Chapter I Introduction

S. 1. Title and extent of operation of the Code.—

This Act shall be called the Indian Penal Code, and shall 1[extend to the whole of India
2
[except the State of Jammu and Kashmir].]

Under s 1 as originally enacted, the Indian Penal Code (IPC or the Code) was to take
effect on and from the first day of May 1861. However, this date was changed to the ‘first
day of January 1862’ by Act 6 of 1861, and it was on this latter date that the Code came
into effect. The reason for changing the date of the commencement of the Code was that
it was thought that it would not be right to allow the Code, which altered the whole
criminal law of the country, to take effect before it was translated and published for the
information of the people and before the Indian courts had ample time to study it
thoroughly. The date was subsequently omitted by the Repealing and Amending Act 1891
(12 of 1891), as no longer necessary.

Straits Settlements

The Indian Penal Code was in force in the Straits settlements, extended by Act 5 of 1867.
Before the Indian Independence Act came into force on 13 August 1947, India was
divided into:

(a) British India, consisting of nine governor’s provinces and five chief commissioner’s
provinces; and

(b) native states, numbering about 562.

1
The original words have successively been amended by Act 12 of 1891, s 2 and Sch I, the AO 1937, the AO
1948 and the AO 1950 to read as above.
2
Subs by Act 3 of 1951, s 3 and Schedule for ‘except Part B States’.
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 These native states were ruled by sovereign princes who were directly under the
paramountcy of His Majesty, the King of England. The central legislature of British India
had no legislative power in respect of these native states and the British Indian laws had
no direct application to them. The Indian Penal Code had, therefore, no direct application
to the native states.

The Indian Independence Act ushered into existence two separate dominions:

(a) Pakistan, comprising the former British Indian Provinces of Sind, Baluchistan, West
Punjab, the North-West Frontier Province and East Bengal,

(b) India, comprising the rest of British India.

On the passing of that Act the paramountcy of the British King over India was left
undetermined. But by a rapid process of accession and merger, the native states lying in
the Dominion of India became integrated with the Indian Union.
India

‘India’ shall, therefore, mean:

(i) as regards the period before the establishment of the Dominion of India, British
India, together with all territories of the Indian rulers, then under the suzerainty of
His Majesty, all territories under the suzerainty of such an Indian Ruler, and the
tribal areas;

(ii) as regards any period after the establishment of the Dominion of India and before
the commencement of the Constitution, all territories, for the time being, included
in that Dominion; and

(iii) as regards any period after the commencement of the Constitution, all territories,
for the time being, comprised in the territory of India.3

Under art 1(3) of the Constitution of India, the territory of India shall comprise:

3
General Clauses Act 1897, s 3(28).
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 (a) the territories of the states;

(b) the union territories specified in the First Schedule; and

(c) such other territories as may be acquired.

The territories of the states and the union territories are specified in the First Schedule of
the Constitution.

Extent of the Code at Present

The IPC now extends to the whole of India, except the State of Jammu and Kashmir. It
does not mean that the State of Jammu and Kashmir has to be regarded as some place
outside India.4 The power of the Parliament to extend the Code to all states except the
State of Jammu and Kashmir is beyond question.5 In the State of Jammu and Kashmir, the
Jammu and Kashmir Ranbir Penal Code is in force. It is a replica of the Indian Penal
Code with the addition of half a dozen sections6 relating to dissemination of contents of
prescribed documents, wrongful obstruction to use of public tanks and wells and
slaughter of cattle, and three sections7 relating to whipping. Under art 1 of the
Constitution, India shall be a union of states. The states and the territories thereof are
specified in the Sch I to the Constitution. At present, there are 29 states, viz.: (i) Andhra
Pradesh, (ii) Assam, (iii) Bihar, (iv) Gujarat, (v) Kerala, (vi) Madhya Pradesh, (vii) Tamil
Nadu, (viii) Maharashtra, (ix) Karnataka, (x) Odisha, (xi) Punjab, (xii) Rajasthan, (xiii)
Uttar Pradesh, (xiv) West Bengal, (xv) Jammu and Kashmir, (xvi) Nagaland, (xvii)
Haryana, (xviii) Himachal Pradesh, (xix) Manipur, (xx) Tripura, (xxi) Meghalaya, (xxii)
Sikkim, (xxiii) Mizoram, (xxiv) Arunachal Pradesh, (xxv) Goa, (xxvi) Chhattisgarh,
(xxvii) Uttarakhand, (xxviii) Jharkhand, (xxix) Telangana8 and seven union territories viz.
4
Virender Singh v General Officer Commanding (1974) J&K LR 101.
5
KRK Vara Prasad v Union of India (1980) 1 ALT 381
6
Ranbir Penal Code, ss 190A and 291A - 291D
7
Ibid, 513-15.
8
Vide the Andhra Pradesh Reorganisation Act 2014, s 10 (wef 2-06-2014).
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(i) Delhi, (ii) The Andaman and Nicobar Islands, (iii) Lakshadweep, (iv) Dadra and Nagar
Haveli, (v) Daman and Diu, (vi) Puduchery, and (vii) Chandigarh. The Jammu and
Kashmir Reorganization Act, 2019.

However, s 18 of the Penal Code defines 'India' as 'the territory excluding the State
of Jammu and Kashmir'. Because of the special status it enjoys on account of art 370
of the Constitution of India, the State of Jammu and Kashmir has separately enacted
laws covering its territories. J&K had a different code, the Jammu and Kashmir Ranbir
Penal Code, a replica of the IPC. Due to THE JAMMU AND KASHMIR
REORGANISATION ACT, 2019, which came into force on the 9th August 2019
Indian Penal code applies to all the three Union Territories of J&K.

Extension of Code to Extra-territorial Offences

By virtue of s 4 of this Code, the provisions of the Code also apply to any offence
committed by:

(i) any citizen of India in any place without and beyond India,

(ii) any person on any ship or aircraft registered in India wherever it may be.

Thus the provisions of this Code will apply to all places in the world whenever an offence
under this Code is committed by a citizen of India even outside the country. Likewise all
offences defined by this Code, even if committed at any place outside India by any person
—whether he is a citizen of India or not—on any ship or aircraft registered in India, are to
be dealt with according to the provisions of this Code. In such cases the provisions of s 1
will not restrict the application of the Code.

Section 3 of the Code also makes a provision for a person liable by any Indian law to be
tried for an offence committed beyond India for dealing with in accordance with other
provisions of this Code for committing such acts beyond India, in the same manner as if

Page 4 of 573
 such act had been committed within India. Section 188 of the Code of Criminal
Procedure 1973 (CrPC ) expressly provides that offences committed outside India (a) by
a citizen of India or (b) by a person not being such citizen on any ship or aircraft
registered in India, may be dealt with as if such offences had been committed at any place
within India, with the previous sanction of the Central Government. The Kerala High
Court has, however, held that for the pre-inquiry stage, no such sanction is needed.

Maritime Territory

(a) International Law

It has been held that besides the land territories of a state, it has jurisdiction over the sea,
within the marine league or three miles and this is so by the assent of the nation. 9 The
international law assigns to a state, territorial jurisdiction in respect of acts done within a
marine league or three geographical miles from the low watermark of the shore. 10 In other
words, the territories, strictly speaking, of a state, include not only the compass of land in
the ordinary acceptance of the term, belonging to such state, but also that portion of the
sea lying along and washing its coast which is commonly called its maritime territory.11

The territory of a state consists, in the first place, of the land within its boundaries. To this
must be added, in the case of a state with a sea coast, certain waters which are within or
adjacent to its land boundaries, and these waters are of two kinds—national and
territorial.

(b) ‘National Waters’

These consist of the waters in its lakes, canals, rivers together with their mouths, ports

9
Re Kastya Ram(1871) 8 BHC 63 (Cr C).
10
Rolet v R LR 1 PCC 198 ; Q v Anderson LR 1 CC 161 ; Q v Musson 8 E&B 900 ; Emleton v Brown 30 LJMC
1 ; Re Kastya Ram(1871) 8 BHC 63 (Cr C); Potestalern Terrofinlrubt Fainter Armorum v iz (Deominion
Mariss, Ch II); R v Elmstone 7 BHCR 89 (Cr) ; Emperor v (Dr) Sylva LR 33 Bom 380, 9 Cr LJ 291.
11
Per Kemball J, in Re Kastya Ram(1871) 8 BHC 63 (Cr C), 9 Cr LJ 291.

Page 5 of 573
 and harbours, and in some of its gulfs and bays.

(c) ‘Territorial Waters’

These consist of the waters contained in a certain zone or belt, called the maritime or
marginal belt, which surrounds a state, and that includes a part of the waters in some of its
bays, gulfs and straits.12

(d) Marginal Belt (Maritime belt)

Whatever theory might ultimately find acceptance with the family of nations as to the true
basis of the right which a state possesses over territorial waters, there cannot be any doubt
that with reference to the rights of fishery, the marginal belt must be regarded as part of
the territory of the littoral state. There has been some divergence of juristic opinion on the
extent of the marginal waters. Various tests have from time to time been propounded for
defining them such as the range of cannon-shot, the limit of visual horizon and so forth.
This was one of the three subjects discussed in the Hague Codification Conference 1930,
which ended without any agreement being reached. It cannot, therefore, be said that the
law on the subject is finally settled.13 Hyde remarks:14 ‘There has long been a disposition
on the part of some publicists of distinction to advocate an extension of three marine
miles as the limit of territorial waters’.

Thus, according to international law, the real boundary of a state is not the low-water line
on its shores, but a line out at sea, usually stated as being an imaginary line drawn at three
miles from the low-water mark.

S. 2. Punishment of offences committed within India.—

12
Openheim’s International Law, vol I, seventh edn, p 415; Hyde on International Law, vol I, second edn, p 152
and Higgins and Colombos on International Law of the Sea, second edn.
13
AMSSVM & Co v State of Madras AIR 1954 Mad 291
14
Hyde on International Law, vol I, second edn, pp 464-65.
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 Every person shall be liable to punishment under this Code and not otherwise for every
act or omission contrary to the provisions thereof, of which he shall be guilty within
15
[India] 16
[* * *].

Scope of the Section

The first question that naturally arises in connection with a body of substantive criminal
law like the IPC is, within what time, within what local limits and over what persons is
the Penal Code enforceable.

As regards time, there is no general law of prescription in English Common Law, 17 a

maxim of which has always been nullum tempus occurrit regi (lapse or time does not bar
the right of the Crown), and in accordance with this principle, this section specifies no
period within which criminal proceedings must be brought. A prosecution may therefore,
be brought at any time after the commission of an offence. 18 A time limit has since been
fixed for prosecution of minor offences punishable with fine only or with imprisonment
for a term not exceeding three years by s 468 of the Crpc,19 which applies to offences
punishable under the IPC. These provisions, however, do not apply to economic
offences.20

As regards the territorial and personal jurisdiction, the jurisdiction of criminal courts in
India is both territorial and personal. Prima facie, the IPC is intended to deal with all

15
The original words ‘the said territories’ have successively been amended by the AO 1937, the AO 1948, the
AO 1950 and Act 3 of 1951, s 3 and Schedule, to read as above.
16
The words and figures ‘on or after the said first day of May 1861, rep by Act 12 of 1891, s 2, Sch I.
17
There are a few statutory exceptions, but they are of little importance; Stephen, History of the Criminal Law
of England, vol II, p 2.
18
Queen-Empress v Ajudhia Singh 10 ILR All 350 ; Queen-Empress v Nageshappa 20 ILR Bom 543.
19
Chapter 36 of the Code of Criminal Procedure 1973.
20
The Economic Offence (Inapplicability of Limitation) Act 1974.
Page 7 of 573
 unlawful acts and omissions defined to be offences and committed within India and to
provide for the punishment thereof of the person or persons found guilty therefor. This is
implicit in the preamble and s 2 of the IPC. Sections 3 and 4 deal with offences
committed beyond the territorial limits of India and s 2 obviously and by contract refers
to offences committed within India. It appears clear, therefore, that it is s 2 that has to be
looked to, to determine the liability and punishment of persons who have committed
offences within India. If all the ingredients of the offence occur within the municipal
territory of India, and the presence of the offender in India for his trial can be secured, the
municipal courts have jurisdiction to punish him. 21 Punishment for an offence committed
within India is covered by s 2 of the IPC as well as by the procedure as laid down under
the CrPC, it is stated that offences under the IPC shall be investigated, inquired into, tried
and otherwise dealt with according to the provision contained therein. Therefore, if an
offence under the IPC is alleged, the criminal courts in India unless otherwise expressly
barred, have power to deal with the matter after complying with the procedure laid down
in the CrPC.22

‘Every Person’
The plain meaning of the phrase ‘every person’ in s 2 is that it comprehends all persons
without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or
creed. If offence was committed by officers of foreign company in India, they shall be
tried under the provisions of the Indian Penal Code, the fact that at the time of the
commission of offence the accused were not present in India, their residence/abode
outside India, their foreign nationality would not come in the way of their being
prosecuted/tried under the Indian Penal Code.23

This section must be understood as comprehending every person without exception,

barring such as may be especially exempt from criminal proceedings or punishment
thereunder by virtue of the Constitution24 or any statutory provisions or some well
recognised principle of international law, such as foreign sovereigns, ambassadors,
21
Mobarik Ali Ahmed v The State of Bombay AIR 1957 SC 857
22
Unnikrishnan & etc v Divisional Inspector of Police, Cochin & Ors (2001) Cr LJ 4558 (Ker).
23
Lee Kun Hee v State of UP 2012 Cr LJ 1551, p 1564
24
The Constitution of India, art 361(2).
Page 8 of 573
 diplomatic agents and so forth, accepted in the municipal law. 25

Juridical Person

Section 11 of the Code itself defines the word ‘person’ as including ‘any company or
association, or body of persons, whether incorporated or not’. A corporation is, therefore,
liable to punishment under this Code.26 Knowledge and intention of its servants may be
imputed to the body corporate. 27 However, it cannot be said that in every case, where an
agent of a limited company, acting in its business commits a crime, the company is
automatically to be held guilty. A company cannot be indictable for offences like bigamy,
perjury, and rape, etc., which can only be committed by a human individual, or for
offences punishable with imprisonment or corporeal punishment. Barring these
exceptions, a corporate body ought to be indictable for criminal acts or omissions of its
directors or authorised agents or servants, whether they involve mens rea or not, provided
they have acted or have purported to act under the authority of the corporate body or in
pursuance of the aims or objects of the corporate body. The question, whether a corporate
body should or should not be liable for criminal action, resulting from the acts of some
individual, must depend upon the nature of the offence, disclosed by the allegations in the
complaint or in the charge sheet, the relative position of the officer or agent vis-à-vis the
corporate body and the other relevant facts and circumstances which should show that the
corporate body, as such, meant or intended to commit such act. Each case will have
necessarily to depend on its own facts which will have to be considered before deciding
whether to proceed against the corporate body or not. 28
Foreigner

A foreign subject comes within the purview of all Acts in force in India, if he chooses to
come into this country, unless indeed the Act itself makes an exception in their favour.
There is no presumption that a foreigner knew the law enforceable in India—the law
25
Mobarik Ali Ahmed v State of Bombay AIR 1957 SC 857
26
Emperor v Dhanraj Mills Ltd AIR 1943 Bom 182
27
Director of Public Prosecutions v Kent Contractors (1944) 1 All ER 119.
28
State of Maharashtra v Syndicate Transport Co (Pvt) Ltd (1964) 2 Cr LJ 276, p 280-81,
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 makes no such absurd presumption but ignorance of the law does not in any way affect
his liability thereunder. Such ignorance might be pleaded in mitigation of sentence, if he
is convicted of a crime, but it affords him no sort of privilege or immunity. 29 On a plain
reading of this section, therefore, the Code does apply to a foreigner who has committed
an offence within India notwithstanding that he was corporeally present outside.

PERSONS EXEMPT FROM PROSECUTION

The King

During British Rule, the Code could not affect the King because the Code was an Act of
the Governor-General-in-Council, and he could not legislate so as to ‘affect the
prerogative of the Crown or the authority of the Parliament or any part of the unwritten
law or Constitution of the United Kingdom’. Now India has become an independent
sovereign free republic, but the sovereign of England is still exempt from the Code as a
foreign sovereign (see Note below under the heading ‘Foreign Sovereigns’).

President and Governors of States

Under art 361(2) of the Constitution of India, no criminal proceedings whatsoever can be
instituted or continued against the President of India or the Governor of a State in any
court during his term of office.

Foreign Sovereigns

In accordance with the law of nations a sovereign prince, resident in the dominion of
another, is exempt from the jurisdiction of the court there 30 as the exercise of such
jurisdiction would be incompatible with the regal dignity, that is to say, with his absolute

29
Jitendra Nath Ghosh v Chief Secy to the Bengal Govt AIR 1932 Cal 753, p 755
30
Per Lord Langdale in the Duke of Brunswick v King of Hanover (1844) 6 Beav 1, p 50
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 independence of every superior authority.31

Ambassadors

The rights, the powers, the duties, and the privileges of ambassadors are determined by
the law of nations, and not by any municipal Constitution. For, as they represent the
person of their respective masters, who are not subject to any laws but those of their own
country, their actions are not subject to the control of the private law of that state wherein
they are appointed to reside. He that is subject to the coercion of laws is necessarily
dependent on that power by whom those laws were made, but an ambassador ought to be
independent of every power except that by which he is sent, and in consequence, ought
not to be subject to the mere municipal laws of that nation wherein he is to exercise his
functions. If he grossly offends or makes an ill-use of his character, he may be sent home
and accused before his master, who is bound either to do justice

Diplomatic Agents

These may be classified as follows.

Ambassadors, Legates and Nuncios

These form the highest rank. They alone have the representative character. Legates and
nuncios are papal ambassadors representing the Pope.

Envoys, Ministers or Other Person Accredited to Sovereigns

While ambassadors have access to the foreign sovereign, ministers have access to
secretary for foreign affairs of the country to which they are accredited. Special envoys
are employed to conduct negotiations on specific matters.

31
Re The Parliament Belge LR 5 PD 197, p 205; Secy of State v Moment 17 CWN 169
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Ministers Resident, Accredited to the Various Courts

These are generally sent to the minor states.

Chargé d’ Affaires, Accredited to Ministers for Foreign Affairs

A Chargé d’ affaires takes control of the mission during the temporary absence of the
head of the mission. A Charge d’ affaires is entitled to have audience of the foreign
minister only.

Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving state
vide art 31 of the Vienna Convention on the Diplomatic Relations 1961. The said article
has force in India by virtue of the Diplomatic Relations (Vienna Convention) Act 1972,
enacted by the Indian Parliament.

Attaches

Attaches do not hold diplomatic rank but their names are included in the diplomatic lists
as members of the staff of a diplomatic mission.

Prior to the enactment of the Diplomatic Immunities (Commonwealth Countries and

Republic of Ireland) Act 1952, the High Commissioners exchanged between the
commonwealth countries were not entitled to any immunities which belong to ‘diplomatic
agents’. By this Act, the United Kingdom has conferred on these High Commissioners
(including those of India and Pakistan) the same privileges and immunities as belong to
diplomatic agents, their staffs, families and servants.

As the representative of a sovereign state, and in order that he may exercise his functions
in a foreign state, certain privileges are given by International Law to a diplomatic agent

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 in the state to which he is accredited.

Immunities Extended to Family Members of Diplomatic Agents

The immunities of the diplomatic agent are extended to his family living with him,
because of their relationship to him, to secretaries and attaches, whether civil or military,
forming part of, the mission but not personally accredited, because of their necessity to
him in his official relations, and perhaps also to domestics and other persons in his service
not possessing a diplomatic character because of their necessity to his dignity or
comfort.32

Alien Enemies

In respect of acts of war, alien enemies cannot be tried by criminal courts as traitors,
though they may be dealt with by martial law.33 But aliens may be proceeded against for
any other crime committed by them. Thus, a prisoner of war who shot a sentry in order to
escape would not be liable to the criminal law; but if he committed a crime unconnected
with an attempt to recover his liberty, such as theft, 34 he would be liable.35 Protection and
allegiance are co-extensive.36 Even in cases where protection is imposed against the will
of the foreign subject;37 but a wrongful extension of protection does not carry with it a
corresponding extension of criminal law.38

Public Servants

32
Hall’s International Law, third edn, pp 174-75.

33
1 Hawk PC c 2, s 6
34
Foster’s Discourse on High Treason, p 88; R v Johnson 29 St Tr 398.
35
R v Sattler D & B 525, 543
36
SHCLE II, 8 eg, R v Lopez D & B 525; R v Anandersen LR 1 CCR 161.
37
R v Sattler D&B 525
38
R v Serve 1 Den CC 104
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 Under s 132 of the Crpc, public servants, officers, members of the Armed Forces and
other persons acting in good faith under ch 10 of that Code are immune from prosecution
in a criminal court,39 except with the sanction of the state or Central Government.

Men-of-war

There is a partial exception as a result of international courtesy, in the case of a ship of

war on the high seas, the officers and crew of which are exempt from the local law in all
that concerns the discipline and internal government of the ship, and on board where
neither civil nor criminal process can be executed.40 But this immunity does not extend to
Indian subjects who may happen to be on board such vessels. 41 The immunities extend to
internal disputes between the crew. Over offences committed on board ship by one
member of the crew upon another, the local courts would not exercise jurisdiction.

Two Theories on Jurisdiction in International Law

On the question of jurisdiction two theories have found favour with persons professing a
knowledge of the principles of international law. One is that a public ship of a nation for
all purposes either is, or is to be treated by other nations as part of the territory of the
nation to which she belongs. By this conception will be guided the domestic law of any
country in whose territorial waters the ship finds herself. There will, therefore, be no
jurisdiction in fact in any court where jurisdiction depends upon the act in question being
done or the party to the proceedings being found or resident in the local territory. The
other theory is that a public ship in foreign waters is not and is not treated as territory of
her own nation. The domestic courts in accordance with principles of international law
will accord to the ship and its crew and its contents certain immunities, some of which are
well settled, though others are in dispute. In this view the immunities do not depend upon

39
Code of Criminal Procedure 1973, s 132.
40
Stephen, History of the Criminal Law of England, vol II, p 46.
41
Ibid, p 43 as to the nature of the immunity given to foreign war vessels within British waters.
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 an objective ex-territoriality, but on implication of the domestic law. They are conditional
and can in any case be waived by the nation to which the public ship belongs.

This immunity which is undoubtedly enjoyed by men-of-war has been, by international

comity, extended to troopships,42 and indeed, to all ships of the state. The immunity from
such interference arises, not because they are instruments of war, but because they are
instruments of sovereignty;43 and it is on this ground that the exemption of warships has
been justified. ‘The exemption of a public ship of war of a foreign Government from the
jurisdiction of our Courts depends rather upon its public than upon its military
character’.44

Territorial Jurisdiction

Under this section a person is liable to punishment under the Code only for an act or
omission of which he is guilty within India.

Jurisdiction over Offences Committed at Sea

States can legislate effectively only for their own territories. To what distance seaward the
territory of a state is to be taken as extending is a question of international law. Whatever
be the limits of territorial water in the international sense, it has long been recognised that
for certain purposes, notably those of police, revenue, public health and fisheries State
may enact laws effecting the seas surrounding its coasts to a distance seaward which
exceeds the ordinary limits of its territory.45 The criminal jurisdiction of the courts over
offences committed at sea beyond the low water mark, was vested in them by virtue of
imperial legislation, for the Indian government had no power to legislate with reference to
offences committed at sea.46 This legislation was connected with what is known as

42
Re The Athol (1842) 1 Wm Rob 374.
43
Briggs v The Lightships 11 Allen 157
44
Re The Thomas A Scott 10 LT 726; Re The Parliament Belge (1880) LR 5 PD 197, p 213.
45
ER Crost v Sylvester Dunphy AIR 1933 PC 16
46
R v Elmstone 7 Bom HCR CC 89; R v Kastya Raina 8 Bom HCR 63
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 admiralty jurisdiction. The then Supreme Courts of Calcutta, Madras and Bombay, and
the High Courts which were substituted for them, had admiralty jurisdiction by virtue of
the Acts by which they were constituted and by the Charters issued under the provisions
of these Acts.47 This jurisdiction was at first local, but was extended to the whole sea by
the Statute 33, Geo III c 52, s 156. In 1849 the Statutes 12 and 13 Vic. c. 96 was passed,
and was extended to India in 1860 by the Statutes 23 and 24, Vic. c. 88. Under its
provisions persons charged with crimes within the jurisdiction of the admiralty could be
proceeded against in the courts of British India in the same way as if the offence had been
committed upon any waters situate within the limits of British India and within the limits
of the local jurisdiction of its criminal courts and on conviction could be punished as if
their crimes had been committed in England. Thus the offence had to be one under
English Law,22 and the procedure had to be the ordinary Indian criminal procedure, 48
whilst the punishment had to be according to English Law.49

S. 3. Punishment of offences committed beyond, but which by law may be tried within
India.—

Any person liable, by any [Indian law] to be tried for an offence committed beyond
50

51
[India] shall be dealt with according to the provisions of this Code for any act
committed beyond 52[India] in the same manner as if such act had been committed within
53
[India].

47
24 and 25 V ic c 104, s 9, and the Letters Patent of 1865, ss 32 and 33.
48
R v Thompson 1 BLR Cr 1 ; R v Elmstone 7 Bom HCR CC 89; R v Barton 16 ILR Cal 238.
49
R v Thompson 1 BLR Cr 1 ; R v Elmstones 7 Bom HCR CC 89
50
Subs by the AO 1937, for ‘law passed by the Governor-General of India in Council.’
51
The original words ‘the limits of the said territories’ have successively been amended by the AO 1937, the
AO 1948, the AO 1950 and Act 3 of 1951, s 3 and Schedule to read as above.
52
The original words ‘the limits of the said territories’ have successively been amended by the AO 1937, the
AO 1948, the AO 1950 and Act 3 of 1951, s 3 and Schedule to read as above.
53
The original words ‘the said territories’ have successively been amended by the AO 1937, the AO 1948, the
AO 1950 and Act 3 of 1951, s 3 and Schedule, to read as above.
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 Scope

This and the next section deal with offences committed beyond the territorial limits of
India and relate to the extra-territorial operation of the Code.54

Just as a foreign subject is liable under the IPC for a crime committed in India, an Indian
citizen is liable under the criminal law of a foreign state which he violates. It is open to
that state to punish a subject for an offence under its law committed in a foreign state, and
accordingly in some cases a breach of the Code committed outside India is dealt with as if
it had been committed within India, on the return of the offender thereto. 55 This liability is
derived from legislation of the Government of India and not from any Imperial
legislation. An Indian citizen shall be deemed to have committed an offence in India even
if he has committed the offence outside the limits of the Indian territory, and even if the
act complained of does not constitute an offence under the law prevailing in the place in
which the offence has been committed. 56 It is implicit in this section that a foreigner who
commits an offence within India is guilty and can be punished as such without any
limitation as to his corporeal presence in India at the time. For, if it were not so, the legal
fiction implicit in the phrase ‘as if such act had been committed within India’ would not
have been limited to the supposition that such act had been committed within India, but
would have extended also to a fiction as to his physical presence at the time in India. 57

Offence Committed by a Foreign National in a Foreign Vessel

The territorial waters are all lines every point of which is at a distance of 12 nautical
miles from the nearest point on the appropriate baseline. If the occurrence took place
when the ship was 850 miles away from seashore, even if those 850 miles are taken as
54
Mobarik Ali Ahmad v State of Bombay AIR 1957 SC 857
55
Bishen Das v Emperor 11 Cr LJ 390 ; Pheroz Jehangir Dastoor v Roshan Lal Nanavati (1964) 2 Cr LJ 533,
AIR 1964 Bom 264
56
Pheroz Jehangir Dastoor v Roshan Lal Nanavati (1964) 2 Cr LJ 533, AIR 1964 Bom 264
57
Mobarik Ali Ahmed v State of Bombay AIR 1957 SC 857
Page 17 of 573
 nautical miles or land miles, it is clear that the offence is alleged to have been committed
by a foreign national in foreign vessel outside the territory of India. Indian courts have no
jurisdiction to try an offence which is alleged to have been committed by a foreign
national in a foreign vessel outside the territory of India. 58

Presumption Against Extra-territorial Operations of Statutes

A legislature which passes a law having extra-territorial operation may find that what it
has enacted cannot be directly enforced, but the Act is not invalid on that account and the
courts of each country must enforce the law with the machinery available to them. 59 The
enforcement of law is by its nature territorial, for no state allows other states, as a general
rule, to exercise powers of government within it.60

Procedure in such Cases

Section 177 of the Crpc 1973 provides that every offence shall ‘ordinarily’ be inquired
into and tried by a court within whose local jurisdiction it was committed. The Supreme
Court has held in Narumal v State of Bombay 61that with the use of the word ‘ordinarily’
the provision has to be understood as ‘except as otherwise provided in the Code or special
law’. Thus the provisions of s 188 of the Crpc which specifically make a provision or
offence committed outside India override the provisions of s 177 as it provides that an
offence committed outside India: (a) by a citizen of India; or (b) by a person not being
such citizen on any ship or aircraft registered in India may be dealt with as if it had been
committed at any place within India with the sanction of the Central Government. Pre-
inquiry stage substantially relates to investigation and no sanction is needed for making
an investigation in such cases.62 In case, during the investigation stage the person known
or reasonably suspected to be the offender having committed the offence outside India is
not available in India, extradition proceedings may be resorted to. Extradition is the
58
Raymund Gencianeo v State of Kerala (2004) Cr LJ 2296 (Ker).
59
British Columbia Electric Rly Co Ltd v King AIR 1946 PC 180 .
60
Salmond’s Jurispudence, 1948, p 75.
61
Narumal v State of Bombay AIR 1960 SC 1329
62
Remla v SP of Police (1993) 1 Ker LT 412
Page 18 of 573
 surrender by one state to any other of a person desired to be dealt with for crimes of
which he has been accused or convicted and which are justiciable in courts of the other
state.63

S. 4. 64[Extension of Code to extra-territorial offences].—

The provisions of this Code apply also to any offence committed by—

(i) 65
any citizen of India in any place without and beyond India;

(ii) any person on any ship or aircraft registered in India wherever it may be.]

(ii) any person in any place without and beyond India committing offence targeting a
computer resource located in India.]

66
[Explanation.— In this section—

(ii) the word “offence” includes every act committed outside India which, if
committed in India would be punishable under this Code;

(ii) The expression “computer resource” shall have the meaning assigned to it in
clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000
(21 of 2000).]

[Illustration]
67

63
State of West Bengal v Jugal Kishore AIR 1973 SC 1173
64
Subs by Act 4 of 1898, s 2, for the original section
65
Subs by the AO 1950 for cll (1)-(4).
66
Subs by the Information Technology (Amendment) Act, 2008 (10 of 2009), s 51 (wef 27-10-2009) for
Explanation. Before substitution, it stood as under:
‘Explanation.—In this section the word “offence” includes every act committed outside India which, if
committed in India would be punishable under this Code.’.
67
Subs by Act 36 to 1957; s 3 and Sch II for ‘Illustrations’ (wef 17-9-1957).
Page 19 of 573
 68
[* * * * A,69 [Who is 70[a citizen of India]], commits a murder in Uganda. He
can be tried and convicted of murder in any place in 71[India] in which he may
be found.

72
[* * * *].

Scope

This section gives certain extra-territorial jurisdiction in respect of acts committed outside
India by certain classes of persons, but it does not affect the nature of the offence. 73 The
doctrine that the law of the country where a crime has been committed governs the nature
of the offence and that the courts of that country alone have jurisdiction to try the
offender is a well established principle of international law.74 The two classes of persons
specified in this section are almost the same as in s 188 of the Crpc and offences by them
are thereunder liable to be ‘investigated, inquired into, tried, and otherwise dealt with’
according to the provisions contained therein.75 Any investigation of an offence,
punishable under the Indian Penal Code and alleged to have been committed outside
India by an Indian citizen will not require sanction of the Central Government under s
188 of the Crpc, but an enquiry by a Court into an offence committed outside India can
only be with the sanction of the Central Government. 76 These offences may be offences
68
The brackets and letter ‘(a)’ omitted by s 3 and Sch II of Act 36 of 1957 (wef 17-9-1957).
69
Subs by the AO 1948 for ‘a coolie, who is a Native Indian Subject’
70
Subs by the AO 1950 for ‘a British subject of Indian domicile.’
71
The words ‘British India’ have been successively amended by the AO 1948, the AO 1950, and Act 3 of 1951,
s 3 and Schedule to read as above.
72
Illustrations (b), (c) and (d) repealed by the AO 1950.
73
Re Ram Bharthi Hirabharthi AIR 1924 Bom 51, p 53
74
Gokaldas Amarsee v Emperor AIR 1933 Sind 333
75
Code of Criminal Procedure 1973, s 5.
76
Muhammad Rafi v State of Kerala 2010 Cr LJ 592, p 595 (Ker) (DB).
Page 20 of 573
 under the IPC, or under other laws.77 In the former case the IPC applies to them also, i.e.,
its definitions, exceptions and penal provisions, by virtue of this section. Thus like all
offences under the Code committed within India, offences committed outside thereof and
which come within s 4 are subject alike to the substantive and adjective criminal law of
India.

For applicability of s 4 IPC, the offence must be committed within the territory of India.
If the offence has not been committed within the territorial limits of India, the provisions
of the Indian Penal Code as also the Code of Criminal Procedure would not apply.
Where the accused was not a citizen of India, the offence was committed in Kuwait,
outside India, the order of cognizance taken by CJM in India on complaint filed for
offences under ss 498A and 506(2) of IPC was illegal and as such was quashed.78

Police in Kerala has no jurisdiction to investigate into an incident which occurred at a

distance of 20.5 nautical miles from the outline of Kerala beyond its coastline but within
Contiguous Zone, only the Union of India can investigate and try such an offence. 79

Clause 1: Offence Committed by a Citizen of India without and beyond India

The language of this section and s 188 of the Crpc plainly means that if at the time of the
commission of the offence, the person committing it is a citizen of India, then even if the
offence is committed outside India, he is subject to the jurisdiction of the courts in India.
The rule enunciated in the sections is based on the principle that qua citizens, the
jurisdiction of courts is not lost by reason of the venue of the offence. If however, at the
time of the commission of the offence the accused person is not a citizen of India, the
provisions of these sections have no application whatsoever.

In the illustration to s 4, if A was not a Native Indian subject at the time of the

77
Code of Criminal Procedure 1973, ss 4 and 5.
78
Fatma Bibi Ahmed Patel v State of Gujarat 2008 Cr LJ 3065, p 3068
79
Republic of Italy v Union of India 2013 (1) KLT 367, 2013 (4) SCC 721
Page 21 of 573
 commission of the murder, the provisions of s 4 could not apply to his case. The
circumstance that after the commission of the offence a person becomes domiciled in
another country, or acquires citizenship of that state, cannot confer jurisdiction on the
courts of the territory retrospectively for trying offences committed and completed at a
time when that person was neither a national of that country nor was he domiciled there.80

Clause 2: Offence Committed on Ship or Aircraft Registered in India

This clause expressly provides that the provisions of the Code would apply also ‘to any
offence committed by any person on any ship or aircraft registered in India wherever it
may be.’ It has been held that the ‘territory’ of a state also includes its ships, whether
armed or unarmed, and the private ships of its subjects on the high seas or in foreign tidal
waters, and foreign private ships while within its ports.81 But this theory was rejected by
their Lordships of the Privy Council and it was held that in accordance with the
convention of international law the territorial sovereign grants to foreign sovereigns and
their envoys and public ships and the naval forces carried by such ships, certain
immunities. A public ship in foreign waters is not and is not treated as territory of her
own nation. The domestic courts, in accordance with the principles of international law,
will accord to the ship, its crew and its contents certain immunities, some of which are
well settled, though others are in dispute. The immunities do not depend upon an
objective extra-territorially but on implication of the domestic law. They are conditional
and can, in any case, be waived by the nation to which the public ship belongs. 82 The
same principle applies to aircraft also.

It is to be noted that the use of the expression ‘any person’ in this clause is in contrast
with the expression ‘any citizen’ used in the earlier clauses. This clause would, therefore,
apply not only to citizens of India, but also to foreigners.

Extradition

80
Central Bank of India Ltd v Ram Narain AIR 1955 SC 36, p 38-39 ; affirming Ram Narain v Central Bank of
India Ltd AIR 1952 Punj 178
81
R v Lewis 7 Cox CC 277
82
Chung Chi Cheung v King AIR 1930 PC 69, p 73
Page 22 of 573
 During the investigation stage of a person known or reasonably suspected to be the
offender having committed the offence outside India, if not available in India, extradition
proceedings may have to be resorted to. Extradition is the surrender by one state to
another of a person desired to be dealt with for crimes of which he has been accused or
convicted and which are justiciable in courts of the other state.83 A person accused of an
offence, i.e., of an act which if committed in India would constitute an offence,
committed on a ship on the high seas which comes into any port of India may, on the
requisition of ‘the Government of any State outside India’ be dealt with under the
provisions of the Indian Extradition Act 1903.84

The law about to be briefly referred to refers to the question which arises when a person
commits a crime in country A, and escapes from justice to country B. What is country B
to do with him. A distinction must at once be made as regards country B, according to
whether B is a foreign state, or a part of state A, e.g., India.

Where A and B are foreign states the question is governed by the law of extradition,
where they are parts of the same state by the law relating to ‘

In India, extradition is governed by the statutes of 1870 and 1873 and by the Indian
Extradition Act 190385, which provides ‘for the more convenient administration’ of the
two Statutes of 1870 and 1873, and for the extradition of criminals in cases in which they
do not apply.86 A distinction exists between foreign states, which are either ‘foreign
states,’ i.e., states to which for the time being the Acts of 1870 and 1873 apply. 7 And
states other than foreign states in that sense, i.e., states where there is a political agent.
Chapter III, ss 7 - 18 of the Indian Extradition Act deals with extradition in the case of the
second class of states.

These rules and exception are as follows:

83
State of West Bengal v Jugul Kishore AIR 1969 SC 1171
84
Indian Extradition Act 1903, ss 2(e) and 20 thereof. Now repealed by the Extradition Act 1962.
85
Now repealed by the Extradition Act 1962
86
Preamble to Act 15 of 1903
Page 23 of 573
 (ii) The crime in question must be an offence under the laws of both countries.

(ii) The crime must have been committed in the territory of the state demanding
extradition.

(a) The offender is not a subject of the state from which his surrender is sought.

Exceptions.—

(1) That the crime in question is not one ‘of a political character.’

(2) That the offender shall not be tried for any other offence than the one in question,
until he has had an opportunity of returning to the country surrendering him.

(3) That if on demand the offender is undergoing punishment for some other offence,
he shall not be surrendered until he has undergone or has been discharged from
such punishment.
Previous Sanction under Proviso to Section 188, Crpc
The provisions of the Indian Penal Code have been extended to offences committed by
any citizen of India within and beyond India by virtue of s 4, IPC. Offences committed in
Botswana by an Indian citizen would also be amenable to the provisions of the Indian
Penal Code subject to the limitation imposed under the proviso to s 188, Crpc. The Court
in India may proceed with the trial relating to offences alleged to have been committed in
India. However, in respect of offences alleged to have been committed by an Indian
citizen outside India, the Courts shall not proceed with the trial without the sanction of the
Central Government as envisaged in proviso to s 188, Crpc.87

87
Thota Venkateswara v State of UP AIR 2011 SC 2900; Mahesh Kumar Dhawan v State of MP 2012 Cr LJ
1639, 2012 (3) Crimes 417 (MP) (DB) (Registration of FIR and investigation in India of an offence committed
by an Indian citizen in Abu Dhabi (UAE) held illegal in the absence of previous sanction from the Central
Government).

Page 24 of 573
88
[S. 5. Certain laws not to be affected by this Act.—

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

Scope of the Section

This section saves the operation of certain laws which would otherwise appear to have
been repealed by the sweeping general provisions of s 2. Taken by itself, s 2 would
appear to repeal all other laws for the punishment of every offence which is made
punishable by the IPC. The effect of s 5 is to qualify the general repeal prescribed by s 2.
The two sections taken together declare that offences defined by special and local laws
continue to be punishable as before, in other words, all acts or omissions contrary to the
provisions of the Code itself, or of the provisions of special and local laws, and the other
laws enumerated in s 5, and these alone and none others are punishable as offences. 89
Though the Code was intended to be a general one, it was not thought desirable to make it
exhaustive, and hence, offences defined by local or special laws were left out of the Code,
and merely declared to be punishable as heretobefore.90

The section as originally enacted purported to save certain enactments of the British
Parliament. But the Penal Code, being an Act of the Governor-General-in-Council, a non-
sovereign body, could, in no way, repeal, vary, suspend or affect the statutes or Acts of
Parliament relating to India. With respect to these Acts of Parliament, this section was
enacted only ex majori cautela. Now the section saves only:
88
Subs by the AO 1950 for the original s 5 as amended by Acts 14 of 1870, 10 of 1927, 35 of 1934, AO 1937
and AO 1948.
89
Satish Chandra Chakravarti v Ram Dayal De AIR 1921 Cal 1, p 5
90
3 Mad HCR App 11
Page 25 of 573
 (i) The provision of any Act for punishing mutiny and desertion of officers, soldiers,
sailors or airmen in the service of the Government of India, and

(ii) The provision of any special or local law.

Meaning of Special Law and Local Law

A ‘special law’ is a law applicable to a particular subject, 91 while a ‘local law’ is a law
applicable only to a particular part of India. 92 In other words a ‘special law’ means a law
enacted for special cases in special circumstances in contradiction to the general rules of
law laid down as applicable generally to all classes with which the general law deals. 93

Chapter II General Explanations

This chapter is for the most part an elaborate interpretation clause, a key to the interpretation
of the whole Code. The leading terms are defined and explained, and the meanings thus
announced, are steadily adhered to throughout the subsequent chapters. Sir James Stephen
suggests that the object of this chapter is to prevent captious judges from wilfully
misunderstanding the Code, and cunning criminals from evading its provisions. It does not
provide explanations for all cases indiscriminately, but only for those where difficulty may
arise, when it will be necessary to refer to this chapter to see what the meaning of the Code
is.94

S. 6. Definitions in the Code to be understood subject to exceptions.—

Throughout this Code every definition of an offence, every penal provision, and every
illustration of every such definition or penal provision, shall be understood subject to the

91
Indian Penal Code 1860, s 41.
92
Ibid , 42
93
Kaushalya Rani v Gopal Singh AIR 1964 SC 260
94
1860 Proceedings of Council, p 1261 quoted in Ejaj Ahmed ‘Law of Crimes’, third edn, ch II.
Page 26 of 573
 exceptions contained in the Chapter entitled “General Exceptions”, though those
exceptions are not repeated in such definition, penal provision, or illustration.

Illustrations

(a) The sections, in this Code, which contain definitions of offences, do not express
that a child under seven years of age cannot commit such offences, but the
definitions are to be understood subject to the general exception which provides
that nothing shall be an offence which is done by a child under seven years of
age.

(b) A, a police-officer, without warrant, apprehends Z, who has committed murder.

Here A is not guilty of the offence of wrongful confinement; for he was bound by
law to apprehend Z and therefore the case falls within the general exception
which provides that “nothing is an offence which is done by a person who is
bound by law to do it”.

Scope

This section refers to ch IV, s s 76 - 106 of the IPC and might as well have found its place
at the commencement, of that chapter.

All definitions of offences, illustrations thereof, and punishments contained in the Code
are subject to the exceptions provided for in ch IV of the IPC. The section provides a part
of the definition of every offence. 95 Section 105 of the Indian Evidence Act 1872
(Evidence Act), must be read with this section. 96 Section 6 of the IPC is an extraordinary
provision which obligates the court to consider whether a case is covered by any of the
exceptions under ch IV of the IPC. Section 6 of the Code should be read as a proviso to s

95
Prabhoo v Emperor AIR 1941 All 402
96
Rishi Kesh Singh v State AIR 1970 All 51
Page 27 of 573
 s 105 - 106 of the Evidence Act. That apart, s 6 of the Code imposes statutory obligation
on the court to consider as to whether the case is covered by the exception or not.97

When under attack by an assailant, i.e., where an offence is sought to be committed by an

aggressor, the defenders have been given a statutory right to defend their lives and those
of others. If the right is taken away, the innocent will suffer and muscle power will
prevail as the master of the society. To secure this right a warning note is found in s 6 of
the IPC. The courts should always bear in mind s 6 and try to find out the circumstances
whenever and wherever they peep from materials on record. Necessary allowance should
always be given to the accused until it can be affirmatively said that the law has been
broadcast and made known to all.98

to its natural or grammatical meaning.99

S. 7. Sense of expression once explained.—

Every expression which is explained in any part of this Code, is used in every part of this
Code in conformity with the explanation.

Scope

The express mention of one thing implies the exclusion of another. 100 The generality of
this maxim renders caution necessary in its application. It is not enough that the express
and the tacit are merely incongruous. It must be clear that they cannot reasonably be
intended to co-exist.101 The rule cannot be applied unless the statute by its language shows
97
Khuraijam Samoi Singh v State of Manipur (1997) Cr LJ 1461 (Gau) ; Abdul Latif v State of Assam (1981) Cr
LJ 1205 (Gau) ; Patras Mardi v State of Assam (1982) Cr LJ 7 (NOC) (Gau) ; Shibu v State of Kerala, 2013 (4)
KLT 323
98
Subodh Tewari v State of Assam (1987) 1 Crimes 791
99
N Baksi v Accountant-General, Bihar AIR 1957 Pat 515, p 524.
100
Blackburn v Flavelle (1881) 6 AC 628
101
Lowe v Dorling & Son (1906) 2 KB 772
Page 28 of 573
 that all things different in genus and description from those which are enumerated are
intended to be excluded.102

Meaning of Expressions Same throughout

To say that every expression ‘shall have a particular meaning everywhere,’ is to say that it
shall have no other meaning anywhere. The point, therefore, is to ascertain the meaning
of that explanation, and if the words, taken grammatically, have a definite, certain and
unequivocal meaning, if they constitute a perfectly complete expression susceptible
grammatically of that one unequivocal meaning and of that only, then, however absurd
and pernicious the consequences, that meaning is to be followed.

Words Conveying Several Meanings

If, however, the expression does not include the complete thought of the legislature or if
the words are equally susceptible of several meanings we are to seek in other parts of the
same statute, or, in other statutes, certainly in those in pari materia with this, the one of
the several possible meanings which ought to be put upon the words.103

S. 8. Gender. --

The pronoun "he" and its derivatives are used of any person, whether male or female. Under s
13 of the General Clauses Act 1897, unless there is anything repugnant in the subject or
context, words importing the masculine gender include females. But the section be held to
declare that the pronoun 'he' is used everywhere in the Code even to denote a female, is only
partially true, for there are sections in which the appropriate pronoun has been and could not
but be used, e.g., ss 354, 375, 493 - 94 and 498. The Madhya Pradesh High Court has,
however, held that, in s 354, the pronoun 'he' used in the expression 'that he will thereby
outrage her modesty' must be taken under s 8 as importing 'a male or a female'. 104 In view of
provisions of s 2(4) of the CrPC, read with s 8 of the IPC and s 13(1) of the General Clauses
Act 1897, the pronoun 'his' as used in cl (d) of s 125(1), CrPC, includes both a male and a

102
Shidrao Narayanrao v Municipality of Athni AIR 1943 Bom 21, p 23
103
Re Proceedings of 22 December(1866) 3 MHCR App 11; Fateh Chand v Emperor AIR 1917 Cal 123, p 136.
104
Girdhar Gopal v State AIR 1953 MB 147
Page 29 of 573
female. The parents will be entitled to claim maintenance against their daughters provided,
however, the other conditions as mentioned in the section are fulfilled.105

S. 9. Number. —

Unless the contrary appears from the context, words importing the singular number include
the plural number, and words importing the plural number include the singular number.

The section conveys the sense expressed in s 2 of the English Interpretation Act 1889,106 and s
13 of the General Clauses Act (10 of 1897). All that it means is that a word need not be
construed as 'singular' under 'all' circumstances, and that it merely indicates the intention of
the legislature that the word may be interpreted in the plural wherever the circumstances
require that it should be so construed.107 The word 'include' is important. It is not correct to
say that for all words in the singular appearing in any Central Act, the plural shall be
substituted. A word in the singular may be interpreted in the singular number as well as in the
plural number and vice versa.108

S. 10. "Man" "Woman”. --

The word "man" denotes a male human being of any age; the word "woman" denotes a
female human being of any age.

