A K. Jain CRPC Criminal Law 2

CRIMINA
L
LAW - II
[LEADING CASES, MATERIALS & Q.A.]
©L4NPENAL CODE: MENS REA, GENERAL EXCEPTIONS, GROUP

LIABILITY, ATTEMPT; CRIMINAL PROCEDURE CODE: POLICE
VESTIGATION, RIGHTS OF ARRESTED & ACCUSED PERSONS, FAIR
TRIAL, BAIL, PLEA BARGAINING ETC.]
Dr. ASHOK K. JAIN

LL.M; Ph.D (Delhi)
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
All Rights Reserved Nopart of this work may be copied, reproduced, adapted, abridged or translated, stored
in any computer or transmitted in any form by any’ means without prior written permission of the
publishers.
Published By Ascent Publications, 21/29, Shakti Nagar, Delhi. Printed at G S. Offset, Delhi.
CONTENTS
CHAPTER 1. INTRODUCTION
Nature and Concept of Crime 2 Definition of Crime 3

Distinction between Crime and Other Wrongs 6 Constituent Elements of Crime 9
Characteristics of Crime 12
Role of punishment in criminal liability 13
Chapter 2. Mens Rea and Strict Liability
(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
CHAPTER 3. GENERAL EXCEPTIONS
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
CHAPTER 4. GROUP LIABILITY
(Section 34 J96 0-
Common Intention 98
Participation 101
Unlawful Assembly
Distinction between 34 121
iv Criminal Law - II
CHAPTER 5. ATTEMPT
Stages of Crime 133 Section 511 Meaning of ‘Attempt’ 135

Distinction between Preparation and Attempt 142 Sec. 309.
Attempt to Commit Suicide 147 Sec. 307. Attempt to Commit
Murder 152
CHAPTER 6. CRIMINAL PROCEDURE CODE, 1973: INTRODUCTION
Obj ect and Importance of Criminal Procedure 163 Classes of

Criminal Courts 164 Functionaries under the Code 165
Public Prosecutors 165
. RIGHTS OF ARRESTED PERSON
Rights of Arrested Persons 169

(1) Arrest Power Conferred on Police and Safeguards 169
(2) Right to Know the Grounds of Arrest 174
Arrest of a Woman 175
(3) Right to be taken before a Magistrate without Delay 176
(4) Right of Not being Detainedfor More than 24 hours without
judicial Scrutiny 176
(5) Right to Consult a Legal Practitioner 177
(6) Right to Legal Aid by the State 179
(7) Right to be Examined by a Medical Practitioner 180,189
(8) Identification of Person Arrested 181
(9) Arrest to be made strictly according to the Code 182
(10) Court to be Open 182
CHAPTER 8. POLICE INVESTIGATION
Sec. 154. First Information Report (F.I.R.) 194 Evidentiary Value

197 The Investigation Procedure 199
(A) Power of the Police to Investigate (Secs. 156-159) 199
(B) Examination of Witness by Police (Secs. 16(163)
(Police Interrogation) 202
(C) Power of judicial Magistrate to Record Confessions and
Statements (Sec. 164) 206
(D) Medical Examination of the Victim of Rape (Sec. 164-A) 215
(E) Search by Police Officer (Secs. 165-166) 237
(F) Procedure when Investigation Cannot be Completed in 24
hours (Sec. 167) 216
(G) Procedure to be followed on Completion of Investigation
(Secs. 169-173) 221
(H) Inquest Report/ Inquiry in case of Accidental/ Suspicious Deaths
(Secs. 174-176) 227 Evidentiary Value of the Statements made to the
Police during Investigation (Sec. 162) 231
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
Chapter 10. Fair Trial.: Rights OF Accused Person
Fair Trial 277

(I) Adversary System of Trial 278
(2) Presumption of Innocence 279
(3) Independent Impartial and Competent Judges 279
(4) Court's Power and Duty to Examine the Accused Person 280
(5) Rights of the Accused Person 282
(6) Rights of the Accused of Unsound Mind 286
(7) Withdrawal from Prosecution 288
(8) Fair Trial and Power of Supreme Court to Transfer Cases/
Appeals 292 Sec. 300, Cr.
P.C. 297
CHAPTER 11. PLI
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
CHAPTER 12. RIGHTS OF VICTIMS
Rights of Victims under Cr.P.C. 328
CHAPTER 13. WITNESS PROTECTION
Witness Protection Program in Various Countries 333

Concluding Remarks (Suggestions) 336
Criminal Law -
TABLE OF CASES
(Mt) Anandi v Emperor 48 A. Ahmed v The King 83

A. W. Chandekar 166
ABDUL KARIM v STATE OF KARNATAKA 290
ABHAYANAND MISHRA v STATE OF BIHAR 137,143,144,157
Abhinandan Jha v Dinesh Mishra 224
Ajit Kumar v State of Assam 174
Allauddin Mian v State of Bihar 119
Amar Singh v State of Punjab 127
Amjad Khan v State 61
Ammini v State of Kerala 215
Anil A. Lokhande v State of Maharashtra 190
Anwari Begam v Sher Mohammed 249
Appu v State 99
Ardhendu Sarkar 220
ASGHAR ALI PRADHANIA v EMPEROR 136,137,143,161 Aydroos v
Emperor 110
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
Chajju Ram v State of Haryana 267 Chandra Bhan v State

119
CHANDRA BIHARI GAUTAM v STATE OF BIHAR 118,120
Chandran v State of TN. 214 Chirangi v State 34
D
D.K. BASU v STATE OF W.B. 183
DAHYABHAI CHHAGANBHAI THAKKAR v STATE OF GUJARAT 47,50
Dasa Kandha v State of Orissa 90
Debendra Chandra v Emperor 222
DEO NARAIN v STATE OF U.P. 61, 79
Dhananjaya Reddy v State of Karnataka 212
Dhara Singh v Emperor 38
Director of Public Prosecution v Beard 89,90,91
Directorate of Enforcement v Deepak Mahajan 167
Directorate of Enforcement v P.V. Prabhakar Rao 274
Dominic Varkey v State of Kerala 55
Dukhmochan Pandey v State of Bihar 98
E
EMPEROR v GEDKA GOWLA 44 Emperor v Jagmohan Thukral
36 Emperor v Kabil 118 Emperor v V.B. Gogate 153 Empress v
Rupsir Panku 138
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
Guddu v State 260

GURBAKSH SINGH SIBBIA v STATE OF PUNJAB 270,275
GURCHARAN SINGH v STATE (DELHI ADMN.) 261,275
Gurcharan Singh v Suresh Kumar Jain 225 Gurdit Singh 33
H
H. N. Rishbud v State of Delhi 227
H. R. Industries v State of Kerala 283
H. S. Bains v State 224
Habeeb Mohd. v State of Hyderabad 222
Hafiz Mohd. v Emperor 201
Harbans Kaur v State of Haryana 198
Hariprasad Rao v State 20
Haveli Ram v Munic. Corpn., Delhi 298
Hemraj v State of Ajmer 210
Hira Lai v Ramdulare 238
Hussainara Khatoon (IV) v State of Bihar 179,260,285 Hutto v
Ross 315
I
Ibrahim Haji Moideen v Food Inspector 27 In re Madhu Limaye
177,178 Inder Sain v State of Punjab 24 Inder Singh 293
Indo-China Steam Navigation Co. v Jasjit Singh 24 Iqbal Ismail
Sodawala v State of Maharashtra 163
J
Jagdish Kumar v State 261
Jagmalaram v State of Rajasthan 215
Jai Bhagwan v State of Haryana 101
Jai Dev v State of Punjab 69,95
Jai Singh v Emperor 217
Jaikrishandas Desai v State of Bombay 101
Jailal v Delhi Admn. 48
JAMES MARTIN v STATE OF KERALA 70
Jessica Murder case 322
Jethu Ram v State of M.P. 90
X Criminal Law -
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
Lord Dacre’s case 102
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
MALKIAT SINGH v STATE OF PUNJAB 143,146,157

Maneka Sanjay Gandhi v Rani Jethmalani 292
Mangal Singh v State of Bihar 121
Manoj Kumar v State 177
Manoj v State of M.P 177
Maqsoodan v State of U.P. 100
McNaughten’s case 39
Mehtab Singh v State 99
MIZAJI v STATE OF U.P. 118,124
Mohd. Mian v State 260
Mohd. Mumtaz v Nandini Satpathy 166
Mohd. Ramzani v State of Delhi 67
Mohd. Tariq v Union of India 248
Mohinder Singh v State 154
Moti Das v State of Bihar 115
MOTI RAM v STATE OF M.P. 244
MRS. NEELAM KATARA v UNION OF INDIA 332
Mst. Shanti Devi v State 48
Muhu Naicker v State 118, 119
Mukhtir Singh v State of Punjab 286
Murlidhar Meghraj Loya v State of Maharashtra 315
N
NANDINI SATPATHY v PL. DANI & OTHERS 204
Nandu Rastogi v State of Bihar 113
Narasimhulu 241
Narsang Pathabhai 59
Nathu Lai v State of M.P. 23,25
NAZIR AHMED v KING-EMPEROR 212 Nga Sein Gale 90
Niranjan Singh v State of U.P. 222 Nirmal Kanti Roy v State
of W. B. 220 NKSM Shahul Hameed, 268
OM PRAKASH v STATE OF PUNJAB 155
Pancham Singh v State of Bihar 202

xii Criminal Law - II
PANDURANG v STATE OF HYDERABAD 98,103 Paras Ram v State of

Punjab 84 PRAHLAD SINGH BHATI v NCT, DELHI 255,259 Public
Prosecutor v George Williams 252 Puran Singh v State of Punjab 75
Purshottam Jethanand v State of Kutch 225
Q
Queen Empress v Gedka Gowala 83 Queen Empress v Nidha 155 Queen
v Doyal Bawri 137 Queen v Lakshman 43,83
QUEEN-EMPRESS v KADER NASYER SHAH 42,43,83
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).
Criminal law is a branch of public law. It authorizes the infliction of State

punishment. In the criminal proceedings, State is a party as crime is not only a wrong
against the individual but also against the whole society. Criminal law is confined
within very narrow limits, and can be applied only to definite overt acts or omissions
capable of being distinctly proved, which acts or omissions inflict definite evils. Crime
is what the State has, by an act of the Legislature, definitely declared as punishable.
In other words, there is no such thing as ‘crime’ apart from legislative recognition thereof.
(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
The distinction between crimes and civil wrongs is roughly that

crimes are public wrongs and civil wrongs are private wrongs (Blackstone).
A crime is an act deemed by law to be harmful to society in general, even
though its immediate victim is an individual. Murder injures primarily the
particular victim, but its blatant disregard of human life puts it beyond
a matter of mere compensation between the murderer and the victim’s
family. Those who commit such acts are proceeded against by the State
in order that, if convicted they may be punished. Civil wrongs such as
breach of contract or trespass to land are deemed only to infringe the
rights of the individual wronged and not to injure society in general, and
consequently the law leaves it to the victim to sue for compensation in
the courts.
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.
(3) Procedural difference — The proceedings in case of crime are

criminal proceedings and in case of civil wrong, civil proceedings.
The civil and criminal proceedings take place in two different set
of courts.
in a crime is measured by the intention of the

wrongdoer, but in a civil wrong the liability is measured by the
wrongful act and the liability depends upon the act and not upon
the intention._____
(5) All criminal liability is penal ; civil liability is sometimes penal and sometimes
remedial (See below).
Distinction not doctrinaire but only functional

Most of the points of distinction between civil and criminal liability are not well
founded. A clear line cannot be drawn between the two.
(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
Constituent Elements of Crime

A criminal offence is only committed when an act, which is forbidden by law, is done
voluntarily by a human being. The maxim actus non facit reum, nisi mens sit rea (the act alone
does not amount to guilt, it must be accompanied by a guilty mind) is considered to be
the condition of penal liability. Thus there and two conditions of penal liability Act, or
actus reus, and (2) guilty mind or mens rea. Actus reus represents the physical) aspect of
crime"and mens rea represents its mental aspect.
Actus reus has been defined as “such result of human conduct as the law seeks to
prevent”. Doing of some act by the person to be held liable is necessary. A man is to be
accounted responsible only for what he himself does, not for what other persons do, or
for events independent of human activity altogether. Mens rea or guilty mind with which
the act is done is another necessary condition. English jurists give the name of mens rea to
the volition which is the|ive force behind the criminal act^) It is not enough that a man
has done some act which on account of its mischievous results the law prohibits; before
the law can justify punishing the act, an inquiry must be made into the mental attitude
of the doer. For although the act may have been objectively wrongful, the mind and
will of the doer may have been innocent.
There might be actus without mens rea. Thus, for example, if an infant of 2 years
while playing with a loaded pistol lets it go and kills another person, there is actus reus
without mens rea. There might also be mens rea without actus reus. In ethics or religion an
evil deed may be committed in mind and might constitute a wrong, even though it has
not manifested itself in physical conduct.
It may further be noted that mens rea as such is not punishable. Thus if A has
intention to kill B, A cannot be brought to the court on that ground; 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, sometimes an act alone is
sufficifentr'toconstitute a crime without the existence of mens rea.
Generally speaking, a man is penally responsible only for those wrongful acts
which he does either willfully or recklessly. Then and only
10 Criminal Law II
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
(ii) its circumstances, and
(iii) its consequences.

Thus in an offence of theft, intention to take the property is a mental activity where the
act originates. The circumstances are: the property must be movable, it should be taken
without the consent of that person, and, there must be some moving of the property in
order to accomplish the taking of it. The consequence is that the property is taken out
of the possession of another person.
The criminal intent in order to be punishable must become manifest in some
voluntary act or omission. According to Secs. 32 and 33, IPC, the term ‘act’ takes into
its fold one or more acts (positive) or one or more illegal omissions (negative acts). For
example, A pushes B into a river and B gets drowned. Here A’s act (positive) is cause
of B’s death. Likely, if A allows his wife and young children to die of starvation (illegal
omission, a negative act) he commits a crime because he owes a legal duty
Introduction 11
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.
(2) Act (Acts) — There should be an act or omission to constitute a crime.

Intention or mens rea alone shall not constitute a crime unless it is
followed by some external act. There must be a concurrence of mens rea
and act.
Introduction 13
(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.
Role of punishment in criminal liability

The purpose of the criminal justice is to punish the wrongdoer. He is punished by the
State. The purpose of punishing a criminal is to prevent or disable the offender from
committing the offence again; to deter other people from committing crimes. The
retributive theory of punishment considers punishment as an end in itself. If an evil has
been done it can be undone or negatived only by doing an evil (i.e., punishment)
against the wrongdoer. However, in modern times, it cannot be said that the
punishment is based only on vengeance. It is, more or less, considered to be a measure
to maintain order and peace in the society. Though retribution (as the purpose of
punishment) has still an important place in the popular thought, there is a growing
tendency to regard punishment as a means to an end and not an end in itself.
The punishment as a preventive or deterrent measure is also not without
criticism. If a person has committed a crime under some extraordinary psychological
stress, or under some special circumstances, there is little possibility of his repeating it
again. To punish such a man so that he might not commit the crime again is
meaningless. On the contrary, the punishment hardens his nature and he might do the
crime
14 Criminal Law II
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
Mens Rea and

Strict Liability
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.
Mens rea when Not Essential (Strict Liability)2

In former times, it was thought that legislature was not competent to override the
established rules of common law. Accordingly mens rea was read into every offence. For
the first time a literal interpretation of Penal Statute, totally rejecting the underlying
idea of mens rea was taken in K v Prince (1875) 2CCR 154 ATC. Lord Wright in Sherras v De
Rutzen (1865) 1 QB 918, said that although, mens rea, an evil intention or knowledge of the
wrongfulness of the act is the essential ingredient of every offence, there are certain
limited and exceptional classes of offences which are outside this rule.
Although mens rea is a sacrosanct principle of criminal law, it can be waived in

certain circumstances. There are some special circumstances under which the law
imposes a strict or absolute liability, and such cases may be treated as exception to the
doctrine of mens rea. The following are the exceptional cases in which mens rea is not
required in criminal law:
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]
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
F, not a citizen of Singapore had entered Singapore from the Federation of

Malaya. Later an order prohibiting F’s stay in Singapore was passed and
communicated to the Immigration Officer but was never conveyed to F. F was
arrested and charged under the Immigration Ordinance for entering or staying
in Singapore despite a contrary order. In his defence, F argued that in the
absence of MENS REA he cannot be held guilty. [FOOTNOTE
CONTD ]
20 Criminal Law 11
Some Safeguards in the Cases of Strict Liability: Case Law5

In Halsbury Laws of England it is stated that if a statutory crime is silent ! with regard
to mens rea, there is a presumption that mens rea is essential. The presumption can be
rebutted either by terms of statute or by the , subject matter with which it deals. It is of
utmost importance for the 1 protection of liberty of a subject that the court should
always bear in mind that unless a statute rules out mens rea as a constituent part of a
crime, the court should not find a man guilty of an offence against the 1 criminal law,
unless he has a guilty mind. In other words, absolute liability j is not to be presumed
but ought to be established or found out by referring to the object and subject matter of
statute (Brend v Wood, 1946 ; J.P. 316; Hariprasad Rao v State AIR 1951 SC 204).
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'ê'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•
LeadingCase: STATE OF MAHARASHTRA v M.H. GEORGE 6 (AIR 1965 SC 722)

In this case, on 24th Nov. 1962, RBI placed some restrictions on the entry of
gold into India [under Sec. 8 of the Foreign Exchange Regulation Act
(FERA), 1947], thus superseding its earlier notification (gold can be brought
into India if it was on a transit to a place outside India), by providing that
gold can be brought into India on a transit provided that such gold was
declared in the “manifest” for transit in the same bottom cargo. The accused
left Zurich by plane on Nov. 27, 1962 and reached Bombay (on the way to
Manila), where the gold bars were recovered from his jacket by custom
officers. The plea of the accused was that he had no mens rea and that he had
no knowledge of the RBI notification.
The Supreme Court observed: Merely because a statute deals with a

grave social evil is not sufficient to infer strict liability, it must also be seen
that whether imposition of strict liability would assist in the enforcement of
regulations (can he do anything to promote the observance of the law?).
Unless this is so, there is no reason in penalising him and it cannot be
inferred that the legislature imposed strict liability merely in order to find a
luckless victim. Thus, mens rea by necessary implication can be excluded from
a statute only where it is absolutely clear that the implementation of the
object of a statute would otherwise be defeated and its exclusion enables
those put under strict liability
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
below: 7
(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]
(2) The question , of ‘necessary implication’ is to be determined

from object of the statute. Strict liability would be implied, if
the very object of statute would be defeated by reading mens
rea into it.
(3) Mere fact that the object of statute is to promote public welfare
or curb a grave social evil is not enough to exclude mens rea. It
is also necessary to inquire that a person on whom strict
liability is sought to be enforced can do anything to further
the enforcement of law. Where it can be shown that
imposition of strict liability would result in the conviction of
a class of persons whose conduct could not in any way effect
the observance of law, strict liability is not likely to be
intended.
(4) The maxim “ignorance of law is no excuse” does not
apply to delegated legislation when there is no provision of
publication of the order, to enable a person to find out by
appropriate inquiry what the law is.
In this case the majority speaking through J. Ayyangar said that object
would be defeated, while J. Subba Rao in minority said object would not be
defeated.]
In Nathulal v State of M.P. (AIR 1966 SC 43), it was held that object of statute would not be
defeated by reading mens rea into the provisions of the Essential Commodities Act, 1955.
The appellant, a dealer in food grains had made an application for a licence but no
intimation was given to him that his application was rejected. He purchased food
grains from time to time and submitted returns to the licence department. One day, a
food inspector checked his godowns and found food grains stored without any licence.
The offence under the relevant sections of Essential Commodities Act and Food grains
Order involves a guilty mind as an ingredient.
The Supreme Court held that the appellant had contravened the provisions of
the Act with the knowledge that he did not hold a licence. But, there can be no doubt
that the State Authorities acted negligently, as they did not inform him about the
rejection of his application or allowed
24 Criminal Law II
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.
LEADING CASE: STATE OF MADHYA PRADESH v NARAYAN SINGH

[(1989) 3 SCC 596]
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
8. To effectuate a credit-squeeze for the maintenance of economy, the

Government of India passes an order under the relevant legislation that in no
case a finance company should advance loan exceeding 60% of the price of a
car to a purchaser. F, a finance company, pays more than the permissible
amount of loan because of the wrong price quoted by a company selling the
cars. Is F guilty of violating the law? [LC./-95]
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.
LEADING CASE: STATE OF ORISSA v K. RAJESHWAR RAO9 (AIR

1992 SC 240)
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]
1954. The sole question that emerges for consideration is whether it is

necessary that the respondent should be the owner of the shop for being
prosecuted for the offences under the Food Adulteration Act.
The Apex Court observed: Sec. 7 of the Food Adulteration Act
prohibits manufacture, sale of certain articles of food. No ‘person’ shall
himself or any person oi. his behalf manufacture for sale, or store or sell or
distribute any adulterated food, etc. The phrase “himself or any person on
his behalf” obviously included any other person like servant, son, father, or
agent irrespective of the relationship legal or jural, etc. Hie person so selling
during the course of business either the owner or the person that sold the
adulterated food or article of food or both are liable to prosecution.
In Sarjoo Prasad v State of U.P. (AIR 1961 SC 631), it was contended that a
servant who sold food on behalf of his employer was not liable unless it was
known that he has done it with knowledge that the food was adulterated. This
court held that Sec. 7 of the Act enjoins everyone whether an employer or a
servant not to sell adulterated food and anyone who contravenes this
provision is punishable under Sec. 16 without proof of mens rea. This court
repelled the argument that the legislature could not have intended, having
regard to the fact that large majority of servants in the shops which deal in
food are illiterate to penalize servants who are not aware of the true nature of
the article sold. The intention of the legislature must be gathered from the
words used in the statute and not by any assumption about the capacity of the
offenders to appreciate the gravity of the acts done by them. In the interest of
the public health, the Act was enacted prohibiting all persons from selling
adulterated food. In the absence of any provision, express or necessarily
implied from the context, the courts will not be justified in holding that the
prohibition was only to apply to the owner of the shop and not to the agent of
the owner who sells adulterated food. This view was reiterated in Ibrahim Haji
Moideen v Food Inspector (1976) 2 FAC 66 (SC).
28 Criminal Law II
In the present case, the Apex Court observed and held:

The Act is a welfare legislation to prevent health hazards by consuming
adulterated food. The mens rea is not an essential ingredient. It is a social evil
and the Act prohibits commission of the offences under the Act. The
essential ingredient is sale to the purchaser by the vendor. It is not material
to establish the capacity of the person vis-a-vis the owner of the shop to
prove his authority to sell the adulterated food exposed for sale in the shop.
It is enough for the prosecution to establish that the person who sold the
adulterated article of food had sold it to the purchaser (including the Food
Inspector) and that Food Inspector purchased the same in strict compliance
with the provisions of the Act. It is not necessary for the sanctioning
authority to consider that the person selling is the owner, servant, agent or
partner or relative of the owner or was duly authorized in this behalf.]
In conclusion it can be said that the ultimate factor which the court keep in mind while
judging the exclusion of mens rea is a balance between individual liberty and public
order.
Criticism of the Doctrine of Mens rea

According to Sir J. Stephens, the doctrine of mens rea is misleading as the doctrine
originated when criminal law practically dealt with offences which were not defined.
This law gave them certain names such as murder, burglary, rape, and left any person
who was interested in the matter to find out what these terms meant. Such a person
found that the crime consisted not merely in doing a particular act, such as killing a
man or taking away the purse of another person, but doing it with a particular
knowledge or purpose. This principle of one’s mental condition is generalised by the
terms mens rea. Today, however, we have come a long way from that stage, and each
crime has a precise definition. Therefore, according to Sir Stephens, at a stage of
criminal law where every offence has been well defined, the general doctrine of mens rea is
misleading, and indeed unnecessary.
As far as offences under the Indian Penal Code are concerned, as J.D. Mayne, the
learned author of ‘Criminal Law in India’ has pointed
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
1. “Nothing is an offence which is done by a person who is bound by law to do

it.” Discuss. [I.A.S.-
2001]
[30]
General Exceptions 31
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
2. A question based on this illustration. [I.A.S.-
2004]
3. Ignorantia facti excusat, Ignorantia juris non excusat. Discuss.[D.U.-2008/2009]
Distinguish between 'mistake of fact’ and ‘mistake of law.’ [D.U.-2008/2011]

32 Criminal Law II
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.
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.
4 . A question based on this illustration. [I. A. S.-2004]

34 Criminal Law II
In other words, the distinction is between a real or supposed legal

obligation/compulsion and a real or supposed legal justification in doing the
particular act. However, under both the sections, there is a bona fide intention to
advance the law (mens rea is absent in both).
Where A mistook in good faith another’s umbrella to be his own and took the
defence that at the time of taking the umbrella he was intoxicated and erroneously
believed that the umbrella was his own, the defence is tenable (Sec. 76). Where A
shoots at B (A’s inmate) who enters his room at night under circumstances which
make A to believe in good faith that B is a burglar, it was held that A will not be liable
for shooting B and will be entitled to claim defence of justifiable mistake under Sec.
79.
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.”
LEADING CASE: STATE OF ORISSA V RAM BAHADUR THAPA4a (AIR

1960 Ori 161)
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
4a. A question based on this case [D.U.-2012]

flowers in lantern light. The prosecution side argued that it is a modern

scientific era and it is impossible to believe in ghosts. Further, the accused
did not stop attacking, in spite of the cries of the victims, i.e., he did not act
with due care and attention, or in good faith.
The High Court observed that ‘good faith’ requires due care and
attention, but there can be no general standard of care and attention
applicable to all the persons and under all the circumstances; the capacity
and intelligence of a person is also an important factor. The High Court,
holding that Sec. 79 is applicable, took note of the following main points:
(i) The accused, a Nepali servant, was neither of high status nor
had he any intellectual attainment.
(if) He was a superstitious person, a firm believer in ghosts.
(iii) He was a stranger to the locality. He had no enmity with the
deceased.
(iv) The place was reputed to be infested with ghosts.
(v) The two persons by accompanying the accused and his
master with a view to seeing ghosts, rather confirmed the
impression regarding the existence of ghosts.
(vi) The noticing of the flickering of light and of some figures
around the light and the shouting: “Here are ghosts” by one
of the companions greatly excited the accused.
(vii) The persons with a higher standard of attainments also
thought that the figure moving around the light were ghosts
and neither of them dissuaded the accused from going there.
The High Court held that there was no reason for the accused to entertain
any doubt whatsoever about the existing of ghosts and his companions by
their conduct confirmed the same. It was further held that the mere fact, that
had he exercised extra care
36 Criminal Law II
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
LeadingCase: STATE OF ORISSA v BHAGABAN BARIK

[(1987) 2 SCC 498]
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
4b. A question based on this case. [D.U.-2011

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.”
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.]
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.
Tests/Principles to determine Insanity of a Person7

In the famous English case - McNaughten’s case (1843) 10 Cl & F 200, for many years, Mr.
McNaughten suffered from a “persecution mania”.
5. Discuss critically the defence of insanity as provided in Sec. 84, IPC.

