty in such cases is that
the presence of accomplices gives encouragement, support and protection to the
person actually committing the act.
1. Discuss the essentials of group liability under Sec. 34, IPC. [LC.//-94]
Discuss the rules regarding joint and constructive liability in criminal law.
[D.U.-2011][I.A.S.-2008]
98 Criminal Law - II
(ii) Common intention can be formed at the spur of the moment (eo instanti) jbr — The pre-arranged
plan need not be elaborate, nor is a long
interval of time required. It could arise and be formed suddenly.
: In other words, there is no rule that a common intention
presupposes prior concert; it can be formed previously or in the course of
occurrence and on the spur of the moment {Sheoram Singh v State of U.P. AIR
1972 SC 132). The plan may develop on the spot during the course of the
commission of the offence; but the plan must precede the act constituting the
offence (i.e. it must be anterior in point of time to the commission of the
crime showing a prior concert) ( Krishna Govind v State of I Maharashtra AIR 1963
SC 1413; Appu v State 1990 Cr LJ 36).
Thus, where during a fight a person calls the by-standers to help him kill a person
and they join him; there is then necessary meeting of minds or formation of a pre-
arranged plan though hastily formed and rudely conceived. However, in such a
case it could be argued that all those, who come may come with different
designs/intentions. If they immediately engage in the transaction, it will be a very
difficult task to discover whether they had any common intention, from their acts
alone (Ramsakal v State AIR 1955 Pat 268).
The pre-arranged plan can come into existence the moment one person calls
another for attacking a third, even though the length of time between calling and
the commission of the crime was only a few seconds. And when both of them attack
that third person, a common intention has come into existence before the attack is
made (Mehtab Singh v State AIR 1954 J & K 17). Similarly, where during a fight, a person
intervenes to stop the fight and the intervener is attacked by more persons than one,
such persons can be said to have the common intention of preventing the intervener
from rescuing the victim of their attack and they all are liable for an injury caused
by any of them (Kinaram Das v State AIR 1955 Ass 2).
(iii) In furtherance of the common intention of all — The criminal act must’ve been done
while, or for the purpose of, executing or carrying out the common
intention. The use of words ‘in furtherance’ suggests that Sec. 34 is
applicable also where the act actually done is not exactly the act jointly
intended by the
100 Criminal Law - II
Common intention should be inferred from the whole conduct of all the
persons concerned and not only from an individual act of one of them. Mere
presence at the scene of the crime may in certain circumstances amount to
participation in the crime. But this is a matter of evidence and has to be established
by cogent proof (e.g. that such person participated to facilitate the offence in some
way or the other). It is difficult, if not impossible, to procure direct evidence to
prove the intention of an individual, in most cases it has to be inferred from his I act
or conduct or other relevant circumstances of the case.
(b) Participation
To participate’ means to take part, and part in an act may be taken by doing
something which advances or helps the common cause or achievement. Besides pre-
planning, what is required is an element of : physical presence at the scene of
occurrence coupled with actual participation which can be of passive character
(such as standing by the door). The emphasis in Sec. 34 is on the word “done” — it
is essential that they join in the actual “doing” of the act and not merely in planning
its preparation [J. Ramaya v State of Bombay (1954) 57 Bom LR 632 (SC)].
However, in Jaikrishandas Desai v State of Bombay (AIR 1960 SC 889) held that
participation need not in all cases be by physical presence. In offences involving
physical violence, normally presence at the scene of offence may be necessary, but
such is not the case in respect of other offences when the offence consists of diverse
acts which may be done at different times and places. Criminal sharing, overt or
covert by active presence or by distant direction, making out a certain measure of
jointness in the commission of the act is the essence of Sec. 34 ( Tukaram case).
There might be two situations: ‘Situation (a) when common intention ' is
proved and no clear specific overt acts are attributed to the accused; Situation (b)
when participation is proved but common intention is absent. The accused would be
liable in the first situation, but not in the second. That means that once common
intention is proved though no overt act is attributed to the individual accused, Sec.
34 will be attracted, as essentially it involved vicarious liability. But if participation
in the crime of the accused is proved, and there is no common intention, then Sec. 34
cannot be invoked (Jai Bhagwan v State of Haryana).
102 Criminal Law - II
Illustrative Cases
Lord Dacre’s case (1, Hale P.C. 439) — Lord Dacre agreed with several persons to hunt in
another’s park for deer, and to kill who might resist. One of the parties having killed
the keeper, all were held guilty of the murder, though Lord Dacre was a quarter of a
mile away and knew nothing of the individual blow.
[In this case, A and B killed C and injured D, when C and D tried to attack the cousin of A. It was held
that both had a ‘similar’ intention and not the 'common’ intention to rescue the cousin. The evidence
was lacking to show that there was any pre-concerted plan to bring about C’s , murder. Both, A and
B, picked up different individuals to deal with (viz.
C and D).]
The detailed facts of the case are as follows: C, along with D, was cutting
reeds from the land which allegedly did not belong to them. A’s cousin
saw them and asked them to hand over the reeds which had been
collected from his uncle’s land. A scuffle ensued between A’s cousin and
C and D. C tried to struck A’s cousin with a ‘lari’; at this, A’s cousin
shouted for help. A and B suddenly emerged, armed with guns. When C
and D tried to run away, A shot at C killing him, while D fired at B
injuring him.
On these facts A and B were prosecuted for the offence of ; murder under Sec.
302 read with Sec. 34.
The High Court observed that it is difficult to believe that when A
and B fired the shots they did not have the common intention of killing
one or more of the complainant party. If so, both of them are guilty of
murder notwithstanding the fact that the fatal shot was fired by only one
of them i.e. A (Mahbub Shah).
The Privy Council, however, observed that A and B had the same
intention viz. the intention to rescue A’s cousin if need be by using the
gun and that in carrying out his intention, the appellant Mahbub Shah
acted so but where is the evidence of |
Group Liability 103
In this case, five accused attacked one Ram Chander with axes and sticks
and killed him. The facts of the case, however, do not disclose a common
intention:
(i) nothing is known about what went before the attack; the
blows inflicted were on different parts of the body of the
deceased and some of them were only half-hearted,
104 Criminal Law - II
(iii) the assailants ran away, but there is nothing to indicate that
they ran away together or that they met afterwards. This
fact disproves the existence of a common intention;
Held that Sec. 34 cannot be attracted and each accused will be liable
for what he actually did. None could be vicariously convicted of the
murder however clearly an intention could be proved in his case.]
Bhagwan Bux Singh v State of U.P. (AIR 1978 SC 33) - The allegation in the FIR against the
accused was that he caught hold of the hands of the deceased and said that he
would be set right. But there was no evidence to show that he did so for the purpose
of aiding the other person in assaulting the deceased and there was also no reliable
evidence of the accused’s participation in the assault on the deceased. It was held
that his conviction under Sec. 302 read with Sec. 34 could not be sustained.
Group Liability 105
The appellant along with others was tried on the charges of criminal
breach of trust by a public servant (he allowed some iron to pass out of gates
to be sold and the sum not credited to the government). The defence of the
accused was that he was not present when goods were loaded or passed out
of gates, i.e., when the offence was committed. If he was not present, he
cannot be convicted with aid of Sec. 34 but could have been convicted of
abetment. The court accepted the appellant’s contention, noting that
“participation and joint action in the actual commission of crime are, in
substance, matters which stand in antithesis to abetments or attempts”].
3. Being annoyed by constant quarrels picked up by X on flimsy grounds, A and his sons B and
C decided to teach him a lesson. One day A, B and C reached X's field where he was working
and started assaulting him with blows and kicks During such assault, X was able to take out a
knife from his pocket and he threatened A, B and C. At this, B took out the revolver hidden in
clothes, which he had concealed from his father A and brother C, and shot at X Meanwhile the
persons working in the neighbouring fields arrived on the spot and A B and C fled away. X died
later. Discuss the liability of A, B and C for the murder of X. [C.LC.-2000]
(contd.)
Group Liability 107
with the aid of that section, should have done some act even assuming that
the said accused also shared the common intention with the other accused.
The court (Thomas, J.) observed and held as follows:
(1) As the Sec. 34 speaks of doing “a criminal act by several
persons” we have to look at Sec. 33, IPC which defines the
“act”. As per it, the word “act” denotes as well a series of acts
as a single act. This means a criminal act can be a single act or
it can be the conglomeration of a series of acts, similar or
diverse. How can a criminal act be done by several persons?
(ii) In this context, a reference to Secs. 35, 37 and 38 IPC, in
juxtaposition with Sec. 34, is of advantage. Those four
provisions can be said to belong to one cognate group
wherein different positions when more than one person
participating in the commission of one criminal act are
involved. Sec. 35 says that when an act is done by several
persons each of such persons who join in the act with mens rea
is liable for the act “in the same manner as if the act were
done by him alone with that knowledge or intention”. The
section differs from Sec. 34 only regarding one postulate. In
the place of common intention of all such persons (in
furtherance of which the criminal act is done), as is required
in Sec. 34, it is enough that each participant who joins others
in doing the criminal act, has the required men rea.
(contd.)
[Hint A and C are not liable for the murder of X, only B is liable for X’s murder. A and C
cannot be held liable for murder with the aid of Sec. 34 as the common intention of A, B and C
was only to teach lesson to X and not to kill him; also the fact of B’s having revolver was not
in the knowledge of A and C].
108 Criminal Law II
Thus, actual presence plus pre-conceived result can mean nothing else but
participation.
(iv) An act is done by several persons when all are principals in
the doing of it, and it is immaterial whether they are
principals in the first degree or principals in the second
degree, no distinction between the two categories being
recognized.
(v) This Court in Takaram Ganapat Pandare v State of Maharashtra (AIR
1974 SC 514) observed: “Criminal sharing, overt or covert, by
active presence or by distant direction making out a certain
measure of jointness in the commission of the act is the
essence of Sec. 34”. In Ramaswami Ayyangar v State of T.N. (AIR
1976 SC 2027), held that the essence of Sec. 34 is
“simultaneously consensus of the minds of persons
participating in the criminal action to bring about a particular
result.”
(vi) It is no doubt true that court likes to know about overt act to
decide whether the concerned person had shared the
common intention in question. Question is whether overt act
has always to be established? Establishment of an overt act is
not a requirement of law to allow Sec. 34 to operate inasmuch
this section gets attracted when “a criminal act is done by
several persons in furtherance of common intention of all”.
What has to be therefore, established by the prosecution is
that all the concerned persons had shared the common
intention. Court’s mind regarding the sharing of common
intention gets satisfied when overt act is established qua each
of the accused. But then, there may be a case where the
proved facts would themselves speak of sharing of common
intention: res ipsa loquitur1’ [Krishnan v State of Kerala JT 1996 (7) SC
612],
(vii) In Surender Chauhan v State of M.P. (2000) 4 SCC 110, held that if a
common intention is proved but
Group L i a b i l i t y 113
UNLAWFUL ASSEMBLY
The Indian Penal Code does not punish mere assembly of person! However, where
persons assemble in such a way as to cause terror in e minds of the people and
endanger public peace, the assembly is termed as ‘unlawful assembly.’ Thus, simply
meeting for chalking out future plans or a peaceful march is no unlawful assembly
because there is no breach of peace without which there is no unlawful assembly.
Sec. 141. Unlawful Assembly - An assembly of five or more persons is designated an
“unlawful assembly” if the common object of persons composing that assembly is -
(i) to overawe a government or a public servant by show of criminal force,
(ii) to resist the execution of any law, or of any legal process, I
(iii) to commit any mischief of criminal trespass, or other offence,
(iv) to take forcefully possession of any property or to deprive any person of the
enjoyment of right of way or of use of water, etc., or to enforce any right or
supposed right,
(v) to compel, by force, any person to do what he is not legally bound to do, or
to omit to do what he is legally entitled to do.
Explanation - An assembly which was not unlawful when it assembled j may
subsequently become an unlawful assembly.
The object of this section is to prevent resort to criminal force by five or more
persons to do any of the acts set out in this section. As regards the offence of unlawful
assembly, the following points may be noted -
Group Liability 115
(v) It is not necessary to prove that each and every one of the members had
indulged in overt acts. The presence of accused ‘as
16 Criminal Law - II
4. A and B, two friends, decided to commit theft of valuables in X's house. While A was
collecting the valuables from X’s house, B finding X’s wife alone commits rape of her. A and
B are prosecuted for the offence of rape under Sec. 376 read with Sec. 34, IPC. Will the
prosecution succeed against both A and B? Discuss. [D.U.-2011][L.C.II-94]
118 Criminal Law - II
In Mizaji v State of U.P. (AIR 1959 SC 572), held that Sec. 149 has two parts. The
liability of a member of an unlawful assembly may arise for an offence committed by
any member of the assembly in two ways. The first is where the other member commits
an offence, which was in fact the object of the assembly. The second is where the
common object to commit an offence was different from the offence which was actually
committed. In such a case the member not actually committing the offence will be
liable for that offence only if he knew that such offence was likely to be committed in the
course of the prosecution of the common object to commit the offence originally
thought of.
The expression “know” does not mean a mere possibility, such as might or
might not happen, it imports a high degree of probability. Further, it indicates a state of
mind at the time of the commission of the offence and not the knowledge acquired in
the light of subsequent events. Under Sec. 149, the liability of the other members for the
offence committed during the continuance of the occurrence rests upon the fact
whether the other members knew before hand that the offence actually committed was
likely to be committed in prosecution of the common object. Such knowledge may
reasonably be collected from the nature of the assembly, arms or behaviour, at or
before the scene of action {Gajanand v State of U.P. AIR 1954 SC 695).5
Thus, in case of “free fight”, Sec. 149 could not be invoked. There may not be a
common object in a sudden fight but in a planned attack on the victim, the presence of
the common object amongst the persons forming the unlawful assembly can be
inferred.
Emperor v Kabil (1869) 3 Beng. LRI - A large body of men belonging to one faction way
laid another body of men belonging to a second faction, and a fight ensued, in the
course of which a member of the first faction was wounded and retired to the side of
the road, taking no further active part in the affray. After his retirement, a member of
the second faction was killed. Held that the wounded man had ceased to be member of
the unlawful assembly when he retired wounded and thus cannot be made liable for
the subsequent murder under Sec. 149.
Vithal v State of Maharashtra (AIR 1983 SC 179) - In this case, the accused persons were lying
in wait at different places, splitting themselves
5. About 100 people forcibly entered into one of the leading corporate offices in Delhi. Some
of them assaulted people in the office and even one of the officials was killed. All of them
were arrested and subsequently charged under Sec. 302/149, IPC. Those who did not
participate but simply witnessed the happening plead defence. Argue from both sides.
[D.U.-
2008]
[Hint See following cases discussed below: Soofi Abdul Mazid v State-, Muhu Naicker v
State; Chandra Bihari Gautam v State of Bihar.]
Group Liability 119
in smaller groups so that they may not attract attention; they joined together at the
place of incident without much appreciable interval of time, they further attacked the
deceased jointly and in succession. At one point of time they simultaneously attacked
the deceased. Afterwards together they dragged the dead body. Held that all the
accused were animated by common object, and had become members of unlawful
assembly.
Chandra Bhan v State (1981 Cr LJ 196) - In this case, the common object of an unlawful
assembly was to murder a particular person. However, in the heat of the moment, one
of the members murdered a peaceful intervener. Held that in absence of any evidence
to the contrary, it could not be presumed that the remaining members of unlawful
assembly knew i that murder of an innocent intervener was likely to be caused in
prosecution of the common object of murdering another particular person. They could
not, therefore, be convicted under Sec. 302 read with Sec.
| 149.
Allauddin Mian v State of Bihar (AIR 1989 SC 1456) — Where common object of the unlawful
assembly was to kill A’ and it was not necessary to kill ‘B’ and ‘C’ who were not any
hindrance to the accused Nos. 1 and
1 in accomplishing their common object, it was held that accused Nos.
! 3 to 6 could not be convicted for the injuries caused to ‘B’ and £C’ by accused Nos. 1
and 2, with the aid of Sec. 149.
Soofi Abdul Ma~id v State (1989 Cr LJ NOC 134) - Where an assembly was formed to take
forcible possession of mosque properties and one of the members of the assembly
without provocation or instigation by any other member committed murder, the other
members of the assembly could not be convicted of the offence of murder.
Uuhu Naicker v State (AIR 1978 SC 1647) - Where a large crowd collected all of whom
were not shown to be sharing the common object of the unlawful assembly, a stray
assault by any one accused on any particular witness could not be said to be an assault
in prosecution of the
120 Criminal Law II
In this case, a large number of persons (300-400) at about 2 a.m., armed with
guns and other deadly weapons, attacked the house of Ganesh Singh. They
burnt the house and killed several members of the family. It was contended
on behalf of the accused-appellants that as the prosecution had failed to
prove a specified object, they cannot be held to be guilty for the commission
of the offence with the aid of Sec. 149, IPC. In other words, even if the
occurrence is held to have taken place in the manner alleged by the
prosecution and the accused persons were seen on the spot, they cannot be
convicted and sentenced as the prosecution allegedly failed to establish the
existence of a common object amongst the accused persons. It was held that
the mere fact that no overt act has been attributed to each of the accused
persons is not sufficient to hold that charge under Sec. 149, IPC has not been
proved against them.
Distinguish the requirements of joint liability under Secs. 34 and 14£ £^93/94]
Under Sec 34 IPC, joint liability is based on a common intention, while under Sec 149 it is
based upon common object and knowledge of the probility. Compare the two sections.
1
122 Criminal Law - II
that both have the same meaning. The following points of difference may be noted:-
(i) Sec. 34 is a rule of evidence and enunciates the principle of liability, but does
not create an offence. Sec. 149 creates a specific substantive offence. Thus
being a member of unlawful assembly is by itself an offence.
(ii) Under Sec. 34, the number of persons is immaterial. Under Sec. 149, five (or
more) persons should have entertained the common object.
Even if the offence committed is not in direct prosecution of the common object of
assembly, it may yet fall under Sec. 149 if it can be held that the offence was such as
the members knew was likely to be committed. “Knowledge” is not the same thing as
“intention” and knowledge of a likely result does not amount to an intention to bring
out that result. Where the main intention of the accused is to commit robbery, the fact
that one of them was armed with deadly weapon, does not necessarily mean that they
had also the common intention to commit murder. At the most they can be imputed
with knowledge that murder is likely to be committed.
(iv) Under Sec. 34, some active participation is necessary. But under Sec. 149, the
liability arises by reason of mere membership of unlawful assembly.
7. Discuss: “While the members of a group may have a common object, their individual intentions
may vary”. [L.C.I-94]
Group Liability 123
(v) The common object of the unlawful assembly must be one of the objects
mentioned in Sec. 141, while the common intention may be any intention, for
the purpose of Sec. 34.
FURTHER QUESTIONS
Q 1 (a) The accused X, Y, Z, J and K were alleged to have entered into A’s house in
order to get forceable possession of the house. With the lathis they were
carrying, grave injuries were inflicted on A’s limb and he was dragged
out of his house to some distance where either J or K shot him dead with
a hidden pistol. Advise on the group liability of the persons involved in
the case.
Will your answer be different if the court acquitted X and Y on the ground
that their presence in the group was not clearly established?
A, B, C, D and E with a common object to rob a bank start for the bank.
A, B, C, and D enter the bank to rob it carrying sophisticated weapons
and mobile phones. E stands at a distance and overseas their actions
through a binocular and instructs them through mobile phone as to how
effectively the common intention could be implemented. While trying to
run away with loot amount A, B, C and D face stiff resistance from the
guard who is eventually killed by A. A, B, C, D and E are tried for the
offence of murder and other related offences read with Sec. 149, IPC. B,
C and D contend that they did not actually participate in the crime (i.e.
murder) and E contends that he was not physically present at the place
of commission of crime and was not a member of the assembly. Decide.
[D. U. -2009/2012]
124 Criminal Law - II
Under Sec. 149, all five accused will be liable for offences committed in
prosecution of the common object, as also for the offences which they knew were
likely to be committed in the prosecution of common object.
The phrase ‘in prosecution of the common object’ means that they offence
committed was immediately connected with the common object of unlawful
assembly. But the words do not mean ‘during the prosecution of the common object’
of assembly. Thus, if an unlawful assembly goes with the common object of theft, and
there unknown to others, a member kills someone, the offence of killing cannot be
attributed to all five.
The word “know” does not mean a mere impossibility, such as might or might
not happen, it imports a high degree of probability. Such knowledge may reasonably
be collected from the nature of the assembly, arms or behavior, at or before scene of
action (Gajanand v State of U.P.).
The Supreme Court observed: Sec. 149 has two parts. The first part of
the section means that the offence committed in prosecution of the common
object must be one which is committed with a view to accomplish the
common object. The second part of the section means that even if the offence
committed is not in direct prosecution of the common object of the assembly,
it may yet fall under sec. 149 if it can be held that the offence was such as the
members knew was “likely to be
Group Liability 125
committed.” The expression “knew” does not mean a mere possibility such
as might or might not happen.
For instance, it is a matter of common knowledge that when in a
village a body of heavily armed men set out to take a woman by force,
someone is likely to be killed and all the members of the unlawful assembly
must be aware of that likelihood and would be guilty under the second part
of Sec. 149. Similarly, if a body of persons go armed to take forcible
possession of the land, it would be equally right to say that they have the
knowledge that murder is likely to be committed if the circumstances as to
the weapons carried and other conduct of the members of the unlawful
assembly clearly point to such knowledge on the part of them all.
Before the case is brought within the mischief of Sec. 149 it has to be
concluded from the weapons carried and the conduct of the accused. Two of
them were armed: one with spear and other with a pistol. The rest were
armed with lathis. They all collected together when the opposite party objected
and they used threats towards the complainant party telling them to go away
otherwise they would be finished.
The court held that the appellants formed an ‘unlawful assembly’ and
the offence committed by them was connected immediately with the
common object of the assembly. The members were prepared to take forcible
possession of the land at any cost (as evidenced by their conduct, viz.
carrying of dangerous weapons, threats to kill, etc.), and thus murder must
be held to be immediately connected with the common object. The case may
yet fall under second part of Sec. 149, because there is no doubt that
considering the various weapons with which they had gone armed, they
must have known that there was likelihood of a murder being committed in
the prosecution of a common object.
As to the use of pistol by Mizaji on being asked by his father, their
Lordships observed that he fully shared the common object of the unlawful
assembly and must be taken to have carried the pistol in order to use it in the
prosecution of the
126 Criminal Law - II
common object of the unlawful assembly and he did use it. Merely because a
son uses a pistol and causes the death of another at the instance of his father
is no mitigating circumstance which the court would take into consideration.
In this case, during an altercation, Maina Singh tired at one Amar Singh, the
latter fell down and the other accused gave ‘gandasi’ blows as a result of
which the said person died. The charge related to the commission of an
offence of unlawful assembly by the appellant Maina Singh with the other
four coaccused. The trial and the High Court gave benefit of doubt to four
others. The issue was whether Maina Singh alone can be convicted under Sec.
302 read with Sec. 149.
The court observed that where the prosecution case as set out in the
charge and as supported by the evidence is that the alleged unlawful
assembly consists of 5 or more named persons and no others, and there is no
question of any participation by other persons not identified or identifiable
in such a case if two or more accused are acquitted leaving before the court
less than
5 persons, then Sec. 149 cannot be invoked. Where, however, the case of the
prosecution and the evidence adduced indicates that a number in excess of 5
persons participated in the incident and some of them could not be
identified and so not named, it would be open to the court to convict less
than five of the offence of unlawful assembly under Sec. 149 provided it
comes
9. Can less than five persons be charged, tried and convicted for the offence of unlawful
assembly? [/.AS.-93]
A group of 11 persons caught hold of X who was carrying a sum of Rs. 2 lakhs. Three of them
inflicted severe injuries by a sharp-edged weapon. Two ran away with the cash. X succumbed to
his injuries in the hospital. Seven members of the group were identified, charge-sheeted and
prosecuted for the offence of murder under Sec. 302 read with Sec. 149, IPC. Out of seven, three
were acquitted by the trial court, giving them benefit of doubt and remaining four are being
convicted u/s 302 with Sec. 149. They challenged their conviction before the High Court. Decide.
[D.U.-2008]
Group Liability 127
Q.2 (a) A, B, C, D and E, five motor mechanics were going to the bungalow of X,
their employer, to make a request for increased wages. X was coming in
his car from the opposite direction. In a bid to save a child from being
run over, X swerved to the right side of the road and thus happened to
hit A. Thereupon A shouted: “Here is the devil, let us beat him”. In
response,
B, C and E surrounded X and D pulled him out of his car. A quickly
inflicted three spanner blows on the head of X, who died
instantaneously. E was shocked to see the pool of blood and
reprimanded A for his uncalled act of killing X as such. Can B, C, D, and
E held jointly liable under Sec. 302 read with Sec. 34/Sec. 149?
[C.L.C.-95]
(b) Six persons planned to kill A. They waited for him and accosted him as
soon as he came back from work. Sensing danger he ran for cover and
was able to reach his house. He was trying to come out after taking his
gun but his wife blocked his way so they could not kill him. Being
frustrated two members of that group gunned down his daughter who
was playing outside in the lawn. Can the members of this group be
prosecuted under the provisions of the IPC? Give your arguments citing
the provisions of IPC and some of the relevant decided cases.
[C.L.C.-2002]
A.2 (a) In the present case, the assembly was lawful in its inception, but it becomes
unlawful later when A shouted “Here is die devil, let
Group Liability 129
us beat him”, and the other four members responded to his call. Thus an
unlawful assembly comes into existence with the common object of beating X.
According to the explanation to Sec. 141, an assembly which was lawful when
it assembled may subsequently become an unlawful assembly. It may be
noted that there need not be any pre-planning among members of an
unlawful assembly as to the common object. Common object can develop eo
instanti (at the spur of the moment).
Under Sec. 149, all the members will be liable for the offences which they knew
were likely to be committed in the prosecution of the common object. It is likely that
hurt may be caused, but the death of X was not in the contemplation of the members
(as evidenced by the fact that E reprimanded A for his uncalled act of killing X as such).
Thus, only A will be liable for causing the death of X. As there was no common
intention, Sec. 34 also cannot be invoked.
(b) All the members of the group are liable to be convicted under Sec. 302, IPC for
killing the daughter of A with the aid of Sec. 149, IPC.
Q.3 Five persons went to commit a broad day light robbery in a bank, leaving
behind one of them, namely Mr. Ghosh waiting in a taxi, to raise an
alarm in case of emergency. However, during the robbery one Bank
employee X was shot dead. Later all were apprehended and put on trial.
Mr. Ghosh pleaded that he did not participate in the commission of the
crime and as such he cannot be held guilty jointly, under Secs. 34/149,
IPC, along with other co-accused. Decide. [LC./-95]
A.3 Mr. Ghosh will be guilty under Sec. 34, because of the following
grounds:—
(i) there was a common intention in the sense of a pre-arranged plan (to commit
robbery);
(ii) the common intention can be to do an act, and another act can be done in
furtherance of the common intention e.g. a preliminary act to achieve the common
intention, or an act done while achieving the common intention, or an act
done after achieving the common intention (the murder of bank employee
could be said to be an act done in furtherance of the common intention;
bank robbery'
130 Criminal Law II
Q.4 There was a group of 22 communists. Two of them were in the police
lock-up. With the object of rescuing them from police custody they
marched towards the lock-up. Some of them were armed with deadly
weapons, some with ordinary weapons and others were bare-handed.