'Of any Age'

Under this section the word 'man' or 'woman' denotes a male or a female of any age. A girl of
the age of six years is a woman within the meaning of s 354. 109 The expression 'women' is
used in s 354 inconformity with this explanation. A female child of seven-and-a-half months
was held to be a 'woman' within the meaning of this section and so may be the victim of an
assault with the intention of outraging her modesty as described under s 354 of IPC.110

S. 11. "Person”. --

The word "person" includes any Company or Association or body of persons, whether
incorporated or not. The wording of this section is the same as that of s 3(42) of the General

105
Vijaya Manohar Arbat v Kashirao Rajaram Sewai & Ors (1987) 2 SCC 278
106
Emperor v Tatia Mahadeo 17 IC 794 (Bom)
107
Shambatta v Narayana AIR 1951 Mad 917
108
Nathu v State AIR 1958 All 460
109
Emperor v Tatia Mahadev 13 Cr LJ 858
110
State of Punjab v Major Singh (1966) 1 SCWR 945
Page 30 of 573
Clauses Act 1897. The definition of the word 'person' in this section is not exhaustive and
must be taken to include artificial or juridical persons as well. Company, firm and other
juristic persons come within the definition 'person' given in s 11 of the IPC and, for the
purpose of s 415 of the Code.111 Section 11 of IPC defines the word 'person' to include any
company or association or body of persons whether incorporated or not, filing of a complaint
by an aggrieved company through its authorized representative is in accordance with law and
the same is maintainable.112 An idol is a juridical person and, therefore, 'person' as defined in
s 11.113

Child in Womb

The word 'person' has not been defined by the Code in such a way as to involve a separate
existence of the living creature spoken of as 'a person'. As there is no such technical
definition, the court prefers to adopt the ordinary meaning of the term 'persons' as including a
'child' whether born or unborn. Even if the child is unborn and within the womb of the
mother, it is capable of being spoken of as a 'person' if

S. 12. "Public".--

The word "public" includes any class of the public or any community. In popular parlance the
word 'public' means the general body of mankind or of a nation, state or community. It is also
sometimes used in a more restricted sense of denoting only a particular body or aggregation
of people such as an author's public. The definition in this section is inclusive and does not
define the word 'public'. It only says that a class of public or community is included within
the term 'public'. A class or community residing in a particular locality may come within the
term 'public'.114 The words 'the public' mean human beings in general and do not include
animals.115

[S. 17. "Government".--

The word 'Government' denotes the Central Government or the 'Government' of a State.]

'Government'

111
Regi Michael v M/s Vertex Securities Ltd & Anor (1999) Cr LJ 3787 (Ker)
112
CM Ibrahim v Tata Sons Ltd 2009 Cr LJ 228
113
Re Vadlivelu v Arusthiyar AIR 1944 Mad 77
114
Harnandan Lal v Rampalak Mahato AIR 1939 Pat 460
115
Sita Ram v Emperor 7 Cr LJ 278,
Page 31 of 573
Section 3(23) of the General Clauses Act 1897 (General Clauses Act), also lays down that
'Government' or 'the Government' shall include both the Central Government and any State
Government. It has been held that the expression 'Government' in s 3(23) of the General
Clauses Act did not include the British Government. 116 It does not include a District Board or
any local authority.117 Under the old section, a collector acting in the management of a khas
mehal, the property of the Government, was held to be as much 'the Government', within the
meaning of this section, as when he was exercising any other of the duties of his official
position.118 It may be noted that under sub-s (4) of s 263A of the IPC, which was inserted by s
2 of the Indian Criminal Law (Amendment) Act 1895, as a result of the Vienna Convention,
notwithstanding anything in s 17 the word 'Government' in ss 255 - 263A, (counterfeiting
Stamp) includes any persons or persons authorised by law to administer executive
government in any part of India and also in any part of Her Majesty's Dominion or in any
foreign country. 'Government', however, as defined in s 17 of the IPC, denotes more than the
governor and his advisors; it denotes the person or persons authorised by law to administer
executive government in any part of British India.119

S. 18. "India".--

"India" means the territory of India excluding the State of Jammu and Kashmir.

Section not Unconstitutional

The validity of this section came to be examined before a Division Bench of the Andhra
Pradesh High Court in KRK Vara Prasad v Union of India, 120 and it was held that the power
of Parliament to extend the Code to all states except State of Jammu & Kashmir is beyond
question and the definition given in the section is not unconstitutional.

S. 19. "Judge".--

The word "Judge" denotes not only every person who is officially designated as a Judge, but
also every person,-- who is empowered by law to give, in any legal proceeding, civil or
criminal, a definitive judgment, or a judgment which, if not appealed against, would be
116
Jeramdas Vishendas v Emperor AIR 1934 Sind 96
117
Mahalingam v Reghunatha AIR 1940 Mad 916
118
Bajoo Singh v Queen-Empress 26 ILR Cal 158
119
Bhagwati Charan Shukla v Provincial Govt , CP and BerarAIR 1947 Nag 1
120
KRK Vara Prasad v Union of India (1980) 1 ALT 381
Page 32 of 573
definitive, or a judgment which, if confirmed by some other authority, would be definitive, or
who is one of a body of persons, which body of persons is empowered by law to give such a
judgment.

Illustrations

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859 is a Judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to

sentence to fine or imprisonment, with or without appeal, is a Judge.

(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras
Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to
commit for trial to another court, is not a Judge.

Under this section, the word 'Judge' denotes not only every person who is officially
designated as a judge, but also every person who is empowered by law to give, in any legal
proceedings, civil or criminal, a definitive judgment, or a judgment which, if not appealed
against, would be definitive, or a judgment which, if confirmed by some other authority,
would be definitive. The illustrations to the section would, however, show that a person other
than the one who is officially designated as a judge, and who is empowered to give a
definitive judgment, is a judge only when he is exercising jurisdiction in a suit or in a
proceeding. So far as that suit or proceeding, revenue, civil or criminal is concerned, he is a
judge, but he is not a judge when he has not the seisin of the case in which he can give a
definitive judgment. This is obvious from the last words of the section under which a body of
persons may come under the definition of 'Judge' when it is empowered by law to give a
judgment.121

S. 20. "Court of Justice".--

The words "Court of Justice" denote a Judge who is empowered by law to act judicially
alone, or a body of Judges which is empowered by law to act judicially as a body, when such
Judge or body of Judges is acting judicially.

Illustration

121
Ram Chandra Modak v King Emperor AIR 1926 Pat 214
Page 33 of 573
A panchayat acting under Regulation VII, 1816, of the Madras Code, having power to try and
determine suits, is a Court of Justice.

'Court of Justice'

The word 'court' originally meant the King's palace, but subsequently acquired the meaning
of (a) a place where justice is administered, and (b) the person or persons who administer
it.122 Coke on Littleton and Stroud defined the word 'court' as the place where justice is
judicially administered. According to Stephen:

In every court, there must be at least three constituent parts the actor, reus and judex;
the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is
called upon to make satisfaction for it; and the judex, or judicial power, which is to
examine the truth of the fact, and to determine the law arising upon that fact, and if
any injury appears to have been done, to ascertain, and by its officers to apply, the
remedy.

Section 3 of the Evidence Act defines 'Court' as including all judges and magistrates, and all
persons, except arbitrators, legally authorised to take evidence. This definition however, has
been held to be not exhaustive but framed only for the purpose of the Evidence Act and is not
to be extended where such an extension is not warranted. 123 The term 'Court' in s 195 of the
CrPC is not restricted to a 'Court of Justice' as defined in the IPC. 124 The definition of
expression 'Court of Justice' is not a definition of the expression 'court' as used in the CrPC.
The expression 'court' in ordinary parlance is a generic expression and in the context in which
it occurs may mean a 'body or organisation' invested with power, authority or dignity. 125
Reading this section along with s 19, it is clear that in order to constitute a court in the strict
sense of the term, an essential condition is that it should have, apart from having some of the
trappings of a judicial tribunal, power to give a decision or a definitive judgment which has
finality and authoritativeness, which are the essential tests of a judicial pronouncement. The
pronouncement of a definitive judgment is the essential sine qua non of a court and unless

122
Halsbury's Laws of England, vol 10, fourth edn, Butterworths, London, p 313, para 701.
123
Brajnandan Sinha v Jyoti Narain AIR 1956 SC 66
124
Re Venkatachala Pillai 10 ILR Mad 154
125
Ramrao v Narayan AIR 1969 SC 724
Page 34 of 573
and until a binding and authoritative judgment can be pronounced by a person or body of
persons, it cannot be predicted that he or they constitute a court.126

The Test of a Judicial Tribunal

The test of a judicial tribunal has been laid down in Cooper v Wilson, 127 as follows: 'A true
judicial decision presupposes an existing dispute between two or more parties, and then
involves four requisites:

(1) the presentation (not necessarily orally) of their case by the parties to the disputes;

(2) if the dispute between them is a question of fact, the ascertainment of the fact by means of
evidence adduced by the parties on the evidence;

(3) if the dispute between them is a question of law, the submission of legal argument by the
parties; and

(4) a decision which disposes of the whole matter by a finding upon the facts in dispute and
an application of the law of the land to the facts so found, including where required a ruling
upon any disputed questions of law.' This view has been adopted by the Supreme Court in
India.128

S. 21. "Public Servant".--

The words "public servant" denote a person falling under any of the description hereinafter
following; namely:--

Second-- Every Commissioned Officer in the Military, Naval or Air] Forces [of India];

[Third-- Every Judge including any person empowered by law to discharge, whether by
himself or as a member of any body of persons, any adjudicatory functions;]

Fourth-- Every officer of a Court of Justice [(including a liquidator, receiver or

commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law
or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to interpret, or to

126
Brajnandan Sinha v Jyoti Narain AIR 1956 SC 66
127
Cooper v Wilson (1937) 2 KB 309,
128
Bharat Bank Ltd v Employees of Bharat Bank Ltd AIR 1950 SC 188
Page 35 of 573
preserve order in the Court, and every person specially authorized by a Court of Justice to
perform any of such duties;

Fifth-- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or

public servant;

Sixth-- Every arbitrator or other person to whom any cause or matter has been referred for
decision or report by any Court of Justice, or by any other competent public authority;

Seventh-- Every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;

Eighth-- Every officer of [the Government] whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offenders to justice, or to protect the public
health, safety or convenience;

Ninth-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of [the Government], or to make any survey, assessment or contract on
behalf of [the Government], or to execute any revenue process, or to investigate, or to report,
on any matter affecting the pecuniary interests of [the Government], or to make, authenticate
or keep any document relating to the pecuniary interests of [the Government], or to prevent
the infraction of any law for the protection of the pecuniary interest of [the Government]

Tenth-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment or to levy any rate or tax for any secular common
purpose of any village, town or district, or to make, authenticate or keep any document for
the ascertaining of the rights of the people of any village, town or district;

[Eleventh-- Every person who holds any office in virtue of which he is empowered to
prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an
election;]

[Twelfth-- Every person--

(a) in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;

Page 36 of 573
(b) in the service or pay of a local authority, a corporation established by or under a Central,
Provincial or State Act or a Government Company as defined in section 617 of the
Companies Act, 1956 (1 of 1956).]

Illustration

A Municipal Commissioner is a public servant.

Explanation 1.--Persons falling under any of the above descriptions are public servants,
whether appointed by the Government or not.

Explanation 2.--Wherever the words ''public servant'' occur, they shall be understood of every
person who is in actual possession of the situation of a public servant, whatever legal defect
there may be in his right to hold that situation.80

[Explanation 3--The word 'election' denotes an election for the purpose of selecting members
of any legislative, municipal or other public authority, of whatever character, the method of
selection to which is by, or under, any law prescribed as by election.]

[* * *]

STATE AMENDMENT

Rajasthan--In section 21 of the Indian Penal Code 1860 (45 of 1860), in its application to the
State of Rajasthan, after clause twelfth the following new clause shall be added, namely--

"Thirteenth--Every person employed or engaged by any public body in the conduct and
supervision of any examination recognised or approved under any law.

Explanation--The expression "Public Body" includes--

(a) a University, Board of Education or other body, either established by or under a Central or
State Act or under the provisions of the Constitution of India or constituted by the
Government; and

(b) "a local authority.''

Analogous Law

The term 'public servant' bears some analogy to the term 'servant of government' in s 14 of
the IPC which states: 'The words 'servant of government' denote any officer or servant
continued, appointed or employed in India by or under the authority of government'.
Page 37 of 573
'Public Servant'

(a) Relevance of Definition

The expression 'public servant' denotes only a natural person and not a corporate body. 129 The
definition of 'public servant' is very important, for the entire ch IX 130 of the Code formerly
dealt with offences by or relating to public servants, and ch X 131 deals with contempts of the
lawful authority of public servants. The definition is also important for the purposes of the
CrPC as cl (a) of the first proviso to s 200 of the CrPC enacts that when a written complaint is
made by a court or a public servant acting or purporting to act in the discharge of his official
duties, the complainant is not required to be examined, as in the case of a conciliation officer
who is a statutory public servant by virtue of s 11(6) of the Industrial Disputes Act 1947, and
who files a complaint, of an offence under the said Act, in a competent court. 132 Again, if a
person who is a public servant is to be prosecuted for an offence committed by him while
acting or purporting to act in the discharge of his official duty, prior sanction as required by
the terms of s 197 of the CrPC is essential before a court can take cognizance of the offence.
Again, if a person who is a public servant is to be prosecuted for an offence committed by
him while acting or purporting to act in the discharge of his official duty, prior sanction as
required by the terms of s 197 of the CrPC is essential before a court can take cognizance of
the offence.133

(b) This Section Describes but Does Not Define Guilty Servants

The section does not actually define public servants, but describes them only by enumeration,
which itself is merely illustrative and by no means exhaustive. But the framework of the
section would indicate that though the various items are illustrative and not exhaustive, the
wordings of the different heads, especially the ninth, tenth and twelfth are so elaborate and
comprehensive that it virtually amounts to an exhaustive definition.134

(c) Public Servant Denotes Natural Person

129
Municipal Corpn of Delhi v SK Jain (1985) 27 Del LT 52 (Del)
130
Sections 166 - 71 . Sections 161 - 65A since omitted by s 31 of the Prevention of Corruption Act 1988.
131
Indian Penal Code 1860, ss 172 - 90
132
State of Bihar v Deodar Jha AIR 1958 Pat 51,
133
Balbir Prasad Bagish v State of Bihar 2008 Cr LJ 1323
134
State of Vindhya Pradesh v Shiv Bahadur Singh AIR 1951 VP 17,
Page 38 of 573
The expression 'public servant' denotes only a natural person. A municipal corporation cannot
be a public servant.135

(d) Public Servant to be a Servant

A public servant must, generally speaking, be a servant. The word 'servant' has come for
judicial interpretation, and it has been held to signify any person duly appointed and invested
with authority to administer any part of the executive power of the government or to execute
any other public duty imposed by law, whether it is judicial, executive or ministerial.

(e) Whether Payment of Salary Determines Status

For a person to be a public servant it is not necessary that he should receive any salary or
emoluments for his work. 'Any person, whether receiving pay or not, who chooses to take
upon himself duties and responsibilities belonging to the position of a public servant and
performs these duties, accepts those responsibilities, and is recognised as filling the position
of public servant, must be regarded as one'.136

(f) Must be in Charge of Public Duty though Not Appointed by the Government

It is essential that a public servant must be in charge of some public duty. 137 Public duty is
nowhere defined in the IPC, and no general definition of the word would be complete. It may,
however, be said that all persons having to discharge, delegated functions of the
administration of a State are public servants. 138 The duty imposed upon such a public servant
may be exalted or menial, but so long as he is discharging a public duty, he is a public
servant.139

Another important point to be noted is that a public servant need not necessarily be appointed
by the government. This is obvious from expln 1 and from the illustration to the twelfth
clause, in which a municipal commissioner is declared to be a public servant, though he is
elected by the suffrage of his constituency subject only to the approval of or confirmation by

135
Municipal Corpn of Delhi v SK Jain (1985) 27 Del LT 52 (Del)
136
Queen-Empress v Pameshwar Dat 8 ILR All 201
137
Nazamuddin v Queen-Empress 28 ILR Cal 344
138
Cf 55 & 56 Vict C 61.
139
Harvilas v Crown AIR 1950 EP 167
Page 39 of 573
the government. This illustration however, no longer appears to be wholly valid in view of
the decision of the Supreme Court in Ramesh Balkrishna Kulkarni v State of Maharashtra.140

(g) Consideration for Determination

In order to determine whether a person is a public servant or not, the first thing to be seen is
whether he is a servant, If he be found to be servant, then it has to be seen whether he is
staturory public servant or falls within any of the clauses enumerated in this section. On
referring to these clauses it will sometimes be found that a given case is covered by more
than one clause which is quite possible, for the clauses are not mutually exclusive and
exhaustive, and only a casual reference to them is sufficient to show that a case might
conceivably fall within two or more clauses at the same time. But the fact that a man is a
public servant within the meaning of more than one clause does not affect his status, if it is
once so established.

Statutory Public Servants

Statutory public servants are those who have been declared to be public servants by any
statute. The following are the specimens of some such public servants:

(i) Delegates appointed under the Parsi Marriage and Divorce Act 1865.
(ii) Protectors and medical inspectors of immigrants under the Indian Emigration Act
1908.
(iii) Registrars under the Indian Registration Act 1908.
(iv) Judges, assessors, officers and surveyors under the Merchant Shipping Act 1880.
(v) Bailiffs and appraisers appointed under the Small Cause Courts Act 1882.
(vi) Persons authorised to hear appeals relating to licences for steam boilers, etc.,
under the Burma Steam-boilers etc. Act 1882.
(vii) Presidents of a board appointed to investigate charges against pilots under the
Burma Pilots' Act 1883.
(viii) Surveyors of Steamships and investigators of explosions thereon under the Inland
Steam vessels and Steamship Acts of 1884.
(ix) Registrars under the Births, Deaths and Marriages Registration Act 1886.
(x) Kanungos and patwarisunder the NW Provinces and Oudh Act 1889.
(xi) Examiners, officers and servants of the University of Allahabad by s 18 of the

140
Ramesh Balkrishna Kulkarni v State of Maharashtra AIR 1985 SC 1655
Page 40 of 573
 Allahabad University Act 1887.
(xii) Councillors, etc., of the Bombay (City of) Municipality, under Bombay Act (3 of
1888), s 521 .
(xiii) Prisoners who have been appointed officers of prisons, (convict warders and
overseers) under the Prisons Act (9 of 1894), s 23 .141
(xiv) Inspectors of mines under the Indian Mines Act (8 of 1901),142 s 4 .
(xv) Officers and servants employed by the trustees under the Victoria Memorial Act
(10 of 1903), s 4 .
(xvi) Census officers, under Act 14 of 1880,143 s 4 .
(xvii) Coroners of Presidency Towns under Act 4 of 1871, s 5 .
(xviii) Emigration officers, under Act 7 of 1871,144 s 14 .145
(xix) Managers of encumbered estates.146
(xx) Factory inspectors, under Act 15 of 1881,147 s 3 .
(xxi) Forest officers under Act 7 of 1878,148 s 72 .87
(xxii) Servants and officers of the Indian museums, under s 14 of Act 22 of 1876.149
(xxiii) Officers executing warrants of marine courts, under s 15 of Act 4 of 1875.
(xxiv) Municipal commissioners and servants.150
(xxv) A Municipal Councillor, is a public servant within the meaning of s 2(c) of the
Prevention of Corruption Act 1988 and s 87 of the Rajasthan Municipalities Act
1959.151

141
R v Muhammadan 22 PR 1908 (Cr)
142
Act 35 of 1952, s 5
143
The Census Act (37 of 1948), s 5.
144
The Emigration Act (31 of 1983), s 8
145
Section 3, Act 3 of 1876; s 50, Act 5 of 1877; s 5, Madras Act 15 of 1886
146
Local Encumbered Estates Act, s 21, Act 6 of 1876 (Chota Nagpur) s 22, Act 24 of 1870 (Taluqdars of
Oudh), 33 Reg 4 of 1877, (Taluqdars, Thakurs and Jagirdars in Ajmer) s 33, Act 21 of 1881 (Broach and Kaira
Thakurs, etc.) s 33 Act 20 of 1881 (Sind).
147
The Factories Act (63 of 1948), s 8
148
The Indian Forest Act (16 of 1927), s 73
149
The Indian Museum Act (10 of 1910), s 13
150
Local Municipal Acts and s 25 Act 15 of 1873; s 22, Act 8 of 1874; s 56, Madras Act 5 of 1878; s 51,
Bombay Act 3 of 1872; s 15 Bombay Act 6 of 1873.
151
Manish Trivedi v State of Rajasthan 2014 Cr LJ 429
Page 41 of 573
 (xxvi) A member of the Municipal Board is a public servant within the meaning of s 2(c)
of the Prevention of Corruption Act 1988 and s 87 of the Rajasthan Municipalities
Act 1959.152
(xxvii) Officers and servants of local and district boards.153
(xxviii) Canal officers appointed under s 14 of Pegu and Settang Canal Act (2 of
1881).
(xxix) Embankment officers, under s 2 of Act 15 of 1865.
(xxx) Delegates of Parsi matrimonial courts under s 5 of Act 19 of 1873 and s 8 of Act 8
of 1882.
(xxxi) Pound-keeper under s 6 of Act 1 of 1871.
(xxxii) Railway servants under s 27 of Act 4 of 1879.
(xxxiii) Telegraph officers of a private company under s 18 of Act 1 of 1876.
(xxxiv)Rangoon Port Commissioners, their officers and servants under s 64 of Act 15 of
1879.
(xxxv) Sanitary inspectors under s 12 of the Bengal Food Adulteration Act 1884; 154 or s
19 of the Bengal Food Adulteration Act (6 of 1919).
(xxxvi)Special judge under Jhansi Encumbered Estates Act under s 50 of Act 7 of 1880.
(xxxvii) Judge and assessors of court of survey and ship surveyors, under s 24(c) of
Madras Act 5 of 1879.
(xxxviii) Head of a village for purposes of Madras Abkari Laws Amendment Act under
s 17 of Act 15 of 1872.155
(xxxix)Conciliation officers under s 11(6) of the Industrial Disputes Act (14 of 1947.)156
(xl) Clerks appointed under the Broach Thakurs' Relief Act, whose duty it was to
receive rents and execute revenue processes.157
(xli) Sarpanch of Gram Panchayat holding office under Madhya Bharat Village
Panchayat Act.158
152
ibid
153
Refer to Local Acts, Queen-Empress v Mudali Tiruvengada 21 ILR Mad 428
154
Shailesh Chandra v Nehal Chand 59 ILR Cal 234 .
155
Re Isub Musa BUC 117.
156
State of Bihar v Deodhar Ghose AIR 1958 Pat 51 .
157
Re Dina Nath Gangooly 8 DLR App 58
158
Narayan v State AIR 1956 MB 51
Page 42 of 573
 (xlii) A bill collector under s 358 of the Madras District Municipalities Act (5 of
1920).159
(xliii) A Karkun employed, to execute a revenue process.160
(xliv) Central Vigilance Commissioner and staff of the Central Vigilance Commission
are public servants within the meaning of s 21 of the Indian Penal Code
(videCentral Vigilance Commission Act 2003, s 16 ).
(xlv) Chairperson, Members, officers and employees of a Cyber Appellate Tribunal are
public servants within the meaning of s 21 of the Indian Penal Code
(videInformation Technology Act 2000, s 82 ).
(xlvi) Protection officers and members of services acting under the provisions of the
Protection of Women from Domestic Violence Act 2005 are public servants
within the meaning of s 21 of the Indian Penal Code (videProtection of Women
from Domestic Violence Act 2005, s 30 ).
Under the Civic Guard Ordinance, 8 of 1940, until such time as the Civic Guard has been
legally called out for duty and the order calling them out for duty has been notified in the
Calcutta Police Gazette, the members of the Civic Guard are merely empowered to perform
duties which an ordinary citizen may perform, and are not public servants.161

Clause 2--Commissioned Officers in Military, Naval or Air Forces

The word 'Forces' seems to include not only the regular forces but also other forces such as
the auxiliary force, volunteer forces and the militia. 162 But a servant of the soldier's board
which is primarily a private organisation though patronised by the government, is not a public
servant.163

Clause 3--'Every Judge'

The word 'Judge' is defined in s 19. A panch is a judge within the meaning of that term under
s 19 of the IPC. A judge is also a public servant as defined in s 21 of the said Code. Under s
19 any one of the body of persons, which is empowered by law to give a definitive judgment

159
Re Govindaswami(1954) Cr LJ 480.
160
Re Isub Musa BUC 117.
161
Jitendra Mohan De v Emperor AIR 1944 Cal 79
162
(1881) 44 & 45 Vic C 56, s 177 (7).
163
Ramniwas Sharma v State AIR 1951 Ajmer 76
Page 43 of 573
is a judge. A Sarpanch is one of the Panchasunder the Rajasthan Panchayat Act and can,
therefore, be said to be a judge.164 A sarpanch and an upsarpanchare deemed to be public
servants by virtue of s 145 of the Hyderabad Gram Panchayats Act (17 of 1956). 165 Sarpanch
of Gram Panchayat is a public servant even in Bihar.166 The president of a village panchayat
in Madras is a judge and therefore a public servant. 167 However, an MLA would not be a
public servant within the meaning the expression in cl (3) of s 21.168

True Test for Determination of Officer of Government

Reviewing the case-law on the subject, their Lordships of the Supreme Court held that:169

The true test, therefore, in order to determine whether a person is an officer of the
government, is: (1) Whether he is in the service or pay of the Government, and (2)
whether he is entrusted with the performance of any public duty. If both these
requirements are satisfied it matters not the least what is the nature of his office,
whether the duties he is performing are of an exalted character or very humble indeed.

The changes made in the definition of public servant by the subsequent Amendment Act 40
of 1964 are, however, to be kept in view before following the below mentioned ratio of this
decision. If, therefore, on the facts of a particular case the court comes to the conclusion that
a person is not only in the service or pay of the government but is also performing a public
duty, he has delegated to him the functions of the government or is in any event performing
duties immediately auxiliary to those of someone who is an officer of the government and is
therefore 'an officer' of the government within the meaning of section 21(9),Penal Code.

Clause 4--Officers of a Court of Justice, Liquidator, Receiver, Commissione,etc.

As has been stated in Bacon's Abridgment,170 in the article headed 'Of the Nature of an
Officer and the Several Kinds of Officers'. The word 'officium' principally implies a duty, and
in the next place the charge of such duty; and that it is a rule that where one man hath to do
164
Prabhu Dayal v Milap Chand AIR 1959 Raj 12,
165
Kon Kati Narayana v Balakanti Verrayya AIR 1959 Andh Pra 27
166
Bindeshwari Sharma v State of Bihar (1980) BLJR 89
167
Poonuswami Thevan v Emperor AIR 1922 Mad 62
168
RS Nayak v AR Antulay AIR 1984 SC 684
169
GA Monterio v State of Ajmer AIR 1957 SC 13
170
Bacon's Abridgement, vol 6, p 2, article headed 'Of the Nature of an Officer and Several Kinds of Officers'.
Page 44 of 573
with another's affairs against his will, and without his leave, that this is an office, and he who
is in it is an officer.

There is a difference between an office and an employment, every office being an

employment; but there are employments which do not come under the denomination of
offices; such as an agreement to make hay, herd a flock, etc; which differ widely from that of
steward of a manor' etc.171 A nazir has authority to delegate the execution of warrants of
arrest,172 and a peon acting under such delegation, is a public servant within the meaning of
this clause.173 A sales officer of a co-operative society, whose duty is to take property in
execution of decree,174 is a commissioner appointed by a court to divide the properties by
metes and bounds as a result of a preliminary decree for partition, 175 and a mukaddam whose
duty is to report the commission of certain offices under the IPC,176 have been held to be
public servants within the meaning of this clause. Payment of wages is not the test. 177 Thus in
Queen v Ram Kanto Das ,178 a supernumerary collectorate peon, whose sole remuneration
was the amount received as fees on such occasions as he was entrusted with the service of
processes, was deputed, on 21 June 1871, to keep order in the special sub-registrar's office for
which duty he was to get no remuneration at all. It was held by Ainslie and Paul JJ, that the
peon was a public servant while keeping order in the special sub-registrar's office. A
candidate peon, i.e., a person who does not get pay or remuneration but who has a chance of
being appointed as a process-server, when entrusted with a service of warrant for attachment
by the munsif is a public servant within the meaning of s 21(4) as he is specially authorised
by the munsif and also under s 21(9) as he has accepted the duties and responsibilities of
executing the warrant.179 A person in the position of a peon may be a public servant,180 but
171
R v Ramajirao Jivbaji 12 Bom HCR 1 ; quoted with approval in GA Monterio v State of Ajmer AIR 1957
SC 13
172
Dharam Chand Pal v Queen-Empress 22 ILR Cal 596
173
Sheo Progash Tewari v Bhoop Narain Prasad Pathak 22 ILR Cal 759
174
Re ThimmakkaAIR 1942 Mad 552 ((2))
175
Re S Ramiah 52 Cr LJ 847.
176
Lonkaran Mullinchand v Emperor AIR 1946 Nag 60
177
Ram Pal Singh v State 1960 All WR 279 (HC),
178
Queen v Ram Kanto Das 16 WR 27,
179
Emperor v Ram Chandra Sahu AIR 1933 Pat 187
180
Queen v Ram Kristo Dass 16 WR 27
Page 45 of 573
labourers or menial servants employed to do work of labour on account of the government
are not officers and do not fall within the definition of 'public servant' in this section. A carter
employed by the government is not a public servant.181 A receiver in insolvency has been held
to be public servant;182 so is a commissioner appointed by a civil court.183 But a commissioner
appointed to seize books of accounts by a civil court has been held not to be a public servant
as such appointment is without jurisdiction.184

10. Person 'Specially Authorised' by Court of Justice

This clause clearly distinguishes between the person who is an 'Officer of a Court of Justice'
and a person who is not: the latter is not a 'Public servant' within the meaning of the section
unless he is 'specially authorised' by a court of justice to perform the duties of an officer of a
court of justice (for the meaning of the term 'officer', refer above (no 8), and for definition of
court of justice refer to s 12 ). When a person who has no general power to execute a judicial
process is authorised by a court to execute the same, he is 'specially authorised' within the
meaning of the section.185 The words 'specially authorised' obviously imply that the
delegation of authority is (a) legal; (b) by a person who himself possesses the authority to
authorise another;186 and (c) to a person who is a ministerial officer as against a judicial
officer.187 Again, the authorisation must be express, though in certain cases it may even be
implied.188

Clause 5--Jurymen, Assessors and Panchas

Jurors, assessors and panchas, when engaged in the discharge of their duties, are public
servants. The sarpanch of gram panchayat has been held to be a public servant.189 Under s
3(1) of the Punjab Gram Panchayat Act also, panch and sarpanch of a gram panchayat are

181
Queen v Naihimulla 7 ILR Mad 18,
182
State of Orissa v Ganesh Prasad Dutta (1962) 1 Cr LJ 658
183
Chinubhai Keshavlal Nanavati v KJ Mehta, Commr for Taking Account (1977) Mad Cr R 8
184
PadamSen v State of Uttar PradeshAIR 1961 SC 218
185
Emperor v Ram Chandra Sahu AIR 1933 Pat 187
186
Padam Singh v State of Uttar Pradesh AIR 1961 SC 218
187
Walsh v Southworth LR 6 Ex 150, per Pollock CB
188
Dharam Chand v Queen Empress 22 ILR Cal 596
189
Bindeshwari Sharma v State of Bihar (1980) BLJR 89
Page 46 of 573
public servants.190 Members of a panchayat are public servants under cl 3 also (refer to notes
under that clause). An assessor of an insurance company is, however, not a public servant as
defined by this section191 unless he is in the regular appointment of a nationalised insurance
company.

Clause 6--Arbitrators and Commissioners

In the case of a reference to a person 'to whom any cause or matter has been referred for
decision or report,' the 'cause or matter' must be one in controversy 192 It has been held that an
arbitrator appointed by parties to a proceeding under s 145 of the CrPC, 1898, is not an
arbitrator within this definition.193 A person appointed as an arbitrator in pursuance of an
arbitration clause in an agreement between the Central Government and a private party is not
a public servant under the provisions of this section.194 A commissioner appointed without
jurisdiction can also not be a public servant. 195 For the application of this clause, the person
should be a referee or an appointee of the court to whom some subject-matter of the case is
referred for decision or report196 and whose appointment is permissible under the law and is
within the jurisdiction of the court.197

Clause 7--Persons Empowered to Place or keep any Person in Confinement

Convict warders who, under the jail rules, are empowered to keep persons in confinement fall
under the definition of public servant under this clause. 198 Policemen are empowered to place
persons in confinement and are, therefore 'public servants' under this clause. 199 A police
officer submitting a report under s 173(2), CrPC disclosing an offence under the Essential
Commodities Act is undoubtedly a public servant within s 21 of the IPC . 200 But a villager
190
Sukhdev Singh v State of Punjab (1988) Cr LJ 265
191
AR Puri v State (1987) 2 Crimes 102
192
Empress v Debi Din (1886) WN 295
193
Sunder v R 30 ILR Cal 1084
194
Maheshwar Vishambhar Sahai v State of Madhya Pradesh (1985) 2 Cr LC 229
195
Padam Sen v State of Uttar Pradesh AIR 1961 SC 218
196
Sunder v R 30 ILR Cal 1084 ; Emperor v Debi Din (1886) AWN 195
197
Padam Sen v State of Uttar Pradesh (1961) 1 Cr LJ 322
198
Maula Buksh v Emperor AIR 1929 Lah 631
199
Kedarnath Sharia v State AIR 1962 Cal 410
200
Satya Narain Musadi & Ors v State of Bihar AIR 1980 SC 506
Page 47 of 573
assisting a headman in the discharge of his duties and required to bring an accused person
into a police station in arrest is not a 'public servant' within the meaning of this section. 201 The
deputy commissioner of police, special branch, Delhi, is a public servant. 202 An MLA is not a
public servant within the meaning of cl (3) or cl (7) of s 21, IPC .203

Clause 8--Officers Preventing Offences, etc

Persons holding office by virtue of which it is their duty to: (a) prevent offences, (b) to give
information of offences, (c) to bring offenders to justice, or (d) to protect the public health,
safety or convenience, are declared to be 'public servants' under this clause. The term 'officer'
has been explained in above. One of the duties of the mukaddam is to report the commission
of certain offences under this Code and he, therefore, falls within the definition of 'public
servant'204The clause would include forest officers, officers of the salt, excise or opium
departments, or indeed, of any department whose duty it is to protect the interests of their
department by preventing the commission of an offence against it.

Clause 9--Other or Miscellaneous Officers of the Government

This clause includes officers whose business it is to care for the pecuniary interests of the
Government e.g., a surveyor employed by a collector in the khas mehal department,205 and
any person appointed to some office for the performance of some public duty.206 Although the
position is different under the ninth clause as the words 'by the Government' did not follow
the words 'performance of any public duty'94 although at every other appropriate place, the
word, 'Government' was to be found in the ninth clause. The omission of these words shows
that the clause was wider when it came to the case of an officer who was remunerated by fee
or commission for the performance of any public duty and it was not necessary that the
remuneration by way of fee or commission should be paid by the Government as is now
necessary under sub-cl (a) of cl 12 after the amendment.207

201
Nga Paw E v Emperor 18 Cr LJ 351
202
FD Larkins v State (Delhi Admn) (1984) 2 Crimes 734
203
RS Nayak v AR Antulay AIR 1984 SC 684 .
204
Lonkaran v King-Emperor AIR 1946 Nag 60
205
Bajoo Singh v R 26 ILR Cal 158(2).
206
Nazamuddin v Queen-Empress 28 ILR Cal 344
207
State of Gujarat v I Manishankar Prabhshankar Dwivedi & Anor AIR 1973 SC 330,
Page 48 of 573
Clause 10--Officers of Local Bodies

Municipal engineers, who receive money from the municipality and pay it out to contractors
are, within the definition,208 though an engineer, who is merely empowered to sign a bill or
cheque upon which a different official pays the money, might be conceivably classed
otherwise, on the ground that he does not 'expend any property' of the municipality. 209
Municipal or local board overseers, octroi and cattle-pound moharrirs, cess collectors,210
goods clerks,211 or union karmans,212 are persons who take or receive money for their
municipality or local boards, as the case may be. They are, therefore, public servants. But a
local board sircar who merely supervises road work is not.213

Clause 11--Persons Connected with Elections

A clerk empowered to prepare electoral rolls is a public servant. 214 An employee of a

government company who acted as a polling agent for a candidate in a general election
cannot be said to be in service of government so as to attract electoral offences. 215 The
election officer of a co-operative society is, however, not a public servant.216

Clause 12--"In the Pay of the Government"

(a) A Person may be in the Pay without being the Servant of his Pay Master

It is not implicit in the expression 'in the pay of' that there ought to exist a master-servant
relationship between payer and payee. One can be in the pay of another without being in
employment or service of the other. The setting and the context are very relevant for
ascertaining the true meaning of the expression. In order to avoid the charge of tautology, the
phrase 'in the pay of government' in cl 12(a) may comprehend a situation that a person may

208
R v Nantamram 6 BHCR 64 .
209
bid
210
R v Babulal 33 ILR Bom 213
211
Re Zakaria 9 PR 1898.
212
Gopalasaminatha Aiyar v R 1 Weir 128
213
Addaita v Kali Dass 12 CWN 96
214
ibid
215
Abdul Rehman v State of Kerala & Anor (1999) Cr LJ 4801 (Ker) .
216
Suryanarayan Tripathy v Ch Kamalanatham (1990) 2 Crimes 391 .
Page 49 of 573
be in the pay of the government without being in the employment of the government. So, this
phrase does not import necessity of a master-servant relationship.

(b) Chief Minister, Ministers and Speaker are Public Servants but Members of
Parliament and State Assembly are Not so

A Minister and Chief Minister have however, been held to be public servants. 217 Similarly,
the speaker of State Legislative Assembly is a public servant and so can be proceeded against
under the Prevention of Corruption Act.218 The Members of Parliament and State Legislative
Assemblies get their pay and allowances from their respective Governments but their pay
masters do not have any control over the doing of their work, which a master-servant
relationship implies. They are, therefore, not servants or public servants within the meaning
of s 21, cll (3), (7) or 12(a) of the Code.219

(c) Nature of Office, Exalted or Humble, not Material

Only a person in the pay, or service of the Government or remunerated by fees or

commission by the Government for the performance of any public duty would fall within the
sub-cl (a) of the twelfth clause of this section. 220 The word 'pay' in the light of the context,
means wages or money given for service, and the words 'in the pay of', construed in the light
of the context of the whole clause would carry the meaning 'in the employment of'.221

Clause 12(a)--Expression 'Or' not Disjunctive

The use of the expression 'or' in the context in which it is found in cl 12(a) is not disjunctive,
the reason being that once it is accepted that 'a person in the pay of the government' connotes
a specific and independent category of public servant other than 'a person in the service of the
government' and the expression 'in the pay of the government' does not inhere a master-
servant or command-obedience relationship between the government as the payer and the
public servant as the payee, no part of the section is rendered superfluous. Each part will
receive its own construction.222

217
M Karunanidhi v Union of India AIR 1979 SC 898
218
P Nallammal & Ors v State (1999) Cr LJ 1591 (Mad)
219
RS Nayak v RR Antulay AIR 1984 SC 684
220
State of Gujarat v MP Dwivedi AIR 1973 SC 330
221
Manshanker Prbhashanker Dwivedi v State of Gujarat AIR 1970 Guj 97
222
RS Nayak v AR Antulay AIR 1984 SC 684,
Page 50 of 573
Clause 12(b)--'Persons in the Service or Pay of a Local Authority'

The expression 'local authority' is to be given the same meaning as given in the General
Clauses Act 1897. Section 3(31) of the General Clauses Act 1897, defines the term 'local
authority' as follows:

(31) "Local authority" shall mean a municipal committee, district board, body of port
commissioners or other authority legally entitled to, or entrusted by the government,
with the control or management of a municipal or local fund.

A corporate body/corporation/local body like MCD or DDA cannot be a public servant

within the meaning of s 21 of IPC .223

Explanation 1

As stated earlier, this section does not define public servants and describes them only by
enumeration, which is merely illustrative and not exhaustive. Some provisions or descriptions
may apparently look conflicting or incomplete. Explanation 1 to the section removes this
difficulty and doubts, and clarifies that persons falling under any of the descriptions
mentioned in cll 1-12 are public servants and it is not material whether they were appointed
by the Government or not.

36. Explanation 2

By virtue of this explanation a person who is actually performing the duties of the office
which brings him under one of the classes of this section is a public servant even though there
may be some legal defect in his right to hold the office. 224 A person in actual possession of
the situation and performing the duties assigned to him is a public servant even if there is a
defect in his appointment.225 But if there was absolutely no appointment at all, no question of
any defect in it arises and the explanation has no application. 226 It is necessary for the
application of this explanation that the person connected should be in actual possession of the
pre-existing office of a public servant. If there be no office or post, there can be no question
of any one being in actual possession thereof, and of the person concerned coming within the

223
MCD v Amrit Lal (1981) Raj LR 1, (1981) Cr LJ 422 (Del)
224
Queen v Ram Kistodos 16 WR 27 (Cr),
225
Sailesh Chandra Lahiri v Nihal Chand Marwari AIR 1932 Cal 462
226
Elahi Bux Khan v State AIR 1955 Cal 482,
Page 51 of 573
terms of this explanation. If there is no post or office in existence and a person is appointed to
it without jurisdiction, he is not a public servant within the meaning of this section. 227
Members of the civic guard were not in actual possession of the situation of police officers
until there were legally called out for duty under the terms of ordinance of 1940 read with the
rules.228

S. 22. "Movable property".--

The words "movable property" are intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything
which is attached to the earth.

1. Definition of Movable Property Differs from one given in other Central Acts

This section defines the words 'movable property'. The definition given here differs from the
one in other Acts of the Indian Legislature.229 Under the Indian Registration Act 1908,
'movable property' includes standing timber, growing crops and grass, fruit upon and juice in
trees, and property of every other description, except 'immovable property'. Under s 3(36) of
the General Clauses Act 1897, 'movable property' shall mean property of every description
except immovable property, and under s 3(26) 'immovable property' shall include land,
benefit to arise out of land, and things attached to the earth or permanently fastened to
anything attached to the earth. Under s 3 of the Transfer of Property Act 1882, immovable
property does not include standing timber, growing crops or grass.

The definition in this section restricts 'movable property' to corporeal property, that is to say,
tangible movable property as distinguished from intangible rights which law regards as
property and clothes the holder with rights of ownership therein. The definition, thus,
excludes all incorporeal objects such as legal relations and rights which are included in the
term in civil law. In other words, it takes no account of rights or interest in things apart from
the things themselves. The definition in this section is meant only for the special purposes of

227
Padam Singh v State of Uttar Pradesh AIR 1961 SC 218
228
Jitendra Mohan De v Emperor AIR 1944 Cal 79
229
s 2 of the General Clauses Act 1 of 1868, s 3(36) of the General Clauses Act 1897, s 3 of the Registration Act

1897, s 2(9) of the Indian Registration Act 1908, s 3 of the Indian Succession Act 1865, s 2 of the Indian
Trustees Act 1866, s 3 of the Transfer of Property Act 1882, s 82 of the Companies Act 1956.
Page 52 of 573
the IPC and is much narrower than the definition in other Acts. This definition is of
importance in relation to offence of theft and its kindred offences. Electricity has not been
held to be movable property though its theft has been made punishable under the Indian
Electricity Act.230

S. 23. "Wrongful gain".--"

Wrongful gain" is gain by unlawful means of property to which the person gaining is not
legally entitled.

"Wrongful loss"--"Wrongful loss" is the loss by unlawful means of property to which the
person losing it is legally entitled.

Gaining wrongfully, losing wrongfully--A person is said to gain wrongfully when such
person retains wrongfully, as well as when such person acquires wrongfully. A person is said
to lose wrongfully when such person is wrongfully kept out of any property, as well as when
such person is wrongfully deprived of property.

'Wrongful Gain' and 'Wrongful Loss'

This section defines 'wrongful gain' and 'wrongful loss' which are the main ingredients of the
definition of the word 'dishonestly' in s 24. The expressions refer exclusively to the gains and
loss of property. 'Wrongful gain' or 'wrongful loss' may be effected either by negative or
positive means, as pointed out in the third clause of this section. Two things are essential to
constitute wrongful gain or its correlative wrongful loss: by (a) wrongful acquisition,
retention or deprivation of property and (b) unlawful means.231 Under this section,
'wrongful gain' includes wrongful acquisition as well as wrongful retention and 'wrongful
loss' includes wrongful deprivation of property as well as wrongfully being kept out of
property.232 Wrongful gain or wrongful loss may be temporary, 233 it may also be permanent.234
Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the
property as well as being deprived of property.235

230
Autar Singh v State of Punjab AIR 1965 SC 666
231
Bhima Mahapatra v Krishna Chandra Rath (1966) 32 Cut LT 788
232
RL Mallick v PG Menon (1968-69) 73 CWN 371
233
Local Govt v Madho Patwari AIR 1923 Nag 146
234
Re Nanak Singh(1968) 1 Andh LT 254
235
Krishna Kumar v Union of India AIR 1959 SC 1390
Page 53 of 573
S. 24 "Dishonestly".--

Whoever does anything with the intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing "dishonestly".

1. Meaning of 'Dishonestly'

This section defines the word 'dishonestly'. The word 'dishonestly' is used here in a technical
sense which is at variance with its popular significance as implying deviation from probity.
Dishonesty in law is at times different from the dishonesty of the market place. 236 The
expression 'dishonestly' used in the Code should not, therefore, be confused with the
commonly used word 'dishonesty' which is understood to involve an element of fraud or
deceit.237 The deceit is, however, not an ingredient of the definition of the word
'dishonestly'.238 As will appear from the next section the two terms are not used in the same
sense. An act may be fraudulent without being dishonest or dishonest without being
fraudulent.239 The definition in this section applies only to wrongful gain or wrongful loss.240

2. 'Dishonestly' refers only to Property

When a person does anything with the intention of causing wrongful gain or wrongful loss,
he is said to do that thing 'dishonestly'. Hence the word 'dishonestly' is restricted in meaning
to an intention to cause a wrongful gain or loss of property or pecuniary or economic gain or
loss.241 It has been held that this section does not give an exhaustive definition of the word
'dishonestly'. It does not say that the word 'dishonestly' is applicable only when there is an
intention of causing wrongful gain to one person or wrongful loss to another person but,
properly construed means, that cases of intention of causing such wrongful gain or loss are to
be considered as coming within the wider class of dishonest actions.242

S. 25. "Fraudulently".--

236
Sardar Singh v Emperor AIR 1934 All 711 ; Budhan Singh v State AIR 1960 Pat 518
237
Boddepalli Lakshminarayana v Suvvari Sanyasi Appa Rao AIR 1959 AP 530
238
Vimla v Delhi Admn AIR 1963 SC 1572,
239
Kedar Nath Chatterji v King-Emperor 5 CWN 897
240
Sanjiv Ratnappa v Emperor AIR 1932 Bom 545
241
Ram Krishna v Shivraj 1974 Mad LJ 659
242
Baju Jha v Emperor AIR 1929 Pat 60
Page 54 of 573
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise.

1. Scope

The section, simply explains the circumstances or the manner, when one is said to act
fraudulently. As a definition, s 25 is obviously defective since it leaves undetermined the
meaning of the word 'defraud'.243 The section does not define or describe 'fraudulently' but
only limits its sense for the purposes of the Code. Fraud is a term which enters largely in the
law of contract and it has there received a meaning much too extensive for the purpose of the
Code. This section, therefore, enacts that there can be no fraud unless there is an intention to
defraud. Thus the code eliminates from its consideration all constructive frauds and only
confines the use of the term of deception, planned and practiced.