II. A. S -2005] [LC.//-93]
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]
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.
However, in cases of delirium tremens - a kind of madness brought about by habitual

excessive liquor/illness, if the patient knew as to what he was doing, he would be
criminally liable.
(10) Recent trends - The right and wrong test (i.e., the accused should be incapable of
knowing whether the act done by him is right or wrong) no longer dominates
this branch of criminal law and mental abnormality falling short of complete
insanity is a limited defence establishing a claim of diminished responsibility
under Sec. 2 of the Homicide Act (English), 1957.
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.
Leading Case: QUEEN-EMPRESS v KADER NASYER SHAH

[(1896) IA 23 CAL 604]
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.
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.
The court held that the circumstances attending the murder go to

show that he could not have been deprived of such running 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. The court recommended to the State Government that the case
to be dealt with by the Local Government in such manner it thinks fit,
recommending every indulgent consideration.
LeadingCase: EMPEROR v GEDKA GOWLA

[(1937) 16 PAT 333]
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.
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
LEADING CASE: LAKSHMI V STATE (AIR

1959 ALL 534)
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
9. “Irresistible impulse by itself affords no valid defence, but should be a good

defence only where there is evidence of an antecedent unsoundness of mind.”
Comment. * [D.U.-2008]
Give your own view as to whether irresistible impulse should be included in
legal insanity as a defence. [D.U.-2012]
The defence of irresistible impulse has frequently been rejected in charges of
murder. Discuss. [I.A.S.-2002]
of a perverted potentiality. The belief of a person cannot be protected once it

is found that he possessed the capacity to distinguish between right or
wrong.
What the law protects is the case of a man in whom the capacity to
distinguish between legality and illegality is completely extinguished. When
the “guiding light” (i.e. capacity) is found to be still flickering, a man cannot
be protected under Sec. 84; the plea that he was misled by his own
misguided intuition or by any fancied delusion which had been haunting
him and which he mistook to be a reality, will be of no use.”
LEADING CASE: DAHYABHA1 CHHAGANBHAI THAKKAR v STATE OF

GUJARAT
(AIR 1964 SC 1563)
In this case, the appellant killed his wife while they were sleeping in their
bed-room. His wife at about 3 a.m. cried that she was being killed. The
neighbours collected and asked the accused to open the door. When it was
opened she was found dead with a number of wounds on her body. What
happened between the husband and the wife nobody knows except the
accused. The accused was locked up for the arrival of the police but he sat
calm and quiet in the room. He was not abusing and he replied to the
questions put by the police inspector.
His conduct before the Magistrate (when he was sent there for making
a confession) indicates that he was in a fit condition to appreciate the
questions put to him and finally he made up his mind not to make the
confession. Earlier the father of the deceased (about 20 days before the
occurrence) had received a letter from the accused to take away his daughter
because he did not like her.
The court observed: When the plea of insanity is set up, the court has
to consider whether at the time of commission of the offence the accused by
reason of unsoundness of mind, was incapable of knowing the nature of the
act or that what he was doing was wrong or contrary to law. 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. It must be shown that
48 Criminal Law II
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
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).
LeadingCase: T.N. LAKSHMAIAH V STATE OF KARNATAKA

[(2002) 1 SCC 219]
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
The court observed: The doctrine of burden of proof in the context

of the plea of insanity may be stated in the following propositions (as laid
down in Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563):
(i) The prosecution must prove beyond reasonable doubt that
the accused had committed the offence with the requisite
mens rea; and the burden of proving that always rests on the
prosecution from the beginning to the end of the trial.
(ii) There is a rebuttable presumption that the accused was not
insane, when he committed the crime, in the sense laid
down by Sec. 84, IPC: the accused may rebut it by placing
before the court all the relevant evidence - oral,
documentary or circumstantial, but the burden of proof
upon him is no higher than that rests upon a party to civil
proceedings.
(iii) Even if the accused was not able to establish conclusively
that he was insane at the time he committed the offence,
the evidence placed before the court by the accused or by
the prosecution may raise a reasonable doubt in the mind
of the court as regards one or more of the ingredients of the
offence, including mens rea of the accused and in that case
the court would be entided to acquit the accused on the
ground that the general burden of proof resting on the
prosecution was not discharged.
(iv) There is no conflict between the general burden, which is
always on the prosecution and which never shifts, and the
special burden that rests on the accused to make out his
defence of insanity.
The settled position of law is that every man is presumed to be sane and
to possess a sufficient degree of reason to be responsible for his acts
unless the contrary is proved. Mere ipse dixit of the
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.”
LeadingCase: SHRIKANT ANAND RAO BHOSALE v STATE OF MAHARASHTRA

[(2002) 7 SCC 748]
In this case, the appellant (a police constable living in police quarters)
during a quarrel with his wife, hit her with grinding stone on her head
while she was washing clothes in the bathroom. The appellant was
immediately taken by the police to the quarter guard. His wife died in the
hospital. When charged for the offence of murder, the appellant pleaded
insanity at the time of commission of crime.
The prosecution case was that the appellant by nature was an angry
person and under a fit of extreme anger, he committed
52
Criminal Law - II
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)
RIGHT OF PRIVATE DEFENCE11

(SECS. 96-106)
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”.
The doctrine of ‘right of private defence’ is founded on the following ten

expediencies:-
(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.
(ii) The right of defence is protective or preventive and not offensive or

punitive (i.e. not meant for punishing the aggressor); however, punitive
measures may result in the exercise of the defence. It is not a right of
private ‘offence’. The right to punish is that of State. Thus, if after
sustaining a serious injury there is no apprehension of further danger to
the body then obviously the right of private defence would not be
available.
(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]
urges. The act of private defence should not be deliberate or retributive. It

is available only in case of imminent peril to those who act in good faith
and in no case the right be conceded to a person who stage-manages a
situation where in the right can be used as a shield to justify an act of
aggression.
(iv) The right must be exercised when there is:-

(a) real and immediate threat (not imaginary and remote), and
(b) a reasonable apprehension of such threat. The term ‘reasonable’
implies what any common man in that situation would apprehend.
No man is permitted to make use of this right in situation where
danger or threat is only probable or likely or where one’s fears are
founded upon ‘probabilities’ or ‘possibilities.’ The apprehension
must be reasonable and not fanciful. Self-created fears of a
hypersensitive man do not permit the use of this right.
(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
(vi) The right of private 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
such right continues so long as such apprehension of danger to the body
continues. This right rests on the general principle that where crime is
endeavoured to be committed by force, it is lawful to repel that force in
self- defence. To say that a person could only claim the night to use force
after he had sustained a serious injury by an aggressive wrongful assault
is a complete misunderstanding of the law.
(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:-
(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.
(A) Private Defence of Body13

Sec. 97. “Every person has a right (subject to restrictions in Sec. 99) to defend his
own body or that of any other person against any offence affecting the human
body.”
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].
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.
Sec. 99. Acts against which there is no right of private defence

Sec. 99 places four restrictions on the right of private defence .-
(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? '
(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\
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.
(ii) similarly, in case of grievous hurt.
(lii) an assault with the intention of committing rape.
(iv) an assault with the intention of gratifying unnatural lust.
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].
(v) an assault with the intention of kidnapping or abduction.

(vi) an assault with the intention of wrongfully confining a person under
circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for release.
In the (i) situation, if the defender be so situated that he cannot exercise the right
without risk to harm to an innocent person he may even run that risk {Sec. 106). Thus, if
A is attacked by a mob which attempts to murder him and he cannot effectually
exercise his right of private defence without firing on the mob, and he cannot fire
without risk of harming young children who are mingled with the mob, A commits
no offence if by so firing he harms the children (Illustration to Sec. 106).
Four under mentioned cardinal conditions must have existed before the în g
of the life of a person is justified on the plea of self-defence:
First, the accused must be free from fault in bringing about the encounter;
Secondly, there must be present an impending peril to life or of great bodily harm,
either real or so apparent as to create honest belief of an existing necessity; Thirdly,
there must be no safe or reasonable mode of escape by retreat; and Fourthly, there
must have been a necessity for taking life.
According to Sec. 101, in other cases than those mentioned in Sec.
100, the person exercising the right may cause any other harm except death.
Sec. 102. Commencement and continuance of the right of private defence

The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed; and it continues so long
as such apprehension of danger to the body continues.
Thus, if the assailants run away or when they are disarmed by force, there
can be no apprehension of danger of one’s body or any threat of such offence against
one’s body.
(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
LEADING CASE: DEO NARAIN V STATE OF U.P.-18
(AIR 1973 SC 473)

In this case, the accused was in possession of a plot of land. The
complainant party went to that plot with an aggressive design to
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
disturb the possession of the accused by unlawful use of force. A clash

followed in which one member of the complainant party was killed by' a
spear injury caused by Deo Narain. It was proved that Deo Narain had
received head injuries before he had inflicted injury on the member of
complainant party. The question was whether the appellant exceeded the
right of private defence?
The High Court denied the right of self-defence on the ground that
he had given a dangerous blow (with a spear) on chest of the deceased,
though he himself received only a superficial blow of lathi on head. The
Supreme Court observed: “According to Sec. 102, the right of private
defence of body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence
though the offence may not have been committed, and such right
continues so long as such apprehension of danger to the body continues.
The threat, however, must reasonably give rise to the present-and
imminent danger and not remote or distant. This right rests on the general
principle that where crime is endeavoured to be committed by force, it is
lawful to repel that force in self-defence. To say that the appellant could
only claim the right to use force after he had sustained a serious injury by
an aggressive wrongful assault is a complete misunderstanding of the law
embodied in the above section.
The right of private defence is available for protection against
apprehended unlawful aggression and not for punishing the aggressor for
the offence committed by him. It is a preventive and not punitive right.
The right to punish for the commission of offences vests in the State and
not in private individuals. If after sustaining a serious injury there is no
apprehension of further danger to the body then obviously the right of
private defence would not be available.
In the present case, the complainant party had deliberately come to
forcibly prevent or obstruct the possession of the accused persons and that
this forcible obstruction and prevention was unlawful. In such a situation,
the appellant could reasonably apprehend imminent and present danger
to his body and to his companions. The complainants were determined to
use maximize force to achieve their end. The appellant was thus fully
justified in using force to defend himself and if necessary also his
companions against the apprehended danger which was manifestly

imminent.
If a blow with a lathi is aimed at a vulnerable part like the head, we
do not think it can be laid down as a sound proposition of law that in such
cases the victim is not justified in using his spear in defending himself. It
cannot be laid down as a general rule that the use of a lathi as
distinguished from the use of a spear must always be held to result only in
milder injury. Much depends upon the nature of the lathi, the part of the
body aimed at and the force used in giving the blow indeed, even a spear
is capable of being so used as to cause a very minor injury.
The Court held: In such moments of excitement or disturbed mental
equilibrium, it is somewhat difficult to expect parties facing grave
aggression to coolly weigh, as if in golden scales, and calmly determine
with a composed mind as to what precise kind and severity of blow would
be legally sufficient for effectively meeting the unlawful aggression. Therefore,
the appellant has not exceeded the right of private defence.
Leading Case: KISHAN v STATE OF M.P.19 (AIR 1974 SC

244)
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
(vi) There may be cases where accused has not managed to

discharge his burden on balance of probabilities, yet totality
of facts and circumstances may still throw doubt on the
existence of ‘mens rea.’
LEADING Case: WASSAN SINGH v STATE OF PUNJAB

[(1996) 1 SCC 458]
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....”
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.
Leading C ASE : MAHABIR CHOUDHARY v STATE OF BIHAR [(1996) 5 SCC

107]
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
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.
LeadingCase: JAMES MARTIN v STATE OF KERALA [(2004) 2

SCC 203]
defence’ by the accused during a skirmish and altercation between bandh
activists and the accused. The accused took the stand that the firing
resulting in the death of two bandh activists
and sustaining of grievous injuries to several others occurred when their

house and other buildings, situated in a common compound, and movable
properties kept therein were set on fire by an angry mob of bandh activists
when the accused failed to heed their unlawful demand to close down the
flour mill which was operated on that day. The Trial Court and the High
Court held that the accused exceeded the right of private defence and when
two persons have lost lives, it cannot be said that the act done by the
accused was within the permissible limits.
The Supreme Court observed: In determining this question of fact,
the Court must consider all the surrounding circumstances. It is not
necessary for the accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private defence was
legitimately exercised, it is open to the Court to consider such a plea. In a
given case, the Court can consider it even if the accused has not taken it, if
the same is available to be considered from the material on record. An
accused taking the plea of the light of private defence is not necessarily
required to call evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence itself. The
question in such a case would be a question of assessing the true effect of
the prosecution evidence, and not a question of the accused discharging
any burden. Where the right of private defence is pleaded, the defence
must be a reasonable and probable version satisfying the Court that the
harm caused by the accused was necessary for either warding off the attack
or for forestalling the further reasonable apprehension from the side of the
accused. The burden of establishing the plea of self-defence is on the
accused and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on record.
The oft quoted observation of this Court in Salim Zia v State of U.P. (AIR 1979
SC 391) runs as follows:
“It is true that the burden on an accused person to establish the plea
of self-defence is not as onerous as the one which lies on the prosecution
and that, while the prosecution is required to
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
it-20 It should not be allowed to be pleaded or availed as a pretext for a

vindictive, aggressive or retributive purpose of offence.
In the present case, the background facts as noted by the Trial Court
and the High Court clearly show that the threat to life and property of the
accused was not only imminent but did not cease, and it continued
unabated. Not only there were acts of vandalism, but also destruction of
property. The Trial Court found that an unruly situation prevailed in the
compound of the accused as a result of the violence perpetrated by the
bandh activists who got into the place by scaling over the locked gate and
they intimidated and assaulted PW-15 (employee of the accused) and made
him flee without shutting down the machines.
Even the High Court, candidly found that tense situation was
caused by the deceased and his friends, that PW-15 suffered violence and
obviously there was the threat of more violence to the person and
properties, that the events taking place generated a sort of frenzy and
excitement rendering the situation explosive and beyond compromise.
Despite all these to expect the accused to remain calm or to observe greater
restraint in the teeth of the further facts found that the accused had only
PW-15 who was already manhandled by the bandh activists would be not
only too much to be desired but being unreasonably harsh and
uncharitable. In the circumstances, the inevitable conclusion is that the acts
done by the accused were in the reasonable limits of exercise of his right of
private defence and he was entitled to the protection afforded in law under
Sec. 96, IPC.]
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]
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]
Discuss the law relating to commencement and continuance of the right

of private defence of property. When does the right of private defence of
property extend to the causing of death?
[I. A. S. -2004/2008]
A.1 (a) Private Defence of Property
(1) Acts against which right of defence of property can be exercised Every person has the right to
defend the property (whether movable or immovable) of himself or of any other
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
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
to the right of private defence of property:-

76 Criminal Law II
(i) There is no right of private defence of property against an act which

does not reasonably cause die apprehension of death/grievous hurt,
if done by (or by the direction of) a public servant acting in good faith
under colour of his office.
(ii) There is also no right of private defence of property in cases in which
there is time to have recourse to the protection of die public
authorities. Further, the right of private defence in no case extends to
the inflicting of more than it is necessary to inflict for the purpose of
defence.
(3) Right when commences and how long it continues (Sec. 105)
The right commences when a reasonable apprehension of danger to the property
commences. The right continues -
(i) against theft, till the offender has effected his retreat with the property;
or the assistance of the public authorities is obtained, or the property
has been recovered.
(it) against robbery, as long as the offender causes (or attempts to cause) to
any person death or hurt or wrongful restraint, or the fear of instant
death/hurt/personal restraint continues.
(iii) against criminal trespass or mischief, so long as the offender continues in the
commission of such offence.
(iv) against house-breaking by night, as long as the house-trespass continues
(thus, where a person followed a thief and killed him in the open,
after house-trespass has ceased, held that he could not plead the right
of private defence).
Thus, the right of private defence of the property commences and continues as long
as the danger lasts. The extent to which the exercise of the right will be justified will
depend, not on the actual danger, but on whether there was reasonable apprehension of
such danger.
(4) When the right extends to the causing of death, etc.
Sec. 103 enumerates the cases in which the right extends to justifiably
causing the death of the wrong-doer, viz.,
(i) Robbery,
(ii) House-breaking by night,
(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.
Decision of the case in question

Under Sec. 103, a person is entitled, while exercising the right of private defence of
property, to cause the death of the wrong doer, if the offence is ‘house-breaking by
night’. Thus, in the present case, D is entitled to the benefit of the exception.
(b) Under Sec. 97, every person has the right to defend the property of himself
or of any other person against theft. Thus the tenant, L, was within his
rights to exercise the right of private defence. But as J was committing a
theft without reasonably causing an apprehension that death/grievous hurt
will be the consequence (Secs. 103, 104), L had no right to cause the death of
J.
According to Sec. 105, the right of private defence of property against theft
continues till the offender has effected his retreat with the property. Further, under
Sec. 99, there is no right of defence in cases where there is time to have recourse to
the protection of the public authorities. When J entered his house, there is a retreat,
thus L cannot exercise right of defence here. Further, as J’s house was known, there
was sufficient time to inform the police. Thus, L’s right of defence also ceases here.
When L entered the house of J and attacked him, the right of private defence
of body accrued to J. Assault with a lathi can raise reasonable apprehension of
grievous hurt. Thus the right of private defence of J extended to causing the death of L
under Sec. 100. J is thus entitled to take the benefit of the exception.
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.
It might be argued whether the force used by C bear a reasonable proportion to

the injury being averted. But at such moments of excitement or disturbed mental
equilibrium, it is somewhat difficult to expect parties facing grave aggression to
coolly weigh, as if in golden scales, and calmly determine with a composed mind as
to what precise kind and severity of blow would be legally sufficient for effectively
meeting the unlawful aggression (Deo Narain v State of U.P. AIR 1973 SC 473).
(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.
(c) X will succeed in pleading the right of private defence.
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.
Q.4 Decide whether the plea of private defence of body/property will be

successful in the following cases:- (i) A killed a weak old woman found
stealing at night.
(ii) A caught a thief in his house at night and deliberately killed him with a
pike-axe to prevent his escape.
(iii) A number of persons apprehending a thief committing house

80 Criminal Law II
breaking strangled him and subjected him to gross maltreatment when he

was fully in their power.
(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.
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]
W’s beloved husband, H, died of plague. As a result thereof she suffered

from mental derangement and showed disorder of thought, emotion and
perception of external realities. On the occasion of MAKAR SAKRANTI, she
took her only son of three years of age to Pryagraj for pilgrimage for the
well being of the parted soul. On Jan. 3, 1995 she got up early in
morning, took a holy dip and threw her dear child into the Triveni. On her
prosecution for the murder of her son, she confessed that during the
night between Jan. 2 and 3, 1995 she could not sleep and that around
mid-night a ghost of her deceased
2 Criminal Law - II
husband commanded her to sacrifice their son suggesting to her mind

that it was better for the son to die young than to grow up wicked and that
she could easily send him to heaven by consigning him to the holy
sangam, whereupon she acted. Sobbing bitterly, she further stated “My
act may be contrary to law but I have done what is morally very right
according to my belief Is W entitled to protection under Sec. 84, IPC.
Decide
[C.L.C.-92/95/98\
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?
A.6 Unsoundness of Mind

The essentia/ ingredients of Sec. 84 are:-
(l) the accused was insane,
(ii) he was insane at the time when he committed the act and not merely
before or after the act, and
(iii) as a result of the unsoundness of mind the accused was incapable of
knowing the nature of the act or that he was doing what was really
wrong or contrary to law.
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.
However, taken alone, these factors would not be sufficient {Queen Empress v
Gedka Goivala AIR 1937 Pat 333).
(4) The belief of a person cannot be protected once it is found that he

possessed the capacity to distinguish between right or wrong. When the
‘guiding light’ (i.e. capacity to know a thing) is found to be still flickering, a
person cannot be protected under Sec. 84; the plea that he was misled by
his own misguided intuition or by any fancied delusion which had been
haunting him and which he mistook to be a reality, will be of no use
(hakshmi v State AIR 1959 All 534).
(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
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).
Decision of the first case In question

The “incapacity” contemplated by Sec. 84 is absent in the present case. Nasiruddin
knew the nature of his act and that it was contrary to law, as evidenced by his
conduct in behaving secredy and not narrating the occurrence in the presence of the
policeman. Erroneous beliefs are not protected under Sec. 84. Thus, Nasiruddin
cannot be given the benefit of Sec. 84, IPC.
Decision of the second case in question

W was suffering from mental derangement of some sort, but her cognitive faculties
were not greatly impaired. Her “guiding light” (i.e., capacity) was found to be still
flickering, as by her own admission, she knew that her act was contrary to the law.
Thus, she cannot take the benefit of Sec. 84.
Decision of the third case in question
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
whether he was insane at the time of the commission of the offence.

It may be noted that want of motive, want of pre-arrangement, want of secrecy,
etc. are relevant factors, but taken alone they will not be sufficient. Similarly, history
of insanity in the family will not suffice. Thus, P cannot get the benefit of Sec. 84.
Similarly, in the second case, Y cannot get the benefit of Sec. 84, as evidenced
by Y’s conduct — On seeing the neighbours, Y cried loudly, “I have myself killed the
members of my own family.”
(b) Prosecution Case:
(i) The courts are concerned with the legal and not with the medical view
of the question. A man may be 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. 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.
(ii) 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.
(iii) The accused may be suffering from mental derangement of some sort,
but her cognitive faculties were not greatly impaired. Her ‘guiding
light’ (i.e. capacity) was found to be still flickering as evidenced by
her conduct - telling her mistress what she had done, asking from the
police officer whether she would be hanged or imprisoned.
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.
(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]
During a birthday bash (celebrations), W, who had partaken in an

uncontrolled boozing, picked up a row over occupying a convenient seat
and shot a young boy dead with a revolver which he was carrying on his
person. On a prosecution for murder he pleads that he was incapable of
forming any intention to commit any crime because of excessive
drinking. Decide. When is self-drunkenness a good defence to such a
crime? [C.L.C.-94]
“Involuntary drunkenness i.e. drunkenness caused without one’s

knowledge or against one’s will is an excuse.” Comment. [D.U.-2008]
“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]
Bring out the difference between involuntary intoxication and voluntary

intoxication as defence to a criminal charge under the IPC. [D.U,2009]
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
(i) The absence of understanding of the nature and

consequences of an act, whether produced by drunkenness
or otherwise, is a defence to the crime charged.
(ii) Drunkenness is ordinarily neither a defence nor an excuse
for crime.
(m) If due to excessive drunkenness actual insanity supervenes,
it furnishes a complete defence to a criminal charge.
(iv) However, there may be cases falling short of insanity.
In such cases and when the crime is such that the intention
of the party committing it is one of its constituent elements,
there should be evidence to show that the drunkenness had
so affected the mind of the accused that he had become
‘incapable of forming the specific intent essential to
constitute the crime.’
(v) Where the evidence does not prove such incapacity and
merely establishes that the mind of the accused was so
affected by drink that he more readily gave way to some
violent passion, that would not rebut the presumption that
accused intended the natural consequences of his acts.
In the present case, the accused had not gone so deep in drinking, and
from the facts it could be found that he knew what he was about.]
Decision of the first case in question

Voluntary drunkenness is only a limited defence to a criminal charge, and such
defence operates when the offender was incapable of forming a specific intent. In
the present case, it cannot be said that S was too drunk to form an intention. It is a
case of ‘excited state of mind and not ‘incapacity of mind’. His conduct clearly proves it
viz., he took the girl to a room so that he can rape her, he was quite conscious that
her screaming could cause someone to come and rescue her. S is, thus, liable for
murder.
Decision of the second case in question

In view of the decision in Basdev v State of Pepsu, it cannot be said that W was incapable
of forming a specific intent. Thus, he is liable to be convicted for murder.
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
believing that her husband A is dead, married another person Y. Then

about six months after the marriage, A came back, and prosecuted W for
the offence of bigamy. What defence, if any, is available to W?
[L.C.II-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.
Decision of the cases in question

Case (a): W can take the defence of ‘mistake’, in view of the decision in To Isons case.
Case (b): P has not acted in a bona fide manner: there was no genuine effort to reach the
truth, and a ready acceptance and ill-natured belief can be imputed to P. B could
sue P.
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
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.
Essential Ingredients of Sec. 34 1

Before a person can be held liable for the acts of another person under Sec. 34, two
points have to be established, viz.-
(a) that there was common intention, in the sense of a pre-arranged plan,
between the two, and
(b) that the person sought to be made liable had, in some way participated in
the act.
Thus, unless ‘common intention’ and ‘participation’ both are present, Sec. 34 will not
apply. The common intention is the mens rea necessary to constitute the very offence
that has been committed. It is a bare desire to commit a criminal act without any
contemplation of the consequences. Participation in the crime in furtherance of the
common intention is sine qua non under Sec. 34.
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]
(a) Common Intention

(i) Common intention is different from same intention*- - Common intention necessarily
implies a pre-arranged plan or prior concert or prior meeting of minds.
Thus there is a sharing of the purpose (‘it is like a thread in necklace that
runs through all the beads’), which is lacking in a case where several
persons have the same or similar intention’. Several persons can
simultaneously attack a man and each can have the same intention,
namely, the intention to kill, and each can individually inflict a separate
fatal blow and yet none would have the common intention required by the
section because there was no prior meeting of minds to form a pre-
arranged plan (See Pandurang v State of Hyderabad, and Mahbub Shah v Emperor
discussed later). On the other hand, a mob of 200 persons (armed with
various deadly weapons) which had the common object to prevent the
labourers from working in the field might develop on the spot the common
intention to commit murder (Dukhmochan Pandey v State of Bihar AIR 1943 All.
271).
“The distinction between a common intention and a similar intention may be fine,
but is nonetheless a real and if overlooked, may result in miscarriage of justice. The
distinction must be borne in mind which would be relevant in deciding whether
Sec. 34 will apply to all those who might have made some overt act on the spur of
the moment” (Dukhmochan
Pandey case).
Mere presence together is not sufficient to hold that both the accused shared
the common intention to murder a person. In State of U.P. v Rohan Singh [1996 CrLJ 2884
(SC)], A, B, C and D went to the house of the complainant. A and B were armed
with guns while C and D had lathis. C and D exhorted %and B to kill two persons
present in the house. A fired a shot at one person killing him, while B fired a shot at
another person injuring him. It was held that at best the two respondents shared a
‘similar intention’ to shoot at the victims, but that was not sufficient for drawing of
an inference to show that they shared ‘common intention.’
2. Discuss: “Common intention is not the same thing as samejntenUorT

Group Liability 99
(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
conspirators to be done; otherwise, the words would not be

needed at all. 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, a necessary act after achieving the common
intention). The act should not be extraneous (outside) of the
common intention, or is done in opposition to it. Acts done in
excess of common intention will not make other liable.
In Shankarlal v State of Gujarat (AIR 1965 SC 1260), the court observed:
“The dictionary meaning of the word ‘furtherance’ is ‘advancement or
promotion.’ If four persons have a common intention to kill A, they will
have to do many acts in promotion or prosecution of that design in order
to fulfill it. Some illustrations will clarify the point. Four persons intend
to kill A in his house. All of them participate in different ways. One of
them attempts to enter the house, but he is stopped by sentry and he
shoots the sentry. Though the common intention was to kill A, the
shooting of the sentry is in furtherance of the said common intention.
So Sec. 34 applies. Take another illustration. One of the said accused
enters the room where the intended victim usually sleeps, but somebody
other than the intended victim is sleeping in the room and on a mistaken
impression, he shoots him. The shooting of the wrong man is in
furtherance of the said common intention, and so Sec. 34 applies.”
(iv) Evidence for common intention - Common intention is a question of
fact. Although it is subjective, it can be inferred from the facts
and circumstances. The expression ‘common intention’ cannot be
given a constant meaning. In one case, the accused were all
relatives of each other, and armed with deadly weapons, they
simultaneously attacked the deceased when ordered “Kill! Kill!”
by a person. After the incident they left the scene together, and
were later arrested at the same place. In the circumstances it was
held that the accused had inflicted the injuries with a common ls
intention (Maqsoodan v State of U.P. AIR 1983 SC 126). Hcwevo;
the mere fact that the accused came together armed with rifles if
would not be sufficient to indicate that they came having shared * '
a common intention to commit the murder (Gajjan Singh v Stilt ls
of Punjab AIR 1976 SC 2069).
Group Liability 101
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).
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.
LEADING CASE : MAHBUB SHAH v EMPEROR [(1945) 47

BOM. LR 941]
[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
common intention to commit the criminal act complained against, in

furtherance of such intention? Evidence falls short for showing that A and
B ever entered into pre-meditated concert to cause C’s murder in carrying
out their intention of rescuing A’s cousin.
It further observed: “Sec. 34 lays down a principle of joint liability in
the doing of a criminal act. It does not say ‘the common intention of all’ nor
does it say an intention common to all.’ Under the section, the essence of
that liability is to be found in the existence of a common intention
animating the accused leading to the doing of a criminal act in furtherance
of such intention. Care must be taken not to confuse same or similar
intention with common intention: the partition which divides ‘their
bounds’ is often very thin, nevertheless, the distinction is real and
substantive and if overlooked, will result in miscarriage of justice.
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 act or
conduct or other relevant circumstances of the case. The inference of
common intention within the meaning under Sec. 34 should never be
reached unless it is a necessary inference deducible from the circumstances
of the case.”
The Privy Council, thus, set aside the appellant’s conviction for
murder.
Leading Case: PANDURANG v STATE OF HYDERABAD