When they arrived near the lock-up, they met resistance from the
police constables on duty. Those carrying deadly weapons opened fire
resulting in the death of two constables. All of them were convicted
under Sec. 149. Those who were bare handed and did not take part in
the fighting appealed. Decide. [C.L.C
-93
A.4 The common object of the group was to rescue two of their members from
police lock-up; the group constituted an ‘unlawful assembly’ within the
meaning of Sec. 141 [clause (ii) of which reads: ‘to resist the execution of
any law, or of any legal process’].
*
10. Five friends planned to kill their arch enemy in his house. They all arrived there at the
appointed time. Two of them stood outside the house as guards, while the others went inside
and killed their enemy. All the five were convicted under Sec. 302 read with Sec. 34. Two of
them who had participated in killing appealed stating they were just standing outside. Decide.
[C.LC.-93]
Group Liability 131
According to Sec. 142, whoever, being aware of facts which render any assembly
an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be
a member of an unlawful assembly. Thus, unarmed members by continuing in the
assembly, invite the application of Sec. 142 upon themselves. Further, a mere
membership of the unlawful assembly is enough; Sec. 149 does not require
participation in the crime.
The possibility of an encounter with the police and death being caused was a
possibility which every member of the group knew to be likely in the prosecution of
the common object. Thus, all the members (including bare handed members) are liable
to be convicted for murder under Sec. 302 read with Sec. 149, IPC.
Q.5 One afternoon, when X was going on his bicycle to his village, shots were
fired in his back from behind. X looked back and saw A and B following
him on a bicycle, A being on the saddle and B sitting behind with a pistol
in his hand. On an alarm raised by X, some passer by arrived at the
scene and tried to apprehend A and B who leaving their bicycle on the
road ran away and escaped. X died later. A is being tried for X’s murder
under Sec. 302/34 IPC. It is proved that A and B were not intimately
known to each other. How will you decide?
[L.C.I-96]
A. 5 The present problem is based on the case — Malkhan Singh v State of U.P. (AIR 1975
SC 12), in which it was held-that the companion of the accused, on whose
cycle the accused was sitting, could not be held jointly liable along with the
accused.
The facts of the case would not necessarily go to show that the shot had been fired in
furtherance of the common intention of the two accused:-
(i) A and B were not intimately known to each other, thus A may not know
about the previous designs of B, or that B had a pistol with him (thus
common intention is lacking in the present case).
(ii) Common intention should be inferred from the whole conduct of all the
persons concerned and not only from an individual act of one of them.
(iii) The fact that both A and B ran away and escaped together do not necessarily
shows that they participated in the act together and had a common intention.
A might’ve ran away with B because
132
Criminal Law - II
of fear and fright caused b, the sudden turn. of event, resulting from B’s shot.
Q.6 M had invited his brothers S, P. R and G to a family-turn just then M’s
neighbour N picked up a quarrel with M on a trivial boundary wall matter.
On seeing the quarrel escalate and at M’s call, S, P, R and G allegedly
rushed towards Ns house with a view to beat up N. However, before
they could join, M thrust a spear blow in N's abdomen and killed him.
up N.
Under Sec. 149, all the members will be liable for the offences which they knew were
will be committed in the prosecution of the common object. It is likely that hurt may be
caused, but the death of N was not in the Of die members. Thus, only M will be liable
for mu. * and no. P. R, S and G, However, P, R, S and G will be table for, the offence of
unlawful assembly.
G shall no. be table for any offence if he proves hi, staying bad from the fight (Vithal
Tvkaram v Slat, of Mahara.hlra AIR 200. SC
2715).
Attempt
Stages of Crime
Broadly speaking in every crime there are four stages in the commission of an offence.
The first stage exists when the culprit first entertains e idea or intention to commit an
offence. In the second stage, he makes preparations to commit it. The third stage is when
he attempts to commit it. If the third stage is successful then finally the actual commission
of the offence takes place. A mere intention to commit offence is not punishable likewise,
mere preparation is not made punishable by the code except under the following sections
of the code, viz. Sec. 122 (preparation to wage war with the Government of India), Sec.
126 (preparation to commit depredation on territories of any power in alliance or at
peace with the Government of India), Sec. 351 (preparation to cause apprehension of
criminal force), and, Sec. 399 (preparation for committing
dacoity).
If an act remains confined to the first two stages, there is in general no criminal
liability. If intention and preparation were made punishable it would be impossible to
prove that the object of an accused was to commit an offence (e.g. a person might
purchase a gun for self-defence). It is in the third stage that the liability arises. Whether
the act is in second stage or it has entered the third stage is a matter of evidence.
Sec. 511. 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 imprisonment for life
124 Criminal Law - II
lllustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and finds
that there is no jewel in it. He has done an act towards the commission of
theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s
pocket. A fails in the attempt in consequence of Z’s having nothing in his
pocket. A is guilty under this section.
Sec. 511 is a general section that makes punishable all attempts to commit offences
punishable with imprisonment for life or imprisonment excepting those punishable with
death or with fine only. Sec. 511 provides for punishment for an attempt to commit an
offence under the Penal Code. It does not apply to offences under special or local laws.
Further, on y such attempts are punishable under Sec. 511 for which no express
provision is made by the Code. Thus, Sec. 511 is limited in these respects.
Express provision has been made by the Code for attempts falling under
various sections e.g. Sec. 121 (attempting to wage war against the Government), Sec.
130 (attempt to rescue any State prisoner or prisoner of war), Sec. 161 (public servant
attempting to take illegal gratification), Sec. 196 (attempt to use as true, evidence
known to be false), Sec. 239 (attempt to induce a person to receive a counterfeit com),
Sec. 307 (attempt to commit murder/culpable homicide), Sec. 309 (attempt to commit
suicide), Sec. 393 (attempt to commit robbery), etc.
liability in attempt?
Attempt 135
Meaning o f ‘Attempt’ 2
[D.U.-2011]
2 Discuss attempt.
1
“An attempt to define 'attempt' has to be frustrating exercise. Nonetheless a
search to discover the characteristics of an attempt, if not an apt definition
attempt, has to be made.” Critically examine the statement. [D. U.-
2003]
136 Criminal Law II
be enough, he must do something more i.e. do some ‘act’ towards the commission of
an offence. It may also be noted that if he instead of passing a fake currency note,
passes by mistake a genuine note, he would not be guilty. Similarly, if the currency
note, which he considered to be fake was in fact, a genuine one, even then, he would
not be guilty.
The following points may also be noted in regard to ‘attempt’:-
(i) It is not necessary for the offence under Sec. 511 that the transaction
commenced must end in crime or offence, if not interrupted.
(ii) An act done with the intention and preparation, the commission of which in
the manner proposed was impossible is not an attempt. Thus, if one who
believes in witch craft puts a spell on another, or burns him in effigy, or
curses him with the intention of causing him hurt, he cannot be convicted of
an attempt to cause hurt. Because what he does is not an act towards the
commission of that offence, but an act towards the commission of
something which cannot, according to ordinary human experience, result in
hurt to another. His failure to cause hurt is due to his own act/ omission,
i.e., his act was intrinsically useless or defective or inappropriate (due to
undeveloped stage of his intelligence of due to his ignorance of science). His
failure, broadly speaking, was due to his own volition (Asghar Alt v Emperor
AIR 1933 Cal 893).
(iii) A person is said to commit an offence of attempt also in the cases in which
he voluntarily desists (i.e. repents before the attempt is completed) from the
actual commission of the crime.
(iv) “An ‘attempt’ is made punishable because every attempt though it fails,
must create or cause alarm, which of itself is an injury and, therefore, the
moral guilt of the offender is same as if he had been successful (Peterson).”3
However, as the injury here is not as serious as in the case of actual crime,
the punishment is one half of that for the actual crime.
(v) An act “towards commission of offence” need not be ‘penultimate’ (i.e. last
act after which the crime results), but such act must be proximate to the
intended result {State of Maharashtra v Mohd. Yakub AIR 1980 SC 1111); the act must
be an act during the course of committing that offence (Abbajanand Mishra v State
AIR 1961 SC 1698).
Illustrative Cases
Queen v Doyal Bawri (1869) 3 Bengal L.R. App. Cr. 55 — In this case, the accused was
apprehended with a fall of rag containing a piece of lighted charcoal in his possession
and was convicted of ‘attempt’ to cause mischief by fire to a human dwelling. It was
held that act of the accused did not amount to an ‘attempt’. What he did was nothing
more than a preparation. He had some mischievous object in mind when he secured
possession of fire ball, but there is nothing to show what particular mischief he
contemplated or that he attempted to commit such mischief.
The court observed: In order to support a conviction for an attempt to commit an
offence described in Sec. 511, it is not only necessary that the accused should have done
an overt act “towards the commission of the offence”, but also that act itself should
have been done “in the attempt” to commit it. Thus, if one goes out of one’s house with
a loaded gun to kill someone, some act is done towards the commission of the offence,
but so long as no overt act is done “in this attempt”, it is impossible to hold him guilty.
In this case, the Supreme Court examined the nature and scope of the word
‘attempt’. The facts of the case in brief are as follows: The custom officers
received information that a truck and a jeep containing silver with the
intention of smuggling it out of country, were heading towards the sea shore.
The officers kept a watch and when during midnight the vehicles were
sighted, they followed them. The two vehicles halted near a bridge at a creek.
Some small and heavy bundles were removed from the truck and were kept
on the ground. The custom officers surrounded them. There were number of
silver ingots under saw dust bags in the truck. When the officers intercepted
and rounded up the vehicles and the accused at the creek, the sea-craft
clandestinely disappeared.
The issue in this case was: Is the act of the accused a mere preparation
or an attempt within the meaning of Sec. 511. It was held that offence of
attempting to smuggle silver out of India had been committed. The court
made some important observations in this case, which are as follows:
Sarkaria ]:.
4. Explain the principles regarding “attempt” as laid down in State of Maharashtra v Mohd.
Yakub. Do you agree that the verdict in the case marks a departure from some of the earlier
rulings and that law is more stringent now?
[LC./.-94/95]
B, a notorious smuggler loaded his jeep with silver bars and proceeded to a creek on the sea-
coast under the cover of darkness. On a tip off, the customs officials followed him. B had partly
unloaded his jeep, when the customs officials surrounded him. Just then the sound of the
engine of a mechanized sea-craft from the side of the creek was heard by the officers. The
officers seized the silver, before it could be transmitted to the waiting sea-craft. B is charged
with an attempt to smuggle silver out of India. [C.LC.-98]
140 Criminal Law II
person who has cocked his gun at another and is about to pull
the trigger but is prevented from doing so by the intervention
of someone or something cannot be convicted of attempt to
murder.
(2) In order to come within the expression “attempt”, the act
towards the commission of the offence must be proximate to the
intended result. The measure of proximity is not in relation to
time and action but in relation to intention. In other words,
the act must reveal, with reasonable certainty, in conjunction
with other facts and circumstances an intention (as
distinguished from a mere desire or object) to commit the
particular offence, i.e., the act must be indicative or suggestive of intention.
(3) For instance, in the present case, had the truck been stopped
and searched at the very commencement of journey, the
discovery of silver ingots in truck might at the worst lead to
the inference that the accused had prepared or were
preparing for the commission of the offence, and thus could
not be held guilty. As it could be said that the accused were
transporting or attempting to transport the silver somewhere
but it would not necessarily suggest or indicate that the
intention was to export silver.
(4) The fact that the truck was driven up to a lonely creek from
where the silver could be transferred it a sea faring vessel was
suggestive or indicative, though not conclusive, that the
accused wanted to export the silver. It might have been open
to the accused to plead that the silver was not to be exported
but only to be transported in the course of inter-coastal trade.
But, the circumstances that all this was done in a clandestine
(secret) fashion, at dead of night (and the sea-vessel
disappeared when the custom officers intercepted the truck),
revealed,
142
C r i m i n a l Law - ||
Attempt 143
offence, i.e., the act must be indicative or suggestive of intention (State of Maharashtra v
Mohd. Yakub). The moment he commences to do an act with the necessary intention, he
commences his attempt to commit the offence (Abhayanand Mishra v State of Bihar AIR 1961
SC 1698).
locus poenitentiae (Time for repentance): An act will amount to a mere preparation if
the person, on his own accord, gives it up before the criminal act is carried out. A
person attempting an offence may abandon it at some stage though initially he had the
intention.53 Abandonment is a defence if further action is freely and voluntarily
abandoned before the act is put in process of final execution. So long as the steps taken
by the accused leave room for doubt that he might of his own accord desist from the
act to be attempted he would still be treated on the stage of preparation.
The “best test” for determining whether a given set of acts constitute attempt or
mere preparation is whether the overt acts already done are such that if the person
changes his mind, and does not proceed further, the acts already done would be
completely harmless. If they would be so, it would amount to preparation only. But,
where the thing done is such as, if not prevented by any extraneous cause, would
fructify into the commission of an offence, it would amount to an attempt to commit
that offence (.Malkiat Singh v State of Punjab AIR 1970 SC 713).
Impossibility test An act which is impossible to commit cannot be attempted and so is not
culpable. For instance, shooting a shadow, administering sugar mistaking it to for
arsenic, or killing a man by witchcraft or cursing a person with an intention to hurt
him, is no attempt in law. In these cases, there is no probability of realizing the
accused’s goal. Because what he does is not an act towards the commission of that
offence, but an act towards the commission of something which cannot, according to
ordinary human experience, result in hurt to another. His failure to cause hurt is due to
his own act/omission, i.e., his act was intrinsically useless or defective or inappropriate
(Asghar Ali v Emperor AIR 1933 Cal 893).
Impossible acts are not punishable but the impossibility must be absolute and
not only relative. The illustrations to Sec. 511 explain that trying to steal from an empty
pocket or trying to break open a box known to contain no jewels is an attempt because
it is an ‘act towards the commission
Sodal danger test An ‘attempt’ is made punishable because every attempt though it fails,
must create or cause alarm or a sense of insecurity in the society, which of itself is an
injury and, therefore, the moral guilt of the
of ender is same as if he had been successful.
The seriousness of the crime attempted and the apprehension of the social
danger involved is taken into consideration to distinguish an act of attempt from that
of preparation. Thus, if a person gives some pills to a pregnant woman to procure
abortion, but it had no effect because the drug was armless, the person is liable for
attempt to cause miscarriage since the act would cause an alarm to society and will
have social repercussions.
Equivocality test In order to come within the ambit of ‘attempt’ the act must be such as to
clearly and unequivocally indicate the intention to commit the offence. It suggests that
an act is proximate if and only if it indicates beyond reasonable doubt what the end
toward which it is rected is. In other words, the doing of such act cannot reasonably
be regarded as having any other purpose than the commission of that specific crime
Thus, acts must be universally referable to the commission of crimes and must speak
for themselves.
The issue before the court was whether appellant was guilty
o an attempt to cheat” the university, under Sec. 415, IPC, in as much as
he, by making false representation, deceived the university and induced the
authorities to issue admit-card. The arguments on behalf of the appellant
was that what he did was
Attempt 145
just a preparation and not an attempt to cheat; further, admit card was not
‘property’ and had no pecuniary value in itself.
The court observed: “There is a thin line between the preparation for and
an attempt to commit an offence. Undoubtedly, a culprit first intends to commit
the offence, then makes preparation for committing it and thereafter attempts
to commit the offence. If the attempt succeeds, he has committed the offence;
if it fails due to reasons beyond his control, he is said to have attempted to
commit the offence. Attempt to commit an offence, therefore, can be said to
begin when the preparations are complete and the culprit commences to do
something with the intention of committing the offence and which is a step
towards the commission of offence. The moment he commences to do an act
with the necessary intention, he commences his attempt to commit the
offence”.
In Sudbir Kumar Mukherjee v State of W.B. (AIR 1973 SC 2655), an employee of a firm had
attempted, in collusion with a limestone dealer, to show false delivery of limestone to
his company by forging the signatures’ of his superiors on the invoice, after which it
would be presented for payment. When he was caught, he had himself not signed the
challan evidencing receipt of goods. The Supreme Court following the Abhyanand
Mishra case, held that very fact that a challan had been prepared and that initials of the
clerk concerned had been obtained by the accused on the challan showed that the
definite step had been taken by him in committing the offence of cheating. Though
without his signature the supplier could not claim payment from the company, the act
of the accused had crossed the stage of preparation into the realm of attempt.
Criminal Law II
146
In this case, a truck loaded with paddy, destined for Delhi, was intercepted
at a place about 40 km from Delhi (the paddy export was banned under the
Punjab Paddy Order). The contention of the appellant was that their act
amounts only to a ‘preparation and not an ‘attempt’ to commit the offence.
The court observed: “The preparation consists in devising or arranging
the means or measures necessary for the commission of the offence. On the
other hand, an attempt to commit the offence is a direct movement towards
the commission after preparations are made. In order that a person may be
convicted of attempt to commit a crime, he must be shown first to have had
an intention to commit the offence, and secondly to ave done an act which
constitutes the actus reus of a criminal attempt The sufficiency of actus reus is a
question of law which had led to difficulty because of the necessity of
distinguishing between acts which are merely preparatory to the
commission of a crime, and those which are sufficiently proximate to it to
amount to an attempt to commit it. If a man buys a box of matches he cannot
be convicted of attempted arson, however clearly it may be proved that he
intended to set fire to a haystack at the time of the purchase. Now can he be
convicted of this offence if e approaches the stack with the matches in his
pocket but bends down near the stack and light a match and extinguishes it
on perceiving that he is being watched, he may be guilty of an
attempt to bum it”.
The court held that the “best test” for determining whether a given set
of acts constitute attempt or mere preparation is whether the overt acts already
done are such that if the person changes his mind, and does not proceed
further, the acts already done would be completely harmless. If they would his
be so, it would amount to preparation only. But, where the thing done is
sue as if not prevented by any extraneous cause, would fructify in o the
commission of an offence, it would amount to an attempt to commit that
offence. The court cautioned that for the
6.
Attempt 147
application of the above test, the offence contemplated must be ‘far removed’
from the completion, otherwise in every case where accused interrupted at
the last minute from completing the offence, he may always say that he was
about to change his mind.
In the present case, the accused had ample time to change their mind
and not to proceed further. Thus, they were held not guilty under Sec. 511.]
If the offender dies in suicide, he or she cannot be punished for the offence, but if
the offender survives he or she is punished for attempt to commit suicide. This is the
only instance where actual commission of offence cannot be punished, only attempt to
commit the offence is punishable.
SCC 648]
In this case, a five judge Constitution Bench of the Supreme Court overruled
the P.Rathinams case and held that ‘right to life’ under Art. 21 of the
Constitution do not include ‘right to die’ or ‘right to be killed’. The ‘right to
die’ is inherendy inconsistent with the ‘right to life’ as is ‘death with life’.
The Court accordingly held that Sec. 309 of IPC is not violative of Art. 21
(Sec. 309 punishes attempted suicide). The Court said that the desirability of
bringing about a change (regarding Sec. 309) is the function of the legislature
which may by enacting suitable law provide adequate safeguards to prevent
any possible abuse.
In Rathinam v Union of India (AIR 1994 SC 1844), the Supreme Court held
that a person has a right to die and declared unconstitutional Sec. 309, I.P.C.,
which makes attempt to commit suicide a penal offence. The right to live in
Article 21 includes the right not to live i.e. right to die or to terminate one’s life. A
person can’t be forced to enjoj right to life to his detriment, disadvantage or disliking. Right to life can
be said to bring in its bail the right not to live a forced life. Sec. 309, I.P.C.,
deserves to be effaced from the statute book to humanize our penal laws. It is
a cruel and irrational provision and may result in punishing a person again
(doubly) who has suffered agony and would be undergoing ignominy
because of his failure to commit suicide.
The court in 'Rathinam case made it clear that an act of suicide couldn’t
be said to be against religion, morality or public policy and an act of
attempted suicide has no baneful effect on society. Morality has no defined
contour (boundary) and it would be too hazardous to make a bold and bald
statement that commission of suicide is per se immoral act. Further, suicide
or attempt to commit it causes no harm to others and, therefore, the State’s
interference in the personal liberty of concerned person is not called for. But,
the court rejected the plea that euthanasia (mercy killing) should be permitted
by law. There is a distinction between an attempt of a person to take his life
and action of some others to bring to an end the life of a third person.
In the present case, delivering the unanimous judgment of the Court,
Mr. Justice J.S. Verma observed:
(i) When a man commits suicide he has to undertake certain
positive overt acts and the genesis of those acts cannot be
traced to, or be included within the protection of the ‘right to
life.’ The significant aspect of ‘sanctity of life’ is also not to be
overlooked.
(ii) To give meaning and content to the word ‘life’ in Art. 21, it
has been construed as life with human dignity. “Any aspect of
life which makes it dignified may be read into Art. 21 but not that
extinguish it
150
Criminal Law - ||
(v) The Court made it clear that the ‘right to life’ including the
right to live with human dignity would mean the existence of
such a right up to the end of natural life. This also includes
the right to a dignified life up to the point of death including
the dignified procedure of death. This may include the right
of a dying man to also die with dignity when his life is
ebbing out. But, the ‘right to die’ with dignity at the end of
life is not to be confused with the ‘right to die’ an unnatural
death curtailing the natural span of life.
(vi) The Court reiterated that the argument to support the views
of permitting termination of life in such cases (dying man
who is extremely ill or in a vegetative state) by accelerating
the process of natural death when it was certain and
imminent (to reduce the period of suffering) was not
available to interpret Art. 21 to include therein the right to
curtail the “natural span of life”.
Attempt 151
This category of cases may fall within the ambit of the ‘right to die’
with dignity as a part of right to live with dignity, when the process of natural
death has commenced. These are not cases of extinguishing life but only of
accelerating conclusion of the process of natural death which has already
commenced. The debate even in such cases to permit physician assisted
termination of life is inconclusive.
In Rodriguez v B.C. (A.G.) 107 DLR (4th Series) 342, the Supreme
Court of Canada observed: “Sanctity of life, as we will see, has been
understood historically as excluding freedom of choice in the self-infliction of
death and certainly in the involvement of others in carrying out that choice.
At the very least, no new consensus has emerged in society opposing the
right of the State to regulate the involvement of others in exercising power
over individuals ending their lives.
(vii)Sec. 309 providing for imposition of punishment for attempt
to commit suicide is not violative of Art. 14 of the
Constitution (i.e. the equality clause). It is not discriminatory
or arbitrary. Art. 21 cannot be pressed into service to support
the challenge based on Art. 14.]
FURTHER QUESTIONS
7. A and S were arch enemies. One night A entered the bed-chamber of S and
thinking that he must be there sleeping in his bed, pumped six bullets in it. This
could surely kill S had he been there. But he was not there. In fact, he was far
away at that time playing with his friends.
152 Criminal Law II
(b) A, whose jewellery was insured against theft raised false alarm about
theft in his show room. He reported the matter to the police and showed
the broken locks and empty safe with intention of cheating the insurance
company. A is charged with an attempt to cheat the insurance company.
According to Sec. 307, if a person does any act with such intention or knowledge, and
under such circumstances that if he by that act caused death, he would be guilty of
murder, and punishable with imprisonment up to 10 years and fine, and if hurt is
caused to any person by such act, the offender shall be liable either to life-
imprisonment, or to such punishment as is hereinbefore mentioned. When any person
offending under this section is under sentences of life-imprisonment (life-convicts), he
may, if hurt is caused, be punished with death.
The four illustrations appended to this section make its scope clear:
(a) A shoots at Z with intention to kill him, under such circumstances that if
death ensued, A would be guilty of murder and liable to be punished under
this section.
(b) A with the intention of causing the death of a child of tender years, exposes
it in a desert place. A has committed the offence
Attempt 153
defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed
the offence. A fires the gun at Z. He has committed the offence, and if he
wounds Z, he is liable to the punishment provided by the latter part of the
paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and mixes the same
with food which remains in A’s keeping. A has not yet committed die offence.
A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s
table. A has committed the offence.
What constitutes an attempt to commit murder under this section has been a question
of judicial controversy. In Reg v Francis Cassidy (1867) Bom HCR 17, it was held that in
order to constitute the offence under Sec. 307, the act committed by the person must be
an act capable of causing death in the natural and ordinary course of events. But this
view was doubted in a later case, Emperor v V.B. Gogate (1932) 59 Bom 434: ‘WTiat Sec. 307
really means is that the accused must do an act with such guilty intention and
knowledge and in such circumstances that, but for some intervening act, the act would
have amounted to murder in the normal course of events.” In this case, the accused
fired two shots from revolver at point blank range at the Governor of Bombay, but the
bullet failed to take effect owing to some defect in the ammunition. The accused was
held guilty8 under Sec. 307. The Supreme Court has approved the view expressed in the
later decision of the Bombay High Court.
8. X with the intention to kill shoots at Z but the gun fails to fire because of some
inherent mechanical defect. X did not know anything about the defect. X is
prosecuted under Sec. 307, IPC. Decide. [C.LC.-96]
The accused picked up a revolver and believing it to be loaded pulled the trigger
with the criminal intention of shooting B dead. Fortunately for B, the revolver was
not loaded and he escaped unhurt. What offence, if any, has the accused
committed? Is it open to the accused to contend in his defence that when the
intended offence was physically impossible of being accomplished on the facts as
they turned out to be ultimately, he is entitled to a verdict of acquittal?
[I. A. S. -99]
(co ntd.)
154 Criminal Law II
In Mohinder Singh v State, 1960 Cr LJ 393 (Punj.), it has been held that it is necessary
to show that the means adopted were suitable for the design. Thus a man threatening
the life of another with a chills popgun using a cork as a projectile was acquitted,
because the means were inherently defective.
What the court has to see is whether the act, irrespective of its result, was done
with the intention or knowledge and under such circumstances mentioned in the
section. Sec. 307 makes a distinction between an act of the accused and its result, if
any. To justify a conviction under Sec. 307 it is not essential that bodily injury capable
of causing death should have been inflicted. It is not necessary that the injury actually
caused to the victim should be sufficient under ordinary circumstances to cause the
death of the victim. An attempt in order to be criminal need not be the penultimate act.
It is sufficient in law if there is present an intent coupled with some overt act in
execution thereof. Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the accused, such
intention may also be deduced from other circumstances, and may even in some cases,
be ascertained without any reference at all to actual wounds [State of Maharashtra v Balram
Bama Patil, 1983 Cr LJ 331 (SC)].
In the above-mentioned case, the Apex Court had occasion to consider a case
involving assault of a group belonging to one political party by a group of another
party at the time of elections. The Bombay High Court had acquitted a few of the
accused of an offence under Sec. 307 on the ground that the accused had only caused
simple injuries. The Supreme Court differed on this aspect.