According to Le Blanch J: 'By fraud is meant an intention to deceive, whether it be from any
expectation of advantage to the party himself, or from ill-will towards the other, the fact is
immaterial'.244 The definition of 'fraudulently' does not give much help as it is used
tautologically. The word 'fraud' or 'fraudulently' must be understood in the general and
popular sense. It involves two elements, namely: (a) deceit, and (b) injury caused or likely to
be caused to the person deceived or someone else in consequence of the deception of a
person by deceiving another derives any advantage from it, which he could not have had, if
the truth had been known and thereby causes injury to the body, mind or reputation of the
deceived, he commits fraud. In all cases where an advantage has been obtained by the
deceiver, there will be invariably an equivalent disadvantage in loss or risk of loss to the
deceived or to someone else.245

Double Meaning of Fraud

The word 'defraud' is of double meaning in the sense that it either may or may not imply
deprivation. It should not be confined to transactions of which deprivation of property forms
a part. Thus it is not an essential quality of fraud that it should result in or aim at the

243
Queen-Empress v Abbas Ali 25 ILR Cal 512 (FB)
244
Haycraft v Creasy 2 East 92 (1908) followed in Queen-Empress v Vithal 13 ILR Bom 515
245
Daniel Hailey Walcott & Anor v State (1968) Cr LJ 1282
Page 55 of 573
deprivation of property, i.e., a 'fraudulent' act need not necessarily be a 'dishonest' act, though
that may often be the case.246

Elements of Fraud

The elements which make an act fraudulent are deceit or intention to deceive and in some
cases even mere secrecy. Where there is neither the intention to deceive nor secrecy, the act
though dishonest, is not fraudulent. A dishonest concealment of facts is a deception. 247 Where
property is removed openly in the light of day and there is no question of concealment,
secrecy, clandestine action, deception or anything else covered by the word, the act cannot be
said to be done fraudulently.248 The matter also came up for consideration before the Supreme
Court in Vimla (Dr) v Delhi Admn,249 and it hasobserved thus:

The expression 'defraud' involves two elements, namely, deceit and injury to the
person deceived. Injury is something more than economic loss, that is, deprivation of
property, whether movable or immovable, or of money, and it will include any harm
whatever caused to any person in body, mind, reputation or such others. In short, it is
a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will
almost always cause loss or detriment to the deceived. Even in those rare cases where
there is a benefit or advantage to the deceiver, but no corresponding loss to the
deceived, the second condition is satisfied.

(a) No Fraud unless there is Intention to Defraud

There can be no fraud unless there is an intention to defraud. A general intention to defraud
without an intention of causing wrongful gain to one person or wrongful loss to another,
would, if proved, be sufficient to support a conviction. 250 Justice Maule, R v Nash , stated:251
'There may be an intent to defraud without the power or the opportunity to defraud', and at p
503; 'It is not necessary that any person should be in a situation to be defrauded.

(b) Words 'Intent to Defraud' not Synonymous with 'Intent to Deceive'

246
Queen Empress v Abba Ali 25 ILR Cal 512 (FB)
247
Explanations to s 415 ;
248
Y Kothandarama Reddi v Kandra Balarami Reddy AIR 1937 Mad 713
249
Vimla (Dr) v Delhi Admn (1963) Sup 2 SCR 585
250
Empress v Dhunum Kazee 9 ILR Cal 53
251
R v Nash 2 Dearsly's CCR, 500.
Page 56 of 573
The words 'with intent to defraud' in this section, indicate not a bare intent to deceive, but an
intent to cause a person to act, or to omit to act, as a result of deception, played upon him to
his disadvantage. This is the most extensive meaning that may be given to the expression
'with intent to defraud' in the IPC, and the words 'but not otherwise' clearly show that the
words 'with intent to defraud' are not synonymous with 'intent to deceive' and require some
action resulting in some disadvantage which, but for the deception, the person deceived
would have avoided.252

Distinction between 'Dishonestly' and 'Fraudulently'

There is a significant difference between the word 'dishonestly' defined in s 24 and

'fraudulently' defined in s 25 of the IPC . In order to do a thing dishonestly there must be
an intention to cause wrongful loss or wrongful gain of property, but in order to do a thing
fraudulently it is not necessary that there should be the intention to cause wrongful loss or
wrongful gain of property. The legislature advisedly uses the terms 'dishonestly' and
'fraudulently'. To say that to do a thing fraudulently there must be the intention to cause
wrongful loss or wrongful gain would be attributing redundancy to the Legislature. On the
other hand, the words 'dishonestly' and 'fraudulently' are used to denote two different
things.253 The difference between an act done dishonestly and an act done fraudulently is this.

If there is the intention by the deceit practised to cause wrongful loss that is dishonesty;
but even in the absence of such an intention, if the deceitful act wilfully exposes any one to
risk of loss, there is fraud.254 The word 'defraud' is of double meaning in the sense that it may
or may not imply deprivation. The word 'fraudulently' is not confined to transactions in which
there is wrongful gain on the one hand, or wrongful loss on the other, either actual or
intended. The word 'defraud', which is not defined in the Code, may or may not imply
deprivation, actual or intended. On the other hand a person is said to do a thing
'dishonestly' if he does it with the intention of causing wrongful gain to one person or
wrongful loss to another.255 An act may be dishonest and yet not fraudulent. 256 A dishonest
act is not necessarily a fraudulent act. The elements which make an act fraudulent are deceit
or intention to deceive and in some cases even mere secrecy. Where there is neither the
252
S Dutt v State of Uttar Pradesh AIR 1966 SC 523
253
Re Sivanand MudaliAIR 1926 Mad 1072
254
Sukhamoy Maitra v Emperor AIR 1938 Pat 165
255
Queen-Empress v Abbas Ali 25 ILR Cal 512 (FB)
256
Y Kothandarama Reddi v Kundra Balarama Reddy AIR 1937 Mad 713
Page 57 of 573
intention to deceive nor secrecy, the act, though dishonest, is not fraudulent. 257 On the other
hand, an act may be fraudulent though not dishonest.258

S. 26. "Reason to believe".--

A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that
thing but not otherwise.

Comments

1. 'Reason to Believe'

This expression is used in ss 411 - 14 relating to receipt of stolen property. A person can be
supposed to 'know' where there is a direct appeal to his senses. A person 'has reason to
believe' under this section if he has sufficient cause to believe the thing but not otherwise. 259
The expression 'Reason to believe' has been defined under s 26, IPC, and it lays down that a
person is said to have a 'reason to believe' a thing, if he has sufficient cause to believe that
thing but not otherwise. A person can be supposed to know where there is a direct appeal to
his senses. Suspicion or doubt cannot be raised to the level of 'reason to believe'.260

'If he has Sufficient Cause'

The words used are 'if he has sufficient cause to believe' and not 'if there is sufficient cause
to believe'. This shows that the mere existence of a sufficient cause is not enough, if it was
not brought to his knowledge. Sufficient cause must exist and he must know of its existence,
otherwise he has no 'reason to believe a thing'. Suspicion will not amount to sufficient cause
to believe, the word 'believe' is much stronger than the word 'suspect'. 261 The court has to see
whether the person concerned had sufficient cause to believe. This section is confined to
finding out whether an alleged offender could have sufficient cause to believe. Where
circumstances exist on which two views may reasonably be possible, the court will not hold
the accused guilty of the offence.262

257
K Jayarama Iyer v State of Hyderabad AIR 1954 Hyd 56
258
PL Causley v Emperor 43 ILR Cal 421
259
Emperor v Latoor AIR 1930 All 33
260
Prabha Malhotra (Dr) & Ors v State (2000) Cr LJ 549 (All)
261
Hamid Ali v State (1961) 2 Cr LJ 801
262
Balwant Singh v Director of Inspection , Income-taxAIR 1969 Del 91
Page 58 of 573
'Knowledge' and 'Reason to Believe'

'Knowledge' means state of mind entertained by a person with regard to existing facts which
he has himself observed, or the existence of which has been communicated to him by persons
whose veracity he has no reason to doubt.263 The word 'knowledge' means 'a mental cognition'
and not necessarily 'visual perception'. It implies a notice to the receiver of such facts as
could not but have led him to believe that the property was stolen and could not but have
been dishonestly obtained.264 The word 'knowledge' is much stronger than 'reason to believe'
and the word 'believe' in s 414 of the IPC is a stronger word than 'suspect'. If the
circumstances are such that a reasonable man would be led by the chain of probable
reasoning to the conclusion or inference that the articles, that were found in the possession of
the accused, were stolen properties, although the circumstances may fall short of carrying
absolute conviction, to his mind, on the point, a person must be held to have reason to
believe.265 It is not enough that the receiver suspects the goods to be stolen property,266 nor is
it sufficient in such a case to show that the accused person was careless or that he had reason
to suspect that the property was stolen or that he did not make sufficient inquiry to ascertain
whether it had been honestly acquired.267

S. 29. "Document".--

The word "document" denotes any matter expressed or described upon any substance by
means of letters, figures, or marks, or by more than one of those means, intended to be used,
or which may be used, as evidence of that matter.

Explanation 1.--It is immaterial by what means or upon what substance the letters, figures or
marksare formed, or whether the evidence is intended for, or may be used in, a Court of
Justice, or not.

Illustrations

263
Emperor v Zamin AIR 1932 Oudh 28
264
Abdur Rahim v Emperor AIR 1927 Nag 40
265
Abdul Kareem v State of Mysore 1972 Cr LJ 217
266
Emperor v Sankara Narayana Chetti AIR 1917 Mad 418(1)
267
Abdur Rahim v Emperor AIR 1927 Nag 40
Page 59 of 573
A writing expressing the terms of a contract, which may be used as evidence of the contract,
is a document.

A cheque upon a banker is a document.

A power-of-attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document.

A writing containing directions or instructions is a document.

Explanation 2.--Whatever is expressed by means of letters, figures or marks as explained by

mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks
within the meaning of this section, although the same may not be actually expressed.

Illustration

A writes his name on the back of a bill of exchange payable to his order. The meaning of the
endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The
endorsement is a document, and must be construed in the same manner as if the words "pay
to the holder" or words to that effect had been written over the signature.

What is 'Document'

This section defines the term 'document'. It has also been defined in two other Central Acts,
namely, the Indian Evidence Act 1872, s 3 and the General Clauses Act 1897, s 3(18) . The
definitions in the Indian Evidence Act 1872 and the General Clauses Act 1897, are wider in
scope than the definition given in this section. 268 In the definition given in this section the
words used are 'as evidence of that matter' in place of the words ' for the purpose of recording
that matter' used in the other Acts. A document need not necessarily be something which is
signed, sealed

S. 30. "Valuable security".--

The words "valuable security" denote a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred, restricted, extinguished or released,
or where by any person acknowledges that he lies under legal liability, or has not a certain
legal right.

268
Syama Charan Saha v SDM AIR 1962 Tri 50
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Illustration

A writes his name on the back of a bill of exchange. As the effect of this endorsement is to
transfer the right to the bill to any person who may become the lawful holder of it, the
endorsement is a "valuable security".

'Valuable Security'

Section 29 defines the term 'document'. This section defines 'valuable security', as a
document creating or extinguishing a legal right, or acknowledging a liability. 269 A document
conferring or creating rights is a valuable security, even though all the signatures which it is
intended to obtain or is necessary to obtain have not been affixed. 270 The expression 'valuable
security' is used in ss 324 - 331, 347 384, 420, 467 and 477 of the Code.

S. 32. Words referring to acts include illegal omissions.--

In every part of this Code, except where a contrary intention appears from the context, words
which refer to acts done extend also to illegal omissions.

Scope

According to this section throughout the IPC except where a contrary intention appears from
the context, acts done also include illegal omissions. Acts and omissions or action and non-
action are closely connected with an 'event' or 'events',271 which are sensibly external272
matters, and may be defined as 'transient arrangements of permanent sensible objects', 273 such
as the burning of a house, the killing of a man, the removal of silver spoons to a servant's
room. Events may or may not have to do with human agency, but they concern criminal law
only if they have something to do with it. As per s 32 of the IPC, the word which refer to 'acts
done' extends also to illegal omissions. The word 'omission' is used in the sense of intentional
non-doing. Thus, according to this section 'act' includes intentional doing as well as
intentional non-doing. The omission or neglect must no doubt be such as to have inactive
269
Neki Ram v State of Haryana (1974) 76 Punj LR 780
270
GS Ramassami Iyer v Emperor AIR 1918 Mad 150
271
Austin's Jurisprudence, 1 Lect 14.
272
Ibid, p 375 includes under the word 'event', internal determinations of the will, but the ordinary meaning of
the word is limited
to external matters.
273
Austin's Jurisprudence, 1, p 386
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effect conducing to the result, as a link, in the chain of facts from which an intention to bring
about the result may be inferred. The Code makes punishable omissions which have caused,
which have been known to be likely to cause, a certain evil effect in the same manner as it
punished acts, provided they were illegal. And when the law imposes on a person a duty to
act, his illegal omission to act renders him liable to punishment.274

Action and Non-action of Human Agency

Human agency consists of either action or non-action, of doing something, or of not doing
something,275 or in other words, of positive or negative conduct. Action consists of an act or
acts.

(a) Action

Action consists of an act or acts. Acts are classified and defined by Austin as: (a) Internal
acts, or 'determinations of the will', and (b) External acts, or 'such motions of the body
as are consequent upon determinations of the will'.276 In considering determinations of the
will, i.e., a state of things within a man's breast, which we have to infer or presume, as 'act',
Austin followed Bentham,277 but the ultimately abandoned the view,278 and limited the
meaning of 'acts' to external ones. Now although strictly speaking the meaning of an 'act' is
restricted to a motion of the body consequent upon a determination of the will, yet in ordinary
language, as Austin points out,279 the word 'act' includes some of the more immediate and
obvious consequences of the bodily movement, i.e. consequences very near and very certain;
e.g., A intentionally stabs B in the heart. B dies. A's 'act' is, strictly speaking, his bodily
movement, or the thrusting of the knife into B's heart, but in ordinary language A's act would
be designated the killing of B, i.e., the immediate and certain consequence of A's bodily
movement, viz, B's death, is included in the word 'act'.

(b) Non-action

274
Narendra v State of Rajasthan (2003) Cr LJ 1995 (Raj) .150
275
Clark, Analysis of Criminal Liability, ch 3, p 21
276
Austin's Jurisprudence, 1, pp 376, 377
277
Introduction, chs 7 and 11, p 73.
278
Austin's Jurisprudence, 1, Lect 19, p 433
279
Ibid.
Page 62 of 573
Non-action (or not doing) as contrasted with action (or doing) is frequently termed omission
'doubtless from the attractive antithesis between omission and commission'. Non-action may
be either (a) intentional or (b) unintentional; e.g., A, a woman, intentionally omits to give her
child food, in order that the child may die, B, a hospital nurse, omits to give a patient his
medicine, because she forgets all about it. C, a pointsman, sends a train on the wrong rails, by
intentionally omitting to pull the right lever, in order that the engine driver may be killed in a
collision, or he sends to train on the wrong rails, because he omits to pull the right lever,
since he is asleep or forgetful.

(c) Intentional and Non-intentional Non Doing/Omission

There is a marked distinction between non-doing which is intentional, and non-doing which
is not intentional--a distinction of great practical importance in criminal law; for in
intentional non-doing there is an exercise of will, and therefore it involves a greater criminal
liability than non-doing in which the volition is dormant. To intentional non-doing Austin has
given the term 'forbearance', which he defines as 'the not doing some given external act in
consequence of a determination of the will'. Unintentional non-doing he terms 'omission' and
defines it as 'the not doing a given act, without adverting to the act' i.e., a man does not do a
given act because he never thinks about it.

(d) 'Act'

As a general rule, the word 'act' in the Code is not confined to its ordinary meaning, as
explained above, of positive conduct, of doing something, but includes also illegal omission.

It may be noted that an act, properly speaking, means something voluntarily done by a human
being and having an effect in the sensible world. It involves an operation of the mind as well
as of the body. But, as understood in the Code, the term may signify only an operation of the
mind, for, under s 32 an act includes an illegal omission which implies bodily inaction.

'Omission'

This word is not used here in the sense in which Austin uses the word, but in the same sense
as he employs the word 'forbearance' i.e., in the sense of intentional non-doing. By the force
of this section then, 'act' includes intentional doing ('act' in its strict sense) and intentional
non-doing or conscious abstinence from action (Austin's 'forbearance'), if that non-doing is
illegal. The employment of the word 'omission' in this sense in the Code is shown in several

Page 63 of 573
of its illustrations. Thus, in the illustration to s 36 in 'omitting' to give Z food intentionally
causes Z's death; so also in illusts (b) and (c) to s 37. 'The illegal omission or neglect must be
such as to have an active effect conducing to the result as a link in the chain of events from
which an intention to bring about the result may be inferred'. Even an omission can, in certain
circumstance, amount to an act. This is the purpose of s 32 of the Code. So, the act mentioned
in s 34 of the Code need not be an overt act, even an illegal omission to do a certain act in a
certain situation can amount to an act.280

'Illegal'

Not only must the non-action be intentional, but it must be illegal as well. 'In the case of a
clearly proved forbearance, although this is in all mental conditions exactly on a level with
action, and may be preceded by the strongest wish, and even purpose, so far as the
forbearance is concerned, of consequences which would be criminal when resulting from a
positive act; yet, if the train of events which ends in these consequences is not due in any
point to the person, who is merely a complacent spectator, he does not appear to be, in actual
legal systems, criminally liable, whatever moral abhorrence his conduct would naturally
excite; unless the act from which he forbore was one which he was under a legal obligation to
perform'. Criminal law fastens liability on persons who omit to perform the duty required by
law such as to provide food, clothing, shelter, or medical aid to another, but a refusal to
perform acts of mere charity or mercy, not coupled with a legal duty, does not entail legal
punishment even if death ensues from such refusal or neglect. Thus where the wife is in a
helpless state and unable to appeal elsewhere for aid, and the husband who has the means to
provide necessaries for existence, deliberately withholds them with the intention to kill her,
he commits murder. To the rule of culpability for acts or omission of the nature mentioned
above there is one rider. The criminal liability of such persons is conditional on their
capacity, means, and ability to perform the legal duty.281 Illegal omission is an 'act' under s
304A of the IPC and may constitute offence if it is negligent.282

S. 33. "Act"; "Omission".--

The word "act" denotes as well a series of acts as a single act: the word "omission" denotes as
well a series of omissions as a single omission.

280
Suresh v State of Uttar Pradesh (2001) Cr LJ 1462 (SC)
281
Om Prakash Tilak Chand v State AIR 1959 Punj 134
282
Captain D'Souza v Pashupati Nath Sarkar 1968 Cr LJ 405 (Cal)
Page 64 of 573
Meaning of 'Act'

Act has nowhere been defined in the IPC . It must be construed in the light of common and
not metaphysical sense.283 It must necessarily be something short of a transaction which is
composed of a series of acts, but cannot, in ordinary language, be restricted to every separate
willed movement of a human being; for when we speak of an act of shooting or stabbing, we
mean the action taken as a whole, and not the numerous separate movements involved. The
word 'Act' does not only mean any particular specific, instantaneous act of a person, but
denotes, according to s 33, a series of acts.284 Where the action, which ultimately results in the
death of a person, is continuous and it is impossible to resolve the different incidents into
wholly separate actions, inspired by different motives and committed for different reasons,
the person, who did that act, must be deemed as having done it with the intention of causing
death and as having succeeded in carrying out his object and must, therefore be held to be
guilty of murder.285 An act may constitute an offence under two or more enactments, 286 but a
man cannot be punished twice for the same offence. 287 An 'act' generally means something
voluntarily done by a person but in the Code the term 'act' is not confined to its ordinary
meaning of positive conduct of doing something but also includes illegal omission. The effect
of ss 32 - 33 of the IPC taken together is that the term 'act' comprises one or more 'acts' or one
or more illegal omissions. The Code makes punishable omissions which have caused, which
have been intended to cause or which have been known to be likely to cause certain evil
effect in the same manner as it punishes acts provided they were illegal and when the law
imposes on a person a duty to act, his illegal omission to act renders him liable to
punishment.288 Liability for an omission requires a legal duty to act; a moral duty to act is not
sufficient. The duty may arise either from the offence definition itself or from some other
provision of criminal or civil law. A duty arises from the former when an offence is defined
in terms of omission.289

Effect of Sections 32 and 33 taken Together

283
Emperor v Bhogilal Chimanlal Nanawati AIR 1931 Bom 409
284
Om Prakash v State of Punjab AIR 1961 SC 1782
285
Emperor v Gajjan Singh AIR 1931 Lah 27
286
Sesha Ayyar v Venkatachala Chetty AIR 1924 Mad 487
287
General Clauses Act 1897, s 26
288
Raj Karan Singh v State of Uttar Pradesh (2000) Cr LJ 555 (All) .
289
PB Desai v State of Maharashtra 2014 Cr LJ 385
Page 65 of 573
Not only does the word 'act' include an illegal omission, but by virtue of s 33, it includes a
series of acts and a series of omissions. The effect of ss 32 - 33, taken together is,
consequently, that, unless the contrary appears from the context, the word 'act' comprises one
or more acts, and one or more illegal omissions. For an example of an offence caused partly
by an act and partly by an omission, refer to the illustration to s 36 ; by a series of acts, illust
(a) to s 37 ; and by a series of illegal omissions, illusts (b) and (c) to s 37 . From the foregoing
discussion it will be seen that crimes or criminal events are caused either: (a) by
intentional action, or (b) by intentional non-action, or (c) by unintentional non-action.
The first species of conduct is termed an 'act', the second a 'forbearance', or in the language of
the Code an 'omission', which if 'illegal' is comprised with an act (in its strict positive sense)
under the term, 'act', as used in the Code, which therefore means intentional doing or
intentional non-doing, if the non-doing is illegal. Crimes or criminal events are usually
caused by an act or acts in the strict sense of the word, but the same events are sometimes
caused by an illegal non-act. Thus, A desires to kill B. This crime may be effected, according
to circumstances, either by shooting B, or by starving B, i.e., by illegally omitting to supply B
with food. Again, a railway points - man may cause the same effect either by pulling a wrong
lever or by omitting to pull the right one.

Unintentional Non-action

The consequences of such conduct are not regarded as criminal unless; (a) the conduct
amounts to what is termed 'negligence', and this must be of a certain kind; and (b) the act not
done must be one which it was the legal duty of the person to perform.

S. 39. "Voluntarily".--

A person is said to cause an effect "voluntarily" when he causes it by means whereby he

intended to cause it, or by means which, at the time of employing those means, he knew or
had reason to believe to be likely to cause it.

Illustration

A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a
robbery and thus causes the death of a person. Here, A may not have intended to cause death,
and may even be sorry that death has been caused by his act; yet, if he knew that he was
likely to cause death, he has caused death voluntarily.

Page 66 of 573
Scope

This section expresses in detail the well known rule of law that a man is presumed to intend
the probable consequences of his act and, therefore, in performing the act he voluntarily
causes the consequences. The maxim that everyone must be taken to intend the natural
consequences of his acts is incorporated in the definition of 'voluntarily' in s 39, and thus
made applicable in every section where that word is used. 290 A bare reading of this section
shows that person need not intend to cause a certain effect. If an act is probable consequence
of the means used by him, he is said to have caused it voluntarily whether he really means to
cause it or not. The section implicitly lays down the principle that a man is presumed to
intend the probable consequences of his act.291

Definition of 'Voluntarily'

This section defines the term 'voluntarily' with reference to the causation of effects and not
with reference to volition. The word 'voluntarily' has, for the purpose of the IPC, been given
an artificial meaning at variance with its ordinary sense. The definition overlooks the
difference between 'intention' and 'knowledge of likelihood'. The Indian law commissioners
justified the definition on the ground that as the penal consequences in the two cases is the
same, the distinction between the two terms is a distinction without a difference.292

Intention and Knowledge may be Express or Implied

The intention may be express or implied. It is express if the agent expects a given
consequence as a result of his act. It is implied if he has knowledge of the likelihood of the
consequence. A person does not intend what is merely a possible result of his action, or a
result which, though reasonably certain, is not known to be so. But it must be presumed that
when a man voluntarily does an act, knowing at the time, that in the natural course of events,
a certain result will follow, he intends bringing about that result. 293 Knowledge may also be
express or implied, i.e., a man may actually realise that a given consequence is likely to
happen or he may have reason to believe so, though he actually did not realise the fact. No
distinction is made, in law, between these states of mind, coupled with an act, each

290
Vullappa v Bheema Row AIR 1918 Mad 136
291
Meeru Bhatia Prasad v State (2002) Cr LJ 1674 (Del).
292
First Report, s 101
293
R v Lakshman 26 ILR Bom 558
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constitutes voluntary conduct.294 If A strikes B on the head with a heavy stick, and thereby
kills B, and, as a an ordinary reasonable human being, he had reason to believe that his stoke
would be likely to kill B, it is of no avail to urge in defence that as a fact he did not know that
such was likely or that he did not intend to kill B. Intention or knowledge of the offender may
be determined from the nature of the injury, the weapon used, the part of the victim's body
attacked, force used and other related circumstances.295

S. 40. "Offence".--

Except in the [Chapters] and sections mentioned in clauses 2 and 3 of this section, the word
"offence" denotes a thing made punishable by this Code.

In Chapter IV, [Chapter VA] and in the following sections, namely, sections [ 64, 65, 66,
67 ], 71 ], 109, 110, 112, 114, 115, 116, 117, [ 118, 119 and 120 ],261 187, 194, 195, 203,
211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445,
the words "offence" denotes a thing punishable under this Code, or under any special or local
law as hereinafter defined. And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the
word "offence" has the same meaning when the thing punishable under the special or local
law is punishable under such law with imprisonment for a term of six months or upwards,
whether with or without fine.

'Definition': Its History and Scope

As a general rule the word 'offence' denotes a thing made punishable by the IPC, but not a
breach of a 'special' or local law.

Under s 2, things, punishable by the IPC are acts or omissions; (a) 'contrary to the provisions
thereof'; and (b) 'committed within the territories of India'. The word 'offence' has thus a two-
fold limitation; it is limited to breaches of a particular body of law, viz, the IPC, and to
breaches of such law within a certain territory, viz, India. 296 Therefore apart from special
exceptions, nothing is an 'offence', and punishable under the IPC, unless it satisfies these two
conditions. But special exceptions have been made to the second or territorial limitation, by
ss 3 - 4 of this IPC, and by s 188 of the CrPC . 297 'Offence' means 'an act or instance of
294
R v Sunku Seethiah 11 Cr LJ 400
295
Shyamlal v State of Uttar Pradesh (1968) 2 SCWR 801
296
R v Moorga Chetty 5 ILR Bom 338
297
Indian Penal Code 1860, ss 2 - 4
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offending'; 'commit an illegal act' and illegal means, contrary to or forbidden by law'.
'Offence' has to be read and understood in the context as it has been prescribed under the
provisions of ss 40, 41 and 42, IPC which cover the offences punishable under IPC or under
special or local law or as defined under s 2(n) CrPC or s 3(38) of the General Clauses Act
1897.298

Definition of 'Offence' in other Enactments

The definition of 'offence' in this section differs somewhat materially from the definition in s
2(n) of the CrPC under which 'offence' means any act or omission made punishable by any
law for the time being in force'. This definition is the same as in s 3(38) of the General
Clauses Act 1897. It may be noted that this definition is much wider than the definition in
this section, under which 'offence' denotes anything made punishable only by the IPC or by
any special or local law, whereas under the two other enactments it means an act or omission
made 'punishable by any law for the time being in force'. To constitute an offence under these
two enactments all that is necessary is that the act or omission should have been made
punishable by a law enacted by a legislature or by a body of persons authorised to do so 299
and that the law must be in force in the territories of India. 300 From a reading of s 2(n), CrPC
and s 40, IPC, it is clear that s 40, IPC refers to offences prescribed by IPC while s 2(n),
CrPC, refers to offences under different laws, apart from those under the IPC . Thus, the
definition of 'offence' under s 2(n), CrPC is wide enough to enable the police to investigate
offences under other enactments also, apart from those under the IPC . 301 The word 'offence'
as used in the Extradition Act 1879 is not restricted to the definition of 'offence' in the IPC or
in the CrPC .302

Clause 1--'Thing Made Punishable by the Code'

The word 'offence' is not used in its ordinary meaning but has a technical meaning in the
IPC . Section 40 says that, 'except in the chapters and sections mentioned in clauses 2-3, of
this section the word 'offence' denotes a thing made punishable by this Code'. It follows that
an act or omission is not an 'offence' under the IPC if it is punishable only under some other

298
S Khushboo v Kanniammal 2010 Cr LJ 2828
299
Raj Narain Singh v Atmaram AIR 1954 All 319
300
Govind Kesheo Powar v State of Madhya Pradesh AIR 1955 Nag 236
301
Dharma Reddy v State & Anor 1991 Cr LJ 1476 (AP).
302
Adams v Emperor 26 ILR Mad 607
Page 69 of 573
enactment. Reading ss 40, 43 and 176 together it follows that, though failure to furnish
information is an offence under s 10 of the Mussalman Wakf Act 1923 (as amended) in
Bombay by the Mussalman Wakf (Bombay Amendment) Act 1935, yet it is not an offence
punishable under the IPC .303

Clause 2 and Chapter IV

Section 79, IPC, comes within ch IV and, therefore, an offence to which that section refers,
includes an offence under a local or special law.304Section 82 is in ch IV of the IPC and under
cl (2) of this section the word 'offence' denotes a thing punishable under this IPC or under any
special or local law. So the exemption under s 82 in266 favour of a child under seven years of
age is not confined to offences made punishable by this IPC.305

Clause 2 and Section 109

The words 'punishment provided for the offence' in s 109 of the IPC, mean the punishment
provided for the offence either in the IPC or in some special or local law: (ss 40 - 41 may be
referred to).306 Where a local law declares a breach of the rules made under its authority to be
punishable, a breach of such rules might constitute an offence within the meaning of this
section.307 But a local law does not necessarily include a rule made under the provisions of a
local law.308

Clause 3 and Section 216

No doubt s 216 is included in the sections mentioned in cl (3) of this section, but the
definition of the word 'offence' in this section cannot affect the clear provision made in s 216
for the punishment of a person who harbours an offender. Section 216 very clearly provides
for the punishment of harbourers only where the person harboured is wanted for an offence
for which the minimum sentence of one year's imprisonment is provided. No provision

303
Ali Mahommad Adamalli v Emperor AIR 1945 PC 147
304
Abdul Aziz v Emperor AIR 1943 Pesh 72
305
King v Ba Ba Sein AIR 1938 Rang 400
306
Emperor v Po Han AIR 1914 LB 145
307
Bux Soo Meah Chowdry v King AIR 1938 Rang 350
308
Gonda Shah v Queen-Empress 23 PR 1894 (Cr).
Page 70 of 573
whatever is made in s 216 for the punishment of a harbourer where the man harboured is
wanted for an offence punishable with imprisonment of less than one year.309

S. 41. "Special Law".--

A "special law" is a law applicable to a particular subject.

Scope and Definition of 'Special Law'

This section defines 'special law' as a law applicable to a particular subject. 310 Taking this
definition by itself, the expression, 'special law' means a provision of law, which is not
applicable generally, but applies to a particular or specified subject or class of subjects 311.
Expression 'special law' means a provision of law which is not applicable generally but which
applies to a particular or specific subject or class of subjects. Sometimes a particular act or
part of a procedural law may be considered as general and can be given effect to with
reference to some act. But it may be special with reference to other act.312

S. 42. "Local law".--

A "local law" is a law applicable only to a particular part of 42[* * *] [India]].

Local Law

'Offence' has to be read and understood in the context as it has been prescribed under the
provisions of ss 40, 41 and 42, IPC which cover the offences punishable under IPC or under
special or local law or as defined under s 2(n), CrPC or s 3(38) of the General Clauses Act
1897313 Just as a 'special law' is confined to a particular subject a 'local law' is confined to a
particular locality.314 Thus, the Madras Maintenance of Public Order Act 1947, 315 the Calcutta
Municipalities Act 1899316 and the Rajasthan Municipalities Act 1959317 are local laws within
the meaning of this section.
309
Deo Baksh Singh v Emperor AIR 1943 Oudh 51
310
Isak Chand Palkar v Myamothibi (1980) Cr LJ 1180
311
Anjanbai Yeshwant Rao v Yeshwantrao Daulatrao Dudhe AIR 1961 Bom 154
312
Kirpalsingh Pratapsingh Ori v BKH Lobana (2004) Cr LJ 3786 (Guj).
313
45 S Khushboo v Kanniammal 2010 Cr LJ 2828
314
Reference 3 MHCR (App) 21
315
Public Prosecutor v Annadham Annamalai AIR 1954 Mad 321
316
Sukhdeo Singh v Calcutta Corpn 1953 Cr LJ 196
317
Dhoopa v State AIR 1966 Raj 238
Page 71 of 573
S. 43. "Illegal", "Legally bound to do."--

The word "illegal" is applicable to everything which is an offence or which is prohibited by

law, or which furnishes ground for a civil action; and a person is said to be "legally bound to
do" whatever it is illegal in him to omit.

Scope

This section defines the word 'illegal' and the expression 'legally bound to do'. The word
'illegal' has here been given an extensive meaning, including anything and everything which
is prohibited by law or which constitutes an offence and which furnishes the basis for a civil
suit, ending in damages.318 Where the managing committee of a co-operative society passed a
resolution recommending to the general body that a certain grant made by the general body to
one of its members on certain considerations be rescinded as those considerations had failed,
it was held that the passing of such a resolution cannot possibly be said to be an offence or an
act prohibited by law or to afford a ground for a civil action.319

Distinction between 'Unlawful' and 'Illegal'

The IPC defines the word 'illegal', but not the word 'unlawful' which is used in some sections
(e.g., s 23 ). Generally the word 'illegal' has the same meaning as 'unlawful'. 320 The law
commissioners themselves say that the two terms are intended to be used in the same sense
and bear the same meaning.321

S. 44. "Injury".--

The word "injury" denotes any harm whatever illegally caused to any person, in body, mind,
reputation or property.

Scope and Meaning of 'Injury'

An injury is an act contrary to law. 322 The definition, in this section, shows that 'injury'
embraces only such harm to body, mind, reputation or property as may be caused illegally. A
threat by a landed proprietor to report to the police smuggling of liquor by the complainant is
318
Bhagwan Din v Emperor AIR 1929 All 935
319
Jhamandas Thawerdas v Khemchand Gellaram AIR 1933 Sind 196
320
Emperor v Fazlur Rahman AIR 1930 Pat 593
321
First Report, s 658
322
Swami Nayudu Subramania Mudali 2 Mad HCR 158
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not a threat to cause injury to him as there is nothing illegal in the proprietor asking the police
to investigate a suspected case of smuggling liquor.323 Before a person can be said to put any
person in fear of any injury to that person, it must appear that he has held out some threat to
do or to omit to do what he is legally bound to do in the future. On the other hand, if a person
promises to speak favourably to a person in authority and to do his best to induce him to do
something, and in consideration of this promise receives money, it cannot be said that he
threatened to cause injury to the person who gives the money. 324 If someone illegally causes
harm to any person in body, mind etc. then injury would be caused within the ambit of s 44,
IPC .325

S. 45. "Life".--

The word "life" denotes the life of a human being, unless the contrary appears from the
context.

Scope

No definition of 'human being' is given in the IPC . Under English law, a child becomes a
human being when it has completely proceeded in a living state from the body of its mother,
and the killing of such is homicide, whether it is killed by injuries inflicted before, during or
after birth 326Indian law is contrary. Under s 299, expln 3, a child is a human being if 'any part
of that child has been brought forth', and under s 315 a person who causes an injury before
birth, from which the child dies after birth is not guilty of murder or culpable homicide, but
punishable under the section for the particular offence. The word 'life' in s 45 denotes the life
of a human being.327

S. 46. "Death".--

The word "death" denotes the death of a human being, unless the contrary appears from the
context.

S. 52. "Good faith".--

323
Re Mantripragada Mattapalli Narasimha Rao AIR 1919 Mad 954
324
Habibul Razak v King-Emperor AIR 1924 All 197
325
Sessions Judge v Arvind 2014 Cr LJ 4024
326
R v Poulton 5 C&P 329
327
Duryodhan Rout v State of Orissa AIR 2014 SC 3345
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Nothing is said to be done or believed in "good faith" which is done or believed without due
care and attention.

'Good Faith' in Civil and Criminal Law

The expression 'good faith' in criminal jurisprudence has a definite connotation. Its import is
totally different from saying that the person concerned has honestly believed the truth of what
is said.328 Good faith plays an important part in criminal law, as it affords a good defence in a
number of cases.329 The definition of 'good faith' in this section is a negative definition, 330 and
means that if an act is done without due care and attention it will not be deemed to have been
done in good faith. 'Good faith' in criminal law is different from 'good faith' as understood in
civil law. If an act is not done with due care and attention, it cannot be said to be done in
good faith as far as criminal law is concerned. 331 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.332

Distinguishing Features of Definition of 'Good Faith' in General Clauses Act1897

Under s 3(22) of the General Clauses Act 1897, 'A thing shall be deemed to be done in 'good
faith' where it is done in fact honestly whether it is done negligently or not'. The definition in
this IPC, as pointed out above is a negative one. The term 'good faith' is not attempted to be
defined there but all that is stated is that if an act is not done with due care and attention, it
would not be said to be done in 'good faith'. This definition comes into conflict with the
definition in the General Clauses Act to this extent that if a thing has been done negligently,
though honestly, it would not be deemed to have been done in 'good faith'. The definition in
the General Clauses Act lays stress on one aspect only, while the one in this section
emphasises two aspects; the honesty of intention as well as due care and attention. Thus this
section excludes the element of negligence from the purview of 'good faith'. Both the

328
Re SK Sundaram, suo motu contempt petition (Cr) 5 of 2000
329
Indian Penal Code 1860, ss 76 - 79, 81, 88-89 and 92.
330
Re Ganapathia Pillai AIR 1953 Mad 936
331
Pagla Baba v State AIR 1957 Ori 130
332
State of Orissa v Bhagaban Barik AIR 1987 SC 1265
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definitions retain the real essence of 'good faith', which is that a thing is done 'honestly'. This
is a feature common to both the definitions without which the term 'good faith', will lose its
real meaning. 'Good faith', therefore implies, not only an upright mental attitude, and clear
conscience of a person, but also the doing of an act, showing that ordinary prudence has been
exercised according to the standards of a reasonable person. 'Good faith' contemplates an
honest effort to ascertain the facts upon which exercise of the power must rest. It must,
therefore, be summed up as 'an honest determination from ascertained facts'. 'Good faith'
precludes pretence or deceit, and also negligence and recklessness. A lack of diligence, which
an honest man of ordinary prudence is accustomed to exercise, is in law, a want of good faith.
Once this is shown, good faith does not require a sound judgment. 333 This section, however,
makes no reference to the moral elements of honesty and right motive which are involved in
the popular significance of 'good faith' and which are predominant in the positive definition
enacted in the other Acts of the legislature. It, therefore, follows that while an honest
blunderer acts in good faith within the meaning of the General Clauses Act, he can never act
in good faith within the meaning of the IPC for being negligent, he has not acted with due
care and attention.334

The element of honesty which is introduced by the definition prescribed by the General
Clauses Act is not introduced by the definition of the IPC and we are governed by the
definition prescribed by s 52 of that IPC.335 Absence of good faith in this connection, and
within the meaning of this (ss 52 and 79 ), means simply carelessness or negligence. Absence
of good faith, under the General Clauses Act, means 'want of honesty'. 336 Negligence does not
by itself show want of good faith, where General Clauses Act applies. This definition in the
General Clauses Act applies to the Limitation Act, s 14 . It is only in the IPC that good faith
requires due care and attention.

S. 52A "Harbour".--

Except in section 157, and in section 130 in the case in which the harbour is given by the wife
or husband of the person harboured, the word "harbor" includes the supplying a person with
shelter, food, drink, money, clothes, arms, ammunition or means or conveyance, or the

333
Harbhajan Singh v State of Punjab AIR 1961 Punj 215
334
Re Ganapathia Pillai AIR 1953 Mad 936
335
Harbhajan Singh v State of Punjab & Anor AIR 1966 SC 97
336
Bux Soo Meah Chowdry v King AIR 1938 Rang 350
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assisting a person by any means, whether of the same kind as those enumerated in this section
or not, to evade apprehension.

Legislative Changes

This section defining the term 'harbour' is new and was inserted by s 2 of the IPC
(Amendment) Act 8 of 1942. Before this the term 'harbour' was defined by s 216B of the IPC
which had been inserted by the Criminal Law (Amendment) Act 1894. That definition was
intended only of the purposes of ss 212, 216 and 216A and ran as follows:

In Sections 212, 216 and 216-A, the word 'harbour' includes the supplying a person
with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance,
or the assisting a person in any way to evade apprehension.

Section 216B has now been repealed by the Indian Penal Code (Amendment) Act 1942 (8 of
1942), s 3 and the present section inserted instead.

Reasons for the Change

The reason for the above change is stated in the Statement of Objects and Reasons of the
Amending Act of 1942 is as follows: Section 216-B of the Indian Penal Code widens the
meaning of the word 'harbour' as used in ss 212, 216 and 216-A . The word is also used in
Sections 130, 136 and 157, and as used in those sections bears its narrower dictionary
meaning. There is no rational justification for differentiating between the meaning of the
word as used in different sections of the Code and the fact that the word is used in sections
other than sections 212, 216 and 216-A, appears to have been overlooked when section 216-B
was inserted by Act 3 of 1894. The fact that the wider meaning does not attach to the word as
used in section 130 which provides for the punishment of persons who harbour an escaped
prisoner of war might well produce untoward results in existing circumstances, and it is
proposed to render the definition in section 216-B applicable to the Code generally by
transferring that section to Chapter II of the Code. It is also proposed to insert words in the
definition with a view to resolve a conflict of judicial opinion on the question whether the
concluding words of the definition as contained in section 216-B embrace all forms of
assistance or only forms of assistance ejusdem generis with those previously mentioned in the
section. The Allahabad High Court337 has held that the meaning is so limited, while the

337
Emperor v Hussain Baksh 25 ILR All 261
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Calcutta338 and Lahore High Courts339 have taken the contrary view. It is proposed to clarify
the point in the sense of the views taken by the Calcutta and Lahore High Courts.

Sections 34

Sections 34 to 38 of the IPC govern criminal liability of individual members of such a group
for accomplishing the criminal act through a concerted criminal endeavor. In other words,
these provisions deal with liability of individuals for their'co-operative criminal act '. Section
37 lays down a rule that where an offence is committed by means of several acts, a person
who does any of these act s and intentionally co-operates in the commission of that offence is
guilty of the whole offence; while s 34 deals with liability of an individual for sharing
'intention' when 'several persons' and participating in the 'criminal act' done 'in furtherance of
the common intention of all'.

And s 38, which in ultimate analysis is converse of s 34, lays down that when several persons
are engaged in or concerned with the commission of a criminal act and do different acts, they
may be held responsible for their different act s. Sections 35 and 36 offer a sort of
explanation regarding commission of a criminal act requiring knowledge or intention done by
several persons and that an offence may be committed by partly an act or an omission,
respectively. Section 35, which complements the main rule laid down in s 34, deals with a
situation where an offence requires a particular criminal intention or knowledge and is
committed by several persons. Each of them who join the act with such knowledge or
intention is liable in the same way as if it were done by him alone with that intention or
knowledge.

The provision in the IPC, which deals with the principle of joint liability in cases where
different persons share a common intention, is covered by s 34.

Joint Liability in Context of Free Fight:

The issue of the liability of different members of a group of people divided into mutually
antagonistic or hostile groups, especially when there is a free fight between them, is one of

338
Muchi Mian v Emperor 18 Cr LJ 731
339
Re Tara Singh 7 ILR Lah 30.

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the most difficult aspects of the law of joint liability. This is so, as apart from the difficulty of
assessing the specific role of each individual member of the assaulting party, the court will
also have to assess whether common intention can be proved. In Balaur Singh v State of
Punjab, a similar question was raised. There were four persons, each belonging to two groups
who attacked each other. One person who sustained grievous injuries died six days after the
incident. Both the trial court and the high court had held that there was a free fight between
the parties and therefore each and every assailant was accountable for their own individual
acts committed. Based on the nature of injuries inflicted and the type of weapon used, the
courts sentenced the assailants variously to one to two years' of rigorous imprisonment.
However, with regard to the conviction under s 302 and life sentence on one accused, the
court held that in a free fight, there was a movement of body of the victims and assailants,
who are themselves participants or expected participants in the cross assault on each other. In
such a situation, it will be difficult to specifically ascribe to one accused the intention to
cause injuries sufficient to cause death. Hence, under the circumstances, the conviction was
altered from ss 302 to 304(II), IPC, and the sentence altered from life to seven years rigorous
imprisonment.

Participation in the criminal act:

The second, and important limb for the operation of the principle of joint criminal liability, is
the necessity of participation in the criminal act by all those who are charged with the
offence. Participation is thus a necessary element or condition precedent to a finding of joint
liability. Interestingly, a question arose in the context of conviction under s 409 read with s
34, IPC, for misappropriation by a public servant. The question was whether the direction of
the trial judge to the jury that despite the non-presence of the accused when the offence was
actually committed, if the accused remained behind the scene, he can be convicted under s 34
was proper and legal. The Supreme Court in ShreekantiahRamayyaMunipalli v State of
Bombay, elaborated thus:

...[I]t is the essence of the section that the person must be physically present at the actual
commission of the crime. He need not be present in the act ual 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
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offence in some way or the other at the time the crime is actually committed. The antithesis is
between the preliminary stages, the agreement, the preparation, the planning, which is
covered by s 109, and the stage of commission whenthe plans are put into effect and carried
out. Section 34 is concerned with the latter.

The court pointed out that the Privy Council had, in Barendra Kumar Ghosh v King
Emperor, emphasised that the thrust in s 34 was on the word 'done' and that 'actual presence'
plus prior abetment can mean nothing else but participation. Further, participation and joint
action 'in the actual commission of crime' are, in substance, matters which stand in antithesis
to abetments or attempts.While participation in action is a necessary condition for liability
under s 34, it is not necessary in all cases for participation to be in the form of physical
presence. This principle came to be explained as the ratio in Shreekantiahcase that the first
accused could not held to be liable as he was not present at the scene of occurrence, came to
be pressed in another case of misappropriation. The Supreme Court explained that the ratio
developed in the Shreekantiah'scase could not be considered to lay down a principle of
universal application, as it was suited only to the peculiar facts of that case alone. Thus, in
JaikrishnadasManohardas Desai v State of Bombay, it was explained that in offences
involving physical violence, presence of the accused, apart from participation, was essential.
However, in other cases involving non-physical violence, like in cases of misappropriation,
cheating and the like, physical presence could not be a condition precedent to come to a
finding of joint liability. The apex court observed:

...[T]he essence of liability under section 34is to be found in the existence of common
intention animating offenders leading to the doing of a criminal act in furtherance of the
common intention and presence of the offender sought to be rendered liable under s 34 is not,
on the words of the statute, one of the conditions of its applicability... [T]he leading feature of
section 34 of the Indian Penal Code is anticipation in action. To establish joint liability for an
offence, it must, of course, be established that a criminalact was done by several persons; the
participation must be in doing the act not merely in its planning. A common intention--a
meeting of mind--to commit an offence and participation in the commission of the offence in
furtherance of that common intention invite the application of section 34. But this
participation need not in all cases be by physical presence. In offence involving physical
violence, normally presence on the scene of the offence of the offenders sought to be
rendered liable on the principle of joint liability may be necessary, but such is not the case in

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respect of other offences where the offence consists of diverse act s which maybe done at
different times and places.

It is thus clear that in cases involving physical violence to individuals and property, once
participation is proved, then the accused persons would be jointly liable for the criminal acts,
even when it is not clear who among the accused had actually inflicted the fatal blows. Thus,
in a crime involving an unlawful assembly, which had a common object and intention to kill
one Tarlok Singh, the question raised was whether the court could convict the appellants even
when a number of other accused had been acquitted. In Jagir Singh v State of Punjab, the
court held that where there was a clear finding that accused nos 1 and 5 had participated in
the offence with four other unknown accused, and in pursuance of the common intention
committed the murder, then even though other co-accused had been acquitted, the accused
would still be liable, since they shared a common intention with the other four co-accused
whose identities were not established. Their conviction under s 302 read with s 34, IPC, was
therefore sustained.