(AIR 1955 SC 216)
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,
(ii) no evidence of any prior meeting; several persons can

simultaneously attack a man and each can have the same
or similar intention, but not the common intention,
(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;
(iv) the accused belonged to different castes and were not

related to one another so that there could be some
understanding or common interest.
The Supreme Court observed: The inference of common intention within

the meaning under Sec. 34 should never be reached unless it is a necessary
inference deducible from the circumstances of the case. A common
intention pre-supposes prior concert. The pre-arranged plan need not be
elaborate, nor is a long interval of time required. It could arise and be
formed suddenly. 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. But pre-arrangement there must be and pre-
meditated concert. It is not enough as in Mahbub Shah’s case to have the same
intention independendy of each other.
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
LEADING CASE: TUKARAM V STATE OF MAHARASHTRA (AIR 1979

SC 185)
In this case, the accused broke open the godown of a company, and
removed some copper wires bundles by a truck. The truck was stopped at
the nearby weigh bridge where the brokers were present to negotiate the
sale of copper wire. The appellant (one of co-accused) was present at the
weigh bridge, but not at the scene of occurrence. The appellant was held
guilty, however, on the ground that he supplied the duplicate key of
godown and waited at the weigh bridge.
The court held that ‘participation , does not means participation in

the actual doing or commission of a crime; if a person is directing entire
operation from some distance, he would also be deemed to be participating
in the crime and would be covered by Sec. 34 (in most cases of smuggling,
the king-pin or the boss ‘supervises’ from a distant place). 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.
Those who operate by remote control are also participating in the

crime as by those who are doing actual physical removal of things: criminal
acts executed by operating together in a concert.
[However, in an earlier case, S. Ramaya v State of Bombay (1954) 57 Bom LT 632

(SC), the Supreme Court has held that it is the essence of Sec. 34 that the
person must be physically present at the actual commission of the crime.
He need not be present in the actual room, he can, for instance stand guard
by a gate outside ready to warn his companions about any approach of
danger or wait in a car on a nearby road ready to facilitate their escape, but
he must be physically present at the scene of the occurrence and must
actually participate in the commission of the offence in some way or the
other at the time the crime is actually being committed. Sec. 34 is concerned
with the stage of commission when the plans are put into effect.
To the preliminary planning, there must be added to it the element

of physical presence at the scene of occurrence coupled
with actual participation which, of course, can be a passive character such as

standing by a door, provided that is done with the intention of assisting in
furtherance of the common intention of them all and there is a readiness to
play his part in the prearranged plan when the time comes for him to act.
The emphasis in Sec. 34 is on the word “done”: “When a criminal act is done
by several persons ...” It is essential that they join in the actual doing of the
act and not merely in planning its preparation. “Participation in action” is
the leading feature of Sec. 34. Because participation de facto may sometimes be
obscure in detail, it is established by the presumption juris et d ejure that ‘actual
presence plus prior abetment can means nothing else but participation.
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”].
LEADING CASE : SURESH V STATE OF U.P.3 [(2001)

3 SCC 673]
In this case, the ambit of Sec. 34, IPC were in issue. More specifically,
whether the accused who is sought to be convicted
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
(iii) Sec. 37 deals with the commission of an offence “by means of

several acts”. The section renders anyone who intentionally
co-operates in the commission of that offence “by doing any
one of those acts” to be liable for that offence. Sec. 38 also
shows another facet of one criminal act being done by several
persons without connecting the common bond i.e. “in
furtherance of the common intention of all”. In such a case,
they would be guilty of different offence or offences but not
for the same offence.
(iv) Hence, under Sec. 34, one criminal act, composed of more
than one act, can be committed by more than one person and
if such commission is in furtherance of the common intention
of all of them, each would be liable for the criminal act so
committed.
(v) To understand Sec. 34 better, it is useful to recast it in a
different form by way of an illustration. This would highlight
the difference when several persons do not participate in the
crime committed by only one person even though there was
common intention of all the several persons. Suppose, a
section was drafted like this: “When a criminal act is done by
one person in furtherance of the common intention of several
persons, each of such several persons is liable for that act in
the same manner as if it were done by all such persons”.
Obviously Sec. 34 is not meant to cover a situation which
may fall within this fictitiously concocted section under
which the coaccused need not do anything because the act
done by the principal accused would nail the co-accused also
on the ground such act was done by that single person in
furtherance of common intention of all. but Sec. 34 is intended to
meet a situation wherein all the co-accused have also done something to constitute
the commission of a criminal act.
Group Liability 109
(vi) Even the concept of presence of the co-accused at the scene is

not a necessary requirement to attract Sec. 34 e.g. the co-
accused can remain a little away and supply weapons to the
participating accused either by throwing or by catapulting
them so that they can be used to inflict injuries on the
targeted person. Or, one of such persons, in furtherance of the
common intention overseeing the actions from a distance
through binoculars can give instructions to the other accused
through mobile phones as to how effectively the common
intention can be implemented. We do not find any reason
why Sec. 34 cannot apply in the case of those two persons
indicated in the illustrations.
(vii) Thus, to attract Sec. 34, two postulates are indispensable: (1)
The criminal act (consisting of a series of acts) should have
been done, not by one person, (2) Doing of every such
individual act cumulatively resulting in the commission of
criminal offence should have been in furtherance of the
common intention of all such persons.
(viii) The act mentioned in Sec. 34 need not be an overt act, even an
illegal omission to do a certain act in a certain situation can
amount to an act, e.g. a coaccused, standing near the victim face
to face saw an armed assailant nearing the victim from behind
with a weapon to inflict a blow. The co-accused, who could
have alerted the victim to move away to escape from the
onslaught deliberately refrained from doing so with the idea
that the blow should fall on the victim. Such omission can also
be termed as an act in given situation. Hence an act, whether overt or
covert, is indispensable to be done by a co-accused to be fastened with the liability under
the section. But if no such act is done by a person, even if he has
common intention with the others for the accomplishment of
Criminal Law - II
the crime, Sec. 34 cannot be invoked for convicting such

person. In other words, the accused who only keeps the
common intention in his mind, but does not do any act at the
scene, cannot be convicted with the aid of Sec. 34.
(ix) There may be other provisions in the IPC like Sec. 120-B or
Sec. 109 which could then be invoked to catch such non-
participating accused. Thus participation in the crime in
furtherance of the common intention is sine qua non under Sec.
34. Exhortation to other accused, even guarding the scene,
etc. would amount to participation. However, in such cases,
the court has to evaluate the evidence very carefully for
deciding whether that person had really done any such act.
(x) A Division Bench of the Madras High Court has said as early
as in 1923 that “evidence of some distinct act by the accused,
which can be regarded as part of the criminal act in question,
must be required to justify the application of Sec. 34” (Aydroos
v Emperor AIR 1923 Mad. 187).
(xi) It is difficult to conclude that a person, merely because he
was present at or near the scene (as in the present case), -
without doing anything more, without even carrying a
weapon and without even marching along with the other
assailants, could also be convicted with the aid of Sec. 34 for
the offence committed by the other accused.
Sethi, J. (for himself and Agrawal, J.) (Concurring)-. We agree with the aforesaid views.
However, in view of the importance of the matter, in so far as the
interpretation of Sec. 34 is concerned, we have chosen to express our views:
(i) For the applicability of Sec 34 to a co-accused, who is proved
to have common intention, it is not the requirement of law
that he should have actually done
Group Liability 111
something to incur the criminal liability with the aid of this

section. It is now well settled that no overt act is necessary to
attract the applicability of Sec. 34 for a co-accused who is
otherwise proved to be sharing common intention with the
ultimate act done by any one of the accused sharing such
intention.
(if) The dominant feature for attracting Sec. 34 is the element of
participation in action resulting in the ultimate “criminal act”.
The “act” referred to in latter part of Sec. 34 means the
ultimate criminal act with which the accused is charged of
sharing the common intention. The accused is, therefore,
made responsible for the ultimate criminal act by several
persons in furtherance of the common intention of all. The
section does not envisage the separate act by all the accused
persons for becoming responsible for the ultimate done
criminal act. If such an interpretation is accepted, the purpose
of Sec. 34 shall be rendered infructuous.
(iii) Participation in the crime in furtherance of the common
intention cannot conceive of some independent criminal act
by all accused persons, besides the ultimate criminal act
because for that individual act law takes care of making such
accused responsible under the other provisions of the IPC.
The word “act” used in Sec. 34 denotes a series of acts as a
single act. What is required under law is that the accused
persons sharing the common intention must be physically
present at the scene of occurrence and be shown to not have
dissuaded themselves from the intended criminal act for
which they shared the common intention. The presumption of
constructive intention, however, has to be arrived at only
when the court can, with judicial servitude, hold that the
accused must have pre-conceived result that ensued in
furtherance of the common intention.
112 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
no overt act is attributed to the individual accused,

Sec. 34 will be attracted as essentially it involves vicarious
liability. But if participation of the accused in the crime is
proved and a common intention is absent, Sec. 34 cannot be
invoked. For the purpose of common intention even the
participation in the commission of the offence need not be
proved in all cases. The common intention can develop even
during the course of an occurrence [Rajesb Govind Jagesha v State of
Maharashtra (1999) 8 SCC 428].
(viii) However, in this case on facts, the prosecution has not
succeeded in proving that accused Pavitri Devi shared the
common intention with the other two accused persons, one of
whom was her husband and the other her brother. It has
come in evidence that when the witnesses reached on the
spot, they found the said accused standing on the road
whereas the other accused were busy committing the crime
inside the house. By her mere presence near the place of
occurrence at or about the time of crime in the absence of
other evidence, direct or circumstantial, cannot hold her
guilty with the aid of Sec. 34. But in case the prosecution had
succeeded in proving on facts of her sharing of common
intention with other accused, she could not be acquitted of the
charge framed against her only on the ground that she had
actually not done any overt act]
In Nandu Rastogi v State of Bihar (AIR 2002 SC 3443), the main accused came to the shop
of the informant and warned him to caution his son not to interfere in his matters.
He threatened the informant with dire cotsequences in case of any interference.
Later, he came along with the four other accused at the informant’s shop and caught
hold of informant’s son and took him inside the residential apartment which was
just behind the shop at gun point. When the informant and others wanted to
intervene, they were prevented by one of the accused and his companion who stood
ward with pistols in their hands. They threatened them to keep quiet.
After the gun shots were fired inside the house, the accused fled awaj.| When
informant went inside, he found his son bleeding and unconscious who died later on
in hospital.
It was held that all the five accused had a common intention to commit the
murder Le. they acted in pursuance of a pre-fixed plan. It is not necessary that each
one of the accused must assault the deceased. It is enough if it is shown that they
shared a common intention to commit the offence and in, furtherance thereof each
played his assigned role by doing separate acts, similar or diverse. Some of the
accused played the role of keeping off people from coming to the rescue of the
deceased with a view to achieve the ultimate object of killing the deceased. All the
accused, were thus guilty of murder under Sec. 302 read with Sec. 34.
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
(i) The assembly must consist of five or more persons.

(ii) An assembly which is not unlawful in its inception does not become an
unlawful assembly because of its refusal to obey an order to disperse.
Moreover, it does not become unlawful by reason of its lawful acts exciting
others to do unlawful acts.
(iii) At the same time, an assembly which is lawful in its inception may become
unlawful by subsequent acts of its members. But an illegal act of one or two
members, not acquiesced in by the others, does not change the character of
the assembly (Moil Das v State of Bihar AIR 1954 SC 657).
(iv) When two factions fight, the members do not become members of an
unlawful assembly, because they have no common object. An offence under
Sec. 141 cannot be said to be committed when two opposite factions commit a
riot and fight, as it cannot be said that both the parties had any common
object.
Sec. 142. Being member of unlawful assembly - “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.”
Sec. 149. Every member of unlawful assembly guilty of offence committed in
prosecution of common object - “If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of committing of that offence, is a member of the
same assembly, is guilty of that offence.”
Sec. 149 is an exception to the general principle of criminal law in the sense that a
person can be convicted and sentenced only on proof of his being a member of the
unlawful assembly, sharing the common object, notwithstanding as to whether he had
actually participated in the commission of the crime or not. Sec. 149 has the following
essentials:—
(i) commission of an offence by any member of an unlawful assembly,
(ii) such offence must have been committed in prosecution of the common object of
the assembly, or
(iii) the offence must be such as the member of the assembly knew to be likely to
be committed in prosecution of the common object
The following important points may also be noted:—
(iv) There must be a nexus between the common object and the offence
committed.
(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
part of unlawful assembly’ is sufficient for conviction [Yunis v State of M.P.

2003 Cr LJ 817 (SC)]. This point was also emphasised in the below-
discussed case.
LEADING CASE: MADAN SINGH v STATE OF BIHAR
[(2004) 4 SCC 622]
In this case, held that mere presence in unlawful assembly cannot render a
person liable unless he was actuated by common object and that object is one
of those set out in Sec. 141, IPC. Further, it is not necessary to decide as to
which of the accused persons inflicted what particular injury, if the accused
are members of assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of
the acts which fall within the purview of Sec. 141.
There need not be any pre-planning among members of an unlawful
assembly as to the common object, it is enough if it is adopted by all
members and is shared by all of them. Whether the object is in their minds
when they come together or whether it occurs to them afterwards is not
material (a lawful assembly may become unlawful later). The time of
forming an unlawful intent is not material. But it is necessary that they
should all be aware of it and concur in it.
A common object may be at any stage by all or a few members of the
assembly and the other members may just join and adopt it. Once formed it
need not continue to be the same; it may be modified or altered or
abandoned at any stage. There must be community of object and the object
may exist only up to a particular stage, and not thereafter. Members of an
unlawful assembly may have community of object up to a certain point
beyond which they may differ in their objects and the knowledge possessed
by each member of what is likely to be committed in prosecution of their
common object may vary not only according to the informaion at his
command, but also according to the extent to which he shares the
community of object, and as a consequence of this the effect of Sec. 149 may
be different on different members of the same assembly.
What the common object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to be determined,
keeping in view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near the scene of the
incident.
Sec. 149 consists of two parts. The first part of the section means that
the offence to be committed “in prosecution of common object” (the words
have to be strictly construed as
equivalent to “in order to attain the common object”) must be one which is
committed with a view to accomplish the common object. It must be
immediately connected with the common object by virtue of the nature of the
object. Even if the offence does not fall under first part, it may yet fall under
Sec. 141 if the offence was such as the members knew was likely to be
committed and that is what is required in the second part of the section. The
word “knew” implies something more than a possibility and it cannot be
made to bear the sense of “might have been known.” Positive knowledge is
necessary.
When an offence is committed in prosecution of the common object, it
would generally be an offence which the members knew was likely to be
committed in prosecution of the common object. That, however, does not
make the converse proposition true; there may be cases which would come
within the second part but not within the first part. The distinction between
the two parts cannot be ignored or obliterated. It should be determined in
every case. However, there may be cases which would be within the first part
but offences committed in prosecution of the common object, would be
generally, if not always, be within the second part.]
(vi) There should be proximity of time and place, both between the members and
the criminal acts of the members. However, it is not necessary that all
members must continue together or help one another at the time of
commission of crime.
(vii) The words "in prosecution of common object" do not mean “during the
prosecution of the common object” of the assembly. Thus, if an unlawful
assembly goes with the common object of theft, and there unknown to
others, a member rapes someone, the offence of rape cannot be attributed to
all five.4
Thus, if the criminal act was a fresh and independent act springing wholly from the
mind of the doer, the others are not liable, merely because when it was done they were
intending to be partakers with the doer in a different criminal act. This section does not
refer to cases where several persons intend to do an act and someone or more of them
do an entirely different act. In such cases Sec. 149 may be applicable if the number of
the persons is five or more and the criminal act was done in prosecution of the
common object of all.
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]
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
LEADING CASE: CHANDRA BIHARI GAUTAM v STATE OF BIHAR

(AIR 2002 SC 1836)
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.
The Supreme Court observed: Sec. 149 is an exception to the criminal

law where under a person can be convicted and sentenced for his vicarious
liability only on the proof of his being a member of the unlawful assembly,
sharing the common object, notwithstanding as to whether he had actually
participated in the commission of the crime or not. Common object does not
require prior concert and a common meeting of minds before the attack. An
unlawful object can develop after the accused assembled. The existence of
the common object of the unlawful assembly has to be ascertained on the
facts and circumstances of each case. It is true that mere presence of the
accused is not sufficient to hold them guilty for the sharing of common
object as the prosecution has to further establish that they were not mere
bystanders but in fact were sharing the common object.
When a concerted attack is made by a large number of persons, it is

often difficult to determine the actual part played by each of the accused but
on that account for an offence committed by a member of the unlawful
assembly ‘in the prosecution of the common object’ or ‘for an offence which
was
121
Group Liability
known to be likely to be committed in prosecution of the common object’

(thus, Sec. 149 has two parts), persons proved to be members cannot escape
the consequences arising from the doing of that act which amounts to an
offence. There may not be 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.
In the present case, even if the common object of the unlawful
assembly is stated to be apprehending Nawlesh Singh only the fact that the
accused persons had attacked the house of the complainant at the dead of the
night and were armed with deadly weapons including the guns, and used
petrol bombs, proves beyond reasonable doubt that they knew that in
prosecution of the alleged common object, murders were likely to be
committed. The knowledge of the consequential action in furtherance of the
initial common object is sufficient to attract Sec. 149 for holding the members
of the unlawful assembly guilty for the commission of the offence by any
member of such assembly.]
In Manga/ Singh v State of Bihar [2005 Cr LJ 3755 (SC)], during a land dispute, the accused
party fired at the deceased party after exchange of words. Many members except two of
accused party were armed with fire arms. The unarmed members also did not commit
any overt act, like, exhortation to armed members. It was held that these two cannot be
said to have shared common object of assembly and as such they cannot be
convicted.
Distinction between Sec. 149 and Sec. 346

The two sections have a certain resemblance and may to an extent overlap (both sections
deal with constructive criminality), but it cannot be said
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
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.
(iii) The principal element in Sec. 34 is the “common intention” to commit a

crime, while in Sec. 149 it is the “common object”. Common object is different
from common intention in that it does not require prior concert and
common meeting of minds before the attack; an unlawful common object
may develop at the spot after the assembly gathers. Common intention
necessarily postulates a pre-arranged plan. Common object, thus, is wider in
scope and amplitude than common intention. The object of an unlawful
assembly might be common, but the intention of the several members might
differ.7
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?
(b) A, B, C, D and E armed with a handgun, a spear, a lathi, a sword, and a

knife respectively with the common object of taking forcible possession
of land from M, N and 0 enter on the land in their possession. The latter
who are in possession try to checkmate intrusion and in the fight A alone
fires and O is killed. Decide the liability of A, B, C, D and E for the killing
of O and refer to precedents. [C.L.C.-92/94]
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]
A. 1 (a) Unlawful Assembly

According to Sec. 141, an assembly of 5 or more persons is designated an “unlawful
assembly”, if the common object of the persons composing that assembly is to take
forcibly possession of any property [Clause (iv)].
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 present problem is based on the following two cases:-
Leading Case: MIZAJI v STATE OF U.P.

(AIR 1959 SC 572)
In this case, there was a dispute between the two parties regarding a field.
The five accused (appellants) came to the field armed with different
weapons (spear, gun, lathi, etc.). An altercation occurred between the two
parties. One of the accused (Mizaji) fired, when he was asked so by his
father, and thus killed a member of the other party.
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
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.
LEADING CASE: MAINA SINGH v STATE OF RAJASTHAN 9 (AIR 1976

SC 1084)
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
to the conclusion that 5 or more persons participated in the incident. Thus,

the court must always distinguish cases where it is proved that an assembly
consisted of more than 5 persons but some of them are not identified from
cases where the court is in doubt whether other persons were present at all,
who, though not identified, would make up the number 5 or more.
The court held that in the present case there were only 5 named
persons who were involved, and there was no evidence to show that along
with these 5 named persons there were other persons also identified or
identifiable. Out of the five accused, four were given benefit of doubt and
acquitted. Under the circumstances, for the remaining fifth accused, it was not
permissible to invoke Sec. 149 or Sec. 34 and he would be responsible for the
offence committed by him personally without regard to the participation of
others.]
In Amar Singh v State of Punjab (AIR 1987 SC 826), seven persons had been specifically
named, and it was not the prosecution case that there were other persons also who were
involved in the crime, and out of them
2 had been acquitted. It was held that the remaining 4 could not be convicted under
Sec. 149, for the first condition to be fulfilled in designating an assembly an “unlawful
assembly” is that such assembly must be of 5 or more persons, as required under Sec.
141.
Decision of the case In question

The five accused have the common object of taking forcible possession of A’s house,
thus they form an ‘unlawful assembly [clause (iv) of Sec. 141]. As the accused have
armed themselves with lathis, it is likely that ‘grievous hurt’ may be caused. Thus, all
the accused are liable for causing grievous hurt to A.
J or K had a hidden pistol by which J or K killed A. The common object of the
assembly was not to kill A, but to take forcible possession of A’s house. The fact that the
pistol was hidden with J or K shows that all the members do not share the common
object of killing A. Thus, the offence of killing A has been committed during the
prosecution of the common object, and not in its prosecution. Thus, J or K will be
personally liable for A’s murder.
If X and Y are acquitted, and there is no question of any participation by other

persons not identified are identifiable, the membership of the group would be reduced
to 3, and Sec. 149 will not apply. The other three accused may be convicted under Sec.
34, if the ‘common intention’ to commit the offence can be established.
(b) The five accused (A, B, C, D and E) have the common object of taking forcible
possession of land from M, N and O. The accused were armed with deadly
weapons (handgun, sword, spear, knife and lathi), thus it is reasonable to
infer that they ‘knew’ death was likely to be caused in the prosecution of the
common object. Thus, all five accused will be liable for O’s murder under
Sec. 302 read with Sec. 149, IPC.
In the second case also, all five accused (A, B, C, D and E) will be liable.
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
in broad day light invites encounters from the customers or bank

employees and such encounters could prove fatal);
(iii) besides pre-planning, what is required under Sec. 34 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). It is enough under Sec. 34 if all the accused had a part to play (thus
Mr. Ghosh cannot plead that he did not participated in the commission of the
crime10).
Mr. Ghosh will be guilty under Sec. 149 also:-
(i) there was a common object to commit robbery by five persons (thus there
was an unlawful assembly);
(ii) the members of such assembly will be liable for the offences which they
knew were likely to be committed in the prosecution of the common object
(as discussed above, murder during a bank robbery is a likely act);
(iii) a mere membership of the unlawful assembly is enough, Sec. 149 do not
requires participation in the crime.
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.
Discuss the liability of each of M, S, P, R and G. Will it make any

difference if G could successfully prove that he stayed back because of
the injury suffered by him while the disputed wall? [C.L.C.-96/99]
X group, consisting of seven persons, waylaid Y group of persons. In the

fighting that ensued between the Iwo groups,
A person belonging to the X group, was injured. Because of the injury A
had to withdraw to one side and he took no further part in the fight that
continued between the two groups^ Sometime later a person belonging
to the Y group was killed in the fighting. A along with other persons of
the X group are prosecuted for the murder. Decide. [I.A.S.-97]
A. 6 A lawful assembly may subsequently become an unlawful assembly
(explanation to Sec. 141). There need not be any pre-planning among
members of an unlawful assembly as to the common object, which can
develop at the spur of the moment. Thus, in the present case, an unlawful
assembly comes into existence (between M, P, R, S and G) with the
common object of beating
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
or imprisonment, or to cause such an offence to be committed, and in such attempt

does any act towards the commission of the offence, shall where no express provision
is made by this code for the punishment of such attempt, be punished, with
imprisonment of any description provided for the offence, for a term which may
extend to one-half of the imprisonment for life/one-half of the longest term
imprisonment provided for that offence, or with such fine as is provided for the
offence, or wit
both.1
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.
1 What is the punishment prescribed for a [I.A.S.-91]
criminal attempt? What is the extent of

[D.U.-2011]
liability in attempt?
Attempt 135
Meaning o f ‘Attempt’ 2
The word ‘attempt’ means ‘to try’ or ‘to endeavour to do something.

‘Attempt’ means an act towards the commission of the offence which
fails due to circumstances independent of the attempter’s will. Thus, it
means any voluntary act which does not fructify into yielding the intended
result. An attempt may fail owing to either external factors beyond one s
control or it may fail due to one’s own volition. For an ‘attempt, the
failure must be due to the intervention of some factor independent of
one’s volition. ‘ Attempt is an intentional preparatory action which fails to achieve
its object because of 'the intervening circumstances independent of the person who seeks
its accomplishment.
A person commits the offence of “attempt to commit a particular
offence” when (i) he intends to commit that particular offence, (i ) he
made preparation for it, and (iii) does any act towards its commission.
Kenny, the celebrated author of Criminal Law has said that the criminality
of the attempt lies in the intention {mens rea), but this must be evidenced
by what the accused has actually done towards the attainment of his
ultimate objective.
Apparently, an attempt is not necessarily criminal. It becomes so
when the attempt reaches a point at which an act is done towards the
commission of an offence. Thus, an attempt to commit an offence can
be said to begin when the preparations are complete, and the culprit
begins to do something with the intention of committing the offence, and
which is a step towards the commission of that offence. Thus, an attempt
is the direct movement towards the commission of an offence after the
preparations is made.
For example, a person plans to pass fake currency notes, but does
not act toward such passing. He is not guilty of attempt, though he may
be guilty of possessing fake notes. If he goes to the market and with an
intention to make some purchases, hand over the notes to the vendor,
he is guilty of an ‘attempt’ under Sec. 511. It may be noted that mere
walking towards the vendor’s shop (even with a clear intention) would not
[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.
3. “T° be guilty of an attempt, it is not necessary that the circumstances should be

such as would facilitate the completion of the crime." Comment. [I.A.S.-91]
Attempt 137
(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.
Leading Case: ASGHAR ALI PRADHANIA v

EMPEROR (AIR 1933 CAL 893)
In this case, the accused, who caused pregnancy to a woman, suggested that
she should take drugs to procure a miscarriage.
One night he brought her a bottle half full of a red liquid, and a packet of
powder. The woman tasted the powder, but finding it salty and strong, spat
it out. The following night he pressed her to take the liquid by holding her
mouth, but she cried out loudly on which the accused fled. Later, no poison
was detected in
liquid and powder was also found to be harmless. Thus, he had

administered a harmless substance.
The court observed that there are four stages in every crime, the
intention to commit, the preparation to commit, the attempt to commit, and
if the third stage is successful, the commission itself. Intention alone, or
intention followed by preparation are not sufficient to constitute an attempt.
But, intention followed by preparation, followed by an ‘act towards the
commission of the offence’ is vital in order to bring the case within the ambit
of Sec. 511.
It was held that the accused’s act did not amount to an “act towards
the commission of the offence” of causing miscarriage. What he did was not
an act done towards the commission of an offence of causing a miscarriage.
Neither the liquid nor the powder being harmful, they could not have
caused a miscarriage. If a man with intent to hurt another by administering
poison prepares and administers some harmless substance, believing it to be
poisonous, he cannot be convicted of an attempt to do so. For an attempt, the
failure must be due to the intervention of some factor independent of one’s
volition. If the act of the accused is intrinsically useless or defective, then it
cannot be said that such act is an act towards the commission of the offence.
In Empress v Rupsir Panku, the appellant administered poison (in fact
harmless) to her husband. Held that she is not guilty because the act she
intended was administering of poison, but what she accomplished was
administering of a harmless substance.
The court observed that if A’ with intent to hurt ‘B’ by administering
poison, prepares a glass for him and fills it with poison, but while A’s back is
turned, ‘C’ who has observed A’s act, pours away the poison and fills the
glass with water, which ‘A’ in ignorance of what ‘C’ has done, administers to
‘B’, ‘A’ would be guilty of attempt to cause hurt by administering poison as
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.
Attempt 139
LeadingCase: STATE OF MAHARASHTRA v MOHD. YAKUB 4 (AIR 1980SC1111)
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 ]:.
(1) What constitutes an “attempt” is a mixed question of law and

fact, depending largely on the circumstances of the particular
case. A precise and exact definition of “attempt” cannot be
given.
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
(2) Broadly speaking, all crimes may be divided into three

stages: the first stage exists when the culprit first entertains
the idea or intention to commit an offence. In the second stage,
he makes preparations to commit it. The third stage is reached
when the culprit takes deliberate overt steps to commit the
offence. Such overt act or step in order to be “criminal” need
not be penultimate act towards the commission of the
offence. It is sufficient if such act or acts were deliberately
done and manifest a clear intention to commit the offence
aimed, being reasonably proximate to the consummation of
the offence.
Thus, Sarkaria J. disapproved the “narrow” view taken by Kenny. Kenny in

his “Outlines of Criminal Law” defined “attempt” as the last penultimate act
which a person does towards the commission of an offence, the
consummation of the offence being hindered by circumstances beyond his
control.
(3) A narrow interpretation of the word “attempt” in these penal

provisions (i.e., those dealing with antisocial activity like
smuggling) which will impair their efficacy as instruments
for combating this baneful activity, has to be eschewed.
These provisions should be construed in a manner which
would suppress the mischief, promote their object, etc. Thus
construed, the expression attempt ’ within the meaning of
these penal provisions is wide enough to take in its fold any
one or series of acts committed, beyond the state of
preparation in moving the contraband goods deliberately to
the place of embarkation, such act being reasonably
proximate to the completion of the unlawful export.
Chinnappa Reddj J.:

(1) As a general principle the test of “the last possible act before
the achievement of the end” would be entirely unacceptable.
If that principle be correct, a
Attempt 141
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
5a. Why is preparation to a crime generally not punishable? [D.U.-2011]

144 Criminal Law II
of the offence.’ Although in these illustrations, the act itself is impossible of

performance, yet it constitutes an offence of attempt to commit crime because the
accused’s failure is not due to his own act/omission.
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.
L EADING CASE : ABHAYANAND MISHRA v STATE OF BIHAR (AIR 1961 SC 1698)
In this case, the appellant applied to Patna University for appearance at

M.A. examinations, as a private candidate, representing that he was a
graduate and teaching at a school; he attached bogus certificates in this
regard. The university gave the permission and issued admit-card. In the
meantime, however, the university came to know about the forged
application of the appellant.
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 held that appellant did deceive the university, as a

dishonest concealment of facts is a deception and thus cheating under Sec.
415. Admit-card is a ‘property’ as it has immense value to a candidate. It is
not true that appellant did not gone beyond the stage of preparation.
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 the present case, the preparation was completed when he prepared

the application. The moment he dispatched it, he attempted to commit the
offence. He just failed to commit the offence because something beyond his
control took place.]
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
Leading Case: MALKIAT SINGH v STATE OF PUNJAB (AIR 1970 SC 713)
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.]
Cases amounting to mere preparation

A contractor who was supplying milk to a hospital was found in the hospital
compound with three gallons of stale milk, going in the direction of the place where
the cows were about to be milked, his milk-can being similar to the one in which the
cows were milked. It was held that this act amounted only to preparation.
The accused, on quarrelling with his brother, fetched a sword, but was seized by
others and disarmed before he could use it. It was held that
i fetching a sword did not amount to an attempt. “It is quite possible that although he
fetched the sword, he might not, after all, have actually used it against the
complainant, who was his own brother”.
A woman ran to a well, stating that she would jump into it. However, she was
caught before she reached the well. On the question whether she was guilty of an
attempt to commit suicide, the court held that she could not be convicted for that
offence, as she might have changed her mind
I before jumping into the well.
A Government stockiest removed 80 rice bags from a godown in his charge, and
hid them in a room, with a view to sell them and appropriate the proceeds. Held that
this act amounted to mere preparation and that therefore, he was not guilty of an
offence under Sec. 511.
Sec. 309. Attempt to Commit Suicide6

Whoever attempts to commit suicide and does any act towards the commission of
such offence, shall be punished with simple imprisonment for a term which may
extend to one year, or with fine, or with both.
6 Discuss: Attempt to commit suicide under Sec. 309,1.P.C.