AIA \WIHU.;
Ankit was madly in love with young and attractive Sujata. Avinash knew about this
affair yet he married Sujata in accordance with the wishes of his parents. Ankit
was still bent upon making Sujata his own, at any cost. One day he went to
Sujata's house and proposed to her, but she did not agree. Angered by her firm
refusal he fired two shots, at point blank range, on her, with the revolver that he
had with him. The first bullet failed to fire because of some defect in the
ammunition and the second failed to take effect because of the hand bag,
containing some currency notes and coins, which Sujata was carrying. Can Ankit
be charged for attempt to murder? [C.L.C.-2001]
Attempt 155
In Rex v White, the accused with an intention to kill his mother, put KCN
(potassium cyanide) in her glass of wine. Though such act would not have
resulted in killing, unless followed by other acts, but it might be the
beginning of an ‘attempt’, and thus could be said to be an ‘attempt’. In Queen
Empress v Nidha [(1891) ILR 14 All 38], the accused pulled the trigger of a
blunderbuss, the cap exploded but charge did not go off. Held that the case is
not covered by Sec. 307, as the act in the natural course of events would not
have caused death.
The court held that the ingredients of an offence of attempting to commit murder under Sec. 307 should be same as the ingredients of an offence of attempt to
commit that offence under Sec. 511. Therefore, it is likely that Sec. 511 will not be applicable to attempts to commit murder which fall exclusively under Sec. 307.
The court observed: “The expression ‘whoever attempts to commit an offence’ in Sec. 511 can only mean ‘whoever intends to do a certain act with the intent or
knowledge necessary for the commission of that offence.’ The same is meant by the expression ‘whoever does an act with such intention or knowledge and under such
circumstances that if he, by that act, caused death he would be guilty of murder’ in Sec. 307. This simply means that the act must be done with the intent or knowledge
156
requisite for the commission of the offence of murder. The expression “by C rthat
i m act’
i n adoes
l L not - 11that the immediate effect of the act committed must be death. Such a
a w mean
result must be the result of that act whether immediately or after a lapse of time.”
The court also explained that in the case of attempts to commit murder by firearms,
however, the act amounting to attempt to commit murder is bound to be the only and
the last act to be done by the culprit and expressions used in such cases
referring to the last act as constituting the attempt are not to be taken as
precise expositions of the law though they may be correct in the particular
context in which they occur.]
Attempt 157
(iii) such act must be proximate to the intended result. The measure of proximity
is not in relation to time and action but in relation to intention. In other words,
the act must reveal with reasonable certainty, in conjugation with other facts
and circumstances an intention, i.e., it must be indicative or suggestive of
intention (State of Maharashtra v Mohd. Yakub AIR 1980 SC 1111).
Attempt begins where preparation ends. Having intended to commit the offence, he
must have done an act towards its commission having made preparations. Such an act
need not be the penultimate act towards the commission of that offence, but an act done
during the course of committing that offence (Abhjanand Mishra v State AIR 1961 SC 1698;
Sudhir Kumar Mukherjee v State AIR 1973 SC 2655). Attempt to commit an offence, therefore,
can be said to begin where the preparations are complete and the culprit commences to
do something with the intention of committing the offence and which is a step towards
the commission of the offence (State of Kerala v Dr. C.K Bharathan, 1989 Cr LJ 2025).
The best test for determining whether a given set of acts constitute attempt or
mere preparation is whether the overt acts already done are such that if the person changes
his mind, and does not proceed further, the acts already done would be completely
harmless. If they would be so, it would amount to preparation only. But, where the thing
done is such as, if not prevented by any outside cause, would fructify into the
commission of an offence, it would amount to an attempt to commit that offence (Malkiat
Singh v State AIR 1970 SC 713).
158 Criminal Law - II
A’s act constitutes an attempt to murder within the meaning of Sec. 307, because he
acted with a guilty intention and his act would have amounted to murder in the
normal course of events but for the intervening fact of K not being there.
A’s act did not amount to an ‘attempt’, but a mere ‘preparation’ only. In view of the
test laid down in Malkiat Singh case, the overt acts already done by A are such that if he
changes his mind and does not proceed further (e.g. asking the insurance company for
a claim), the acts already done would be completely harmless, which is so in the
present case.
A’s act amounts to ‘preparation’ only, as he has not done an act towards the
commission of the offence. See illustration (d) to Sec. 307.
(a) B, with intent to pick A’s pocket followed him into a fair. B was seen
lifting the tail of A’s pocket with a view to ascertain if there was anything
in A’s back pocket. Apparently feeling the pocket empty by touching it
only from outside, B came out of the fair disappointed. What will be your
answer if B put his hands into A’s pocket but found it empty?
break it open as the safe was very big and the hammer too small. B is
charged with an attempt to break open the safe.
(d) X had planned to sell his uncle’s shop to Y. For effecting fraudulent sale,
X had convinced Y that he was the real owner of the shop, purchased
non-judicial stamp-papers, got a draft of the ‘agreement to sell’ prepared.
Proper sale-deed was got typed on the stamp-papers. After the
execution but before the registration of the document, as per the
requirement of the law, Y informed the police about X’s plans and
actions. X is prosecuted under Sec. 420 read with Sec. 511, IPC.
[C. L. C.-92/93/94/95/96]
A.2 (a) Attempt begins where preparation ends and the culprit commences to do
something with the intention of committing the offence and which is a step
towards the commission of the offence. However, such act must be proximate
to the intended result in relation to intention. When B merely ascertained A’s
pocket, he can be said to be in a stage of preparation; if at that moment he
changes his mind, his act would have been harmless; moreover, the offence
contemplated was ‘far removed’ from the completion (as required by “change
of mind” test). Thus, B cannot be prosecuted for an ‘attempt’.
If B put his hands into A’s pocket but found it empty, then B can be prosecuted for an
attempt’. As in that case, B’s act is a step towards the commission of the crime because
such act is proximate to the intended result in relation to intention. The offence
contemplated is not far removed from the completion, thus “change of mind” test
cannot be applied in that case [See illustration (b) to Sec. 511].
(b) In order to constitute an ‘attempt’ within the meaning of Sec. 511, intention
alone is not enough and there must be some overt act towards the commission
of offence. B did intended to import banned milk, but the “actual import” was
of soya milk thus he cannot be held liable for an attempt to import a banned
item. B’s act is intrinsically useless or defective, thus it cannot be said that
such act is an act towards the commission of offence.
The situation in this case could be equated with one where a person intending to hurt
another by administering poison administers a harmless
160 Criminal Law - II
substance (as he is cheated by the chemist from whom he purchased it), believing it to
be poisonous, he can’t be convicted of an attempt to do so.
(c) ‘Attempt’ is an act done towards the commission of the offence, which
remains incomplete only because something yet remains to be done, which
the person intending to do is unable to do by reason of circumstances
independent of his will.
Thus, where the failure to commit the crime is due to attempter’s own act/omission
i.e. his act was intrinsically useless or defective or inappropriate (due to undeveloped
stage of his intelligence or due to his ignorance of science), it is not an attempt.
Therefore, an act done with intention and preparation, the commission of which in the
manner proposed was impossible is not an attempt. In the present case, thus, B is not
guilty under Sec. 511.
(d) Attempt to commit an offence can be said to begin when the preparations are
complete and the culprit commences to do something with the intention of
committing the offence and which is a step towards the commission of the
offence. In the present case, the preparation was completed when the sale-
deed got executed.
Further, a man may attempt to cheat, although the person he attempts to cheat is
forewarned, and is therefore not cheated. Thus, X is liable to be prosecuted under Sec.
420 read with Sec. 511, IPC.
Q.3 A, intending to kill B, buys poison and invites B to a restaurant for a cup of
tea and there he secretly mixes the poison in B’s cup. Can A be held
liable for ATTEMPT to murder B in the following situations?
(a) B takes the tea but suffers no harm as the substance mixed in it was
harmless.
(b) B takes the tea but does not die because the quantity of poison in it was
insufficient to cause deaths.
(c) Before B could take the tea the cup fell down from his hands.
[L.C.I.-96; L.C.II-93/94\
Attempt 161
(d) When B takes the poisoned tea but is saved by prompt medical aid?
(e) B's servant removes the cup from the table and throws the contents in
the basin.
(f) A is caught with the cup in his hands before he could place it on the table
of B. [D.U.-2008/2011/2012]
A.3 The present problem is based on the case - AsgbarAli Pradhania
v Emperor (AIR 1933 Cal 893) - See the text.
If the act of the accused is intrinsically defective or useless, then it cannot be said that such
act is an act towards the commission of the offence. Thus, in the present case, A will not
be liable for attempt to murder B in the situations (a) and (b).
But in situations (c), (d), (e) and (f), A will be liable because, here, his failure was
not due to any act or omission of his own but to the intervention of a factor
independent of his own volition or will.
(a) B had planned to blow up a PANDAL. He planted a bomb under the stage
and took position about one hundred yards away, waiting for the
opportune time when he could ignite the bomb fuse. But before the fuse
could be ignited the bomb was detected by the bomb disposal squad
and B was arrested. The news of B's arrest and bomb scare caused
near panic in the PANDAL. On examination of the bomb by the experts it
was found that on account of a manufacturing defect the bomb could
never have exploded. B was charged with and tried for attempt to cause
mischief by fire.
B was arrested at a distance of 10 km from Delhi-Haryana Border while carrying paddy by truck from Jagadhri to
(c) Delhi. To carry paddy to Delhi without licence was an offence and an attempt to carry paddy without licence was also
punishable. B was prosecuted for attempt to carry paddy without licence.
6
B, a greedy mother-in-law, brought a bottle of petrol and a bo* of matches with the intention to burn the bride C.
While C was fast asleep, B sprinkled the petrol on C but perceiving that she was being watched, hid the box of
matches in her blouse and walked out of the room. Decide.
[D.U.-2008] [C.LC.-98/99/20W
Object
B is liable for attempt to cause and punishable
murder Importance of3071.P.C.
u/s CriminalB Procedure
is guilty for an attempt to cause miscarriage (Sagajam v Stab of Karnataka AIR
The law of criminal procedure is intended to provide a mechanism for the enforcement of
2000 SC 2161).
substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to
B is guilty for attempt to carry paddy without licence.
be complementary to criminal law; it creates the necessary machinery for the detection
B is guilty for attempt to cause murder.
of crime, arrest of suspected criminals, collection of evidence, determination of guilt or
<d) innocence of the suspected person, and the imposition of proper punishment on the
guilty person. Thus, in the absence of an enforcement machinery the threat of
punishment under substantive law would appear empty.
It further attempts to strike a just balance between the need to give discretionary
powers to the functionaries under the Code to make the investigative and
A.4(a) adjudicatory processes strong and effective and the need for controlling the probable
Object
(b) misuse/abuse of these powers. The Supreme Court has said: 1“It is the procedure that
The la
spells much of the difference between the rule of law and the rule of whim and
the enji
caprice” [Iqbal Ismail Uiawala v State of Maharashtra (1975) 3 SCC 140], The law of remind
(c) crirrun;
procedure aims at providing safeguards against possible
createsharms and violation of
(d)
human rights of innocent persons. suspec
innoce
It has been rightly said that too much expense, delay and uncertainty (flaws and
loopholes) in applying the law of criminal procedure punish
would tender even the best of
machir
penal laws useless and oppressive. It may be noted that the procedural code is not
empty. provisions of the Code
wholly procedural or adjective in nature. There are certain
which partake of the 1
discret
investi
for co
Court
[163] betwei
Sodaivc
proce< i
of hu
164 Criminal Law - II
For each District, the ‘Executive Magistrates’ are: District Magistrate (DM);
Additional DM (where necessary); Sub-Divisional Magistrates; and other Subordinate
Executive Magistrates. The State Government may, if it thinks fit, appoint Special
Executive Magistrates. Similarly, the ‘Judicial Magistrates’ are: Chief Judicial
Magistrates (CJM); Additional CJM; Sub- Divisional Judicial Magistrates and other
Judicial Magistrates. The High Court may, if requested by the Central/ State
Government, appoint Special Judicial Magistrates.
Public Prosecutors
166 Criminal Law Ii
prosecutions the State is the prosecutor. A public prosecutor should not appear on
behalf of the accused. Further, his duty is to represent not the police but the State.
However, he can give advice to the police or other Government Departments with
regard to the prosecution of any person if his advice is so sought.
The object of a criminal trial is to find out the truth and to determine the guilt or
innocence of the accused. The duty of the prosecutor in such a trial is not merely to
secure conviction at all costs but to place before the court whatever evidence is
possessed by the prosecutor, whether it be in favour of or against the accused, and to
leave the court to decide upon all such evidence. There should not be on the part of the
prosecutor “any unseemly eagerness for or grasping at conviction” [A. W. Chandekar, AIR
1924 Nag 243]. His only object should be to aid the court in discovering truth. Thus, in
the machinery of justice he has to play a very responsible role; the impartiality of his
conduct is as vital as the impartiality of the court itself [Mohd Mumta v Nandini Satpathy
(1987) 1 SCC 279].
Sec. 24 of the Code provides that, for every High Court, the Central/ State
Government shall appoint Public Prosecutors, after consulting the High Court. Likewise,
one or more Additional P.P. may also be appointed. Further, the Central Government may
appoint one or more P.P. for conducting any case or class of cases in any district/ local
area. An Advocate General cannot represent the State in an important civil or criminal
proceeding unless he is appointed as a P.P. under Sec. 24(1).
By virtue of the Code of Criminal Procedure (Amendment) Act, 2005, a “Directorate of
Prosecution” has been constituted under Sec. 25-A. The State Government may
establish a Directorate of Prosecution consisting of a Director of Prosecution and as
many Deputy Directors of Prosecution as it thinks fit. A person shall be eligible to be
appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he
has been in practice as an advocate for not less than ten years and such appointment
shall be made with the concurrence of the Chief Justice of the High Court. The Head of
the Directorate of Prosecution shall be the Director of Prosecution, who shall function
under the administrative control of the Head of the Home Department in the State.
7
Rights of Arrested Person
The Code has not defined the term “arrest”. Every deprivation of liberty or physical
restraint is not arrest. Only the deprivation of liberty by legal authority or at least by
apparent legal authority, in a professionally competent and adept manner amounts to
arrest. Further, when the restraint is total and deprivation of liberty is complete that
would amount to arrest. Thus, arrest means ‘apprehension of a person by legal
authority resulting in deprivation of his liberty’.
An arrest consists of taking into custody of another person under authority
empowered by law, for the purpose of holding or detaining him to answer a criminal
charge and preventing the commission of a criminal offence. It may be noted that
‘custody’ and ‘arrest’ are not synonymous terms. Taking of a person into judicial
custody is followed after the arrest of the person by the Magistrate on appearance or
surrender. In every arrest, there is custody but not vice-versa [Directorate of Enforcement v
Deepak Mahajan AIR 1994 SC 1775].
The Code contemplates two types of arrests: (i) arrest made in pursuance of a
warrant issued by a Magistrate, and (ii) arrest made without such a warrant but made
in accordance with some legal provision permitting such an arrest. While the first type
of arrest is made by the police, the second type of arrest could be made by the police, or
a private person, or by the Magistrate himself (Sec. 44). The Code exempts the members
of Armed Forces from being arrested for anything done by them in discharge of their
official duties, except after obtaining the consent of the government (Sec. 45).
[167]
168 Criminal Law - II
Any private individual may arrest a person only when the person is a
proclaimed offender and the person commits a non-bailable offence and cognizable
offence in his presence (Sec. 43). Any Magistrate (whether Executive or Judicial) may
arrest a person without a warrant. Sec. 44(1) lays down that when any offence is
committed in the presence of a Magistrate, within his local jurisdiction, he may himself
arrest or order any person to arrest the offender and also to commit him to custody.
Sec. 44(2) lays down that a Magistrate may at any time arrest (or direct the arrest in his
presence) a person for whom arrest he is competent at the time and in the
circumstances to issue a warrant.
Sec. 46 describes the mode in which arrests are to be made (whether with or
without a warrant). In making an arrest the police officer/ other person making the
same actually touches or confines the body of the person to be arrested unless there be
a submission to custody by word or action [Sec. 46(1)]. Mere utterance of words or
gesture or flickering of eyes does not amount to arrest; actual seizure or touch of
person’s body with a view to arresting is necessary. It need not be by handcuffing a
person, but could be complete even by spoken words if a person submits to the
custody \Birendra K Rat v UOI, 1992 CrLJ 386' (All)].
The person making an arrest may use ‘all means’ necessary to make the arrest if
the person to be arrested resists or attempts to evade the arrest [Sec. 46(2)]. Sec. 46(3)
lays down that the power to use necessary force for making an arrest shall not extend to
causing the death of a person who is not accused of an offence punishable with death
or imprisonment for life.
A police officer may, for the purpose of arresting without warrant any person
whom he is authorized to arrest, pursue such a person into any place in India (Sec. 48).
Hence the arrest of a person by the police
Rights of Arrested Person 169
1. What are the rights of the arrested person under the Code of Criminal Procedure, 1973?
[D.U.-2008/2011/2012] [L.C. 1-95/96}
Discuss the rights of the arrested persons with the help of constitutional and other statutory
provisions and their interpretation by the Supreme Court of India.
[D.U.-2009]
2. Discuss powers of police to arrest and the changes brought by Amendment Act of 2005.
[D.U.-2009]
170 Criminal Law II
Cases where a police officer may arrest a person without warrant are specified
in Schedule I of the Code. Sec. 41 (1) enumerates nine categories of offences and cases
relating thereto where a police officer may arrest any person without an order from a
Magistrate and without a warrant. This section is a depositary of general powers of the
police officer to arrest but this power is subject to certain other provisions contained in
the Code.
In Sec. 41(1) of the Principal Act, for clauses (a) and (b), the following clauses shall be
substituted, namely—
(i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said
offence;
(c) to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or
(e) as unless such person is arrested, his presence in the Court whenever
required cannot be ensured;
and the police officer shall record while making such arrest, his reasons
in writing;
(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may
extend to more than seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the basis of that
information that such person has committed the said offence ,
For Sec. 41(2), the following sub-section shall be substituted, namely-
“(2) Subject to the provisions of Sec. 42, no person concerned in a non- cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.”
Comments-. Section 41 relates to power of police to arrest without warrant. Clauses (a)
and (b) of sub-sec. (1) has been amended to provide that the powers of arrest conferred
upon the police officer must be exercised after reasonable care and satisfaction and that
such arrest is necessary and required the section. Amendment is also made in Sec. 41
(2) so as
to provide that subject to the provisions of Sec. 42 (relating to arrest on refusal to give
name and residence), no person shall be arrested in a non- cognizable offence except
under a warrant or order of a Magistrate.
Insertion of new Secs. 41-A, 41-B, 41-C and 41-D (Arrest provisions)
After Sec. 41 of the principal Act, the following new sections shall be inserted, namely-
“41-A. Notice of appearance before police officer - (1) The police officer may, in all cases where the
arrest of a person is not required under the provisions of Sec. 41(1), issue a notice
directing the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place as may
be specified in the notice.
172 Criminal Law II
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the opinion that he ought
to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice,
it shall be lawful for the police officer to arrest him for the offence
mentioned in the notice, subject to such orders as may have been passed in
this behalf by a competent Court
41-B. Procedure of arrest and duties of officer making arrest - Every police officer while making an arrest
shall -
(a) bear an accurate, visible and clear identification of his which will
facilitate easy identification;
(b) prepare a memorandum of arrest which shall be (i) attested by at least one
witness, who is a member of the family of a person arrested or a respectable
member of the locality where the arrest is made; (ii) countersigned by the
person arrested; and
41-C. Control room at districts — (1) The State Government shall establish a police control
room (a) in every district; and (b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept
outside the control rooms at every district, the names and addresses of the
persons arrested and the name and designation of the police officer who
made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect
tom time to time, details about the persons arrested, nature of the offence
with which they are charged and maintain a database for the information of
the general public.
Rights of Arrested Person 172
41-D. Right of arrested person to meet an advocate of his choice during interrogation — When any person is
arrested and interrogated by the police, be shall be entided to meet an advocate of his
choice during interrogation, though not throughout interrogation.”
Comments
The “new” arrest provisions are going some way towards balancing the requirements
of effective law enforcement with the necessity of protecting people from injustice and
police harassment. Before the amendment, Sec. 41 permitted the police to arrest without
warrant “any person who has been concerned with any cognizable offence” even on the
mere presence of “reasonable suspicion.” The new provisions stipulate that arrests
should be made only against the existence of “credible information” or a “reasonable
complaint” or a “reasonable suspicion.” The police, moreover, are obliged to record in
writing the reasons for making such arrests, which are permitted only under certain
conditions, for example, to prevent the person from committing further crimes or
tampering with evidence. When arrest is not justified under these conditions, the police
may only issue a ‘notice of appearance” asking the presence of a person suspected of
the crime to appear before it or at any other specified place.
Other safeguards against the vast discretionary power of the police are stricter
procedures during the making of an arrest, the introduction of regular medical
examination of those in police custody (discussed below), and the establishment of
police control rooms in all districts that must display the names and addresses of those
arrested.
The changes in ‘arrest provisions’ reflect the spirit of several Supreme Court
judgments on the power and procedure to make arrests. Two salutary and bona fide
elements are clearly discernible in the legislation - to ensure safeguards against police
excesses and to minimize the needless filling up of jails by under-trials. The third report
of the National Police Commission suggested that nearly 60 per cent of arrests were
unnecessary and unjustified. It estimated that the abuse of the arrest law accounted for
more than 43 per cent of expenditure on jails.
174 Criminal Law II
According to Sec. 50 (1), Cr. P.C., “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.” Similarly, in case of
arrest to be made under a warrant, Sec. 75 provides that “the police officer or other
person executing a warrant of arrest shall notify the substance thereof to the person to
be arrested.”
Further, under Sec. 55, when a subordinate officer is deputed by a senior police
officer to arrest a person, such subordinate officer shall, before making the arrest,
notify to the person to be arrested the substance of the written order given by the
senior police officer specifying the offence or other cause for which the arrest is to be
made.
Our Constitution has conferred on the ‘right to know the grounds of arrest’ the
status of a fundamental right. Article 22 (1) provides: “No person who is arrested shall
be detained in custody without being informed as soon as may be, of the grounds for
such arrest.” Sec. 50 of the Code is in conformity with Art. 22(1).
Sec. 50, being mandatory, confers a valuable right and non-compliance with it
amounts to disregard of the procedure established by law [Govind Prasad v State, 1975 Cr
LJ 1249 (Cal). Making known to the accused grounds of his arrest is a constitutional
requirement and failure to comply with this requirement renders the arrest illegal [Ajit
Kumar v State of Assam, 1976 Cr. L.J. 1302 (Gau)].
The timely information helps the arrested person in several ways, viz.
opportunity to clarify any mistake/ misunderstanding in the mind of the executing
authority, to move the competent court for bail or in appropriate circumstances for a
writ of habeas corpus, to begin to prepare his defence. It is not necessary to furnish full
details of the offence, but sufficient particulars must be furnished to enable the arrestee
to know and understand as to why he was arrested. The court can go into the
sufficiency or otherwise of the grounds so furnished. The detention
Information regarding the right to be released on bail - Sec. 50(2) provides that in case of bailable
offences, the arrested person shall be informed, by the police officer, that he is entided
to be released on bail.
Insertion of new Sec. 50-A (by 2005 Amendment). Obligation of person making arrest to inform about the
arrest, etc., to a nominated person. - (1) Every police officer or other person making any arrest
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, relatives or such other
persons as may be disclosed or nominated by the arrested person for the purpose of
giving such information.
(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.
(3) An entry of the fact as to who has been informed of the arrest of such person
shall be made in a book to be kept in the police station in such form as may be
prescribed in this behalf by the State Government.
(4) It shall be the duty of the 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 with in respect of such arrested person.”
The amendment codifies some of the supreme court guidelines regarding arrest of a
person bid down in D.K. case (discussed below).
Arrest of a Woman
Amendment of Sec. 46 (Arrest of a Woman) (by 2005 Amendment): In Sec 46 of the principal Act,
after sub-sec. (3), the following sub-sec. shall be
' ’ n7elJ:' “(4) Save m exceptional circumstances, no woman shall e arrested after sunset and
before sunrise, and where such exceptional circumstances exist, the woman police
officer shall, by making a written report, 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.”
176 Criminal Law II
Amendment of Sec. 46 (Police officer not to touch the person of the woman for
making her arrest) (by 2008 Amendment)
In Sec. 46(1) of the principal Act, the following proviso shall be inserted namely -
“Provided that where a woman is to be arrested, unless the circumstances indicate to
the contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police officer
is a female, the police officer shall not touch the person of the woman for making her
arrest.”
(4) Right of Not being Detained for More than 24 hours without Judicial Scrutiny*
Sec. 57 lays down that 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, and such period shall not (in the absence of a special order of a Magistrate
under Sec. 167) exceed 24 hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate’s court. The right has also been incorporated in the
Constitution as one of the fundamental rights [Art. 22(2)].
This right has been created with a view (i) to prevent arrest and detention for the
purpose of extracting confessions, or as a means of compelling people to give
information, (ii) to prevent police stations being used as though they were prisons, and
(iii) to afford an early recourse to a judicial officer independent of the police on all
questions of bail or
A is arrested by the police without a warrant. How long can he be kept in police custody
without being produced before a magistrate? What is the procedure for getting his detention
extended? [C..L C -2002]
[NOTE: His detention whether in police or judicial custody can be extended as per provisions
of Sec. 167, Cr. P.C. (discussed later).]
Rights of Arrested Person 177
discharge. This right is not merely a formality but it is substantial protection accorded to
an arrestee so that if there is no case against him he may be released forthwith or
released on bail [In re Madhu Limaye case].
The precaution laid down in Sec. 57 ensures that the Magistrate shall have seisin
of what is going on and some knowledge of the nature of the charge against the
accused, however incomplete the information may be [Manoj v State of M.P. (1999) 3 SCC
715], The Supreme Court has strongly urged upon the State and its police authorities to
see that this constitutional/legal requirement must be scrupulously observed. This
healthy provision enables magistrate to keep check over the police investigation [Khatri
(II) v State of Bihar (1981) 1 SCC 627], If a police officer fails to produce an arrested person
before a magistrate within 24 hours of arrest, he shall be guilty of wrongful detention.
It was held in Saptawna v State of Assam (AIR 1971 SC 813), that where an accused is
illegally detained, the detention becomes lawful when subsequently he is arrested and
produced before a magistrate within 24 hours. Ihe production of the accused before the Magistrate
after 24 hours of his arrest did not necessarily render the custody illegal [Manoj Kumar v
S/a/e, 1995 CrLJ 646 (All)], when there was reasonable explanation for the delay [Kultej Singh 1992 CrLJ 1173
(Kamt)]. In the latter case, the accused was arrested in the morning of 27-9-90 and
produced before the Magistrate on 29-9-90. FIR revealed that the delay in producing the
accused before the Magistrate was caused since the respondent officials were
immediately required to go to other place in connection with communal rioting. They
also tendered unconditional apology for the delay.
The right of the arrested person to have a counsel of his choice is fundamental (6)
and essential to fair trial. The ‘right to be heard’ would be of little 2vail if it did not
comprehend the ‘right to be heard by counsel.’ The right is recognised because of the
obvious fact that ordinarily an accused person (even an intelligent and educated
person) does not have the knowledge of law and the professional skill to defend
himself before a court of law wherein the prosecution is conducted bj * competent and
experienced prosecutor.