An interesting question arose in Jai Bhagwan v State of Haryana, about a situation when
common intention is proved and no clear, specific overt acts are attributed to the accused
from a situation in which participation is proved and common intention is absent. In the
above case, the deceased and his sons went to the lands of the accused over which a dispute
had been simmering for years. They were related to each other. On the day of occurrence,
when the deceased had reached the land owned by A-2, the mother of the accused nos 1 and 3
exhorted them to attack the deceased party. They were already armed with weapons and thus
launched a murderous attack. It was not a case of a free fight and it could be said that they did
not intend to cause injuries inflicted by them. The court thus held that once common intention
is proved and no overt act is attributed to the individual accused, s 34 will be attracted, as
essentially it involved vicarious liability, however if participation in the crime of the accused
is proved but there is no common intention, then s 34 cannot be invoked.44 On this
reasoning, the court confirmed the conviction of A-1 and A-3 under s 304(I) read with s 34,
IPC, but however reduced the sentence from seven to five years. As regards A-2, the court
held that since he was the owner of the land into which the deceased party had trespassed, he
was entitled to claim protection under s 104, IPC, of the right of defence of property,
although he had caused grievous injury with dangerous weapon. He was therefore acquitted
of the offence under s 326, IPC.

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In Nand Rastogi v State of Bihar, the Supreme Court, reiterating the thitherto-established
legal position, emphasised that it is not necessary that each one of the accused must assault a
deceased to come within the purview of s 34. It is enough that they have shared a common
intention to commit a crime by doing their assigned, similar or diverse, act s. But physical
presence of all of the several persons at the scene of the crime is necessary. However, mere
presence of a person at the time of commission of an offence by his confederates is not, in
itself, sufficient to bring his case within the purview of s 34, unless community of designs is
proved against him. Similarly, mere distancing himself from the scene itself cannot absolve
him from criminal liability.

For applying s 34, it is not necessary to show, as a rule, some overt act on the part of the
accused.The establishment of an overt act is not a requirement of law to allow s 34 to operate.
A criminal act done in furtherance of intention of all by an accused need not be overt, even a
deliberate and conscience covert act is enough to bring such a person within the ambit of s
34.

Attempt 511

In every crime, there is first, an intention to commit it, secondly preparation to commit it,
thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the
crime is complete. If the attempt fails the crime is not complete, but law punishes the
person attempting the act. Section 511, IPC is a general provision dealing with attempts to
commit offences not made punishable by other specific sections. It makes punishable all
attempts to commit offences punishable with imprisonment and not only those punishable
with death. An attempt is made punishable, because every attempt, although it falls short
of success, must create alarm, which by itself is an injury, and the moral guilt of the
offender is the same as if he had succeeded. Moral guilt must be united to injury in order
to justify punishment. As the injury is not as great as if the act had been committed, only
half the punishment is awarded.

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.

However, the IPC punishes preparations to commit a few serious offences. They are:

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 (1) Preparations made for waging war against the Government of India (s 122);
(2) Preparations made for committing depredations on territories of any
power in alliance or at peace with the Government of India (s 126);
(3) Making or selling or being in possession of instruments for counterfeiting
coins or government stamps (ss 233-235 and 257);
(4) Possessing counterfeit coins, government stamps, false weight, or measures
(ss 242, 243, 259 and 266), and
(5) Preparations made for committing dacoity (s 399).
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. The moment he commences
to do an act with the necessary intention, he commences his attempt to commit the
offence. The word ‘attempt’ is not itself defined, and must, therefore, be taken in its
ordinary meaning. This is exactly what the provisions of s 511, IPC require. An attempt to
commit a crime is to be distinguished from an intention to commit it; and from
preparation made for its commission.

Section 511, IPC is the solitary provision included in the last chapter of the IPC under the
title ‘Of Attempts to Commit Offences’. It makes attempts to commit an offence punishable.
The offence attempted should be one punishable by the Code with imprisonment. The
conditions stipulated in the provision for completion of the said offence are:

First, he had an intention or mens rea to commit the contemplated or intended offence.

Secondly, he has done some act or taken a step forward (ie, an act or a step which was more
than merely preparatory to the commission of the intended offence) towards the commission
of the contemplated offence.

Thirdly, he, for reasons beyond his comprehension or control, failed to commit the intended
offence.

Besides s 511 there are several express provisions in IPC dealing with attempt to
commit some specific offences.

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This section deals with attempts to commit offences which are punishable with any
imprisonment under this Penal Code and in respect of which no express provision has
been made, by this Code, for punishment. It means that the section would not cover cases
in which the offender has attempted to commit an offence which is not an offence under s
40, IPC. An attempt to commit an offence which is an offence under a local law (i.e., an
offence under the Bengal Food Adulteration Act), but which is not an offence under the
Indian Penal Code, does not fall within the ambit of this section.

However, intention, followed by preparation, and further followed by an ‘act done

towards the commission of the offence’ is sufficient. 14 There will be no offence unless
there is some act or deed towards the commission of the offence. Besides proving that the
accused was actuated by the intention (the mens rea) to commit a specific crime, the
prosecution has further to prove that the offender’s physical conduct reached the point
which the law prohibits (the actus reus), i.e., there must be proof of something done by
the offender, a deed which marks the commission of the particular offence. To constitute
an attempt, there must be evidence of some overt act. However, an attempt, once begun
and a criminal act done in pursuance of it towards the commission of the act attempted
does not cease to be a criminal attempt because the person, committing the offence, does
repent before the attempt is completed,16 or prevents its completion by doing some other
act in pursuance of a changed intention. 17 If an accused is, at one stage, guilty of an
attempt to cheat, nothing, that transpires, can subsequently affect his guilt

Policy Underlying Section 511

The very policy underlying s 511 seems to be providing it as a residuary provision. The
corollary, therefore, is that if the action of the accused attracts and is covered by any of
the offences prescribed in the Penal Code, he cannot be convicted under s 511 on account
of the acts alleged against him. The act of the accused in asking the victim-woman to go
and commit suicide had driven her to proceed to the railway track and end her life, the act
being expressly made punishable under s 498A, IPC, the accused cannot be convicted
under s 511 read with s 304B, IPC.

Beginning of Attempt

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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. The moment he commences
to do an act with the necessary intention, he commences his attempt to commit the
offence.

‘Any Act’

The expression ‘any act’ excludes the final notion; the final act, short of actual
commission, is alone punishable. The expression does not mean that the last act, which
would form the final part of an attempt in the large sense, is the only act punishable under
this section.

‘Does any Act Towards the Commission of the Offence’

A person commits the offence of attempt to commit a particular offence when:

i. he intends to commit that particular offence; and

ii. he having made preparation and with the intention to commit the
offence, does an act towards its commission; such an act need not be
the penultimate act towards the commission of that offence but must be
an act during the course of committing that offence.

In order to constitute ‘an attempt’ firstly, there must be an intention to commit a

particular offence, secondly, some act must have been done which would necessarily have
to be done towards the commission of the offence, and, thirdly, 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 conjunction with other facts and circumstances and not necessarily in
isolation and intention, as distinguished from a mere desire or object, to commit the
particular offence though the act by itself may be merely suggestive or indicative of such
intention, but that it must be, i.e., it must be indicative or suggestive of the intention.

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 Therefore, the conclusion can conveniently be drawn, when a person intends to commit a
particular offence and then conducts himself in such a manner which clearly indicates his
desire to translate that intentional action and in pursuance of such an intention if he does
something which may help him to accomplish that desire, then it can safely be held that
he committed an offence of attempt to commit a particular offence. It is not necessary that
the act which falls under the definition of an attempt should in all circumstances be a
penultimate act towards the commission of that offence.63

Express Provisions of the Indian Penal Code Dealing with Attempts

'An Attempt to Commit an Offence'--Approach of the Indian Penal Code 1860

The IPC has dealt with 'attempt' in a specific and general way. It 'treats' a criminal
'attempt' in four different ways. They are:

(1) The commission of an offence and the attempt to commit it are dealt with in
the same section and the extent of punishment prescribed is the same for
both. The attempts that fall in this category are:
(i) offences against the state (ss 121, 124, 124-A, 125, 130);
(ii) abetting mutiny (s 131);
(iii) offences against the public tranquility (ss 152 and 153-A);
(iv) offences against public justice (ss 196, 198, 200 and 213);
(v) offences relating to coins and government stamps (ss 239-241 and 251);
(vi) offences relating to extortion, robbery and dacoity (ss 385, 387, 389,
391, 397 and 398); and
(vii) criminal trespass (s 460).

(2) Attempt to commit specific offences are dealt side by side with the
offences themselves, but separately, and separate punishments are provided
for the attempts and the offences. The offences which fall in this category
are:
(i) attempt to commit murder (s 307);

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 (ii) attempt to commit culpable homicide not amounting to murder (s 308);
and
(iii) attempt to commit robbery (s 393).

(3) Attempt to commit suicide (s 309).

(4) Attempt to commit offences, for which no specific punishment is provided in
the IPC (s 511).

Theory of Change of Mind

The time for giving necessary thought to effect change of mind is a consideration
which cannot be lost sight of.64 If the truck loaded with paddy being seized at
Samalkha is well inside the Punjab boundary there was no ‘export of paddy’
within the meaning of para 2(a) of the Punjab Paddy (Export Control) Order,
1959. There was merely a preparation on the part of the accused to commit the
offence of export. It was quite possible that the accused might have been warned
that they had no licence to carry the paddy and they might have changed their
mind at any place between Samalkha Barrier and Delhi-Punjab boundary and not
have proceeded further in their journey. The accused, therefore, cannot be
convicted for attempt under s 7 of Essential Commodities Act 1945. 65 However,
this test propounded by the Supreme Court should be understood with reference
to the facts of the case. The offence alleged to be contemplated was so far
removed from completion in that case66 that the offender had ample time and
opportunity to change his mind and to proceed no further, his earlier acts being
completely harmless. The test is propounded with reference to particular facts of a
case and not as a general rule. Otherwise, in every case where an accused is
interrupted at the last minute from completing the offence, he may always say that
when he was interrupted he was about to change his mind. 67 If the theory of
change of mind is pressed to illogical ends, there would hardly be any space for
the Penal clause of attempt to cover the distance between preparation and actual
commission of the offence.68 Therefore, where a truck carrying smuggled goods
was intercepted at a place in Haryana from where the Punjab border was only 50

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 yards away, the accused was prosecuted for attempting to smuggle bajra from
Haryana to Punjab, the theory of change of mind was not found applicable.

In Malkiat Singh v State of Punjab , truck, carrying paddy from Punjab side to Delhi, was
stopped at a distance of 32 miles from Delhi and the Delhi-Punjab border was, at that
time, at a distance of 18 miles from Delhi. The export of paddy outside Punjab without a
permit was prohibited at that time. It was held that there was no export and there was only
a preparation, and not an attempt because it was quite possible that the accused might
have been warned that they had no licence to carry the paddy and, on such warning, they
might have changed their mind at any place between the place where the truck was
stopped at the Delhi-Punjab border.

In State v Haricharan Rakshit , the accused was travelling in the Puri-Howrah Express,
with new cloth which was in excess of the permitted quantity for export to any place
outside Orissa. It was held that the only reasonable inference that could be drawn was that
he intended to take those articles also with him to Howrah and, therefore, he was guilty of
attempt to transport cloth in contravention of the notification in question.

In Vaikuntham Jaganadham v State of Orissa , the accused, a merchant of Salur in

Madras Presidency loaded some bags of rice in a lorry in Orissa State and himself sat in it
and, while it was proceeding towards Salur, it was stopped about 28 miles away from
Madras border by the police and the rice was seized as transport outside Orissa was
prohibited. It was held that there was a clear case of attempt to transport rice in question
without a proper permit. The mere possibility, that before the lorry crossed Orissa border
the accused might have changed his mind and thrown away the rice somewhere in Orissa,
would not suffice to indicate that the act complained of was still in a preparatory stage,
and had not ripened into an attempt.

In State of Uttar Pradesh v Ram Chandra , the accused was transporting wheat by ferry
boat from one block to another across the river and was stopped midstream. He was
prosecuted for contravention of cl 3 of the Uttar Pradesh Wheat (Restriction on
Movement) Order 1949. It was held that the act of the accused amounted to an attempt to
transport the grain.

In State of Maharashtra v Mohd Yakub & ors , silver was transported in jeep and truck and
the two vehicles halted near a bridge at a creek. Some small and heavy bundles were removed

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from the truck and kept on the ground. The customs officers surrounded them. At the same
time, the sound of the engine of the mechanised sea-craft from the side of the creek was heard
by the officers. There were a number of silver ingots lying under saw-dust bags in the truck.
The Apex Court held that the accused had committed the offence of attempting to export
silver out of India by sea in contravention of the provisions of the Customs Act and Foreign
Exchange Regulation Act.

The Proximity Rule: Proximity in Relation to Time and Action or to Intention?

The act or a series of acts, in order to be designated as an attempt to commit an offence,

must be sufficiently proximate to the accomplishment of the intended substantive offence.
In other words, an act or a series of act s must be sufficiently proximate, and not remotely
connected, to the crime intended. An act of the accused is considered proximate, if,

though it is not the last act40 that he intended to do, is the last act that was legally
necessary for him to do, if the contemplated result is afterwards brought about without
further conduct on his part.

The usual illustration of a proximate act is found in R v Taylor , wherein A, who was
found in the act of striking a match behind a haystack, which he extinguished on
perceiving that he was being watched, was held guilty of attempt to commit arson of
haystack. But, if he had merely purchased a box of matches, he would not have been found
guilty of attempted arson, however evident it might be that he intended to set fire to
haystack when he purchased the matchbox. But even the first situation may create
difficulties, if A had said that his intention in striking the match was to light his cigarette.
The underlying principle is said to be embodied in the Latin maxim cogitationis poenam
nemo patitur, which means that no man can safely be punished for his guilty purposes,
save so for as they have manifested themselves in overt acts which themselves proclaim
his guilt.

An authoritative pronouncement was given by the Supreme Court in State of Maharashtra

v Mohammad Yakub. In this case, the accused were arrested by officials of the Central
Excise for attempting to smuggle silver out of India. Based on secret information, customs

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officials kept a watch over the accused and apprehended them when they had brought
silver ingots in a truck. The accused were found to have kept some small and heavy parcels
on the ground. At the same time, the sound of a mechanised sea-craft was also heard. The
trial court convicted the accused for attempting to smuggle silver out of India in
contravention of the Imports and Exports (Control) Act 1947, the Customs Act 1962, and
the Foreign Exchange Regulation Act 1947(FERA). The Additional Sessions Court, on
appeal, acquitted the accused on the ground that the facts proved by the prosecution
showed that the accused had not proceeded beyond the stage of preparation and that they
'had not yet committed any act amounting to a direct movement towards the commission
of the offence'. The appeal against acquittal was also dismissed by the Bombay High
Court.

The Supreme Court, on appeal by the State of Maharashtra, however, set aside the
acquittal by holding that the accused had committed the offence of attempting to export
silver out of India by sea in contravention of law. Two separate, but concurring,
judgments were delivered by Sarkaria and Chinnappa Reddy JJ. However, these two
judicial pronouncements advance different criteria for identifying a 'proximate act' for
distinguishing 'preparation' from 'attempt'.

Justice Chinnappa Reddy, delving into the proximity rule, observed:

In order to constitute 'an attempt' first there must be an intention to commit a

particular offence, second, some act must have been done which would
necessarily have to be done towards the commission of the offence and, third,
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.[T]he act must
reveal, with reasonable certainty, in conjunction with other facts and
circumstances and not necessarily in isolation, an intention, as distinguished
from a mere desire or object, to commit the particular offence, though the act
by itself may be merely suggestive or indicative of such intention, but that it
must be indicative or suggestive of the intention.

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 However, Sarkaria J considered proximity in terms of the actual physical
proximity, rather than the intention-oriented proximity, to the objective of the
intended crime. He observed:

Broadly speaking. overt act or step in order to be 'criminal' need not be the
penultimate act towards the commission of

the offence. It is sufficient if such an act or acts. manifest a clear intention to

commit the offence aimed, being

reasonably proximate to the consummation of the offence.

Applying the proximity rule in the instant case, Sarkaria J ruled:

They had reached close to the seashore and had started unloading the silver
there, near a creek from which the sound of the engine of a sea-craft was also
heard. Beyond the stage of preparation, most of the steps necessary in the
course of export by sea had been taken. The only step that remained to be
taken towards the export of the silver was to load it on a sea-craft for moving
out of the territorial waters of India. But for the intervention of the officers of
law, the unlawful export of silver would have been consummated.

Thus, determination of the proximity rule, as perceived by Chinnappa Reddy J, relates

with the proximity of 'state of mind' or 'intention' of the doer with the intended crime.
While Sarkaria J perceived its determination in terms of the 'physical proximity' of the
doer with the commission of the intended crime. The line of reasoning, in the backdrop of
the requisite of committing an act 'towards the commission of the offence', given by
Sarkaria J seems to be preferable to, and more logical than, the one advanced by
Chinnappa Reddy J as proximity, generally, refers to the sequence of acts leading to, and
closely connected with, the commission of the contemplated offence.

Doctrine of Locus Poenitentiae

The doctrine locus poenitentiae refers to the possibility of a person who, having made
preparations to commit an offence, actually backs out of committing it, owing to a change
of heart or out of any other type of compulsion or fear. Thus, an act will amount to a mere
preparation and not an attempt, if the person, on his own accord, gives up the idea of

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committing a crime before the criminal act is carried out. In other words, so long as the
steps taken by the accused leave room for a reasonable expectation that he might, either of
his own accord, because of the fear of consequences that might befall him or for whatever
reason, desist from going ahead with the contemplated act, then he will be treated in law,
as only being in the stage of preparation, and no criminal liability will be fastened to

him.50 However, if he desists from proceeding further owing to his acts being discovered
or because a police officer was at his elbow, he ceases to be a beneficiary of the doctrine
of locus poenitentiae, as thereafter he has no time for repentance.

This doctrine was the basis for the Supreme Court for ordering acquittal of the driver
and helper of a truck convicted by a lower court of attempting to smuggle paddy out of
Punjab in Malkiat Singh v State of Punjab. In this case, the accused, driver and cleaner,
were intercepted at Samalkha barrier post in Punjab, which is about 14 miles from the
Punjab-Delhi border, driving a truck containing bags of paddy. A letter written by the
consigner in Punjab to the consignee in Delhi was also recovered from the possession of
the driver. They were charged with the offence of attempting to export paddy in violation
of the Punjab Paddy (Export Control) Order 1959. The Supreme Court set aside the
conviction of the accused by holding that their act s were still at the stage of
preparation. It observed:
The test for determining whether the act of the appellants constituted an
attempt or preparation is whether the overt act s already done are such that if
the offender changes his mind and does not proceed further in its progress,
the acts already done would be completely harmless. In the present case, it is
quite possible that the appellants may have been warned that they had no
licence to carry the paddy and they may have changed their minds at any
place between Samalkha Barrier and the Delhi-Punjab boundary and not
have proceeded further in their journey.

However, in State of Maharashtra v Mohammad Yakub , the Supreme Court ruled that
the test of locus poenitentiae propounded in the Malkiat Singh case is not a general rule
and it is to be confined only to the particular facts of that case. It observed:

We think...that the test propounded...should be understood with reference to

the facts of the case...[T]he test is propounded with reference to the particular

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 facts of the case and not as a general rule. Otherwise, in every case where an
accused is interrupted at the last minute from completing the offence, he may
always say that when he was interrupted he was about to change his mind.

The Equivocality Test

The equivocallity test, a continuation of the proximate rule and the doctrine of locus
paenitentiae, suggests that an act done towards the commission of the offence would
amount to an attempt to commit the offence if, only if, it unequivocally indicates the
intention of the doer to accomplish the criminal object. If what is done indicates beyond
reasonable doubt that the end is towards which it is directed, it is an attempt, otherwise it
is a mere a preparation. In other words, the steps taken or acts done by the accused must

speak for themselves. In State v Parasmal , the Rajasthan High Court, plausibly referring
to the unequivocallity test, observed:

When a person intends to commit a particular offence, and then he conducts

himself in such a manner which clearly indicates his desire to translate that
intention into act ion, and in pursuance of such an intention if he does
something which may help him to accomplish that desire, then it can safely
be held that he committed an offence of attempt to commit a particular
offence. It is not necessary that the act which falls under the definition of an
attempt should in all circumstances be a penultimate act towards the
commission of that offence. That act may fall at any stage during the series
of acts which go to constitute an offence under section 511 of the Indian
Penal Code .

ATTEMPTING AN IMPOSSIBLE ACT

An attempt to commit an offence is doing an act or a series of acts or taking a step forward
in the direction of an offence. The essentiality of a criminal attempt, as discussed earlier,
lies in intention of a person to commit an offence and that must be evident from what he
has actually done for accomplishing his ultimate criminal objective. However, in this
backdrop, a pertinent but interesting question deserves attention, namely, does a step
forward in the direction of committing an impossible act amount to an offence to commit
the offence? In other words, can there be an attempt to commit an act which is impossible?
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 Such an impossibility may arise due to legal impossibility (because an act done by the

accused, for reasons unknown to him, is not a crime), physical impossibility (owing to
physical impossibility of the accused to commit the intended crime, whatever means he

adopts), or impossibility through ineptitude (owing to inept means chosen by the doer or
inefficiency to commit the intended crime).

At one time, it was supposed that it would be a no crime if a person attempted to do

something, which in fact was impossible to perform, for it was treated at par with a mere
preparation. However, it is now perceived that impossibility of performance of an act does
not per se render the attempt to do it an innocent or an act free from guilt.

However, the legal framework relating to law of attempts sketched under the IPC does not
specifically deal with an attempt to do an act that is impossible to do. Nevertheless, a
careful reading of illusts (a) and (b) appended to s 511 shows that a person can be held
guilty of attempting to steal some jewels from an empty jewel box or something from an
empty pocket. The crucial aspect is the belief of the person, and the intention preceding his
act ion to do a particular act. It does not matter that it is after breaking open a box with
the intention of stealing jewels which he believes to be inside it, or the person who picks
another's pocket with the intention of picking (or lifting) whatever valuable he finds inside
both persons find their intentions incapable of fulfillment.

S. 107. Abetment of a thing

1. Scope and Applicability

This section defines abetment of a thing in general. It does not define any offence, its
purpose being merely to explain the meaning of the word ‘abetment’. If ‘the thing’ in
question is an offence, then the abetment of it becomes an offence (s 108 ) and the
‘offence of abetment’ is constituted (s 108, expln 2), which is thus a separate and distinct
offence.

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The definition of ‘abetment’ given here applies to all Central Acts and Regulations made
on or after the 14 January 1887. It was applied to a case under the Legal Practitioners Act
1879, which is a special law within the meaning of s 41 of this Code, and also to a case
under the Madras Act 5 of 1920, which is a local law. It may be noted that under cl 2 of s
40, IPC, the word ‘offence’ in ss 109, 110, 112 and 114 - 17, IPC dealing with abetments,
denotes a thing punishable under the IPC or under any special or local law. Sections 107
and 109 are applicable to cases unders 182, IPC. Where, therefore, a person instigates
another person to make a false report, he can be convicted under s 182 read with s 109.

Under this section, a person abets the doing of an act in either of the three ways which
can be: (a) instigating any person to do an act ; or (b) engaging, with one or more persons,
in any conspiracy for the doing of that act; or (c) intentionally aiding the doing of that act.
If a person instigates another or engages with another, in a conspiracy for the doing of an
act, which is an offence, he abets such an offence and would be guilty of abetment, under
s 115 or s 116, IPC even if the offence abetted is not committed in consequence of the
abetment. The offence of abetment is complete when the alleged abettor has instigated
another, or engaged, with another, in a conspiracy to commit the offence. It is not
necessary for the offence of abetment that the act abetted must be committed.

Essentials of Abetment— It takes Place in One of Three Ways

Abetment involves a mental process of instigating a person or intentionally aiding that

person in doing of a thing. A person, who instigates any person to do a thing or who
engages, with one or more other person or persons, in any conspiracy for the doing of that
thing, or who intentionally aids, by any act or illegal omission, the doing of that thing,
abets that thing. Thus an act of abetment may take place in one of three ways: (a)
instigation, (b) conspiracy, or (c) intentional aid. In order, therefore, there may be
abetment, there must be either instigation, or intentional aiding or engaging in a
conspiracy as laid down in this section.

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Abetment brings the Abettor and the actual Offender on Equal Footing

A person who abets, incites, instigates, goads, urges or exhorts to do an offence is equally
liable for the offence which is done by the person who was incited, instigated, exhorted,
goaded or abetted as he must have intended all the results that follow by such exhortation
and the like. If the exhorter and the like is a member of the unlawful assembly and has
exhorted the killer to kill a man, then the exhorter being the member of the unlawful
assembly is equally liable for the offence as he has shared the common intention to cause
death. Thus, the offence which is committed as a result of incitement, extortion, abetment,
goading or instigation will bring the extorter and the like on the same and equal footing as
the person who committed the offence as a result thereof.

Mens Rea—Knowledge or Intention

There can be no abetment without knowledge or intention. The word ‘intentionally’ is

used only with aiding in the third clause of the section but, as will be seen presently, even
instigation and conspiracy involve mens rea. In order to secure a conviction for abetment
of murder under this section, it is essential for the prosecution to prove that the accused
knew that the actual murderer did intend to commit the murder. Mere proof, that the
crime charged could not have been committed without the interposition of the alleged
abettor, is not enough compliance with the requirements of this section. Intentional aiding
and, therefore, active complicity is the gist of the offence of abetment under the third
paragraph of the section. In order to constitute the offence of abetment, there must be
mens rea, i.e., guilty intention or knowledge.

Clause 1—’Instigate’ and ‘Instigation’

It is clear from the above discussion that to constitute ‘instigation’, a person who
instigates another has to provoke, incite, urge or encourage doing of an act by the other,
by goading or urging forward. Going by the dictionary meaningthe word ‘goad’ means,
‘keep irritating or annoying somebody until he reacts,’ So also, ‘urge’ means ‘to advise or
try hard to persuade somebody to do something or to make a person to move more
quickly in a particular direction especially by pushing or forcing’ such person. ‘Urge

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forward’ means in this context, ‘urge’ a person ‘forward’. Thus, a person who instigates
another has ‘to goad or urge forward’ the latter, with intention to provoke, incite, urge or
encourage doing of an act by the latter. A person can be said to have instigated another, if
such person, with intention to provoke, incite, urge or encourage the latter to do an act,
has goaded or urged forward the other person.

Explanation 1—Instigation by Misrepresentation or Concealment

A wilful misrepresentation of a fact amounts to an abetment of an act within the meaning

of s 107, expln I. A passive or negative conduct, such as mere silence, does not constitute
‘Instigation’. If there is something more than mere silence, if there is concealment, i.e., if
something is done by one to conceal from another a material fact which the former is
bound to disclose, then by virtue of expln I, the conduct of the former would constitute
‘instigation’. A person can be convicted of abetment of theft under the expln I, only if he
either procures or attempts to procure the commission of the theft. Mere subsequent
knowledge of the offence is insufficient. When the law places a duty to act on a person,
his illegal omission to act is to be judged by the same principles. It may be a form of
abetment under this section, while s 116 takes particular notice of the omission of a police
officer whose duty it is to prevent a crime. So where a police officer purposely kept out of
the way, knowing that some persons were likely to be tortured to get confessions out of
them, he was pronounced guilty of abetment. Abetment by omission is punishable only if
the omission is an illegal omission. The owner of a motorcar cannot, therefore, be held
guilty of abetment in merely omitting to give information to his employees as to the rules
framed under the Bombay Motor Vehicles Act 1904.

Limits of Liability

Where, of several persons constituting, an unlawful assembly, some only are armed with
sticks, and A, one of them, is not so armed, but picks up a stick, and uses it, B (the master
of A), who gave a general order to beat, is guilty of abetting the assault made by A. A
person taking away a cow from its owner without his consent for the purpose of

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liquidating that owner’s debt, is guilty of theft; and it follows that the person ordering
such taking would be guilty of abetment of theft.

Clause 2—Conspiracy

Unlawful Combination is Conspiracy

A ‘conspiracy’ is a species of association or union of two or more persons for some

common purpose. When such association is legal, it is termed in law a ‘combination’, as
where persons combine in furtherance of their professional, commercial or industrial
interests, and when it is against law and public opinion or by unlawful means, it is styled
a ‘conspiracy’, and is thus always used in English law in mala parte as importing a legal
wrong.

Before the insertion of ch VII, comprising ss 120A and 120B in the Code, criminal
conspiracy was not a substantive offence and was treated only as a species of abetment.

Abetment by Conspiracy

In order to constitute abetment by conspiracy, three things are essential: (a) the person
abetting must engage, with one or more other person or persons in a conspiracy; (b) the
conspiracy must be for doing the thing abetted; and (c) an act or illegal omission must
take place in pursuance of the conspiracy and in order to do the doing of that thing. Under
the second clause of the section it will be observed that, when the abetment is by
conspiracy, the elements which constitute the offence are, first, the combining together of
two or more persons in the conspiracy, and secondly, an act or illegal omission takes
place in pursuance of that conspiracy, and in order to do the doing of that thing. All these
elements must combine to constitute abetment by conspiracy.

Abettor or Conspirator cannot be Punished when Principal Offender Acquitted

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The petitioner was charged with the offence of abetment by conspiracy of the commission
of the offence of theft by one Major Trilok Chand. The High Court of Allahabad had
clearly held that there was no evidence that Major Trilok Chand has committed the theft,
therefore, unless the substantive offence against the principal offender is established, the
question of abettor being held guilty under these circumstances does not arise. The
petitioner was alleged to have entered into a conspiracy along with eight others and
abetted the commission of the offence. All the other alleged abettors and the principal
offender Major Trilok Chand were acquitted. The petitioner alone remained in the picture
as one having abetted the offence by entering into conspiracy. It is axiomatic that there
cannot be a conspiracy of one. It was held that the charge against the petitioner was not
sustainable.

‘Abetment by Conspiracy’ distinguished from ‘Conspiracy’

A conspiracy will not amount to an abetment unless an act or illegal omission takes place
in pursuance of the conspiracy. Hence, if the offence, alleged to be the object of the
conspiracy, has been committed, the conspiracy amounts to an abetment under s 107 and,
in such a case, it is unnecessary to invoke the provisions of s 120A and 120B. There may
be an element of abetment in a conspiracy, but conspiracy is something more than an
abetment. In order to constitute the offence of abetment by conspiracy, first, there must be
a combining of two or more persons in the conspiracy; secondly, an act or illegal
omission must take place in pursuance of that conspiracy and in order to do that thing. It
is not necessary that the abettor should concert the offence with the person who commits
it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is
committed. But the gist of the offence of criminal conspiracy is in the agreement to do an
illegal act or an act, which is not illegal, by illegal means. When the agreement is to
commit an offence, the agreement itself becomes the offence of criminal conspiracy.
Where however, the agreement is to do an act which is not illegal, by illegal means, some
act besides the agreement is necessary. Therefore the distinction between abetment by
conspiracy and criminal conspiracy, so far as the agreement to commit an offence is
concerned, lies in this that for abetment by conspiracy, mere agreement is not enough

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 while in the offence of criminal conspiracy, the very agreement or plot is, in itself, is an
act and is the gist of the offence. It is a substantive offence in itself and has nothing to do
with abetment.

Two or More Persons must conspire

To constitute abetment by conspiracy, two or more persons must conspire and one of
them must be the person abetting. A person cannot conspire with himself or abet his own
act. To constitute conspiracy, there must be at least two persons engaged therein, and
evidence must always be given to prove that there was another person or other persons
engaged besides the accused, though his or their names may not be known. So, if one of
two persons charged is acquitted, the conviction of the other for conspiracy cannot stand.

Clause 3—Abetment by Aiding

The third way of abetting is by intentionally aiding the doing of a thing by an act or
illegal omission. In abetment by ‘aid’, it is not the intention to aid the commission of
crime, that is punished, but the fact that something is done or not done, whereby the
commission of a crime is rendered easier. In instigation, the criminal intention is
punished; in conspiracy, the intention plus some act; in aid, the act itself. Reading cl 3 of
the s 107, IPC with expln 2, which goes with it, for abetment by aid, four things must be
combined:

(i) aid must be actually afforded by means of an ‘act or illegal omission’;

(ii) there must be an intention to aid thereby;340

(iii) the commission of the offence must be facilitated thereby; and

(ii) the act or omission must take place either prior to, or at the time of, the
commission of the act intended to be aided (expln 2).

340
Shri Ram v State of Uttar Pradesh AIR 1975 SC 175
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 If one of these elements is wanting, e.g., the offence is not, in fact, facilitated by the
conduct in question341 there can be no abetment.

It is clear that under the third clause, when a person abets by aiding, the act so aided
should have been committed in order to make such aiding an offence. In other words,
unlike the first two clauses of s 107, IPC, the third clause applies to a case where the
offence is committed.342 When accused charged under s 5 of the Prevention of Corruption
Act 1947 is acquitted as no prima facie case was made out against him, the charge against
co-accused for abetment of said offence is not maintainable. The word ‘intentionally aids’
figuring in clause third of s 57 of IPC is wide enough to conclude that treating a married
woman with cruelty would certainly fall within its ambit.

Explanation 2—Act or Illegal Omission must Facilitate Commission of the Act

Abetted

A person abets by aiding when by the commission of an act or illegal omission he

intends to facilitate, and does facilitate, the commission of the crime abetted. In order that
expln 2 to this section may apply, it is necessary to determine whether an aid was given
and whether with that aid the act or the offence was committed. In abetment by aid, it is
not the intention to aid the commission of crime, that is punished, but the fact that
something is done or not done, whereby the commission of the crime is rendered easier.
In instigation the criminal intention is punished; in conspiracy the intention plus some act;
in aid, the act itself.

For establishing abetment covered by cl 3 read with expln 2, of s 107, IPC it has to be
established that there was intentional aiding. Mere aiding may not amount to abetment
unless it is intentional. Mere act or omission on the part of a person which in fact, results
in facilitating the commission of the offence will not satisfy the requirements of expln 2
of cl 3. What is, therefore, required is that the person against whom charge of abetment is
levelled has to do something purposefully which facilitates the commission of the

341
Jainoon v State (1990) LW (Cr) 346
342
CBI v VC Shukla AIR 1998 SC 1406
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 offence. It cannot be said with any stretch of imagination that a person subjecting a
woman to cruelty is guilty of abetment.

Illustrations

A wrote and took an active part in the preparation of a document but it was not he who
signed the name of the alleged executant thereto. It was held that A abetted the forgery.

A makes a false charge against B, C gives evidence in support of the charge. This is no
evidence to hold that C abetted the institution of the charge.

S. 108. Abettor.—

Scope

The abettors of crime are accomplices in the eye of law.

2. Three Essentials to Constitute an Offence under this Section

Three things are essential to complete abetment as a crime. There must be an abettor; he
must abet; and the abetment must be of an offence an act which would be an offence if
committed by a person capable by law of committing the offence with the same intention
or knowledge as that of the abettor. If the thing abetted is not an offence at all, the person
abetting it is not an abettor.

Abetment, a Distinct Offence

If ‘the thing’ in question is an offence, its abetment becomes an offence (s 108 ) and the
‘offence of abetment’ is constituted (s 108, expln 2), which is thus a separate and distinct
offence. The offence of abetment is complete notwithstanding that the person abetted
involuntarily fails in doing the abetted, or is interrupted before the act is complete. The

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offence of abetment by instigation depends upon the intention of the person who abets
and not upon the act which is actually done by the persons abetted. As a general rule, an
offence of abetment falls through if the principal offence is not sustained. But there might
be an exception to this general rule, as abetment of an offence is a distinct offence.

Explanation 1—Abetment by Illegal Omission

For an omission to be criminal, the act which is omitted must be one which the person
who omits was legally bound to do, but it matters not, under expln 1, whether or not the
abettor was legally bound to do the act, the omission of which he abets. Thus A, a private
person, instigates B, a police officer, to leave the scene of a cognizable offence which it is
his duty to prevent. If, in consequence, B illegally omits to prevent the commission of the
cognizable offence, he would be guilty of abetting the offence but A would not guilty of
abetting the abetment committed by B by his illegal omission, which is also an offence
under expln 4 to this section.

Explanation 2—Effect Immaterial—Abetment is Complete without the Commission

of the Act Abetted

Explanation 2 makes it clear that to constitute the offence of abetment, it is not necessary
that the act abetted should be committed. The offence of abetment is complete
notwithstanding that the person abetted involuntarily fails in doing the act abetted, or is
interrupted before the act is complete. The offence of abetment by instigation depends
upon the intention of the person who abets and not upon the act which is actually done by
the person abetted. It has been held that an offence can be abetted even though the means
intended to be employed are such that it is physically impossible to produce the effect by
them.
Explanation 3—Two Fold Effect

Section 108 and expln 3, IPC should be read together. The effect is two-fold. Abetment to
be criminal must be the abetment of either: (a) that which is an offence; or (b) that which

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would be an offence, but that the person abetted is incapable by law (refer to ch IV) of
committing an offence, or has no guilty knowledge or intention.

xplanation 4—Abetment of Abetment

In view of expln 4 appended under s 108 of the IPC, it cannot be said that there cannot be
any abetment of an abetment and it is unknown to criminal jurisprudence. Under expln 4,
when the abetment is an offence, the abetment of such abetment is also an offence. The
words ‘when the abetment of an offence is an offence’ do not mean when an abetment of
an offence is actually committed. What is meant is when the abetment of an offence is by
definition or description an offence under the IPC, which is when the abetment of an
offence is punishable under s 109 or 116 or some other provision of the IPC, then the
abetment of such abetment is also an offence. Explanations 2 and 4 lead to the conclusion
that the abetment of an abetment is an offence though the second abetment is ineffective.
It is not necessary to prove that the principal offence abetted was actually committed. The
offence of abetment being a substantive offence, the conviction of the abettor is in no way
dependent on the conviction of the principal.

It is possible to abet the commission of suicide. But nobody would abet a mere attempt to
commit suicide. It would be preposterous if law could afford to penalise an abetment to
the offence of a mere attempt to commit suicide. It is wrong to convict the accused under
s 116 linked with s 306, IPC but the crux of the offence under s 306 itself is abetment. In
other words, if there is no abetment, there is no question of offence under s 306 coming
into play. It is inconceivable to have abetment of an abetment. Hence there cannot be an
offence under s 116 read with s 306, IPC and conviction of accused was altered by
substituting s 306 with s 304B, IPC, read with s 116.

Explanation 5—Abetment Relates to an Offence and not the Offender

This explanation applies only to abetment by conspiracy. A conspiracy to publish an

article in a newspaper may be inferred if the article could not have appeared therein
without the concurrence of the persons charged with conspiracy. ‘Abetment’, as defined
in the IPC, relates not to an offender but to an offence. A person may constitute himself

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 an abettor by the intervention of a third person without any direct communication
between himself and the person employed to do the thing, and under expln 5 in the case
of abetment by conspiracy, it is not necessary that the abettor should concert the offence
with the person who commits it. It is sufficient if he engages in the conspiracy in
pursuance of which the offence is committed.

Provisions of Section 10, Indian Evidence Act 1872, Apply

The provisions of s 10 of the Evidence Act may be usefully quoted here. Where there is
reasonable ground to believe that two or more persons have conspired together to commit
an offence, anything said, done, or written by anyone of such persons in reference to their
common intention after the time when such intention was first entertained by any one of
them may be proved, both for the purpose of proving the existence of the conspiracy as
also for showing that any such person was a party to it.

S. 108A. Abetment in India of offences outside India.—

Scope

This section puts the abetment of offences to be committed outside India on the same
footing as abetment of offences to be committed in India. As regards the necessity for
such a rule, see Stephen’s History of Criminal Law of England. Under this section,
although the offence abetted may be committed outside India, the abetment itself must be
committed in India.

Mere intention not followed by any act cannot constitute any offence, and an indirect
preparation which does not amount to an act which amounts to a commencement of the

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 offence, does not constitute either a principal offence or an attempt or abetment of the
same.

The illustration in the case of R v Ganpatrao Ramchandra , in which it was held that such
abetment was not punishable, a decision which no doubt suggested the amendment of the
law.

S. 109. Punishment of abetment if the act abetted is committed in consequence and

where no express provision is made for its punishment.—

Scope

Sections 109 - 10 of IPC deal with the state of things that may arise after an abetment has
been committed, viz, where the very act abetted happens in consequence thereof. This
section is concerned only with the punishment of abetments and lays down nothing more
than that if the IPC has not separately provided for the punishment of an abetment as
such, then it is punishable with the punishment provided for the original offence.

This section is attracted even if the abettor is not present, where the offence abetted is
committed, provided that he has instigated the commission of the offence or has engaged,
with one or more other persons, in a conspiracy to commit the offence, and in pursuance
of that conspiracy some act or illegal omission takes place, or has intentionally aided the
commission of an offence by an act of illegal omission.

Essentials to Constitute an Offence under this Section

For the application of the section three things are essential: (a) there must be abetment of
an offence, (b) the act abetted must have been committed in consequence of the abetment
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and (c) there must be no express provision in the IPC, for the punishment of such
abetment. Such express provision made in ss 110 - 23, 130, 132, 133, 134, 136 and 138 of
the IPC, s 182 not being such section, there is no reason why this section should not be
applicable to cases under s 182 of the IPC.

Distinction between Sections 109 and 114

This section is punitive and provides for punishment of abetment of an offence. Section
114, on the other hand, is not punitive, but only raises a presumption. The presumption
raised by that section brings the case within s 34. The effect of this section and s 114 is to
supersede the English law relating to principals of the first and second degrees and
accessories before the act.

Section 114 of the IPC is only brought into operation when circumstances amounting to
abetment of a particular crime have first been proved, and then the presence of the
accused, at the commission of that crime, is proved in addition. The real test, to see
whether or not the section is applicable, lies in its words; ‘who if absent would be liable
to be punished as an abettor’. Abetment, to come under this section, must be one which is
prior to the commission of the offence and complete by itself, and not an abetment which
is done immediately before or at the time of the commission of the offence, for in the
latter case, the abettor would not have committed the abetment if he had not been present
and would not, therefore, have been liable to punishment as an abettor. When a person is
present and abets another to commit an offence, then s 114 will not be applicable to the
case. Active abetment at the time of the committing of the offence is covered by this
section and s 114 is clearly intended for an abetment previous to the actual commission of
the crime at any time, that is, before the first steps have been taken to commit it.

Conviction of Principal Not Always Necessary—Exceptions to the General Rule

This section requires only that the act abetted should have been committed, and not that
the principal should have been convicted. An offence of abetment falls through if the
principal offence is not substantiated. But it cannot be laid down as a general proposition

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 that in every case where an abettor and principal are tried together, the abettor, if charged
with having abetted the principal in the commission of an offence, must be acquitted if
the principal is acquitted. Such a general statement might hold good in the majority of
cases, but there may be exceptions to the general rule. Thus A and B were tried together,
A for committing a murder and B for abetting the offence. The jury found A not guilty
and he was accordingly acquitted. There was, however, no doubt that the offence of
murder was committed. There was the retracted confession of B on the basis of which the
jury could have formed as against her that the murder was committed by A. It was held
that B could be convicted of abetting murder although A was acquitted. B was, however,
acquitted as she was protected by s 94. So, the conviction of the abettor is not dependent
upon the conviction of the principal offender. The abetment by itself being a substantive
offence, an abettor can be convicted before the principal is apprehended and put on trial. 82
Where the principal accused was acquitted merely on benefit of doubt for lack of his
identity, by said acquittal, the prosecution case that the deceased was abducted for being
compelled to marry another person or forced to have illicit intercourse with him with the
complicity of appellant was not rendered false. Prosecution case was found true by the
High Court. Hence the appellant could not be absolved of the charge as abettor

S. 110. Punishment of abetment if person abetted does act with different intention from
that of abettor.—

Scope

Under expln 3 to s 108, it is not necessary that the person abetted should be capable by
law of committing an offence, or that he should have the same intention or knowledge as
that of the abettor, or any guilty intention or knowledge. This section provides for cases in
which the intention or knowledge of the person abetted is different from that of the
abettor. Even in such a case, the abettor is liable for the offence which would have been
committed if the act abetted had been done with the intention or knowledge of the abettor.
In other words, the variation in the intention or knowledge of the person abetted does not
affect the liability of the abettor. For a concrete example of this section see illust (d) to

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 expln (3) of s 108. In the case illustrated, the abettor is guilty of abetting theft although
the act committed by the person abetted is not theft.

S. 111. Liability of abettor when one act abetted and different act done.—

Scope and Applicability

Sections 109 - 110 provide for cases in which the act done is the act abetted. This section
provides for the liability of the abettor when the act done is different from the act abetted.
It lays down that in such a case the abettor is liable for the act committed. Reading with s
107, this section comes to this. Where an act is abetted and the abetment takes form of
instigation of an act, and a different act is done, that different act must be probable
consequence, and committed under the influence of the instigation; and where the
abetment takes the form of aiding or a conspiracy, the different act must be a probable
consequence and also with the aid or in pursuance of the conspiracy. In the latter case, for
conviction under this section, the prosecution must show, not only that assault on the
complainant was a probable consequence of the conspiracy to assault the complainant but
also that it has been done in pursuance of that conspiracy.

It is clear law that if one man instigates another to perpetrate a particular crime, and that
other, in pursuance of such instigation, not only perpetrates that crime, but, in the course
of doing so, commits another crime in furtherance of it, the former is criminally
responsible as an abettor in respect of such last mentioned crime, if it is one which as a
reasonable man, he must, at the time of the instigation, have known would, in the
ordinary course of things probably have to be committed in order to carry out the original
crime. For example, if A says to B: ‘You waylay C on such and such a road and rob him,
and if he resists, use this sword but not more than is absolutely necessary’; and B kills C,
A is responsible as an abettor of the killing, for it was a probable consequence of the
instigation. To put it in plain terms, the law virtually says to a man: ‘If you choose to run
the risk of putting another in motion to do an unlawful act, he, for the time being,
represents you as much as he does himself; and if, in order to effect the accomplishment
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 of that act, he does another which, you may fairly, from the circumstances, be presumed
to have foreseen, would be a probable consequence of your instigation, you are as much
responsible for abetting the latter act as the former’.

S. 112. Abettor when liable to cumulative punishment for act abetted and for act done.
—

Scope

Under this section an abettor may render himself liable for two offences, when he only
intended to bring about one, if the one which he intended caused another which he ought
to have anticipated, and if the two are distinct offences so as to be subject to distinct
punishments.

Supposing an act, as is contemplated under s 111, is committed in addition to the act

abetted, the abettor is liable for both. In the illust, A abets resistance of the officer by
force. If B was armed for the purpose then the grievous hurt inflicted was clearly a
probable consequence of the abetment, and was inflicted under the influence of the
abetment, and, therefore, would be punishable under s 111, IPC. But having been inflicted
in addition to the act abetted, A is liable for both the offences.

S. 113. Liability of abettor for an effect caused by the act abetted different from that
intended by the abettor.—

Scope

Where a certain act is abetted with the object of producing a certain effect but it causes a
different one, the abettor is liable for it, if he knew that the act which he abetted was
likely to cause that effect. Under the terms of this section the liability depends on the
question of the abettor’s knowledge. Under the English law the question seems to be one

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 of fact, i.e., whether or not the effect which happened was likely. Thus, A describes B to
C, and instigates C to murder B. C murders D, who corresponds to A’s description of B.
Under the English law, A is accessory before the fact to the murder of D. Under s 113, A
is an abettor of the murder of D, only if he knew that the killing of D was likely. But he is
guilty of the abetment of murder of B under s 115, A advises B to murder C (B’s wife) by
poison. B gives C a poisoned apple, which C gives to D (B’s child). D dies, A is guilty of
abetment of murder of C, but not of the murder of D, but B is guilty of murder.

B and C instigated A to rob X. A in so doing killed X. B and C did not abet the murder of
X by A. It would be otherwise if they knew that A was armed with a deadly weapon.