[M.S -2005] [D.U.-2008]
148 Criminal Law II
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.
Leading Case: GIAN KAUR v STATE OF PUNJAB [(1996) 2
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.
Is individual capable of taking decision to end his life? This question

was also before the Bombay High Court in case of State of Maharashtra v Maruti
Shripati Dubai, 1987 Cr.L.J. 743 (Bom). The court held that the right to live
guaranteed by Art.
21 includes also a right to die. The judges felt that the desire to die is not
unnatural but merely abnormal and uncommon. They listed several
circumstances in which people may wish to end their lives, including
disease, cruel or unbearable condition of life, a sense of shame or
disenchantment with life. They held that everyone should have the freedom
to dispose of his life as and when he desires. The court struck down Sec. 309
of I.P.C. which provides punishment for attempted suicide by a person as
unconstitutional on the ground that it is violative of Article 21 of the
Constitution of India. In this case, a police constable who was mentally
deranged was refused permission to set up a shop and earn a living. Out of
frustration he tried to set himself a fire in die corporation’s office room.
Attempt 149
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 - ||
and is, therefore, inconsistent with the continued existence of

life resulting in effacing the right itself”
(iii) ‘Right to life” is a natural right embodied in Art. 21 but
suicide is an unnatural termination or extinction of life and,
incompatible and inconsistent with the concept of “right to
life”. Art. 21 guarantees protection of life and by no stretch of
imagination can ‘extinction of life* be read to be included m
‘protection of life.’
(iv) Referring to protagonists of euthanasia’s view that existence in
persistent vegetative state (PVS) was not a benefit to the
patient of terminal illness being unrelated to principle of
“sanctity of life” or the “right to live with dignity”, the court
said that this argument was of no assistance to determine the
scope of Art. 21 for deciding whether the guarantee of right
to life’ therein includes the ‘right to die’.
(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
Q.1 Can A be successfully prosecuted for committing an 'attempt’ in the

following cases? (a) A, intending to kill K fires at K’s big coat hanging in his
bed room, mistaking it for K. A is prosecuted for an attempt to murder K. 7
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.
A jeweller with the object of fraudulently obtaining insurance money, hid

his stocks of jewellery, tied himself beneath a chair and started shouting
for help. A PCR van passing that way heard his cries for help. They
came, found the safe open, the jewellery missing and the jeweller under
the chair in a helpless position. The latter told the police that a group of
robbers had forced him to hand over the keys of the safe, tied him up
with the chair and had taken away all his jewellery worth about Rs.
20,00,000 that had been kept locked in the safe. Subsequent
investigations revealed and the accused also confessed that he had
himself committed this fraud to claim the insurance money. Can the
jeweller be convicted under Section 511? Decide.
(c) A, intending to murder Z by poison, purchases poison and mixes the

same with food, which remains in his (A’s keeping). Is he guilty of any
offence? [C.L.C.-91/93/94/95/2002\
A.1 Sec. 307. Attempt to Commit Murder
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
Leading Case: OM PRAKASH v STATE OF PUNJAB9

[AIR 1961 SC 1782]
In this case, the appellant systematically and deliberately starved his wife and
kept her locked in house. One day, she escaped and went to a hospital. The
husband (appellant) was prosecuted for an offence under Secs. 307 and 511.
The appellants contended that the ingredients of an offence under these two
sections are different, as under Sec. 307 it is the last act which should be
effective to cause death, while under Sec. 511 it need not be the last act: it can
be the first act towards the commission of an offence. The starving of his wife
would not by itself have caused the death, it being necessary for starvation to
continue for a longer period to cause death.
The Supreme Court observed: A person commits an offence under Sec.

307 when he has an intention to commit murder, and in pursuance of that
intention, does an act towards its commission, irrespective of the fact whether
that act is the penultimate act or not. What Sec. 307 really requires is that the
accused must do an act with such a guilty intention and knowledge and in
such circumstances that but for some intervening fact the act would have
amounted to murder in the normal course of events. For example, if A having
intent, brought a match box and goes to stack of B and lights the match, but
put off by wind, can be said to have committed an ‘attempt’.
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.
9. A administers to B one of a series of doses of poison, the cumulative effect of which

is to kill him. Decide the liability if any of A. [D.U.-2008]
In the present case, the accused regularly starved his wife with the intention of causing her death, though he did not achieve the object of killing her. The
accused is taking advantage of an involuntary act (an intervening fact of her escaping), thwarting the completion of his designs. Here ‘act’ does not mean any
particular, specific, instantaneous act of a person but denotes act as defined under Sec. 33 of the Code - a series of acts as a single act. The completion or attempted
completion of one of a series of acts to result in killing is an ‘attempt to murder’, even though this act unless followed by other acts does not result in killing
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
Sec. 511. Attempt to Commit Offences

According to Sec. 511, whoever attempts to commit an offence, etc., and in such attempt
does any act towards the commission of the offence shall be punished, etc. ‘Attempt’
means an act towards the commission of the offence which fails due to circumstances
independent of the attempter’s will, i.e., due to some outside or intervening factor.
In order to constitute an ‘attempt’:—

(i) there must be an intention to commit a particular offence,
(ii) some act must have been done which necessarily have to be done towards the
commission of the offence, and
(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).
Decision of the case (a) in question
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.
Decision of the case (b) in question
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.
Decision of the case (c) in question
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.
Q.2 Can B be successfully prosecuted for committing an attempt in the

following cases?
(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?
(b) During the months of June/July, importing of milk/milk products in Delhi

had been made an offence. B, a supplier of milk, organized secret import
of milk through an agent from Mathura. The very first consignment of
milk was seized at the border, however it contained only soyabean milk
which was not a banned item. There was clear evidence that B intended
to import unlawfully real milk only but the agent had cheated him by
supplying soya milk. B is charged with an attempt to import banned item.
(c) To commit a theft, B entered the premises of a bank. There he found a

big safe. In order to break it open he took a small hammer from his bag
and started hammering it. He could not
Attempt 159
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
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.
Q.4 Examine the possibility of securing conviction of B in the following cases:
(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) B, a young businessman, gave pills to G, his girl friend, to procure

abortion, but nothing happened as- (i) G has not conceived, or (ii) The
pills turned out to be made of sugar alone. B is charged with an attempt
to cause miscarriage.
162 Criminal Law
B was arrested at a distance of 10 km from Delhi-Haryana

(c) Border while carrying paddy by truck from Jagadhri to 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
Criminal Procedure Code, 1973:
that she was being watched, hid the box of matches in her
Introduction
blouse and walked out of the room. Decide.
Object and Importance of Criminal Procedure

The law of criminal procedure is intended to provide a mechanism for the enforcement of
[D.U.-2008] [C.LC.-98/99/20W
substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to
be complementary
B is liable for attempt to cause to criminal
murder punishable law; it creates
u/s 3071.P.C. the necessary machinery for the detection
B is guilty
of crime, arrest of suspected criminals, collection of evidence, determination of guilt or
for an attempt to cause miscarriage (Sagajam v Stab of Karnataka AIR 2000 SC
innocence of the suspected person, and the imposition of proper punishment on the
2161).
guilty person. Thus, in the absence of an enforcement machinery the threat of
B is guilty for attempt to carry paddy without licence.
punishment under substantive law would appear empty.
B is guilty for attempt to cause murder.
It further attempts to strike a just balance between the need to give discretionary
<d) powers to the functionaries under the Code to make the investigative and
adjudicatory processes strong and effective and the need for controlling the probable
misuse/abuse of these powers. The Supreme Court has said: “It is the procedure that
spells much of the difference between the rule of law and the rule of whim and
caprice” [Iqbal Ismail Uiawala v State of Maharashtra (1975) 3 SCC 140], The law of remind
A.4(a) procedure aims at providing safeguards against possible harms and violation of
Object
(b) human rights of innocent persons.
The la1
It has been rightly said that too much expense, delay and uncertainty (flaws and
the enji
(c) loopholes) in applying the law of criminal procedure crirrun;
would tender even the best of
(d) penal laws useless and oppressive. It may be noted that the procedural code is not
creates
wholly procedural or adjective in nature. There are certain
suspec provisions of the Code
which partake of the innoce
punish
machir
empty.
1
[163] discret
investi
for co i
Court
betwei
Sodaivc
proce<
of hu
234 C r i m i n a l Law II
318 Criminal Law II
nature of substantive law e.g. prevention of offences, maintenance proceedings, etc.

The Code confers the ‘right of maintenance’, ‘right of j habeas corpus’, ‘right of appeal’, etc.
While drafting the Code, three basic considerations (viz. fair trial, avoidance of
delay in investigation/ trial, and, fair deal to the poorer sections) have been kept in
mind. While the general purpose of criminal procedure is to provide a mechanism for
the administration of criminal I law its core object is “to ensure for the accused a foil
and fair tnal in accordance with the principles of natural justice.” The review
procedure and the bail provisions are also quite important.
Enactments regulating the procedure of courts seem usually to be imperative or
mandatory and not merely directory. In other words, the rules of procedure are enacted
to be obeyed. The object of these rules is to simplify and shorten proceedings. The Code
preserves the inherent right of the High Court to make orders to give effect to any
order under the Code, or to prevent abuse of the process of any Court, or to secure the
ends of justice (Sec. 482).
The Code is a complete code with respect to matters provided for by I it. So far as it
deals with any point specifically, the Code must be deemed to be exhaustive and the law
must be ascertained by reference to its I provisions. However, absence of any provision
on a particular matter in the Code does not mean that there is no power in a criminal
court to make such order as the ends of justice required; the court may act on | the
principle that every procedure should be understood as permissible I till it is shown to be
prohibited.
The Code is “an Act to consolidate and amend the law relating to criminal
procedure” (Preamble). This Act may be called the Code of j Criminal Procedure, 1973. The Act
has been amended in 1974, 1978, 1980, I 1983, 1988, 1990, 1991, 1993, 2001, 2005, and,
2006.
Classes of Criminal Courts

Besides the High Courts and the courts constituted under any law, other than this
Code (viz. Juvenile Courts, Nyaya Panchayats, Special Courts or Court of a Special
Judge), there shall be, in every State, the following classes of criminal courts, namely:
Criminal Procedure Code, 1973: Introduction 165
(i) Courts of Session;

2 34
(ii) Judicial C r iand,
Magistrate of the first class m i nina any
l Law II
metropolitan area,
Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
For proper separation of the judiciary from the executive, the Code has contemplated
two categories of magistrates - judicial and executive. While the former are under the control
of the High Court, the latter are under the State Government’s control. Broadly
speaking, Judicial Magistrates perform essential judicial functions, while Executive
Magistrates perform “police” or administrative functions. When an Executive
Magistrate functions so, he does not function as a court. Formerly, most of the
magistrates used to perform both judicial and executive functions and were controlled
ultimately by the State Government. In a criminal trial, the State is the prosecuting
authority, and thus it is necessary that the judiciary is free of executive influence or
control.
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.
Functionaries under the Code

The main functionaries under the Code are: (i) Police; (ii) Prosecutors (counsels for the
State); (iii) Defence Counsel (who acts on behalf of the accused); (iv) Magistrate and
Judges of higher Courts; and (v) Prison Authorities.
Public Prosecutors
318 Criminal Law II
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]
318 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)].
When the police arrests a person in execution of a warrant of arrest obtained

from a Magistrate the person so arrested shall not be handcuffed unless the police have
obtained orders from the Magistrate in this regard. Sec. 49 lays down that the person
arrested shall not be subjected to more restraint than is necessary to prevent his escape.
In other words, unnecessary restraint and physical inconvenience, like tying of hands
and feet, is not to be resorted to, unless it is absolutely necessary to do so.
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
officer, investigating an offence, in pursuit of an offender is legal though it is made

outside his circle.
Rights of Arrested Persons 1

Arrest of a person is made in order to ensure his presence at the trial in connection with
any offences to which he is directly or indirectly connected and/ or to prevent the
commission of a criminal offence. In a free society like ours, law is quite zealous of the
“personal liberty” of every individual and does not tolerate the detention of any person
without legal sanction. Article 21 of the Constitution provides: “No person shall be
deprived of his life or personal liberty except according to procedure established by
law.” The procedure contemplated by this article must be ‘right, just and fair’ and not
arbitrary, fanciful or oppressive.
Under the Cr. P.C., the police have been given various powers for facilitating the
making of arrests, but these powers are subject to certain restraints. The imposition of
the restraints can be considered, to an extent, as the recognition of the rights of the
arrested person. There are, however, some other provisions which have rather more
expressly and directly created important rights in favour of the arrested person:
(1) Arrest Power Conferred on Police and Safeguards 2

There might be circumstances where prompt and immediate arrest is needed and there
is no time to approach a magistrate and obtain a warrant. For instance, in a case where
a serious crime has been perpetrated by a dangerous person and there is every chance
of the person absconding unless immediately arrested. Similarly, there may be
occasions where preventive action may be necessary in order to avert the danger of
sudden outbreak of crime.
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]
318 Criminal Law II
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.
Amendment of Sec. 41 (by 2008 Amendment) (Powers of arrest conferred upon

the police officer must be exercised after reasonable care)
In Sec. 41(1) of the Principal Act, for clauses (a) and (b), the following clauses shall be
substituted, namely—
“(a) who commits, in the presence of a police officer, a cognizable offence;

(b) 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 punishable with imprisonment for a term which may be
less than seven years or which may extend to seven years whether with or
without fine, if the following conditions are satisfied, 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;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making 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 the
police officer; 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.
318 Criminal Law II
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
(c) inform the person arrested, unless the memorandum is attested by a

member of his family, that he has a right to have a relative or a friend named
by him to be informed of his arrest.
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.
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.
318 Criminal Law II
174 Criminal Law II
( 2 ) Right to Know the Grounds of Arrest 3
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
3. Decide the validity of the following: A is arrested without a warrant. He claims to be

informed about his crime and the grounds of his arrest. He also insists that he should be
produced before a magistrate within 24 hours of his arrest.
[C.L.C.-
2001]

unlawful if the grounds given were not proper and sufficient [In re Madhu Limaye AIR
becomes
1969 SC 1014],
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.”
318 Criminal Law II
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.”
(3) Right to be taken before a Magistrate without Delay

The person making the arrest must bring the arrested person before a judicial officer
without necessary delay. It is also provided that the arrested person should not be
confined in any place other than a police station before he is taken to the magistrate
(Sec. 56, Cr. P.C.).
(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).]
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.
(5) Right to Consult a Legal Practitioner5

Art. 22(1) of the Constitution provides that no person who is arrested shall be denied
the right to consult a legal practitioner of his choice. Sec. 303, Cr. RC. also provides that
any person against whom proceedings are instituted under the Code may of right be
defended by a pleader of his choice. The right of an arrested person to consult his
lawyer begins from the moment of his arrest.
5. Write a note on: Right to lawyer of an accused/suspect

{D.U.-2008\ [L.C.I-94]
178 Criminal Law II
318 Criminal Law II

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.
An advocate who is accused of a criminal offence or is a party in a civil court is

fully entided to conduct his own defence or his own case. But an advocate who is
accused with others of a criminal offence cannot appear at the trial as counsel for his co-
accused. Counsel cannot appear in the same matter both as counsel and party
[Subramanja Sarma (1941) Mad 1019]. It is no compliance with Sec. 303 if a power of
attorney holder appears for an accused [T.C. Mathai, 1999 Cr LJ 2092 (SC)].
(6) Right 2to3Legal

4 Aid by the State 6 C r i m i n a l Law II
The right to counsel would however remain empty if the accused due to his poverty or
indigent conditions has no means to engage a counsel for his defence. Sec. 304, Cr. P.C.,
provides that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the court that the accused has no
sufficient means to engage a pleader, the court shall assign a pleader for his defence at
the expense of the State. The selection of such pleader, the facilities to be given to him
by the court and his remuneration are to be governed by the High Court Rules (as
approved by the State Government).
Art. 39-A, one of the Directive Principles of State Policy, provides that it is the
duty of the State to provide free legal aid in order to ensure that equal opportunities for
securing justice are not denied to any citizen by reason of economic and other
disabilities. Further, the State is under a constitutional mandate (as implicit in Art. 21)
to provide free legal-aid’ to an indigent or poor person (a detainee or an accused
person). It is the rule of principles of natural justice that ‘No one should be condemned
unheard.’
In Hussainara Khatoon v Home Secy., State of Bihar (1980) 1 SCC 98, the Supreme Court
observed: “The right to free services is clearly an essential. ingredient of ‘reasonable,
fair and just’ procedure for a person accused of an offence and it must be held implicit
in the guarantee of Art. 21.” In Khatri (II) v State of Bihar (1981) 1 SCC 627, it was clarified
that the State cannot avoid its constitutional obligation to provide free legal services to
indigent accused persons by pleading financial or administrative inability. Held that
the constitutional obligation to provide free legal services to indigent accused does not
arise only when the trial commences but also attaches when the accused is for the first
time produced before the magistrate. Because, it is at that stage that he gets the first
opportunity to apply for bail and obtain his release as also to resist remand to police or
jail custody.
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]
1 8 03 1 8 C r i m iC
n rai lm Li naawl L
- aI w
I 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)].
(7) Right to be Examined by a Medical Practitioner

Sec. 54 Cr.JP.C., gives the accused-the right to have him medically examined to enable
him to defend and protect himself. Tt is considered desirable and necessary “that a
person who is arrested should be given the right to have body examined by a media*
officer when he is produced before a mavis'rate or at any time when he is under
custody, with a view to enabling him to establish that the offence with which he
is charged2 was
3 4 not committed by him or that
C r he
i mwas
i n asubjected II
l Law 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.
(2) The medical officer or a registered medical practitioner so examining the

arrested person shall prepare the record of such examination, mentioning
therein any injuries or marks of violence upon the person arrested, and the
approximate time when such injuries or marks may have been inflicted.
(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.”
I Insert/ of new Sec. 55-A

After Sec. 55 of the principal Act, the following section shall be inserted, namely —
“55-A. Health and safety of arrested person - It shall be the duty of the person having the custody
of an accused to take reasonable care of the health and safety of the accused.”
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
318 Criminal Law II
of the identification of the arrested person at the request of the prosecution.
(9) Arrest to be made strictly according to the Code

Insertion of new Sec. 60-A (by 2008 Amendment): After Sec. 60 of the principal Act, the
following section shall be inserted\ namely —
“60-A. Arrest to be made strictly according to the Code — No arrest shall be made except in
accordance with the provisions of this Code or any other law for the time being in
force providing for arrest.”
(10) Court to be Open

Public trial in open court is undoubtedly essential for the healthy, objective and fair
administration of justice. Trial held subject to the public scrutiny and gaze naturally
acts as a check against judicial caprice or vagaries, and serves as a powerful instrument
for creating confidence of the public in fairness, objectivity and impartiality of the
administration of justice. Thus, the courts must generally hear cases in open court and
must permit public admission to the court-room so far as the same may conveniently
accommodate them. Even if a trial is held in private house or inside a jail or anywhere
it becomes a venue of trial of a criminal case, and shall be open to public [Kehar Singh v
State (1988) 3 SCC 609].
However, the presiding Judge/Magistrate may, if he thinks fit, order at any
stage of the proceeding that the public generally, or any particular person, should not
be allowed to enter or remain in the room/ building used by the court. It may be noted
that the inquiry into and trial of rape or an offence under Sec. 376/376 A-D, IPC, shall
be conducted in camera (i.e. proceedings which are not open to the public). However, the
judge may, suo motu, or, on an application by either party, allow any particular person
to have access to the courtroom. Printing or publishing of any matter in relation to any
such proceedings is prohibited except with the court’s prior permission.
2008 Amendment amends Sec. 327 which deems Criminal Court to be an open
Court. In Sec. 327(2) of the principal Act, after the proviso, the following proviso shall
be inserted, namely:- “Provided further that in camera trial shall be conducted as far as
practicable by a woman Judge of
Magistrate”; 2In3Sec.
4 327 (3), the following proviso
C r i mshall
i n a be inserted, namely:
l Law II - “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
L EADING C ASE : D.K. BASU V STATE OF W.B.

(AIR 1997 SC 610)
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.
The Supreme Court observed as follows:—

(i) Custodial violence (torture, rape, death in police
custody/lock-up) is a matter of deep concern. It infringes Art.
21 as well as basic human rights and strikes a blow at rule of
law. It is aggravated by the fact that it is committed by
persons who are supposed to be protectors of the citizens, in
the four walls of a police station or lock-up, the victim being
totally helpless.
(ii) Custodial violence is perhaps one of the worst crimes in a

civilised society governed by the rule of law.
The precious right guaranteed by Art. 21, cannot be denied to
convicts, undertrials, detenus and other prisoners in custody,
excepi according to the procedure established by law. The
right to life of a citizen cannot be put in ‘abeyance’ on his
arrest. Any form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Art. 21,
318 Criminal Law II
whether it occurs during investigation, interrogation or

otherwise.
(iii) The right to interrogate the detenus, culprits or arrestees in
the interest of the nation, must take precedence over an
individual’s right to personal liberty. The Latin maxim
saluspopuli suprema lax (safety of the people is the supreme law)
and salus republicae suprema lax (safety of the State is the supreme
law) coexist and lie at the heart of the doctrine that the
welfare of an individual must yield to that of the community.
The State’s action, however, must be “right, just and fair”.
Using any form of torture for extracting any kind of
information would neither be right nor just nor fair.
(iv) Interrogation though essential must be on scientific principles;
“third-degree methods” are totally impermissible. Challenge
of terrorism must be met with innovative ideas and
approach. State terrorism is no answer to combat terrorism. Such
terrorism would only provide legitimacy to “terrorism”.
Thus, the interrogation and investigation into a crime should
be in true sense purposeful to make the investigation
effective. However, it is true that in case of too much of
emphasis on protection of fundamental rights and human
rights of hardened criminals, such criminals may go scot-free
and in the ultimate analysis the society would suffer.
Therefore a balanced approach is needed to meet the ends of
justice (Society expect that police must deal with the criminals
in an effective manner and bring to book those who are
involved in the crime).
(v) To check the abuse of police power, transparency of public
action and accountability are two possible safeguards.
Further, the police force needs to be infused with basic
human values and made sensitive to the constitutional ethos.
With a view to bring in
transparency, the presence of counsel of the arrestee
at some point of time during the interrogation may deter the police
from using third degree method.
The supreme court laid down the following guidelines to be followed

in all cases of arrest or detention till
legislative measures are taken:- “ tentlon 1111
(3)
police personnel carring out the arrest and
the
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.
(c) A person who has been arrested or detained shall be entitled

to have one friend/relative/other person known to him or
having interest in his welfare being informed as early as
possible.
(d) The time, place of arrest and venue of custody of an arrestee
must be notified by the police where the next friend/relative of
arrestee lives outside the district/town through the Legal Aid
Organisation in the District and the police station of area
concerned telegraphically within a period of 8-12 hours after
the arrest.
(e) The arrestee must be aware of his right to have someone

informed of his arrest/detention as soon as he js put under
arrest/detained.
(f) An entry must be made in the diary at the place of detention

regarding the arrest of the person which shall also disclose the
name of the next friend of
318 Criminal Law II
186 Criminal Law II
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
Directorate of Enforcement/Revenue Intelligence, Coastal Guard, CRPF, BSF,

CISF, State Armed Police, Intelligence agencies like IB, CBI, RAW, CID,
Traffic Police, Mounted Police and ITBP.
These requirements are in addition to the constitutional and statutory

safeguards and do not detract from various other directions given by the
courts from time to time in connection with the safeguarding of the rights and
dignity of arrestee. The Court directed that these directions shall be widely
circulated amongst the concerned authorities and personnel, and would be
broadcasted on the A.I.R. and Doordarshan. Creating awareness about the rights of
arrestee would be a step in the right direction to combat the evil of custodial crime and bring in transparent
and accountability.
LEADING CASE: STATE OF HARYANA V DINESH KUMAR

[(2008) 3 SCC 222]
In this case, the issue was what constitutes arrest and custody in relation to
criminal proceedings. In other words, whether the manner in which the
respondent had appeared before the Magistrate and was released without
being taken into formal custody could amount to arrest. The respondent
without surrendering to the police had appeared before the Magistrate with
his lawyer and was immediately- granted bail. The High Court held that
since the accused had neither surrendered nor had been taken into custody, it
could not be said that he had actually been arrested. The Supreme Court
disagreed with the High Court. It held that even in such circumstances, the
appearance of the accused before the Magistrate amounts to arrest.
It may be noted that unless a person accused of an offence is in

custody, he cannot move the court for bail under Sec. 439, CrPC, which
provides for release on bail of any person accused of an offence and in custody.
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
318 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
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.
Custody, in the context of Sec. 439, is phvsical control or at least

physical presence of the accused in court coupled with submission to the
jurisdiction and order of die court. He can be in custody not merely when the
police arrest him, produce him before a Magistrate and gets a remand to
judicial or other custody. He can be stated to be in judicial custody when he
surrenders before the court and submits to its directions. Secs. 107 and 108 of
the Customs Act do not contemplate immediate arrest of a person being
summoned in connection with an enquiry, but only contemplates
surrendering to the custody of the Custom Officer which could subsequendy
lead to arrest and detention. The position is different as far as proceedings in
the court are concerned in relation to enquiry into offences under the Penal
Code and other criminal enactments. In the latter set of cases, in order to
obtain the benefit of bail an accused has to surrender to the custody of the
court or the police authorities before he can be granted the benefit
thereunder.]
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
318 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:
(1) “When a person is arrested on a charge of committing an offence of such a

nature and alleged to have been committed under such circumstances that
there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of an offence, it shall be lawful for
a registered medical practitioner, acting at the req.-st of a police officer not
below the rank of sub-inspector, to make such an examination of the person
arrested as is reasonably necessary in order to ascertain the facts which may
afford such evidence, and to use such force as is reasonably necessary for
that person.
(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
to have been compelled “to be a witness” against himself if he is merely required to

undergo a medical examination in accordance with Sec. 53 provisions. In fact, such an
examination is likely to help bodi the prosecution and the defence. The Supreme Court
in Katin Kalu v State (AIR 1961 SC 1808) expressed the view that privilege under Art.
20(3) is confined only to testimony written or oral. The Court, in the present case, also
observed that there is nothing brutal or shocking in taking of blood samples, as it has
become a routine in matters of scientific investigation. The accused cannot take shelter
under Art. 20(3) because medical examination is an objective test where the person is
hardly compelled to speak out the truth; it only reveals certain facts which may help in
the investigation.
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
318 Criminal Law II
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.
(2) The registered medical practitioner conducting such examination shall,

without delay, examine such person and prepare a report of his examination
giving the following particulars, namely: (i) the name and address of the
accused and of the person by whom he was brought, (ii) the age of the
accused, (lii) marks of injury, if any, on the person of the accused, (iv) the
description of material taken from the person of the accused for DNA
profiling, and (v) other material particulars in reasonable detail.
(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.”