The right conferred by this section does not extend to a right in an accused
person to be provided with a lawyer by the State/Police/Magistrate. That is a
privilege given to him and it is his duty to ask for a lawyer if he wants to engage one,
or to engage one himself. The only duty cast on the Magistrate is to afford him the
necessary opportunity [Tara Singh AIR 1951 SC 441]. This section, however, does not
prohibit the appointment of a counsel by the court at the State expense.
The right of an accused to consult a legal practitioner of his choice has been
upheld by the Supreme Court [In re, Madhu Limaje AIR 1969 SC 1014]. The words “of his
choice” indicate that no advocate/pleader is to be foisted on the accused and he should
be permitted to be defended by a pleader/advocate in whom he has full confidence. In
KM. Wasam v State of Gujarat (AIR 1974 SC 1143), it was held that the Sessions Judge
should view with sufficient seriousness the need to appoint State counsel for
undefended accused in grave cases. Therefore, advocates competent to handle cases
should be appointed.
6 Decide the validity of the following: A, an indigent accused has been convicted in a
trial in which he was not provided legal aid. He prays for the conviction to be set
aside because he could not defend himself properly without the help of any
advocate. [C.L.C.-
2001]
'Indigence should never be a ground for denying a fair trial or equal justice to an accused. 1 Does the Cr. P.C. as amended in 1973
have any provision to make this statement a reality? [C.L.C.-2002]
180 Criminal Law - II
Justice Krishna Iyer in KM. Wasawa v State of Gujarat (AIR 1974 '
SC 1143) observed: “Indigence should never be a ground for denying fair
trial or equal justice ... Particular attention should be paid to appoint !
competent advocates, equal to handling complex cases, not patronizing
gestures to raw entrants at the Bar. Sufficient time and complete papers
should also be made available so that the advocate chosen may serve the
cause of justice.”
It has been held that the constitutional right of legal aid cannot be
denied even if the accused failed to apply for it. It is now therefore clear
that unless refused, failure to provide legal aid to an indigent accused
would vitiate the trial [Suk Das v II.T. of Ar. Pradesh (1986) 2 SCC 401].
When the accused is brought before a magistrate, the magistrate should
make it known to the accused that he has a right, a constitutional right
of being represented by a counsel of his choice and if he has no means
to engage a lawyer, then arranger lent may be made for his defence.
Further, the accused persons who, because of peculiar circumstances
and security restraints, cannot have free access to the outside world, can
and of the legal aid e.g. in the Indira Ganihi Assassination Case, the
assassins were provided with all legal aid and the lawyer of their choice.
In Rajiv Gandhi Murder case [T. Suthenraja v State, 1995 Cr L| 1496 (Mad)],
it was,held^that (he criteria in the appointment of prosecution lawyers in
different from those of the defence as free legal lid to indigent persons.
VC here the accused had pleaded guilty and . convicted without
appointing a counsel for the accused under . Legal Aid Scheme, it was
held that the trial was not vitiated when the was satisfied about
the pica being voluntary, genuine and true v State, 1989
CiLJ 123 (Bom)].
is charged was not committed by him or that he was subjected to physical I injury.”
Amendment of Sec. 54 (by 2008 Amendment): “(1) When any person is arrested, he shall be
examined by the medical officer in the service of Central or State Governments and in
case the medical officer is not | available by a registered medical practitioner soon after
the arrest is made:
Provided that where the arrested person is a female, the examination I of the body
shall be made only by or under the supervision of a female medical officer, in case the
female medical officer is not available, by a female registered medical practitioner.
(3) Where an examination is made under sub-sec. (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical
practitioner, as the case may be, to the arrested person or the person
nominated by such arrested person.”
Thus, it is obligatory on the part of the person having the custody of the accused
to take reasonable care of the health and safety of the
I accused.
1:
5
(8) Identification of Person Arrested
r, MB* '
insertion of new Sec. 54-A (by 2005 Amendment) (Identification of Person Arrested): Sec. 54-A empowers
the court to direct specifically the holding
182 Criminal Law - II
Magistrate”; In Sec. 327 (3), the following proviso shall be inserted, namely: - “Provided
that the ban on printing or publication of trial proceedings in relation to an offence of
rape may be lifted, subject to maintaining confidentiality of name and address of the
parties.”
Case Law
In this case, the Supreme Court took a serious note of custodial violence and
death in police lock-up. The matter was brought before the court by Dr. D.K.
Basu, Executive Chairman of the Legal Aid Services, a NGO, WB. through a
PIL. He addressed a letter to the Chief Justice drawing his attention to certain
news items published in the newspapers regarding deaths in police lock-ups
and custody. This letter was treated as a writ petition by the Court.
at some point of time during the interrogation may deter the police
from using third degree method.
(3) the
police personnel carring out the arrest and and
handling the interrogation should bear an accurate
and clear identification and name tags with their
designations. The particulars of such police personnel
must be recorded in a register.
(b) The police officer earning out the arrest shall prepare a “mem of
arrest’ at the time of arrest and such memo must be attested by
at least one witness (a member of arrestee’s family or a
respectable person of the locality from where arrest is made).
It shall also be countersigned by the arrestee and shall contain
the time and date of arrest.
the arrestee who has been informed of the arrest and the
name and particulars of the police officials in whose custody
the arrestee is.
(g) The arrestee should, where he so requests, be also examined
at the time of his arrest and major and minor injuries, if any
present on his/her body, must be recorded at that time. The
“Inspection Memo” must be signed by the arrestee and the police
officer and its copy provided to arrestee.
(h) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody
by a doctor on the panel of approved doctors appointed by
Director, Health Services of the State/U.T. The Director
should prepare such a panel for all tehsils and districts as well.
(i) Copies of all the documents including the memo of arrest
should be sent to the area Magistrate for his record.
0 The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(k) A police control room should be provided at all district and State
headquarters, where information regarding arrest and place
of custody of arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and
at the police control room it should be displayed on a
conspicuous notice board.
The Court made it clear that failure to comply with these requirements shall
apart from rendering the official concerned liable for departmental action,
also render him liable to be punished for contempt of court. The
requirements, referred to above flow from Arts. 21 and 22(1) and need to be
strictly followed. These would apply also to other governmental agencies
like
Rights of Arrested Person 187
The Supreme Court observed that the expression ‘arrest’ has neither
been defined in the Code of Criminal Procedure nor in the Indian Penal Code
or any other enactment dealing with criminal offences. The only indication as
to what would constitute arrest may perhaps be found in Sec. 46 of the Code,
which
188 Criminal Law - II
describes tbe mode in which arrests are to be made. In making an arrest the
police officer/ other person making the same actually touches or confines the
body of the person to be arrested unless there be a submission to custody by
word or action [Sec. 46(1)]. Mere utterance of words or gesture or flickering of
eyes does not amount to arrest; actual seizure or touch of person’s body with a
view to arresting is necessary. It need not be by handcuffing a person, but
could be complete even by spoken words if a person submits to the custody
[Birendra K. Rai v UOI, 1992 CrLJ 3866 (All)].
The Court cited the meaning of the arrest given in Halsbury’s Lam of
England. The word ‘arrest’ when used in its ordinary and natural sense, means
the apprehension or restraint or the deprivation of one’s personal liberty.
The question whether the person is under arrest or not, depends not on the
legality of the arrest, but on whether he has been deprived of his personal
liberty to go where he pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in the taking into
custody of another person under authority empowered by law, for the
purpose of holding or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The essential elements to
constitute an arrest in the above sense are that there must be an intent to
arrest under the authority, accompanied by a seizure or detention of the
person in the manner known to law, which is so understood by the person
arrested. In this connection, a debatable question that arises for our
consideration is whether the mere taking into custody of a person by an
authority empowered to arrest would amount to arrest of that person and
whether the terms arrest and custody are synonymous.
The Court further observed: When is a person in custody, within the
meaning of Sec. 439, Cr. P.C.? When he is, in duress either because he is held
by the investigating agency/police or allied authority/or is under the court’s
control having been remanded by judicial order, or having offered himself to
the court’s jurisdiction and submitted to its orders by physical presence. He
who is under
Rights of Arrested Person 189
the control of the court or is in the physical hold of an officer with coercive
power is in custody for the purpose of Sec. 439.
This word is of elastic semantics but its core meaning is that the law has taken
control of the person. Sometimes it is heard in the court that the police have
taken a man into informal custody but not arrested him, have detained him
for interrogation but not taken him into formal custody, etc. Such
terminological dubieties are unfair evasion of the straightforwardness of the
law. When the accused physically submitted before the Sessions Judge, the
jurisdiction to grant bail thus arose.
FURTHER QUESTIONS
Q.1 Describe briefly the law relating to the medical examination of an accused
on his arrest. X is arrested and released on bail. Subsequently, at the
instance of police, he is subjected to a medical examination. In his trial,
he objects to the inclusion of evidence based on
190 Criminal Law - II
the medical report since it pertained to some of his internal organs and
the medical examination took place after he was released on bail. Are
his submissions tenable? [L.C.I-94]
A.1 Medical Examination of Accused after Arrest (Sec. 53)
The bio-medical sciences have reached such an advanced stage that many bio-medical
tests done on the accused are extremely helpful both for the prosecution for
establishing the guilt and for the defence to prove the innocence of the accused, as such
tests do not leave any place for doubt either way. Thus, Sec. 53 introduced in the Code
for the first time in 1973, which reads:
(2) Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female
registered medical practitioner.”
The case of Anil A. Lokhande v State of Maharashtra (1981) Cr. LJ 125 (Bom HC) is a leading one
on the subject. In this case, the appellant had taken the plea that the taking of samples
of blood was violative of Art. 20(3) of the Constitution and was self-incriminating,
besides being shocking and brutal. Another point taken was that the samples of his
blood were perrr ted to be taken after he had been released on bail and that the police
had completed its investigation [Art. 20(3) reads: No person accused of any offence
shall be compelled to be a witness against himself].
The court observed: The power to compel the accused to submit to medical
examination is hedged in by various conditions. The object obviously is to balance the
conflicting interests of the individuals and the society. Sec. 53 is not violative of Art.
20(3) and a person cannot be said
Rights of Arrested Person 191
The medical examination contemplated by the section may take various forms.
The expression ‘examination of the person’ as used in Sec. 53 cannot be restrictively
confined only to the examination to skin or what is visible on the body itself. The
examination of some organs inside to the body for the purpose of collecting evidence
may become necessary and such an examination cannot be held to be beyond the
purview of section. Examination by a medical practitioner logically take in examination
by testing his blood, sputum, semen, urine etc.
The section itself permits ‘use of force’ as is reasonably necessary for the purpose
of medical examination of the arrested person. Sometimes such a medical examination
may cause pain and hurt to the examinee. If the process of taking such samples is
reasonable under the circumstances, then the causing of consequential discomfort to the
person is justified by the section.
The court further held that the medical examination contemplated by the section
is in respect of a ‘person arrested on a charge of committing an offence’. Even if an
accused person is released on bail he is still ‘a person arrested on a charge of committing
an offence’. Moreover, such a person while released on bail is notionally in the custody
of the court (through the surety) and therefore his medical examination can be carried
out in terms of Sec. 53.
Insertion of new Sec. 53-A (by 2005 Amendment) (Examination of Person Accused of
Rape by Medical Practitioner):-
(1) When a person is arrested on a charge of committing an offence
192 Criminal Law II
of rape or an attempt to commit rape and there are reasonable grounds for
believing that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the Government or by a local
authority and in the absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has been committed, by
any other registered medical practitioner, acting at the request of a police
officer not below the rank of a sub-inspector, and for any person acting in
good faith in his aid and under his direction, to make such an examination
of the arrested person and to use such force as is reasonably necessary for
that purpose.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall
also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report
to the investigating officer, who shall forward it to the Magistrate referred to
in Sec. 173.”
The principal agency for carrying out the investigation of offences is the police; and to
make this agency an effective and efficient instrument for criminal investigations, wide
powers have been given to the police officers. As per Sec. 2(h) of the Criminal
Procedure Code, “investigation” includes all the proceedings under the code for the
collection of evidence conducted by a police officer or by any person (other than a
Magistrate) who is authorized by a Magistrate.
As observed by the Law Commission, a magistrate is kept in the picture at all
stages of the investigation, but he is not authorised to interfere with the actual
investigation or to direct the police how that investigation is to be conducted. The
court, however, will interfere where the materials do not disclose an offence; in such
cases the investigation can’t be permitted as it will result in unnecessary harassment to
a party whose liberty and property may be put into jeopardy for nothing.
An ‘investigation’ comprises of various steps: Proceeding to the spot;
Ascertainment of facts and circumstances of case; discovery and arrest of the suspected
offender; Collection of evidence (examination of vatious persons including the accused,
search and seizure, etc.); Formation of opinion as to whether it is a case to place the
accused before a Magistrate for trial and, thus, filing of a charge-sheet.
[193]
194 Criminal Law - II
What constitutes F.I.R.? |n what manner it has to be recorded and acted upon? |
[O. U. -2011] [L. C. 1-95/96; L. C. 11-94/951
Discuss importance of Sec. 154, Cr.P.C. in criminal justice administration. [D.U,2012\
A goes to a police station and prays for the registration of an FIR. The police
68
2hTthP tlrX r 1 ° re 0rd
° *he complaint as the crime
^ not committed within the territorial
jurisdiction of that police station. Is the police officer right in
9S0
' [C. L. C. -2001/2002] I
196 ' oClri icme i n
P I na vl eLsat w
i g a t i oInI 195
in the light of F.I.R. Omission of important facts affecting the probabilities of the case
are relevant under Sec. 11 of the Evidence Act in judging the veracity of the
prosecution case.
Thus, F.I.R. can be used to corroborate the informant, i.e., to support his stand. At
the same time, it can be used for cross examination of the informant, i.e., to contradict his
stand. However, if F.I.R. is lodged by the accused himself, then it cannot be used for
the above mentioned purposes.
Although a F.I.R may be merely hearsay and need not necessarily be given by a
person who has first-hand knowledge of the facts, yet it provides the initial
groundwork on the basis of which the entire investigation and prosecution will be
conducted. As soon as the F.I.R. regarding a cognizable offence is received, the
machinery for investigation come into motion at once. The evidentiary value of F.I.R is
far greater than that of any other statement recorded by the police during the course of
the investigation.
Delay in filing FIR6 — Delay in lodging FIR cannot be used as a ritualistic formula for
discarding prosecution case and doubting its authenticity. It only puts the court on
guard to search for and consider if any explanation has been offered for the delay.
Once it is offered, the court is only to see whether it is satisfactory or not. Delay in
giving first information can be condoned if there is satisfactory explanation.
Unexplained delay smells of afterthought, concoction, etc. and as such its veracity
reduces.
Delay per se is not a mitigating circumstance for the accused when the
accusations of rape are involved. In such cases, delay is not uncommon [State of H.P. v
Shreekant Shekari, 2004 Cr LJ 4232 (SC)]. Even a long delay in lodging FIR in murder can be
condoned if witnesses have no motive of implicating accused and have given plausible
reason for delay [Harbans Kaur v State of Haryana, 2005 Cr LJ 2199 (SC)].
In this case, the question arose whether under Sec. 156(3) of the Code, a
Magistrate can only direct investigation by the police but has no power to
direct ‘registration of a case.’ The Punjab and Haryana High Court held that
the Magistrate has no power to direct registration of a case. The Apex Court,
however, disagreed with the High Court.
The Supreme Court held that once a complaint disclosing a cognizable
offence is made before a Magistrate, he may take cognizance upon the same under
Sec. 190(1)(a) or order an investigation by the police under Sec. 156(3),
Cr.P.CyWhenever ,, a Magistrate directs an investigation on a “complaint” the
police \ has to register a cognizable case on that complaint treating the \ same as
F.I.R. and comply with the requirements of the above
rules. Once such a direction is given under Sec. 156(3), the police is required
to investigate into that complaint under Sec. 156(1) and on completion of
investigation to submit a police report in accordance with Sec. 173(2) on
which a Magistrate may take cognizance under Sec. 190(l)(b) and not under
Sec. 190(l)(a).
The court observed: “It is incorrect to say that under Sec. 156(3) a
Magistrate can only direct investigation but cannot direct ‘registration of a
case’ for no such power is given to him under that section. Such a power
inheres in Sec. 156(3), for investigation directed thereunder can only be in the
complaint filed before the Magistrate on which a case has to be formally
registered in the police station treating the same as FIR.
Under Sec. 157 (1), the police can proceed to investigate on the information received from
any person as to the commission of any cognizable offence, or even without any such
information, if they have reason to suspect the’ commission of any cognizable offence.
There are two circumstances in
Police Investigation 201
which it is not necessary for the S.H.O. to proceed in person or depute a subordinate
officer to make an investigation on the spot: (i) when the information as to the
commission of the offence is given against any person by name and the case is not of a
serious nature [proviso (a) to Sec. 157 (1)]; (ii) when it appears to the S.H.O. that there is
no sufficient ground for entering on an investigation [proviso (b) to Sec. 157 (1)].
Amendment of Sec. 157 (by 2008 Amendment) (Procedure for Investigation In relation
to an offence of rape)
In Sec. 157(1) of the principal Act, after the proviso, the following proviso shall be
insertednamely - “Provided further that in relation to an offence of rape, the recording of
statement of the victim shall be conducted at the residence of the victim or in the place
of her choice and as far as practicable by a woman police officer in the presence of her
parents or guardian or near relatives or social worker of the locality.”
Under Sec. 157 (2), if the police officer does not proceed with the investigation of
the case on receipt of the F.I.R., he shall record reasons for it and shall also notify to the
informant the fact that he will not investigate the case or cause it to be investigated.
It is important to note that the police officer acting under Sec. 157 (1) is required
to send a report to the Magistrate having jurisdiction over the matter, stating that a
cognizable offence is suspected to have been committed and that he has taken up the
investigation himself. The object of the report is to enable the Magistrate to have an
early information of any serious case so that he can act himself if need be. The failure to
send such a report is a serious neglect of duty on the part of the police officer and is
likely to result in failure of justice (as it lays the police open to the suspicion of
concocting false evidence) (Haft£ Mohd v Emperor AIR 1931 Pat 150). However, in the
absence of any prejudice to the accused, the omission to send the report does not vitiate
the trial.
Under Sec. 159, the Magistrate receiving the report of a police officer under Sec.
157, may direct an investigation, or if he thinks fit, may at once proceed to depute any
subordinate magistrate to proceed to hold a preliminary enquiry. This provision does
not confer a magistrate a general power to direct investigation. The power to direct
investigation is to be used when it appears from the police report under Sec. 157 that
202 Criminal Law II
the police are neglecting their duties. The power of the police to investigate any
cognizable offence is uncontrolled by the magistrate, and it is only in cases where the
police decide not to investigate the case that the magistrate can intervene and either
direct investigation, or in the alternative, himself proceed to enquire into the case [S.N.
Sharma v Bipen Kumar (1970) 1SCC 653],
The power of the Magistrate under Sec. 159 is confined to inquiry and orders
regarding the offence to which the report relates. The Magistrate may dismiss the case
if there is no sufficient ground to proceed or he may proceed under this section. An
inquiry (preliminary) under this section can be made only on police report. No
Magistrate can under this section suspend investigation by police which has already
commenced and direct a magisterial inquiry (Pancham Singh v State of Bihar AIR 1967 Pat
416). On receipt of the report of the preliminary inquiry, the Magistrate should
proceed in the same way as he would deal with a report received from a police officer.
(iii) such a person is within the limits of the police station of the investigating
officer or is within the limit of any adjoining police station.
course of any investigation under this Chapter any statement which he may be
disposed to make of his own free will. A caution, however, is necessary and
imperative in cases falling under Sec. 164(4) of the Code.
Thus, the powers of the police to take statements of accused or suspects during
investigation are quite wide, as they can arrest and detain any person accused of an
offence, they can interrogate him and record his and other eye witnesses’ statements,
and also under Sec. 53, Cr.P.C. seek medical examination of such persons (medical test
can be asked for at any stage of the proceedings). However, the Criminal Procedure
Code has provided various safeguards against the misuse or abuse of such powers:—
(1) A male below the age of 15 or a woman shall be required to attend only at
their residence.
(2) No statement made by any person to a police officer shall be signed by the
person making it. This checks the abuse of power by the police, as in some
cases the police might obtain the signature of a witness by compulsion, and
when faced with this statement at the subsequent stages of trial, the witness
would find it difficult to go against the statement (recorded), although he
may be anxious to state the truth before the court.
(3) The witness is not bound to answer those questions which might expose him
to criminal charge, penalty, etc.
(4) Sec. 162 prevents the police from using a statement made by witness during
the investigation of a particular case, for the purpose of prosecution of
another case.
(5) Sec. 163 ensure that the statement made to the police during investigation is
not affected by any fear or favour.
Leading Case: NANDINI SATPATHY v P.L. DANI & OTHERS 10 (AIR 1978
SC 1025)
In this case, the Supreme Court considered the parameters of
Sec. 161 of Cr. PC. and the scope and ambit of Art. 20(3) of
10 Write a short note on: The ruling in Nandini Satpathy v P.L. Dani. [L.C.i-94]
Police Investigation 205
[L.C.I-94]
206 Criminal Law - if
of'TttaT t0t°\Ms°'™n dum8 ** use of statements dunng contradiction of awitness, the maker
may be able to logically defend the contradiction
between what he says m the court and what he said earlier on the same
grounds on which he may recant his statement it, tom.
Such statements can be utifced for a hmud purpose olJ ic for contradicting the
wimess as provided in Sec. 145 of the Evidence Act. and for the re-etanunauou of th.
witness. The statements can be used to test the veracity of th, witnesses when such
witnesses are examined m a court. Further, ,f the person whose s,a,en„„, ha, been
«corded b, *e police office, connadict. such statement in the corn, and testifies J, he did
no, male such sat.men, , pa„ .hereof, the ve^ foundation e prosecution case becomes
suspect or umeliable on the ground that
Accord^ to Sec. 25 of the Evidence Act, no confession made to a
statement, made to the police during investigation. It is apprehended that any power
given to the police to record confessions is more likely to be misused and that the
overzealous police officers might, in the apparent exercise of such power, extort or
fabricate confessions.
Therefore, Sec. 164 provides a special procedure for the recording of confessions
by competent magistrates after ensuring that the confession are being made freely and
voluntarily, and are not made under any pressure or influence. The provisions of Sec.
164 are a safety valve meant to muzzle involuntary confession. The object of Sec. 164
read with the “Judges Rules” i.e. the Executive Instructions of the High Court, is to find
whether the statement sought to be made by an accused is perfecdy voluntary or not.
The essential ingredients of Sec. 164 are as follows13:—
(1) A confession/statement can be recorded only by a metropolitan/ judicial
magistrate (whether or not he has jurisdiction in the case) 14 (S. 164 (1)].
Provided that any confession or statement made under this sub-sec. may also
be recorded by audio-video electronic means in the presence of the advocate
of the person accused of an offence (Inserted by 2008 Amendment). [The proviso to
sub-sec. (1) further makes it clear that a police officer on whom the powers of
a magistrate have been conferred by any law, will not be considered
competent to record confession under Sec. 164]. A confession recorded by
any other person/authority is inadmissible in evidence.
If any Executive Magistrate or any other Magistrate not empowered under sub-sec. (1)
(viz. a Magistrate of Second Class) records a confession, that record cannot be put in
evidence [State of U.P. v Singhara Singh AIR 1964 SC 358]. Some special statutes confer power
on the police officers and Executive Magistrates to record confession/statement. Thus,
Sec. 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed)
and Rule 15 of TADA Rules authorize the Superintendent of Police also to record a
confession/statement besides Metropolitan
13. Sec. 164 of the Cr. P.C. makes mention of certain statutory requirements which a Magistrate
who records a confession must follow. What are those statutory requirements? [C.LC.-9i]
14. Can a judicial magistrate or a magistrate of first class not having jurisdiction in a case record
the confession of an accused? [C.L.C.-2003]
208 Criminal Law - II
Magistrate. Is it valid?
Can a police officer, on whom magisterial powers has been CQrtferred, record a
confession?
16. Does the Magistrate have any discretion in recording the confession?^ ^
Police Investigation 209
Where indigent accused was produced before magistrate after prolonged detention in
police custody and confession proceedings were completed in just 65 minutes without
sufficient time for accused to reflect and columns in form of recording confession was
not filled in, it was held that confession was not voluntary [State of Assam v Ramndra Nath
Guha, 1982 Cr LJ 216 (Gau.)].
(b) The accused should be assured, in plain terms, of protection from any
sort of apprehended torture/pressure from police, etc., in case he
declines to make a statement.
(c) If at any time before the confession is recorded, the accused states that
he is not willing to make the confession, the magistrate shall not
authorise the detention of such person in police custody [S. 164 (3)]. This
is a further safeguard to ensure that the confession is voluntary.
(d) The accused should particularly be asked the reason why he is going to
make a statement which would surely go against his self-interest in trial.
(e) The magistrate must put questions to the accused in order to ascertain
the voluntariness of the confession. *
(f) To adjudge voluntariness, the magistrate should take note of two basic
factors. First, the existing mental condition of the prisoner. A man in peril
undergoing distress, worrv and strain is ordinarily not mentally fit
person to make a statement to endanger his life and liberty'. The
magistrate must satis fv himself by some objective tests that a mentally
disabled person is fit enough to understand the implications of the
warnings and to make a fatal statement. Secondly, the magistrate must
satisfy the court by documentary/oral evidence that he had fully
exercised his judicial mind to get the real motive which prompted die
prisoner to confess.
210 Criminal Law - II
administer oath to the person before recording his statement [Sec. 164 (5)].
(8) The magistrate recording a confession/statement under this section shall
forward it to the magistrate by whom the case is to be inquired into or tried
[Sec. 1G4 (6)]. ^
(9) Ordinarily the statement should be recorded in the language in which the
accused is examined but if that is not practicable it should be recorded in the
language of the court.
A confession recorded in accordance with special procedure of Sec. 164 can be used as
substantive evidence. It may be noted that if the accused contrives subsequently to
retract the confession, it will be evidence against him stilL
A non-confessional statement recorded under Sec. 164 is, however, not substantive
evidence. It can only be used for contradicting or corroborating under Secs. 145 and
157 of the Evidence Act, when the person making the statement gives evidence in
Court.
17. If the statutory requirements of Sec. 164 are not followed while recording a confessional
statement, what is the fate of that statement? Does it affect admissibility of such statement?
[C.L.C.-2004]
X, an accused in a murder case, voluntarily makes a confession before a judicial magistrate,
who however gave him no warning of the consequences of making such confession. The
magistrate made no notes but listened to the accused’s version with rapt attention and later
dictated a confessional statement to his typist from the notebook of his mind. Then the
accused and the magistrate put their signatures to the typed statement. Would the Court of
Session accept it as a valid confession statement and convict him on that evidence alone?
[C. L. C.-93/94/2000]
[Note: Because of non-compliance with the provisions of Sec. 164, the confession in the
present case is completely invalid, and the accused cannot be convicted on the basis of this
confession alone.]
212 Criminal Law - II
by Sec. 164 (2), or the magistrate might have failed to record the confession in
accordance with Sec. 164 (4)]. When a magistrate fails to record a confession as
required by Sec. 164, no evidence can be given to show that such confession was in
fact duly made to the magistrate. Sec. 463, however, lifts this embargo on the
admission of such evidence provided (a) such non-compliance with Sec. 164 has not
injured the accused in his defence on the merits and (b) he had in fact duly made the
statement recorded.