S. 114. Abettor present when offence is committed.—

1. Scope

The person, who has abetted an offence, whether by instigation, conspiracy, or aid, may
be present when the offence abetted is committed. He is, under this section, treated as a
principal, i.e., he is deemed to have committed the offence, though in fact, it was
committed by another. This section is a provision which is only brought into operation
when the circumstances amounting to abetment of a particular crime has first been
proved, and then the presence of the accused at the commission of that crime is proved in
addition. Abetment does not in itself involve the actual commission of the crime abetted.
It is a crime apart. Section 114 of IPC deals with the case where there has been not only
the abetment of a crime, but also actual commission of the crime abetted and the abettor
is present at the time of such commission. The way in which it deals with such a case is as
follows.

Instead of the crime being still abetment with circumstances of aggravation, abetment
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 becomes the very crime abetted. The section is evidentiary not punitory. Because
participation de facto may sometimes be obscure in detail, it is established by the
presumption juris et de jure that actual presence plus prior abetment means nothing else
but participation. The presumption raised by this section brings the case within the ambit
of s 34. The presumption is irrebuttable.

Object

The whole object of s s 34 and 114 of the IPC is to provide for cases in which the exact
share of one of several criminals cannot be ascertained, though the moral culpability of
each is clear and identical. Neither of these two sections should be so interpreted as to
defeat the very object which underlies them. This section introduces a statutory legal
fiction whereby an abettor is treated as if he himself committed the offence by reason of
his presence at the time and place of the offence. It does not apply to the case of an
abettor whose abetment consists in something done or omitted when the offence was
committed in his presence. To bring a person within this section, the abetment must be
complete apart from the presence of the abettor.

S. 115. Abetment of offence punishable with death or imprisonment for life—If offence
not committed.—

Scope and Applicability

Section 109 of the IPC provides for punishment of abetment of an offence if the act
abetted is committed in consequence of the abetment. Sections 115 - 16 provide for
punishment of abetment pure and simple, i.e., abetment of an offence, when the offence is
not committed in consequence of the abetment.

Where an act is abetted and it is not committed but a different act is committed in
consequence of the abetment s 111 applies. But if the commission of the different acts is
not in consequence of the abetment, s 115 or 116, as the case may be, may be applicable.

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 This section deals with the abetment of an offence punishable with death or imprisonment
for life, whereas s 116 deals with the abetment of an offence punishable only with
imprisonment.

Under s 115, abetment of an offence punishable with death or imprisonment for life is
punishable with imprisonment up to seven years and fine. If any act is done in
consequence of such abetment, the term of imprisonment may be extended to 14 years.

S. 116. Abetment of offence punishable with imprisonment—if offence be not

committed.—

Scope

This section supplements s 115, IPC which is similarly worded and deals with the
abetment of an offence punishable with death or imprisonment for life in like
circumstances. This section deals with the abetment of an offence punishable with
imprisonment if the offence be not committed in consequence of the abetment. Like s
115, this section applies only if the offence abetted is not committed and no express
provision is made by this Code for the punishment of such offence.

This section discriminates between public servant, whose duty it is to prevent the
commission of the offence abetted, and the public by prescribing an enhanced penalty on
the former. The section is in two parts; under the first part, which deals with the public in
general, abetment of an offence punishable with imprisonment may be punished by the
infliction of one-fourth of the longest term of imprisonment provided for that offence.
Under the second part, if the abettor or the person abetted is a public servant whose duty
it is to prevent the commission of such offence, the term of imprisonment may be double.
It will be observed that no punishment under this section is provided for the abetment of
offences which are punishable with fine only, and which are not committed in

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 consequence of such abetment. Offences under the following sections are punishable with
fine only. Sections 137, 154 - 56, 278, 283, 290 and 294A (second para) of the IPC.

Relative Scope of Sections 116 and 117 of the Indian Penal Code 1860

This section applies where the offence abetted is punishable with imprisonment. If a class
of persons, exceeding ten, be abetted to commit such an offence, s 117 also would be
applicable. If the offence abetted is theft, and the offence is not committed in
consequence of the abetment, the punishment under s 116 would be only a quarter of
three years, that is to say, nine months, but under s 117, it would be three years. Hence
one, who abets the public or a class of persons exceeding ten to commit theft, should be
charged under s 117 rather than this section. In other words, where a person is found
guilty of a criminal act which is punishable under two different sections of the IPC, he
may be convicted under both the sections, but should be punished only under that section
which imposes the higher penalty.

S. 117. Abetting commission of offence by the public or by more than ten persons.—

Scope

This section provides punishment for abetment of an offence by the public generally or by
any number or class of persons exceeding ten. The offence, under the section, is an
aggravated form of abetment, and has reference both to the person or persons abetted, and
to the offence or offences the commission of which is abetted. This section deals with the
former whatever be the nature of the offence abetted, and s 115 with the latter without
having regard to the person or persons abetted. Though this section contemplates the
abetments of the commission of an offence by the public generally, or by any number or
class of persons exceeding 10, it does not necessarily follow that the offence is to be
committed by all the ten or more persons at one and at the same time or that there should

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 be an unlawful assembly. The offence of abetment, under this section does not; therefore
necessarily involve an offence under s 143 of this Code.

The first thing to be proved under this section is the abetment of an offence, i.e., a thing
punishable by the Code, or under any special or local law (see s 40 of IPC ) and secondly,
that the intention of the abettor was that the offence should be committed by more than
ten persons, or by the public generally.

S. 118. Concealing design to commit offence punishable with death or imprisonment for
life.—

Scope

This and the next two sections refer to a special form of abetment by way of aid, viz,
concealment of a design to commit a crime. It follows from the nature of abetment, which
involves participation of two or more persons, that the concealment, contemplated by
these sections, is the concealment by one person of the existence of a criminal design on
the part of another. All the three sections deal with concealment prior to the commission
of an offence. Subsequent concealment is dealt with in ss 202 - 03. These sections apply
to the concealment of all offences except those punishable with fine only.

The following points should be proved in order to secure a conviction under these
sections:

(i) that there was a designed offence, i.e., a thing made punishable by the IPC (see s
40 ) with imprisonment;

(ii) that the design was known to, and not merely suspected by the accused;

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 (iv) that the accused voluntarily (see s 39 ) concealed the existence of the intention,
whether by an act on his part or by an illegal omission; or that he knowingly made
a false representation respecting such design; and

(ii) that the accused intended, or knew, that he was likely thereby to facilitate the
commission of the offence. It is not necessary, however, to prove that the offence
was actually facilitated thereby.

S. 119. Public servant concealing design to commit offence which it is his duty to
prevent.—

Scope

This section is an adaptation of s 118, IPC to public servants, whose duty, as such public
servants, is to prevent the commission of offences, and prescribes an enhanced
punishment in their case. Refer to commentary under the preceding s 118.

S. 120. Concealing design to commit offence punishable with imprisonment.—

Scope

This section supplements the provisions of s 118. That section applies to abetment by
concealment of offences punishable with death or imprisonment for life, and this section
applies the same rule to abetment by concealment of offences punishable with
imprisonment. No such provision is made for offences punishable with fine only. Refer to
commentary under s 118.

Where specimen writings and specimen signatures of the accused charged under s s 120,
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 420, 468 of the IPC and s 5(1)(d) of Prevention of Corruption Act 1947 were taken by a
magistrate who neither knew the accused personally nor got the accused person’s
identified before taking the specimen writings, the specimen writings and signatures so
taken could not be said to be of the accused persons and their comparison with the
disputed writings done by the expert would not connect the accused persons with the
crime.

Scope

The offence of criminal conspiracy under s 120A, IPC is a distinct offence (Criminal
conspiracy is a substantive offence and has nothing to do with abetment. It is a substantive
offences in itself. It is not one of the offences which is an offence because of its relation to
another offence, such as abetment, which would give the court jurisdiction either where the
principal offence or the connected offence was committed, nor can it be brought within the
meaning of s 180, Crpc.) introduced for the first time in 1913 in chapter V-A of the IPC. The
very agreement, concert or league is the ingredient of the offence. It is not necessary that all
the conspirators must know each and every detail of the conspiracy as long as they are co-
participators in the main object of the conspiracy.

It has been held that ss 120A and 120B appear to have been introduced to fill a gap in s 107,
IPC, defining abetment. Under cl ‘secondly’ of s 107 a person abets the doing of a thing who
engages with others in a conspiracy for the doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy.
This section defines ‘criminal conspiracy’ and section 120B prescribes the punishment for
that offence. This section contemplates two classes of conspiracy. It defines criminal
conspiracy as an agreement between two or more persons to do, or cause to be done: (a) an
illegal act, or (b) an act which is not illegal by illegal means. Under s 43 of the IPC an act
would be illegal, if it is an offence, or if it is prohibited by law or if it furnishes the ground for
a civil action. One class of conspiracy, contemplated by this section, is that in which the
agreement is to do, or cause to be done, an illegal act which is an offence. Such an agreement
amounts to a criminal conspiracy even if there is no other act besides the agreement in
pursuance thereof. The second class of conspiracy is that in which the act agreed to be done
does not amount to an offence. In such a case the agreement to do the act does not amount to
a criminal conspiracy unless some act besides the agreement is done by one or more of the
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parties to the agreement in pursuance thereof. The proviso to this section excludes the
agreement to commit an offence from the category of such conspiracies in which it is
necessary that the agreement should be followed by some act.

The elements of a criminal conspiracy have been stated to be (a) an object to be

accomplished, (b) a plan or scheme embodying means to accomplish the objects, (c) an
agreement or understanding between two or more of the accused persons whereby, they
become definitely committed to co-operate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the
statute required an overt act.29

Ingredients of Criminal Conspiracy

The ingredients of the offence of conspiracy are:

i. there should be an agreement between the persons who are alleged to

conspire;
ii. the agreement should be—(a) for doing an illegal act, or (b) for doing
by illegal means, an act, which may not itself be illegal;
iii. in cases, other than an agreement to commit an offence, the agreement
must be followed by an overt act
Criminal conspiracy would not be inferred from the mere fact that there were official
discussions between officers of the Government, Chief Minister, Minister and
Representatives of Management which were unheard. A wrong or incorrect decision or poor
management by itself would not be said to be the product of criminal conspiracy

Gist of the Offence

The gist of the offence of conspiracy lies not in doing that act or effecting the purpose for
which the conspiracy is formed nor in attempting to do any of the acts, nor in inducing others
to do them, but in the forming of the scheme of agreement between the parties. The offence
of a conspiracy to commit a crime is an offence different from the crime which is the object
of the conspiracy, because the conspiracy precedes the commission of the crime and is
complete before the crime is attempted or completed; equally the crime attempted or

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completed does not require the element of conspiracy as one of its ingredients. They are
therefore, quite separate offences. The gist of the offence is a bare agreement and association
to break the law.

Sections 120A and 34 Distinguished

In the case of s 34, IPC, the constructive liability for the crime is specifically fastened on
each of those who participate in the crime in furtherance of the common intention. But s
120B does not convey that idea.

There is not much substantial difference between conspiracy as defined in this section, and
acting on a common intention as contemplated in s 34. In the former case, the gist of the
offence is the bare engagement and association to break the law even though the illegal act
does not follow; the gist of the offence under s 34, IPC, is the commission of a criminal act
in furtherance of a common intention of all the offenders which means that there should be
a unity of criminal behaviour resulting in something for which an individual would be
punishable as if it were all done by himself alone. Section 34 only enunciates a principle of
liability. It is not an offence in itself; on the other hand, criminal conspiracy is, by itself,
a substantive offence. Section 34 requires not only common intention, but also
participation in the crime; when a specific offence is committed by some of the conspirators
in pursuance of the conspiracy, the common intention of all would not be enough to fasten
the guilt on all of them. It is only those who had actually participated in the crime that would
be held responsible for its commission.

Section 120A of the IPC and Section 10 of the Indian Evidence Act 1872

The essence of conspiring is that there should be an agreement between persons to do one or
the other of the acts described in s 120A. It can be established by direct evidence or by
circumstantial evidence. But, s 10 of the Evidence Act introduces the doctrine of agency
and if the conditions laid down therein are satisfied, the act done by one is admissible
against the co-conspirators. Section 10 of the Evidence Act, as the opening words show, will
come into play only when the court is satisfied that there is reasonable ground to believe that
two or more persons have conspired together to commit an offence or an actionable wrong,
that is to say, there should be prima facie evidence that a person was a party to the conspiracy
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before his acts can be used against the co-conspirators.

Two Objections to the Applicability of Evidence under Section 10

It is true that the provision as contained in s 10 is a departure from the rule of hearsay
evidence. There can be two objections to the admissibility of evidence under s 10 and
they are: (a) the conspirator whose evidence is sought to be admitted against the co-
conspirator is not confronted or cross-examined in court by the co-conspirator and; (b)
prosecution merely proves the existence of reasonable ground to believe that two or
more persons have conspired to commit an offence and that brings into operation the
existence of agency relationship to implicate the co-conspirator. But then precisely under
s 10, Evidence Act, the statement of a conspirator is admissible against co-conspirator on the
premise that this relationship exists. Prosecution, no doubt, has to produce independent
evidence as to the existence of the conspiracy for s 10 to operate but it need not prove the
same beyond a reasonable doubt. Criminal conspiracy is a partnership in agreement and there
is in each conspiracy a joint or mutual agency for the execution of a common object which is
an offence or an actionable wrong.

Effect of the Two Parts of Section 10 of the Evidence Act

Section 10 of the Evidence Act mainly could be divided into two: the first part talks of where
there is a reasonable ground to believe that two or more persons have conspired to commit an
offence or an actionable wrong, and it is only when this condition precedent is satisfied that
the subsequent part of the section comes into operation. The second part of s 10 permits the
use of evidence which otherwise could not be used against the accused person. It is well
settled that act or action of one of the accused could not be used as evidence against the other.
But an exception has been carved out in s 10 in cases of conspiracy. The second part operates
only when the first part of the section is clearly established, i.e., there must be reasonable
ground to believe that two or more persons have conspired together in the light of the
language of s 120A, IPC. It is only then the evidence of action or statements made by one of
the accused could be used as evidence against the other.

Agreement

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The definition of criminal conspiracy under this section postulates an agreement to do an
illegal act, or a legal act by illegal means. The essence of the offence of conspiracy is the bare
agreement and association to break the law, or to do an illegal act. The generally accepted
definition of the offence is that as given in Mulcahy v R , and accepted by the House of Lords
in that and subsequent cases:

A conspiracy consists not merely in the intention of two or more but in the agreement
of two or more to do an unlawful act, or to do a lawful act by unlawful means. So
long as such a design rests in intention only it is not indictable. When two agree to
carry it into effect, the very plot is an act in itself, and the act of each of the parties,
promise against promise, actus contra actum, capable of being enforced if lawful,
punishable if for a criminal object or for the use of criminal means.

For the charge under s 120B to be proved, an agreement between two or more persons to
do or cause to do an illegal act which is not illegal by illegal means, must be established.
From the mere fact that the deceased was seen at the police station it cannot be held that
he was brought at the police station in pursuance of some criminal conspiracy entered into
between the accused No. 1 and accused No. 2 Police officers.

Physical Manifestation of Agreement is Essential

It is essential that the offence of conspiracy requires some kind of physical manifestation
of agreement. The express agreement, however, need not be proved nor is it necessary to
prove the actual words of communication. The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient.

Conspiracy Comes into being the Moment the Agreement is Reached

To make out an offence of criminal conspiracy, it is not sufficient to establish that a

number of persons had a common intention to commit an act opposed to, or forbidden by
the law; it has further to be proved that they ‘agreed’ to commit the relevant act. The
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 agreement is the gist of the offence. Conspiracy comes into being just the moment the
agreement to commit the crucial act is reached and it continues to exist so long as the
object, for which the association was formed, continues in the process of fulfillment as
per the agreement.

All Conspirators need not Know Every Detail—There must be Unity of Object or
Purpose

In Yashpal v State of Punjab ,343 their Lordships of the Supreme Court observed:

The very agreement, concert of league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the conspiracy
as long as they are co-participators in the main object of the conspiracy. There may
be so many devices and techniques adopted to achieve the common goal of the
conspiracy and there may be division of performances in the chain of actions with
one object to achieve the real end of which every collaborator must be aware and in
which each one of them must be interested. There must be unity of object or purpose
but there may be plurality of means sometimes even unknown to one another,
amongst the conspirators. In achieving the goal, several offences may be committed
by some of the conspirators even unknown to the other. The only relevant factor is
that all means adopted and illegal acts done must be and purported to be in
furtherance of the object of conspiracy; even though there may be sometimes misfire
or overshooting by some of the conspirators without the knowledge of the others, it
will not affect the culpability of those others when they are associated with the object
of the conspiracy.344 The essence of conspiracy is, that there should be an agreement
between persons to do one or the other of the acts described in the section. 345

Different Persons may enter the Conspiracy at Different Stages

It is true that a mere agreement may bring the conspiracy into existence but the IPC does
343
Yashpal v State of Punjab (1978) Cr LJ 189
344
Manmohan Singh v State AIR 1969 Punj 225
345
VR Nedunchezhian v State (2000) Cr LJ 976 (Mad)
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 not say that thereafter the offence no longer exists. Criminal conspiracy may come into
existence, and may and will persist so long as the persons constituting the same remain in
agreement, and so long as they are acting in accord, in furtherance of the objects for
which they entered into the agreement. It is not by any means necessary that each
conspirator should be aware of all the acts done by each of the conspirators in the course
of the conspiracy. His offence is the conspiracy. The acts done by any of the conspirators
in furtherance of the purpose of the conspiracy are merely indication of what the object of
the conspiracy was. What is necessary, however, is that there should be one conspiracy
and not a series of conspiracies and criminal acts unconnected by unity of intention. It is
quite possible that there may be a band of conspirators working for a common criminal
end, and for the purpose of that conspiracy, they may find it necessary to procure the
doing of unlawful acts by persons, who are not members of the conspiracy. In that case, if
the persons so seduced into unlawful acts are not aware of the conspiracy, the fact that
they do unlawful acts, does not make them members. It is the object which the court has
to consider when deciding the question of conspiracy and its members. Different persons
may enter a conspiracy at different stages and persons joining the conspiracy can properly
be convicted of that conspiracy so long as the object of the conspiracy exists. Each
conspirator must be aware of the object of the conspiracy, but it is not the law that every
conspirator must be present at every stage of the conspiracy.

Conspirators may be Enrolled in Chain

Conspirators may, eg, be enrolled in chain, A enrolling B, B enrolling C and so on and all
will be members of a single conspiracy if they so intend and agree, even though each
member knows only the person who enrolled him and the person whom he enrolls. There
may be a kind of umbrella-spoke enrolment, where a single person at the centre doing the
enrolling and all the other members being unknown to each other though they know that
there are to be other members.346

The Conspirators may not know each other

Persons may be members of a single conspiracy even though each is ignorant of the
346
State of Tamil Nadu v Nalini (1999) Cr LJ 3124 (SC), AIR 1999 SC 2640
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 identity of many others who may have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an active role. 347

Conspirators Not Liable for Acts after Termination of Conspiracy

Once the object of conspiracy has been achieved, any subsequent act which may be
unlawful, would not make the accused a part of the conspiracy, like giving shelter to an
absconder. A conspirator is not responsible, however, for acts done by a co-conspirator
after termination of the conspiracy.348

‘Explanation’

The definition of conspiracy as given in this section makes it amply clear that either the
very act agreed to be done by the conspirators be illegal or if it is not illegal, it should be
agreed to be done by illegal means. Therefore every conspiracy involves an element of
illegality or illegal act. Under the Explanation to this section, it is immaterial whether the
illegal act is the ultimate object of the agreement or is merely incidental to it.

‘By Illegal Means’

Obtaining credit without means to pay, though not criminal, is unlawful. It has been held
that it is criminal to conspire to enable a person to get goods on credit by means of a false
certificate, knowing that he did not intend to pay for them.

S. 120B. Punishment of criminal conspiracy

Scope and Applicability

347
ibid
348
ibid
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This section provides for the punishment of ‘criminal conspiracy’ as defined in the
previous section. Sub-section (1) imposes a penalty equal to the punishment for abetment,
on participation in a criminal conspiracy to commit an offence punishable with death,
imprisonment for life, or rigorous imprisonment for a term of two years or upwards, in
case no express provision is made in the IPC for the punishment of such a conspiracy.
Sub-section (2) imposes a lighter penalty in the case of a criminal conspiracy not covered
by sub-s (1). Thus, for the purposes of punishment the section contemplates two classes
of criminal conspiracies, viz, the first, in which the conspiracy is formed for the
commission of a serious offence but no act or illegal omission has taken place in
pursuance of it; and the second in which the conspiracy is formed in order to do an illegal
act or an act which is not illegal, by illegal means; this sort of conspiracy, in no case
amounts to abetment and does not amount to a criminal conspiracy unless some act
besides the agreement is done in pursuance thereof.

If a matter has gone beyond the stage of mere conspiracy and offences have actually been
committed in pursuance thereof, a conviction, also under this section, for conspiracy
simpliciter is unnecessary. When an accused is convicted and sentenced for composite
charge under s 120B read with some other offences no separate sentence is called for
those offences. The section will have no application even when there is no offence which
is punishable under the various sections of this IPC. The section would apply to those
who are members of the conspiracy during its continuance. The emphasis is on the words
‘is party’. It is not that the agreement as such that is punishable. Conspiracy is intended to
be tried as continuing offence and whoever is a party to conspiracy during the period for
which he is charged, is liable under this section. So long as its performance continues, it
is a continuing offence till it is executed or rescinded or frustrated by choice as necessity.
The section will have no application even when there is no offence which is punishable
under the various sections of this Code.

Offence created by ss 109 and 120B are distinct offences. Where a number of offences
are committed by several persons in pursuance of a conspiracy, it is not illegal to charge
them with those offences as well as with the offence of conspiracy to commit those
offences. Cases in which a different view was taken, will, in view of the Supreme Court

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 decision in State of Andhra Pradesh v Kandimalla Subbaiah , no longer be good law.
Referring to the observations of Finnemore J, in R v Dawson , their Lordships of the
Supreme Court observed in State of Andhra Pradesh v Kandimalla Subbaiah :

We agree that it is not desirable to charge the accused persons with conspiracy with
the ulterior object of letting in evidence which would otherwise be inadmissible, and
that it is undesirable to complicate a trial by introducing a large number of charges
spread over a long period. But then this is only a question of propriety and it should
be left to the Judge or the magistrate trying the case to adopt the course which he
thinks to be appropriate in the facts and circumstances of the case. It cannot be said as
a matter of law that such a trial is prohibited by the CrPC.

This decision has been cited with approval in Pramatha Nath Talukdar v Saroj Ranjan
Sarkar . Where the offence has been actually committed, it would be more appropriate to
proceed for the trial of the principal offence and abetment thereof rather than with the
offence of criminal conspiracy. In such a case, even if the charge of criminal conspiracy
does not become irrelevant, at least it cannot be regarded as the primary charge where
offence in pursuance of the conspiracy has been committed.

Subsistence of Conspiracy

The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient.
A conspiracy is a continuing offence which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity. During its subsistence, whenever any one
of the conspirators does an act or series of acts, he would be held guilty under s 120B of
the IPC.

Offences Against the State

Two Classes of Offences against the State

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‘Offences against the State’ form the first great division of substantive offences. There are
two classes of such offences: (a) Offences by which the tranquility of a civilised
community is greatly disturbed, as by waging war, unlawful assemblies, riots, insurrections
and rebellions. The great evil of these offences being that if they are successfully committed,
the existing sanctions of law are put to an end, political institutions are dissolved, and
anarchy, for the time being at least, supervenes. (b) The other offences being those in which
actual force is not employed, but by which steps are taken to cause such force, as by the
formation of secret societies, seditious conspiracies, and the abetment of mutiny and
desertion amongst the armed forces of the State. Chapters VI to VIII of IPC deals with the
offences which fall under these categories.

The Law of Treason under the Indian Penal Code 1860

Under the IPC , as originally drafted, the only offence corresponding to high treason was the
fourth one mentioned above, viz waging war (i.e., levying war) against the Queen ( s 121 ),
and its abetment by the collecting of arms ( s 122 ), or by concealment of a design to wage
war ( s 123 ). But conspiring to wage war and sedition were not included in the original Code.
In 1870, however, an Act (Act 27 of 1870) was passed under the influence of Sir James
Stephen, then a Legal Member of the Council, which inserted in the IPC the substance of the
English Statute, 11 and 12 Vic, c 12. The sections inserted in the IPC by the Act referred to
are ss 121A and 124A. The former makes conspiracy to wage war an offence punishable with
imprisonment for life, and the latter, which was subsequently repealed and a fresh section
substituted by Act 4 of 1898, s 4 , punishes sedition in the same manner.

Contents of Chapter VI, Indian Penal Code 1860

The contents of Chapter VI, IPC may thus be analysed:

(1) Waging, or attempting to wage war, or ( Section 121 )

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 abetting waging of war, against the
Government of India

(a) By conspiracy ( Section 121A )

(i) Collection of arms ( Section 122 )

(b) By Aid

(ii) Concealment of design ( Section 123 )

(iii) Assaulting the various members of the Government of India or local governments:

(d) With the intent of compelling or stopping the exercise of their powers. ( Section
124 )

(e) The use of seditious language regarding the Government established in India.
( Section 124A )

(iii) In regard to Foreign Powers:

(iii) Waging War against an allied Asiatic Power. ( Section 125 )

(iv) Committing depredation on the territories of any friendly power. ( Section 126 )

(v) Receiving property taken by war on depredation. ( Section 127 )

(iii) Persons convicted of any of the above offences are state prisoners, or Prisoners of
War. The allowing, or the suffering, or the aiding of such prisoners to escape is
punishable respectively under ss 128 - 130 .

Chapter VI, IPC is, by no means, a comprehensive, or even adequate, codification of law
relating to treason, sedition and other kindred offences directed against the security and
integrity of the Union of India and of the states comprising the Union. This wide field,
however, is covered, to some extent, by a number of other Central Acts which are as follows:

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 (ii) The Foreign Recruiting Act 1874,

(b) The Indian Criminal Law (Amendment) Act 1908,

(4) The Official Secrets Act 1923,

(i) The Criminal Law (Amendment) Act 1938,

(ii) The Criminal Law (Amendment) Act 1961,

(iii) The Unlawful Activities (Prevention) Act 1967, and

(iv) The Prevention of Insults to National Honour Act 1971, etc.

S. 121. Waging, or attempting to wage war, or abetting waging of war, against the
Government of India.—

Whoever, wages war against the 6[Government of India], or attempts to wage such war, or
abets the waging of such war, shall be punished with death, or 7[imprisonment for life]
[and shall also be liable to fine].

[Illustration]

[* * *] A joins an insurrection against the [Government of India]. A has committed the

offence defined in this section.

Scope

Sections 121, 121A and 122, IPC specifically relate to offences against the state. While s
121 provides punishment for those engaged in waging of war against the Government of
India, the other two sections relate to conspiracy and preparation to commit such offence
by collecting arms, etc., respectively. Sections 121 - 124A deal with offences against
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the security of the state. Of these, s 121 deals with the highest form of treason, which is
punishable with death or imprisonment for life and also fine. What is punishable under
this section is not only the actual waging of war against the Government of India, but also
attempting or abetting such war.

The Statute of Treason 1351, which superseded the rules of Common Law in England
restricted high treason to seven classes only. These seven classes as set out by Hale are as
follows:

(i) When a man doth compass of imagine the death of our Lord the King, or our
lady his Queen, or of their eldest son and heir; or

(ii) If a man do violate the King’s companion (i.e., consort) or the King’s eldest
daughter unmarried, or the wife of the King’s son and heir; or

(v) If a man do levy war against our Lord the King in his realm; or

(ii) Be adherent to the King’s enemies in his realm, giving them aid and comfort
in the realm or elsewhere, and thereof be provably attained of open deed by
the people of their condition; and

(iii) If a man counterfeits the King’s great or privy seal, or his money; and

(f) If a man brings false money into this realm counterfeit to the money of
England…knowing the money to be false, to merchandise or make payment
in deceit of our Lord the King and of his people; and

(vi) If a man slays the Chancellor, Treasurer, or the King’s Justices of the one
Bench or the other, Justice in Eyre, (an itinerant judge riding the circuit to
hold court in the different counties) or Justices of Assise, and all other Justices
assigned to hear and determine, being in their places doing their offices.

Of these the first two were omitted in India as it was considered unlikely for the king to
visit India. Offences (v) and (vi) above cannot be said to be treason in the proper sense
and have been relegated to Chapter XII of the IPC. The seventh is only applicable to the

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Chancellor, Treasurers and the king’s judges in England. The remaining two are the only
high treasons which have been incorporated and enacted in India but in a modified form.

The fundamental characteristics of high treason was the betrayal of the faith and
allegiance which were due from a subject to his sovereign as the supreme head of the
state.18 Every citizen is entitled to claim the protection of the state and for that reason, has
the corresponding duty of allegiance to the state. Allegiance follows protection as a
matter of course.

This section is remarkable for the fact that it specifically provides for the offence of
abetment of waging war. Under expln 2 of s 108, the offence of abetment is constituted
even when the act abetted is not committed and, as was pointed out in Emperor v Ganesh
Damodar Savarkar , while under the general law as to abetment a distinction is made for
the purposes of punishment between abetment which has succeeded and abetment which
has failed, s 121 does away with that distinction and deals equally with an abettor whose
instigation has led to a war and one whose instigation had no effect whatsoever. Another
unusual feature is that by virtue of the provisions of s 94 of the IPC, compulsion is not a
defence to a charge under s 121, although it might well, according to the circumstances,
operate in mitigation of

Concept of War in the Section

War, terrorism and violent acts to overawe the established Government have many things
in common. It is not too easy to distinguish them, but one thing is certain, the concept of
war imbedded in s 121 is not to be understood in international law sense of inter-country
war involving military operations by and between two or more hostile countries. Section
121 is not meant to punish prisoners of war of a belligerent nation. Apart from the
legislative history of the provision and the understanding of the expression by various
High Courts during the pre-independence days, the illustration to s 121 itself makes it
clear that ‘war’ contemplated by s 121 is not conventional warfare between two nations.

The concept of war in s 121 which includes insurrection or a civilian uprising should not
be understood in the sense of conventional war between two nations or sovereign entities.
The normative phenomenon of war as understood in international sense does not fit into
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the ambit and reach of s 121.

Meaning of the Term ‘Waging War’

The expression ‘waging war’ means and can only mean waging war in the manner usual
in war. The draft of the IPC as prepared in 1837 received careful and elaborate revision at
the hands of the first Legislative Council of the Governor-General which was established
by the East India Company Act 1853, and in 1860, after the passing of the Government of
India Act 1858, (which transferred the Government of East India Company’s territories to
the Crown) the Code as revised became law, the words ‘the Queen’ (or ‘the Sovereign for
the time being of the United Kingdom of Great Britain and Ireland’, s 13 ) being
substituted in s 121 for the words ‘the Government of any part of the territories of the
East India Company’ which appeared in the corresponding s 109 of the draft IPC. It will
be observed that like the latter section, s 121 is confined to waging war, in the sense
above explained, and the Code nowhere expressly provides for acts of violence directed
against the person of the sovereign.

The words ‘wages war’ in s 121 are synonymous with ‘levying war’ in the Statute, 25
Edward, 3 c 2, which offence is declared to be treason; and the meaning of these words
has long been settled, although their full significance is seldom understood. In Barindra
Kumar Ghosh v Emperor , Jenkins CJ, observed:

It is argued on behalf of the Crown that it was intended by the framers of the Indian
Penal Code to reproduce the English Law of Treason in its entirety, that is to say, not
only the Statute Law, but also the interpretation placed on it by the cases. But anyone
who has studied the history of section 121, which was a part of the law of the land
before its incorporation in the Indian Penal Code, and the literature on the subject,
must know that this was not the intention of those who framed the provisions.

Principles on Waging War

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 Reviewing the earlier authorities, a Division Bench of the Nagpur High Court
observed:349

From these authorities the following principles emerge:

1. No specific number of persons is necessary to constitute an offence under s 121,

Penal Code.

2. The number concerned and the manner in which they are equipped or armed are not
material.

3. The true criterion is quo animo, (With what intention or motive) i.e., did the

gathering assemble?

4. The object of the gathering must be to attain by force and violence an object of a
general public nature, thereby striking directly against the government’s authority.

5. There is no distinction between principal and accessory and all who take part in the
unlawful act incur the same guilt.

Terrorist Act

It has been aptly said by Sir J F Stephen:

Unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which
run into each other and not capable of being marked off by perfectly definite boundaries.
All of them have in common one feature, namely, that the normal tranquility of a civilised
society is, in each of the cases mentioned, disturbed either by actual force or at least by
the show and threat of it.350

To this list has to be added ‘terrorist acts’ which are so conspicuous now-a-days. Though
every terrorist act does not amount to waging war, certain terrorist acts can also constitute the
349
Maganlal Radhakishan v Emperor AIR 1946 Nag 173
350
State (NCT of Delhi) v Navjot Sandhu AIR 2005 SC 3820
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offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest
themselves into acts of war. Terrorist acts prompted by an intention to strike at the sovereign
authority of the State/Government, tantamount to waging war irrespective of the number
involved or the force employed.

Terrorist’s Attack on Parliament is Waging War against the Government

In State (NCT of Delhi) v Navjot Sandhu , the Apex Court held:

The single most important factor which impels us to think that this is a case of
waging or attempting to wage war against the Government of India is the target of
attack chosen by the slain terrorists and conspirators and the immediate objective
sought to be achieved thereby. The battle-front selected was the Parliament House
Complex. The target chosen was the Parliament - a symbol of sovereignty of the
Indian republic. Comprised of peoples’ representatives, this supreme law-making
body steers the destinies of vast multitude of Indian people. It is a constitutional
repository of sovereign power that collectively belongs to the people of India. The
executive Government through the Council of Ministers is accountable to Parliament.
Parliamentary democracy is a basic and inalienable feature of the Constitution.
Entering the Parliament House with sophisticated arms and powerful explosives with
a view to lay a siege of that building at a time when members of Parliament, members
of Council of Ministers, high officials and dignitaries of the Government of India
gathered to transact Parliamentary business, with the obvious idea of imperiling their
safety and destabilising the functioning of Government and in that process, venturing
to engage the security forces guarding the Parliament in armed combat, amounts by
all reasonable perceptions of law and common sense, to waging war against the
Government. The whole of this well planned operation is to strike directly at the
sovereign authority and integrity of our Republic of which the Government of India is
an integral component. The attempted attack on the Parliament is an undoubted
invasion of the sovereign attribute of the State including the Government of India
which is its alter ego. The attack of this nature cannot be viewed on the same footing
as a terrorist attack on some public office building or an incident resulting in the
breach of public tranquility. The deceased terrorists were roused and impelled to
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 action by a strong anti-Indian feeling as the writings on the fake Home Ministry
sticker found on the car (Ext. PW 1/8) reveals. The huge and powerful explosives,
sophisticated arms and ammunition carried by the slain terrorists who were to indulge
in ‘Fidayeen’ operations with a definite purpose in view, is a clear indicator of the
grave danger in store for the inmates of the House. The planned operations if
executed, would have spelt disaster to the whole nation. A war-like situation lingering
for days or weeks would have prevailed. Such offensive acts of unimaginable
description and devastation would have posed a challenge to the Government and the
democratic institutions for the protection of which the Government of the day stands.
To underestimate it as a mere desperate act of a small group of persons who were
sure to meet death, is to ignore the obvious realities and to stultify the wider
connotation of the expression of ‘war’ chosen by the drafters of IPC. The target, the
obvious objective which has political and public dimensions and the modus operandi
adopted by the hard-core ‘Fidayeens’ are all demonstrative of the intention of
launching a war against the Government of India.

When an attack on the Parliament was planned, the executors of the plan should have
envisaged that they will encounter resistance from the police and other armed security
personnel deployed on duty, fairly in large numbers, at the Parliament complex. The slain
terrorists and other conspirators should have necessarily aimed at overpowering or killing
the armed personnel who would naturally come in their way. Inflicting casualties on the
police and security personnel on duty as well as civilians, if necessary, would have been
part of the design and planning of these hard-core terrorists and the criminal conspirators.
It is not necessary that in order to constitute the offence of waging war, military or other
forces should have been the direct target of attack. There is no such hard and fast rule and
nothing was said to that effect in the long line of cases referred to supra. The act laying
siege of Parliament House or such other act of grave consequences to the Government
and the people is much more reflective of the intention to wage war rather than an attack
launched against a battalion of armed men guarding the border or vital installations. 54
Thus, the criminal acts done by the deceased terrorists in order to capture the Parliament
House is an act that amounts to waging or attempting to wage war

Distinction between Riot and Waging War

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It is sometimes a matter of difficulty to say whether there has been a levying or waging of
war or merely a riot of a serious kind. ‘Rioting’ is defined in s 146, IPC, and the test to
determine ‘whether a body of persons are rioters or rebels is quo animo, i.e., did the
parties assemble?

Although the offence of waging war against the government and committing a riot may
often run into each other, the distinction between them is clear. Where the rioting or
tumult is merely to accomplish some private purpose interesting only to those engaged in
it, not resisting or calling in question the state’s authority or prerogative, then the tumult,
however, numerous or outrageous the mob may be, is only a riot. But wherever the rising
or insurrection has for its object a general purpose, not confined to the peculiar interests
of the persons concerned in it, but common to the whole community, and striking directly
against the state’s authority, then it assumes the character of treason. The numbers
concerned and the manner in which they were equipped or armed, are not material.

Prima facie, persons who attack a police station are guilty of rioting, and if the state
charges them instead with waging war against the government, it is incumbent upon it to
show that there is an insurrection and not a riot, and that insurrection is for the
accomplishment of an object of a general nature.

Under s 39 of the Crpc, every person aware of the commission of, or of the intention of
any other person to commit, an offence punishable under ss 121 - 126, or 130, IPC must,
in the absence of a reasonable excuse, give information thereof to the nearest magistrate
or police officer. ‘Offence’ in s 39 includes any act committed at any place out of India
which would constitute an offence if committed in India. Omitting to so report may
amount to abetment by aiding under cl 3 of s 107. But that clause relates only to
intentional aiding. Where it is not proved that the accused’s intention in omitting to report
a plot, under s 39 of the Crpc, was with a view to aiding the waging war, the accused
cannot be convicted of the offence of abetment of waging war. If a conspirator has
formed the intention to leave a conspiracy and ceases to be a conspirator by his own act
and intention when the other conspirators wage war, he cannot be held guilty under s 121
of the IPC.
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S. 121A. Conspiracy to commit offences punishable by Section 121 .—

Whoever within or without 84[India] conspires to commit any of the offences punishable
by section 121,85[* * *] or conspires to overawe, by means of criminal force or the show
of criminal force, 86[the Central Government or any 87[State] Government 88[* * *], shall
be punished with 89[imprisonment for life], or with imprisonment of either description
which may extend to ten years, 90[and shall also be liable to fine].

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

Marginal Note to the Section

The marginal note to this section is ‘conspiracy to commit offences punishable by s 121,
IPC. This was a strictly accurate description of the section proposed to be enacted by the
bill originally introduced in the legislative council, as the conspiracies aimed at were
conspiracies either to wage war against the King in the manner in which it was usual to
wage war or conspiracies to raise an insurrection with the object of subverting the
constitution. The section, however, as it was finally enacted, brought within its scope
other conspiracies also, and the marginal note is, therefore, not a strictly accurate
description of what is contained in it. The words ‘conspires to overawe by means of
criminal force or the show of criminal force the Central Government or any state
government’ clearly embrace not merely a conspiracy to raise a general insurrection, but
also a conspiracy to overawe the Central or a state government, by the organisation of a
serious riot or a large and tumultuous unlawful assembly.

Two Kinds of Conspiracies Embraced

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The section, as it now stands, embraces two kinds of conspiracies: (a) conspiracies to
commit any of the offences punishable by s 121, and (b) conspiracies to overawe, by
means of criminal force or the show of criminal force, the Central or any State
Government.

The conspiracies dealt with in this section may be distinguished from criminal
conspiracies dealt with in ss 120A and 120B. In Mir Hasan Khan v State ,93 Shearer J,
(for self and Jamuar J) observed:

Section 121A occurs in a chapter of the Penal Code which is headed ‘Offences
against the State’, whereas the offence of conspiracy is contained in the preceding
chapter, Chapter VA which is headed ‘Criminal Conspiracy’. The Legislature in
enacting section 121A clearly had in mind the English Treason Felony Act of 1948
and I am very much inclined to think that, in enacting it, it did not aim at conspiracies
other than conspiracies which had a political object, that is, conspiracies to overthrow
the existing constitution or conspiracies to prevent the enactment of legislation which
was considered to be obnoxious or to compel the resignation of a member or
members of the Government who had become unpopular. As the Section stands,
however, I am not prepared to say that in certain circumstances persons who organise
a strike among policemen or certain other public or municipal employees might not
render themselves liable to prosecution under it. Clearly, however, persons do not
commit this crime unless it was part and parcel of their plans to overawe the Central
or the Provincial Government by criminal force or show of criminal force.

Conspiracy itself is a Crime

It is elementary but it is usual to state that under the law as contained in this section
conspiracy in itself is a crime and it is not necessary to establish any illegal act or illegal
omission as overt acts of the conspiracy, the existence of which has to be established. The
illegal act or omission, if established, supports the case of the existence of the conspiracy;
the offence being complete even though two persons conspiring together go no further
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than the original agreement.1The offence of criminal conspiracy is complete as soon as
two or more persons agree to do or cause to be done an illegal act, or an act which is not
illegal, by illegal means. It is immaterial whether the illegal act is the ultimate object of
such an agreement or is merely incidental to that object. For the purpose of s 121A, IPC,
it is not necessary that any act or illegal omission shall take place in pursuance of the
conspiracy. The agreement in itself is enough to constitute the offence. The provisions of
law are very comprehensive and do not require any formidable elements either in men or
means to satisfy its definition of a conspiracy to wage war. For the conspiracy no act or
illegal omission is necessary, the agreement of two or more will suffice, so that the
determination of the court that a conspiracy to wage war has been established does not
imply as its terms might suggest, the existence of a serious menace to the Constitution or
the stability of the constituted authority in India.

The same person may be guilty under s 121A as well as s 123, IPC; for instance, a person
may bring himself within the latter section by concealment of the existence of a design to
wage war against the government, and may immediately afterwards join in the conspiracy
to wage the war and thereby bring himself within the scope of s 121A. To act as carrier is
sometimes enough

‘To Overawe by Means of Criminal Force’

This section applies not only to a conspiracy to wage war against the Government of
India, but also to overawe, by means of criminal force or the show of criminal force, the
Central Government or any state government. 11 The word ‘overawe’ clearly imports more
than the creation of apprehension or alarm or fear. It connotes the creation of a situation
in which the government is compelled to choose between yielding to force or exposing
the government or the members of the public to a very serious danger. Therefore a
procession by a few youngsters shouting slogans to the effect that only by an armed
revolution, the government of the people can be established would not, by itself, create
any public disturbance.

Criminal Force Considered

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Where a large number of police havaldars and constables conspired to withhold their
services with the object of compelling the State Government to yield to their demands and
the conspirators seized the armouries and took possession of the arms and ammunition,
(though they remained peacefully in the police lines and did nothing to intimidate the
general body of citizens) but took steps to ensure that the working of the treasury should
not be interrupted, it was held that it could not fairly be said that there was any such show
of criminal force as is contemplated by this section.

Punishment

Sections 121, 121A and 122, IPC specifically relate to offences against the state. While s
121 provides for punishment for those engaged in waging war against the Government of
India, the other two sections relate to conspiracy and preparation to commit such offence
by collecting arms etc., respectively. In awarding sentence, the prevention of crime, the
protection of the state, the society and the public, as also the reformation of the offender,
have to be kept in view. It has been felt that in the case of political offences, arising out of
beliefs of the accused, severe sentences defeat their object, but a distinction must be
drawn between political offences of the nature of sedition or spread of ideas of
communism and socialism charged under s 121A, IPC, and offences against the state and
society involving treason, armed rebellion and murder, in connection with which the
name of politics is used. The sentence passed in a case which is required to be a deterrent
must be in proportion to the gravity of the offence committed, and if the offence
committed was one of the most serious against the state, the court has to keep in view the
ends of justice as provided by law, in the matter of conviction of the accused placed on
trial, as also in the matter of sentence passed on him commensurate with the nature of the
offence committed. Where many of the accused are misdirected persons in the prime of
their youth and their guilt as members of the conspiracy has not been of the same
description, regard being had to the part actually played by them, different sentences are
called for in the case of each so far as the nature of his guilt is concerned. The theory of
punishment is based upon (a) the protection of the public, (b) the prevention of crime, and
(c) the reformation of the offender. In the case of political offences, arising out of the
beliefs of the accused, severe sentences in practice confirm the offenders in their beliefs

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 and create other offenders, thus increasing the evil and the danger to the public. 27 The
maximum punishment that can be imposed under this section, when the offence as well as
its gravity is established, is imprisonment for life.

S. 122. Collecting arms, etc., with intention of waging war against the Government of
India.—

Whoever collects men, arms or ammunition or otherwise prepares to wage war with the
intention of either waging or being prepared to wage war against the 32[Government of
India], shall be punished with 33
[imprisonment for life] or imprisonment of either
description for a term not exceeding ten years, [and shall also be liable to fine].
34

Scope

Sections 121, 121A and 122, IPC specifically relate to offences against the state. While s
121 provides for punishment to those engaged in waging war against Government of
India, ss 121A and 122 relate to conspiracy and preparation to commit such offence by
collecting arms, etc., respectively.35 The acts, made punishable by s 122, are those which
amount to preparation to wage war. Preparation is a stage prior to attempt. This section
and ss 126 and 399 make preparation to commit an offence punishable. In other cases
mere preparation to commit an offence is not punishable.

Accused Pakistani nationals who had intruded into the Indian territory, were arrested by
the members of the Boarder Security Forces, and arms and ammunitions were recovered
from their possession. Plea of the accused that they were fishermen was found false. Their

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conviction under s s 121, 121A, 122 and 123, IPC was held proper. (State of Gujarat v
Jaman Haji Mamad Jat 2007 Cr LJ 1584 (Guj) (DB).)

Ingredients

The ingredients required to be proved for an act to constitute an offence under s 122 are:
(i) there must be a collection of men, arms or ammunition; (ii) such a collection should be
with the intention of either waging war or being prepared to wage a war; (iii) the
participation of the accused in such a collection; and (iv) the war is to be waged against
the Government of India. (Javed alias Java Ahmed Mohammed Akbar Bhatt & others v
State of Maharashtra (2007) Cr LJ 1386 (Bom) (DB).)

In the instant case the accused appellants had collected themselves in a room and from
that room arms, ammunitions and print publication was seized. There was no evidence at
all that these four appellants had organized a movement or were part of a movement,
attended with violence or attacks against public officials. Nor was there any proof that
they had collected the arms with a view to destruct public property, etc. Therefore charge
under s 122, IPC was held not proved in the case.38 Javed alias Java Ahmed Mohammed
Akbar Bhatt & others v State of Maharashtra (2007) Cr LJ 1386 (Bom) (DB)

‘Preparation’ Distinguished from ‘Attempt’

Preparation consists in devising or arranging the means or measures necessary for the
commission of the offence; the attempt is the direct movement towards commission after
the preparation has been made. There is a greater degree of determination in an ‘attempt’
as compared with a ‘preparation’. Mere intention, not followed by any act, cannot
constitute an offence, and an indirect preparation, which does not amount to an act which
amounts to a commencement of the offence, does not constitute either a principal offence,
or an attempt or abetment of the same. There is no sharp clear-cut distinction between the
two. One fades into the other and the dividing line can only be decided with reference to
the facts of each particular case.
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 Presumption under Section 111A of Indian Evidence Act

Under s 111A of the Indian Evidence Act 1872, a presumption can be drawn against a
person who is accused of having committed an offence punishable under s 122 of the IPC.
It can be presumed that a person charged under s 122 of the IPC, is guilty if it is shown
that he had been in an area declared to be a disturbed area and where firearms or
explosives were used or found to attack or resist the numbers of any armed forces or
forces charged with the maintenance of public order, while discharging of their duties.