In view of the decision in Anil A. Lokhande case, it is clear that X’s submissions are not
tenable.
8
Police Investigation
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]
318 194 L ai nwa l L aIIw - I I
C r i m i nCarli m
Sec. 154. First Information Report (F.I.R.) 1

The commencement of investigation in respect ot cognizable offences occurs when
any person aware of the commission of any cognizable offence gives its information
to the police. Every person has a duty (though not legal) to inform and assist the
police.
A police officer is legally bound to record in writing every information relating
to the commission of a cognizable offence alleged to be committed withm his
jurisdiction. However, it has been held that any lack of territorial jurisdiction should
not prevent the police officer from recording information about the cognizable
offence and forwarding the same to the police station having jurisdiction over the
area in which the crime was said to have been committed 2 [State of A.P. v Punati Rumubc,
1993 Cr LI 3684 (SC)]. Such F.I.R. is called ‘Zero F.I.R.’
The information as recorded under Sec. 154 is usually known as the First
Information Report or F.I.R. A first information report means the information, by
whomsoever given, to the officer in charge of a police station in relation to the
commission of a cognizable offence and which is first m point of time and on the
strength of which the investigation into that offence is commenced. A statement
recorded after the commencement of investigation is not a F.I.R.
According to Sec. 154:-
(1) If the information is given in writing, or
(2) If reduced to writing (when information is given orally to the officer in
charge of the police station and he reduces it to writing), the writing shall be
signed by the informant.
(3) The information as taken down in writing shall be read over to the
informant.
(4) The substance of the information shall then be entered by the police officer in a
book called ‘Station Diary.’
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 g a t i oInI
I na vl eLsat w 195
wholly erroneous and is based on complete ignorance of the relevant

statutory provisions.
It was held: Sec. 155, Cr.P.C. provides that no police officer shall
investigate a non-cognizable case without an order of a competent
Magistrate having power to try such case or commit it for trial. Sub-sec. (4)
lays down that where a case relates to two or more offences of which at least
one is cognizable, the case shall be deemed to be a cognizable case and
police officer can investigate into it without an order from the Magistrate. 4
Thus, a case alleging commission of offences under Secs. 494 and 498- A, IPC
could be investigated by the police, though offence under Sec. 494 is non-
cognizable.
The court observed: Sec. 155(4) creates a legal fiction and provides
that although a case may comprise of several offences (cognizable as well as
non-cognizable), it would not be open to the police to investigate the
cognizable offences only and omit the non-cognizable offences. Since the
whole case (comprising of cognizable as well as non-cognizable offences) is
to be treated as cognizable, the police had no option but to investigate the
whole of the case and to submit a charge-sheet in respect of all the offences,
cognizable or non-cognizable, both.]
A telephonic message - whether a F.I.R.

Normally, a telephonic message received by a police officer regarding the commission
of a cognizable offence is not a F.I.R. (under Sec. 154), since it is neither reduced to
writing by the police, nor given in writing signed by the informant. In such case, the
view of the court is that the report can be recorded by the station writer who receives the
messages. He may himself sign it as the person giving the information and may state
in evidence that he received the message and recorded the message truly and honestly.
In State v Kambal (AIR 1953 All 163), the station writer died
4. Information is given to an officer-in-charge of a police station about the commission of a

non-cognizable offence. Can the police officer after recording the information start
investigations? Will it make any difference if the information relates to the commission of
two offences, one of which is cognizable?
[C.L.C.-2001]
318 Criminal Law II
198 Criminal Law II
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)].
6. Is delay in registration of an FIR fatal for the prosecution? [C.L.C.-2001]

Police Investigation 199
THE INVESTIGATION PROCEDURE
(A) Power of the Police to Investigate (Secs. 156-159)

The Criminal Procedure Code does not confer the power to investigate on every police
officer. According to Sec. 156, only an officer-in-charge of a police station (i.e., Station
House Officer or S.H.O.) is empowered to investigate. Under Sec. 156, the S.H.O., may
without the order of a Magistrate, investigate any cognisable case, and such proceeding
shall not at any stage be called in question on the ground that the case was one which
such officer was not empowered under this section to investigate. The only limitation
placed is that the cognizable offence be such as has been committed within the limits of
the jurisdiction of the court which take cognizance of the matter and try the case.
Sec. 156(3) lays down that a Magistrate may order investigation into an offence by
the police when no complaint has been made to him but he has information about a
cognizable case. Sec. 156(3) enables a Magistrate to order the investigation of an offence
of which he may have taken cognizance under Sec. 190.6a
L EADING C ASE : MADHU BALA v SURESH KUMAR [1997

CR. LJ. 3757 (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
6a. Discuss importance of S. 156(3), Cr.P.C. in criminal justice administration. [D.U.-2012]

318 Criminal Law II
200
Criminal Law - II
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.
Thus, where an order for investigation under Sec. 156(3) is to be made

the proper direction to the police would be “to register a case at the police
station treating the complaint as the first information report and investigate
into the same”. Even under Sec. 156(1), the police is duty bound to register a
cognizable case and then investigate into the same. The provisions of the
Code, therefore, do not stand in the way of a Magistrate to direct the police
to register a case at the police station and then investigate into the same.”
The court further observed: If the reasoning of the Punjab and

Haryana High Court is taken to its logical conclusion it would mean that if a
Magistrate issues a direction to submit a report under Sec. 173(2) of the Code
after completion of investigation while passing an order under Sec. 156(3), it
would be equally bad for the said section only “directs investigation” and
nothing more. Needless to say, such a conclusion would be fallacious, for
while with the registration of a case by the police on the complaint, the
investigation directed under Sec. 156(3) commences, with the submission of
the “police report” under Sec. 173(2) it culminates.]
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
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
318 Criminal Law II
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.
(B) Examination of Witness by Police 7 (Secs. 160-163) (Police

Interrogation)
For effective investigation, the police must be able to obtain information from the
person acquainted with the facts and circumstances relevant to the commission of the
offence under investigating. That is what Sec. 160 provides. Under this section, an
investigating police officer may by order require the attendance before himself of any
person if the following conditions are satisfied:-
(i) the order must be in writing,

(ii) the person to whom the order is made is one who appears to be acquainted
with the facts and circumstances of the case, and
(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.
7. Is delay in registration of an FIR fatal for the prosecution? [C.L.C.-2001]

Provided that no male person under the age of 15 years or a woman shall be required
to attend at any place other than the place in which such male person or woman
resides.
Sec. 161 gives the power to the investigating police officer to examine orally any
person supposed to be acquainted with facts and circumstances of case and such a
person is required to answer truly all questions relating to the case put to him by such
an officer. 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 or forfeiture. The police officer may reduce into writing any statement made to
him in the course of the examination of a person; and if he does, he shall make a
separate and true record of the statement of each such person whose statement he
records.8
Amendment of Sec. 161 (by 2008 Amendment) (Examination of witnesses by

police- Use of audio-video electronic means)
In Sec. 161(3) of the principal Act, the following proviso shall be inserted, namely-
“Provided that statement made under this sub-sec. may also be recorded by audio-
video electronic means.” This proviso provides for recording of statement of witnesses
by police by audio-video electronic means.
Sec. 162 lays down that the person making any statement in connection with the
investigation being conducted by police shall not sign the statement if it is reduced to
writing,9 nor can this statement or any other record thereof can be used for any
purpose (except those mentioned) at any inquiry/trial in respect of any offence under
investigation at the time when such statement was made (For details about Sec. 162
and related case-law, See the Questions Section).
Sec. 163 provides that no police officer or other person in authority shall offer or
make any inducement, threat or promise in order to secure a statement. But no police
officer or other person in authority shall prevent, by any caution or otherwise, any
person from making in the
8. Is a police officer investigating a crime bound to reduce in writing the statements

of the witnesses examined by him? [C.L.C.-
2003]
9. Are the statements of the witnesses made to the police required to be signed by
the witnesses? [C.L.C.-
2003]
318 Criminal Law II
204 Criminal Law II
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]
Constimtion. During the police investigation, a list of questions was provided

to the appellant and she refused to answer those questions on the ground
that the answers might expose her to other criminal cases. Their Lordships
observed that Art. 20(3) of the Constimtion of India (“No person accused of
any offence shall be compelled to be a witness against himself”) was a shield
against all self-incriminating evidence. Where the person apprehended that the
answers might expose him/her to criminal involvement in that or in any
other case, he/she may keep his/her mouth shut.
In this case, the court directed that the detainee may be allowed to
answer all questions of which she wished to give answers and refuse to
answer any questions the answers of which were likely to expose her to any
risk of involvement in other criminal cases. The argument of the prosecution
that the answers were sought in relation to the specific case and had nothing
to do with other pending or imminently likely cases was negatived by the
court. The court held that the detainee had the fundamental.right not to
answer any question which might expose her to any further risk of
involvement in not only the present case, but also where she apprehended
exposure to any involvement in any other likely case of criminal nature.
Tendency to expose to a criminal charge is wider than actual exposure
to such charge. In determining the incriminatory character of an answer the
accused is entitled to consider the setting, the totality of circumstances, the
equation, personal and social, which have a bearing on making an answer
substantially innocent but in effect guilty in import. However, fanciful
claims, unreasonable apprehensions and vague possibilities cannot be the
hiding ground for an accused person. He is bound to answer where there is
no clear tendency to criminate. The court further held that the police must
invariably warn and record that fact- about the ‘right to silence against self-
incrimination’; and where the accused is literate take his written
acknowledgement.]
[L.C.I-94]
318 Criminal Law II
206 Criminal Law - if
Evidentiary value of statements made to police 11
A statement recorded by the police during investigation is neither given on oath

nor it is tested by cross examination.according to the law of is substantive evidence.
The reason being statements at, often taken down in a haphazard manner h, th ®
midst of a crowd and confiision. They are not made dunng trial.
Even if the police is able to procure any statement of self- incnminating nature
by threat, under duress or otherwise, it has no evidentiary value and the maker of
such statement can recant the same
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
11. Comment: Evidentiary value of statements recotaed dunng police inveetigation.

[LC./-96]
12. During investigation the accused desires to make a confession. What procedure
should be followed to obtain a proper confession? [C.L.C.-92/95/96/99/2002]
Write a short note on: Confessional statement under Sec. 164, Cr. p.c.
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]
318 Criminal Law II
Magistrates, judicial Magistrates and Special Executive^Magistrates empowered

to record any confession under Sec. 164( ) [ ar mg) v State of Punjab AIR 1995 SC 1726].
(2) Confessions/statements can be recorded under Sec. 164 either in the “course
of an investigation” (under this Chapter or any other law), or at “any time
afterwards before the commencement of inquiry or trial” [S. 164 (1)]. The
Magistrate can record confession even after the submission of police charge-
sheet provided magisterial inquiry or trial has not commenced.
(3) Before recording any such confession, the magistrate is required to explain
to the person making the confession that - (l) he is not bound to make such a
confession, and (ii) if he does so it may be used as evidence against him [S.
164 (2)].
These provisions, if administered in the proper spirit, are most salutary. They should
not degenerate into idle formalities. The section does not mention die form in which
the above said warning is to be given by the magistrate, but the warning should be
brought home to the mind of the person making the confession. Further, the
magistrate should disclose his identity to such person so as to assure him that he is no
longer in the hands of the police. has been held that if after the warning, the recording
of confession is postponed to another day, a fresh warning is necessary on the next
day.
(4) The magistrate is not to record any such confession unless upon questioning
the person making it, he has reason to believe that it is being made
voluntarily16 [S. 164 (2)]. That means if he is not satisfied about the
voluntariness of confession, he may refuse
to record it.
For the exercise of jurisdiction to record confessing under Sec. 164, it is a ** that
the magistrate must have “reason to believe that the
confession is being voluntarily made”. The following directions are normally
15. in a case of embezzlement the confession was recorded by the Executive
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?^ ^
followed by magistrate in order to ensure that a confession is made voluntarily (i.e.

one’s own free will):—
(a) After giving warnings to the confessing person, the magistrate should
give him adequate time to think and reflect, so as to ensure that he is
completely free from police influence.
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.
318 Criminal Law II
(g) It is imperative for the magistrate to explain to the accused his

constitutional rights under Art. 22 (1) of the Constitution as well as the
provisions of Sec. 303 of Cr. P.C. about his tight to consult a lawyer
before recording his confession.
(5) The confession shall be recorded in the manner provided in Sec. 281 for
recording the examination of an accused person and shall be signed by the
person making the confession [Sec. 164
(4)]-
Accordingly, the whole of the confession, including every question put to the accused
and every answer given by him shall be recorded in full. The record shall be shown or
read to the accused and he shall be at liberty to explain or add to his answers. No oath
can be administered to the accused who is making a confession before a magistrate.
The magistrate is required to make a memorandum at the foot of the record,
after the confession is recorded, as mentioned in Sec. 164 (4): “'I have explained to
(name) that he is not bound to make a confession and that if he does so, any confession
he may make may be used as evidence against him and I believe that his confession
was voluntarily made. It was taken in my presence and hearing and was read over to
the person making it and admitted by him to be correct, and it contains a full and true
account of the statement made by him.
(Signed) A.B.
Magistrate.”
Thus, after recording a confession, the magistrate shall append a certificate as to its
voluntariness. A confession without such memorandum is bad in law {Jagmal v Emperor
AIR 1948 All. 211).
(6) Sec. 164 does not mention the place and time of recording of a confession.
However, it has been held that the magistrate should record the confession
in open court and during court hours (unless there are exceptional reasons
to the contrary, Hemraj v State of Ajmer AIR 1954 SC 462).
(7) Any statement (other than a confession) made under Sub-sec. (1) shall be recorded
by the magistrate in the manner in which evidence is generally recorded
(however, magistrate can modify it to suit the circumstances of the case).
The magistrate can
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.
Evidentiary value of confessions/statements
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.
Legal Consequences of Non-compliance with Sec. 164 Provisions 17

Sec. 463, Cr. P.C., is designed to cure to some extent the defects and irregularities in the
recording of the confession under Sec. 164 [e.g. the person making the confession
might not have been cautioned as required
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.]
318 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)].
Leading Case: NAZIR AHMED v KING-EMPEROR (AIR 1936

PC 253)
In this case, the appellant was convicted (of dacoity with murdet) mainly
on the strength of a confession said to have been made by him to
magistrate, of which oral evidence was given by magistrate but which was
not recorded in the manner provided
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
318 Criminal Law II
214 Criminal Law II
same time, free notwithstanding their position as magistrate,

from any obligation to make records under Sec. 164. Also, a
magistrate to be in the position of witnesses has to be
avoided as far as possible.
The court thus held that the non-observance of prescribed procedure under
Sec. 164 vitiates entire investigation. The oral evidence of the magistrate is
inadmissible in evidence.]
In State of UP. v Singhara Singh (AIR 1964 SC 358), the Supreme Court observed that the
object in giving power to a magistrate to record confession under Sec. 164 is that the
confession may be proved by the record of it made in the prescribed manner. If proof
of the confession by other means is made permissible, the whole purpose of Sec. 164
including safeguards contained in it for the protection of the accused, would be
rendered nugatory.
The magistrate’s failure to ask why the accused wanted to confess has been
held to be a non-compliance of form curable under Sec. 463 [Kehar Singh v State (1988) 3
SCC 609], Further, mere absence of warnings under Sec. 164 would not make the
confession inadmissible, provided the court is satisfied that the accused knew that he
was not bound to make the confession and that if he did so it would be used as
evidence against him {State v Mithu, 1977 Cr LJ 1018). However, if the magistrate
recording a confession, does not, on the face of the record, certify in clear terms his
satisfaction or belief as to voluntary nature of the confession recorded by him, the
defect would be fatal to the admissibility and use of confession against the accused at
the trial [Chandran v State ofT.N. (1978) 4 SCC 90].
If the confession is recorded by a magistrate when no investigation had begun, the
mandatory procedure laid down in Sec. 164 is not applicable in such a situation. In a case
where the accused after committing murder j went to a magistrate and made a confessional
statement and the magistrate recorded it and the accused signed it, it was held that
though the procedure j laid down in Sec. 164 was not followed, yet as no investigation of
crime registered against the accused was in progress, the confession was admissible j in
evidence (Y. Narsimha Murthy, Re, AIR 1966 A.P. 131).
s There are circumstances where confessional statement made by the

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
(D) Medical Examination of the Victim of Rape (Sec. 164-A)

confess
Insertion of new Sec. 164-A (by 2005 Amendment): (1) Where, during the
>ec. 463
stage when an offence of committing rape or attempt to commit rape is
namings
under investigation, it is proposed to get the person of the woman with
ided the to
whom rape is alleged or attempted to have been committed or attempted,
make »
examined by a medical expert, such examination shall be conducted by a
against
registered medical practitioner employed in a hospital ran by the
ecording
Government or a local authority and in the absence of such a practitioner,
ar terms
by any other registered medical practitioner, with the consent of such
recorded
woman or of a person competent to give such consent on her behalf and
jnfession
SCC 90]. such woman shall be sent to such registered medical practitioner within
estigation twenty-four hours form the time of receiving the information.relating to
applicable the commission of such offence.
ig murder (2) The registered medical practitioner, to whom such woman is
magistrate sent, shall, without delay, examine her person and prepare a
procedure report of his examination giving the following particulars, namely: -
i of crime (i) the name and address of the woman and of the person by
admissible whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA
profiling;
216 Criminal Law II
318 Criminal Law II
(iv) marks of injury, if any, on the person of the woman,
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the
person competent to give such consent on her behalf to such examination
had been obtained.
(5) The exact time of commencement and completion of the examination shall
also be noted in the report.
(6) 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.
(7) Nothing in this section shall be construed as rendering lawful any
examination without the consent of the woman or of any person competent
to give such consent on her behalf.
(E) Search by Police Officer (Secs. 165-166)

See under the Questions Section.
(F) Procedure when Investigation Cannot be Completed in 24 hours (Sec.

167) (Powers and duties of a Magistrate to remand an accused to
custody)18
The police cannot detain an accused person arrested without warrant for more than 24
hours (Sec. 57, Cr. P.C.). If the police officer considers it necessary to detain such
person for a longer period for the purposes of investigation, he can do so only after
obtaining a special order of a magistrate under Sec. 167. 19 The detention in police
custody is generally disfavoured by law, and such detention can be allowed only in
special
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
318 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
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)].
Time-Limit for completing investigation [Sec. 167(5)-(6)]

These sub-sections have been introduced with a view to see that there is no unnecessary
delay in investigation. An inordinate delay encroaches upon the right of ‘speedy trial’ of
the accused.
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
318 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)]
or the Sessions Judge [under sub-sec.(6)], be extended, though, only in exceptional * for
' ^“ '
inv s 0,
Sec. 168 provides for a report by a subordinate police official to the officer-in-
charge of the police station.
(G) Procedure to be followed on Completion of Investigation (Secs. 169-

173) (Follow-up Procedure)
After the investigation is complete, there are two courses open to the police officer
making the investigation:
(a) Release of accused when evidence is deficient — If upoi^ investigation it appears to the
S.H.O. that there is no sufficient evidence or reasonable ground of suspicion
to justify the forwarding of the accused to a magistrate, such officer shall, if
such person is in custody, release him on his executing a bond, to appear, if
and when so required, before a magistrate for trial (Sec. 169).
(b) Cases to be sent to magistrate when evidence is sufficient — If upon investigation, it appears
to the S.H.O. that there is sufficient evidence or reasonable ground to justify
the forwarding of the accused to a magistrate, such officer shall forward the
accused under custody to a magistrate for trial. If the offence is bailable and
the accused is able to give security, shall take security from him for his
appearance before such a magistrate [Sec. 170 (1]\.
This is the only section under which a police officer can take recognizance from the
accused for his appearance before a Magistrate. It may be noted that a mere admission
of guilt or confession by the accused during the investigation of the offence does not
necessarily amount to sufficient evidence under this section [Ldkjhmipat Choraria (1964) 67
Bom LR 618].
The officer-in-charge shall send to the Magistrate any weapon or other article
which it may be necessary to produce before him, and shall require the complainant (if
any) and the witnesses to execute a bond to appear before the Magistrate as thereby
directed and prosecute or give evidence (as the case may be), in the matter of the charge
against the accused [Sec. 170 (2J\.
Sec. 171 lays down that a complainant or a witness on his way to any court is not
required to accompany a police officer, nor is he to be subjected to unnecessary
restraint or inconvenience or to be required to give any security for his appearance
other than his own bond. However,
Criminal Law - II
222
318 Criminal Law II
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
“(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].
318 Criminal Law II
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
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].
318 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
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)].
(H)Inquest Report/Inquiry in case of Accidental/ Suspicious Deaths

(Secs. 174-176)
Secs. 174-176 deal with inquiries into suicide or inquiries into sudden, violent or
unnatural deaths. Sec. 174 provides for such inquiries by the police; Sec. 176, by
Magistrates.
FURTHER QUESTIONS
Q.1 P, an officer in charge of a police station receives a telephone call that a

prostitute has bought a minor girl for purpose of prostitution in a red light
area within the limits of his police station. The information relates to the
commission of a cognizable offence. Describe briefly the provisions of
the Cr. P.C., 1973 relating to investigation by police in this case.
P.L.C.-91]
When does ‘Investigation’ begin? Discuss the procedure for

investigating a cognizable offence.
[D.U.-2008/2011] [C.L.C.-96/98; LC./-95]
Distinguish cognizable offences from non-cognizable offences.

[D.U.-2008/2011]
A1 Investigation Procedure for a Cognizable Offence
According to Sec. 2, cl.(h), “Investigation” includes all the proceedings under the Code
for the collection of evidence conducted by a police
318 Criminal Law II
officer or by any person (other than a magistrate) who is authorised by a magistrate.
The Criminal Procedure Code does not contemplate the use of the j police in
respect of investigation into each and every offence. The Code I has classified all
offences into two categories - cognisable and non-cogm-dbk ; In case of a cognisable offence, a
police officer can arrest the alleged I culprit without warrant and can investigate into
such a case without any orders or directions from a magistrate [Sec. 2 (c)]. In case of a
cognizable 1 offence, it is the responsibility of the State (and the police) to bring the
offender to justice. In case of a non-cognisable offence, a police officer | cannot arrest
without a warrant and such officer has neither the duty nor I the power to investigate
into such an offence without the authority given J by a judicial magistrate.
The Supreme Court in H.N. Rishbud v State of Delhi (AIR 1955 SC I 196) ha? viewed the
investigation of an offence as generally consisting
of -
(1) Proceeding on the spot;
(2) Ascertainment of the facts and circumstances of the case;
(3) Discovery and arrest of the suspected offender;
(4) Collection of evidence relating to the commission of the offence
which may consist of -
(a) the examination of various persons (including the accused) and the
reduction of their statements into writing.
(b) the search of places or seizure of things considered necessary for the
investigation or to be produced at the trial; and
(5) Formation of the opinion as to whether on the materials collected
there is a case to place the accused before a magistrate for trial, and if
so, taking the necessary steps for the same by the filing of a charge-
sheet under Sec. 173. j
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
2 3 4bound to record in writing

C r every
i m i n ainformation
l Law IIrelating to the commission of a
cognizable offence alleged to be committed within his jurisdiction. The information as
recorded under Sec. 154 is usually known as the ‘First Information Report’ or F.I.R. It
shall be reduced to writing by the police officer and shall be signed by the informant.
A telephonic message received by a police officer regarding the commission of a

cognizable offence should constitute F.I.R, if the message is not vague, the person
giving the message is ascertainable, the information has been reduced into writing, it is
faithful record of such information, and the information is not incomplete in essential
details.
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
318 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. 162, 163

Sec. 162 lays down that the person making any statement in connection with the
investigation shall not sign the statement if it is reduced to writing. Sec. 163 provides
that no police officer shall offer or make any inducement, threat or promise.
Secs. 165, 166

Sec. 165 gives the power to the police officer to search any place within the limit of the
police station which he has reasonable grounds for believing to be necessary for the
investigation of the offence. Sec. 166 describes the procedure to be followed if the place
to be searched falls within the jurisdiction of another police station.
Secs. 169, 170

Sec. 169 states that the police officer may release an arrested person if the officer-in-
charge of the police station thinks that there is no sufficient evidence against him. If,
however, there is sufficient evidence, under Sec. 170, the officer-in-charge is obliged to
forward the accused to a magistrate empowered to take cognizance of the offence.
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
murder, N deposed that C first slapped D and then shot him
dead. In cross-examination the defence counsel wants to ask N
whether in the course of investigation also he had made a
mention of C’s first slapping D before shooting him. Can the
question be allowed? [C.L.C.-92/95/98/2000]
(b) How is an F.I.R. significantly more important than a statement of

a person recorded by the police during the course of
investigation? [C.L.C.-99/2000\
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
318 232 C r i m i nCarl i m
L ai n
wa l L aIIw - I I
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.
It may be noted that it is not permissible to circumvent the prohibition contained

in Sec. 162 by the investigating officer obtaining a written statement of a person instead
of the investigating officer himself recording that statement.
Explanation to Sec. 162

It states that “an omission to state a fact or circumstance in the recorded statement may
amount to contradiction. Whether any omission amounts to a contradiction in the
particular context shall be a question of fact.” However, every omission is not
contradiction. An omission can amount to contradiction if it “appears to be significant
and otherwise relevant having regard to the context in which such omission occurs.” In
other words, such omission must vitally touch the very factum which is required to be
proved by the prosecution. In the under-mentioned case, the Supreme Court reviewed
the entire case law on the point.
LEADING CASE: TEHSILDAR SINGH v STATE OF U.P.