Sec. 463 permits oral evidence to be given to prove that the procedure laid down
in Sec. 164 had in fact been followed when the court finds that the record produced
before it does not show that was so. If the oral evidence establishes that the procedure
had been followed then only can the record be admitted This section cures the
irregularity when a confession is made in one language and is recorded in another.
Where the accused was not cautioned or while recording his confession some
questions put to him were not recorded by the magistrate, it became the duty of the
Sessions Judge to look into it and find out whether such omission had prejudiced the
accused. If not, the confession would be admissible in evidence.
A confessional record must be signed by the accused and also by the magistrate.
Signature or finger impression merely indicates authenticity of the statement and is
not an admission of correctness of the statement. An omission to take signature is not
necessarily fatal and may be cured by the evidence of the magistrate under Sec 463. It
has been held that mere failure to get the signature of the person making the
confession may not be very material if the making of such statement is not disputed
by the accused but in cases where the making of the statement itself is in controversy,
the omission to get the signature is fatal \Dhananjaya Redd) v State of Karnataka, 2001 Cr LJ
1712 (SC)].
by Sec. 164. The Session Court and the High Court convicted him on the basis
of the oral evidence given by the magistrate about the confession. The matter
came before the Privy Council.
It was contended on behalf of the respondent that evidence by a
magistrate is not to be confused with any evidence by virtue of Sec. 164, and
it had nothing to do with Secs. 17, 21, 24 or
26 of the Evidence Act and it was just like any other evidence tendered by
any person, other than a magistrate. In such case, it need not be reduced into
writing. On behalf of the appellant it was contended that a magistrate is very
different from a private person and his powers are delimited by Cr. P.C.
which is a “special Act’. Thus, the ‘general Act (i.e. Evidence Act) could not
be called in aid as to allow him to do what he could not do under the special
Act.
Their Lordships observed:
(i) The word “may” in Sec. 164 (1) does not denote that the
magistrate has full discretion to record or not to record a
confession according to the procedure laid down in Sec. 164.
The principle is that where a power is given to do a certain
thing in certain way the thing must be done in that way or
not at all. Other methods of performance are necessarily
forbidden. The discretion suggested by the word “may” is
only for the purpose of giving true effect to the provisions of
Sec. 164. For instance, it can hardly be doubted that a
magistrate would not be obliged to record any confession
made to him, if, for example, it were that of a self-accusing
mad man, or for any other reason the magistrate thought it to
be incredible or useless for the purpose of justice.
(ii) It would be unfortunate if the magistrate is asked generally to
act rather as police officers than as judicial persons, to be, by
reason of their position, freed from the disability that attaches
to police officers (under Sec. 162, Cr PC), and to be, at the
214 Criminal Law II
s accused and his ‘plea of guilty’ was not considered ‘voluntary’ because,
e although the accused made a confession before the magistrate, yet he was
is under the constructive custody of the police (the traffic police in the case
of an on the spot trial) of bus conductors by the mobile court (Jagmalaram
v State of Rajasthan, 1982 Cr LJ 2314).
:d
In the absence of any requirement that separate reasons were
:al
required to be recorded for believing that the confession was made
voluntarily it was not proper for the trial court to doubt its genuineness
Court
on the ground that reasons were unrecorded separately though the
fession ord
satisfaction was recorded in the memorandum. Comparing of confessional
of f other
statement made before magistrate with record of it in case diary by trial
eluding
court was also illegal [Ammini v State of Kerala, 1998 Cr LJ 481 (SC)].
>uld be
18. Comment: Power and duties of a Magistrate to remand an accused person to custody.
[L.C.I-96]
19. A is arrested by the police without a warrant. How long can he be kept in police custody
without being produced before a magistrate? What is the procedure for getting his detention
extended? [C.L.C.-2002]
circumstances for reasons judicially scrutinized, and for such limited periods as the
necessities of the case may require (Jai Singh v Emperor, 33 Cr IJ 287).
As observed by the Supreme Court, the provisions inhibiting detention without
remand is a very healthy provision which enables the magistrates to keep check over
the police investigation \Khatri (II) v State of Bihar (1981) 1 SCC 627].
An analysis of Sec. 167 will bring out the following points:
(1) VCTienever any person is arrested and detained in custody and it appears
that the investigation cannot be completed within 24 hours, and there are
grounds for believing that the accusation or information is well founded, the
officer in charge of the police station or the officer making the investigation
shall forthwith transmit a copy of the entries in the case diary to the nearest
Judicial Magistrate, and shall also at the same time forward the accused to
such magistrate [Sec. 167 (1)].
(2) The judicial magistrate to whom the accused is so forwarded may, from time
to time, authorise the detention of the accused in such custody as he thinks
fit, for a term not exceeding 15 days in the whole [Sec. 167 (2)].
(3) No magistrate shall authorise detention in any custody under Sec.
167 unless the accused is ‘produced before him’ [proviso (b) to Sec. 167 (2)].
The object of requiring the accused to be produced before the magistrate is to
enable the magistrate to decide judicially whether remand is necessary and
also to enable the accused to make any representation to the magistrate to
controvert the grounds on which the police officer has asked for remand.20
Now, by virtue of 2008 Amendment, Magistrate could extend further detention in judicial
custody of the accused through the medium of electronic video linkage. The proviso (b)
now reads: “No Magistrate shall authorize detention of the accused in custody of the
police under this
20. A Magistrate, acting under Sec. 167 Cr. P.C., authorize the detention of an accused in police
custody, without the accused being produced before him. Is the Magistrate right in doing so?
[C.L.C.-2001]
218 Criminal Law II
section unless the accused is produced before him in person for the first time and
subsequendy every time till the accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial custody on production of the
accused either in person or through the medium of electronic video linkage.”
“Explanation II. If any question arises whether an accused person was produced before
the Magistrate as required under clause (b), the production of the accused person may
be proved by his signature on the order authorizing detention or by the order certified
by the Magistrate as to production of the accused person through the medium of
electronic video linkage, as the case may be.”
2008 Amendment amends Sec. 167 relating to procedure when investigation
cannot be completed in twenty-four hours. It amends proviso to Sec. 167(2) in order to
make provision for the Magistrate to extend further detention in judicial custody of
the accused also through the medium of electronic video linkage except for the first
time where the production of the accused in person is required. The clause also inserts
a further proviso to the said sub-sec. (2) to provide that in the case of a woman under
18 years of age, the detention shall be authorized to be in the custody of a remand
home or recognized social institution.
(4) The magistrate has to exercise his judicial mind while deciding whether or
not the detention of the accused in any custody is necessary. The magistrate
should consider all available materials before authorising detention. The
order of detention is not to be passed mechanically as a routine order on the
request of the police for remand [Madhu Limaye, Re, 1969 Cr LJ 1440 (SC)].
(5) The magistrate has full discretion to order detention in police custody or
judicial custody. Particularly where the detention in the custody of the
police is ordered by a judicial magistrate, he is specially required to record
reasons for doing so [Sec. 167 (3)]. The magistrate must satisfy himself that
the accusation is well founded and that the presence of the accused is
necessary while the police investigation is going on.
(6) If the judicial magistrate is satisfied that for the purposes of investigation the
accused be detained beyond the period of 15
Police Investigation 219
days, he can authorise further detention of the accused. But in such a case (1)
the detention shall be in custody other than that of the police, and (2) the
total period of detention (including the 15-days period) shall not exceed 90
days (in case of offence punishable with death/life-imprisonment) and 60
days (any other offence) [Proviso (a) to Sec. 167 (2)].
(7) Any magistrate other than the Chief Judicial Magistrate making such order
shall forward a copy of his order, with his reasons for making it, to the Chief
Judicial Magistrate [Sec. 167 (4)].
Sec. 167(5). lays down that if in any case triable by a Magistrate as a summons
case, the investigation is not concluded within a period of six months from the date on
which the accused was arrested, the Magistrate shall make an order stopping further
investigation of the offences unless the officer making the investigation satisfies the
Magistrate that for special reasons and in the interests of justice the continuation of the
investigation is necessary.
Such time schedule is to commence either from the date of arrest or the date
when he made his appearance in the court and not from the date of first information.
The duties cast by Sec. 167(5) on the court and the police officer are independent of each
other. Therefore, the police officer making the investigation has normally to move the
court for an order permitting continuation of the investigation beyond the period of 6
months before the Magistrate discharges his duty of stopping the proceedings which
comes only after the expiry of 6 months. However, it does not seem to follow that if
application is moved beyond the period of 6 months, but before the order of stopping
the investigation has been passed by the Magistrate, the Magistrate has no jurisdiction
to deal widi such a request of the prosecution. The failure on the part of the court to
stop the investigation on the expiry of 6 months will not ipso facto be deemed to be an
implied permission by the court to the investigating officer to continue the investigation
as such a continuation could be
220 Criminal Law - II
permitted by the court only for special reasons and in the interests of justice [State v Jai
Bbagwan, 1985 CrLJ 932 (Del)].
The Supreme Court has held that the order stopping further investigation into
the offence and the consequential order of discharge are not intended to be automatic
sequel to the failure to complete investigation within the prescribed period. The time
schedule shown in Sec. 167(5) is not to be treated with rigidity and it is not mandatory
that on the expiry of the period indicated therein the Magistrate should necessarily
pass the order of discharge. The Magistrate at that stage must look into the record of
investigation to ascertain the progress of it; if substantial part of it was by then over,
he should seriously ponder over the question whether it would be conducive to the
interest of justice to stop further investigation and discharge the accused [Nirmal Kanti
Roy v State of W. B., 1998 CrLJ 3282 (SC)].
The bar under Sec. 167(5) is for the investigation and not for the court taking
cognizance of the case. The mere fact of investigation having continued beyond a
period of 6 months without the permission of the Magistrate does not automatically
nullify the continuance of the tnal. The only result in that case is that the Magistrate
will only look into the material which had been collected within a period of 6 months
and will ignore the other material and then decide whether to take cognizance or not
[State v Jai Bbagwan, above]. Thus, an investigation beyond the penod of 6 months may
not necessarily vitiate the proceedings Nonstopping of investigation would be only a
curable error [State v PC Tatyabji, 1986 CrLJ 332 (Bom)].
Sec. 167(6) lays down that if the Magistrate orders the investigation to be
stopped under sub-sec.(5), but the Sessions Judge is satisfied, on the application made
to him or otherwise, that further investigation into the
o ence ought to be made, he may vacate the order made by the Magistrate and direct
further investigation to be made into the offence subject to such directions with regard
to bail and other matters as he may specify Thus, the outer limit of 6 months for the
completion of investigation can, on the satisfaction of the Magistrate [under sub-sec.(5)]
for
or the Sessions Judge [under sub-sec.(6)], be extended, though, only in exceptional *
inv s 0,
' ^“ '
Police Investigation 221
Sec. 168 provides for a report by a subordinate police official to the officer-in-
charge of the police station.
if such a person refuses to attend or to execute a bond as directed m Sec 170 the
officer-in-charge may forward him in custody until he executes such a bond, or until
the hearing of the case is completed
[Proviso, Sec. 171].
(c) Diary of proceedings in investigation - According to Sec. 172('1), every investigating
police officer is required to enter day by day his proceedings in the
investigation in a diary, popularly called “case diary” or “special diary” or a
“station house report”, stating therein the time at which information reached
him, the time at which he began and closed his investigation, the place or
places visited by him, and a statement of the circumstances ascertained
through his investigation.
The object of this section is to enable the Magistrate to know what was the day-to-day
information by the police officer who was investigating the case and what were the lines
of his investigation [Debendra Chandra v Emperor AIR 1934 Cal 458]. Thus, the object of
recording case diaries is to enable courts to check the method of investigation by the
police. Further, where the cases for prosecution and defence are both inadequate the
case diary would help the court to discover for itself the materia facts which can be
brought to light through examination of ™ toesses ™ get at the truth in the interests of
justice [Habeeb Mohd. v State of
Hyderabad AIR 1954 SC 51].
Any criminal court can send for the police diaries of a case under inquiry or trial
in such a court, and may use such diaries -' - mdence in the case, but to aid it in such an
inquiry/ trial- [Sec. 172(2)}. accused person can use it for cross-examination of the police
officer only under certain circumstances. The non-maintenance of diary may not vitiate
the trial but it would diminish ^ ^
investigating police officer [Niranjan Singh v State of U.P. AIR
142].
2008 Amendment. In Sec. 172 of the Principal Act, after sub-sec. (1), t e following sub-secs,
shall be inserted, namely:-
21. in a murder case the Sessions judge used and relied upon case diaiyComment
Police Investigation 223
“(1-A) The statements of witnesses recorded during the course of investigation under
Sec. 161 shall be inserted in the case diary.
(1-B) The diary referred to in sub-sec. (1) shall be a volume and duly paginated.”
Report of the police officer on completion of investigation (Sec. 173)
There are three kinds of reports to be made by police officers at three different stages of
investigation: (1) Sec. 157 requires a preliminary report from the officer-in-charge of a
police station to the Magistrate; (2) Sec.
168 requires reports from a subordinate police officer to the officer-in- charge of the
station; and (3) Sec. 173 requires a final report of the police officer as soon as
investigation is completed to the Magistrate.
After the completion of the investigation, it is for the investigating police officer
to form an opinion as to whether or not there is a case to place die accused before the
magistrate for trial. He would then follow the procedure laid down in Sec. 169 or 170
and submit a report to the Magistrate having jurisdiction, under Sec. 173. The necessity
of completing the investigation expeditiously is emphasized by giving a general
direction that every investigation shall be completed without unnecessary delay [Sub-
sec. (1)]. Under Sub-sec. (1A) (inserted by 2008 Amendment), the investigation in relation to
rape of a child may be completed within three months from the date on which the
information was ordered by the officer-in-charge of the police station.
The police report submitted under this section is called “Completion/ Final
Report”. If the report alleges the commission of a crime by an accused person, the
report is commonly called the “charge-sheet” or the “challan”. The police charge-
sheet corresponds to the complaint of a private individual on which criminal
proceedings are initiated. Submission of charge-sheet means that the preliminary
investigation and preparation of the case is over and the Magistrate can take
cognizance of the offence [Rama Shankar v State AIR 1956 All 525], Until the Magistrate
receives police report under Sec. 173, there can be no intervention by him in his
judicial capacity or as a court and until then no occasion can arise for the Magistrate
to make judicial order in connection with the police investigation [ML Sethi v R. P. Kapur
AIR 1967 SC 528].
The magistrate receiving the report has no power to direct the police to submit
a particular kind of report; if he considers the conclusions reached by the police officer
as incorrect, he may direct the police officer to make further investigation under Sec.
156, he may or may not take cognizance of the offence disagreeing with the police, but
he cannot compel the police officer to submit a charge-sheet so as to accord with his
opinion (Abhinandan Jha v Dinesh Mishra AIR 1968 SC 117). In this case, the court observed
that the formation of the opinion by the police officer by whom or under whom the
investigation was conducted, is the final step in the investigation and that final step is
to be taken only by the police and not by any other authority. Thus, there is no power
expressly or impliedly conferred under the Code, on a magistrate to call upon the
police to submit a charge-sheet, when they have sent a report under Sec. 169 that there
is no case made out for sending up the accused for trial, though the charge has to be
framed by the magistrate on the basis of the police report (Secs. 228, 240).
Submission of the report is absolutely necessary. Inordinate delay in submitting
final report may lead to the grievance that the investigation is carried on unfairly or
with some ulterior motive [RP. Kapur v State of Punjab AIR 1960 SC 866]. The police report
contains the facts and the conclusions drawn by the police therefrom. Charge-sheet is
not a complete or accurate basis of the prosecution case [RK Dalmia v Delhi Admn. AIR
1962 SC 181]. The Magistrate is expected to apply his judicial mind to the report and
he is not bound by the conclusions drawn by the police. He may differ with the police
report, be it a charge sheet (or ‘final report’). He may decide to issue process even if the
police recommend that there is no sufficient ground for proceeding further [M.S. Bains v
State, 1981 SCC (Cri) 93]. Thus, if the magistrate considers that the accused person was
u'ongly released, he has power to take cognizance of the case and to proceed to put the
accused on trial. But if he decides to drop the case and there is ‘protest petition’ filed
by the complainant, the magistrate is entided to initiate action on that petition.
Under Sub-sec. (2), as soon as the investigation is completed, the officer-in-
charge of the police station shall forward to a magistrate empowered to take
cognizance of the offence on a police report, a report in the prescribed from stating -
(a) the name of the parties, (b) the nature
Police Investigation 225
of the information, (c) the names of the persons who appear to be acquainted with the
circumstances of case, (d) whether any offence appears to have been committed and if
so, by whom, (e) whether the accused has been arrested, (f) whether he has been
released on his bond and if so, whether with or without sureties, (g) whether he has
been forwarded in custody under Sec. 170; (h) [Cl. (h) inserted by 2008 Amendment} whether
the report of medical examination of the woman has been attached where investigation
relates to an offence under Sec. 376, 376- A, 376-B, 376-C or 376-D of the Indian Penal
Code.
Sec. 173(2) also provides that the officer shall also communicate, in the manner
prescribed by the State Government, the action taken by him to the person giving the
F.I.R. In a case where the Magistrate to whom a report is forwarded under Sec. 173(2)
decides not to take cognizance of the offence and to drop the proceedings, the
Magistrate must give notice to the informant and provide him an opportunity to be
heard at the time of consideration of the report [Bhagwant Singh, 1985 Cr LJ 1521 (SC)]. But
this requirement is not applicable after the Magistrate has taken cognizance [Gurcharan
Singh v Suresh Kumar Jain, 1988 Cr LJ 823 (Del)].
The police officer should, when the report is in respect of a case under Sec. 170,
forward to the Magistrate all documents or relevant extracts thereof (other than those
already sent to the Magistrate during investigation), and also the statements recorded
under Sec. 161 of persons, on whom the prosecution rely [Sec. 173 (5)]. No exhaustive
test of such documents may be suggested. It includes reports of post-mortem
examination, or chemical examiner, or handwriting or fingerprint expert, etc. The
accused can demand from the prosecutor copies of the statements recorded by the
police during investigation and use it for his defence. Any denial to the accused of this
right is a serious irregularity which would vitiate the entire trial if the accused was
prejudiced [Purshottam Jethanand v State of Kutch AIR 1954 SC 700]. Mere filing of charge-sheet
within prescribed time, unaccompanied by material papers as contemplated under Sec.
173(5) renders it incomplete. The court is not competent to take cognizance of offence on
the basis of such incomplete charge-sheet [Satya Narain Musadi AIR 1980 SC 506].
226 Criminal Law - II
Under Sub-sec. (6), if the police officer is of the opinion that any part of such
statement is not relevant to the subject-matter of the proceeding or that its disclosure
to the accused is not essential in the interest of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append a note requesting the
magistrate to exclude that part from the copies to be granted to the accused and
stating his reasons for making such a request. But where the police officer
investigating the case finds it convenient to do so then acting under Sub-sec. (7) he
may furnish to the accused copies of all or any of the documents referred to in Sub-sec.
(5).
Supplementary report on further investigation — The submission of the report by the police officer
shall not preclude further investigation in respect of an offence (when some additional
evidences obtained).
Nothing in Sec. 173 shall preclude further investigation in respect of an offence
after a report under sub-sec. (2) has been forwarded to the Magistrate, and where
upon such investigation, the officer-in-charge of the police station obtains further
evidence (oral or documentary), he shall forward to the Magistrate" a further report
regarding such an evidence [Sec. 173(8)].
It may be noted that a power to direct further investigation has been conferred
on the Magistrate under Sec. 156(3), which can be exercised by him even after
submission of a report by the police officer. This provision does not in any way affect
the power of the police officer to further investigate the case even after submission of i
the report as provided in Sec. 173(8). However, a Magistrate after taking cognizance of
the offence on the basis of police report and after appearance of the accused, cannot
order further investigation [Randbir Singh Rana v State (1997) 1 SCC 361].
The underlying idea behind Sec. 173(8) is that if the investigating officer finds
additional evidence as to the guilt or innocence of the accused percon it would be in
the interests of justice to allow such officer to make further investigation. While such
an investigation is going on, the accused can very well be remanded to custody uncUr
Sec. 167, as the matter will again be under investigation qua that accused, when some
evidence is collected by the police against him [State v Dawood Ibrahim Kaskar AIR 1997 SC
2494]. It may be noted that Sec. 173(8) is only
Police Investigation 227
permissive and neither the informant nor the accused can claim further investigation
after the filing of the charge-sheet as a matter of right [Sbjamcharan Dubej v State, 1990 Cr LJ
456 (All)].
Further investigation is the continuation of earlier investigation and not a fresh
investigation or re-investigation to be started ab initio wiping out the earlier
investigation altogether. Sec. 173(8) clearly envisages a further report and not fresh
report [K Cbandrasbekbar v State of Kerala, 1998 Cr LJ 2897 (SC)].
FURTHER QUESTIONS
Sec. 154
The commencement of investigation in respect of cognizable offences occurs when any
person aware of the commission of any cognizable offence gives its information to the
police. A police officer is legally
Police Investigation 229
Sec. 156
The station house officer (S.H.O.) may, without the order of a magistrate investigate
any cognizable case, and such proceeding shall not at any stage be called into question
on the ground that the case was one which such officer was not empowered under this
section to investigate.
Sec. 157
The police can proceed to investigate under Sec. 157 on the information received from
any person as to the commission of a cognizable offence, or even without any such
information, if they have reason to suspect the commission of any cognizable offence.
The police officer acting under Sec. 157 is required to send a report to the concerned
magistrate.
Sec. 160
Under Sec. 160, the police officer has the power to require attendance of persons
acquainted with the facts and circumstances relevant to the commission of the offence
under investigation. However, a written order is needed for it and such a person
should be within the limits of the police station of the investigating police officer or
within the limits of any adjoining police station. Further, a male person below 15 years
of age or a woman cannot be required to attend any place other than the place in which
such a child or woman resides.
Sec. 161
It gives the power to the investigating police officer to examine orally such a person
who is required to answer truly all questions relating to the
230 Criminal Law - II
case. However, the person giving any oral testimony may not answer any question
which might have a tendency to expose him to a criminal charge or to a penalty, etc.
The police officer may reduce into writing any statement made to him in the course of
the examination of a person.
Sec. 172
It states that every police officer making an investigation shall, day by day, enter the
proceeding of an investigation in the police diary (“case-diary”).
Sec. 173
When the investigation is complete, the police officer is required to submit a report to
the magistrate stating the name of the parties, the nature of information, etc. This
report is known as the “charge-sheet” or challan and it forms the basis of the case in the
court.
Q.2 (a) In the course of investigation, N told the police officer that he saw
C shooting D dead. Subsequently at the trial of C for D’s
Police Investigation 231
A.2 (a) Evidentiary Value of the Statements made to the Police during Investigation (Sec.
162)
A statement recorded by police during investigation is neither given on oath nor is it
tested by cross-examination. According to the law of evidence such statement is not
evidence of the facts stated therein and therefore it is not considered as substantive
evidence.
Sec. 162 lays down that any statement made by any person to a police officer in
the course of investigation can be used only for the purposes as hereinafter provided
and for no other purpose, at any inquiry or trial in respect of any offence under
investigation at the time when such a statement was made.
Sec. 162 provides that —
(1) such statement can be used in trial if the person making the statement is
called as a prosecution witness (and not as defence wimess),
(2) the statement can be used for the purpose of contradicting such wimess in the
manner provided by second part of Sec. 145 of the Evidence Act,
(3) the statement can be used for the above purpose (a) by the defence, or (b)
with the court’s permission by the prosecution,
(4) if any part of the statement is used for contradiction, ary part of the statement
can be used in the re-examination of the wimess for the only purpose of
explaining any matter referred to in liis cross-examination.
It is important to note that Sec. 162 prohibits the use of such statements for the purpose of corroboration. It is
based on the assumption that the
232 Criminal Law - II
police (unacquainted with the law of Evidence) cannot be trusted for recording the
statements correctly and that the statements cannot be relied on by the prosecution for
the corroboration of their witnesses as the statements recorded might be of self-serving
nature. The object of the section is to protect the accused both against overzealous
police officers and untruthful witnesses \Khatri (IV) v State of Bihar (1981) 2 SCC 493].
Another object of the section is to ‘encourage the free disclosure of the information or
to protect the person making the statement from a supposed unreliability of police
testimony as to alleged statement or both.’
The Supreme Court has held that considering the relative objectives and
spheres of Sec. 162 of the Code and Sec. 165 of the Evidence Act, the restrictions on the
use of previous statements of witnesses imposed by Sec. 162 are confined in their
scope to the use by the parties to the proceeding of such statements. Therefore, the
court while examining a person as a court wimess under Sec. 311 of the Code or
asking any question to any wimess under Sec. 165 of the Evidence Act may make use
of the previous statement of such a wimess and the restrictions put by Sec. 162 on the
use of previous statements are not applicable in such a case \Raghunandan v State of UP.
(1974) 4 SCR 186].
Sec. 162(2) specifically provides that the restrictions imposed by Sec. 162(1) on
the use of the statements recorded by the police shall not apply in respect of the
statements falling under Sec. 32(1) of the Evidence Act i.e. ‘dying declarations.’
Similarly, it has been also provided that these restrictions shall not apply in respect of
the statements falling under Sec.
27 of the Evidence Act.
Sec. 162 only bars proof of statements made to an investigating police officer
‘during the course of investigation’. The section does not say that every statement
made during the period of investigation is barred from being proved in evidence.
Therefore, such a statement can be used for corroborating or contradicting purposes as
laid down in the Evidence Act. Thus, an anonymous letter written by the accused to
the police officer complaining about the acts of a chowkidar (whom the accused later
murdered) was held to be not hit by Sec. 162 and admitted as an evidence of the motive
of the accused.
Police Investigation 233
In this case, the Supreme Court observed that resort to Sec. 145 of the
Evidence Act would only be necessary if the witness denies that he made the
former statement. The statement cannot be allowed to be used for the
purpose of cross-examining a witness as such. Because it enables the accused
to ‘elicit’ what the witness stated before the police. The contradiction, under
Sec.
162, Cr. P.C., should be between ‘what a witness said in the court and what
he stated before the police’ and not between *what he had stated before the
police and what he actually made before him.’
There are two conflicting views about omissions:
® omissions, unless by necessary implication be deemed to be part
of the statement, cannot be used to contradict the statement
made in the witness box, and
(ii) they must be in regard to the important features of the
incident in the statement made before the police.
Criminal Law - M
234
Police Investigation 235
Q.3 How and when search and seizure can without warrant be affected by a
police officer? [L.C.I-94/95\
Thus, where lack of time is not a consideration, search without warrant is not proper.
The expression “reasonable grounds for believing” is equivalent to “has reason to
believe” (and not mere suspicion). It means a belief based on some definite facts. This
provision is intended to ensure that the searches by the police officers are not arbitrary.
(4) The ‘recording of reasons’ before search [Sub-sec. (1)] is a good procedural
safeguard against arbitrary searches. Further, he is required to specify
beforehand the article for which the search is to be made. This is a safeguard
against general or roving searches. The non-recording of the reasons for
search would make the search illegal.