S. 123. Concealing with intent to facilitate design to wage war.—

Whoever, by any act, or by any illegal omission, conceals the existence of a design to
wage war against the [Government of India], intending by such concealment to facilitate,
or knowing it to be likely that such concealment will facilitate, the waging of such war,
shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.

Scope

This section is an adaptation of the principles of s s 118, 119 and 120, IPC with a view to
facilitate the waging of war. Commentary under those sections may be referred to.

Offence under s 123, IPC in relation to a charge under s 121, IPC is a minor offence, and
the accused can be convicted under s 123, IPC even in the absence of a charge. (Shaukat
Hussain Guru v State (NCT) Delhi 2008 Cr LJ 3016 (SC), AIR 2008 SC 2419)

Accused Pakistani nationals had intruded into the Indian territory, and were arrested by
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 the members of the Boarder Security Forces, and arms and ammunitions were recovered
from their possession. Plea of the accused that they were fishermen was found false. Their
conviction under s s 121, 121A, 122 and 123, IPC was held proper. (State of Gujarat v
Jaman Haji Mamad Jat 2007 Cr LJ 1584 (Guj) (DB).)

Proof

To establish the charge under this section the following points should be proved in
evidence:

(i) The existence of a design to wage war.

(ii) The accused’s knowledge of such design.

(vi) The fact of its concealment by means of an act or illegal omission.

(ii) The intent with which the design was concealed.

S. 124. Assaulting President, Governor, etc., with intent to compel or restrain the
exercise of any lawful power.—

Whoever, with the intention of inducing or compelling the 53[President] of India, or the
54
[Governor 55[* * *]] of any 56[State], 57[* * *] 58[* * *] 59[* * *] to exercise or refrain
from exercising in any manner any of the lawful powers of such [President] or
60

61
[Governor 62[* * *]], assault or wrongfully restrains, or attempts wrongfully to restrain,
or overawes, by means of criminal force or the show of criminal force, or attempt so to
overawe, such 63[President or 64[Governor, 65[* * *]],

shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

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 Scope

This section is an enlargement of the latter portion of s 121A, IPC and imposes a deterrent
punishment for assaults, wrongful restraints etc., to overawe the President or the
Governor of any state to exercise or restrain from exercising their lawful, official and
constitutional powers.

Proof

To prove a charge under this section the following points have to be proved:

(i) the accused committed one or other of the acts specified;

(ii) the person against whom the offence was committed was the person known under
the name or title by which he is described in the section;

(vii) the object with which the act in question was committed. Substituted by the
AO 1950, for ‘Governor General’.

[S. 124A. Sedition.—

Whoever, by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards, 67[* * *] the Government established by law in 68[India], 69[*
* *] shall be punished with 70[imprisonment for life], to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine.

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

enmity.

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Explanation 2.— Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offence under
this section.

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

action of the government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.]

Scope

This section defines, and prescribes punishment for the offence called ‘sedition’. The
word ‘sedition’ did not occur anywhere in the old section enacted in 1870. Even in the
present section, the word is found only in the marginal note, which is not an operative
part of the section, but merely provides the name by which the crime defined in the
section will be known.

To understand correctly the precise scope of s 124A, IPC, it is necessary to bear in mind
that this section, together with s 121A, IPC, was avowedly (admittedly) inserted in
Chapter VI of the IPC, relating to offences against the state, with a view to fill up an
inadvertent omission of a special provision for the punishment of the offence of abetment
of rebellion. In the words of Sir Fitz James Stephen, it was felt that as the causes which
produce rebellion are wide, and spread over a longer period, a wider definition of
abetment in the case of rebellion was necessary than sufficed in the case of theft or
murder. In giving effect to this view, the principles of the English statute and common
law were followed, and the section, as originally drafted by the Indian Law
Commissioners in 1837, was finally incorporated in the Code in 1870, as substantially

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representing the law of England of the present day ‘though much more compressed and
more distinctly expressed’.

So construed, the scope of the section has been stated by their Lordships of the Supreme
Court: (Kedar Nath Singh v State of Bihar AIR 1962 SC 955 )

The section, it must be noted, penalises any spoken or written words or signs or
visible representations, etc., which have the effect of bringing or which attempt to
bring into hatred or contempt or excites or attempts to excite (motivate) disaffection
towards the Government established by law. Now, the expression ‘the Government
established by law’ has to be distinguished from the persons for the time being
engaged in carrying on the administration. ‘Government established by law’ is the
visible symbol of the state. The very existence of the state will be in jeopardy if the
Government established by law is subverted. Hence, the continued existence of the
Government established by law is an essential condition of the stability of the state.
That is why ‘sedition’, as the offence in s 124A has been characterised, comes under
Chapter 6 relating to offences against the state. Hence, any acts within the meaning of
s 124A which have the effect of subverting the Government by bringing that
Government into contempt or hatred, or creating disaffection against it, would be
within the penal statute because the feeling of disloyalty to the Government
established by law or enmity to it imports the idea of tendency to public disorder by
the use of actual violence or incitement to violence. In other words, any written or
spoken words, etc., which have implicit in them the idea of subverting Government
by violent means, which are compendiously included in the term ‘revolution’, have
been made penal by the section in question. But the section has taken care to indicate
clearly that strong words used to express disapprobation of the measures of
Government with a view to their improvement or alteration by lawful means would
not come within the section. Similarly, comments, however strongly worded,
expressing disapprobation of actions of the Government, without exciting those
feelings which generate the inclination to cause public disorder by acts of violence,
would not be penal. In other words, disloyalty to Government established by law is
not the same thing as commenting in strong terms upon the measures or acts of

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 Government, or its agencies, so as to ameliorate the condition of the people or to
secure the cancellation or alteration of those acts or measures by lawful means, that is
to say, without exciting those feelings of enmity and disloyalty which imply
excitement to public disorder or the use of violence…A citizen has a right to say or
write whatever he likes about the Government, or its measures, by way of criticism or
comment, so long as he does not incite people to violence against the Government
established by law or with the intention of creating public disorder. The provisions of
the sections read as a whole, along with the explanations, make it reasonably clear
that the sections aim at rendering penal only such activities as would be intended, or
have a tendency, to create disorder or disturbance of public peace by resort to
violence. As already pointed out the explanations appended to the main body of the
section make it clear that criticism of public measures or comment on Government
action, however strongly worded, would be within reasonable limits and would be
consistent with the fundamental right of freedom of speech and expression. It is only
when the words written or spoken, etc., which have the pernicious tendency or
intention of creating public disorder or disturbance of law and order that the law steps
in to prevent such activities in the interest of public order. So construed, the section,
strikes the correct balance between individual fundamental rights and the interest of
public order.

Scope of the Section is Restricted

Criticising the present judicial set up or functioning of the Parliament or legislative

assemblies cannot be considered as bringing into hatred or contempt or exciting or
attempting to excite disaffection towards the government established by law. Nor are the
slogans alleged to have been shouted by the petitioners capable of inciting any class or
community of persons to commit any offence. Seldom a day has passed in the state in the
last three decades when such or similar slogans have not been shouted in one or other part
of the state. The scope of s 124A of the IPC is restricted to cases in which the search,
writing or other activity of the accused is prejudicial to public order or public security as
it is only in such cases that it can be said that the attack is directed against the government
established by law. The approach to the question whether any action brings into hatred or

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contempt or excites disaffection towards the government should be in the following way.
First, the true meaning of the words, the innuendo they convey and the convert meaning,
if any, they have, to be gathered. Secondly, their probable or natural effect has to be seen.
In other words, whether they are calculated to produce the result, i.e., hatred, contempt or
disaffection towards the government. Thirdly, if they do, the intention of the author of the
words to produce that result has to be ascertained. The provisions of s 124A, IPC should
be limited, in its application, to acts involving an intention or tendency to create disorder
or disturbance of law and order or incitement to violence. The ventilation of grievances
against officers by means of articles, pamphlets or by demonstrations would not fall
within the mischief of s 505(1)(c), IPC. Shouting slogans for a classless society or against
the privilege or for establishment of socialism will not come within the mischief of the
provisions. (Alvi v State of Kerala (1982) KLT 205.)

Analogous Law
Apart from English law, we have in Indian law itself, several provisions which are
analogous to this section. Thus, s 4(1)(c) of the Indian Press Act 1910, has its analogy in s
s 124A and 153A of IPC, although the language is not precisely the same. (Annie Besant v
Advocate-General of Madras AIR 1919 PC 31)

Section 4(1)(d) of Press (Emergency Powers) Act 1931, cl 6(e) of r 34 of the Defence of
India Rules 1939, and r 35(6)(e) of the Defence of India Rules 1962,77 may be quoted as
other similar provisions with not much material distinction.

History of the Section and its Amendments

Section 113 originally drafted in Macaulay’s Draft Penal Code of 1837-39 was the
section corresponding to this section. By some curious omission it seems to have dropped
out of the Code as finally passed in 1860. It was adopted with some verbal alteration by
Sir James Stephen, and added to the Code by s 5 of the Act 27 of 1870, ‘as substantial
representation the law of England of the present day, though much more compressed and
more distinctly expressed’. The section as then enacted ran thus:

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 124A. Exciting Disaffection.— Whoever by words, either spoken or intended to be
read, or by signs, or by visible representation, or otherwise, excites, or attempts to
excite, feelings of disaffection to the Government established by law in British India,
shall be punished with transportation for life or for any term, to which fine may be
added, or with imprisonment for a term which may extend to three years, to which
fine may be added, or with fine.

Explanation.— Such a disapprobation of the measures of the Government as is

compatible with a disposition to render obedience to the lawful authority of the
Government, and to support the lawful authority of the Government, against unlawful
attempts to subvert or resist the authority, is not disaffection. Therefore, the making
of comments on the methods of the Government, with the intention of exciting only
this species of disapprobation, is not an offence within this clause.

The said section was replaced by a new section in 1898 which was also subsequently
amended from time to time as indicated in the footnotes.

Notable Cases of Revolutionaries and Nationalist Leaders

This section as enacted in 1870 remained in force till the 18 February 1898. During this
period there were several notable cases under it in which the meaning of the word
‘disaffection’ in the section was much discussed.
Queen-Empress v Jogendra Chunder Bose 19 ILR Cal 35

(a) Jogendra Chander Bose’s Case

In what is known as the Bangobasi case, while charging the jury, Sir Comer Petheram CJ,
explained the law to the jury in these terms:

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 Disaffection means a feeling contrary to affection, in other words, dislike or hatred.
Disapprobation means simply disapproval. It is quite possible to disapprove of a
man’s sentiments or action and yet to like him. The meaning of the two words is so
distinct that I felt it hardly necessary to tell you that the contention of Mr Jackson
cannot be sustained. If a person uses either spoken or written words calculated to
create in the minds of the persons to whom they are addressed a disposition not to
obey the lawful authority of the Government, or to subvert or resist that authority, if
and when occasion should arise, and if he does so with the intention of creating such
a disposition in his hearers or readers, he will be guilty of the offence of attempting to
excite disaffection within the meaning of the section, though no disturbance is
brought about by his words or any feeling of disaffection, in fact, produced by them.
It is sufficient for the purposes of the section that the words used are calculated to
excite feelings of ill-will against the Government and to hold it up to the hatred and
contempt of the people, and that they were used with the intention to create such
feelings.

(b) Bal Gangadhar Tilak’s Case

In Queen-Empress v Bal Gangadhar Tilak , 22 ILR Bom 112 Strachey J, in the course of
his charge to the jury, explained the law thus:

The offence as defined by the first clause is exciting or attempting to excite feelings
of disaffection to the Government. What are feelings of disaffection? I agree with Sir
Comer Petheram in Bangobasi case that disaffection means simply the absence of
affection. It means hatred, enmity, dislike, hostility, contempt and every form of ill-
will to the Government. ‘Disloyalty’ is perhaps the best general term, comprehending
every possible form of bad feeling to the Government. That is what the law means by
the disaffection which a man must not excite or attempt to excite; he must not make
or try to make others feel enmity of any kind towards the Government. You will
observe that the amount or intensity of the disaffection is absolutely immaterial
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 except perhaps in dealing with the question of punishment. If a man excites or
attempts to excite feeling of disaffection, great or small, he is guilty under the section.
In the next place, it is absolutely immaterial whether any feelings of disaffection have
been excited or not by the publication in question…You will observe that the section
places on absolutely the same footing, the successful exciting of feelings of
disaffection and the unsuccessful attempt to excite them, so that, if you find either of
the prisoners has tried to excite such feelings in others, you must convict him even if
there is nothing to show that he succeeded. Again, it is important that you should
fully realise another point. The offence consists in exciting or attempting to excite in
others certain bad feelings towards the Government. It is not the exciting or
attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or
small. Whether any disturbance or outbreak was caused by these articles, is
absolutely immaterial. If the accused intended by the articles to excite rebellion or
disturbance, his act would doubtless fall within s 124A, and would probably fall
within other sections of the Penal Code. But even if he neither excited nor intended to
excite any rebellion or outbreak or forcible resistance to the authority of the
Government, still if he tried to excite feelings of enmity to the Government, that is
sufficient to make him guilty under the section. I am aware that some distinguished
persons have thought that there can be no offence against the section unless the
accused either counsels or suggests rebellion or forcible resistance to the
Government. In my opinion, that view is absolutely opposed to the express words of
the section itself, which as plainly as possible makes the exciting or attempting to
excite certain feelings, and not the inducing or attempting to induce to any course of
action such as rebellion or forcible resistance, the test of guilt. I can only account for
such a view by attributing it to a complete misreading of the explanation attached to
the section, and to a misapplication of the explanation beyond its true scope.

On an application for leave to appeal to the Privy Council, a Full Bench of the Bombay
High Court refusing leave, observed:

The major ground [on which a certificate of fitness for appeal was asked] was that the
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 section cannot be said to have been contravened unless there is a direct incitement to
stir up disorder or rebellion. That appears to us to be going much beyond the words of
the section, and we need not say more upon that ground. The first of the minor points
is that Mr Justice Starchey in summing up the case to the jury stated that disaffection
meant the absence of affection. But although if that phrase had stood alone it might
have misled the jury, yet taken in connection with the context we think it is
impossible that the jury could have been misled by it. That expression was used in
connection with the law as laid down by the Sir Comer Petheram in Calcutta in the
Bangabasi case. There the Chief Justice instead of using the words ‘absence of
affection’ used the words ‘contrary to affection’. If the words contrary to affection
had been used instead of absence of affection in this case there can be no doubt that
the summing up would have been absolutely correct in this particular case. But taken
in connection with the context it is clear that by the words ‘absence of affection’ the
learned Judge did not mean the negation of affection, but some active sentiment on
the other side. Therefore, on that point we consider that we cannot certify that this is a
fit case for appeal.

On a further application for special leave to appeal to the Judicial Committee, the Lord
Chancellor, delivering the opinion of the Judicial Committee, while dismissing the
application, observed that taking a view of the whole of the summing up they did not see
any reason to dissent from it.

(c) Ramchandra Narayan’s Case

Again in Queen-Empress v Ramchandra Narayan , 22 ILR Bom 152 (FB). a Full Bench
of the Bombay High Court consisting of Farran CJ, and Parsons and Ranade JJ, had laid it
down that the word ‘disaffection’ in the section is used in a special sense as meaning
political alienation or discontent or disloyalty to the government or existing authority.
They also held that the meaning of the word ‘disaffection’ in the main portion of the
section was not varied by the explanation. Parsons J, held that the word ‘disaffection’
could not be construed as meaning absence of or contrary to affection or love. Ranade J,
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interpreted the word ‘disaffection’ not as meaning mere absence or negation of love or
goodwill but a positive feeling of aversion, which is akin to ill-will, a definite
insubordination of authority or seeking to alienate the people and weaken the bond of
allegiance, a feeling which tends to bring the government into hatred and discontent, by
imputing base and corrupt motives to it.

(d) Amba Prasad’s Full Bench Case

These decisions were reviewed by a Full Bench of the Allahabad High Court in Queen-
Empress v Amba Prasad , in which Edge CJ, who delivered the judgment of the court,
while generally adopting the reasons for the decisions in the Bangobasi case and the case
of Bal Gangadhar Tilak, observed that a man may be guilty of the offence defined in s
124A of attempting to excite feelings of disaffection against the government established
by law, although in a particular article or speech he may insist upon the desirability or
expediency of obeying and supporting the government. Referring to the remarks made by
the judges in Queen-Empress v Ramchandra Narayan , it was pointed out that if these
remarks were meant to be in any sense different from the construction placed upon the
section by Starchey J, which was approved, as aforesaid, by the Judicial Committee of the
Privy Council, they could not be treated as authoritative.

Keeping these interpretations in view, the section was amended by the Indian Penal Code
(Amendment) Act 1898. The single explanation to the section was replaced by three
separate explanations as they now stand. The section, in its present form, is the result of
further amendments under several Adaptation Orders of 1937, 1948, 1950, 1951 and Act
26 of 1955.

The section inserted in 1898 differed from the old one as: (a) the ‘feeling’ in the former
was limited to one of ‘disaffection’, whilst under the new section it may be one of
‘hatred’, ‘contempt’, or ‘disaffection’, (b) the object of the ‘feeling’ under the former
section was ‘the government established by law in British India’ to which under the new
section had been added ‘Her Majesty’, and (c) the offence was termed ‘sedition’ instead
of ‘exciting disaffection’. It was however, held by the Privy Council in Emperor v
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Sadashiv Narayan Bhalerao , that the amendments in 1898 by the inclusion of ‘hatred or
contempt’ and the addition of explns 2 and 3 did not affect or alter the construction of the
section laid down in Tilak’s case.

Principle Underlying the Section—Balance Between Fundamental Rights and

Interest of Public Order

This section, which occurs in Chapter VI ‘Offences against the state’, is based upon the
principle that every state, whatever its form of government, has to be armed with the
power to punish those who, by their conduct, jeopardize the safety and stability of the
state, or disseminate such feelings of disloyalty as have the tendency to lead to disruption
of the state or to public disorder. The security of the state, which depends upon the
maintenance of law and order, is the very basic consideration upon which legislation,
with a view to punishing offences against the state, is undertaken. At the same time, such
a legislation has to protect and guarantee the freedom of speech and expression which is
the sine qua non of every democratic form of government such as we have in India. 8
Explanations 2 and 3 appended to the section are based upon this principle. Properly
construed, this section strikes the correct balance between individual fundamental rights
and the interest of public order.

With reference to s 4(1) of the Indian Press Act 1910, which is analogous to s s 124A and
153A of IPC, in Annie Besant v Advocate-General of Madras , their Lordships of the
Privy Council observed:

The balancing of important political considerations which is effected by adding

Explanation 2 to the enacting words, which are found in the earlier part of the section
has its analogy in sections 124A and 153A of the Indian Penal Code. The language is
not precisely the same, but there is the same delicate balancing of two important
public consideration, the undesirability of anything tending to excite sedition or to
excite strife between classes and the undesirability of preventing any bona fide
argument for reform.

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Acts Constitute Sedition only if they Incite Violence or Disturb Law and Order or
Create Public Disorder, etc.

The security of the state and organised government are the very foundations of freedom
of speech and expression which maintains the opportunity for free political discussion to
the end that government may be responsive to the will of the people and it is, therefore,
essential that the end should not be lost sight of in an over-emphasis of the means. The
protection of freedom of speech and expression should not be carried to an extent where it
may be permitted to disturb law and order or create public disorder with a view to
subverting government established by law. It is, therefore, necessary to strike a proper
balance between the competing claims of freedom of speech and security of the state.
This balance has been found by the legislature in the enactment of s 124A, IPC which
defines the offence of sedition for our country. The interpretation of s 124A has over the
years gone through various vicissitudes and changes. It must, however, be now taken as
well settled that words, deeds or writings constitute sedition punishable under s 124A
only if they incite violence or disturb law and order or create public disorder or
have the intention or tendency to do so. It is in the light of this interpretation of s 124A
that the court has to determine whether objected passages constitute seditious matter
punishable under s 124A.21

Demand for a separate State e.g. Khalistan without breach of violence is not
punishable. FIR was quashed. Kanwar Pal Singh v State of Punjab 2012 (119) AIC
948 (P&H).

Section 124A is not ancillary to s 124. The offences under ss 124A and 153A are distinct
offences.

Allegation of Sedition on the basis of articles, Pamphlets and Letters

A mere criticism or denunciation of the government established by law is not

objectionable. Citizens are certainly entitled to express their grievances and to
endeavour to get them redressed through lawful means. However, if these attempts or

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 exhortations bring the established government or tend to bring it into hatred and
contempt, they certainly come within the ambit of sedition as stated in s 124A, IPC.
The test that should be applied is to find out whether any article or articles intend or
have the effect of creating feeling of hostility towards the government and to excite
disaffection. P Hemlatha v Govt of Andhra Pradesh (1976) 2 Andh WR 190 (FB).
Where an FIR was lodged under s 124A, IPC on the basis of a hindi pamphlet published
under the caption ‘Atrocities of Army on students’, it was held that the pamphlet did not
incite people to violence against Government and there was no intention of creating
public disorder. Whatever was said in the pamphlet amounted to nothing more than an
exercise of right guaranteed in sub-cl (a) of cl (1) of art 19 of the Constitution.
Proceedings before the trial court were accordingly quashed.

Where charges of conspiracy and sedition were framed on the basis of a letter recovered
during a search conducted on the person of the accused, it could not be said that the
charges were not justified as the accused were not the authors of the letters. Authorship of
seditious material alone is not the gist of any of the offences. Distribution and circulation
of seditious material may also be sufficient on the facts and the circumstances of a case.

Sections 124A and 153A

A plain reading of s 124A, IPC, would show that its application would be attracted only
when the accused brings or attempts to bring into hatred or contempt or excites or
attempts to excite disaffection towards the Government established by law in India, by
words either written or spoken or visible signs or representation, etc.

Section 153A, IPC provides for punishment for promoting enmity between groups on
grounds of religion, race, place of birth, residence, language, caste or community or any
other ground whatsoever or brings about dishonesty or feeling of hatred or ill-will
between different religions, races, language or regional groups or castes or communities.
It is only where the written or spoken words have the tendency or intention of creating
public disorder or disturbance of law and order or affect public tranquillity that the law
needs to step in to prevent such an activity. The intention to cause disorder or incite

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people to violence is the sine qua non of the offence under s 153A, IPC and the
prosecution has to prove the existence of mens rea in order to succeed.

Validity of the Section

Clause (1) of art 13 of the Constitution provides that all laws in force in the territory of
India immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be
void.

Article 19(1), which is in Pt III of the Constitution provides that all citizens shall have the
right, inter alia, (a) to freedom of speech and expression. Section 124A of the IPC,
undoubtedly places restrictions on the right to freedom of speech and expression, and
would, therefore, be void under art 13(1) unless saved by some other provision of the
Constitution. The only provision that could so save it is cl (2) of art 19 of the Constitution
which runs as follows:

Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law,
or prevent the state from making any law relating to libel, slander, defamation,
contempt of court or any matter which offends against decency or morality or which
undermines the security of, or tends to overthrow the State.

The scope of this clause came to be considered by the Supreme Court in two cases: (a)
Romesh Thapper v State of Madras , and (b) Brij Bhushan v State of Delhi . Delivering
the majority judgment in the former case, Patanjalli Sastri J, (as he then was) observed:

Deletion of the word ‘Sedition’ from the draft article 13(2) [corresponding to article
19(2) in the Constitution as finally framed], therefore, shows that criticism of
Government exciting disaffection or bad feelings towards it is not to be regarded as
justifying ground for restricting the freedom of expression and of the press, unless it
is such as to undermine the security, or tend to overthrow the state. It is also
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 significant that the corresponding Irish formula of ‘undermining the public order or
the authority of the state’,35 did not apparently find favour with the framers of the
Indian Constitution. Thus, very narrow and stringent limits have been set to
permissible legislative abridgement of the right of free speech and expression and this
was doubtless due to the realisation that freedom of speech and of the press lay at the
foundation of all democratic organisations, for without free political discussion no
public education, so essential for the proper functioning of the process of popular
Government is possible. We are, therefore, of opinion that unless a law restricting
freedom of speech and expression is directed solely against the undermining of the
security of the state or the overthrow of it, such law cannot fall within the reservation
under clause (2) of article 19, although the restrictions which it seeks to impose may
have been conceived generally in the interests of public order.

In view of these observations, the Parliament by the Constitution (First Amendment) Act
1951, substituted the original cl (2) of art 19 of the Constitution by a new cl (2) which
reads as follows:

Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of the State, friendly
relations with Foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.

The changes effected by this amendment, which have been given retrospective effect are:

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 (ii) Several new grounds of restriction upon the freedom of speech have been
introduced: (a) friendly relations with foreign states; (b) public order; (c)
incitement to an offence.

(viii) Deletion of the ground ‘tends to overthrow the state’.

(ii) Widening the scope of the expression relating to ‘security of the state’, by
substituting the words ‘any matter which offends against or undermines the
security of the state’ by the words ‘in the interests of the security of the state’.

(iii) Substitution of the words ‘libel, slander’ by the word ‘defamation’, and

(g) Insertion of the expression ‘reasonable restrictions’, to govern all the above
grounds.

In view of these amendments the Supreme Court has now held that the provisions of s s
124A and 505, IPC, impose restrictions on the fundamental freedom of speech and
expression, but those restrictions cannot but be said to be in the interest of public order
and within the ambit of permissible legislative interference with that fundamental right,
and that they are not therefore void. This section strikes the correct balance between
individual rights and the interest of the public order. Kedar Nath Singh v State of Bihar
AIR 1962 SC 955 [LNIND 1962 SC 519], p 969, (1962) 2 Cr LJ 103, overruling Ram
Nandan v State AIR 1959 All 101 (FB), (1959) Cr LJ 128; Debi Saran v State AIR 1954
Pat 254, p 259, 55 Cr LJ 758 ; Tara Singh Gopi Chand v State AIR 1951 Punj 27, 52 Cr
LJ 449 ; Sagolsem Indramani Singh v State of Manipur AIR 1955 Mani 9, p 15 will no
longer be good law.

Explanations 2 and 3

Right of Criticism

In the original section inserted in 1870 there was only one explanation. With regard to
this, Strachey J, in his charge to the jury in Queen-Empress v Bal Gangadhar Tilak , said:

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While the first cl shows affirmatively what the offence made punishable by the
section is, the explanation states negatively what it is not; it says that something ‘is
not disaffection’, and ‘is not an offence within this clause’. Therefore, its object is to
protect from the condemnation pronounced by the first clause certain acts which it
distinguishes from the disloyal attempts which the first clause deals with. The next
and most important point for you to bear in mind is that the thing protected by the
explanation is ‘the making of comments on the measures of the Government’ with a
certain intention. This shows that the explanation has a strictly defined and limited
scope. Observe that it has no application whatever unless you come to the conclusion
that the writings in question can fairly and reasonably be construed as ‘the making of
comments on the measures of the Government’. It does not apply to any sort of
writing except that. It does not apply to any writing which consists not merely of
comments upon Government measures, but of attacks upon the Government itself…
In the next place supposing that you are satisfied that these writings can fairly and
reasonably be construed as ‘comments on the measures of the Government’ and not
as attacks upon the Government itself, still you cannot apply the explanation unless
you believe that such comments were made with the intention of exciting only such a
disapprobation of the measures of the Government, as is compatible with a
disposition to render obedience to the lawful authority of the Government and to
support the lawful authority of the Government, against unlawful attempts to subvert
or resist that authority…It shows clearly what a public speaker or writer may do, and
what he may not do. A man may criticize or comment upon any measure or act of the
Government, whether legislative or executive, and freely express his opinion upon it.
He may discuss the Income Tax Act, the Epidemic Disease Act, or any military
expedition, or the suppression of plague or famine, or the administration of justice.
He may express the strongest condemnation of such measures, and he may do so
severely, and even unreasonably, perversely and unfairly. So long as he confines
himself to that, he will be protected by the explanation. But if he goes beyond that,
and, whether in the course of comments upon measures or not, holds up the
Government itself to the hatred or contempt of his readers, as for instances, by
attributing to it every sort of evil and misfortune suffered by the people, or dwelling
adversely on its foreign origin and character, or imputing to it base motives, or

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 accusing it of hostility or indifference to the welfare of the people, then he is guilty
under the section, and the explanation will not save him. The object of the
explanation is to protect honest journalism and bona fide criticism of public measures
and institutions with a view to their improvement, and to the remedying of grievances
and abuses, and to distinguish this from attempts, whether open or disguised, to make
the people hate their rulers. So long as a journalist observes this distinction, he has
nothing to fear.

The single explanation in the original section has been replaced by the present
Explanations 2 and 3. With regard to them the select committee in their report said:

We have added Explanation 3 to make it clear that criticism on the action of

Government is not confined to cases in which it is sought to bring about an alteration
of what has been done. For example, suppose the Government makes an appointment
which is considered objectionable. That appointment may be criticised, although the
criticism may not have in view that cancellation of the appointment. We have made
consequential amendments in Explanation 2 to make the language of the two
explanations uniform.

These explanations were added to remove any doubt as to the meaning of the legislature;
they do not add to or subtract from the section itself.

In Emperor v Sadashiv Narayan Bhalerao , their Lordships of the Privy Council observed
that the amendment of this section in 1898 by the inclusion of hatred or contempt and the
addition of explns 2 and 3 did not affect or alter the construction of the section laid down
in Tilak’s case; and the principles laid down by Strachey J, in Tilak’s case have been
generally followed by the courts in India.

Punishment

The punishment for sedition may, under this section, be anything from a mere fine to
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 imprisonment for life. The sentence to be actually imposed will depend upon the
circumstances of each case, and the position and age of the accused. In the case of
political offences arising out of the beliefs of the accused, severe sentences defeat their
object. In practice such sentences confirm the offenders in their beliefs and create other
offenders thus increasing the evil and the danger to the public. The test should be whether
the speech was a violent one and whether the intention of the accused was to excite
people to commit violence. ‘Where the speaker in his speech does not in terms advocate
violence in any shape and there is nothing in the speech which might by implication or
innuendo suggest its use, a heavy sentence is not called for’. Where the speech is mild
and the offence a technical one, a light sentence would be enough.

Proof

When an information is lodged at the police station and an offence is registered, then the
mala fides of the informant would be of secondary importance. It is the material collected
during investigation and the evidence led in the trial Court which decides the fate of the
accused person. P Nedumaran v State (2003) Cr LJ 4388 (Mad).

It is not necessary, in order to establish the fact of publication of seditious matter

transmitted through the post office, on a charge under this section to prove the actual
posting, nor that it was printed and published under the directions of the accused. If the
seditious writing is shown to be in the handwriting of the accused, and it is further proved
that the contents were in fact printed and published, there is sufficient evidence of
publication by him.

S. 125. Waging war against any Asiatic Power in alliance with the Government of India.
—

Whoever wages war against the Government of any Asiatic Power in alliance or at peace
with the 80[Government of India] or attempts to wage such war, or abets the waging of

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 such war, shall be punished with 81[imprisonment for life], to which fine may be added, or
with imprisonment of either description for a term which may extend to seven years, to
which fine may be added, or with fine.

Scope

The offences, forbidden by this section, are the same as those under s 121, IPC; the
persons protected hereby being the government of an Asiatic power in alliance or at peace
with the Government of India. The offences defined in this section were also punishable
under the Foreign Enlistment Act 1870,82 which applied to India, and the preamble of
which recited: ‘It is expedient to make provision for the regulation of the conduct of Her
Majesty’s subjects during the existence of hostilities between foreign states with which
Her Majesty is at peace’. The section is based upon the principle of international amity
and the desire of the state to remain in friendly relations with its neighbours.

An Indian waging war against the Rajah of Manipore who was then an Asiatic sovereign
in alliance with the Queen of England and Empress of India, was held guilty of the
offence punishable under this section.

S. 126. Committing depredation on territories of Power at peace with the Government

of India.—

Whoever commits depredation, or makes preparations to commit depredation, on the

territories of any Power in alliance or at peace with the 85[Government of India], shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine and to forfeiture of any property used or intended to

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 be used in committing such depredation, or acquired by such depredation.

Scope

The provisions of this section differ from those of s 125 in the following particulars:

(i) The power in question need not be an Asiatic one.

(ii) The object of the expedition is plunder, not to wage war.

(ix) The depredation must be actually carried out, or preparations made to carry it out.

An attempt to carry out depredation would not per se be punishable under this section, but
under s 511, and it would of course be evidence of preparation, whilst abetment would be
punishable under the provisions of ch V.

Depredation

Depredate means subject to plunder and pillage. Therefore, in this section depredation
means plunder on territories of a state in alliance or at peace with the Government of
India.

S. 127. Receiving property taken by war or depredation mentioned in sections 125 and
126 .—

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 Whoever receives any property knowing the same to have been taken in the commission
of any of the offences mentioned in sections 125 and 126, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine and to forfeiture of the property so received.

Scope

This section provides for punishment of persons who knowingly receive property
obtained by waging war against any Asiatic power in alliance with the Government of
India or by depredation on its territories. The receivers of such property also are liable as
they are accessories after the fact.

2.

Proof

To prove a charge under this section the prosecution has to prove the waging of war
against the government of an Asiatic power in alliance or at peace with the Government
of India, or the committing of depredation, on the territories of any power in alliance or at
peace with the Government of India and the receipt of the property taken therein, and the
knowledge of the accused that the property received by him is the property taken in the
managing of such war or by such plunder.

S. 128. Public servant voluntarily allowing prisoner of State or war to escape.—

Whoever, being a public servant and having the custody of any State prisoner or prisoner
of war, voluntarily allows such prisoner to escape from any place in which such prisoner
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 is confined, shall be punished with 87[imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Scope

This and the next two sections deal with escape and rescue of state prisoners. The offence
under this section is an aggravated form of the offence under s 225A, IPC. It provides for
the punishment of a public servant who voluntarily allows a state prisoner to escape,
while the next section provides for the punishment of a public servant who negligently
suffers escape of such a prisoner from confinement. Section 130, IPC provides for the
punishment of any person, other than a public servant, who aids in the escape of a state
prisoner or rescues him or harbours him after his escape.

‘State Prisoner’

A state prisoner is a prisoner arrested and confined for ‘reasons of state embracing the
due maintenance of the alliance formed by the Indian government with foreign powers,
the preservation of tranquility and the security of India from foreign hostility and from
internal commotion’. The regulations providing for confinement of state prisoners are
specified in the footnote.

S. 129. Public servant negligently suffering such prisoner to escape.—

Whoever, being a public servant and having the custody of any State prisoner or prisoner
of war, negligently suffers such prisoner to escape from any place of confinement in
which such prisoner is confined, shall be punished with simple imprisonment for a term
which may extend to three years, and shall also be liable to fine.

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 Scope

The previous section deals with voluntarily allowing a state prisoner or prisoner of war to
escape from custody by a public servant, while this section deals with an offence of
suffering such escape by negligence. The punishment provided under this section is
simple imprisonment extending upto three years and fine while the offence under s 128,
IPC is punishable with life imprisonment or imprisonment of either description extending
upto ten years and fine. The remaining provisions of both the sections are the same.

S. 130. Aiding escape of, rescuing or harbouring such prisoner.—

Whoever knowingly aids or assists any State prisoner or prisoner of war in escaping from
lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or
conceals any such prisoner who has escaped from lawful custody, or offers or attempts to
offer any resistance to the recapture of such prisoner, shall be punished with
90
[imprisonment for life], or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.

Explanation.—A state prisoner or prisoner of war, who is permitted to be at large on his

parole within certain limits in 91[India], is said to escape from lawful custody if he goes
beyond the limits within which he is allowed to be at large.

Scope

The scope of this section is much wider than the scope of s s 128 - 129, IPC. The said
sections deal with only escape of state prisoners or the prisoners of war, while this section

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 also embraces within its ambit rescuing or attempting to rescue, harbouring or concealing,
such prisoners, who have escaped from lawful custody, or offering or attempting to offer
resistance to the recapture of such prisoners and makes these acts punishable. Its
application is not confined to public servants only and it applies to all alike. In doing any
of the acts specified in this section the accused must know that the person concerned is a
state prisoner or a prisoner of war. In the absence of such knowledge, the offence may fall
under s 225 or s 225B, IPC but not under this section.

Chapter VIII Of Offences Against the Public Tranquility

TOPICAL INTRODUCTION

This chapter consisting of ss 141 - 160 deals with offences against public tranquility—
offences in between offences against the state and those against a person. The intention
indicated by the heading of the chapter was to constitute certain acts, which endangered
public peace, into ‘offences against public tranquility’. But, in construing the sections
included in the chapter, regard is to be had not only to the general intention deducible from
the heading of the chapter, but also to the specific mode in which the legislature intended to
carry out that intention.

This chapter contains five species of offences against the public tranquility:

(i) Unlawful Assembly: (a) provisions which constitute such offences (ss 141 and 142 );

(b) punishment for taking part therein (s 143);

(c) aggravated offences by members of such an assembly (ss 144 and 145); and

(d) rendering aid to them in various ways (ss 150, 152, 154, 157 and 158);

(ii) Riot: (a) provisions constituting riot (s 146);

(b) punishment (s 147);

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 (c) aggravated riot (s 148);

(d) liability of members of an unlawful assembly for offence committed by one of

them (ss 149 and 157); and

(e) aiding a riot in various ways (ss 152 - 158);

(i) Belonging to an assembly of five or more persons, when ordered to disperse (s 151);

(ii) Promoting enmity between classes of the community (s 153A);

(iii) Imputations and assertions prejudicial to national integration (s 153B); and

(a) Affray (s 159 ) and punishment therefor ( s 160 ).

The publication or circulation of statements, rumours or reports likely to lead to an offence

under this chapter is punishable under s 505, IPC.

Another offence against public peace is known in England as ‘rout’. According to the general
opinion it seems to be a disturbance of the peace by three or more persons assembling
together with an intention to do a thing, which, if executed, will make them rioters, and
actually making a motion to execute their purpose. In fact, it agrees in all particulars with a
riot except that it may be completed without the execution of the intended enterprise.
( Redford v Birley (1822) 1 St Tr 1071 (NS) with regard to this, the HM Commissioners on
Criminal law in 1840 said:

It appears to us that the division of the subject-matter of these offences into three distinct
degrees, as riots, routs, and unlawful assemblies, is unnecessary and inconvenient. To
constitute a riot, there must be a joint design which must be executed, or at least some act
must be done in part execution of it; the character of a rout is complete as soon as some
act has been done moving towards the execution of the joint design; and it is an unlawful
assembly where three or more persons meet together for any unlawful purpose, or
intending to execute any purpose with force, and with such circumstances as tend to
excite alarm, but do not act moving towards its execution. There is, no doubt, an obvious
distinction between these degrees of criminality; but the point of the offence in all is the
unlawful assembly. The difference between a part execution of a design and an act

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 moving towards such execution is extremely subtle and might often lead to difficulties in
practice; and it seems to be a simpler and more intelligible principle of arrangement to
consider the unlawful assembly as the groundwork of the offence and the part execution
of the joint design or the motion towards it as aggravations. (242 Parl Papers Reports,
1840)

It is perhaps due to these ‘difficulties in practice’ that the offence of ‘rout’ has been omitted
in the IPC.

Section 153A was added by s 5 of Act 4 of 1898. The offence made punishable under it is
punishable in England as ‘seditious libel’. But ‘the offence only affects the government or the
state indirectly; and the essence of the offence is that it predisposes classes of the people to
action which may disturb public tranquility’.

The section so inserted was substituted by a new section, by Act 41 of 1961. This new section
is intended to ‘effectively check fissiparous, communal and separatist tendencies,’ but the
nature of the offence remains the same. This section was amended in 1972 by adding cl (c) to
bring certain more activities within its ambit with a view to maintain communal harmony.

With the insertion of cl (c) in s 153A a new s153B was also inserted by Act 31 of 1972 to
check and prevent the practice and propaganda to make discrimination against any class of
citizens on the ground of religion, race, language, regional group, caste, or community, to
maintain communal harmony and integration. In effect this section supplements the
provisions of s 153A.

S. 141. Unlawful assembly. —

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An assembly of five or more persons is designated an “unlawful assembly”, if the
common object of the persons composing that assembly is—

First.— To overawe by criminal force, or show of criminal force, 5[the Central or any
State Government or Parliament or the Legislature of any State], or any public servant in
the exercise of the lawful power of such public servant; or

Second.— To resist the execution of any law, or of any legal process; or

Third.— To commit any mischief or criminal trespass, or other offence; or

Fourth.— By means of criminal force, or show of criminal force, to any person, to take or
obtain possession of any property, or to deprive any person of the enjoyment of a right of
way, or of the use of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or

Fifth.— By means of criminal force, or show of criminal force, to compel 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, may

subsequently become an unlawful assembly.

Scope

This section appears to have been founded on the general principles of the English
Common Law to protect public peace from dangers to it caused by the combination of
forces of several persons. (King Emperor v Nga Tun Maung AIR 1925 Rang 362) The
law suppresses unlawful assemblies because, if not suppressed, they may lead to more

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serious crimes like rioting and murder. This is done by punishing persons for being
members thereof (s 143, IPC). This section defines ‘unlawful assembly’ and s 142
defines the expression ‘being member of an unlawful assembly’. An unlawful
assembly is an assembly of five or more persons, if the common object of the persons,
composing it, is of the nature specified in items first to fifth of the section. (Komma Neel
Kanta Reddy v State of Andhra Pradesh AIR 1978 SC 1021) The intention indicated by
the heading of the chapter was to constitute certain acts, which endangered the public
peace, into offences against public tranquility. In construing the section regard must be
had not only to the general intention deducible from the heading of the chapter, but also
to the specific mode in which the legislature intended to carry out that intention. (Queen
Empress v Tirakad 14 ILR Mad 126) Where fodder belonging to an informant was set on
fire, the informant suspected the accused and called the accused by name. The accused
got infuriated and called out to the other accused to assault the informant, whereupon all
accused persons came there and started assaulting the informant and caused injuries on
his person. It cannot, therefore, be disputed that all the accused persons formed an
unlawful assembly within the meaning of s 141, IPC.( Ganga Singh & Ors v State of
Uttar Pradesh (2000) Cr LJ 1695 (All) (DB).)

Mere presence of a person at the place where members of an unlawful assembly have
gathered for carrying out their illegal common object does not incriminate him. But the
question is one of fact in each case as to whether a person happens to be innocently
present at the place of occurrence or was actually a member of the unlawful assembly.
( Bishambhar Bhagat & Ors v State of Bihar AIR 1971 SC 2381 )

Object

The object of this section is to prevent resort to criminal force by five or more persons
to do any of the five acts set out in the section. (Pranbandhu Misra v State (1952) ILR
Cut 219)

Essentials of ‘Unlawful Assembly’

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The essentials of an unlawful assembly are:

(i) There must be an assembly of not less than five persons. (Mukunda v State
AIR 1957 Raj 331)

(ii) They must have a common object. ( Masalti v State of Uttar Pradesh AIR
1965 SC 202)

(ii) The common object must be of the nature of one of the five objects specified
in the section. (Masalti v State of Uttar Pradesh AIR 1965 SC 202)

(ii) The common object must be unlawful. (Masalti v State of Uttar Pradesh AIR
1965 SC 202)

To establish that an assembly is unlawful, it is not necessary that it assembled in a public

place.( Kamara v Director of Public Prosecutions (1974) AC 104 The essential
requirement is the presence, or likely presence, of innocent third parties, not participating
in the illegal activities in question.

Test of Unlawfulness of Assembly

The test of the unlawfulness of an assembly is the means it intends to employ, and it
does not lie in the numbers who take part in a meeting, nor in the place of meeting,
e.g., a highway, Burden v Rigler (1911) LR 1 KB 337. nor in the legality (real or
supposed) or illegality of the purpose in view, e.g., an assembly for the purpose of
gambling is not an unlawful assembly.

6. Assembly of Five or more Persons

Under the English law, the minimum number of persons required to constitute an
unlawful assembly is three. But under this section the number is five. (Mukunda v State
AIR 1957 Raj 331) There may be more, but not less. A conviction for being a member
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of an unlawful assembly or for rioting as a member of an unlawful assembly requires the
proof that there was an unlawful assembly consisting of at least five persons. If this
ingredient is proved, it is not necessary to prove the identity of five or more persons
constituting the unlawful assembly. If the prosecution establishes satisfactorily the
presence of at least five members in an unlawful assembly with the requisite common
object, one of them may be convicted, even though the remaining four are acquitted on
the ground of their identity not being satisfactorily established. It is essential that the
prosecution must satisfactorily prove the existence of an unlawful assembly of five or
more persons. (Bharwad Mapa Dana v State of Bombay AIR 1960 SC 289) The identity
of the persons comprising the assembly is a matter relating to the determination of the
guilt of the individual accused, and, even when it is possible to convict less than five
persons only, s 147 would still apply if upon the evidence in the case the court is able to
hold that the person or persons who have been found guilty were members of an assembly
of five or more persons, known or unknown, identified or unidentified.( Kapildeo Singh v
King AIR 1950 FC 80) When the court can legally find that the actual number of
members in the assailants’ party was more than five, the said party will constitute an
unlawful assembly even when only three persons have been convicted. It is only when the
number of the alleged assailants is definite and all of them are named, and the number of
persons found to be proved to have taken part in the incident is less than five, then it
cannot be held that the assailant’s party must have consisted of five or more persons. The
acquittal of the remaining named persons must mean that they were not in the incident.
The fact that they were named excludes the possibility of other persons to be in the
assailants’ party and especially when there is no occasion to think that the witnesses
naming all the accused could have committed mistakes in recognizing them. (Kartar
Singh v State of Punjab AIR 1961 SC 1787)

There cannot be straight-jacket formula for arriving at a finding as to who was the
member of unlawful assembly and for what object the unlawful assembly was formed. an
unlawful assembly may initially be formed for achieving any object described in s 141 of
the IPC and at subsequent stage, the object of certain members of unlawful assembly may
change, in that circumstances, the unlawful assembly may be of more than one part
especially in the light of its common object as it is a matter of common knowledge that
normally, the prosecution would not be in a position to lead evidence to show that firstly
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the assembly was gathered, they discussed the matter and decided their object, and
thereafter, proceeded for achieving that object. It can be inferred and proved by cogent
evidence. (Phodol v State of Chhattisgarh 2014 Cr LJ 4704(Chh) (DB) ; Badal Murmu v
State of West Bengal 2014 AIR SCW 1137, AIR 2014 SC 1150)

Where out of seven persons charged under s s 302 / 149, IPC, five were given the benefit
of doubt and acquitted by the High Court and the Supreme Court found that there was no
scope for introducing the theory of benefit of doubt and that the acquittal of the five
persons was wrong, it was held that the acquittal could not affect the conviction of the
remaining two under s 302 read with s 149.(Marachalil Pakku v State of Madras AIR
1954 SC 648)

When Less than Five Persons can be Convicted being Member of Unlawful
Assembly

In Ram Bilas Singh v State of Bihar, (1964) 1 Cr LJ 573, p 578-579 ; Shaji v State of
Kerala (2005) Cr LJ 3121 (Ker) (DB). the Supreme Court reviewed the case-law on the
subject and held that it is competent for a court to conclude that there was an unlawful
assembly of five or more persons, even if less than that number have been convicted by it,
if:

(a) the charge states that apart from the person named, several other unidentified persons
were also members of the unlawful assembly whose common object was to commit an
unlawful act and evidence led to prove this is accepted by the court.

(b) or the FIR and the evidence show such to be the case even though the charge does not
state so; or,

(c) though the charge and the prosecution witnesses named only the acquitted and the
convicted accused persons, there is other evidence which discloses the existence of
named or other persons, provided, in cases (b) and (c), no prejudice has resulted to the
convicted persons by reason of the omission to mention in the charge, that the other
unnamed persons had also participated in the offence.