(AIR 1959 SC 1012)
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
318 Criminal Law II
(b) A negative aspect of a positive recital in a statement — In the recorded
statement before the police the witness says a dark man
stabbed B, but in witness box he says a fair man stabbed B;
the earlier statement must be deemed to contain the recital
not only that the culprit was a dark complexioned man but
also that he was not of fair complexion. Thus, the omission in
the earlier statement would amount to contradiction.
(c) When the statement before the police and that before the court can’t stand together -
The witness says before the police that A after stabbing B ran
away by a northern lane, but before the court he says that he
ran towards the southern lane, as he could not have run away
towards the northern lane as well as southern lane, if one
statement is true, the other must be necessarily false. Thus,
this also amounts to a contradiction.]
Decision of the case In question

The statement of N can be used only for the purpose of contradiction. An omission (on
N’s part) can amount to contradiction if it appears to be significant and otherwise
relevant having regard to the context in which such omission occurs (i.e. omission by
necessary implication be deemed to be part of statement). The omission, in the present
case, could not be deemed so, as the statement of N before the police and that before the
court are not so inconsistent with each other that both of them cannot co-exist. A cross-
examination implies controverting the statements of the witness, and not eliciting
information from him. Thus, N’s omission does not amount to a contradiction and
therefore the question cannot be allowed.
(b) An F.I.R. is more important than a statement of a person recorded by the
police during the course of investigation for the following reasons:-
(i) The importance of F.I.R.. as conveying the earliest information
regarding the occurrence can’t be doubted. The object of F.I.R. is to get a
true or nearly true version of the events
318 Criminal Law II
connected with a crime. It is the first information and most proximate

information from the happening of an offence/ incident and as such its
truthfulness and veracity is much higher than the statement of a
person recorded by Police. The police cannot be trusted for recording
the statements correctly and 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.
(ii) Chances of improvement, concoction and false implication is less in
F.I.R. than a statement made to Police. If the commission of a crime is
reported soon after the act there is very little time for any distortion or
embellishment. F.I.R provides a check on the undesirable tendency on
the part of the prosecution to fill the gaps on their own. If the
prosecution tries to fit in certain fact in the given F.I.R, the same can be
checked up in the light of F.I.R.
(iii) F.I.R 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 comes into motion at once. F.I.R. guides the direction of
investigation and recording of statement of a person is aftershoot of
F.I.R
Q.3 How and when search and seizure can without warrant be affected by a
police officer? [L.C.I-94/95\
P, a police officer, while sitting at X’s house in a village directed H, the

head constable, to conduct search at A’s house in the same village
WITHOUT giving to H any written order and specifying the things to be
searched for. A asked H for the list of things searched for and the same
was not given. However, during the search, stolen gold ornaments were
recovered from A’s house but no list of things so recovered was
provided to A. Discuss the validity of the search at A's trial for theft and
robbery. [L.C./-96]
A.3 Search by Police Officer during Investigation (Secs. 165- 166)
A citizen should have in his house a full and free life undisturbed by executive action.
However, in the larger interests of the administration of justice it becomes necessary
that public officers engaged in investigations and inquiries relating to offences or
suspected offences should be afforded fair and reasonable facilities for searches. Sec. 165
of the Code is an exception to the general law of searches because it is recognized that
in certain exceptional emergencies it is necessary to empower police officer to. carry out
searches without first applying to the courts for authority (i.e. warrant). The legislature
has however attempted to restrict and limit the powers of the police under this section,
and has provided the concerned citizens with safeguards in order to prevent the abuse
of these powers.
Sec. 165 gives power of search and seizure to the police officers conducting
investigation into any offence. An analysis of the section will show that:
(1) The power to search a place can be exercised only by a police officer in charge
of a police station or other- police officer making such an investigation [Sub-
sec. (1)].
(2) The search under this section must be for particular things/ documents, or
specified materials, necessary for the purpose of investigation. The section
does not permit a general search. For instance, where the police officer
searches a house for stolen articles generally and not for any articles
mentioned by a complainant as having been stolen from him, the search
would be considered as a general search and thus illegal.
(3) The police officer must have ‘reasonable grounds’ for believing that —
(a) any specific thing necessary for the purpose of investigation may be
found in the place within the limits of his police station, and
(b) such thing, in his opinion, cannot otherwise be obtained without undue
delay (i.e. it would be too late before a search- warrant is obtained from
a magistrate) [Sub-sec. (1)].
318 238 CrC
imr ii m l aLlaLwa w - II
n ai n II
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.
(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.
Consequences of non-compliance with the provisions relating to searches

The contravention of the provisions of Secs. 100, 165 and 166 would make the search
illegal or at least irregular. Whether such contravention would vitiate the trial would
depend upon its effect on the question of prejudice caused to the accused person (Radha
Kishan v State of U.P. AIR
1963 SC 822). The Supreme Court in Shy am Lai v State of M.P. (1972)
1 SCC 764, observed that “this Court has not finally decided whether a search already
made in contravention of the provisions of Sec. 165 makes it illegal or void or merely
provides a justification for an obstruction to the search when it is intended or in the
process of its being conducted.”
In a case of non-compliance, the court may be circumspect to closely scrutinize

the evidence of seizure and may refuse to act upon the solitary evidence of the police
officer. Further, if the search-procedure is not strictly legal, the occupant of the place of
search can obstruct with impunity the police officer attempting to search the place.
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
3 1 8 encourage people to take the
C r ilaw
m i into
n a l their
Law II
hands, frustrate the investigation of crimes
and thwart public justice.

The search in the present case is clearly in contravention of the provisions of Secs. 100
and 165, Cr. P.C., and, thus, illegal.
234
9 Bail
C r i m i n a l Law II
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]
318 Criminal Law II
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.
Definition of Ball: Bailable and Non-ballable Offences 1

‘Bail’ h„ no, been defined unde, the Cr PC, 1973. I, ha, been defined in the Law Lexreon
as Way for >he appear,nee of ,h, accusedperso* on giving which, he is released pending
.ml o, tnvcsnganon. The wo,d b,if mean, .o se, a, hbert, a pe,so„ a,rested o, tmpnsoned
on secu«y being taken of Ins appearanee in the eonrt on a parucnla, day. The word
‘bail’ covers release on one’s own Dond.
The Cr. P.C. has classified aD offences into “bailable” and “non- bailable”
offences. The distinction between them is as follows:
ffl Bailable offence means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other aw for the time being in
force. Non-bailable offence means any
other offence [Sec. 2(a)]
Cu) Generally, serious offences i.e. offences punishable with imprisonment for 3
years or more, have been considered as no - bailable offences. While, petty

offences as bailable. But, there are exceptions on either side, riii) A person
accused of a bailable offence has a right to be released ' on bail [Sec. 50 (2)]
makes it obligatory for a police officer arresting such a person to inform him of
his right to be released
Bail 243
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.
Sec. 436. In what cases Bail to be taken

Sub-sec. (1) — Where there are no reasonable grounds to believe that the accused was
involved in the commission of a non-bailable offence, the accused shall be released on bail
under Sec. 436 (1). As soon as it appears that the accused person is prepared to give
bail, the police officer or the court is bound to release him. It would even be open to the
officer or the court to discharge such person on executing his bond without sureties
instead of taking bail from him [First proviso to Sec. 436 (1)].
Amendment of Sec. 436 (by 2005 Amendment)): In respect of bailable offences, a person has
to remain in jail for his inability to furnish bail, dll the case is disposed of. Sec. 436(1)
has been amended to make a mandatory provision that if the arrested person is
accused of a bailable offence and he is an indigent and cannot furnish surety, the court
shall release him on his execution of a bond without sureties. Thus, the amendment
has made it compulsory for the police to release a person accused of a bailable offence
if he or she cannot afford to furnish surety. This is a positive provision in favour of the
accused. The Explanation added after the proviso provides the key for the court to
ascertain the capability of the accused to provide surety. It provides that if he is
incapable of providing surety for a week after his arrest that may be an indication of
his being indigent.
318 Criminal Law II
244 Criminal Law II
L EADING C ASE : MOTI RAM v STATE OF M.P.

(AIR 1978 SC 1594)
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.”
Also, in that case, the magistrate refused to accept suretyship

of the petitioner’s brother because he and his assets were in
another district. The Supreme Court held it to be a wrong decision
by reasoning that ‘what a person of one State would do if
arrested in other State’? One cannot have sureties owning
properties in distant places. Judicial disruption of Indian unity is
surest achieved by such political allergies. Sec. 440 (1) specially
provides that the amount of every such bond shall be fixed with
due regard to the circumstances of the case and shall not be
excessive.
The Apex Court observed that the grant of bail can be

made impossible, inconvenient and expensive if the court is
powerless to dispense with surety or to receive an Indian bailor
across the district borders as good or if the sum is so excessive
that to procure a wealthy surety may be both exasperating and ^ expensive. J. Krishna Iyer
said that the word “bail” covers “release [ kac
on one’s own bond, with or without sureties.”]
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 ]
318 Criminal Law II
Other mandatory bail provisions

(1) Right to be released on bail if investigations are not completed within the prescribed number of days —
Where the accused has completed 60 or 90 days in detention and there is no
formal charge-sheet framed against them, the court is under constitutional
and procedural mandate to ask the detenu if he desire to be released on bail
and if he can furnish bail, he must be released on bail forthwith [Sec. 167 (2),
proviso]. This provision is applicable irrespective of the fact that the offence of
which he is accused of is non-bailable or the case is such that the bail cannot
be granted according to the provisions of Chapter XXXIII of the Code
dealing with bail and bonds. Mere submission of charge- sheet cannot be a
ground for cancellation of bail granted under Sec. 167 (2).
(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).
Sec. 437. Cases of Non-bailable Offences

Sub-sec. (1) - When any person accused of or suspected of the commission of any non-
bailable offence is arrested or detained/or appears or is
brought before a court (other than the High Court or Court of Session), he may be
released on bail, but —
(i) such person shall not be so released if there appear reasonable grounds
for believing that he has been guilty of an offence punishable with
death or life-imprisonment;
(ii) such person shall not be so released if such offence is a cognizable

offence and he had been previously convicted of an offence punishable
with death, life-imprisonment or imprisonment for 7 years or more, or
he had been previously convicted on two more occasions of a non-
bailable and cognizable offence.
The above provisions are subject to the following provisos (exceptions):

First - The court may direct that any person under the age of 16 years or any woman or
any sick or infirm person accused of such an offence be released on bail. The
proviso applies to both clauses
(i) and (ii).
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
318 Criminal Law II
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.
Sec. 437-A (Inserted by 2008 Amendment)

Tnis amendment inserts a new Sec. 437-A to provide for the Court to require accused to
execute bail bonds with sureties to appear before the higher Court as and when such
Court issues notice in respect of an appeal against the judgment of the respective Court.
“437-A. Bail to require accused to appear before next Appellate Court — (1) Before conclusion of the trial
and before disposal of the appeal, the Court trying the offence or the Appellate Court,
as the case may be, shall require the accused to execute bail bonds with sureties, to
appear before
318 Criminal Law II
250 Criminal Law II
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.”
Sec. 439. Special powers of High Court/Court of Session regarding Bail

(1) A High Court or Court of Session may direct —
(a) that any person accused of an offence and in custody be released on
bail, and if the offence is of the nature specified in Sec. 437 (3), may
impose any condition which it considers necessary for the purposes
mentioned in that sub-section.
(b) that any condition imposed by a Magistrate when releasing any person
on bail be set aside or modified.
The powers of the High Court or the Court of Session are considerably wider than the
powers of the Magistrate in Sec. 437. Under Sec. 439, no distinction is made between
various kinds of offences for the purpose of granting of bail, and bail can be given
even if the offence is most serious in character. The discretion to grant bail given to the
High Court and the Court of Session under Sec. 439 is not fettered in terms by the
restrictions mentioned in Sec. 437, but, on principle, these restrictions should equally
govern the exercise of the discretion by them under Sec. 439 \Gurcharan Singh’s case].
Though there is no specific provision for appeal against the orders refusing to
grant bail under Sec. 436 (1), the High Court or Court of Session can be moved under
Sec. 439 for bail. It may be noted that the lower court should be moved first in the
matter of bail, because any expression of opinion by the superior court is likely to
prejudice the trial in the lower court. Therefore, only in exceptional or special
circumstances an application for bail may be directly made to the High Court.
The promo to Sec. 439(1) requires the High Court/ Sessions Court to give notice to
the Public Prosecutor of the application made by the accused before granting bail in
cases where the person making an application is charged with an offence triable
exclusively by the Court of Session, or
which is punishable with imprisonment for life. If no such notice is given, reasons for
not giving it are to be recorded in writing. The reason for making this provision is that
in Session cases the court should not grant bail to the accused person without hearing
the public prosecutor who represents the State.
Cancellation of Bail2 [Secs. 437 (5) and 439 (2)]

Even after bail has been granted, it can be cancelled under Sec. 437 (5) or Sec. 439 (2).
According to Sec. 437 (5), any court which has released a person on bail under Sec. 437 (1)
or (2), may, if it considers it necessary so to do, direct that such person be arrested and
committed to custody.
The power to cancel a bail has been given to the court and not to a police officer.
Secondly, the court which granted the bail can alone cancel it. The bail granted by a
police officer cannot be cancelled by the court of a magistrate, but by the High Court or
Court of Session.
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 be no longer conducive to a fair trial to allow the accused to
retain his freedom during the trial. However, bail granted illegally/improperly by a
wrong and arbitrary exercise of judicial discretion can be cancelled even if there is
absence of supervening circumstances [State of Maharashtra v A.C. Dighe (1991) 3 SCC 209], If
there is no material to prove that the accused abused his freedom the court may not
cancel the bail.
As to cancellation of bail granted in bailable offence, a magistrate has no power.
Under Sec. 439 (2) specific powers in this regard have been given to the High
Court/Court of Session — may direct that any person who has been released on bail be
arrested and committed to custody. The
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.-
318 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
(iii) if he tampers with the evidence as by intimidating the prosecution witnesses,

interfering with the scene of the offence in order to remove traces or proofs
of crime, etc.;
(iv) if he absconds i.e. runs away to a foreign country, or goes underground, or

beyond the control of his sureties; and
(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
(iii) if the life of the accused itself be in danger.
Leading Case: STATE (DELHI ADMINISTRATION) v SANJAY GANDHI (“Kissa

Kursi Ha” Case)
[1978 Cr. LJ. 952 (SC)]
In this case, a film named “Kissa Kursi Ka” portraying the story of the
political doings of the respondent (Sanjay Gandhi) and his mother, Smt.
Indira Gandhi (former Prime Minister of India) was in issue. The Censor
Board declined to grant a certificate for exhibition of the film whereupon a
writ petition was filed in the Supreme Court for a writ of Mandamus. The
Apex Court was informed that it was not possible to screen the film for
evaluation by the Judges. During a raid conducted at the Gurgaon premises
of the Maruti Limited some incriminating material was found viz. boxes
containing the spoils of the film burnt and destroyed in the factory premises.
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
318 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 fact that prosecution witnesses have turned hostile cannot by

itself justify the inference that the accused has won them over. The objective
fact that the witnesses have turned hostile must be shown to bear a causal
connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the choice or
on the supposition that witnesses have won over by the accused.
Inconsistent testimony can no more be ascribed by itself to the influence of
the accused then consistent testimony, by itself, can be ascribed to the
pressure of the prosecution.
The court held: The prosecution can establish its case in an

application for cancellation of bail by showing on a preponderance of
probabilities that the accused has attempted to tamper or has tampered with
its witnesses. Proving by the test of balance of probabilities that the accused
has abused his liberty or that there is a reasonable apprehension that he will
interfere with the course of justice is all that is necessary for the prosecution
to do in order to succeed in an application for cancellation of bail.
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.
In the present case, the Magistrate appears to have completely

ignored the basic principles governing the grant of bail. The mere initial
grant of anticipatory bail for lesser offence, did not entide the respondent to
insist for regular bail even if he was subsequendy found to be involved in a
murder case. With
318 Criminal Law II
256 Criminal Law - (|
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.
The limitations circumscribing the jurisdiction of the Magistrate are

evident and apparent. Assumption of jurisdiction to entertain the
application is distinguishable from the exercise of the jurisdiction. The
jurisdiction to grant bail has to be exercised on the basis of well-settled
principles having regard to the circumstances of each case and not in an
arbitrary manner. Thus, while granting bail, the court has to keep in mind
the nature of accusations, the severity of punishment which conviction w
entail, the character, behaviour, means and standing of the accused,
circumstances which are peculiar to the accused, etc. It is to be noted that for
the purpose of granting the bail the legislature has used the words
“reasonable grounds for believing” instead of “the evidence” which means
that the court dealing with the grant of bail can only satisfy itself as to
whether there is a genuine case against the accused and that the prosecution
will be able to provide prima facie evidence in support of the charge It is not
expected, at this stage, to have the evidence establishing the-guilt of the
accused beyond reasonable doubt.]
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
(See under the Questions Section)
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]
G’s mother-in-law (a patient of asthma and aged 57 years), father-in-law

(aged 60 years) and brother-in-law (aged 15 years) are arrested for
assaulting G in an attempt to wrongfully confine her (a bailable offence)
and murder of G (a non- bailable offence). All the accused apply for bail.
They belong to a highly connected family of business magnates. Can the
accused be released on bail? [C.L.C.-91]
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]
P is arrested for damaging a place of worship (non-bailable offence) and

for offering indignity to a human corpse (bailable offence), P applies for
bail. Will he succeed?
[C.L.C.-92/95/99]
318 Criminal Law II
bail can only satisfy itself as to whether there is a genuine case against the accused and
that the prosecution will be able to provide prima facie evidence in support of the
charge. It is not expected, at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt [JPrahlad Singh Bhati v NCT, Delhi (2001) 4 SCC 280].
Certain principles, as evolved by the judiciary itself, which should guide the courts
in granting bail are:
(i) Nature and gravity of charge — If the accused is suspect of having committed the
offence of murder, conspiracy against the State, the court will reject the bail
application (George William’s Case).
(ii) Severity of punishment which the conviction will entail - The accused faced with a grim
prospect of being convicted may be tempted to jump bail if he is released on
bail and thus thwart the course of justice.
(iii) The danger or likelihood of the accused person’s absconding if he is released.
(iv) The danger of witnesses being tampered with — If the accused belongs to a wealthy class
or is a man of status, he is in a position to cause obstruction in the way of the
prosecution by pressurizing the witnesses and by tampering with the
evidence. He may be able to purchase the prosecution witnesses (Rao
Harnarain Singh’s and Gurcharan Singh’s Case).
(v) The position and status of the accused with reference to the victim and the witness. In Rao Harnarain
Singh case, the court observed that the bad character of a man does not
disentitle him from being bailed out if the law allows, and on the other hand,
the social position or status of an accused should not be taken into
consideration while granting bail merely because the accused is a respectable
person and is able to produce reasonable security.
(vi) Health, age and sex of the accused — If the accused is a female, or a male under 16
years of age, or a sick, or infirm person, the bail is usually granted. The law
has shown leniency and humane attitude towards minors, women, sick or
infirm persons. Bail must be given where the accused was below 16 years of
age, unless the court has reasonable ground to believe that his release was
likely to bring him in association with any known criminal or
expose him to moral danger or his release would defeat the ends(») 0 of justice [Guddu v
State, 1990 CrLJ 1531 (All)].
(vii) Prevention of offence being repeated - If the accused is a notonous (x) JN criminal, there is every
likelihood that if he is released on bail a there will be repetition of the same or similar
offences. Thus, the jt has bee previous convictions and the criminal record of the accused!
. have to be taken into account.
poor; etc
(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
must necessarily be granted.
[H int Considering the gravity of offence, he should not be released on bail.]

318 Criminal Law II
Bail 261
(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)].
Leading Case: GURCHARAN SINGH v STATE (DELHI ADMN.) (AIR

1978 SC 179)
The appellants are the suspended senior police officers who are accused of
the offence of murdering a notorious dacoit. They were released on bail by
the trial court. The High Court, however, cancelled their bail, as it felt that if
they were released, there was every likelihood that they will not spare any
chance of tampering with the evidence of the prosecution or pressurizing the
witnesses who belonged to humble class or had been working under these
persons when they were holding high official positions. The Supreme Court
agreed with the High Court’s decision.
The Supreme Court examined the entire material relating to the

preliminary inquiry and the conduct of the appellants after the grant of bail,
and the allegations that pressure was being exerted on some eye-witnesses to
support the case of the defence, and observed: “In considering the question
of bail of an accused person in a non-bailable offence punishable with death
or life- imprisonment, it is necessary for the court to consider whether the
evidence discloses a prima facie case to warrant his detention in jail besides the
other relevant factors. The two paramount considerations viz. likelihood of
accused fleeing from justice and his tampering with prosecution evidence
relate to ensuring a fair trial of the case in a court of justice. It is essential that
due and proper weight should be bestowed on these two factors apart from
others.”
262 Criminal Law II
There cannot be an inexorable formula in the matter of granting bail.

The facts and circumstances of each case will govern the exercise of judicial
discretion in granting or cancelling bail. The overriding consideration in
granting bail (as laid down in Rao Harnarain Singh case) are the nature and
gravity of the circumstances in which the offence is committed; the position
and status of the accused with reference to the victim and the witnesses; the
likelihood of the accused fleeing from justice or of repeating the offence; of
jeopardizing his own life being faced with a grim prospect of possible
conviction in the case; of tampering with the witness; the history of the case
as well as of its investigation and other relevant grounds which in view of so
many variable factors cannot be exhaustively set out
In Rao Harnarain Singh v State (AIR 1958 Punj 123), the accused were
charged with the commission of the offence of rape and murder of a young
girl. It was contended by the appellants that they deserved to be released on
bail; there did not appear any reasonable ground for holding or believing
that they had been guilty of an offence punishable with death or life
imprisonment; that there was no eye-witness to testify the murder. The court
observed that the bad character of a man does not disentitle him from being
bailed out if the law allows, and on the other hand, the social position or
status of an accused should not be taken into consideration while granting
bail merely because the accused is a respectable person and is able to
produce reasonable security. The circumstances of each particular case must
be taken into consideration by the court while deciding the question for the
grant of bail.
The accused in this case were alleged to have committed the offence
of murder, rape and also for causing the disappearance of evidence of these
offences. The first was a capital punishment entailing death sentence, the
second involves imprisonment up to 7 years. Thus, the accused have
committed grave offences punishable with long terms of imprisonment and
this is a consideration against their being released on bail. The question of
‘severity of punishment’ must be looked at not from
318 Criminal Law II
Bail 263
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.
There is apprehension that the accused on being released on bail will

be in all likelihood avail themselves, of the opportunities to corrupt the
prosecution witnesses by tampering with their testimony. Held, the bail
cannot be granted.
Leading Case: STATE v CAPTAIN JAGJIT SINGH (AIR

1962 SC 253)
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.]
Decision of first case in question
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.
318 Criminal Law II
Bail 265
Decision of second case in question
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]
“Anticipatory bail, being an extraordinary remedy, must be allowed only

in extraordinary situations.” Comment.
[L.C.i-95]
P, a former minister alleges that he has been falsely implicated in a case

of receiving Kickbacks from a foreign country. P, apprehending his arrest
moves an application for 'anticipatory bail’. What factors should be kept
in mind while considering P’s application? [C.LC.-92/95/99]
P, a leading politician was alleged to have committed rape on W, a

young woman, Private Secretary to him and a report was made to this
effect by W. P, apprehending his arrest, moves an application for
anticipatory bail under Sec. 438, Cr.P.C. How will you decide?
[C.L.C.-2000]
A, an eminent doctor, was alleged to have committed rape on 'B' a blind

patient and a report to this effect was made by B.
266 Criminal Law II
A apprehending arrest, moves an application for anticipatory bail under

Sec. 438, Cr. P.C. Will he succeed? [D.U.-2008\
A has reason to believe that he may be arrested on the accusation of

having committed a non-bailable offence. Can he apply to the High
Court for issuing a direction that in the event of his arrest he should be
released on bail?
[C.L.C.-2002]
A.2 Anticipatory Bail (Sec. 438, Cr. P.C.)
Meaning — The term ‘anticipatory bail’ implies a direction to release a person on bail
issued even before the person is arrested. In other words, it is a convenient mode of
conveying that it is impossible to apply for bail in anticipation of arrest. When the
courts grant ‘anticipatory bail’, what it does is to make an order that in the event of
arrest, a person shall be released on bail. Therefore, it is only on arrest that the order
granting anticipatory bail becomes operative. The distinction between an ordinary
order of bail and an order of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of the police, the latter is
granted in anticipation of arrest and is therefore effective at the very moment of arrest.
Necessity — Under the old Code there was no provision for grant of anticipator} 1 bail.
The Law Commission in its 41st Report observed: “The necessity for granting
anticipatory bail arises mainly because sometimes influential persons try to implicate
their rivals in false causes for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days. In recent times, with the accentuation of
political rivalry, this tendency is showing signs of steady increase. Apart from ‘false
cases’, where there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on bail, there
seems no justification to require him first to submit to custody, remain in prison for
some days and then apply for bail.”
Thus the rationale behind ‘anticipatory' bail’ is that individual liberty must not be
put in jeopardy on the instance of unscrupulous and irresponsible persons. While
granting anticipatory bail the court must strike a balance so that individuals may be
protected from unnecessary humiliation and the faith of the public in the
administration of justice is not shaken.
318 Criminal Law II
Sec. 438. Direction for grant of bail to person apprehending arrest -

(1) When any person has reason to believe that he may be arrested on an
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; and that
court, if it thinks fit, direct that in the event of such arrest, he shall be released
on bail.
(2) When such court makes such direction, it may include such conditions —
(i) the person shall make himself available for police interrogation as and
when required.
(ii) the person shall not, directly or indirectly, 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/police officer.
(iii) the person shall not leave India without court’s permission.
(iv) such other conditions as may be imposed under Sec. 437 (3), as if the
bail were granted under that section.
(3) If such person is thereafter arrested on such accusation, and is prepared
either at the time of arrest or at any time while in the custody of police to give
bail, he shall be released on bail.
The section contemplates two concurrent jurisdictions, viz. the High Court and the
Sessions Court (the power under Sec. 438 being rather of an unusual nature, it is
entrusted only to the higher echelons of judicial service). It is left to the person to
choose either of them. A person after unsuccessfully moving the Sessions Court for
anticipatory bail can again approach the High Court for the same purpose and under the
same section. But if he moves the High Court first and his application is rejected he
cannot approach the Sessions Court with a similar application. Thus, it is normally to
be presumed that the Sessions Court would be first approached for the grant of
anticipatory bail unless an adequate case for not approaching the said court has been
made out [Chajju Ram v State of Haryana, 1978 Cr LJ 608 (P&H)].
The power to grant anticipatory bail vests only in the Sessions Court/ High Court
having jurisdiction over the locale of the commission
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
318 Criminal Law II
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 aforesaid amendments have been criticized. The provision relating to

anticipatory bail is meant to protect people from arrest on false charges. An application
for anticipatory bail does not require a vakalat, and can be filed by the accused from
wherever he is. The amendment will allow the Public Prosecutor to ask for the accused
to be physically present in court when the application is pending, thus making it easy
for the police to intercept and arrest the accused before he reaches court. If the
application is rejected, the police can arrest him immediately, thus preventing him from
appealing against the decision. This amendment thus provides an unexpected
opportunity and embarrassment to the advocates to bring the alleged accused before
the court.
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.
Discretion in granting anticipatory bail - Guidelines

The Law Commission of India in its 48 th Report expressed the view that the power to
grant anticipatory bail should be exercised in very exceptional cases. Further, the court
while granting anticipatory bail should record
270 Criminal Law II
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.
LEADING CASE: GURBAKSH SINGH SIBBIA v STATE OF PUNJAB (AIR 1980