(5) Sub-sec. (2) directs that the police officer, as far as practicable, is to conduct
the search in person. If, however, he is unable to do so, then he can
authorise any subordinate officer to make the search. Sub-sec. (3) requires
that the police officer after giving such authority must record his reasons for
doing so; the authority given to the subordinate officer must be in writing
and it should, as far as possible, specify the place to be searched and the
thing for which the search is to be made. A search by a subordinate officer
without such authority is illegal (Madho Sonar v Emperor, 16 Cr LJ 589). An oral
order given to such officer is not enough, and the authorisation of the search
must always be in writing (Hira Lai v Ramdulare AIR 1935 Nag 237).
(6) The provisions of Sec. 100, Cr. P.C., shall apply to searches made under Sec.
165. The provisions, in brief, are as follows:-
(i) The occupant of a place liable to search is required to give all
reasonable facilities to the police officers. A person can be searched
also.
(ii) The search is to be made in the presence of at least two independent
and respectable inhabitants of the locality, to attend and wimess it.
(iii) The occupant of the place searched shall be delivered a copy of the list
(of the things seized), signed by the said witnesses.
Police Investigation 239
(7) Copies of any record made under Sec. 165 shall be immediately sent to the
nearest magistrate empowered to take cognizance of the offence, and the
owner or occupier of the place searched shall, on application, be furnished
free of cost, with a copy of the same by the magistrate [Sub-sec. (5)]. This
provision is made as an additional safeguard to protect the individuals
against general or ro'ing searches.
(8) Sec. 166 enables a police officer to effectuate a search of a place located
beyond the limits of his police station, if the exigencies of the situation so
require.
In Shyam Lai’s case, the court also observed that if a police officer omits to record
reasons for search in his diary, but acts bona fide and honesdy in the discharge of his
duties, then such non-compliance with provisions of Sec. 165 does not vitiate the search,
for it is merely an irregularity rather than an illegality. Such irregularity does not give any
right to a person considering himself to be aggrieved to impede, obstruct and
unlawfully prevent its further progress. If this were allowed, then it would
240 Criminal Law - II
encourage people to take the law into their hands, frustrate the investigation of crimes
and thwart public justice.
The object of arrest and detention of the accused person is primarily to secure his
appearance at the time of trial and to ensure that in case he is found guilty he is
available to receive the sentence. If his presence at the trial could be reasonably ensured
otherwise than by his arrest and detention, it would be unjust and unfair to deprive
him of his liberty during the pendency of criminal proceedings against him.
The law of bails “has to dovetail two conflicting demands, namely on one hand,
the requirements of the society for being shielded from the hazards of being exposed to
the misadventures of accused person; and on the other, the fundamental canon of
criminal jurisprudence viz. the presumption of innocence of an accused till he is found
guilty.” ‘Bail’ is recognition of this ‘presumption of innocence.’ Bail blends the two
apparently conflicting claims — the freedom of individual and the interest of justice.
The provisions of bail restore the liberty of the arrested person without jeopardizing the
objectives of arrest. Therefore, the general rule is “bail not jail.”
The basic rule is to release him on bail unless there are circumstances suggesting
the possibility of his fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and the like,
by the petitioner seeking enlargement on bail from the court (State of Rajasthan v Balchand
AIR 1977 SC 2447).
In Narasimhulu (AIR 1978 SC 429), the Apex Court observed: “Bail or jail at the
per-trial or post-conviction stage belongs to the blurred area of the criminal justice
system, and largely hinges on the hunch of the
[241]
Bench, otherwise called judicial discretion The Code is cryptic on point, and the court
prefers to the tacit, be the order custodial or not And yet, the issue is one of liberty,
justice, public safety and burden of
the public treasury.”
Bail is one of the cherished rights, claims or privileges of an accused person. It is
one of the most dignified institutions in any civihzed society in which human values,
such as faith and trust, take precedence over everything else. The release on bail is
crucial to the accused person. The jailed accused, subjected to the psychological and
physical deprivations of jail life, loses his job and is prevented from contributing
effectively to the preparation of his defence.
on bail]. But if the offence is non-bailable that does not mean that the person
accused of such offence shall not be released on bail, but here in such a case
bail is not a matter of right, but only a privilege to be granted at the discretion
of the court.
In Kalyanckandra Sarkar v Rajesh Ranjan (AIR 2005 SC 921), the Apex Court observed: “Even
in non-bailable offences, the accused person is entitled for bail if the court comes to the
conclusion that the prosecution has failed to establish a prima facie case against him
and/or if the court is satisfied that in spite of the existence of prima facie case there is a
need to release such persons on bail where fact situations require it to do so.”
(iv) The classification of offences into bailable and non-bailable has been devised
for making a threshold decision as to whether the accused should be released
on bail.
The right to be released on bail under Sec. 436 (1) cannot be nullified
indirectly by fixing too high the amount of bond or bail-bond to be
furnished by the person seeking release.
This case shows how the bail can be made impossible by requiring
the petitioner to execute sureties in the sum much beyond what
he can manage. The ordinary labourer was asked to pay a sum
of Rs. 10,000. The Supreme Court observed that “the Magistrate
has not fully appreciated our Constitution under which “We, the
people of India” is meant for the butcher, the baker, and the
candle-stick maker — shall we add, the bonded labour and
pavement-dweller.”
Sec. 436 is an imperative or mandatory provision. Further, the court cannot impose
any condition in a bail-order under Sec. 436. The only exception to this rule is stated in
sub-sec. (2). | 1a
Sub-sec. (2) — It provides that a person who absconds or has broken the condition of his
bail-bond (e.g. failed to appear before the court on the
Bail 245
date fixed) when he was released on bail in a bailable case on a previous occasion, shall
not, as of right, be entitled to bail when brought before the court on any subsequent
date even though the offence may be bailable. Further, the court can call upon any
person bound by such bond to pay the penalty thereof under Sec. 446.
Insertion of new Sec. 436-A (Maximum period for which an Under-trial Prisoner can be Detained) (by 2005
Amendment):13 Where a person has, during the period of investigation, 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, he shall be released by the
Court on his personal bond with or without sureties:
Provided that the Court may, 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.
Explanation - 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.
The aforesaid amendment will benefit under-trials, who are detained for long
periods while the investigation or trial is proceeding. There had been instances, where
under-trial prisoners were detained in jail for periods beyond the maximum period of
imprisonment provided for the alleged offence. They should not languish endlessly in
jail because courts cannot cope with the backlog of cases. Also, the fear that criminals
might be let out unpunished if the detention extends beyond half the prescribed term
should spur the police and investigating agencies into action, and help deliver speedier
justice.
1a. Clearly bring out the changes that have been made in the law of bails in the Cr. PC., 1973, by
the Cr.P.C. (Amendment) Act, 2005 bringing out clearly the object sought to be achieved by
the Amending Act of 2005? [D.U.-2011/2012\
[NOTE: Also SEE pages 247,248,268,269 of the present Chapter ]
246 Criminal Law - II
(2) No reasonable grounds for believing the accused guilty of a non-bailable offence but sufficient for
further inquiry - The accused shall be released on bail in such a case, according to
Sec. 437 (2).
(3) Trial non concluded within 60 days - If, in any case triable by a magistrate, the trial of
a person accused of any non-bailable offence is not concluded within a
period of 60 days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said period, be
released on bail to the satisfaction of the magistrate, unless for reasons to be
recorded in writing the magistrate otherwise directs [Sec. 437 {6)].
(4) Release on bail after conclusion of trial but before the judgment is delivered - If, at any time before
the conclusion of the trial of a person accused of a non-bailable offence and
before judgment is delivered, the court is of the opinion that there are
reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused (Sec. 437 (7J).
Second — The court may direct that a person (habitual offender) 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.
Third — 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 entided to be released on bail.
Amendment of Sec. 437 (by 2005 Amendment): Sec. 437(1) has been amended to provide that
if a person commits a cognizable and non- bailable offence and he has been previously
convicted on two or more occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than 7 years, he shall not be released
except in the circumstances specified in the provision.
Further, if an accused appears before the Court while in judicial custody and
prays for bail, or a prayer for bail is made on his behalf, the Court shall grant bail only
after giving an opportunity of hearing to the prosecution, if the offence alleged to have
been committed by the accused is punishable with death, imprisonment for life or
imprisonment for not less than 7 years. The critics point out that this provision will
further
248 Criminal Law II
whittle down protections for an accused person that have been built into the criminal
law.
Sub-sec. (3): Grant of bail with conditions — The power to impose conditions can only be
exercised:
(i) where the offence is punishable with imprisonment (7 years or more),
(ii) where the offence is an ‘offence against the State’, ‘offence against the
human body’, or ‘offence against property’ (I.P.C.),
(iii) where the offence is one of the abetment of, or conspiracy to, or
attempt to commit any such offence as mentioned in
(i) and (ii).
The court may impose any condition which the court considers necessary in order to
ensure that such person shall attend in accordance with the conditions of the bond, or
in order to ensure that such person shall not repeat the offence, or otherwise in the
interests of justice.
However, a condition tantamount to refusing the bail wil) not be considered as
a condition authorised by law [Mohd. Tariq v Union of India, 1990 Cr LJ 474 (All)]. Nor can a
condition be imposed in derogation of any fundamental right of the accused. A
condition diat the accused is to aid the police by accompanying them to various places
for the recovery of stolen goods would be in clear derogation of the right of the
accused of not being a witness against himself, and as such would be invalid (ICS Layak
v State of A.P., 1981 Cr LJ 954).
Amendment of Sec. 437 (by 2005 Amendment): Under Sec. 437(3), the Court has got the
discretion to impose certain conditions for the grant of bail. In order to make the
provision stringent and to see that the person on bail does not interfere or intimidate
witness, sub-sec. (3) has been amended to specify certain conditions, which are
mandatory, viz.
(a) that such person shall attend in accordance with the conditions of the
bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of
whicn he is accused, or suspected, of the commission of which he is
suspected, and
(c) that such person shall not directly or indirecdy make any inducement,
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 office or tamper with the evidence.
Sub-sec. (4): Recording of reasons — Any officer or court releasing any person on bail in a case of
non-bailable offence is required to record in writing his or its reasons for so doing. This
requirement would enable the High Court or Court of Session to see whether the
discretion in the matter of bail was properly exercised.
In Anwari Begam v Sber Mohammed, 2005 Cr. L.J. (SC), it was held that though detailed
examination of evidence and elaborate documentation of the merits of the case is to be
avoided while passing orders on bail application yet a court should be satisfied as to
whether there is a prima facie case. A bail order must be reasoned, while considering
bail application the court must consider among others the following circumstances:
(i) The nature of accusation and severity of punishment in case of conviction
and the nature of supporting evidence.
(ii) Reasonable apprehension of tampering of the witness or apprehension of
threat to the complainant.
(iii) Prima facie satisfaction of the court in support of the charge.
It was also pointed out that any order not supported by such reasons suffers from non-
application of mind. Therefore, any bail granted to murder accused by cryptic non-
speaking order was liable to be set aside.
the higher Court as and when such Court issues notice in respect of any appeal or
petition filed against the judgment of the respective Court and such bail bonds shall be
in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure
under Sec. 445 shall apply.”
2. What are grounds on which a bail already granted can be cancelled and the
accused remitted to jail? IC.L.C.-
2002]
What are the considerations which should be taken into account by court if
subsequently an application for cancellation for bail already granted to an
accused is filed before the court? [D. U.-
252 Criminal Law - II
powers of cancellation given to these higher courts are quite wide. Whether the offence
was bailable or non-bailable is immaterial, also whether the bail was granted by a police
officer or a court is immaterial. However, the power is to be used judicially having
regard to all the facts and circumstances of the case. A court of session cannot cancel a
bail which has already been granted by the High Court unless new circumstances arise
during the progress of trial after an accused person has been admitted to bail by the
High Court (Gurcharan Singh v State AIR 1978 SC 179). There is no absolute bar against an
informant (private person) to move for cancellation of bail under Sec. 439 (2).
In Public Prosecutor v George William (AIR 1951 Mad 1042), the respondent conspired
with other accused to cheat members of public by promising to give them two 5-Rs.
notes for one genuine 5-Rs. note. He was released on bail. Thereafter, the Public
Prosecutor filed a petition for the cancellation of bail on the ground that he has
misconducted himself and rendered himself liable to re-arrest, by abusing his release
on bail and by indulging in the same kind of offence during the bail period. The
contention of the appellant was that High Court’s power to cancel bail only applies
where the accused was let on bail by High Court before conviction, and not apply to
persons (who are convicted) granted bail during the pendency of the appeal from his
conviction, whatever the conduct of such person may be after granting of bail. The
court observed that it will be atrocious if the High Court granting bail during
pendency of appeal is not empowered to cancel bail if such person abuses the bail. In
fact, if such a person commits same offence during his release, the police can, without
the court’s permission, arrest him, as such a person by his conduct proves his “utter
unfitness” to be on bail.
The Madras High Court pointed out five cases where a person granted bail may
have die bail cancelled and be recommitted to jail:-
(i) the person on bail commits the very same offence for which he is being tried
or has been convicted, and thereby proves his utter unfitness to be on bail;
(ii) if he hampers the investigation and forcibly prevents the search of places
under his control for the corpus delicti or other incriminating things;
Bail 253
(v) if he commits acts of violence (in revenge) against the police and the
prosecution witnesses and those who have booked him or are trying to book
him.
Some other grounds mentioned by the Patna High Court in Surendra Singh v State of Bihar,
1990 Cr LJ 1904 (Pat) are:
(i) when the offence so committed by the accused has created serious law and
order problem in the society and accused has become a hazard on the
peaceful living of the people;
(ii) if the High Court finds that the lower court granting bail has exercised its
judicial power wrongly; and
The Delhi Administration filed an appeal in the High Court of Delhi for
cancellation of the respondent’s bail on the ground diat he attempted to
thwart the course of justice. The application
254 Criminal Law - II
having been dismissed by a single judge, the Delhi Administration filed this
appeal by special leave in the Supreme Court.
The Supreme Court said that rejection of bail when bail is applied for
is one thing; cancellation of bail already granted is quite another. It is easier
to reject a bail application in a non- bailable case than to cancel a bail granted
in such a case. Cancellation of bail necessarily involves the review of a
decision already made and can, by and large, be permitted only if by reason
of supervening circumstances, it would no longer be conducive to a fair trial
to allow the accused to retain his freedom during the trial.
The Apex Court thus allowed the appeal partly, setting aside the
judgment of the Delhi High Court.
LEADING CASE: PRAHLAD SINGH BHATI v NCT, DELHI
[(2001) 4 SCC 280]
In this case, it appeared from the facts of the case that even for an offence
punishable under Sec. 302, IPC, the respondent- accused was never arrested
and he manipulated the prevention of his arrest firsdy, by obtaining an order
in terms of Sec. 438 (anticipatory bail) and subsequendy by a regular bail
under Sec. 437 from a Magistrate. Under Sec. 437, a person may be released
on bail by a court other than the High Court and Sessions Court subject to
the condition that he does not reasonably appear to have been guilty of an
offence punishable with death or imprisonment for life. The High Court
passed an order that having considered the case no ground has been made
for cancellation of bail. The Supreme Court set aside the order of the High
Court as well as that of Magistrate.
The Apex Court held: Powers of the Magistrate while dealing with
the applications for grant of bail are regulated by the punishment for the
offence in which the bail is sought. In cases where the offence is punishable
with death or imprisonment for life which is triable exclusively by a Court of
Session, the Magistrate may, in his wisdom, refrain to exercise the powers of
granting the bail and refer the accused to approach the higher courts unless
he is fully satisfied that there is no reasonable ground for believing that the
accused has been guilty of an offence punishable with death or
imprisonment for life. In other words, where a Magistrate does not find that
there ware no reasonable grounds to believe that the accused had not
committed the offence punishable with death or imprisonment for life, he
shall be deemed to be having no jurisdiction to enlarge the accused on bail.
the change of the nature of the offence, the accused becomes disentided to
the liberty granted to him in relation to a nunor ° ence, if the offence is
altered for an aggravated crime. Instead of referring to the grounds which
entitled the respondent-accused t e grant of bail, the Magistrate adopted a
wrong approach to confer on him the benefit of liberty on allegedly finding
that no grounds were made for cancellation of bail.
In State through C.B.I. v Amarmani Tripathi, 2005 Cr. L.J. (SC), there were repeated attempts by
the accused to interfere and sidetrack the investigation and threaten the witnesses to
come out with a story that will deflect the suspicion from him and his wife to some
others. A senior police officer was also asked not to preserve the foetus of the
deceased. In refusing to do so, he was punished with transfer out of normal course. It
was held at the very fact that a senior police officer could be transferred shows the
amount of influence wielded by the accused.
Under these circumstances the bail order granted by the High Court on
formation of the opinion that the extra judicial confession made by one of the co-
accused may not stand the test of judicial mind was not
Bail 25 7
proper as the said fact by itself was not sufficient to grant bail. Moreover there is
voluminous evidence collected by C.B.I. to show involvement of the accused. The bail
granted to husband accused Amarmani Tripathi was thus liable to be cancelled. There
is no such material against wife but in fact there is reasonable apprehension that if her
husband is taken into custody, she may take over the task of tampering evidence and
manipulating/threatening witnesses. Thus bail granted to wife was also held liable to
be cancelled.
Anticipatory Bail
FURTHER QUESTIONS
Q.1 The basic rule is ‘Bail and not Jail’. What important considerations guide
the exercise of discretion by courts in matters of granting or refusing bail
in a non-bailable offence? [D.U.-2008/2009/2011] [C.L.C.-
93/94/96/98/2000; L.C.I-96;
L. C. 11-93/94/95]
Can a woman be given bail, when there are reasonable grounds for
believing that she has been guilty of an offence punishable with death or
life imprisonment? [C.L.C.-2001]
(Del)]. Gr
(viii) Protracted nature of the trial - The accused has a right to clak public prc speedy trial and if there is
unreasonable delay in the trial, suck in grantin. an accused may be released on bail rather
than be allowed to v Dattatrc languish in jail (vide Hussainara Khatoon case). However, delayed
trial per se is not a valid ground for grant of bail and it allj depends on the
circumstances of each case [Mohd Mian v Stati|
1993 CrLJ 2621 (All)].3 The t
In Rajesh Ranjan Yadav alias Pappu Yadav v C.B.I. Director, 2007 Cr.LJ. accus 3223 (SC) a ‘triple murder case’,
it was held that the fact that the appellant has been a member of Parliament and has already bee»
imprisoned for more than six years is irrelevant for grant of bail unde, every
Sec. 437, Cr.P.C. It was pointed out that the appellant used dilatory tactic with
to delay' the trial. Therefore, it is not a case for grant of bail, more se who
when not only investigation is over but even trial is partly over, and pe rsc
allegations made against appellants are serious. It was also held that w i Supr< it is true that one of the
considerations in deciding whether to grant bai
to an accused or not is whether he has been in jail for long time, the com tQ th
has also to take into consideration other facts and circumstances, such i the f
the interest of the society. Thus, grant of bail depends on facts am exert
circumstances of each case and it cannot be said that there is an; and (
absolute rule that because a long period of imprisonment had expired bai persc
(ix) Opportunity to the applicant for preparation of his defence and access to his counsel.
(x) Nature of the evidence in support of accusation/ nature and gravity of the circumstances in which the
offence is committed.
It has been held that collateral considerations such as the accused being poor, etc.
would not be considered \Jagdish Kumar v State, 1990 Cr. LJ 730 (Del)]. Granting bail to the
accused merely on the concession made by the public prosecutor would amount to non-
exercise of the judicial discretion in granting bail and was therefore held to be improper
and wrong [Rama v Dattatraya, 1981 Cr LJ 1065 (Bom)].
the point of view of what sentence on the facts of a particular case the court
should award, but only to see the maximum punishment which the court
may award. The court is not required to consider the probability of accused
being found guilty or not.
The respondent along with two others was prosecuted for conspiracy and
also under Secs. 3 and 5 of the Official Secrets Act, 1923. The respondent is a
former captain of Indian Army, the other two persons were employed in the
Ministry of Defence. The case against them was that they in conspiracy had
passed on official secrets to a foreign agency. The High Court took the view
that as the other two accused had been released on bail, the respondent
should also be so released, particularly as it appears that the trial was likely
to take a long time and the respondent was not likely to abscond (he being
well-connected). The question whether the case falls under Sec. 3 (non
bailable offence) or Sec. 5 (bailable offence) is arguable.
The Supreme Court observed that there is a basic error in the High
Court s order. Whenever an application for bail is made to a court, the first
question that it has to decide is whether the offence for which the accused is
being prosecuted is bailable or not. If it is arguable that the case falls under
bailable or non bailable offence, the High Court should have proceeded on
the assumption that the case falls under Sec. 3 (not bailable), but the High
Court thought that case falls under Sec. 5 (bailable). 4
4. X is arrested on the basis of certain facts which may constitute either a bailable or a
non-bailable offence. The Magistrate refuses to release him on bail holding that it
should be presumed in such situations that the offence allegedly committed was
non-bailable. Is the view expressed by the Magistrate valid?
[L.C.I-95]
264 Criminal Law II
Prima facie, therefore, a case has been found against the respondent
under Sec. 3 which is a non-bailable offence. Among other considerations
which a court has to take into account in deciding whether bail should be
granted in a non-bailable offence, is the nature of the offence and if the
offence is of a kind in which bail should not be granted considering its
seriousness, the court should refuse bail. The case against the respondent is
in relation to the military affairs of the Government and prima facie
therefore, the respondent if convicted would be liable up to 14 years
imprisonment. Considering the nature of the offence (conspiracy against
State), it seems that this is not a case where discretion, which vests in the
court under Sec. 439, should have been exercised in favour of the
respondent.
The case of the respondent is different from the case of other two
persons, as it is the respondent who is in touch with the foreign agency and
not the other two persons. The fact that the respondent may not abscond is
not by itself sufficient to induce the court to grant him bail in a case of this
nature. Further, as the respondent has been committed for trial to the Court
of Session, it is not likely now that the trial will take a long time. Held, the
bail cannot be granted.]
In view of the ‘serious’ nature of the offence, the accused should not be granted bail
(as the offence is punishable with death or life- imprisonment). However, first proviso
to Sec. 437 (1) provides that any person under the age of 16 years or any woman or
any sick or infirm person accused of such an offence (punishable with death or life-
impnsonment) may be released on bail. Such persons because of their physical
handicaps and/or immaturity, are not likely to interfere with the investigation or to
delay the trial by abscondence or interference. In the present case, G’s mother-in-law
and brother-in-law should be released on bail. However, G’s father-in-law may not be
released, unless he is quite infirm. It may be noted that, in recent times, the courts
have been exercising extreme caution in granting bail to accused involved in dowry
death case.
Bail 265
If a person is accused with the offences both of a bailable and non bailable nature, the
question of bail should be considered in relation to the gravest offence i.e. non-bailable
offence. Suppose a person kidnaps a minor girl for the purpose of procuration, and
wrongfully confines her at a certain place, then such a person would be guilty of
having committed three distinct offences - under Sec. 342, IPC (wrongful confinement,
a bailable offence), under Sec. 365, IPC (kidnapping with the intention of secretly and
wrongfully confining), and under Sec. 366-A, IPC (procuration of minor girl). In such
cases, the question of bail should be considered in relation to the gravest of the three i.e.
the last two offences which are non- bailable. The person accused of these offences may not
be granted bail.
I’he rationale behind it is that a person accused of a non-bailable offence, may in order to
claim bail, further commit a bailable offence.
Thus, in the present case, P may not be granted bail.
Q.2 What considerations or conditions are weighed by the courts while granting or
refusing bail in an anticipatory bail case?
[C.L.C.-94; L.C.11-94/95/96]
of the offence of which the person is accused. Neither the place of residence nor the
place of the apprehension of arrest give jurisdiction [Sjied Zafrul Hassan v State AIR 1986
Pat 194]. Anticipatory bail cannot usually be granted during the pendency of
investigation. Where a previous petition for such bail was dismissed, unless there is
substantial change in situation or discovery of new incriminating facts, anticipatory
bail should not be granted [NKSM Shahul Hameed' 1992 CrLJ 227 (Mad)].
Though Sec. 438 applies only to a non-bailable offence, it is not essential that the
offence must also be a cognizable one [Suresb Vasudeva v State, 1978 Cr LJ 677 (Del)].
Amendment of Sec. 438 (by 2005 Amendment): (1) Where any person has reason to believe
that he may be arrested on accusation of having committed a non-bailable offence, 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; and that court may, after
taking into consideration, inter alia, the following factors, namely: -
(i) the nature and gravity of the accusation;
(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;
(iii) the possibility of the applicant to flee form justice; and
(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant
of anticipatory bail:
Provided that, where the High Court or, the Court of Session, has not passed any
interim order under this sub-sec. or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in-charge of a police station to arest,
without warrant the applicant on the basis of the accusation apprehended in such
application.
(1-A) Where the court grants an interim order under sub-sec. (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of such order
to be served on the Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a
Bail 269
reasonable opportunity of being heard when the application shall be finally heard by
the court.
(1-B) 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, if on an
application made to it by the Public Prosecutor, the court considers such presence
necessary in the interest of justice.
Sec. 438 has been amended to provide for certain circumstances under which the
Court shall exercise its discretion for granting anticipatory bail; in case of an interim
bail, the Court is required to give notice to the Public Prosecutor/Superintendent of
Police and the question of bail would be re-examined in the light of the respective
contentions of the parties. Further, the presence of the person seeking anticipatory bail
has been made mandatory at the time of hearing of the application for the grant of
anticipatory bail subject to certain exceptions.
The amendment therefore defeats the purpose of the provision, doing away with
an important safeguard for the accused person in criminal law. It was with a view to
avoid the applicant’s physical presence that the provision for anticipatory bail was
made.
reasons for doing so. Still further, the direction can be issued only if the court is
satisfied that such a direction is -necessary in the interests of justice.
(ii) Under Sec. 438, the applicant must have reasonable grounds to believe
that he might be arrested for having committed a non-bailable offence.
The court which grants anticipatory bail must take care to specify the
offence or offences in respect of which alone the order will be effective. A
‘blanket order’ covering every eventuality, thus, should not be passed.
Moreover, such an order would cause serious interference with both the
right and the duty of the police in matter of investigation (<Gurbaksh Singh
v State). Thus, in the present case, the bail order is bad in law.
The nature and senouaness of the proposed charges, the conte*.
of the events likely to lead to the making of the charge.,
teasonable possibility of the applicant's presence not
„ the trial and “the large inte.ests of the public or the bta.e
JL* of the cons,deradons kept in nund b, dte court wWl
deciding an ap,'ic»tion for anticipatoty bad Thus, A »- b
bail in view of the fact that he was engaged tn anusocd
fedvrries; an anticipatory bad in such cases would encourage^
antisocial eluent, a, they would use it to influence o^.anti*
th. witnesses, o, may even abscond .» view of then Ilk*
conviction.
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Fair Trial:
Rights of Accused Person
Fair Trial 1
A person accused of any offence should not be punished unless he has been given
a ‘fair trial’ and his guilt has been proved in such trial. The requirements of a fair
trial relate to the character of the court (unbiased judge), the venue (atmosphere of
judicial calm), the mode of conducting the trial (fair prosecutor; no prejudices or
threats against the witnesses), rights of the accused in relation to defence and other
rights (Law Commission, 37th Report).