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Persons Forming Unlawful Assembly—How Ascertained

The crucial question to determine is whether the assembly consisted of five or more
persons and whether the said persons entertained one or more of the common objects, as
specified in the section. (Masalti v State of Uttar Pradesh AIR 1965 SC 202) While
determining this question, it becomes relevant to consider whether the assembly consisted
of some persons who merely passive witnesses were and had joined the assembly as a
matter of idle curiosity without intending to entertain the common object of the assembly.
In ascertaining the number of persons, constituting an unlawful assembly, the acquitted
persons must be excluded. Whether the number still remains, at five or more, must
depend upon whether the charge and the evidence confine the membership to a certain
number of named and enumerated persons, or either the charge, or at any rate, the
evidence, indicates that there might possibly be persons, other than those named and
enumerated in the charge, who can rightly be described as having been the members of
the unlawful assembly, referred to in the charge.( Re Madhu (1966) Cr LJ 223)

An assembly of five or more persons having a common object does not cease to be an
unlawful assembly simply because it splits itself into two parties for the purpose of
carrying out their object. ( Rex v Sadla AIR 1950 All 418)

Mere Presence in an Unlawful Assembly not Sufficient

Mere presence does not make a person a member of unlawful assembly and hence
vicariously liable for all the acts committed by members of the unlawful assembly either
in the prosecution of the common object of the unlawful assembly or for such acts which
the members of unlawful assembly knew were likely to be committed. Mere presence in
a crowd or along with members of an unlawful assembly cannot render a person
liable,(Musa Khan v State of Maharashtra AIR 1976 SC 2566) unless there was a
common object and he was actuated by the common object and that object is one of
those set out in this section, 45 or it is shown that he had done something, or omitted
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to do something which would make him a member of the unlawful assembly, or
unless the case falls under s 142.46 Mere presence of a person at the time of the
commission of rioting is not sufficient to show that he was a member of the unlawful
assembly which committed the offence. The primary question for consideration is as to
whether the object of the assembly of the accused persons was unlawful.47 In
Baladin’s case, (Baladin v State of Uttar Pradesh AIR 1956 SC 181) their Lordships of
the Supreme Court remarked:

If members of the family of the appellants and other residents of the village
assembled, all such persons could not be condemned ipso facto as being members of
that unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence
pointing to the conclusion that all the appellants had done or been committing some
overt act in prosecution of the common object of the unlawful assembly.

But these observations must be read in the context of the special facts of that case. It
would not be correct, in law, to say that before a person is held to be a member of an
unlawful assembly, it must be shown that he had committed some illegal overt act or had
been guilty of some illegal omission in pursuance of the common object of the assembly.
Section 149 makes it clear that in certain circumstances one member of an unlawful
assembly may be vicariously liable for an offence committed by another member of that
assembly although he had no intention of committing that offence and had done no overt
act except his presence in the assembly and sharing the common object of that assembly.

Mere Innocent Presence not Sufficient to make a Member

In Musa Khan v State of Maharashtra, AIR 1976 SC 2566 their Lordships of the
Supreme Court observed:

It is well settled that a mere innocent presence, in an assembly, of persons as, for
example, a bystander, does not make the accused a member of an unlawful assembly

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 unless it is shown, by circumstantial evidence, that the accused shared the common
object of the assembly. Thus, a Court is not entitle to presume that any and every
person, who is proved to have been present near a riotous mob, at any time or to have
joined or left it, at any stage during its activities, is, in law guilty of every act,
committed by it from the beginning to the end, or that each member of such a crowd
must, from the beginning, have anticipated and contemplated the nature of the illegal
activities in which the assembly would subsequently indulge. In other words, it must
be proved, in each case, that the person concerned was not only a member of
unlawful assembly at some stage, but, at all the crucial stages, he shared the common
object of the assembly. Where the evidence merely shows that some of the accused
were members of the unlawful assembly at one particular stage but not at another, the
accused, who were not present or who did not share the common object of the
unlawful assembly at other stages, cannot be convicted for the activities of the
assembly at those stages.

The question, whether a person happens to be innocently present at the place where the
members of an unlawful assembly have gathered together to prosecute their common
object or is a member sharing their common object, is normally one of fact. (Gokul v
State of Rajasthan AIR 1972 SC 209)

Common Object

The essence of the object of an unlawful assembly is common object of the accused
persons forming it. It is necessary that the object should be common to the persons and
they should all be aware of it and concur in it. Kailash Chandra Sahu & Ors v State 1984
Cr LJ 772 (Ori)(DB). In fastening constructive liability, the importance of the common
object is very great, and it is on this basis alone that an accused is punished for the act of
his associates. To establish that the accused was a member of an unlawful assembly;
it must be shown, either from his active participation or otherwise, that he shared
the common object of the assembly. Prabhakar v State of Maharashtra AIR 1979 SC
856 The word ‘object’ means the purpose or design, and to make it ‘common’ it
must be shared by all. There must be community of object and the object may exist

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only up to a particular stage and not thereafter. Harinarain v State AIR 1953 Bhopal 8
The purpose for which the members of the assembly set out or which was desired to
achieve is the object. Each member may have an object in view and may also have his
own idea of the means with which that object is to be attained and the extent to which he
is prepared to go for attaining it. If the object desired by all the members is the same, the
knowledge that that is the object which is being pursued is shared by all the members and
they are in general agreement as to how it is to be achieved, the object becomes the
common object of the assembly. Normally a determination to achieve an object includes
a resolve to meet with force any resistance that may be offered and to remove any
obstruction that may be found to exist in the path leading to the attainment of the object.
The Assembly must have a Common Object

Under the explanation to s 141, IPC, an assembly which was not unlawful when it
assembled may, subsequently become an unlawful assembly and an offence will fall
within the purview of s 149 even if members of the assembly view that it was ‘likely to be
committed’ in prosecution of their common object or if the offence was such as the
members of that assembly knew to be likely to be committed in prosecution of that object.
Komma Neelakantha Reddy & Ors v State of Andhra Pradesh AIR 1978 SC 1021 Under
the Explanation to s 141, an assembly which was not unlawful when it was assembled,
may subsequently become unlawful. It is not necessary that the intention or the purpose,
which is necessary to render an assembly an unlawful one, comes into existence at the
outset. The time of forming an unlawful intent is not material. Siyaram (M/s) v State of
MP 2009 Cr LJ 2071 To constitute an unlawful assembly there must not only be an
assembly of five or more persons, they must all have a common object which they are
going to carry out by unlawful means.72 Existence of a common unlawful object is a
requisite for an unlawful assembly, and unless there is proof of an agreement amongst
persons to do anything or a plan to carry out a design—and if this is not possible, unless it
is shown that an inference in support of it can reasonably be drawn from the relations,
acts and conduct of the parties, persons cannot be constructively made liable for the acts
of others.73

Same Object and Common Object

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There may not be much difference between common object and common intention, but
there is distinction between common object and same or similar object. 80 The same object
is not necessarily a common object, but it becomes so only when it is known to and
shared by all.81 All the members of the assembly must have a common object. It is not
enough if they have a similar object. A common object must be distinguished from a
similar object. Sepai Bhaimiya Nathu v State AIR 1960 Guj 13

Common Object and Common Intention—Distinguished

Common intention required by s 34 and the common object required by s 149 are far from
being the same thing. Dalip Singh & Ors v State of Punjab AIR 1953 SC 364 There is a
difference between object and intention, for, though the object of the assembly is
common, the intentions of the several members may differ and indeed may be similar
only in respect that they are all unlawful.91 The object of an assembly as a whole may not
be the same as the intention which several persons may have when in pursuance of that
intention they perform a criminal act and it may well be that the object of the assembly is
lawful, whereas the intention common to those of the assembly who jointly commit a
criminal act is in itself criminal and the joint criminal act is equally imputed to all of
them.92 It is true that ‘common object’ and ‘common intention’ sometimes overlap, but
they are used in different senses in law and should be kept distinct. In a case of unlawful
assembly or riot we are concerned with a common object. A common object is different
from a common intention in that it does not require prior concert and a common meeting
of minds before the attack, and an unlawful object can develop after the people get there.
Under s 141, IPC, it is enough that each has the same object in view, that their number is
five or more and that they act as an assembly to achieve that object.93

It may be noted that for the application of s 34, IPC, which deals with common intention
that intention must be to do a criminal act, whereas the common object which falls under
this section need not necessarily be to do a criminal act. For instance, the common object
may be to recover possession of property from a trespasser. That by itself is not unlawful.
It becomes unlawful only if the object is to obtain possession ‘by means of criminal force
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or show of criminal force’. Where, however, the common object of an assembly is ‘to
commit any mischief or criminal trespass or any other offence’ (s 141, third of the IPC )
there may not be much distinction between common object’ and ‘common intention’.94

Common Object must be Unlawful

To constitute an ‘unlawful assembly’, there must be an assembly of five or more persons,

the assembly must have a common object and the object must be ‘unlawful’. Sukah v
State of Rajasthan AIR 1956 SC 513 Where the object of an assembly is to do an act
which is not an offence, the assembly is not unlawful. AK Abdul v State of Mysore (1971)
Cr LJ 1477, p 1479 ; Tahir Hussain v State AIR 1955 Cal 513 [LNIND 1955 CAL 104], p
514, 56 Cr LJ 1356 ; State of Kerala v KJ Thomas (1961) 1 Cr LJ 661, p 663, 1961 Mad
LJ (Cr) 45 ; Bishnuram Ruhidas v Mahommad Majahar AIR 1960 Tr & Coch 43, (1960)
Cr LJ 1665.

Where a group of accused persons having firearms took position on the terrace of the first
floor and fired at the unarmed complainant party standing on road. One person only,
however, was fatally injured, though it was easy for the accused persons to have
murdered many in view of their position. No unlawful object to murder could be
attributed to the accused and s 149 is not available to the prosecution. Merambhai
Punjabhai Khachar & Ors v State of Gujarat (1996) Cr LJ 2465 (SC).

Where the only facts proved were that a number of persons assembled together armed
with bill-hooks and sticks, and they ran away when the police appeared, it was held
that those facts alone were insufficient as legal proof of the unlawful character of the
assembly, as the persons might have come for a lawful purpose and armed themselves
for protection against anticipated violence from others. Queen-Empress v Peelimuthu
Tevan ILR 24 Mad 124.
Exercising Right of Private Defence by an Assembly is not Unlawful
The assertion of right of private defence within the limits prescribed by law cannot fall
within the expression to enforce any right or supposed right in the fourth clause of s 141,
IPC. The assembly cannot be designated as an unlawful assembly if its object is to defend

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person or property using force within the limits prescribed by law. The words ‘within the
limits prescribed by law’ clearly indicate that so long the force used is ‘within the limits
prescribed by law’ no offence is committed, and the provisions of s 141 and consequently
that of s 149, IPC would not apply to such a case. Arjuna Pradhan v State of Orissa
(1975) Cut LT 186

If an assembly of five or more persons resists an attack upon them, the action of such
members of the assembly in defending their persons and properties would not take its
character as an unlawful assembly. Mangal Ram v State (1961) All Cr R 161 An
assembly, lawful in itself, does not become unlawful merely by reason of its lawful
acts exciting others to do unlawful acts; Re Mukka Muthrian AIR 1916 Mad 1062 an
assembly of persons, gathered for election purpose, does not become an unlawful
assembly merely because some persons of the assembly carried with them weapons,
including firearms. Hanuman Singh v State AIR 1969 All 130 Similarly, the actions
of a few members of an assembly, which gathers together for a perfectly lawful
purpose, cannot, by themselves, make the whole assembly an unlawful assembly. The
mere fact, that they are with the offending members at the time, would not make them
members of the unlawful assembly.
First Clause—To Overawe by Criminal Force or Show of Criminal Force

The words ‘overawe by means of criminal force or the show of criminal force’ also occur
in s 121A, IPC. In a case under that section, 32 Shearer J, of the Patna High Court,
explained the meaning of the word ‘overawe’ in the following words:

The word ‘overawe’ clearly imports more than the creation of apprehension or alarm
or even perhaps fears. It appears to me to connote the creation of a situation in which
the members of the Central or the Provincial Government feel themselves compelled
to choose between yielding to force or exposing themselves or members of the public
to a very serious danger. It is not necessary that the danger should be a danger of
assassination or of bodily injury to themselves. The danger might well be a danger to
public property or the safety of members of the general public.

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The overawing must be attended by criminal force or show of criminal force. What the
section requires is that the assembly should have the common object to overawe and not
that it should have the effect of overawing. Thus, in an Allahabad case, 33 when a sub-
inspector of police was thinking of rearresting a person who had escaped from his custody
a crowd of 50 or 60 villagers carrying lathis assembled. The sub-inspector considered
their appearance so formidable that he desisted from his intention to rearrest the man. It
was held that if the intention of the villagers in assembling was to prevent the re-arrest of
the person wanted, they would no doubt constitute an unlawful assembly, but if they
merely assembled to see what was happening on and without any intention of preventing
the police officer from doing his duty, they could not constitute an unlawful assembly.

This clause contemplates the overawing of:

(a) the legislative or executive wings of the Central or State Government, or

(b) any public servant. In the case of the latter the common object must be to overawe a
public servant in the exercise of his lawful power. That is, the public servant must be
‘acting in good faith under colour of his office’. In such a case there is no right of private
defence against his acts. Commentary under s 99 may be referred to.

Criminal Force

A person is said to use force on another if he causes motion, change of motion, or

cessation of motion to that other in a certain specified manner (refer to s 349, IPC).
Section 350 of the IPC defines ‘criminal force’ as follows:

Whoever intentionally uses force to any person, without that person’s consent, in
order to the committing of any offence, or intending by the use of such force to cause,
or knowing it to be likely that by the use of such force he will cause injury, fear or
annoyance to the person to whom the force is used, is said to use criminal force to
that other.

Second Clause—Resistance

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‘Resistance’ means something more than defiance of disobedience or non-submission. It
consists of an overt act showing an intention to make opposition to the execution of the
law. Mere words, when there is no intention of carrying them into effect, will not be
sufficient to prove an intention to resist. Emperor v Abdul Hamid AIR 1923 Pat 1
Resistance to execution of the law is one thing and refusal to disperse is another thing.
Public Prosecutor v Vadlamudi Satyanarayana AIR 1931 Mad 484 A mere refusal to
obey the order of dispersal given by the police does not amount to resistance to the
execution of law Taher Husain v State AIR 1955 Cal 513 (wherein it has been held that
where the common object is only to cause annoyance to the police officers, which is not
an offence the assembly cannot be said to create a resistance to the execution of law).An
assembly does not become unlawful merely because it continues without dispersing in
defiance of the lawful order to disperse, for there is no clause under this section to say
that an assembly refusing to disperse in obedience to a lawful command becomes an
unlawful assembly. Girdhara Singh v Emperor AIR 1922 Lah 135 So also where the
organisers of a procession violated the conditions of the licence to take out the
procession, and on being ordered by the police and the magistrate, not only resolved to
disobey the orders, but, in defiance of the orders, they actually made a determined effort
to break through the police cordon, it was held that their action was clearly an overt act
amounting to resistance to the execution of the law. Ram Babu v Emperor AIR 1946 Pat
381

Second Clause—Execution of Law

Blackstone defined ‘law’ as: ‘A rule of civil conduct prescribed by the supreme power in
a State, commanding what is right, prohibiting what is wrong, and regulating matters in
themselves indifferent’. Emperor v Abdul Hamid AIR 1923 Pat 1

The essence of the law is that it is enforceable as law, and that, though the courts may
construe the law, they cannot reject it, nor quash it. A distinction must be made between
an enactment and a rule made under it. There is a clear authority for the view that, though
there is no difference between a rule and enactment where there is a provision in the
enactment that the rules shall be of the same effect as if they were contained in the Act,
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there is a wide difference between the two when there is no such provision; and the
difference is this, that though you may not canvass an Act of Parliament, you may
canvass a rule. Emperor v Abdul Hamid AIR 1923 Pat 1

Second Clause—Execution of Legal Process

The process, such as a warrant of arrest or a search warrant contemplated under this
clause must be ‘legal’. Where the object of the assembly was to resist attachment by the
court, it was held that the assembly was unlawful. Gokul v State of Rajasthan AIR 1972
SC 209 If there is an assemblage of five or more men with the common object of
resisting by force or show of force, by the execution of processes of law every one of
them is guilty of being a member of an unlawful assembly, whether or not resistance is
offered. If force is used by any member of the assembly, each one of them becomes liable
for rioting under s 147, IPC. But if actual resistance is offered, a separate offence of
resistance of the process of law punishable under s 186, IPC, is committed. Sheo Ahir v
Emperor AIR 1938 Pat 584 This is so only when the process is legal that the persons,
resisting its execution, are deprived of the right of private defence under s 99, IPC. If it is
illegal, they have a right of private defence under s 97,

Third Clause—To Commit Mischief, Criminal Trespass or other Offence

The object under this clause must be to commit mischief, criminal trespass, or some
other offence. Where criminal intention is a necessary ingredient in the offence, as it is in
those specifically mentioned in this clause the requirement will not be satisfied, if it can
be shown that the accused had a right, or honestly believed that he had a right, to do the
act complained of, and in this respect this clause differs from cl (4).

This clause is ambiguous to some extent. It specifies two offences, namely, mischief and
criminal trespass, and then says, ‘or other offence’. Now, the phrase ‘other offence’
would cover every other offence made punishable by the IPC. If all the other offences
made punishable by the IPC are meant to be included in the phrase, there can be no
meaning in specifically mentioning two offences. It would therefore appear that the
legislature intended to include in this clause only mischief, criminal trespass and other

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offences ejusdem generis. But, as will be seen presently, the decided cases indicate that
the courts have interpreted the phrase ‘other offence’ as including any other offence.

Certain persons entered a vacant manai (building site) for the purpose of rebuilding their
wall which adjoined the vacant land. It was held that since they did not assemble there for
the purpose of committing mischief, criminal trespass, or any other offence, they did not
constitute an unlawful assembly. Re Saravana Pillai 11 Cr LJ 533

Fourth Clause—Scope and Object

The Fourth clause mentions ‘to take or obtain possession of any property’, and, therefore,
it does not make any mention of ‘maintaining possession or resisting an attempt to take
possession’. It will, therefore, not apply to an accused who is defending his possession in
any property and the right of private defence as contemplated by the Code is not taken
away, if there is any action on the part of the accused persons in maintaining their
possession and defending their property. Thakur Mahto & Ors v State of Bihar (1971) Pat
LJR 636 The provision in the Fourth clause is one of those rare instances in which an act,
in the view of the criminal law, is legal and gives no right of action to the person affected
by it, but is punishable criminally on account of the injurious consequences to the public
peace, resulting from the use or show of criminal force. The object of the clause is to
prevent breaches of the peace, by compelling everyone, who desires to enforce a disputed
right to do so under the authority of the law. Pranbandhu Misra v State (1952) ILR Cut
219 There is not even the right of private defence in cases where there is time to have
recourse to the protection of the public authorities (s 99, IPC ). The principle is the same
as that under which the magistrate is authorised, in cases in which a breach of the peace is
apprehended, to maintain the party in possession, or attach property pending the decision
of a competent civil court., ss 145 - 46.of Crpc

Fifth Clause—Illegal Compulsion by use or show of Criminal Force

This clause makes it unlawful for any person to compel another person, by means of
criminal force, or show of criminal force, to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do. A person cannot be said to be acting in any

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illegal or unlawful manner if he seeks the assistance of a magistrate and the police, and
any force used or show of force made by the magistrate cannot be deemed to be force
used or show of force made by those persons. Hence they cannot be said to form an
unlawful assembly within the meaning of this clause. Mahommad Hasnain v Rex AIR
1949 All 351 People simply asserting their bona fide right and preventing an unlawful
interference with their property cannot be regarded as members of an unlawful assembly.
The mere use of criminal force or show of criminal force by any person to take possession
of any property is not sufficient to bring the case within this clause unless some criminal
intent is proved against the person so using force or show of force. Addaita Bhuia v Kali
Das De 6 Cr LJ 393

Explanation

Under the explanation to the section an assembly which was not unlawful when it
assembled may subsequently become unlawful.70 Although individuals may, in the first
instance, have associated themselves with a mob from motives perfectly innocent,
nevertheless, if the mob is or becomes an unlawful assembly and the individuals in
question take part in its proceedings, they will be liable as members of an unlawful
assembly. Queen v Khemee Singh 1 WR 19 Where certain Mohammadans being
apprehensive of the breach of the peace being committed by Hindu processionists,
assembled either to protect themselves or to protest against the action of the
processionists in taking an unlicensed route, it cannot be said that they become members
of an unlawful assembly at that stage. But when the Hindus were receding, the
Mohammadans chased them; they became members of an unlawful assembly. Sheikh
Mahommad v Emperor 43 Cr LJ 871

Where three out of five persons did not take part in the seizure of the cattle, but when
subsequently they were joined by another group of nine persons armed with lathis and all
of them participated in the subsequent attack on the owners of the cattle, it was held that
though the first group was not an unlawful assembly in the beginning, it became so
subsequently.73

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S. 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.

Scope

The last section defined an ‘unlawful assembly’, and this section declares who may be
said to be a member of an unlawful assembly, for it is only such a person who can be
punished under s 143, IPC. For a person to be a member of an unlawful assembly, he
must have been aware of the facts which rendered the assembly an unlawful one; and
being so aware, he must have either intentionally joined that assembly or, if he joined it
before being so aware, he must have continued in it after being so aware. In the words of
the commissioner’s second report:

A person is not a member of an unlawful assembly, unless he is aware of the facts

making the assembly unlawful, and the intention of the party joining the assembly is
to be inferred from his cognisance of the facts characterising the assembly as
unlawful, and the common purpose is a matter of inference from the overt acts of the
members of the assembly, their language and gestures as proved in evidence. Khajah
Noorul Hossein v C Fabre-Tonnerre 24 WR 26

Mere presence of a person in an assembly does not make him a member of an unlawful
assembly, unless it is shown that he had done or omitted to do something which would
make him a member of such an assembly, or unless the case falls under this section.
Masathi v State of Uttar Pradesh AIR 1965 SC 202 If there are two explanations for the

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 presence of a particular person on a particular occasion, one of which is lawful and the
other unlawful, it will not be possible to assume an unlawful intention against him.

Where passengers driving in a motor bus decided to engage in some such unlawful
activity as would constitute them to be an unlawful assembly there is no reason why the
paid driver should be presumed to be a member of the unlawful assembly; his presence
there is perfectly well explained by his capacity as the driver. If it is desired to clothe him
with further responsibility, the prosecution must prove not merely that he was present
there, but that he was present there with a positive intention and object which went
beyond his intention to perform his duty in driving the motor bus. Kammoon v Emperor
AIR 1942 All 225

S. 143. Punishment.—

Whoever is a member of an unlawful assembly, shall be punished with imprisonment of

either description for a term which may extend to six months, or with fine, or with both.

Scope

The mere fact of being a member of an unlawful assembly, as defined in s s 141 and 142,
IPC, is punishable under this section. If there is an assemblage of five or more men with
the common object of resisting by force or show of force, the execution of processes of
law, every one of them is guilty of being a member of an unlawful assembly, whether
resistance is offered. If force is used by any member of the assembly each one of them
becomes liable for rioting under s 147, IPC. But if actual resistance is offered, a separate
offence of resistance of the process of law punishable under s 186, IPC is committed.
Sheo Ahir v Emperor AIR 1938 Pat 548 Where the common object of an assembly of five
or more persons is to commit an offence, the purpose for which they are united constitutes

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in itself an offence distinct from the criminal offence which the persons assembled agree
and intend to commit. Mathi Venkanna v Emperor AIR 1923 Mad 592

Spectators cannot be Convicted under this Section

A distinction has, however, to be made between ‘being a member of an unlawful

assembly’ and ‘being present at the place where members of an unlawful assembly have
gathered, as mere spectators cannot be convicted for offences under s 143, IPC. Shamba
Gopi Tari v Upendra Ladu Sawant (1971) Cr LJ 559 (Goa). The Supreme Court has also
held that mere presence of a person at the place where members of an unlawful assembly
have gathered for carrying out their illegal common object, does not incriminate him.
Bishambar Bhagat & Ors v State of Bihar AIR 1971 SC 2381

Sections 143, 147 and 148 Considered Together

Section 143 of the IPC simpliciter refers to punishing a person who is a member of an
unlawful assembly. Section 147, IPC refers to punishment for rioting when force or
violence is used by an unlawful assembly or by any member of it. Section 148 refers to
rioting armed with deadly weapons. Consequently, for punishment under any or all these
sections an unlawful assembly is sine qua non. If there is only one transaction, regarding
which the punishment is meted out and if that punishment is under s 147 or to a particular
accused under s 148, IPC, it is implicit in the finding that there was an unlawful
assembly. If the offender is found guilty of the offence under s 147 or under s 148 the
offence under s 143, IPC is automatically proved.24

Proof

For a conviction under this section, it must be proved that:

(i) there was an assembly of five or more persons;

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 (ii) they had a common object to do one of the acts specified in the five clauses of s
141, IPC;

(iii) the accused was aware of the facts which constituted the assembly an unlawful
assembly; and

(ii) being so aware, he intentionally joined or continued in the unlawful assembly.

In a prosecution under ss 143 and 379, IPC for removing paddy crops from the lands,
possession of which was in dispute, the main question for consideration by a criminal
court is whether the prosecution has established beyond reasonable doubt that the
complainant had raised the crops on the disputed land. Hari Panda v State AIR 1956 Ori
212

It is for the prosecution to show that the common object of a crowd was such as would
constitute it an unlawful assembly as defined by s 141, IPC. Emperor v Peelimuthu Tevan
24 ILR Mad 124

Direct Evidence of Common Object not Possible

To establish the common intention of an unlawful assembly, it is, however, not necessary
to prove that its members actually met and conspired to commit an offence. Such
intention can be inferred from the circumstances of the case. In the case of a concerted
attack by five or more persons, it is a perfectly valid and reasonable inference that they all
had a common intention and were therefore, members of an unlawful assembly. It is not
possible for the prosecution to prove what was in the minds of the persons assembled.
That can only be inferred by the subsequent conduct of the assembly. To establish
common object there cannot be direct evidence. From the established facts, the court will
have to conclude whether the accused were members of an unlawful assembly or whether
they were present at the scene of offence as mere spectators. Spectators cannot be
convicted for offences under s 143, IPC. Shamba Gopi Tari & Ors v Upendra Ladu
Sawant (1971) Cr LJ 559 (Goa). It is also not necessary to prove that a particular member

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of the unlawful assembly committed a particular offence to convict the other members of
the unlawful assembly for the said offence. Himirika Loknath v State (1964) 1 Cr LJ 114

Only what the witnesses saw and heard as to what a mob was doing and saying is
admissible to prove the nature of the assembly; their opinion and impressions that the
assembly appeared to be unlawful are not admissible. Jogi Raut v Emperor AIR 1928 Pat
98

S. 144. Joining unlawful assembly armed with deadly weapon. —

Whoever, being armed with any deadly weapon, or with anything which, used as a
weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be
punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.

Scope

The offence under s 144, IPC is an aggravated form of the offence under s 143, IPC
which makes culpable a membership of an unlawful assembly, and an assembly is
unlawful only when the object of the assembly is one of the five things mentioned in s
141, IPC. Markando Panda v Ronkonidhi Panigrahi (1957) Cr LJ 146 The aggravation
consists in the offender being armed with a deadly weapon.

For a conviction under this section, it is necessary to establish:

(i) that there was an unlawful assembly as defined in s 141, IPC;

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 (ii) that the accused was a member of that assembly as defined in s 142, IPC; and

(iv) that he was armed with a deadly weapon.

‘Deadly Weapon’

The expression ‘deadly weapon’ is not defined in the IPC. The section itself may appear
to make a distinction between a ‘deadly weapon’ and ‘anything which, used as a weapon
of offence, is likely to cause death’. But there seems to be no difference between the two
expressions and the latter expression may be taken to explain the former. No weapon can
be deadly unless it is used. A weapon which when used for its designed purpose is likely
to cause death, is a deadly weapon. Deadly weapons are lethal weapons, such as swords,
daggers, pistols, guns, spears, hammers etc.; it has been held that a spear and a kanta
(Hindi word for a glove with sharp steel claws) are deadly weapons. Sharp-edged
weapons like kirpans, dharia, gupti and knife are also deadly weapons. The test of a
‘deadly weapon’ is not the purpose for which it is carried; it should be of such a nature
that, if used as a weapon of offence, is likely to cause death.

Is Member of an Unlawful Assembly’

This section contemplates the accused being a member of an unlawful assembly as

defined in s 141, IPC, in the first instance. The mere fact that he was armed and was one
of a crowd, though strongly suggesting that the object of the assembly was unlawful, is no
proof thereof. Parma Singh v R 12 Cr LJ 103

S. 145. Joining or continuing in unlawful assembly, knowing it has been commanded to

disperse. —

Whoever joins or continues in an unlawful assembly, knowing that such unlawful

assembly has been commanded in the manner prescribed by law to disperse, shall be
punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
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Scope

The offence punishable under s 143, IPC is being a member of an unlawful assembly; that
under s 144 being such member armed with something which, used as a weapon of
offence, is likely to cause death; and the one under this section is the continuance in an
unlawful assembly ‘knowing that such unlawful assembly has been commanded in the
manner prescribed by law to disperse’. Queen-Empress v Tirakadu 14 ILR Mad 126. This
and the analogous s 151, IPC have to be read with s 129 of the Crpc, sub-s (1) of which
runs thus:…

(1) Any Executive Magistrate or officer in-charge of a police station or, in the
absence of such officer in-charge, any police officer, not below the rank of a sub-
inspector may command any unlawful assembly, or any assembly of five or more
persons likely to cause a disturbance of the public peace, to disperse; and it shall
thereupon be the duty of the members of such assembly to disperse accordingly.

The first part of this sub-section empowers a magistrate or a police officer to command
any unlawful assembly to disperse, and s 145, IPC provides the penalty for joining or
continuing in the unlawful assembly knowing that it has been commanded to disperse.
The second part of sub-s (1) of s 129, Crpc, empowers a magistrate or competent police
officer to command any assembly of five or more persons likely to cause a disturbance of
the public peace, and s 151 of this Code provides the penalty for knowingly joining or
continuing in such an assembly after it has been commanded to disperse. This section
contemplates only an unlawful assembly, but the assembly contemplated by s 151 of the
Code may be a lawful or an unlawful assembly. If the assembly likely to cause
disturbance of the peace is an unlawful assembly within the meaning of s 141, the
offender will be punishable under this section (refer to explanation to s 151 of this Code
post).

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 Disobedience to a command to disperse may also be an offence, punishable under s 188.
Ramchandra Narayan Shastri v Emperor AIR 1931 Bom 520

Essentials of the Offence

To constitute an offence under this section, it is necessary for the prosecution to establish:

(i) there was an assemblage of at least five persons.

(ii) the object of the assembly must be any of the five objects mentioned in s 141,
IPC.

(v) the accused shared that object with at least four others of the meeting or
assembly.

(ii) the accused intentionally joined the assembly:

(iii) having knowledge of the assembly, or

(iii) continued therein after having had that knowledge.

(b) such unlawful assembly had been commanded to disperse.

(i) such command to disperse was in the manner prescribed by law.

(ii) the accused joined or continued in such unlawful assembly after it had been
commanded to disperse; and

(a) he did so know that it had been commanded to disperse. Jagmohan v State of
Orissa (1977) Cr LJ 1394

SS146 to 160 Self study

Chapter XVI Of Offences Affecting the Human Body

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INTRODUCTION

This chapter deals with ‘offences affecting the human body’. These offences are grouped as
follows:

(ii) offences affecting life ( ss 299-311 );

(iii) causing miscarriage, injuries to unborn children, exposure of infants and concealment
of births ( ss 312-318 );

(iv) hurt ( ss 319-338 );

(v) wrongful restraint and wrongful confinement ( ss 339-348 );

(vi) criminal force and assault ( ss 349-358 );

(vii) kidnapping, abduction, slavery and forced labour ( ss 359-374 );

(viii) rape ( ss 375 , 376 , 376A-376E ); and

(ix) unnatural offences ( s 377 ).

‘Life’ as under Section 45

The first groups of offences, affecting the human body, consists of offences affecting life.
The word ‘life’ denotes the life of a human being unless the contrary appears from the
context. In this part of the Code, there is nothing to the contrary and, therefore, ‘life’ simply
means the life of a human being.

‘Human being’

A new-born child becomes a human being for the purpose of criminal law when ‘any part of
that child has been brought forth though the child may not have breathed or been completely
born’ ( s 299 , expln 3, IPC ). The test of separate existence, which is essential to a human
being, in the theory of law (whatever it may be in medical science) is the answer to the

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question ‘whether the child is carrying on its being without the help of the mother’s
circulation?’ If yes, then it has a separate existence even though it may not be fully born; if
no, it has no such separate legal existence.1 The causing of the death of a child in a mother’s
womb is, therefore, not homicide (expln 3), but an offence under ss 312 , 313 , 315 or 316 ,
IPC.

‘Homicide’

The killing of a human being by a human being is termed homicide. It may be lawful or
unlawful homicide. Under s 299 , IPC , homicide becomes culpable when a human being
terminates the life of another in a blameworthy manner. Culpability depends on the
knowledge, motive and the manner of the act of the accused. The offence is punishable under
either s 302 , or s 304 which consists of two parts.

Lawful Homicide

Homicide is not unlawful if it falls within any of the general exceptions in Ch IV. Lawful
homicides may be classified as:

(ii) justifiable homicide, and

(ii) excusable homicide.

Justifiable Homicide

Justifiable is of several kinds as it may be occasioned by the performance of acts, required by

law or done by the permission of law. Thus, it may be homicide by:

i. a person who is bound, or by a mistake of fact, in good faith, believes himself

bound, by law ( s 76 , IPC );
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 ii. a judge acting judicially in the exercise of any power which he possesses, or
in good faith, he believes to possess, under law ( s 77 , IPC );
iii. a person acting in good faith and in pursuance of a judgment or order of a
court ( s 78 , IPC );
iv. a person who is justified, or by a mistake of fact, in good faith, believes
himself to be justified, by law ( s 79 , IPC );
v. a person acting without any criminal intention to cause harm and in good faith
to avert other harm to person or property ( s 81 , IPC ); or
vi. a person exercising his right of private defence ( s 103 , IPC ).

Excusable Homicide

Homicide is excusable in the following cases:

(b) where death is caused by accident or misfortune, and without any criminal intention
or knowledge in the doing of a lawful act, in a lawful manner, by lawful means, and
with proper care and caution ( s 80 , IPC );

(5) where death is caused by a child, or a person or unsound mind, or an intoxicated

person, in the circumstances mentioned in ss 82 , 83 , 84 and 85 , IPC; or

(ii) where death is caused unintentionally by an act done in good faith, for the benefit of
the person killed, when:

(ii) he if a minor or lunatic, his guardian has expressly or impliedly consented to such
an act ( ss 87-88 , IPC ), or

(ii) where it is impossible for the person killed to signify his consent, or where he is
incapable for giving consent, and has no guardian from whom it is possible to
obtain consent in time for the thing to be done with benefit ( s 92, IPC).

Unlawful Homicide

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Species of Unlawful Homicide

There are four species of unlawful homicide:

(iii) Culpable homicide—Defined and explained in ss 229 and 301. Attempt to commit
such offence ( s 308 ). Punishment ( s 304 ).

(iii) Murder— Defined and explained in s 300. Punishment ( s 302 ). Aggravated murder (
s 303 ). Attempt to murder ( s 307 ). A special variety of murder (thugee) ( ss 310 and
311 ), dacoity with murder ( s 396 ).

(iii) Suicide—Abetment thereof and punishment ( ss 305-306 )

(iii) Attempt to commit suicide and the punishment ( s 309 ).

(iii) Dowry death punishable under s 304B .

(iii) Homicide by a rash or negligent act— Punishment ( s 304A ).

Unlawful homicide is not to be compared with ‘culpable homicide’ which expression is used,
in this Code, in a technical sense as denoting the offence defined in s 299. The offence under
s 304A is an unlawful homicide, but it does not amount to ‘culpable homicide’ ( s 304A ).

S. 299. Culpable homicide.—

Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence of culpable homicide.

Illustrations

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 (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or
with the knowledge that death is likely to be thereby caused. Z, believing the
ground to be firm, treads on it, falls in and is killed. A has committed the offence
of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or
knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires
and kills Z. Here B may be guilty of no offence; but A has committed the offence
of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a
bush; A not knowing that he was there. Here, although A was doing an unlawful
act, he was not guilty of culpable homicide, as he did not intend to kill B, or to
cause death by doing an act that he knew was likely to cause death.

Explanation 1.—A person, who causes bodily injury to another, who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall
be deemed to have caused his death.

Explanation 2.—Where death is caused by bodily injury, the person, who causes such
bodily injury, shall be deemed to have caused the death, although by resorting to proper
remedies and skilful treatment, the death might have been prevented.

Explanation 3.—The causing of the death of a child in the mother’s womb is not
homicide. But it may amount to culpable homicide to cause the death of a living child, if
any part of that child has been brought forth, though the child may not have breathed or
been completely born.

This section defines culpable homicide broadly, i.e., culpable homicide simpliciter, and
not culpable homicide not amounting to murder; it lays down that acts, which fall within
the definition given, constitute the offence of culpable homicide. At this stage, the law is
not concerned whether the acts described amount, or do not amount, to murder. All that is
said is that they amount to culpable homicide, which is a wider offence than that of
murder, as all acts of culpable homicide do not amount to murder though, of course, all
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acts of murder are acts of culpable homicide because culpable homicide is the genus,
while murder is a species of culpable homicide. What is left out of culpable homicide,
after the special characteristics of murder have been taken away from it, is culpable
homicide not amounting to murder. ‘Culpable homicide’ is the genus and ‘murder’ is its
species and all ‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are not
‘murders’.

The offence of culpable homicide defined by this section, involves the doing of an act

(a) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

(c) with the knowledge that the act is likely to cause death.

If death is caused in any of these three circumstances, the offence of culpable homicide is
said to be committed. The existence of the three circumstances (a), (b) and (c)
distinguishes homicide, which is culpable, from homicides which are lesser offences, or
which are excusable altogether. The killing comes within the second part of s 299, which
relates to intention of causing bodily injury likely to cause death, it comes under s 304, Pt
I, and if there is no intention but only knowledge, that is to say, if there is no intention to
cause death or a bodily injury likely to cause death, but only knowledge that the death is
likely to be caused, the offence is under s 304, Pt II.

Intent and knowledge in the ingredients of the section postulate the existence of a positive
mental attitude and this mental condition is the special mens rea necessary for the
offence. The guilty intention in the first two conditions contemplates the intended death
of the person harmed or the intentional causing of an injury likely to cause his death. The
knowledge in the third condition contemplates knowledge of the likelihood of the death
of the person.

Three forms of Culpable Homicide

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To fixing punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide. The first is, what may be
called, ‘culpable homicide of the first degree’. This is the gravest form of culpable
homicide, which is defined in s 300 as ‘murder’. The second may be termed as ‘culpable
homicide of the second degree’. This is punishable under the first part of s 304. Then,
there is ‘culpable homicide of the third degree’. This is the lowest type of culpable
homicide punishable under the second part of s 304.

Essentials of Culpable Homicide

Culpable homicide consists of three elements:

(a) death of a human being;

(b) which is caused by the physical conduct of a person; and

(c) the mental attitude of that person towards the consequences of such conduct.

In other words, where one is charged with the offence of culpable homicide, three facts
have to be established. First of all, it must be proved that the person, alleged to be victim
of the offence, is dead; secondly, that he died by the means alleged on the part of the
prosecution; and thirdly, that the accused intentionally took that part in causing his death
which is attributed to him by the prosecution. Emperor v Ananda Bhau 3 Cr LJ 85 So, the
mental element in culpable homicide, ie, the mental attitude of the agent towards the
consequences of his conduct, is one of intention or knowledge. Motive is immaterial, so
far as the offence of culpable homicide is concerned, and therefore, it need not be
established. The intention refers to either the death itself or a bodily injury which is likely
to cause death, i.e., an injury dangerous to life, whilst the knowledge refers to the death
itself. There are, thus, three species of mens rea in culpable homicide: (a) an intention to
cause death; (b) an intention to cause a dangerous injury; and (c) knowledge that death is
likely to happen. Illustrations (a) and (b) to s 299, IPC, give examples of culpable
homicide accompanied by the first or third species and illust (c) shows that unless one or

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other of the three species is present, there can be no culpable homicide. The first class of
culpable homicide is causing death by doing an act with the intention of causing death;
such an offence is also prima facie murder within the express words of s 300. The second
class of culpable homicide is causing death with the intention of causing such bodily
injury as is likely to cause death; this section, in defining this class of culpable homicide,
does not dealt with knowledge at all, and knowledge and intention must not be confused.
The third class of culpable homicide is causing death by an act with knowledge (on the
part of the offender) that he is likely, by such act, to cause death.

‘With the Intention of Causing Death’

The word ‘intention’ means the mental attitude of the man who decides to bring about a
certain result. Every act is followed by consequences. The consequence, necessary to
constitute the offence of culpable homicide, is death. By ‘intention’ is meant the
expectation of the consequence in question and intention does not, therefore, necessarily
involve premeditation or thinking out the killing beforehand. An accused may ‘intend’
certain injuries even if he may not know or intend the serious consequences of those
injuries. A man expects the natural consequences of his acts and, in law, is presumed to
intend them. If, therefore, a person, in performing some act, either: (a) expects death to be
the consequence thereof; or (b) expects a dangerous injury (i.e., a bodily injury likely to
cause death) to be the consequence thereof; or (c) knows that death is a likely
consequence thereof, Gujjar v Emperor 12 Cr LJ 591 and, in each case, death ensues, his
intention in the first two cases, and his knowledge in the third case, renders the homicide
culpable. A guilty intention or knowledge is, thus, essential to this offence, and if this
does not exist, the killing cannot amount to culpable homicide. Empress v Fox ILR 2 All
522.

‘Likely’—Interpretation

The word ‘likely’ means probably. It is distinguished from possibly. When the chances of
a thing happening are even with, or greater than, its not happening, we say that the thing
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will probably happen. When the chances of its happening are extremely high, we say that
it will most probably happen. An injury sufficient in the ordinary course of nature to
cause death merely means that death will be the most probable result of the injury, having
regard to ordinary course of nature.

The expression does not mean that death must result in the case in which such an injury is
caused. Therefore, the expression ‘sufficient in the ordinary course of nature’ is a species
of the genus likely. In ss 299 and 304, the word ‘likely’ is used in a comprehensive sense
as including both the higher and the lower degrees of likelihood. In s 300, the word
‘likely’ is used in the sense of a higher degree of likelihood. In common parlance,
however, the word ‘likely’ is used only as denoting a lower degree of likelihood. It is in
this sense that the word is used in deciding cases to distinguish between an offence falling
under s 302 from that falling under s 304. An effect is ‘likely’ to take place when there is
a likelihood distinguishable from mere possibility. A thing is possible when it may
happen; likely when chances are in favour of its happening, and probable when the
chances are strongly in its favour. Thus, probability is the stronger degree of likelyhood.
A thing may, therefore, be likely without being probable though a thing probable must be
likely. Public Prosecutor v Somasundaram AIR 1959 Mad 323 ‘The offence is culpable
homicide if the bodily injury, intended to be inflicted, is likely to cause death; it is murder
if such injury is sufficient, in the ordinary course of nature, to cause death.’ The
distinction is fine, but appreciable. It is a question of degree of probability. Reg v
Govinda ILR 1 Bom 342

‘Intention’ does not Imply Knowledge of Likelihood of Causing Death

All that the second clause of section 299 requires, is an intention to cause such bodily
injury as is likely to cause death. Here intention neither implies existence of previous
design, nor assumes any forethought. Nor is it necessary that the accused should have
knowledge that the injury, which he intends to cause, will be sufficient, in the ordinary
course of nature, to cause death. The plain words of the second clause of s 299, IPC,
require no proof of knowledge that the bodily injury intended was likely to cause death.
The question is one of fact and may be sub-divided into two parts: (a) was bodily injury
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intended? (b) was such bodily injury likely to cause death? If the answers to both these
questions are in the affirmative, then the offender is guilty of culpable homicide.
However, when one asks whether a bodily injury is likely to cause death, that means as a
natural and probably consequence of the injury, and not as a special and abnormal
consequence of some disability, on the part of the victim, which was unknown to the
offender.

Knowledge

Knowledge, as used in this section, is a word which imports a certainty and not merely a
probability, though intention also includes foresight of certainty. Knowledge, as
contrasted with intention, would more properly signify a state of conscious awareness of
certain facts in which the human mind might itself remain supine or inactive.

‘Intention’ Distinguished from ‘Knowledge’

The framers of the IPC designedly used the words ‘intention’ and ‘knowledge’ and it is
accepted that the knowledge of the consequences which may result in doing an act is not
the same thing as the intention that such consequences should ensue. Firstly, when an act
is done by a person, it is presumed that he must have been aware that certain specified
harmful consequences would or could follow. However, that knowledge is bare
awareness and not the same thing as intention that such, consequences should ensue. As
compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of
the consequences, namely the purposeful doing of a thing to achieve a particular end.

Kenny in Outlines of Criminal Law has observed:

Intention: To intend is to have in mind a fixed purpose to reach a desired objective,

the noun ‘intention’ in the present connection is used to denote the state of mind of a
man who not only foresees but also desires the possible consequences of his conduct.
Thus if one man throws another from a high tower or cuts off his head it would seem
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 plain that he both foresees the victim’s death and also desires it: the desire and the
foresight will also be the same if a person knowingly leaves a helpless invalid of
infant without nourishment or other necessary support until death supervenes. It will
be noted that there cannot be intention unless there is also foresight, since a man
must decide to his own satisfaction, and accordingly must foresee, that to which his
express purpose is directed.

Again, a man cannot intend to do a thing unless he desires to do it. It may well be a
thing that he dislikes doing, but he dislikes still more the consequences of his not
doing it. That is to say he desires the lesser of two evils, and therefore has made up
his mind to bring about that one.

Explanation 1: Accelerating Death or Killing Person Labouring under Disease

A person, causing bodily injury to another, who is labouring under a disorder, disease, or
bodily infirmity, and thereby accelerating the death of that other, is deemed to have
‘caused his death’. Empress of India v Fox ILR 2 All 522 This is what explanation 1 to
this section states. It is not necessary (if it were possible) that the evidence should enable
the court to apportion the two causes and the degree in which each of them contributes to
the result. But the court must be satisfied:

(1) that the death, at the time when it occurs, is not caused solely by the disease; and

(2) that it is caused by the bodily injury to this extent that it is accelerated by such injury.
Suppose A is ill of small-pox and Z gives him pills in such doses that the disease is
aggravated, and death is accelerated. Z has caused death, notwithstanding that it may be
proved that A must have eventually died of the small-pox. Likewise, if A is extremely ill
with fever and B, intending his death, administers large doses of opium, thereby
accelerating A’s death. B kills A. Emperor v Anando Bhau 3 Cr LJ 85

Explanation 2

This explanation provides that where death is caused by injury, the person, who causes it,

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 would be deemed to have caused the death although, by resorting to proper remedies and
skilful treatment, the death might have been prevented. Narayanan Satheesan v State of
Kerala AIR 1977 SC Sellappan v State of Tamil Nadu (2007) 15 SCC 327

In view of the expln 2 of s 299, IPC, no accused can raise the contention that he did not
cause the death as it might have been prevented by resorting to proper remedies and
skilful treatment. If an accused causes an injury on a vital portion of the body and as a
result of it the victim dies, it is no defence to a charge of murder for the accused to say
that rendering of proper and expert medical assistance would have prevented the death
and so he cannot be held liable for murder. Johny v State of Kerala 2015 Cr LJ 1753
(Ker) (DB). The principle, underlying the explanation, seems to be that a man is
responsible for the natural consequences of his conduct and the fact, that those natural
consequences might have been negatived by artificial means, does not affect the question
of liability. Thus, if A deliberately inflicts an injury on B, which is likely to result in his
death by lockjaw, and if B refuses to allow a surgeon to perform an operation to prevent
this and dies, A is guilty of killing B. Similarly, where an injury is intentionally inflicted,
the defence, that no proper medical treatment was given to the victim, does not exonerate
the person, who caused the injury, from the guilt of murder if he intended that the injury
should be sufficient, in the ordinary course of nature, to cause death or knew that it was
likely to cause death of that person. It does not exonerate him from the guilt of culpable
homicide if death ensues as a natural or likely consequence. Such a person is deemed to
have caused the death and his degree of criminal responsibility must depend on the
knowledge or intention to be gathered from the proved facts. Kins v Abor Ahmed AIR
1937 Rang 396.