SC 1632)
In this case, the appellant, a Minister in the Government of Punjab, was

facing grave allegations of corruption against him and others. Applications
were filed in the High Court of Punjab and Haryana under Sec. 438, praying
that the appellants be directed to be released on bail, in the event of their
arrest on the aforesaid charges. A full bench of the High Court dismissed the
application. The Supreme Court, however, allowed the application.
The Supreme Court laid down various principles in this regard which
are as follows:-
(1) The legislature has conferred very wide discretion on the High
Court and the Court of Session to grant anticipatory bail.
These courts in the exercise of their judicial discretion can
grant such bail if they consider fit so to do on the particular
facts and circumstances of the case and on such conditions
as the case may warrant [use of words “may, if it thinks fit”
in Sec. 438(1) is conspicuously absent in Sec. 437(1)]. The
limitations imposed in Sec. 437, are not relevant under Sec.
438 (though the court is free to consider them). Thus there is
no restriction on granting anticipatory bail merely because
the alleged offence is one punishable with death or life-
imprisonment.
(2) The rationale of a direction under Sec. 438 (1) is the belief of
the applicant founded on reasonable grounds that he may
be arrested for a non-bailable offence. The use of the
expression “reason to believe” in Sec. 438 (1) shows that the belief
that the
318 Criminal Law II
Bail 271
appellant may be arrested must be founded on reasonable

grounds. Mere ‘fear’ is not ‘belief’, thus a vague apprehension that
some one is going to make an accusation against him, in pursuance of
which he may be arrested, is not enough. Such belief must be
founded on some tangible grounds which the court can
examine objectively. It is unrealistic to expect the applicant to
draw up his application with the meticulousness of a
pleading in a civil case and such is not the requirement of the
section. But specific events and facts must be disclosed by the
applicant in order to enable the court to judge the
reasonableness of his belief.
Sec. 438 (1) cannot be invoked on the basis of vague and general allegations,
as if to arm oneself in perpetuity against a possible arrest. Anticipatory bail is
a device to secure the individual’s liberty; it is neither a passport to the
commission of crimes nor a shield against any or all kinds of accusations,
likely or unlikely.
(3) The High Court or Court of Session while granting
anticipatory bail may impose conditions [Sec. 438 (2)] with a
view to strike a balance between the individual’s right to
personal freedom and the investigational rights of the police.
For instance, the court may direct that the applicant should
surrender himself to the police for a brief period if a
discovery is to be made under Sec. 27 of the Evidence Act.
(4) Legally it is possible to pass an ex parte order to anticipatory
bail. But ordinarily an order of anticipatory bail should not be
passed without issuing notice to the prosecution and giving it
an opportunity to oppose the application for anticipatory bail
[Balchand Jain v State of M.P. (1976) 4 SCC 572].
(5) No ‘blanket order’ — If a direction is issued under Sec. 438 (1) to
the effect that the applicant shall be released on bail “whenever
arrested for whichever offence
272 Criminal Law II
whatsoever” (i.e. for offences not yet committed or accusations

not so far levelled), the order serves as a blanket to cover or
protect any and every kind of alleged unlawful activity
regarding which no concrete information can possibly be
had. Such a ‘blanket order’ is not contemplated by Sec. 438,
the applicant must have reasonable grounds to believe that
he might be arrested for having committed a non-bailable
offence. Moreover, such a ‘blanket order’ would cause
serious interference with both the right and duty of the
police in the mattei of investigation. Thus 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. The power should not be exercised in vacuum.
(6) Filing of FIR not a condition precedent — Sec. 438 does not require that
offence in respect of which the anticipatory bail is asked for
has been registered with the police. Anticipatory bail can be
granted even after the F.I.R. has been filed, so long as the
applicant has not been arrested, but provisions of Sec. 438
cannot be invoked after the arrest of accused.
(7) No anticipatory bail after arrest - After arrest, the accused must seek
his remedy under Sec. 437 or Sec. 439 if he wants to be
released on bail.
(8) Bail to be effective till the conclusion of trial - As soon as a person is
enlarged on bail on the directions of anticipatory bail order,
it would be deemed by implication as if the bail was granted
under Sec. 437. Consequently, the bail shall be effective till
the conclusion of the trial.
(9) Cancellation of anticipatory bail - The court making an order of such
bail is entitled upon appropriate consideration to cancel or
recall the same
318 Criminal Law II
{Anticipatory bail granted to a husband in a case allegedly

involving dowry death came to be cancelled by the M.P. High
Court following Supreme Court decision [Samunder Singh v State
of Rajasthan (1987)
1 SCC 466] not to grant anticipatory bail to a person involved
in dowry death case as a matter of course}.
(10) Considerations to be kept in mind — The nature and seriousness of the
proposed charges, the context of the events likely to lead to
the making of the charges, a reasonable possibility of the
applicant’s presence not being secured at the trial, reasonable
apprehension that witnesses will be tampered with (or
apprehension of the accused being capable of influencing
investigation) and “the large interests of the public or the
State” are some of the considerations which the court has to
keep in mind while deciding an application for anticipatory
bail.
It cannot be laid down as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be actuated by mala fides
(i.e. ulterior motive to injure and humiliate the applicant); and, equally, that
anticipatory bail must be granted if there is no fear that the applicant will
abscond or flee from justice. It is also improper to hold that in serious cases
like economic offences involving blatant corruption at higher levels of
executive and political power, the discretion under Sec. 438 should not be
exercised. It is not possible for the court to assess the blatantness of
corruption at the stage of anticipatory bail. Status in life, affluence or
otherwise would hardly be relevant considerations while examining the
question of granting anticipator}' bail.
(11) Granting of anticipatory bail only in exceptional cases - Though the applicant
in order to succeed must make out a case for the grant of
anticipator}' bail under Sec. 438, that section does not require
him to make out a “special case”. The discretion in granting
such bail is undoubtedly to be exercised with care and
274 Criminal Law II
circumspection (as it is an extraordinary remedy),

but then it will not be correct to say that the power
to grant anticipatory bail must be exercised in
exceptional cases only [However in Samunder Singh v I
State of Rajasthan (1987) 1 SCC 466, the Supreme Court criticised
the liberal attitude of the High Court in granting anticipatory
bail].
In “Urea Scam” case, where there was a FERA violation involving huge amount, the
Supreme Court held that High Court is not justified in granting anticipatory bail to the
respondent when it found that the material already collected disclosed ‘an accusing
finger’ against the respondent, and particularly when he also contributed to the non-
completion of the investigation [Directorate of Enforcement v P.V Prabhakar Rao (1997) 6 SCC
647].
Similarly, in State {CRT) v Anil Sharma (1997) 9 SCC 187, the court refused
anticipatory bail to an MLA and son of a former Union Minister for
Telecommunications. The court accepted the argument that it is a case of corruption in
high places and that considering the responsible and high office which the accused
held and the wide influence which he could wield and the great handicap which
investigating agency would be subjected j A.3(a) to while interrogating a person
armed with an order of anticipatory bail.
It said that the court’s approach in dealing with application for anticipatory bail under
Sec. 438 should not be same as that in dealing with regular post-arrest bail applications
(viz. the principle that “bail and not jail is a
normal rule”).
Where the petitioner was a smuggler of hides and skins of wild animals and
there was sufficient material on record, and he had tried to run away leaving the skins
on spot, the Delhi High Court refused to grant anticipatory bail [Farman AH, 1995 Cr LJ
3288], Anticipatory bail was granted in a murder case, as the person involved was a
Government School teacher, there was no chance of his fleeing away or tampering
with evidence [Ram Kumar Tyagi, 1995 Cr LJ 1887 pel)]. Where a person was alleged only
to have instigated the commission of a murder, political rivalry also existed and there
was no apprehension of his fleeing away, the Madras High Court granted anticipatory
bail [S. Sarvanan v State, 1995 Cr LJ 1949]. Anticipatory bail has been refused in matters
involving
318 Criminal Law II
Bail 275
harassment and cruelty to women punishable by Secs 498-A/ 304-B IPC.
Q.3(a) Examine the legality of the following bail orders:-
(i) A, a top government functionary, accused of murder, whose underlings

(subordinate officials) are the witnesses in the case, is granted bail by the
Session Court on the ground that he is holding a responsible position and
is unlikely to jump the bail.
(ii) B, in apprehension of being falsely arrested in connection with a non-

bailable offence, applies for an anticipatory bail and the Session Judge,
in his indulgence (generosity) orders that the applicant shall be released
on bail “whenever arrested, for whichever offence, whatsoever.”
[C.L.C.-94/96]
(b) A, a notorious antisocial and smuggler, on the basis of a newspaper report

that the government was seriously contemplating a crack-down on
smugglers, apprehended his arrest and made an application for grant of
anticipatory bail before the High Court. Decide. [/_ Q L—
96\
A.3(a) (i) There is every likelihood that accused, A, will avail himself of the
opportunity to pressurize the prosecution witnesses (his subordinate
officials) by tampering with their testimony. Thus, the bail order is bad
in law (See Gurcharan Singh v State, Rao Harnarain Singh v State).
(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.
Fair
A per
been j
requir
judge)
the tri
rights
Comn
societ)
citizen
much
1
observ
just ap
preve
n
proce
318 Criminal Law II
1o
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]
234 278 C r i mCriminal Law
i n a l Law II 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
318 Criminal Law II
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.’
(2) Presumption of Innocence

The principle of presumption of innocence is an essential attribute of fair trial. Every
criminal trial begins with the presumption of innocence in favour of the accused and
the trial throughout is governed by this essential presumption. The accused person is
presumed to be innocent unless his guilt is proved beyond reasonable doubt.
(3) Independent Impartial and Competent Judges

The most indispensable condition for a fair criminal trial is to have an independent,
impartial and competent judge to conduct the trial.
Sec. 479. Case in which judge/magistrate is personally interested — “No judge or magistrate shall, except
with the permission of the court to which an appeal lies from his court, try or commit
for trial any case to or in which he is a party, or personally interested, and no judge or
magistrate shall hear an appeal from any judgment/order passed or made by himself.”
No man ought to be a judge in his own cause (Nemo debet esse judex in propria causa). The
essence of the section is that justice should be so administered as to satisfy a reasonable
person that his tribunal was impartial and unbiased. The question is not whether a bias
has actually affected the judgment. The real test is whether there exists a circumstance
according to which a litigant could reasonably apprehend that a bias attributable to a
judicial officer must’ve operated against him in the final decision of the case. It is in this
sense it is often said that ‘justice should not only be done must also appear to be done’
(Shyam Singh v State, 1973 Cr LJ 441).
280 234 Criminal Law C r i m Ii n
I a l Law II
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.
(4) Court’s Power and Duty to Examine the Accused Person

In every inquiry or trial, for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the court:
(a) may, at any stage, put such question to him as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before
he is called on for his defence, question him generally on the case [Sec.
313(1)].
The significance of Sec. 313 is to benefit the accused. The object of empowering the court
to examine the accused is to give him an opportunity of explaining the circumstances
which appear against him (i.e. tend to incriminate him). Thus, for instance, if a knife is
found in the house of the accused, and if this is likely to point an incriminating finger at
his implication in a crime, he should be given an opportunity to explain how that knife
was found in his house [Keki Bejonji v State of Bombay AIR 1961
SC 967]. This is of immense help to the accused person, particularly when he is

undefended.
318 C by
The answers given rim i naccused
the al Law II
can be taken into consideration for judgir" the
innocence or guilt of the accused. The above provision is not intended to enable the
court to cross-examine the accused for the purpose of trapping him. The section cannot
be used for the purpose of ascertaining what the accused’s defence is. It is not a proper
compliance with this section to ask the accused generally that, having heard the
prosecution evidence what he has to say about it. He must be questioned separately,
specifically and distinctly about each material circumstance which is intended to be
used against him [Tara Singh AIR 1951 SC 441]. The court must record the statements of
the accused made under Sec. 313.
The courts are required to question the accused properly and fairly so that it is
brought home to the accused in clear words the exact case that he will have to meet,
and thereby an opportunity is given to him to explain any such point. The section seeks
to establish a direct dialogue between the court and the accused for the purpose of
enabling the accused to give his explanation. The court may take help of Prosecutor and
Defence Counsel in preparing relevant questions which are to be put to the accused (it
eliminates delay in trial) and the Court may permit filing of written statement by the
accused as sufficient compliance of this section.
In a summons-case, where the court has dispensed with the personal attendance
of the accused, it may also dispense with his examination [Proviso, Sec. 313(1)]. The other
important features of Sec. 313 are:
(i) No oath shall be administered to the accused when he is examined [Sec.
313(2)].
(ii) The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them [Sec. 313(3)].
(iii) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other
inquiry/trial for any other offence [Sec. 313(4)]. For example, if in a trial for
murder he says that he concealed the
dead body and did not kill the victim his statement may be used as
evidence against him in a subsequent trial.
A statement of an accused under Sec. 313 is not stnctly evidence, as he does not
depose as a witness because no oath is administered to him. However, an accused
person while still under trial can be examined on oath in a separate case. Every error or
omission in complying with Sec. 313 does not necessarily vitiate the trial; the question
depends upon the degree of error and upon whether prejudice has been or is likely to
have been caused to the accused. If the State relies in the Supreme Court on any
particular circumstance as being sufficient to sustain a conviction, it will be open to an
accused to plead in answer that that particular circumstance was not put to him in his
examination under Sec. 313 [Knur Sain AIR 1974 SC 329],
(5) Rights of the Accused Person3

(a) Right of accused to know of the accusations - Fair trial requires that the accused person
is given adequate opportunity to defend himself. Thus, when he is brought
before the court for trial, the particulars of the offence of which he is accused shall
be stated to him (Secs. 251, 240, etc.).
(b) The accused person to be tried in his presence - The personal presence of the accused
throughout the trial would enable him to understand properly his case.
This would facilitate in the making of the preparations for his defence. A
criminal trial in the absence of accused is unthinkable. Sec. 317 makes an
exception to the above rule (‘Provisions for inquiries and trial being held in the absena of
accused in certain case/).
Under Sec. 317, the court before dispensing with the personal attendance of the
accused must be satisfied that (1) such attendance is not necessary in the interests of
justice or (2) that the accused persistently disturbs the
3. Explain briefly the rights available to a person accused of having committed

an offence under the Cr. P.C., 1973. [L.C.11-
93/94/9
What are the rights of an accused person during various stages of trial?
[D.U.-20
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
318 Criminal Law II 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
284 234 C r i m i n a l L a w C- rI Ii m i n a l Law II
contemplates ‘constructive presence’ and not necessarily actual presence of the

accused. So long as the accused and or his pleader are present when evidence is being
recorded by “video conferencing” that evidence is being recorded in the presence of the
accused [State of Maharashtra v Praful B. Dssai (200?) Cr. L.J. 2033 (SC)].
(d) Accused person can be a competent witness - \c.coT&\ng \o Sec. 315, \V\fc accused
can be a competent witness for the defence and can give evidence in
disproof of the charges made against him or against his co-accused.
(e) No influence to be used to an accused person to induce disclosures - According to Sec. 316, no
influence by means of any promise or threat or otherwise shall be used to
an accused person to induce him to disclose or withhold any matter within
his knowledge. However, this does not affect Secs. 306 and 307, dealing with
tender of pardon to an accomplice
(f) Right of accused person to cross-examine prosecution witnesses - A criminal trial which
denies the accused person the right to cross-examine prosecution witnesses
is based on weak foundation, and cannot be considered as a fair trial.
(g) Right to be defended by a lawyer of his choice {Sec. 303)/Legal aid to accused at State expense in certain
cases (Sec. 304) — See under the Chapter ‘Rights of Arrested Person.’
(h) Right of accused person to have a speedy triaft — Justice delayed is justice denied. A
criminal trial which drags on for unreasonably long time is not a fair trial,
as any delay keeps the accused in constant fear and psychological torture.
The Cr. P.C. does not confer a right on the accused to have his case decided
expeditiously. However, if the accused is in detention and the trial is not
completed within 60 days from the first date fixed for hearing he shall be
released on bail [Sec. 437(6)]. But this only mitigates the hardship of the
accused person and does not give him speedy trial.
4. Write a short note on “Speedy trial.” [L.C.I-94/96]

318 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]
286 234 C r i m i n a l L a w C- rI iIm i n a l 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].
(6) Rights of the Accused of Unsound Mind

By virtue of 2008 Amendment, certain provisions have been inserted in relation to
accused persons which are of unsound mind. Sections 328 and 329 relate to procedure
of enquiry and trial in case of person of unsound mind. The amendments provide that
if the magistrate finds that the accused is incapable of making his defence due to
unsoundness of
318 Criminal Law II
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.
Medical treatment of an accused person of unsound mind pending the trial

“Sec 330. Release of person of unsound mind pending investigation or trial- (1) Whenever a person is found
under Sec. 328/ 329 to be incapable of entering defence by reason of unsoundness of
mind or mental retardation, the Magistrate or Court, as the case may be shall, whether
the case is one in which bail may be taken or not, order release of such person on bail:
Provided that the accused is suffering from unsoundness of mind or mental retardation
which does not mandate in-patient treatment and a friend or relative undertakes to
obtain regular out-patient psychiatric treatment from the nearest medical facility and to
prevent from doing injury to himself or to any other person.
288 234 C r -i m11i n a l Law
Criminal Law II
(2)
If the case is one in which, in the opinion of the Magistrate or
Court, as the case may be, bail cannot be granted or if an
ppropriate undertaking is not given, he or it shall order the
accused to be kept in such a place where regular psychiatnc
tteatment can be provided, and shall report the action taken to
the State Government: Provided that no order for the detention
the accused in a lunatic asylum shall be made otherwise than
accordance with such rules as the State Government may
have made under the Mental Health Act, 1987.
(3) a person is found under Sec. 328 or Sec. 329 to be
Whenever
incapable of entering defence by reason of unsonndness of
““ “ “°”'
re d
o. Con,,, as ,he case
my be, shall keeping in vie* die nature of die ac, co
and die extern „f
fbrdier determine if die release of the accused can be ordered-
Provided that -
(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.
(7) Withdrawal from Prosecution 5

Jusnce ordinarily demand, tha, every case m„s, reach i,s desdnarion and should not be
interrupted * Sec. 321, however, enables die Public
D. U.-2009]
318 Criminal Law II
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].
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.
Lead.no Case: ABDUL KARIM v STATE OF KARNATAKA (AIR 2001

SC 116)
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.
318 Criminal Law II
The Supreme Court observed: The statutory responsibility for

deciding upon withdrawal squarely rests on the public prosecutor. Though
the Government may have ordered the- Prosecutor to withdraw from
prosecution, it is for the Prosecutor to apply his mind independendy to
relevant materials and he must exercise jurisdiction in good faith. The
withdrawal from prosecution should be in public interest and it will not stifle
or thwart the process of law or cause injustice. The Governments have to
consider and balance between maintenance of law and order and anarchy. If
Government yield to the pressure tactics of those who are to terrorise ... and
overawe the elected government, people may lose faith in the democratic
process, when they see public authorities flouted and the helplessness of the
government.
Sec. 321 contemplates consent by court in a supervisory and not an
adjudicatory manner. The section should not be construed to mean that the
court has to give a detailed reasoned order when it gives consent. It is not
necessary for the court to assess the evidence to discover whether the case
would end in conviction or acquittal. What it has to see is whether the
Prosecutor had applied his mind in good faith after considering all material
of case and application is made in public interest and justice and not to
thwart and stifle the process of law.
It was, therefore, held that there was no basis laid in the application
upon which the court could decide that the public prosecutor has applied his
mind to the relevant material. Applications under Sec. 321 seeking consent of
court to withdraw TADA charges were filed to facilitate ultimately the
release of accused persons from judicial custody so as to meet Veerappan’s
demand. In other words, withdrawal from prosecution on the ground that
the application has been filed on the basis of Government order does not
meet the requirements of Sec. 321 and is bad in law.]
(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,
318 F a iCr r Ti mr ii an la: l RLiagwh t s oIIf A c c u s e d P e r s o n 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)].
Leading Case: ZAHIRA HABIBULLA H. SHEIKH v STATE OF GUJARAT

(“BEST BAKERY CASE ”)
[2004 CR. U. 2050 (SC)]
In this case, the Apex Court ruled that it can order transfer even without the
request of a party if it is convinced that such a step is necessary in the interest
of justice. Both the State and a star witness (Zahira) approached the Supreme
Court seeking the retrial as the trial was not conducted properly due to the
witnesses turning hostile and non-cooperation of the Public Prosecutor.
The Supreme Court not only ordered re-trial but also transferred the case to
the State of Maharashtra.
In retaliation to avenge the killing of 56 persons burnt to death in the

train near Godhra (Gujarat), a business concern “Best Bakery” at Vadodara
was burnt down by an unruly mob killing 14 persons in the incident. Zahira,
the appellant, was the main eyewitness who lost her family members in the
incident. Many persons other than Zahira were also eyewitnesses. During
trial the eyewitnesses resiled from the statements made during investigation.
The trial court directed acquittal of the accused persons. Zahira approached
the National Human Rights Commission (NHRC) stating that she was
threatened by powerful politicians not to depose against the accused
persons. The State also filed an appeal against the judgment of acquittal
before the Gujarat High Court which upheld the acquittal of the accused.
The State also prayed for adducing additional evidence under Sec. 391, Cr
PC and/or directing re-trial, which was rejected by
the High Court. Then, Zahira and an NGO filed a Special Leave Petition
(SLP) in the Supreme Court challenging the judgment of acquittal affirmed
by the High Court of Gujarat.
The Supreme Court in appeal against acquittal considered additional
evidence and ordered re-trial outside State on grounds of faulty
investigation, distorted trial and tainted evidence being tendered. It held:
The accused persons have been acquitted by the Trial Court and the
acquittal has been upheld by the High Court but if the acquittal is unmerited
and based on tainted evidence, tailored investigation, unprincipled
prosecutor and perfunctory trial and evidence of threatened/ terrorized
witnesses, it is no acquittal in the eye of law and no sanctity can be attached
to the so called findings.
It was held that the principles of the rule of law and due process are
closely linked with human rights protection. Such rights can be protected
effectively when a citizen has recourse to law. A trial which is primarily
aimed at ascertaining truth has to be fair to all concerned viz. the accused,
the victim, the witnesses and the society. Denial of fair trial is as much an
injustice to the accused as is to the victim and the society. Fair trial obviously
would mean a trial before an impartial judge and a fair prosecutor. It means
a trial in which bias or prejudice for or against the accused, the witnesses or
the cause which is being tried is eliminated. If the witnesses get threatened
or are forced to give false evidence that also would not result in fair trial.
The failure to hear material witnesses is certainly denial of fair trial.
It was further observed that the State as a protector of its citizens has
to ensure that during a trial in Court the witness could safely depose the
truth, without any fear of being haunted by those against whom he has
deposed. The reluctance and the hesitation of witness to depose against
people with muscle power, money power or political power has become the
order of the day. If ultimately truth is to be arrived at, the eyes and ears of
justice have to be protected so that the interests of justice do not get
incapacitated in the sense of making the proceedings before courts mere
mock trials as are usually seen in movies. Fair trial
318 Fair Trial: C r i m i nofa Accused
Rights II
l L a w Person 295
warrants that a presiding judge must not be a spectator and a mere

recording machine. But he should play active role in evidence collecting
process and elicit all relevant materials necessary for reaching the correct
conclusion, to find the truth.
Again, in the similar case [2006 Cri. LJ 1694] held that it will not be
correct to say that it is only the accused who must be fairly dealt with. That
would be turning a Nelson’s eye to the needs of the society at large and the
victims or their family members and relatives. Each one has an inbuilt right
to be dealt with fairly in a criminal trial. Also held that if witnesses turn
hostile either due to threats, coercion, lures, monetary considerations,
political clouts and patronage and innumerable other corrupt practices
ingeniously adopted to smother and stifle truth, the trial cannot be said to be
fair. It has been emphasized by the Court that in these circumstances
protection of witnesses is necessary. Therefore, legislative measures to
emphasize prohibition against tampering with witnesses, victim or
informant is imminent and inevitable need of the day.
The Supteme Court in 2004, Cri.L.J. 2050, held that it is open to
Appellate Court to call for further evidence before appeal is disposed off.
The object of Sec. 391, Cr.P.C. is to sub serve ends of justice and to get at the
truth. Best Bakery is a case with horror and terror oriented history. In this
case the star eye-witness had not stated truthfully before the Trial Court and
was later on willing to speak truth before Appellate Court on the basis of
affidavit. It was held that rejecting application for additional evidence by
Appellate Court by merely branding the witness as not truthful is improper.
The underlying object which the Court must keep in view is the very reason
for which the Court exist i.e. to find out the truth and dispense justice
impartially and ensure also that the very process of Courts is not employed
or utilized in a manner which give room to unfairness or lend themselves to
be used as instruments of oppression and injustice.
It was held that the Supreme Court as an appellate court can in
exercise of its plenary powers under Art. 136 of the Constitution fix place or
court which should undertake retrial.
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]
A rescues, C, an under-trial from jail and in so doing causes grievous

hurt to G, the jail warden. A is tried and convicted for unlawfully rescuing
an under-trial from the legal custody. Later, he is tried for causing
grievous hurt to G A contends that the subsequent trial cannot proceed
in view of the previous conviction. Explain the argument of A, fully
explaining the law under Sec. 300, Cr. P.C. [C.L.C.-95/2000]
A strikes Z on the head with a LATHI causing fracture of the skull. A is

tried on a charge under Sec. 325, I.P.C. (voluntary causing grievous
hurt) before a Metropolitan Magistrate. The court allows compounding
of the offence by Z, and is accordingly acquitted him under Sec. 320,
Cr. PC. Z subsequently dies and A is placed on his trial before the
318 Criminal Law II 297
Fair Trial: Rights of Accused Person
Court of Session for an offence under Sec. 304, I.P.C. (Culpable

homicide not amounting to murder). A contends that the subsequent trial
cannot proceed in view of the previous acquittal. Examine the contention
of A, fully explaining the law under Sec. 300, Cr. P.C. [C.LC,-99]
Accused A, B, C are charged and convicted for the offence of conspiracy

(Sec. 120-B, IPC). Can they be charged and convicted of a separate
offence of cheating (Sec. 420, IPC) committed by them in pursuance of
that conspiracy?
[C.LC.-200J]
A.1 Sec. 300, Cr. P.C.
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
318 Criminal Law II
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.
Decision of the cases In question

The first problem is covered by Sec. 300 (3) and illustration (b) to Sec. 300. A, in his first
trial, was convicted for causing grievous hurt. At that time, the fact of the wife’s death
had not occurred. Thus, in his second trial, he could be tried for culpable homicide.
Similarly, in the second case in question, S, in his first trial, was convicted for the
offence of rescuing an under-tnal. The causing o grievous hurt to G is a separate
offence and is based on different facts (Sec. 300 (2J). Thus, he could be tried for it in his
second trial.
In the third case in question, A’s contention is not maintainable. In the fourth case
in question, A, B, C cannot be charged and convicted so. [Important Note: If, in the first
case in question, A had been acquitted at the first trial, Sec. 300 (3) would have applied.
Thus, in that case, A, in s second trial, could not be tried for culpable homicide. The test
is whether acquittal or conviction from first chargc necessarily involves acquittal or
conviction in second charge- 37 Cr. L.J. 992.]
318 Criminal Law II
11
PleaBargaining
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.
Plea bargaining, basically meant to reduce the time frame of criminal

trials, is prevalent in several countries, most notably in the United States.
[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
1. Inserted by the Criminal Law (Amendment) Act, 2005; w.e.f. 5-7-2006

318 Criminal Law II
Plea Bargaining 303
Secs. 265A to 265L, Cr. P.C.

“265A. Application of the Chapter.- (1) This Chapter shall apply in respect of an accused
against whom-
(a) the report has been forwarded by the officer in charge of the police
station under Section 173 alleging therein that an offence appears to
have been committed by him other than an offence for which the
punishment of death or of imprisonment for life or of imprisonment for
a term exceeding seven years has been provided under the law for the
time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other
than an offence for which the punishment of death or of imprisonment
for life or of imprisonment for a term exceeding seven years, has been
provided under the law for the time being in force, and after examining
complainant and witnesses under Section 200, issued the process under
Section 204,
but does not apply where such offence affects the socioeconomic
condition of the country or has been committed against a woman, or a
child below the age of fourteen years.
(2) For the purposes of sub-section (1), the Central Government shall, by
notification, determine the offences under the law for the time being in force
which shall be the offences affecting the socio-economic condition of the
country.2
(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.
(ii) Commission of Sati (Prevention) Act, 1987.