The fair conduct of a trial upholds the dignity of man in a free society which
diligently guards the rights, claims and privileges of its icitizens against any
encroachment upon them. Denial of a fair trial is as much injustice to the accused
as is to the victim and the society.
The fair trial for a criminal offence consists not only in technical observance
of the frame and forms of law, but also in recognition and just application of its
principles in substance, to find out the truth and prevent miscarriage of justice. In
fact, the primary object of criminal Iprocedure is to ensure a fair trial to every
person accused of any crime.
t. Describe briefly the principle features of a fair trial in the light of constitutional and
statutory provisions and the judicial decisions.
[D.U. -2008/2009/2011/2012]
[277]
278 Criminal Law II
2
(1) Adversary System of Trial
The system of criminal trial envisaged by the Cr. P.C. is the advernI system based on
the accusatorial method. In this system the prosecutoi representing the State accuses
the defendant (the accused person) of th commission of some crime; and the law
requires him to prove his cast beyond reasonable doubt. The law also provides fair
opportunity to th accused person to defend himself. Thus, in an adversary system,
both tl parties are allowed to plead their cases, put forward their arguments,
rebuttals, etc. with the help of evidence or counter evidence. The judge more or less,
is to work as an umpire between the two contestants.
Experience has shown that adversary system is by and largi dependable for
the proper reconciliation of public and private interest i.e. public interest in
punishing the criminals and private interest i preventing wrongful convictions. The
system of criminal trial assume that the State using its investigating resources and
employing compete! counsel will prosecute the accused who, in turn, will employ
equal! competent legal services to challenge the evidence of the prosecution
The above assumption has been found to be incorrect in or respect. Though
the adversary system envisages equal legal rights ar opportunities to the parties to
present their respective cases before tl court, such legal rights and opportunities in
practice operate unequal and harshly, affecting adversely the poor indigent accused
persons wl are unable to engage competent lawyers for their defence. The syste
therefore departs from its strict theoretical passive stance and confers the accused
not only a right to be defended by a lawyer of his choi but also confers on the indigent
accused person a right to get legal aid f his defence at State’s cost.
Further, apart from attempting to give legal aid to the indige accused
persons, the Code has suitably altered the notions of judj umpire. The judge is not to
remain passive as an umpire, but he has play a more positive and active role for
protecting the public interests well as the individual interests of the accused person.
For instance, 1
2. Adversary system of criminal trial is by and large dependable for the pro
reconciliation of public and private interests as envisaged in the Cr. P.C., 19
Discuss with reference to the legal provisions. [L.C.b
Fair Trial: Rights of Accused Person 279
charge against the accused is to be framed not by the prosecution but by the court after
considering the circumstances of case (Sec. 228), the prosecutor cannot withdraw the
case without the consent of court (Sec 321), the court can examine the accused at any
time to get explanations from him (Sec. 331).
Though the notion of adversary system of trial has undergone some
transformation by legislative prescriptions and judicial gloss, it can still be reasonably
considered as an essentially important component of the concept of ‘fair trial.’
Sec. 479 also clarifies that a Judge/ Magistrate cannot be deemed to 1 be a party to,
or personally interested in any case merely (a) because he 1 is concerned therein in a
public capacity, or (b) because he has viewed 1 the place where the offence is alleged to
have been committed (or any j other material place), and has made an inquiry in
connection with the case j \Explanatiori\.
The expression ‘personal interest’ includes private as well as official interest.
Further, interest must be active, not passive. A mere formal grant of sanction which is
necessary only for the purpose of fulfilling a technical statutory requirement may not
amount to ‘personal interest’; the sanction is often given or refused for considerations
extraneous to the merits of the case [Rameshwar Bhartia AIR 1952 SC 405]. If the interest
consists of a direction to initiate criminal proceedings, the bar under Sec. 479 operates
since the interest taken is active and is concerned with the merits of the case.
Pecuniary interest even to a small extent (e.g. a share in a joint stock company) is a
sufficient disqualification [Shamdasani (1929) 31 Bom LR 925]. The provisions of Sec. 479
are not applicable to summary proceedings taken for punishing a contempt of court.
proceedings in court. This power can be exercised only if the accused person xs
represented by a lawyer. The court is also required to record s reasons for such order.
However, at any subsequent stage of the proceedings, the court can call for the
personal attendance of the accused.
), the court observed that : m cases which are technical in nature, which do not involve
thesentenceisoniy
, *
A rule. The courts should insist upon the appearance of the accused y when it is in his
interest to appear or when the court feels that his presence in necessary for effective
disposal of case. When the accused are women abourers, wage-eamers and other bus y
men, courts should as a general rule grant exemption from personal attendance. Courts
should see that undue harassment is not caused to the accused appearing before
(c) Evidence to be taken in presence of accused - According to Sec. 273, except as otherwise
expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his pleader.
Ttus section makes it obligatory that evidence for the prosecution and efence should be
taken in the accused’s presence. The personal presence of the accused throughout his
trial would enable him to understand properly the prosecution case as it unfolded in
the court. A trial is vitiated by failure to examine the witnesses in the presence of the
accused fB. ing)v tate, 1990 CrLJ 397 (On)]. Mere cross-examination in the presence
o accused is not sufficient [Bigan Singh (1927) 2 Pat 691],
The rule laid down in Sec. 273 is not applicable when the accused by his own
conduct makes recording of evidence in his presence an impossibility. Otherwise an
accused may put an end to trial at his choice [Talab Haj, Hussain AIR 1958 SC 376], An
obstreperous accused, who renders a fair tnal impossible by misbehaviour, can be
expelled from the courtroom. However, he can reclaim his right to be present at the tnal
on his expression of bona fide willingness to behave properly.
When the personal appearance of the accused is dispensed for the evidence can be
recorded in the presence of his pleader. Thus, Sec. 273
284 Criminal Law - II
Sec. 309 (1) gives direction to the courts with a view to have speedy trials and quick
disposals: “In every inquiry or trial the proceedings shall be held as expeditiously as
possible, and in particular, when the examination of witnesses has once begun, the
same shall be continued from day to day until all the witnesses in attendance have been
examined”. The right of the accused in this context has been recognised but the real
problem is how to make it a reality in actual practice.
In Hussainara Khatoon (IV) v State of Bibar (1980) 1 SCC 96, the Supreme Court
considered the problem in all its seriousness and declared that speedy trial is an
essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Art. 21 and
that it is the constitutional obligation of the State to device such a procedure as would
ensure speedy trial to the accused. The court observed:
“The State cannot avoid its constitutional obligation to provide speedy trial to
the accused by pleading financial or administrative inability. The State is under a
constitutional mandate to ensure speedy trial. It is also the constitutional obligation of
this court, as the guardian of the fundamental rights of the people, to enforce the
fundamental rights of the accused to speedy trial by issuing necessary directions to the
State which may include taking positive action, such as augmenting and strengthening
the investigative machinery, setting up new courts, providing more staff and
equipment to the courts, appointment of additional judges, and other measures
calculated to ensure speedy trial.”
2008 Amendment It prevents trials in ‘rape’ cases including child rape cases, from being
unduly delayed by providing that the inquiry or trial in such cases shall, as far as
possible, be completed within a period of two months from the date of commencement
of the examination of witnesses. Also it specifies the circumstances where adjournment
shall not be granted by the Court.
In Sec. 309(1) of the principal Act, the following proviso shall be inserted, namely:-
“Provided that when the inquiry or trial relates to an offence under Sec. 376 to 376-D of
the Indian Penal Code, the inquiry or trial shall, as far as possible, be completed within
a period of two months from the date of commencement of the examination of
witnesses.”
1-94/96]
286 Criminal Law - II
In Sec. 309(2), after the third proviso and before Explanation 1, the following
proviso shall be inserted, namely: “Provided also that -
TO iflfioBBBBDfc tt xhe truest of a ?arty,
except -wVveie 'Cae cacvxmstatvcfcs ate. \jeyotA cotvVtA ol that party;
(b) the fact that the pleader of a party is engaged in another Court, shall
not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not
present or the party or his pleader though present in Court, is not
ready to examine or cross-ex?mine the witness, the Court may, if thinks
fit, record the statement of the witness and pass such orders as it thinks
fit dispensing with the examination-in-chief or cross-examination of
the witness, as the case may be.”
(i) Right against 'double jeopardy’ - According to Art. 20 (2) of the Constitution and Sec.
300 of the Code, if a person is tried and acquitted or convicted of an offence
he cannot be tried again for the same offence or on the same facts for any
other offence. When once a person has been convicted or acquitted for any
offence by a competent court, any subsequent trial for the same offence
would certainly put him in jeopardy and in any case would cause him
unjust harassment. Such a trial can be considered anything but fair.
(j) Right to have reasoned decisions — It is a basic requirement of every trial is that the
court is to notice, consider and discuss however briefly the evidence of
various witnesses as well as arguments addressed at the bar [Mukhtir Singh v
State of Punjab (1995) 1 SCC 760].
mind, to refer such a person for appropriate medical treatment in accordance with Sec.
330.
If the accused is aggrieved by the information given by the psychiatrist or clinical
psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the
Medical Board which shall consist of- head of psychiatry unit in the nearest
Government hospital; and a faculty member in psychiatry in the nearest medical
college.
If the Magistrate is informed that the person is of unsound mind, the Magistrate
shall further determine whether the unsoundness of mind renders the accused
incapable of entering defence and if the accused is found so incapable, the Magistrate
shall record a finding to that effect, and shall examine the record of evidence produced
by the prosecution and after hearing the advocate of the accused but without
questioning the accused, if he finds that no prima facie case is made out against the
accused, he shall, instead of postponing the enquiry, discharge the accused and deal
with him in the manner provided under Sec. 330.
Provided that if the Magistrate finds a prima facie case is made out against the
accused in respect of whom a finding of unsoundness of mind is arrived at, he shall
postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical
psychologist, is required for the treatment of the accused, and order the accused to be
dealt with as provided under Sec. 330.
(a)
jf °“the b3S1S °f medical °P™ or opinion of a specialist,
the Magistrate or Court, as the case may be, decide to order
discharge of the accused, as provided under Sec. 328 or
ec. 329, such release may be ordered, if sufficient security
is given that the accused shall be prevented from doing
injury to himself or to any other person;
if the Magnate °r Court, as the case may be, is of opinion
(b) at discharge of the accused cannot be ordered, the transfer
of the accused to a residential facility for persons of unsound
trund or mental retardation may be ordered wherein the
accused may be provided care and approbate education
and training.
D. U.-2009]
Fair Trial: Rights of Accused Person 289
Prosecutor to withdraw from the prosecution of any person either generally or in respect
of any one or more of the offences for which he is tried. Such withdrawal may be done
with the consent of the court at any time before the judgment is pronounced. If
withdrawal takes place before the charges are framed, the accused can only be discharged,
but the accused would be entided to acquittal, if the prosecution is withdrawn after the
framing of the charge or when under this Code no charge is required.
The previous approval of the Central Government is also required for such
withdrawal (unless the Prosecutor has been appointed by the Central Government), if
the offence (i) was against any law relating to a matter to which the executive power of
the Union extends, or (ii) was investigated by the Delhi Special Police, or (iii) involved
the misappropriation, destruction, etc. of any Central Government property, or (iv) was
committed by a Central Government employee while on official duty [Proviso, Sec. 321].
It shall be the duty of Public Prosecutor to inform the court and it shall be duty
of court to apprise itself of reasons which prompt the Prosecutor to withdraw from the
prosecution [Ra/inder K. Jain v State AIR 1980 SC 1510]. Sec. 321 does not indicate the
reasons which should weigh with the Prosecutor to move the court nor the grounds on
which the court will grant or refuse permission; but the essential consideration which is
implicit in the grant of the power is that it should be in the interest of administration of
justice. The considerations weighing with the prosecuting authority may be either that
it will not be able to produce sufficient evidence to sustain the charge or subsequent
information before it will falsify the prosecution evidence or other similar
circumstances [M.N.S. Nair v P. Balakrishnan AIR 1972 SC 496], An order granting
permission to withdraw the prosecution solely on the ground that the accused was not
available was held to be unsustainable [State v Mohd. Ismail, 1981 CrLJ 1533 (Ker)].
The power of withdrawal is not meant to be used in ordinary criminal cases with
a focus on the interests of the individual involved. The sole consideration for public
prosecutor in such a case is the larger factor of administration of justice, not political
favour nor party pressure nor like concern [Balwant Singh v State of Bihar AIR 1977 SC 2265].
290 Criminal Law - II
There have been instances where the court refused consent as withdrawal might have
affected public confidence in the criminal justice system.
A reasoned order need not be give by the Magistrate while gating or refusing
permission to withdraw [J.N. Pasmn v State of Bihar hIR 1983 SC 1941 Sec. 321 is not
applicable to security proceedings. iere a court is not competent to frame charge in an
offence, it shall not be competent to permit withdrawing from prosecution. It is not
unconstitutional under the section to withdraw a prosecution and make the accused a
witness.
In this case, the film star Rajkumar was abducted by Veerappan and his
associates; consequent thereupon, the Government had yielded to the
demands of Veerappan and had issued notifications that it would withdraw
all cases against Veerappan and his associates. The public prosecutor sought
withdrawal from prosecution the charges under TADA in order to restore
normalcy in the border area and among the peop e living in such area and to
maintain peace among the public m general and inhabitants of a particular
village and also on the ground that such withdrawal from prosecution was
necessary in the larger interest of the State and in order to avoid any
unpleasant situation in the border area. The application did not state why
the public prosecutor apprehended a disturbance of the peace and normalcy
of the “border area” or “the particular vdlage , nor was any material in this
behalf or summary thereof, set out.
The petition for withdrawal of cases, however, was allowed by the
designated Court, Mysore. Aggrieved by the decision of the court, the
appellant Abdul Karim, father of a police officer who had allegedly been
-killed by Veerappan in an encounter, moved the Apex Court for cancellation
of the order of the withdrawal on the ground that the State Government of
Karnataka had yielded to the illegal demands of Veerappan and no cogent
reasons have been given for the decision to drop the TADA and
other cases.
Fair Trial: Rights of Accused Person 291
(8) Fair Trial and Power of Supreme Court to Transfer Cases/ Appeals
If the Supreme Court considers it expedient for the ends of justice to do so, it may
direct that any particular case or appeal be transferred (i) from one High Court to
another High Court, or (ii) from a criminal court subordinate to one High Court to
another criminal court (of equal or superior jurisdiction) subordinate to another High
Court [Sec. 406(1)].
The Supreme Court may act under this section only on the application of the
Attorney-General of India or of an interested party. Every such application shall be
made in the form of a motion supported by affidavit or affirmation except when the
applicant is the Attorney-General of India or the Advocate-General of a State [Sec.
406(2)]. Where a transfer application has been dismissed, and it is found to be
frivolous or vexatious, the Supreme Court may order the applicant to pay appropriate
compensation (not exceeding Rs. 1,000) to any person opposing the transfer
application [Sec. 406(3)].
The words “party interested” would normally include the complainant, the
Public Prosecutor, and the accused and may even cover a person lodging the F.I.R.
Assurance of fair trial is the first imperative of the dispensation of justice. Under this
section, the Supreme Court will transfer a case if there is a reasonable apprehension on
the part of a party to a case that justice will not be done [G.D. Chadda v State of Rajasthan AIR
1966 SC 1418]. The central criterion for directing a transfer is not the hypersensitivity
or relative convenience of a party. Something more substantial, more compelling,
more imperiling from the point of view of public justice is necessary for directing a
transfer. The complainant had a right to choose the forum and the accused could not
dictate where the case should be tried [Maneka Sanjay Gandhi v Rani Jethmalani AIR 1979 SC
468].
For instance, if in a certain court the whole Bar for any reason refuses to defend
an accused person, of if there are persistent turbulent conditions putting the life of the
complainant or the accused in danger or creating chaos inside the court hall, or if there
is general atmosphere of tension vitiating the necessary neutrality to hold a detached
judicial trial, a transfer of the case would be justified [Maneka Gandhi’s case,
Fair Trial: Rights of Accused Person 293
above]. Transfer may be ordered on the ground of poverty of the petitioner [Inder Singh
AIR 1979 SC 1720].
Vague apprehension that the accused might transfer the witnesses of the
prosecution was not sufficient to oppose the transfer [A.KK. Nambiar AIR 1973 SC 203].
Where a Magistrate in whose court the case of which transfer is sought is pending
makes an affidavit strongly opposing the transfer, it is a fit case for transfer. Because, in
such a case, all essential attributes of a fair and impartial trial, are put in 'jeopardy
\Kaushalaya Devi v Mool Raj (1964) 1 CrLJ 233 (SC)].
The plea that petitions relating to change of place of trial are pending is not
tenable and the application for direction and modifications of the judgment
and order is in essence and substance a review which is not permissible.
When there is no apparent error on record, review of judgment/order is not
permissible only because it is not to the liking of the party. The fact that
there is no formal application seeking transfer of case is immaterial. Transfer
of case can be ordered as incidental or ancillary relief to main relief.]
FURTHER QUESTIONS
Q.1 A person once convicted or acquitted cannot be tried again for the same
offence again. Elucidate. [C.L.C.-2002]
A, had caused, and was CONVICTED of grievous hurt (to his wife) and
was sentenced to undergo imprisonment on that count. While he was
serving his sentence, the wife died of her wounds. Can the erring
husband, undergoing imprisonment be prosecuted for culpable
homicide on the same facts? Discuss. Will your answer be different, if A
had been ACQUITTED of grievous hurt at the first trial?
[D.U.-2008] [C.L.C.-91/92/93/94/96]
Discuss the rule of 'Double Jeopardy' as placed in Sec. 300, Cr.P.C.,
1973. [D.U.-2011]
Sec. 300 lays down the rule that a person once convicted or acquitted by a court of
competent jurisdiction cannot be tried again for the same offence on the same facts
while the conviction or acquittal is in force. This principle is based on the maxim nemo
debt bis vexari which means ‘a man shall not be twice vexed for one and the same cause.’
When the accused appears or is brought before the court, for trial of offence, he can
raise the plea that he was earlier tried for the same offence and was convicted or
acquitted of the same and that according to the principle of autrefois convict or autrefois acquit
he cannot be tried again.
The law permits the accused by serving his sentence, if any or by undergoing the
ordeal of a trial for the same offence on a previous occasion, to wipe the state clean and
start again, and this he cannot do, if he were perpetually liable to further prosecution
for the same offence based on same facts. Art. 20 (2) of the Constitution recognizes the
principle as a fundamental right: “No person shall be prosecuted and punished for the
same offence more than once.”
An analysis of Sec. 300 will bring out the following points:
(1) The basic rule is that ‘a person who has once been tried by a court of
competent jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in force, not to be
liable to be tried again for the same offence’ [Sec. 300 (1J\.
The word ‘tried’ means that the proceedings have commenced in the court i.e. the court
has taken cognizance of the offence. The word ‘tried’
therefore does not necessarily implies a decision on merits. The compounding of an
offence under Sec. 320, or a withdrawal from the prosecution by the Public Prosecutor
under Sec. 321, would result in an acquittal of the accused even though the accused is
not tried on merits. Such an acquittal would bar the trial of the accused on the same
facts on a subsequent complaint [Haveli Ram v Muttic. Corpn., Delhi (1966) 1 Cr LJ 162],
The dismissal of a complaint, or discharge of the accused is not an acquittal for
the purposes of this section {Explanation to Sec. 300). The reason is the dismissal of a
complaint or discharge of the accused is not considered as the final decisions
regarding the innocence of the. accused person. Further, a wrong or erroneous order
of acquittal will not bar a subsequent trial, for there has been a material irregularity.
The crucial requirement for attacking the basic rule [sub-sec. (1)] is that the
offences are the same i.e. they should be identical. It is therefore necessary to analyse
and compare not the allegations in the two complaints but the ingredients of the two
offences and see whether their identity is made out. Where the legislature provides
that on the same facts proceedings could be taken under two different sections, it is
obviously intended to treat the two sections as distinct. In such a case, Sec. 300 cannot
apply (Stats of Bihar v Murad AH Khan 1989 Cr LJ 1005).
(2) Even though the offence in the second trial is not “the same offence”, still
the second trial will be barred if it is based on the same facts for any other
offence for which a different charge from the one made against him might
have been made under Sec. 221 [Sec. 300(1)].
Illustration (a): A is tried upon a charge of theft as servant and acquitted. He cannot
afterwards, while the acquittal remains in force, be charged with theft as a servant, or
upon the same fact, with theft simply, or with criminal breach of trust.
Illustration (c): A is charged before the court of session and convicted of the culpable
homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(3) Sec. 300 (2) states that where the second trial is for a distinct offence for which a
separate charge might have been made at
Fair Trial: Rights of Accused Person 299
the first trial, the trial is not barred. However, in such cases, consent of the
State Government is necessary before a new or fresh prosecution is to be
launched.
(4) A person convicted of any offence constituted by any act causing
consequences which together with such act, constituted a different offence from
that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened, or were not
known to the court to have happened, at the time when he was convicted
[Sec. 300 (3)]. Thus, the facts or circumstances must be such as to indicate a
different kind of offence of which there was no conviction at first trial.
It may be noted that Sec. 300 (3) is applicable in cases where there is “a person convicted
of any offence” and not where “a person convicted or acquitted of any offence”.
Illustration (b): A is tried for causing grievous hurt and convicted. The person injured
afterwards dies. A may be tried again for culpable homicide.
(5) According to Sec. 300 (4), the trial court in the first trial must be competent in its
jurisdiction, otherwise there will be no bar to second trial, as is the case in
illustrations (below).
If the court was not so competent it is irrelevant that it would have been competent to
try other cases of the same class or indeed the case against the particular accused in
different circumstances. Thus, where the conviction of a person and the sentence
passed on him are set aside on the ground of want of proper sanction it cannot be said
that there was a proper trial at all and the outcome of the decision cannot operate
under Sec. 300 as a bar to a fresh trial after receipt of a fresh sanction.
Illustration (e): A is charged by a magistrate of the second class with, and convicted by him
of, theft of property from B. A may subsequendy be charged with, and tried for,
robbery on the same facts.
Illustration (f): A, B and C are charged by a magistrate of first class with, and convicted by
him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity
on the same facts.
300 Criminal Law - II
A plea bargain is an agreement between the defence and the prosecutor in which a defendant pleads guilty
or no contest to criminal charges. In exchange, the prosecutor drops some charges, reduces a charge or
recommends that the judge enter a specific sentence that is acceptable to the defence. As criminal courts
become ever more crowded, prosecutors andjudges feel increased pressure to move cases quickly through
the system. Trials can take days, weeks or sometimes months while quality pleas can often be arranged in
minutes. Also, the outcome of any given trial is usually unpredictable- but a plea bargain provides both
prosecution and defence with some control over the result. Further, majority of the criminal cases
ultimately end in acquittal.
For these reasons and others, and despite its many critics, plea bargaining is being practiced in many
countries. Driven by these factors now there is an increasing demand to adopt this practice in Indian legal
system as well.
Plea bargaining is a radical concept where an accused can plead guilty and give compensation to the
victim for a milder punishment. There are cases where accused would any day prefer to get convicted and
then be released on probation. This would help the convict later also when the case goes in appeal to the
High Court.
For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain
may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the
prospects of a guilty verdict at trial.
[301]
302 Criminal Law II
It provides for pre-trial negotiations, during which an accused may plead guilty in
exchange for certain concessions by the prosecution. In other words, under plea
bargaining, an accused in a criminal case can plead guilty, pay compensation if
required in exchange for a reduced sentence.
In the US, it accounts for 95 per cent of felony convictions; in fact, it has come to
dominate the judicial system with less than 10 per cent of cases actually coming before
a jury for trial. In the US, the accused pleads guilty for some concessions from the
prosecution, primarily a reduced sentence. Other than the US, it is also used in
England, Wales and Australia, where it is permitted to the limited extent of allowing
the accused to plead guilty to some charges in return, for which the prosecutor will
drop the remaining charges. But there is no bargaining over penalty, which is to be
decided by the courts (as in India).
Then there are a host of countries, including India which allow plea bargaining
only in certain cases, typically those involving lesser crimes. For instance, plea
bargaining was introduced in Pakistan by the National Accountability Ordinance in
1999. Under this anti-corruption law, the accused accepts his guilt and offers to return
the proceeds of corruption as determined by the investigators. If the plea is accepted
by the court, the accused stands convicted, but will not be sentenced. The accused is
also disqualified from taking part in elections, holding public office, obtaining any
bank loan and is dismissed from service if he is a government official.
The Law Commission of India in its 142nd Report (1991), suggested to
introduce “plea-bargaining” as is in vogue in many states in the U.S. The Law
Commission in its report on Concessional Treatment of Offenders who on their own initiative
choose to plead guilty, without any bargaining, considered the question of
introduction of the concept of concessional treatment for those who choose to plead
guilty by way of plea bargaining.
Further Justice Malimath Committee on Criminal Justice Reforms also
welcomed the recommendation of Law Commission. It favored concessional
treatment of offenders who, on their own volition, plead guilty and has suggested
comprehensive changes to the 140-year-old Indian Penal Code (IPC). Based on the
Law Commission Report and Malimath Committee Report, legislature introduced the
Criminal Law (Amendment) Bill, 2003, -inHpr which a new chapter XXIA named as
‘Plea Bargaining’ (containing Sections 265A to 265L) has been inserted in the Code of
Criminal Procedure.1
(3) Such offences i.e. socio-economic offences have been determined by the Central
Government, by S O. 1042(E), dated 11°’ July, 2006. These are:
(4) Dowry Prohibition Act, 1961.
265B. Application for plea bargaining- (1) A person accused of an offence may file application
for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under the sub-section (1) shall contain a brief description of
the case relating to which the application is filed including the offence to
which the case relates and shall be accompanied by an affidavit sworn by
the accused stating therein that he has voluntarily preferred, after
understanding the nature and extent of pumshuient provided under the law
for the offence, the plea bargaining in his case and that he has not previously
been convicted by a Court in a case in which he had been charged with the
same offence.
After receiving the application under sub-section (1), the Court shall issue
notice to the Public Prosecutor or the complainant of the case, as the case
may be, and to the accused to appear on the date fixed for the case
When the Public Prosecutor or the complainant of the case, as the case may
be, and the accused appear on the date fixed under sub-section (3), the Court
shall examine the accused in camera, where the other party in the case shall not
be present, to satisfy
(contd.)
Offences relating to animals in Schedule I/ll, etc. under Wildlife Protection Act,
1972.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
(x ) Offences mentioned in Protection of Civil Rights Act, 1955.
(xi) Offences listed in Secs. 23-28 of the Juvenile Justice (Care and Protection of
Children) Act, 2000.
(xii)
Army Act, 1950.
(xiv) Air Force Act, 1950.
(xv) Navy Act, 1957.
(xvi) Offences specified in Secs. 59-81 and 83 of the Delhi Metro Railway (Operation
and Maintenance) Act, 2002.
(xvii) Explosives Act, 1884.