(iii) Indecent Representation of Women (Prohibition) Act, 1986.
(iv) Immoral Traffic (Prevention) Act, 1956.
(v) Protection of Women from Domestic Violence Act, 2005.
(vi) Infant Milk Substitutes, Feeding Bottles and Infant Foods Act, 1992.
(vii) Provisions of Fruit Products Order, 1955.
(viii) Provisions of Meat Food Products Order, 1973.
(contd.)
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.
318 Criminal Law II
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).
265C. Guidelines for mutually satisfactory disposition- In working out a mutually

satisfactory disposition under clause (a) of sub-section (4) of Section
265B, the Court shall follow the following procedure, namely: -
(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 throughout such process of working out a

satisfactory disposition of the case, it shall be the duty of the
Court to ensure that the entire process is completed voluntarily
by the parties participating in the meeting:
Provided further that the accused, if he so desires, may participate

in such meeting with his pleader, if any, engaged in the case.
(b) in a case instituted otherwise than on police report, the Court

shall issue notice to the accused and the victim of the case to
participate in a 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
C r i mI Ii n a l Law
Criminal Law
234 II
of the case, that it is completed voluntarily by the parties

participating in the meeting:
Provided further that if the victim of the case or the accused,
as the case may be, so desires, he may participate in such meeting
with his pleader engaged in the case.
265D. Report of the mutually satisfactory disposition to be submitted bejore the
Court- Where in a meeting under Section 265C, a satisfactory disposition
of the case has been worked out, the Court shall prepare a report of
such disposition which shall be signed by the presiding officer of the
Court and all other persons who participated in the meeting and if no
such disposition has been worked out, the Court shall record such
observation and proceed further in accordance with the provisions of
this Code from the stage the application under Section 265B (1) has been
filed in such case.
265E. Disposal of the case- Where a satisfactory disposition of the case has
been worked out under Section 265D, the Court shall dispose of the case
in the following manner, namely:-
(a) the Court shall award the compensation to the victim in accordance
with the disposition under Section 265D and hear the parties on
the quantum of the punishment, releasing of the accused on
probation of good conduct or after admonition under Section
360 or for dealing with the accused under the provisions of the
Probation of Offenders Act, 1958, or any other law for the time
being in force and follow the procedure specified in the succeeding
clauses for imposing the punishment on the accused;
(b) after hearing the parties under clause (a), if the Court is of the
view that Section 360 or the provisions of the Probation of
Offenders Act, 1958, or any other law for the time being in
force are attracted in the case of the accused, it may release the
accused on probation or provide the benefit of any such law, as
the case may be;
(c) after hearing the parties under clause (b), if the Court finds that
minimum punishment has been provided under the law for the
offence committed by the accused, it may sentence the accused
to half of such minimum punishment;
Plea Bargaining 307
318 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
3 0 82 3 4 n ar ilmLi na awl Law I I
CrimiC 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.
318 Criminal Law II
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
sarly 400 offences,

ise include crimes
ving; Defamation; a 4. Comment: Concept of 'Plea Bargaining’ as incorporated in the Code of Criminal Procedure,
criminal; Rioting: 1973. [D.U.-2011]
ting; 4a. Comment: Concern towards victim’s rights in the scheme of 'plea bargaining’ under the Cr.
Impersonation, i of P.C. [D.U.-2009]
lawful authority;
310 Criminal Law - 11
(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
318 Criminal Law II
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
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.
Justification for Plea Bargaining5

Delay in administering law is seen as a hindrance in crime prevention. The crime loses
its gravity with the increase in the gap between the incidence of crime and the
punishment of the offender. Plea bargaining has, thus, been introduced in die realm of
the Indian criminal jurisprudence owing to the result of the prolonged trials and the
endless cases that pile up over the years.
The justification for introducing plea bargaining given by the 12th Law
Commission in its 142nti Report are:
(1) It is not just and fair that an accused who feels contrite and wants to make
amends or an accused who is honest and candid enough to plea guilty in
the hope that the community will enable him to pay the penalty for the
crime with a degree of compassion and consideration should be treated on
par with an accused who rlaims to be tried at considerable time-cost and
money-cost to the community.
(2) It is desirable to infuse life in the reformative provisions embodied in Sec.
360, Cr. P.C. and in the Probation of Offenders Act which remains
practically unutilized as of now.
5. Comment: Justification of Plea Bargaining in criminal trials. [D.U.-2008]

“Western concept of plea bargaining is best suited to Indian conditions." Critically evaluate
this statement. [D.U.-2008]
Critically examine the concept of ‘plea bargaining’ and evaluate its scope in India. [/.A. S.-
2008]
Plea Bargaining 313
318 Criminal Law II
(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-
(a) end of uncertainty;
(b) saving in litigation cost;
(c) saving in anxiety cost;
(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.
Plea Bargaining: Unconstitutional Short-cut
Plea bargaining works under the assumption that all other constitutional safeguards
provided to both the victim and the accused have not been breached (like in the USA).
This would be difficult to assess in a country where corruption is rampant and the
legal machinery is easily manipulated. Victims, witnesses and their families are
regulady harassed, threatened or coerced into dropping charges or changing
statements. It is difficult to imagine that things will be different when an accused,
especially from a rich and influential background, appeals for a lesser sentence. Thus,
plea bargaining may condone criminal activities on payment of a fine or
compensation or both
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.
318 Criminal Law II
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.
PROS AND CONS OF PLEA BARGAINING
Defendants’ Incentives for Accepting Plea Bargains

* Relief to thousands of under trials — languishing in various jails across the country.
* Lesser jail term (lighter sentence) - for the accused.
* Getting out of jail — An accused in custody who either do not have right to bail
or cannot afford bail (viz. inability to hire a lawyer) or who do not qualify
for release on their own recognizance - can get out of jail. Depending on the
offence, the defendant may get out altogether, on probation, or, the
defendant may have to serve more time but will still get out much sooner
than if he or she insisted on going to trial. It would help the convict later also
when the case goes in appeal to the High Court.
* Speedy and less expensive justice — matter resolves quickly. An ordinary trial is time-
consuming and there is lot more stress. Some people
The Supreme Court of USA in Brady v US [297 US 742-25 L.Ed. 2d 747] and
Santobello v New York [404 US 257 (1971); Hutto v Ross [50 L.Ed. 2d 876]; Chaffin v Stynchcombe
[412 US 17 (1973)]; Blackledge v Allison [52 L.Ed. 2d 136]; Weatherford v Bursey [429 US 545
(1977)] upheld the constitutional validity and the significant role the concept of plea
bargaining plays in the disposal of criminal cases. It has approved this practice mainly
on the premise that the accused who are convicted on the basis of negotiated pleas of
guilt would ordinarily have been convicted had they been subjected to trial processes.
Indian judiciary has adopted a very strict approach towards plea bargaining.
The court did not approve of the procedure of plea bargaining on the basis of informal
inducement. A crime is essentially wrong against the society and the State. Therefore
#•
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
318 Criminal Law II
Benefits of Plea Bargaining
It is an agony to face a criminal. Even when the accused is acquitted ultimately, he
stands substantially punished, by facing the arduous process of trial. He stands
defamed; sometimes he loses employment; in regard to cognizable offences, he might
have already suffered imprisonment as an under trial; he faces ostracisation by the
society. For all these reasons if there is a way out to avert all these problems, the
accused will be ready to “admit his guilt if he can avoid going to jail.”
Plea bargaining will undoubtedly come as an attractive option for many
undertrials — and not only because of the possibility of getting a lesser punishment.
With a large number of undertrials spending years in jails due to the slow pace of trial,
sometimes without ever facing a magistrate, a confession in the course of plea bargain
is likely to be their best chance of freedom (‘some justice is better than no justice’).
However, that may also amount to waiving their right to a fair trial.
Justice V.S. Mallimath says the arrangement, if properly encouraged by courts
and the prosecution, will be the most efficient instrument to wipe out backlogs
(especially those who cannot afford a lawyer): “Nearly 90 per cent of criminal cases in
the US are setded this way rather than by trial by jury. Why not use it in our country
which is reeling under backlogs. It guarantees speedy justice and decongests our
prisons.” Plea bargaining will reduce the burden on Indian judicial system. Victims
would be assured of expeditious relief rather than a long-drawn (and often
unsatisfactory) trial and the exchequer would gain.
Says P.N. Lekhi, senior lawyer, “Plea bargaining is used to avoid uncertainty of
the trial and minimize the risk of undesirable result for either side. Prosecutors
generally slap an accused with the highest charge. In the bargaining, the accused is left
to choose between a lesser sentence or a prolonged trial after which he may be found
guilty of the more serious charges foisted by the police.”
Constitutional expert Subhash Kashyap agrees, “It is a win-win situation. The
accused gets a waived term if he confesses to the crime, while the speedy disposal and
decreasing backlog eases the pressure on the prosecutors and the judge.” He says a
large section of lawyers would be against cases being finished off in this manner as it
may affect their business. But they have a crucial role to play in settling matters.
Plea Bargaining 319
318 Criminal Law II
pJeadguiltr — especiallytoroutine;minorfirstofiences — withouthinngalawyer.
* 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.
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
Prosecutors' and Judges’ Incentives for Accepting Plea Bargains

Reduction of the burden on Indian judicial system — to get rid of backlog of cases.
Crowded calendars and overburdened prisons provide powerful incentives
to many judges and prosecutors.
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.
For prosecutors, a lightened caseload is equally attractive. When the judge is

bogged down, the judge puts pressure on the prosecutors to move cases along quicker.
To keep judges happy — and keep the machine rolling — prosecutors must keep “the
bodies” moving (as criminal defendants are most unfortunately referred to by some
courthouse regulars). Also, prosecutors feel they will have additional time and
resources for more important cases if they conclude a large number of less serious
cases with plea bargains.
* Assured conviction - Another benefit to the prosecution is an assured conviction.

But more importantly, plea bargaining assures a conviction, even if it is for a
lesser charge or crime. No matter how strong the evidence may be, no case is
a foregone conclusion or a “slam dunk.” Moreover, prosecutors may use
plea bargaining to further their case against a co-defendant. They may
accept a plea bargain arrangement from one defendant in return for
damaging testimony against another. This way, they are assured of at least
one conviction (albeit on a lesser charge) plus enhanced chances of winning
a conviction against the second defendant.
6. http://criminal/findlaw.com/crimes visited on 30-11-2007.

318 Criminal Law II
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.
Can it be Used in These Cases?

“Jessica Murder case”
Those who will be booked under the new FIR only for destruction of evidence can
enter into plea-bargaining. Punishment prescribed in IPC is seven years.
“Rahul Mahajan case”

No plea-bargaining under NDPS Act, so Junior Mahajan has to face trial. But his
aide Harish Sharma, servant Ganesh and some Apollo hospital doctors booked for
destruction of evidence can utilize it once trial commences.
“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.
“Tehelka Bribery case”

Ex-BJP President Bangaru Laxman faces charges under the Prevention of
Corruption Act and bribery, both coming under plea-bargaining. But addition of
criminal conspiracy by CBI keeps him out 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.
318 Criminal Law II
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.
Awareness about plea bargaining is crucial. In India, most litigants remain

unaware that such a provision exists for their benefit. The new amendment has
remained largely on paper with lawyers, prosecutors and even judges unsure about
how to handle the concept. If information about plea bargaining is disseminated
widely and there is a concerted effort to make it work, it will surely have an impact
on our ailing criminal justice system.
The Law Commission of India in its 154th Report (1996) said:"We have
examined the cases decided in USA as well as by the Indian Supreme Court and the
142nd Report (1991). We are of the view that plea bargaining can be made an
essential component of administration of criminal justice provided it is properly
administered. For that purpose, certain guidelines and procedure have to be
incorporated in the Cr.P.C,
We recommend that this concept may be made applicable as an experimental

measure, to offences which are liable for punishment with imprisonment of less
than 7 years, and/or fine including the offences covered by Sec. 320, Cr.P.C. Plea
bargaining can also be in respect of the nature and gravity of offences and the
quantum of punishment. However, plea bargaining should not be available to
habitual offenders, those who’ are accused of socio-economic offences of a grave
nature and offences against women and children."
Criminal Law II 325
Compounding of Offences vs Plea Bargaining 8

There is already a provision for ‘compounding of offences’ in the Criminal
Procedure Code. How is it different from plea bargaining? “In compounding, the
plaintiff and the defendant settle a case amicably over a time with the consent of the
court. With plea bargaining the issue is settled inside the court in a single sitting,”
says O.P. Saxena, Additional Public Prosecutor at the Delhi High Court.
Plea bargaining is seen as being akin to compounding of offences under
Section 320 of the Cr.P.C., as both involve methods of Alternative Dispute
Resolution (ADR). In State of Uttar Pradesh v Cbattdrika, AIR 2000 SC 164, the Supreme
Court spoke of the concept of compounding of certain offences under Sec. 320 as one
of “negotiated settlement in criminal cases.” Therefore it is important to clearly
distinguish it from that of plea bargaining.
There are some important differences between the two. Compounding of the
offence has the effect of an acquittal. There is no admission of guilt (as in plea
bargaining) which is the starting point for both punitive and rehabilitative rationales
for punishment. 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.
Secondly, only offences that are essentially of a private nature (relate
exclusively to the personality of the individual) has been recognized by the Cr.P.C.
as compoundable, while some others are compoundable with the permission of the
court. This is because a “crime” is essentially seen as a wrong against society at large
and the State, thereby, acquiring an interest in criminal punishment, a compromise
between the accused and the victim is generally not allowed. This also explains why
an expansion of the list of compoundable offences under Sec. 320 of Cr.P.C. could
not have been an answer to the problem of overcrowded dockets and jails for which
plea bargaining was purportedly introduced in India.
A compromise of a compoundable case deprives the Magistrate of his
jurisdiction to try it. Where the parties to a compoundable offence
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]
326 318 C ri mi nC
a lr i L
mai n
wa l L aIwI 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.
References (Plea Bargaining)

Article 1.
M.N. Krishnamani / Debjani C. Aich, The Economic Times, New Delhi, March 27, 2006.
Article 2.
A. Dwivedi, “PLEA BARGAINING IN INDIA: CHANGING DIMENSIONS”, pp.
38-42, LawZ, May 2005.
Article 3.
Editorial, “A Bargaining Chip”, The Hindustan Times, New Delhi, July 12, 2006.
Article 4.
Editorial, “Under Trial- Plea Bargaining to Reduce Overcrowding in Jails”, The Times
of India, New Delhi, July 7, 2006.
Article 5.
M. Mitta, “Plea Bargaining Comes into Force Today”, The Times of India, New Delhi, July
5, 2006.
Article 6.
A. Garg, “Now, Judges to Take Lessons in Plea Bargaining”, The Times of India, New
Delhi, August 30, 2006.
Article 7.
154th Report of the Law Commission of India on the Criminal Procedure Code
(1996).
Article 8.
Sonam Kathuria, “The Bargain has been Struck: A Case for Plea Bargaining in
India”, Student Bar Review, Vol. 19(2), Manupatra (2007). http-.l/
•w.manupatra.co.ininewsline/articles, visited on 21/12/2012.
12
Rights of Victims
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
1. https://www.victimlaw.org/victimlaw/pages/victimsRight.jsp visited on 20-12- 2012 .
[3 2 7 ]
Criminal Law II
328
318 Criminal Law II
Rights of Victims under Cr.P.C.
theory but not in practice (e.g. right to speedy trial).

The rights of a victim under the Code are:
(i) Victim as Informant

The victim of a crime sets the criminal justice system in motion by giving
to a copy of FIR “forthwith, free of cost” [Sec. 154(2)].

Where the officer in charge of a police station refuses to aa upon sue
(ii) Victim’s Role in Investigation

The victim is called upon to confirm the identity of the accused or the ItrS objLs, it
any, recovered during the mvesttgatton process.
When the victim is a child or woman, Sec. 160 lays down that nomde
p. age of 15 years or wo^n shjl be
place other than the place in which snch male person or women resides.
(iii) Compensation to Victims . „ ,,

~ fcomoensation for accusation without reasonable cause), bee. M
cost ^ nonôgnizable cases) of the Cr. P.C., 1973, provide for payment of ““P“ s““n “d
““J” “pLTof legislation in that for
2. What are the rights of victims under the Cr.P.C ? °'

[
Rights of Victims 329
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.
(iv) Victim’s Role in Bail and Closure of Case By Prosecution

In the granting and cancellation of bail, victims have substantial interests though not
fully recognised by law. Sec. 439(2) allows a victim to move the Court for
cancellation of bail; but the action thereon depends on the stand taken by the
Prosecution. Similarly, the prosecution can seek withdrawal at any time during trial
without consulting the victim (Sec. 321). Of course, the victim may proceed to
prosecute the case as a private complainant.
It may be noted that a closure report by the prosecution cannot be accepted by
the court without hearing the informant [Union Public Service Commission v S. Papiab (1997) 7
SCC 614]. In P. Ramchandra Rao v State of Karnataka (2002) 4 SCC 578, the Apex Court took
note of court’s permitting closure of petty criminal cases in which the trial had not
commenced even after the lapse of 2-3 years after institution. The Court expressed
concern for the plight of the victims of crime who, if left without a remedy, might
“resort to taking revenge by unlawful means resulting in further increase in the
crime and criminals.”
(v) Victim and Compounding of Offence

Compounding of an offence cannot possibly happen without the participation of the
complainant (Sec. 320).
(vi) Victim’s Participation in Trial

While the victim of the crime may move the government to appoint a special
prosecutor for a given case [Sec. 24(8), Cr.P.C.; the trial of offences under the SC/ST
Act is to take place in Special Courts and for each such court a Special Prosecutor is
required to be appointed], there is no scope under the Cr.P.C. for the victim or
informant or his lawyer to directly participate in the trial. Sec. 301(2) mandates that
such lawyer of the private party “shall act under the directions of the Public
Prosecutor.... and may, with the Court’s permission, submit written arguments after
the evidence is closed in the case.”
318 Criminal Law II
330 Criminal Law II
The victim’s right of participation in the post-trial stage of the proceedings

stands on a better footing. An appeal against an order of acquittal can be preferred,
with the prior leave of the High Court by both the State Government and the
complainant (Sec. 378).
(vii) Victim and Legal Aid

Though there is no provision in the Cr.P.C. for providing legal aid to the victim of a
crime (Sec. 304 provides for legal aid only to the accused), the Legal Services
Authority Act, 1987 entitles every person “who has to file or defend a case” to legal
services. A victim of crime has a right to legal assistance at every stage of the case
subject to the fulfilment of the means test and the ‘prima facie case’ criteria.
(viii) Protection of Victims from Intimidation/Harassment

The Cr.P.C. does not effectively address the growing menace of intimidation of
victims (or witnesses) during the pendency of trial at the instance of the accused and
other vested interests. The provisions that exist offer protection against intimidation
by the police. Sec. 162 makes the statement made by a witness to the police during
the course of investigation inadmissible in evidence. Sec. 163 seeks to protect a
witness against inducement, threat, etc. offered or made by police officer or other
person in authority. Sec. 171 mandates that no complainant or witness on his way to
any court shall be required to accompany a police officer, or shall be subject to
unnecessary restraint or inconvenience.
Even the few provisions that exist are not creatively used for making the
challenge. Sec. 284 provides that a witness can be directed by the Court to be
examined on commission thus dispensing with the need for such witness to attend
the trial. In addition, where the Court finds that the key prosecution witnesses have
turned hostile, it can under Sec. 309 (for reasons to be recorded) postpone the trial.
Also, under Sec. 311 it can recall and re-examine a witness if “his evidence appears it
to be essential for the just decision of the case”. However, these provisions are
seldom used even when the court finds that the witness is under obvious threat and
intimidation.^
(ix) Victim and Plea Bargaining

In ‘Plea bargaining’, the court shall provide time to the parties concerned to work
out a mutually satisfactory disposition which may include compensation to the victim from
the accused.
3. http://www.ielrc.org/content/a0402.pdf visited on 20-12-2012.

13
Witness Protection
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 ]
332 Criminal Law
318 Criminal Law II
A lot of witnesses do turn hostile because of threat by the powerful. The
successful working of the criminal justice system depends critically on the
willingness of individuals to furnish information and tender evidence without being
intimidated or bought. As symbolised by Zahira Sheikh’s flip-flops in the ‘Best
Bakery case,’ the threat of retaliation, which could include physical violence, is a
major reason why witnesses (some of them victims) do not cooperate. That case
sparked off a nationwide debate on the need for witnesses to be protected by the
State.
Leading Case: MRS. NEELAM KATARA v UNION OF INDIA 1 [ILR (2003) II

DEL 377]
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;
318 Criminal Law II
(b) the danger to the community if the witness is admitted to
the Program;
(c) the nature of the inquiry, investigation or prosecution
involving the witness and the importance of the witness in
the matter;
(d) the value of the information or evidence given or agreed to
be given or of the participation by the witness;
(e) the likelihood of the witness being able to adjust to the
Program, having regard to the witness’s maturity,
judgment and other personal characteristics and the family
relationships of the witness;
(f) the cost of maintaining the witness in the Program;
(g) alternate methods of protecting the witness without
admitting the witness to the Program, and
(h) such other factors as the Commissioner deems relevant.
Similarly in Australia, the Witness Protection Act, 1994 was enacted. A
Commissioner was designated to monitor the National Witness Protection
Program (NWPP).
Thus, the Court observed: “Given the financial constraints which
we have in this country, it may not be possible to have a Witness
Protection Program on the extended scale at which it is being
implemented in the United States of America, Canada, and Australia or
for that matter in the United Kingdom. But a beginning has to be made.
Society has an interest in the administration of justice and it may be true
that let a 100 accused escape but let not an innocent be punished, but this
cannot be stretched to mean an escape route should be provided to the
accused to hijack administration of justice and secure his innocence, not as
a result of a fair adversarial litigation but as a result of ‘might being
right’.”
At least, in two categories of cases, namely, organised crime and a crime punishable with the
capital sentence or imprisonment for life, witness protection is required.” “It has been coming to
the notice of this court that in heinous crimes the witnesses and sometimes
the victim turn hostile. There is strong material from which it can be
guessed that cause is fear and compulsion.”
N
N'\V(\ess P r o t e c t i o n 335
Till a suitable Legislation is brought on the Statute book, we direct

that following guidelines shall operate for protection of the witnesses.
These guidelines shall be known as: “WITNESS PROTECTION
GUIDELINES:”
“Witness” means a person whose statement has been recorded by
the Investigating Officer under Sec. 161, Cr.P.C. pertaining to a crime
punishable with death or life imprisonment. “Accused” means a person
charged with or suspected with the commission of a crime punishable with
death or life imprisonment. “Competent Authority” means the Member
Secretary, Delhi Legal Services Authority.
ADMISSION TO PROTECTION: The Competent Authority, on receipt of a
request from a witness shall determine whether the witness requires police
protection, to what extent and for what duration.
FACTORS TO BE CONSIDERED: In determining whether or not a witness
should be provided police protection, Competent Authority shall take into
account the following factors:
(i) The nature of the risk to the security of the witness which
may emanate from the accused or his associates.
(n) The nature of the investigation or the criminal case.
(iii) The importance of the witness in the matter and the value
of the information or evidence given or agreed to be given
by the witness.
(iv) The cost of providing police protection to the witness.
OBLIGATION OF THE POLICE: (1) While recording statement of the witness
under Sec. 161, Cr.P.C., it will be the duty of the Investigating Officer to
make the witness aware of the “Witness Protection Guidelines” and also
the fact that in case of any threat he can approach the Competent
Authority. This the Investigating Officer will inform in writing duly
acknowledged by the witness.
(2) It shall be the duty of the Commissioner of Police to provide security
to a witness in respect of whom an order has been passed by the
Competent Authority directing police protection.
The court further direct that the respondent State shall give due
publicity to the guidelines framed. Also it is made clear that the guidelines
framed by us would not be in derogation of the powers of the concerned
criminal court, if it forms an opinion that a witness requires police
protection to so direct.
336 Criminal Law II
318 Criminal Law II
Concluding Remarks (Suggestions)
Witnesses can be protected from turning hostile if we have provisions in law to
secure interest of witness whose life is always at stake in case of heinous and other
crimes against the State. For example, Sec. 30, Prevention of Terrorism Act (POTA)
states that: “Since the life of the witness is in danger adequate measures should be
taken to keep the identity and address of such a witness a secret. The mention of
names and addresses of the witness should be avoided in any records of the case
and even in the judgments.”
We can have provisions like:
1. Transferring witness from his city of residence to another city.
2. Government will provide the witness with a job similar to the same
he/she was doing.
3. The witness shall be given new name, and identity.
4. The setting up of a witness and victim protection unit under the
control of an independent and accountable agency. This ought to be
built into the statutory legal framework itself.
Also, the existing provisions of Cr.P.C. could be made use of in this regard:
1. One response is to get the Court trying the case to hold sittings in camera or
shift the venue of trial to a safer place in the interests of ensuring a fair
trial [Sec. 9(6), Cr.P.C.].
2. The other, and a less frequently invoked option, is to seek a transfer of the
trial to another State by petitioning the Supreme Court under Sec. 406,
Cr.P.C.
In G.X. Francis v Banke Bihan Singh (AIR 1958 SC 309), the Court transferred the trial of a
criminal defamation case filed against Christians by a non-Christian from a Court in
M.P., where the atmosphere was palpably hostile, to one in the neighbouring State
of Orissa.

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A K. Jain CRPC Criminal Law 2

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CRIMINA

©L4NPENAL CODE: MENS REA, GENERAL EXCEPTIONS, GROUP

Dr. ASHOK K. JAIN

Nature and Concept of Crime 2 Definition of Crime 3

Chapter 2. Mens Rea and Strict Liability

CHAPTER 3. GENERAL EXCEPTIONS

CHAPTER 4. GROUP LIABILITY

Stages of Crime 133 Section 511 Meaning of ‘Attempt’ 135

CHAPTER 6. CRIMINAL PROCEDURE CODE, 1973: INTRODUCTION

Obj ect and Importance of Criminal Procedure 163 Classes of

. RIGHTS OF ARRESTED PERSON

Rights of Arrested Persons 169

CHAPTER 8. POLICE INVESTIGATION

Sec. 154. First Information Report (F.I.R.) 194 Evidentiary Value

Chapter 10. Fair Trial.: Rights OF Accused Person

Fair Trial 277

CHAPTER 12. RIGHTS OF VICTIMS

Rights of Victims under Cr.P.C. 328

CHAPTER 13. WITNESS PROTECTION

Witness Protection Program in Various Countries 333

(Mt) Anandi v Emperor 48 A. Ahmed v The King 83

Chajju Ram v State of Haryana 267 Chandra Bhan v State

Guddu v State 260

Lord Dacre’s case 102

MALKIAT SINGH v STATE OF PUNJAB 143,146,157

OM PRAKASH v STATE OF PUNJAB 155

Pancham Singh v State of Bihar 202

PANDURANG v STATE OF HYDERABAD 98,103 Paras Ram v State of

QUEEN-EMPRESS v KADER NASYER SHAH 42,43,83

Criminal law is a branch of public law. It authorizes the infliction of State

The distinction between crimes and civil wrongs is roughly that

(3) Procedural difference — The proceedings in case of crime are

in a crime is measured by the intention of the

Distinction not doctrinaire but only functional

Constituent Elements of Crime

(ii) its circumstances, and

(iii) its consequences.

(2) Act (Acts) — There should be an act or omission to constitute a crime.

Role of punishment in criminal liability

Mens Rea and

Mens rea when Not Essential (Strict Liability)2

Although mens rea is a sacrosanct principle of criminal law, it can be waived in

F, not a citizen of Singapore had entered Singapore from the Federation of

Some Safeguards in the Cases of Strict Liability: Case Law5

LeadingCase: STATE OF MAHARASHTRA v M.H. GEORGE 6 (AIR 1965 SC 722)

The Supreme Court observed: Merely because a statute deals with a

(1) Unless a statute, either clearly or by necessary implication

(2) The question , of ‘necessary implication’ is to be determined

LEADING CASE: STATE OF MADHYA PRADESH v NARAYAN SINGH

8. To effectuate a credit-squeeze for the maintenance of economy, the

LEADING CASE: STATE OF ORISSA v K. RAJESHWAR RAO9 (AIR

1954. The sole question that emerges for consideration is whether it is

In the present case, the Apex Court observed and held:

Criticism of the Doctrine of Mens rea

1. “Nothing is an offence which is done by a person who is bound by law to do

2. A question based on this illustration. [I.A.S.-

Distinguish between 'mistake of fact’ and ‘mistake of law.’ [D.U.-2008/2011]

4 . A question based on this illustration. [I. A. S.-2004]

In other words, the distinction is between a real or supposed legal

LEADING CASE: STATE OF ORISSA V RAM BAHADUR THAPA4a (AIR

4a. A question based on this case [D.U.-2012]

flowers in lantern light. The prosecution side argued that it is a modern

LeadingCase: STATE OF ORISSA v BHAGABAN BARIK