(xviii) Offences specified in Secs. 11-18 of the Cable Television'Networks (Regulation)
Act, 1995.
(xix) Cinematograph Act, 1952.
Plea Bargaining 305
itself that the accused has filed the application voluntarily and where-
(a) the Court is satisfied that the application has been filed by the accused
voluntarily, it shall provide time to the Public Prosecutor or the
complainant of the case, as the case may be, and the accused to work
out a mutually satisfactory disposition of the case which may include
giving to the victim by the accused the compensation and other
expenses during the case and thereafter fix the date for further hearing
of the case;
(b) the Court finds that the application has been filed involuntarily
by the accused or he has previously been convicted by a
Court in a case in which he had been charged with the same
offence, it shall proceed further in accordance with the
provisions of this Code from the stage such application has
been filed under sub-section (1).
(a) in a case instituted on a police report, the Court shall issue notice
to the Public Prosecutor, the police officer who has investigated
the case, the accused and the victim of the case to participate
in the meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such
process of working out a satisfactory disposition
306 Criminal Law II
(d) in case after hearing the parties under clause (b), the Court finds
that the offence committed by the accused is not covered under
clause (b) or clause (c), then, it may sentence the accused to one-
fourth of the punishment provided or extendable, as the case
may be, for such offence.
265F. Judgment of the Court- The Court shall deliver its judgment in terms
of Section 265E in the open Court and the same shall be signed by the
presiding officer of the Court.
265G. Finality of the judgment- The judgment delivered by the Court under
Section 265G shall be final and no appeal (except the special leave
petition under Article 136 and writ petition under Articles 226 and 227
of the Constitution) shall lie in any Court against such judgment.
265H. Power of the Court in plea bargaining- A Court shall have, for the
purposes of discharging its functions under this Chapter, all the powers
vested in respect of bail, trial of offences and other matters relating to
the disposal of a case in such Court under this Code.
2651. Period of detention undergone by the accused to set off against the sentence
of imprisonment- The provisions of Section 428 shall apply, for setting off
the period of detention undergone by the accused against the sentence
of imprisonment imposed under this Chapter, in the same manner as
they apply in respect of the imprisonment under other provisions of this
Code.
265J. Savings — The provisions of this Chapter shall have effect
notwithstanding anything inconsistent therewith contained in any other
provisions of this Code and nothing in such other provisions shall be
construed to constrain the meaning of any provision of this Chapter.
Explanation- For the purposes of this Chapter, the expression “Public
Prosecutor” has the meaning assigned to it under clause (u) of Section
2 and includes an Assistant Public Prosecutor appointed under Section
2j.
265K. Statements of accused not to be used- Notwithstanding anything contained
in any law for the time being in force, the statements or facts stated by
an accused in an application for plea bargaining filed under Section 265B
shall not be used for any other purpose except for the purpose of this
308 Criminal Law II
Chapter.265L. Non-application of the Chapter- Nothing in this Chapter shall apply to any
juvenile or child as defined in clause (k) of Section 2 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (56 of 2000).”
Plea Bargaining
Plea bargains can be broadly classified into two types: A charge bargain where the
accused is allowed to plead guilty to a lesser charge, and a sentence bargain where an
accused can bargain for a lesser sentence (for the stated charge rather than a reduced
charge). Both can be granted only with the trial judge’s approval. For example, in
return for dismissing charges for first-degree murder, a prosecutor may accept a
“guilty” plea for manslaughter (subject to court approval). In most cases, a plea
bargain is used to reduce jail sentence time or fines associated to the crime being
charged with.
Fact bargain is the least used negotiation which involves an admission to certain
facts (stipulating to the truth and existence of provable facts, thereby eliminating the
need for the prosecutor to have to prove them) in return for an agreement not to
introduce certain other incriminating facts into evidence. In a plea bargain, the
defendant might also agree in some cases to provide testimony against another person
in exchange for some agreement from the prosecutor as to the punishment.
Implementation of plea bargaining is expected to benefit the huge number of
under trials languishing in jails as well as cut down on the backlog of cases which has
reached unmanageable proportions. Since plea bargaining would not impact cases
where the punishment exceeds seven years, serious offenders would be outside the
purview of the system. Certain categories of crimes such as crime against women and
children, and crimes such as crime against SCs and STs are also excluded.
3 The Indian Penal Code (IPC) presc ribes punishment for nearly 400 offences, of which
245 can be settled through plea-bargaining. These include crimes like: Causing death by
rash or negligent act; Rash driving; Defamation; Destruction of evidence; Giving false
evidence; Harbouring a criminal; Rioting: Bribery; Forgery; Criminal intimidation;
Misappropriation; Cheating; Impersonation; Criminal trespass; Causing hurt; Assault,
assaulting persons of lawful authority; Being a member of unlawful assembly; etc.
This is how plea bargaining will function in India: 4
(a) The accused will have to file an application for plea bargaining any
time before the commencement of the trial.
(b) The court will consider the application only if it is accompanied by
an affidavit stating that the accused had “voluntarily” opted for plea
bargaining and that he had not previously been convicted on the
same charge.
(c) After notice to the prosecutor or complainant, the court will examine
the accused in camera to satisfy itself that the accused has filed the
application voluntarily. The court shall ensure that neither the public
prosecutor nor police is present at the time of making the
preliminary examination of the accused.
(d) If the court is satisfied that the application is indeed voluntary, it
shall provide time to the parties concerned to work out a
mutually satisfactory disposition which may include compensation to the
victim from the accused.
(e) The court will have to ensure that the process of working out a
satisfactory disposition is also voluntary and allow the accused himself
to participate in it.
(f) If a satisfactory disposition has been worked out, the court will
prepare a report which will have to be signed by the judge and all the
parties concerned.
(g) While disposing of the case in open court, the court will direct the
accused to pay the agreed compensation to the victim and hear the
parties on the quantum of punishment to the accused.43
(h) Since the accused is a first-time offender, the court will have the option
of imposing a suspended sentence and releasing the accused on
probation despite his conviction.
(i) Alternatively, it may sentence the accused to half the minimum
punishment prescribed for the offence in question. If the offence
committed does not fall within the scope of the above, then the
accused may be sentenced to one-fourth of the punishment provided for
such offence.
® If the Court finds that the application has been made under undue duress
or pressure, or that the applicant after realizing the consequences is
not prepared to proceed with the application, the Court may reject the
application. Such an application may be rejected either at the initial
stage or after hearing the public prosecutor and the aggrieved party. If
the Court finds that, having regard to the gravity of the offence or any
other circumstances which may be brought to its notice by the public
prosecutor or the aggreived party, the case is not a fit one for exercise
of its power of plea bargaining, it may reject the application supported
by reasons therefor.
(k) The judgment based on plea bargaining shall be final and there will be no
statutory right of appeal against it (except the special leave petition
under Article 136 and writ petition under Articles 226 and 227 of the
Constitution).
(1) Facts stated by an accused in an application for plea-bargaining shall
not be used against him for any other purpose other than for plea
bargaining.
(m) The benefit under Sec. 428, Cr. P.C. of setting off the period of detention
undergone by the accused against the sentence of imprisonment is
permissible in plea bargained settlements as well.
The extent of involvement of the judge in the plea bargaining process is debatable
because excessive intervention could compromise his position as a neutral arbiter
while no intervention could lead to an unjust result. The role of the judge under plea-
bargaining in the US is relatively insignificant and is limited to the observance of
constitutional procedures.
Plea Bargaining 311
The Prosecuting agency has a leading role in the process in that it has the discretion to
reduce or dismiss some of the charges against the accused and also to make
recommendations to the Court about the sentences in exchange for a guilty plea.
In India, the court’s role is supervisory. It has to make sure that that defendant
who is pleading guilty- or pleading no contest is doing so in an intelligent, voluntary
manner, so that he knows exactly what he’s doing. The court can either accept or reject
any plea bargain. Also, the Code gives the judge limited freedom in awarding
compensation to the victim as the compensation is to be in accordance with the
disposition. The process of plea bargaining can be set in motion suo motu by the court to
ascertain the willingness of the accused and on ascertainment of the willingness of the
accused, the court shall require him to make an application accordingly.
It may be a matter of considerable difficulty for defending counsel to decide
whether to advise his client to agree to this course. If he thinks he has a good chance of
getting him off altogether (as on a defence of accident or self-defence), he may fight the
case. If the defendant had a bad record, or the facts are black against him, counsel may
think it wiser to attempt the compromise.
Moreover, plea bargaining is not as simple as it may first appear. In effectively
negotiating a criminal plea arrangement, the attorney must have the technical
knowledge of every “element” of a crime or charge, an understanding of the actual or
potential evidence that exists or could be developed, a technical knowledge of “lesser
included offences” versus separate counts or crimes, and a reasonable understanding of
sentencing guidelines.
The validity of a plea bargain is dependent upon three essential components:
(1) a knowing waiver of rights;
(2) a voluntary waiver; and
(3) a factual basis to support the charges to which the defendant is pleading
guilty'.
One important point is a prosecuting attorney has no authority to force a court to accept
a plea agreement entered into by the parties. Prosecutors may only “recommend” to the
court the acceptance of a plea arrangement. It may be noted that the judge does not
participate in plea bargain; prosecutors
312 Criminal Law - II
have discretion whether to offer a plea bargain. The court will usually take proofs to
ensure that the above three components are satisfied and will then generally accept the
recommendation of the prosecution; Even if a defendant agrees to plead guilty, a judge
may decline to accept the guilty plea and plea agreement if the charge or charges have
no factual basis.
When a court accepts a plea agreement, the guilty plea operates as a conviction,
and the defendant cannot be re- tried on the same offence. If the defendant breaches a
plea agreement, the prosecution may re-prosecute the defendant. If the government
breaches a plea agreement, the defendant may seek to withdraw the guilty plea, ask
the court to enforce die agreement, or ask the court for a favourable modification in the
sentence.
(3) It will help the accused who have to remain as undertrial prisoners awaiting
the trial for years to obtain speedy trial with attendant benefits such as-
(d) being able to know his fate and to start off fresh life without fear of
having to undergo a possible prison sentence at a future date
disrupting his life or career;
(e) saving avoidable visits to lawyer’s office and to court on every date or
adjournment.
(4) It will, without detriment to public interest, reduce the backbreaking burden
of the court cases which have already assumed menacing proportions.
Further, it will reduce congestion in jails.
(5) Under the present system, 75% to 90% of the criminal cases if not more,
result in acquittals.
Rejecting the argument that the scheme would not be successful in India due to
illiteracy, which is comparatively much higher than in the US and thus people would
not adequately understand the consequences of pleading guilty (and innocent people
would yield and forego their right to trial), the Commission opined that the contention
fails to distinguish between literacy and common sense. The proposed scheme accounts
for this objection by providing for judicial officers to be plea judges who would explain
to the accused persons the consequences of pleading guilty. Also, that the application
was made by the accused of his own volition and not as a result of coercion or duress.
Further, to the argument that the incidence of crime might increase due to
criminals being let-off easily, the Commission regarded it as unfounded as the authority
considering the acceptance or otherwise of the request for concessional treatment would
weigh all pros and cons and look into the nature of the offence and exercise its
discretion in granting or rejecting the request.
314 Criminal Law • II
On the other side of the fence are the suspects in police custody. With the police
already under the scanner for obtaining ‘confessions’ through extra-constitutional
means, one cannot rule out the use of pressure for the purpose of closing case files and
collecting brownie points. The accused come under pressure to plead to crimes they
not even committed so that they don’t have to face a lengthy trial, in which they may
eventually be held guilty. This would encourage criminals, increase crimes and breed
corruption.
Using plea bargaining to reduce the burden of the judicial system is criticized
as an argument that is based on administrative considerations rather than legal
principles. It is argued diat plea bargaining is soft or. crime as the guilty are not
punished properly for the crimes they commit. The main purpose of penal law is to
deter, and thereby prevent commission of offences. If all the offences punishable with
less than seven years’ rigorous imprisonment could be setded with the criminals that
would only incre. so the crimes thousand fold. Cases of plea bargaining had come
before the Supreme Court on several occasions. The court has deprecated this practice
and except in regard to composition of offences under Sec. 320, Cr PC, in all other
cases plea bargaining was held to be disastrous.
The mistakes that might be made in a plea bargain: by a prosecutor who over-
evaluates his or her case, a defence attorney who does not do their case, or a judge
who is lazy and doesn’t supervise the case. There can be mistakes made in plea
bargains; mistakes are also made during jury trials. The whole purpose of plea
bargaining is for the prosecutor to assess what this case is worth, and then offer just a
litde bit less than what a jury would probably come back with, in order to move that
case and dispose of the case at that time.
units presently given to Magistrates and Sessions radges for speedy disposal of
cases.
The corporate system can also benefit from adopting a similar process i.e.
“negotiated settlement” methodology. The negotiated settlement process is distinct
from the traditional concept of plea-bargaining and does not require an accused entity
to admit or deny charges but enables it to negotiate with the regulator directly for a
reasonable penalty or punishment. If introduced into the corporate system, the
negotiated settlement process is likely to substantially reduce the burden on the
judiciary. The process is likely to find more takers amongst corporate, since there is no
requirement of admitting to violations/guilt (unlike the RBI compounding process).
Further, it would enable all concerned parties to avoid lengthy and expensive
adjudication and appellate proceedings.
to refer to the evidence not critically with view to assessing its credibility but
mechanically as a matter of formality in support of the admission of guilt
In State of U.P. v Chartdrika, the Supreme Court opined that it is now a setded law
that concept of ‘plea bargaining’ is not recognized and is against public policy under
Indian criminal justice system. It held that this method of short-circuiting the hearing
and deciding the criminal appeals or cases involving serious offences requires no
encouragement. On the basis of plea bargaining, the court may not dispose of the
criminal cases. The court has to decide it on merits. If accused confesses his guilt,
appropriate sentence is required to be imposed ... Mere acceptance or admission of the
guilt must not be a ground for reduction of sentence.
In Kasambhai Abdulrehmanbhai v State of Gujarat (AIR 1980 SC 854) the Apex Court
clearly laid down that such a procedure would be clearly unreasonable, unfair and
unjust and opposed to public policy and would be violative of the new activist
dimension of Article 21 of the Constitution. The court also said that the conviction of
an accused as a result of plea bargaining must be held to be unconstitutional and
illegal. Though this particular case arose under Prevention of Food Adulteration Act,
the principle laid down is applicable to all cases of plea-bargaining. To exempt
offences where the punishment is over seven years imprisonment from plea-
bargaining is a farce, since 85% of offences fall in the other category.
Some judges are of the view that plea bargaining is an alien concept. It works in
the US because if one prefers trial, the chances of a conviction there is very high and
the sentence may run into decades. Here, an accused prefers to face a trial as his
counsel ensures he would be acquitted in any case. Again, not many in India would
like to carry the burden of a ‘convict’ even for a petty offence. If one wishes to avail
plea bargaining, one will have to plead guilty and get convicted. Only the quantum of
punishment is negotiable on the basis of compensation offered to the victim. Further,
the provision steers clear of serious crimes carrying life sentence. The incentive for
such accused would be greater.
In spite of such unanimous and strict mandate of the Indian judiciary, there is
perceived a wave of changing dimension because of heavy burden of cases to be
discharged and demand for speedier justice. It is this temptation, which has persuaded
the legislature to incorporate this concept into the Indian legal system.
Plea Bargaining 317
* Having fewer or less serious offences on one’s record — Pleading guilty or no contest in
exchange for a reduction in the number of charges or the seriousness of the
offences looks a lot better on a defendant’s record than the convictions that
might result following trial. This can be particularly important if the
defendant is ever convicted in the future. For example, in US, a second
conviction for driving under the influence (DUI) may carry mandatory jail
time, whereas if the first DUI offence had been bargained down to reckless
driving, there may be no jail time for the “second” DUI.
Even for people who are never rearrested, getting a charge reduced from a felony to a
misdemeanour can prove to be a critical benefit. In US, some professional licences must
be forfeited upon conviction of a felony. Future employers may not want to hire
someone previously convicted of a felony. Felony convictions may be used in certain
court proceedings (even civil cases) to discredit people who testify as witnesses.
* Having a less socially stigmatising offence on one’s record — Prosecutors may reduce
charges that are perceived as socially offensive to less-offensive charges in
exchange for a guilty plea. For example, a prosecutor may reduce a
molestation case to an assault. This can have a major impact on the
defendant’s relationship with friends and family. Perhaps even more critical,
sometimes defendants convicted of stigmatizing offences may be at a greater
risk of being harmed (or killed) in prison than if they are convicted of an
offence that doesn’t carry the same stigma.
* Avoiding publicity - Famous people, ordinary people who depend on their
reputation in the community to earn a living, and people who don’t want to
bring further embarrassment to their families all may chose to plead guilty or
no contest to keep their names out of the public eye. While news of the plea
itself may be public, the news is short-lived compared to news of a trial. And
rarely is a defendant’s background explored in the course of a plea bargain
to the extent it may be done at trial.
320 Criminal Law - II
Keeping others out of the case — Some defendants plead guilty to take the blame
(sometimes called the “rap”) for someone else, or to end the case quickly so
that others who may be joindy responsible are not investigated. 6
For judges, the key incentive for accepting a plea bargain is to alleviate the need to
schedule and hold a trial on an already overcrowded docket. Additionally, because
jails are overcrowded, judges may face the prospect of having to release convicted
people (housed in the same facilities as those awaiting trial) before they complete their
sentences. Judges often reason that using plea bargains to “process out” offenders who
are not likely to do much jail time leads to fewer problems with overcrowding.
upon the promise that the plea will be accepted swiftly, and the sentence
will be for no more than the amount of time already served). It is hard to
see how the prosecution can derive more than a pure statistical benefit
from the conviction so obtained.
“BMW case”
Sentence for causing death by rash and negligent act was negotiable but prosecution
charged Sanjeev Nanda who was allegedly at the wheel for causing culpable
homicide. But three of his friends booked for destruction of evidence can make use
of it.
Concluding Remarks
Voices of dissent have already been raised with a section of lawyers saying the
deterrent effect of law will take a severe beating. The rich may get away lightly by
paying any amount of compensation and serving a minimum sentence. Does plea-
bargaining sacrifice justice in the name of faster disposal off cases? “No,” says
Mallimath. “It’s an option for an accused to negotiate the sentence. Final result is
only a lesser sentence, not acquittal.”
It is not that Plea Bargaining is an essential element of criminal justice system 7
and therefore it should be incorporated in our system, nor it should be incorporated
merely on the ground that Indian Courts do have a heavy burden of cases to be
discharged. It must be remembered that the concept of plea bargaining will not work
as a miracle for our system, which will change the whole system all of a sudden. The
nature and extent of plea bargaining in England indicates that plea bargaining
cannot simply be transplanted from the US.
Our system is combination of both pecuniary and reformative measures and
our social structure is such that it does not permit such kind of bargaining in the
matters, which are as serious as committal of an offence. In our country the courts
are considered as a place of dignity and any kind of concept which incorporates
bargaining is less likely to be accepted by the people at large because that will make
the courts like a market. Hence instead of accepting this kind of system we should
try to make our system more efficient by making a minimum requirement of the
number of judges in the High Court at any point of time, by constituting more
institutions like fast track courts and Lok Adalats, by making a minimum time limit
requirement for disposal of all kind of cases and by alike measures.
Even if plea bargaining has to be implemented, first it should be implemented
in some of the minor offences for the experiment and if it is successful and suitable
then it should be implemented in tht; whole system and it can be implemented in the
modified form as it suits to our
7. In this regard it becomes necessary to mention that there had been efforts to ban Plea
Bargaining in some cities of US. One of those cities is Alaska where Supreme Court barred
judges from bargaining over charges and sentences in 1975. Researches show that despite this
comprehensive ban courts were not overwhelmed with trials. Researchers concluded therefore,
that “incidence of Plea Bargaining can be substantially reduced without wrecking a criminal
justice system.” Similarly another study done by the Stephen J. Schulhofer on the Bench trial
system of Philadelphia shows that since when the system is introduced in the state of
Philadelphia there has been a substantial reduction is cases of Plea Bargaining. On the basis of
his research he argues that if that can be implemented in the third largest city of the United
State and the instances of Plea Bargaining can be eliminated then why it could not be done in
other states also. Therefore this research also supported the view that plea bargaining is not
inevitable as it is argued by most of the scholars, but it can be supplemented with
efficient justice system.
324 Criminal Law 11
system. We will have to keep in mind the peculiar social fabric and economic
condition of our country while considering this practice. In nutshell, while
implementing the plea bargaining we must strike a balance between efficiency and
speed on the one hand and justice and dignity of court on the other hand.
Further, if plea bargaining has to be implemented in India, then the deciding
authority must be independent from the trial court and instead of the public
prosecutor retaining most of the power, the deciding authority must be given a
greater role in the process. If the authority is the sole arbiter, the risk of coercion
into pleading guilty and of underhand dealings can be eliminated substantially.
Therefore, not only will the victims’ needs be addressed but also the susceptibility
of the system of being misused by the public prosecutor, the police and even the
affluent will be considerably reduced.
8. Bring out clearly the distinction between the provisions relating to compounding of
offences and the plea bargaining under the Cr.P.C., 1973. [D.U.-
2012]
326 Criminal Law II
compound it and produce a writing signed by them before the court, the court is
bound to act upon it. In plea bargaining, the role of court is relatively large and it can
be granted only with the judge’s approval. The court can either accept or reject any
plea bargain.
Victims of a crime should have legal rights to be informed, present and heard within
the criminal justice system. The core rights for victims of crime include:
(i) The right to attend criminal justice proceedings;
(ii) The right to apply for compensation;
(lii) The right to be heard and participate in criminal justice proceedings;
Civ) The right to be informed of proceedings and events in the criminal justice
process, of legal rights and remedies, and of available services;
(v) The right to protection from intimidation and harassment;
(vi) The right to restitution from the offender;
(vii) The right to prompt return of personal property seized as evidence;
(viii) The right to a speedy trial; and
(be) The right to enforcement of these rights. 1
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Criminal Law II
328
cost ^ non^ognizable cases) of the Cr. P.C., 1973, provide for payment of ““P“ s““n “d
then too the compensation was limited only to the extent of the fine actually realised.
Now, under Sec. 357(3), the compensation can be for any amount and not limited to
the amount of fine imposed or recovered.
However, there are various constraints and limitations also, as much depends
on the paying capacity of the offender and in most cases this acts as a bar against
victim getting any compensation. The criminal courts were generally reluctant to use
the criminal law process for compensation purposes. The courts are reluctant to
impose fine along with substantial imprisonment in serious offences. The scope of
fine in terms of quantum is very limited in minor offences.
Witnesses play an important role in the criminal justice system of any country. According to Bent ham,
witnesses are the eyes and ears of justice.
A aiminal case is build upon the edijice of evidence (whether it is direct or circumstantial evidence) that is
admissible in law. For that witnesses are required. Today the Indian aiminal justice system is facing
problems of low conviction rate (due to unavailability of evidences, hostile witnesses, etc.).
The conviction rate has gone down to 39.6% and the trial of most of the sensational cases does not start till
the witnesses are won over.
In India witnesses are harassed a lot even by the courts. Not only that the witness is bribed, threatened,
abducted, even maimed or done away with.
The fact is that the accused are able to intimidate the witnesses because there is no provision available under
which after the assessment of a particular witness the administration could give the witness requisite
security cover. No law has yet been enacted, not even a scheme has been framed by the Union of India/
State Government for giving protection to the witnesses.
In our criminal justice system, the way a witness is dealt with is a subject of criticism.
And when he does not appear in the court then he is subjected to cross examination
and lands himself in a helpless situation. Witnesses are treated with offending words
even by the courts. As the Supreme Court has observed, “A witness is not treated
with respect in the Court... He waits for the whole day and then finds the matter
adjourned... And when he does appear, he is subjected to unchecked examination
and cross-examination and finds himself in a hapless situation. For these reasons and
others, a person abhors from becoming a witness” (Swaran Singh v State of Punjab, AIR
2000).
[3 3 1 ]
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In this case, Delhi High Court formulated certain guidelines to tackle the
problem of witnesses turning hostile which results in the weakening of the
prosecution case. In this regard, one aspect of the matter of general public
importance is pertaining to witness protection.
The Court observed: “The edifice of administration of justice is
based upon witness coming forward and deposing without fear or favour,
without intimidation or allurement in Courts of Law. If witnesses are
deposing under fear or intimidation or for favour or allurement, the
foundation of administration of justice not only gets weakened, but in
cases it may even gets obliterated. The dockets in Courts today are
overflowing to the brim and especially in criminal delivery s/stem no
shorthand essay is possible; the accused must get a fair, proper and just
hearing in the adversarial system of Administration of Justice which we
have adopted. Delay results. This leads to the possibility of the witness
being harassed
o. intimidated at the hands of the accused or his accomplices.”
There are a large number of reports and in particular the report of
the Vohra Committee which have come to a finding that criminalization has
struck at the very foundation of the Indian polity and there is urgent need
to deal with this criminalization on a war footing to prevent the polity
from further degenerating. Case after case of the prosecution was
collapsing, owing to the material witnesses turning hostile to the case of
the prosecution. And this happens because of the “fear of the accused
person.”
1. In Mrs. Neelam Katara v UOI, the Delhi High Court has given directions for the protection of
witnesses in criminal trials. Discuss the said directions and the object sought to be achieved
by them. Further, what suggestions would you suggest to make witness protection
programmes meaningful to ensure that witnesses do not turn hostile. [D.U.-2012]
Various Reports of the Law Commission of India and in particular the
154th and 178th Reports have also dealt v.’ith the menace of prosecution
witnesses turning hostile.
The Court further observed: “It was uncertain as to when the
suggestions would be incorporated legislatively on the statute book. We
are, therefore, of the opinion that since this area is an unoccupied field, till
the legislature legislates thereon, it would be appropriate for the Court to
lay down guidelines in respect of protection to be granted to the witnesses.
The Hon’ble Supreme Court in Vineet Narain v UOI [1998 (1) SCC 226] had
directed that steps should be taken immediately for the constitution of an
able and impartial agency comprising persons of unimpeachable integrity
to form functions akin to those of the Director of Prosecutions in United
Kingdom.”
Witness Protection Program in Various Countries
In the United Kingdom, the Director of Prosecutions was created in 1879. He is
appointed by the Attorney General from amongst the Members of the Bar.
He discharges the functions under the Superintendence of Attorney
Generals. The Director of Prosecutions plays a direct role in the
prosecution system. He even administers “Witness Protection
Programmes.”
In USA, the Witness Protection and Reallocation Programme is
regulated by the Attorney-General for Protection of Witnesses in the
Federal/State Government in official proceedings concerning organized
criminal activities or other serious offences. The Attorney General under
the Programme is entitled to: (a) Protect the confidentiality and identity of the
person; provide suitable documents to enable the witness to establish a
new identity; (b) Provide housing for the witness; (c) Provide transportation to
the witness; (d) Provide payment to meet basic living expenses; (e) Provide
help in obtaining employment; (f) Provide services necessary to assist the
person becoming self-sustaining.
In Canada, the Witness Protection Act, 1996 lays down the factors
which the Attorney General has to consider while deciding whether a
witness should be admitted to the Program. They are as under:
(a) the nature of the risk to the security of the witness;
334 Criminal Law - II