S. 300. Murder.—

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing death, or—

Secondly.— If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or
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Thirdly.— If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or

Fourthly.— If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits
murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause
his death, strikes him with the intention of causing bodily injury. Z dies in
consequence of the blow. A is guilty of murder, although the blow might not have
been sufficient in the ordinary course of nature to cause the death of a person in a
sound state of health. But if A, not knowing that Z is labouring under any disease,
gives him such a blow as would not in the ordinary course of nature kill a person
in a sound state of health, here A, although he may intend to cause bodily injury,
is not guilty of murder, if he did not intend to cause death, or such bodily injury
as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of

a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of
murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded canon into a crowd of persons and kills one of
them. A is guilty of murder, although he may not have had a premeditated design
to kill any particular individual.

Exception 1.— When culpable homicide is not murder.—Culpable homicide is not

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murder if the offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes the death
of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender as an

excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law,
or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the
right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the
offence from amounting to murder is a question of fact.

Illustrations

(ii) A, under the influence of passion excited by a provocation given by Z,

intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was
not given by the child, and the death of the child was not caused by accident or
misfortune in doing an act caused by the provocation.

(ii) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at
Y, neither intending nor knowing himself to be likely to kill Z, who is near him,
but out of sight. A kills Z. Here A has not committed murder, but merely culpable
homicide.

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 (ii) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by
the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a
thing done by a public servant in the exercise of his powers.

(ii) A appears as a witness before Z, a Magistrate. Z says that he does not believe a
word of A’s deposition, and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is murder.

(ii) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays
hold of A to prevent him from doing so. A is moved to sudden and violent passion
in consequence and kills Z. This is murder, inasmuch as the provocation was
given by a thing done in the exercise of the right of private defence.

(ii) Z strikes B. B is by this provocation excited to violent rage. A, a bystander,

intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife
into B’s hand for that purpose. B kills Z with the knife. Here B may have
committed only culpable homicide, but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good
faith of the right of private defence of person or property, exceeds the power given to him
by law and causes the death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws

out a pistol. Z persists in the assault. A, believing in good faith that he can by no other
means prevent himself from being horsewhipped, shoots Z dead. A has not committed
murder, but only culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender, being a public servant, or
aiding a public servant acting for the advancement of public justice, exceeds the powers,
given to him by law, and causes death by doing an act which he, in good faith, believes to

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be lawful and necessary for the due discharge of his duty as such public servant and
without ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed without premeditation

in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders
having taken undue advantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the provocation or

commits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose death is caused,
being above the age of eighteen years, suffers death or takes the risk of death with his
own consent.

Illustration

A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit

suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own
death; A has therefore, abetted murder.

The nature of culpable homicide having been explained in s 299, IPC, this section sets out
the circumstances when culpable homicide turns into ‘murder’ which is only an
aggravated form of culpable homicide. Section 300, IPC, is not attracted in the absence of
any intention, on the part of the accused, to cause death of the deceased, particularly when
he (i.e. accused) first gives lathi blows on non-vital parts of body of the deceased.
Therefore, unless the cause is brought within any of the five exceptions to this section,
culpable homicide will be murder; but despite the fact that none of the exceptions has
been pleaded, the prosecution is bound to bring the cause under any of the four clauses of
this section. The prosecution has to prove in every case of culpable homicide to attract the
provisions of s 300, IPC, that, the act by which the death was caused was done;

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 1. with the intention of causing death, or
2. with the intention of causing such bodily injury which the
offender knows to be likely to cause the death of the person to
whom the harm is caused, or
3. with the intention of causing bodily injury to any person and
the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or
4. with the knowledge that the act is so imminently dangerous that
it must in all probability cause death or such bodily injury as is
likely to cause death and without any excuse for incurring the
risk of causing death. State of AP v Punnayya AIR 1977 SC 45.

Actus Reus

A person commits homicide when, directly or indirectly, by any means, he or she causes
the death of a human being. There are two kinds of homicide: ‘culpable’ and ‘non-
culpable’ homicide. ‘Non-culpable’ homicide is not an offence. Culpable homicide means
to cause another person’s death by:

i. an unlawful act,
ii. criminal negligence,
iii. causing, by threats or fear of violence or by deception, the deceased to do anything
that causes death, or
iv. wilfully frightening a child or sick person so as to cause death.

Essentials of Murder

Except in cases covered by the five exceptions mentioned in s 300 of the IPC, culpable
homicide is murder if the act by which the death is caused is done with the intention of

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causing death, or if the act falls within any of the 3 clauses of s 300, namely, secondly, thirdly
and fourthly.34 In order that culpable homicide may amount to a murder, as enunciated in this
section, the following two things are essential:

a. The killing must be accompanied by the intention or knowledge, specified in this

section. Culpable homicide is not prime facie murder. It lies on the prosecution to
prove the requisite intention or knowledge. If the prosecution fails to do this, but the
intention or knowledge, requisite under s 299, is established, then the accused is guilty
only of culpable homicide not amounting to murder. Further, ‘intent’ and ‘knowledge’
postulate the existence of positive mental attitude and this mental condition is the
special mens rea which is necessary for the offence.
b. The killing must not fall within one or other of the five exceptions, specified in
this section. If it does, the accused is again guilty only of culpable homicide not
amounting to murder.

‘Murder’ Distinguished from ‘Culpable Homicide’

The distinction between murder and culpable homicide not amounting to murder is often
lost sight of, resulting in undue liberality in favour of undeserving culprits like police
officers. Two offences involve the killing of a person, viz, the offence of ‘culpable
homicide’ and the more heinous offence of ‘murder’. What distinguishes these two
offences is the presence of a special mens rea, which consists of four mental attitudes, in
the presence of any of which the lesser offence becomes the greater. These four mental
attitudes are stated in s 300 and they distinguish murder from culpable homicide. Unless
the offence can be said to involve, at least, one such mental attitude, it cannot be murder.
The distinction between the offences of culpable homicide and murder is the presence of
special mens rea which consists of four mental attitudes in the presence of any of which
the lesser offence becomes greater. These attitudes are stated in s 300, IPC, as
distinguishing murder from culpable homicide not amounting to murder. In considering
whether the offence is murder or culpable homicide not amounting to murder, the manner
of causing injuries to the victim by accused persons as deposed by the prosecution
witness, nature of injuries caused to the victim, part of the body where accused
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person/persons caused injuries to the victim, the weapon/weapons used in the commission
of crime and conduct of the offender/offenders are to be taken into account.

An injury ‘likely to cause death’, within the meaning of s 299(2) may, or may not, fall
within the descriptions, mentioned in cll (2) and (3) of s 300, which both clauses together
do not equal culpable homicide in s 299(2). The offence will amount to murder if the
conditions, laid down in any one, or more, of the four clauses of s 300, are satisfied. If the
offence comes under s 299, or under one, or other, of the exceptions to s 300, it will be
culpable homicide not amounting to murder. If an act is done with the knowledge that the
doer is likely by such act to cause death, the offence is culpable homicide unless the act
done is so imminently dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death and is committed without any excuse, in which
case the offence is murder. If the act is done with the intention of causing such bodily
injury as is likely to cause death, the offence is culpable homicide unless the offender
knows that the act done is likely to cause the death of the person to whom the harm is
caused or if the bodily injury is sufficient, in the ordinary course of nature, to cause death.
Inder Singh v Emperor AIR 1929 Lah 157 The degree of knowledge is a question of fact.
Ugrasen Mukhi v State (1966) 32 Cut LT 589; State of Uttar Pradesh v Ram Sagar Yadav
and Ors AIR 1985 SC 426 Putting it shortly, culpable homicide, as defined under s 299,
does not amount to murder (a) where, though the evidence is sufficient to constitute
murder, one or more of the exceptions to s 300 apply, or (b) where the degree of mens
rea, specified under s 299, is present, but not the special degrees referred to by s 300.
Mohomed Hasan v Emperor AIR 1934 Sind 145 To render culpable homicide murder, the
case must come within the provisions of cl (1), or (2), or (3), or (4), of s 300.

9. Tabular Comparison of Culpable Homicide and Murder

The terms of ss 299 and 300 are almost identical as readily appears from the following
tabular comparison: Shakti Dan v State of Rajasthan 2007 Cr LJ 3426 (SC) ; Sunder Lal v
State of Rajasthan 2007 Cr LJ 3281 (SC) (FB) ; Gita Rani Ghosh v State of West Bengal
2012 Cr LJ 794, p 799 (Cal) (DB).

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Section 299 Section 300

A person commits culpable homicide if the Subject to certain exceptions, culpable

act, by which the death is caused, is done— homicide is murder if the act by which the
death is caused, is done—

Intention

(a) with the intention of causing death; or (1) with the intention of causing death; or

(b) with the intention of causing such bodily (2) with the intention of causing such bodily
injury as is likely to cause death; or injury as the offender knows to be likely to
cause the death of the person to whom the
harm is caused; or

(3) with the intention of causing bodily

injury to any person and the bodily injury
intended to be inflicted is sufficient, in the
ordinary course of nature, to cause death; or

Knowledge

(c) with the knowledge that the act is likely (4) with the knowledge that the act is so
to cause death imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
without any excuse for incurring the risk of
causing death or such injury as is mentioned

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 above.

On a glance of the above table, it will be noticed that not only the actus reus, but also the
mental elements of intention or knowledge, required by the two sections, are the same and
the only distinction between the offences lies in the degree of risk to human life which the
offender intends or knows. If death is a likely result, it is culpable homicide; if it is the
most probable result, it is murder.

Court to Focus on Keywords used in Sections 299 and 300

The academic distinction between ‘murder’ and ‘culpable homicide not amounting to
murder’ has always vexed the courts. The confusion is caused, if courts losing sight of the
true scope and meaning of the terms used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in focus the
keywords used in the various clauses of ss 299 and 300.

Clause Firstly—“With the Intention of Causing Death”

By virtue of this clause, which corresponds with, and is equivalent to, the first clause of s
299, an offence is murder if there is an intention to kill. The intention to kill a person has
to be gathered from certain factors such as, the nature of the weapon used and the vital
part on which the injury was inflicted, and the force with which the weapon was used and
other attendant circumstances. Once the intention to kill is proved, the offence is murder
unless one of the exceptions applies, in which case the offence is reduced to culpable
homicide not amounting to murder. Rajwant Singh v State of Kerala AIR 1966 SC 1874;
State of Rajasthan v Arjun Singh (2011) 9 SCC 115

Clause Secondly

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An intention to kill is not required in every case. Knowledge on the part of the accused,
that the natural or probable consequences of the act would be death, Santosh v State of
Madhya Pradesh AIR 1975 SC 654 or that his act was so imminently dangerous that it
must, in all probability, cause death or such bodily injury which was likely to cause death,
Kelu Ayyappan v State AIR 1959 Ker 230 would suffice. In common parlance, the word
‘likely’ is used only to denote a lower degree of ‘likelihood’, meaning thereby to
distinguish an offence, falling under s 302, IPC, from that falling under s 304, IPC.
Sukhdeo v State AIR 1968 All 151

The second clause of s 300, IPC, mentions one special circumstance which converts
culpable homicide into murder. Putting aside the exceptions in the section, which reduce
the offence of murder to culpable homicide not amounting to murder, culpable homicide
is again considered murder if the offender does the act with the intention of causing such
bodily injury which he knows to be likely to cause the death of the person to whom harm
is caused. Anda v State of Rajasthan AIR 1966 SC 148. This knowledge must be in
relation to the ‘peculiar physical condition’ of the deceased and the accused, having full
knowledge that the injury, intended to be caused, would most likely result in his death on
account of his ‘peculiar physical condition’, causes the injury to him and death ensues.
State of Orissa v Goti Lachhumu Dora (1979) 47 Cut LT 312.

Clause ‘Secondly’ of Section 300 Distinguished from the Second Clause of Section
299

The distinguishing feature of the mens rea requisite under cl (2) is the knowledge
possessed by the offender regarding the victim being in such a peculiar condition or state
of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact
that such harm would not in the ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is
not an essential requirement of cl (2). Only the intention of causing the bodily injury
coupled with the offender’s knowledge of the likelihood of such injury. Clause (b) of s
299 does not postulate any such knowledge on the part of the offender. Instances of cases

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falling under cl (2) of s 300 can be where the assailant causes death by a fist blow
intentionally given knowing that the victim is suffering from an enlarged liver or enlarged
spleen or diseased heart and such blow is likely to cause death of that person as a result of
the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the
assailant had no such knowledge about the disease or special frailty of the victim, nor an
intention to cause death or bodily injury sufficient in the ordinary course of nature to
cause death, the offence will not be murder, even if the injury which caused the death was
intentionally given. Abdul Waheed Khanalias Waheed and Ors v State of Andhra
Pradesh (2002) JT 6 SC 274 ; Ruli Ram and anor v State of Haryana (2002) 7 AD 492
(SC).

Clause (2) of s 300 differs from the second clause of s 299 in the sense that stress is laid
on the knowledge of the offender that he is likely to cause death by the act done. It has,
therefore, ordinarily been applied to those cases where the offender has specific
knowledge of the facts or circumstances which makes the act done particularly dangerous
to the life of the person to whom that harm is done. Thus, if A knows that B is suffering
from an enlarged spleen and, with that fact in his mind, proceeds to give B a violent blow
in the region of the spleen and B dies, the offence will fall under cl (2) of s 300, and not
under the second clause of s 299, because of the special knowledge of A. This is not the
only class of cases which is covered by cl (2) aforesaid, but it is the commonest type of
cases falling under it. Inder Singh v Emperor AIR 1929 Lah 157 If, on the other hand, a
person does an act knowing what its natural and probable consequences will be, then he is
presumed to have intended, by that act, to give rise to such consequences. The intention,
spoken of in the second clause of s 299, is such intention. But the knowledge, mentioned
in the second clause of s 300, is not knowledge of the nature and probable consequences
to an ordinary human being, but the knowledge of the nature and probable consequences
to the particular person to whom the harm is caused. In proving this knowledge, it may
be, and in most cases it is, necessary to have recourse to the natural presumption that a
man is presumed to know the natural and probable consequences of his acts and, in such
cases, the practical question, that arises, is whether, on account of a certain peculiarity,
known to the accused, as a fact, in the person to whom the harm is caused, the
presumption as to knowledge can properly be drawn, having regard to the common course
of natural events. If the answer be in the affirmative, the offence is murder; if the answer

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be in the negative, or there is any reasonable doubt that the presumption can be drawn, the
offence may be culpable homicide if the injury intended was likely to cause the death of
an ordinary human being without being especially likely to cause the death of the person,
to whom the harm is caused, or it may not amount to culpable homicide if the accused
cannot be presumed to have intended to cause an injury likely to cause death. In the last
mentioned class of cases, the offence may be one of the lesser offences, affecting the
human body, determined according to whether the accused intended to cause hurt or
grievous hurt or knew his act to be likely to cause hurt or grievous hurt. 13Thus, the
distinction between knowledge of the natural and probable consequences of an act to an
ordinary human being and the knowledge of the natural and probable consequences to
the particular person, to whom the harm is caused, distinguishes cl (2) of s 299 from cl
(2) of s 300. Empress v Pooshoo 4 WR (Cr) 33 ; Queen v Sheik Choollye 4 WR (Cr) 35.

Clause Thirdly

For cases to fall within this clause, it is not necessary that the offender intended to cause
death if death ensues from the intentional bodily injury or injuries sufficient to cause
death in the ordinary course of nature. Rajwant v State of Kerala AIR 1966 SC 1874
Kishan v State of Madhya Pradesh AIR 1974 SC 244. It must be proved that there was an
intention to inflict that particular bodily injury, which in the ordinary course of nature,
was sufficient to cause death, viz, the injury found to be present was the injury that was
intended to be inflicted. Settu v State of Tamil Nadu 2006 Cr LJ 3889 The sufficiency of
an intentional injury to cause death in the ordinary course of nature is the gist of the
clause, irrespective of an intention to cause death The emphasis is on the sufficiency of
the injury, in the ordinary course of nature, to cause death. Thus, for cases that fall within
cl (3), it is not necessary that the culprits should have the knowledge of death so long as
the intended injuries are sufficient to cause death. Whether an injury is sufficient in the
ordinary course of nature is a question of fact and it does not cease to be sufficient merely
because the person, who inflicts the injury, does not know that it is sufficient. The correct
principle seems to be that a case falls within cl (3) when the degree of probability of death
is very great and certainly so where death is the inevitable result of the intended injuries,
whether the culprits intended death or even did not know that death would result.
Rameshraya and Anor v State of Madhya Pradesh 2001 Cr LJ 1252 (SC)
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Two Parts of Clause ‘Thirdly’

This clause has two parts. The first part is a subjective one which indicates that the injury
must be an intentional one, and not an accidental one and the second part is objective in
the sense that, looking at the injury intended to be caused, the court must be satisfied that
it was sufficient, in the ordinary course of nature, to cause death. Nanku v State AIR 1972
All Cr R 293 These two parts are disjunctive and separate.

Test Laid Down in Virsa Singh’s Case Ingrained in our Legal Systems

In Virsa Singh v State of Punjab AIR 1958 SC 465, Vivian Bose, J, speaking for the
court, explained the meaning and scope of cl (3). It was observed that the prosecution
must prove the following acts before it can bring a case under s 300, ‘thirdly’. First, it
must establish quite objectively, that a bodily injury is present; secondly the nature of the
injury must be proved. These are purely objective investigations. Thirdly, it must be
proved that there was an intention to inflict that particular injury, that is to say, that it was
not accidental or unintentional or that some other kind of injury was intended. Once these
three elements are proved to be present, the inquiry proceeded further, and fourthly it
must be proved that the injury of the type just described made up the three elements set
out above was sufficient to cause death in the ordinary course of nature. This part of the
inquiry is purely objective and inferential, and has nothing to do with the intention of the
offender.

The ingredient of clause ‘thirdly’ of s 300, IPC were brought out by the illustrious judge
in his terse language as follows:

To put it shortly, the prosecution must prove the following facts before it can bring a
case under s 300, “thirdly”.

First, it must establish, quite objectively, that a bodily injury is present;

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 Secondly, the nature of the injury must be proved; these are purely objective
investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some other
kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the
three elements set out above is sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential and has nothing to
do with the intention of the offender.”

Illustration (c) appended to s 300 clearly brings out this point.

Clause ‘Thirdly’ of Section 300 Distinguished from the Second Clause of Section 299

In clause ‘thirdly’ of s 300, instead of the words ‘likely to cause death’, occurring in the
corresponding second clause of s 299, the words ‘sufficient in the ordinary course of
nature’ have been used. Obviously, the distinction is between a bodily injury likely to
cause death and a bodily injury sufficient in the ordinary course of nature to cause death.
This distinction is fine and real, but, if overlooked, may result in miscarriage of justice.
The difference between the second clause of s 299 and clause ‘thirdly’ of s 300 is one of
degree of probability of death, which determines whether a culpable homicide is of the
gravest, medium, or lowest, degree. The word ‘likely’ in the second clause of s 299
conveys the sense of ‘probable’ as distinguished from a mere possibility. The words
‘bodily injury...sufficient in the ordinary course of nature to cause death’, in clause
‘thirdly’ of s 300, mean that death will be the most probable result of the injury having
regard to the ordinary course of nature. 33 If the act done will, in all reasonable probability,
result in death, the offence is murder, whereas if it is only likely to cause death, the
offence is within the second clause of s 299. Inder Singh v Emperor AIR 1929 Lah 157,
Re Dadi Abdul Gaffoor AIR 1955 AP 24 , King v Aung Nyun AIR 1940 Rang 259 (FB) ;
Reg v Govinda ILR 1 Bom 342 Though a large number of blows, inflicted by a light stick,
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might indicate an intention to cause bodily injuries sufficient, in the ordinary course of
nature, to cause death, yet there should be clear medical evidence to support such an
inference; and, in the absence of such evidence, the benefit of doubt, as to whether the
case falls under clause ‘thirdly’ of s 300, should be given to the accused and he should be
convicted only of culpable homicide not amounting to murder under s 304, Pt I, read with
s 299(2) of the IPC. Darhoon Khuda Bux v Emperor AIR 1914 Sind 35

Clause Fourthly—Scope and Applicability of

The fourth clause of this section contemplates the doing of an imminently dangerous act,
in general, and not the doing of any bodily harm to any particular individual. In case of
intentionally causing bodily injury to a particular person, the question, whether such an
act is murder, has to be decided with reference to the first three clauses of the section.
This clause, i.e., the fourth clause, is designed to provide for rare class of cases like
putting lives of many persons in jeopardy, by the act done, as envisaged in illust (d) of the
section and the like. Further, the clause is usually applied to cases where the act of the
offender is not directed against any particular person. There may even be no intention to
cause harm or injury to any particular individual. The act proceeds not from any
malicious intention towards any particular individual, but is the result of a general
disregard for human life and safety. The Supreme Court, in State of Madhya Pradesh v
Ram Prasad , AIR 1968 SC 881 observed that clause fourthly, though usually invoked in
those cases where there is no intention to cause the death of any particular person (as the
illustration shows), may on its terms, be used in those cases also where there is extreme
callousness towards the result and the risk taken is such that it may be stated that the
person knows that the act is likely to cause death or such bodily injury as is likely to
cause death. In Pradeep Kumar Pathak v State , AIR 1980 All LJ 834 the court observed
that the clause ‘fourthly’ of s 300, IPC, envisages knowledge, and not intention. An
assailant, causing deep injury in the chest with a deadly weapon like knife, spear, gun,
etc., must know that he is doing an imminently dangerous act which, in all probability,
would cause death or such bodily injury as is likely to cause death. As it is common
knowledge that the vital organs are found in the chest, therefore if, the deceased dies
within half-an-hour of the causing of a deep injury in his chest by the accused with a

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 deadly weapon like a knife, the accused is liable under the said clause even if the doctor,
who conducts the post-mortem examination, is not examined in evidence.

Essential Requirements of the Fourth Clause

Following are the essential requirements of fourth clause of s 300 :

i. the person, committing the offence, knows that the dangerous character of the act is so
imminent that it must, in all probability, cause death or such bodily injury as is likely
to cause death; Ugrasen Mukhi v State (1966) 32 Cut LT 58944 and
ii. he should have committed the act without any excuse for incurring the risk of causing
death or such bodily injury as is likely to cause death. Abdul Karim v Empress (1872)
92 LBR 65045

For applicability of this clause following are the necessary requirements:

a. the act must be imminently dangerous;

b. the act must be of extra-ordinary recklessness;
c. the danger to human life must be imminent; and
d. the imminence should be such that it will in all probability cause death or cause such
bodily injury as is likely to cause death. Dilipbhai Madhubhai Patel v State of Gujrat
2003 CR LJ 565

Clause (c) of Section 299 and Fourth Clause of Section 300

Clause (c) of s 299 and cl (4) of s 300 both require knowledge of the probability of the act
causing death. It will be sufficient to say that cl (4) of s 300 would be applicable where
the knowledge of the offender as to the probability of death of a person or persons in
general as distinguished from a particular person or persons, being caused from his
imminently dangerous act approximates to a practical certainty. Such knowledge on the
part of the offender must be of the highest degree of probability, the act having been

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committed by the offender without any excuse for incurring the risk of causing death or
such injury as aforesaid. Settu v State of Tamil Nadu 2006 Cr LJ 3889 (SC).

‘Imminently’ and ‘Imminently Dangerous’

The word ‘imminently’ implies a risk which is both threatening and near. The question of
whether an act is imminently dangerous depends upon nature of the act and its evident
risk to human life. The danger threatened must be to human life. It must be an act in
which death of human is certain or almost so, and it would be surprising if the result was
otherwise. Moreover, the danger must not only be of certain or almost certain death, but
of a death which is near and may be counted by number of hours or days. Dilipbhai
Madhubhai Patel v State of Gujrat 2003 Cr LJ 565 (Guj). The man, who strikes another
with a knife in the throat, must know that the blow is so imminently dangerous that it
must, in all probability, cause death and the injury intended to be inflicted is sufficient, in
the ordinary course of nature to cause death. Judagi Mullah v Emperor AIR 1930 Pat 168

Exceptions—

After setting out the four mental conditions, the section lays down five exceptions which
reduce the offence of murder again to ‘culpable homicide’ which may be said to be
culpable homicide not amounting to murder, Anda v State of Rajasthan AIR 1996 SC 148
which mitigates the offence of murder. When a case does not fall under any of the
exceptions of this section, the accused can rightly be convicted under s 302, IPC, as when
he deliberately caused a fatal injury on the most vital part of body of the deceased. If,
however, any one of them is attracted, the prima facie presumption, that the offence is
murder, is removed and the offence becomes ‘culpable homicide not amounting to
murder’. An offence may also amount to culpable homicide, but not murder, even though
none of the exceptions in s 300 is applicable to the case. It must be noted that unless the
act done constitutes, at least prima facie, a murder by reason of the intention, with which
it is found to be done, the court need not consider the exceptions. Shyama Charan Sri
Ram Saran v State AIR 1969 All 61

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The exceptions, specified in this section, are special exceptions which must be
distinguished from the general exceptions specified in ch 4 of IPC. The general
exceptions rebut the prima facie liability of the offender and he is completely exonerated
from blame. But the special exceptions, specified in this section, do not completely
exonerate him, but only mitigate the offence, committed by him, and reduce his liability. 87
The five exceptions, specified in the section, may briefly be stated to arise out of:

(i) provocation;

(ii) right of private defence of person or property;

(iii) exercise of legal powers;

(iv) absence of pre-meditation and heat of passion;

(v) consent.

Operation of Exceptions

As pointed out by Plowden J, in a case, namely, Re Barkatulla, the operation of the five
exceptions to s 300 is practically somewhat different in respect to an act, which falls
within one of the first three clauses of s 300, and in respect to an act which falls within
the fourth clause. The exceptions operate in this way. The existence of all the
circumstances, described in an exception, excuse an act, which would otherwise be
murder within one of the first three clauses, to the extent that the act constitutes only
culpable homicide not amounting to murder, and not murder. Here the act is prima facie
murder unless and until an exception is established. There is no inconsistency involved in
finding that an act falls within one of these clauses and also falls within an exception, for
all the circumstances of any exception may co-exist with the murderous intention. When,
however, an act falls within the fourth clause of s 300 as regards the knowledge, with
which it is done, and the circumstances, constituting an exception, exist, there is this
difference, i.e., it cannot consistently be affirmed (at the end of a trial and upon all the
evidence) as an act, causing death, done with the knowledge described, in one breath that

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it was done without any excuse for running the risk of causing death and in the next
breath that it was done under circumstances which the law declares to be an excuse for
the act of causing death to the extent of preventing the culpable homicide not amounting
to murder. It has been decided, that it is a matter of fact, and not, of law, whether a
particular act of homicide, committed with the knowledge described in cl (4) of s 300 is
committed without any excuse. As the fourth clause is expressed, like the three preceding
clauses, to be subject to the five exceptions, which are legal excuses for murder (as
contra-distinguished from culpable homicide), it is evident that the words ‘without any
excuse’ in cl (4) do not mean merely in the absence of the circumstances described in the
exceptions. A court, as a judge of fact, is left at liberty to affirm, upon proof of
circumstances other than, or falling short of, an exception, not that these circumstances
form an excuse for murder, but that, in view of them, the court is unable to affirm that the
particular act of homicide was committed without any excuse and is, therefore, unable to
pronounce the act to be culpable homicide amounting to murder as defined in cl (4) of s
300.

Burden of Proving Exceptions

In any case, unless one of the various sections of the IPC applies, the onus under s 105 of
the Indian Evidence Act 1872 is not discharged. If an accused pleads an exception, then,
because of s 105 of the Indian Evidence Act 1872, the burden of proving the existence of
circumstances, bringing the case within any of the exceptions, lies upon him and the court
is enjoined to presume the absence of such circumstances. Consequently, the accused
must establish, from the evidence, the existence of such circumstances. The court is
precluded to presume them in the absence of their proof; it is precluded from speculating
and giving the accused any benefit of doubt on the basis of such speculation. Of course,
the accused has merely to satisfy the standard of a prudent man. If the material placed
before the court, such as oral and documentary evidence, presumptions, admissions or
even prosecution evidence, satisfies the test of a prudent man, the accused will be deemed
to have discharged his burden. It may merely raise a reasonable doubt in the mind of the
court as regards one, or other, of the necessary ingredients of the offence itself. It may, for
instance, raise a reasonable doubt (Doctrine of Residual Doubt) in the mind of the court
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whether the accused had the requisite intention, laid down in s 299 of the IPC. If the court
has such a reasonable doubt, it has to acquit the accused because, in that event, the
prosecution must be deemed to have failed to prove conclusively the guilt of the accused.

Exception 1—Scope of

The defence of provocation rests upon the fact that provocation was grave and sudden by
reason of which the accused was deprived of his power of self-control. Neeraj v State
AIR 1978 All LJ 1293 ; Mancini v DPP AIR 1942 Cal 1,; Kannakunnummal Ahmed
Koya v State of Kerala AIR 1967 Ker 92 One of the conditions for the operation of this
exception is that the accused must have used force in consequence of grave and sudden
provocation. One slap cannot constitute grave provocation even though it may be held to
be sudden. Lachmi Kirsani v State 1974 Cut LR 348 (Cr). Mere objectionable or filthy
abuses cannot be said to have deprived one of one’s power of self-control though a very
foul abuse, hurled by the deceased, may be grave and sudden enough to entitle an accused
to the benefit of exception I. It is no defence if the fatal blow is traced not to the influence
of passion, arising from the provocation, but after the passion had cooled down by lapse
of time for premeditation and calculation. Where the accused went home, came armed
with a spear and brought his brothers, who were armed with lathis, it was held that this
interval was enough to cool him down.

It is the temporary loss, and not the permanent or utter absence of reason of self-control,
which is contemplated by this exception and, what is more, such loss of self-control must
be shown to have been caused by a grave and sudden provocative act or conduct of the
victim. Akhtar v State AIR 1964 All 262 An accused, who found his wife, lying with her
paramour, almost naked, killed them by an axe, was held entitled to this exception.
Shyama Charan Sri Ram Saran v State AIR 1969 All 61 But the rule, that when wife,
mother or married sister, living under care of husband, son or brother, is apprehended
having sexual intercourse with a stranger, the killing of that stranger would attract the
benefit of grave and sudden provocation, was held not to extend to cases of first cousin,
second cousin or others. Fakirappa Yellappa Tukkapanawar 1971 Mad LJ 394 (Cr). For a
case of sister, see State of Mysore v Ramaji Ramappa Malagi (1972) 2 Mys LJ 6.

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Law Relating to Exception I

The law, laid down in the undernoted case, KM Nanavati v State of Maharashtra AIR
1962 SC 605 19
relating to exception 1 of s 300, may be stated as under:

(i) the test of grave and sudden provocation is whether a reasonable man, belonging
to the same class of society, to which the accused belongs, and placed in the
situation, in which the accused was placed, would be so provoked as to lose his
self-control; Madhavan v State of Kerala AIR 1966 Ker 25820

(ii) words and gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within exception 1 to s
300;

(iii) the mental background created by the previous act of the victim, may be taken
into consideration in ascertaining whether the subsequent act caused grave and
sudden provocation for committing the offence; Gurubasavaiah v State of
Karnataka 1979 Cr LJ 60321 and

(iv) the fatal blow should be clearly traced to the influence of passion, arising from
that provocation, and not after the passion had cooled down by lapse of time, or
otherwise giving room and scope for premeditation and calculation.

Conditions Necessary for the Application of Exception 1

Under exception 1, culpable homicide is not murder if the following conditions are
satisfied:

(i) there must be provocation to the accused;

(ii) the provocation must be grave;

(iii) the provocation must also be sudden;

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 (iv) the provocation must have deprived the accused of his power of self-control;

(v) the offence must have been committed during loss of self-control; and

(vi) the person killed must have been the person giving provocation, or another by
mistake or accident. BD Khunte v Union of India 2015 Cr LJ 243 (SC), KM
Nanavati v State of Maharashtra AIR 1962 SC 60.

In applying the test, it is of particular importance:

(a) to consider whether sufficient interval had elapsed, since the provocation, to
allow a reasonable man to cool; and

(b) to take, into account, the instrument, with which the homicide was effected,
because a retort in the heat of passion, induced by provocation by a simple blow,
is a very different thing from one by making use of a deadly weapon like a
concealed dagger. State v Mohanasundaram 1973 LW 181 (Cr)

First Proviso

The first proviso to exception 1 of this section says that the provocation will not be
deemed to be grave and sudden when that provocation is sought, or voluntarily caused, by
the offender as an excuse for killing or doing harm to any person. Raj Kumar v State of
Maharashtra (2009) 15 SCC 292 The effect of the proviso is that provocation does not
reduce murder to culpable homicide under the first exception if the provocation is sought,
or courted, by the offender, or if it is voluntarily caused by him, as an excuse for killing
or doing harm to any person. A person cannot ‘pick a quarrel’ with another in order to
fight and then plead the fight as being a provocation. Nor can a man ‘go out of his way’ in
order to be provoked.

Second Proviso

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This proviso is illustrated by illusts (c) and (d). It is not limited to what is done by public
servants only; it also includes acts done by any person in obedience to law. Grave
provocation, given by anything done under cover of obedience to the law, or under cover
of its authority, or by a public servant, or in defence in excess of what is strictly
warranted by the law, in point of violence, or as regards the means used, or the manner of
using them and the like, would be admissible in extenuation of homicide under this
proviso.

Third Proviso

The right of private defence is available against an offence and, therefore, where an act is
done in exercise of the right of private defence, such act cannot give rise to any right of
private defence in favour of the aggressor in return. There is also no right of private
defence in cases where there is time to have recourse to the protection of public
authorities. The right of private defence is essentially a defensive right, circumscribed by
the statute, available only when the circumstances clearly justify it. It would not be
allowed to be pleaded, or availed of as a pretext for a vindictive aggressive or retributive
purpose. According to s 97, IPC, this right vests even in strangers for the defence of the
body or property of other persons against offences mentioned therein. The courts have,
therefore, to be careful in seeing that no one, on the mere pretext of the exercise of the
right of private defence, takes sides in a quarrel between two or more persons and inflicts
injuries on the one or the other. In case, where two parties are having a free fight without
disclosing as to who is the initial aggressor, it may be dangerous as a rule, to clothe, either
of them or his sympathiser, with a right of private defence. Munne Khan v State of
Madhya Pradesh AIR 1971 SC 1491

Exception 2

The IPC recognises the right of private defence of a person and property against certain
offences (s 97, IPC) and declares that nothing is an offence which is done in the exercise
of such right of private defence (s 96, IPC ). The right of private defence, however, is
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made subject to certain restrictions. In the first instance, the right, in no case, extends to
the inflicting of more harm than it is necessary to inflict for the purpose of defence (s 99,
IPC). If, therefore, a person, exercising the right of private defence, causes death where it
is not necessary to do so for the purpose of such defence, he exceeds the power so given
to him by law within the meaning of this exception. State v Satish Sangma AIR 1954
Assam 56Then again, the right extends to the causing of death only in defence against
certain offences enumerated in s s 100 and 103, IPC. Against other offences, the right of
private defence extends only to causing any harm other than death, (ss 101 and 104,
IPC ). Even if death is caused in the exercise of the right of private defence of body or
property against the offence, mentioned in ss 100 and 103, subject of course, to the
restrictions as mentioned in s 99 it is no offence at all (s 96 ), nor even culpable homicide
not amounting to murder, and no question arises as to the application of exception 2 to s
300. State v Satish Sangma AIR 1954 Assam 56 The accused need not affirmatively
establish that he had a right of private defence and he exercised the same in that manner.
This general exception which deals with the right of private defence lays an emphasis on
the reasonable apprehension in the mind of accused while exercising the right of private
defence.

The question of the operation of this exception arises only if the alleged offender exceeds
the right of private defence73 subject to the limitations, that (a) the accused caused the
death of a person without premeditation; and (b) he caused the death of the victim,
without any intention of doing more harm than what was necessary for the purpose of
defence even if the harm caused was more than what was necessary for the purpose of
defence. Dholia Ravji v State (1961) 1 Cr LJ 813 In order to attract the benefit of this
exception, it is necessary to show that the act of the accused was without any intention of
doing more harm than what was necessary for the purpose of private defence. Jharia
Naik v State 35 Cut LT 322 Thus, what this exception means is explained below:

If a person, who possesses the right of private defence, infact, does no more than what is
necessary for him to do, he commits no offence; but if he exceeds the right, it is still a
lesser offence than murder if his intention was to do no more harm than what he believed
necessary in the exercise of his right. The exception deals, in the concluding words, not

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with fact, but with intention, and refers to circumstances, in which a person does not take
advantage of the right of private defence to kill with a vengeful motive, but exceeds that
right by inflicting fatal injuries where their infliction was, in fact, unnecessary and where
there was reckless criminality, though the right of private defence was the only impulse
operating in the mind. Po Mye v King AIR 1940 Rang 129

Requirements of Exception 2

The benefit of this exception can be invoked where an accused person has exercised the
right of private defence of person or property in good faith and, then, had exceeded that
power, which the law had given to him, and has caused the death of his antagonist
without premeditation and without any intention of doing more harm than what was
necessary for the purpose of such defence. In considering the question whether the
accused exceeded the right of private defence, the court has to consider the part played by
the accused persons, gravity of the offence committed and nature of attack made by them.
Normally, if there is non-explanation of the injuries on the person of accused, it may at
the most give scope to argue that the accused had the right of private defence. If the
person has exercised his right (a) in good faith, (b) without premeditation of death, and
(c) without any intention of doing more harm than what was necessary, then his offence
will be culpable homicide not amounting to murder. Siryan v Emperor 17 Cr LJ 270 But
the said three conditions must occur; otherwise the offence will be murder

Exception 3

This exception provides that culpable homicide is not murder if the offender, being a
public servant or aiding a public servant acting for the advancement of public justice,
exceeds the powers, given to him by law, and causes death by doing an act which he, in
good faith, thinks to be lawful and necessary for the due discharge of his duty as a public
servant without ill-will towards the person whose death he has caused. Dakhi Singh v
State AIR 1955 All 379 For the application of this exception, the following facts must be
established, namely:
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 (i) the person, accused of murder, must be a public servant (s 21, IPC ) or one who is
aiding such servant when the latter is acting for the advancement of public justice;

(ii) he must, in good faith as under s 52, IPC, believe that the act, which results in
death, was ‘lawful and necessary’ for the due discharge of his duty; and

(iii) he must act without ill-will towards the person who is killed.

This exception has no application to acts done by a public servant outside his duty. R v
Ahdul Hakim ILR 3 All 253

Exception 4

To invoke this exception four requirements must be satisfied, namely:

(a) it was a sudden fight;

(b) there was no premeditation,

(c) the act was done in a heat of passion; and

(d) assailant had not taken any undue advantage or acted in a cruel manner. The
cause of the quarrel is not relevant, nor is it relevant, who offered the provocation
or started the assault. Further, in order to bring a case under exception 4 to s 300,
IPC, the evidence must show that the accused acted without any premeditation
and in a heat of passion and without having taken undue advantage and that he
had not acted in a cruel or unusual manner. Every one of these circumstances is
required to be proved to attract this exception to s 300, IPC and it is not sufficient
to prove only some of them. State of Rajasthan v Islam 2011 Cr LJ 3110 (SC)

The exception is just for the benefit of the person who cannot invoke the right of private
defence. An occasion to consider the applicability of this exception will arise where the
accused, who had no right of private defence of person, has caused the death of another in

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circumstances which, according to him, would bring his case within the exception. This
means that this exception may be of help to an accused who was the first to strike or to
create an apprehension of danger in the mind of the other and as such could not rely on
any right of private defence of person or, in the circumstances, was not entitled to any
right of private defence. It is to mitigate the gravity of his offence that he may take
advantage of this exception by pleading that he had caused the death of the other without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without
his taking undue advantage or acting in a cruel or unusual manner. Public Prosecutor v
Somasundaram AIR 1959 Mad 323.

Exception 5

The infliction of harm without the consent of the sufferer falls under the general
exception, contained in ss 87 to 93 of IPC. But under those sections, death cannot be
consented to, either expressly or by implication. Refer to ss 87, 88, 89 and 92. Under s 87,
even a person above the age of eighteen years is precluded from giving a valid consent to
an act, intended to cause, or which is known to the doer to be likely to cause death or
grievous hurt. Such a consent will not, therefore, prevent the act from being a crime, but
this exception provides that, in such a case, the person, who kills the consenting party,
shall be guilty of culpable homicide not amounting to murder, and not of murder. Where
a man of full age (i.e. above 18 years) submits himself to emasculation (castration),
performed neither by a skillful hand, nor in the least dangerous way and dies from the
injury, the persons concerned in the act are guilty of culpable homicide not amounting to
murder by virtue of this exception. Queen v Baboolan Hijrah 5 WR 7 (Cr). Consent,
under IPC, is not valid if it is obtained by either misrepresentation or concealment as it
implies not only a knowledge of the risk, but a judgment in regard to it, a deliberate free
act of the mind. In other words, before exception 5 can be applied, it must be found that
the person killed, with full knowledge of the facts, determined to suffer death, or take the
risk of death and this determination continued, and existed till the moment of his death.
Empress v Nayamuddin ILR 18 Cal 484 (FB).

To attract exception 5 to s 300, IPC, there must have been free and voluntary consent of
the deceased. Where both accused and the deceased fell in love and then entered in the
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 pact to commit suicide, the accused inflicted injuries on the deceased causing death and
also inflicted injuries on himself but survived, it was held that exception 5 was attracted
in the case. Narendra v State of Rajasthan 2014 (10) SCC 248

S. 302. Punishment for murder.—

Whoever commits murder shall be punished with death, or 1[imprisonment for life], and
shall also be liable to fine.

Table Showing Sentence to be Awarded in Section 302

The following table shows that appropriate sentence to be awarded in s 302, IPC.

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S. 3 04. Punishment for culpable homicide not amounting to murder.—

Whoever commits culpable homicide not amounting to murder, shall be punished with 14

[imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused
is done with the intention of causing death, or of causing such bodily injury as is likely to
cause death;

or with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury as is likely

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 to cause death.

The section is in two parts; the first part is concerned with culpable homicide committed
with either of the two types of intention and the second part is concerned with culpable
homicide committed with particular knowledge. Afrahim Sheikh v State of West Bengal
AIR 1964 SC 126 The first and second forms of culpable homicide, viz, where there is an
intention to cause death, or bodily injury likely to cause death, fall under the first part of
the section, are under the terms of this section, more severely punished than culpable
homicide of the third form in which there is only knowledge of a likelihood of death
which falls under the second part of the section. Kunda Singh v Emperor (1914) 15 Cr LJ
17817 So, different punishments are prescribed for the offence of culpable homicide not
amounting to murder according to the different state of mind of the offender with which
the act, by which the death is caused, is done. In short, the degree of punishment is made
commensurate with the degree of culpable evidence of the state of mind of the offender
with which the act by which the death is caused, is done. Ibra Akanda v Emperor AIR
1944 Cal 339. The accused picking up a heavy stone weighting about 15 kilograms and
dropping it from the roof of his house on the head of the deceased could be said to have
knowledge that he would by his act likely to cause death of the deceased and so liable
under s 304, Pt II, IPC. Santosh and etc v State of Madhya Pradesh 2000 Cr LJ 1140
(MP).

Applicability

The section 304 applies: Re Kudumula Mahanandi Reddi AIR 1960 AP 141 30

1. when the case falls under one or the other of the clauses of s 300, but is covered by
any of the exceptions to that section; Hansa Singh v State of Punjab AIR 1977 SC
1801 or

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2. when the injury caused is not of the higher degree of likelihood, which is covered by
the expression ‘sufficient in the ordinary course of nature to cause death’, but is of a
lower degree of likelihood which is generally spoken of as an injury likely to cause
death and the case does not fall under cl 2 of s 300 ; Gulab Singh v State of Rajasthan
1974 WLN 168 or
3. when the act is done with the knowledge that death is likely to ensue, but there is no
intention to cause death or an injury likely to cause death. In such cases, there may be
either no intention to cause any injury at all, or there may be an intention to cause
simple or grievous hurt, but not an injury likely to cause death.

The first part of the section postulates a more serious class of offences where the court
can infer that there is a clear intention to cause death, whereas, the second part of the
section contemplates a slightly lesser class of offence where there is knowledge that
the act is likely to cause death, but where the intention to cause death is not present.
Loki alias Lokesha v State of Karnataka 2000 Cr LJ 149 (Kant) (DB). The first part of
the section applies where there is guilty intention and the second where there is no
such intention, but there is knowledge. Harendre Nam Mandal v State of Bihar (1)
(1993) CCR 117 (SC). In Pt I, the mental element or mens rea is intention, whereas,
in Pt II, the mens rea is knowledge. State of Kerala v Daniel Nadar 1971 KLT 182. Pt
II comes into play when death is caused by doing an act with knowledge that it is
likely to cause death, and when such act is the infliction of bodily injury, the infliction
must not be intentional.

Proof

For a conviction under this section, there must be proof that:

1. there was a death of a human being; and

2. it was caused, by the accused, by doing an act:

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 3. with the intention of causing death when the case does not fall under any of the
exceptions mentioned in s 300, or punishment…not amounting to murder;
4. with the intention of causing such bodily injury as is likely to cause death; or
5. with the knowledge that he is likely, by such act, to cause death.

30. Punishment

The first part of this section authorises a sentence of imprisonment for life or
imprisonment of either description for a term which may extend to ten years, and also
fine. The second part of it authorises a sentence of imprisonment of either description for
a term which may extend to ten years, or to fine or both. It is now well settled that
imposition of sentence is the reaction of discretion of the court and unless this sentence is
found to be grossly inadequate, the appellate court would not be justified in interfering
with the discretionary roles of sentence. Ram Sanjiwan Singh v State of Bihar 1996 Cr LJ
2528 (SC).

[S. 304A. Causing death by negligence.—

Whoever causes the death of any person by doing any rash or negligent act not amounting
to culpable homicide, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.]

Comments

Scope and Applicability

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This section is such a provision which discloses that criminality may be there even if
there is no mens rea. In spite of the fact that there may be no motive or intention, a person
may venture to practice such rashness or negligence which may cause the death of
another. The death caused is, therefore, not the determining factor. Kanti Parshad v State
1971 Cr LJ. The section applies only to acts which are not criminal in themselves, but are
punishable by reason of death having been caused Mehr Ilahi v Emperor 12 Cr LJ 485 by
what is described as ‘rash’ or negligent’ act. Shankar Narayan Bhadolkar v State of
Maharashtra 2004 Cr LJ 1778 (SC) The section, thus, applies where there is neither
intention to cause death nor knowledge that the act done will, in all probability, cause
death. The section speaks of death being caused by ‘any rash or negligent act’. It has no
application to a case where death is caused by an act which is, in its nature criminal, i.e.,
where there is an intention to cause death or knowledge that the act done will, in all
probability, cause death. Section 304A comes out as a specific offence where death is
caused by a rash or negligent act and the act does not amount to culpable homicide under
s 299, IPC or murder under s 300. If a person willfully drives a motor vehicle into the
midst of a crowd which amounts to negligent driving; the act, then, will amount to
culpable homicide punishable under s 304. State of Gujarat v Haidarali Kalubhai AIR
1976 SC 1012 Acts, which are offences in themselves, must be judged with regard to the
knowledge, or means of knowledge, of the offender and placed in their appropriate place
in the class of offences of the same character. 57In view of the above, in order to constitute
an offence under s 304A, there must be positive proof that the rash or negligent act of the
accused was the proximate cause, which resulted in the death of the accused, Suleman
Rahiman v State of Maharashtra AIR 1968 SC 829. For an offence punishable under s
304A, the point to be established is that the act of the accused was responsible for
resulting in the death, and such act of the accused was rash and negligent, although it did
not amount to culpable homicide.

Ingredients of the Offence

The following ingredients are required to be established to prove an offence under s

304A, IPC :

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a. death of the person in question;
b. accused to cause such death; and
c. such act of the accused was rash or negligent, although it did not amount to culpable
homicide. State of Tr PS Lodhi Colony, New Delhi v Sanjeev Nanda 2012 Cr LJ 4174

Sections 279 and 304A

To establish either of the ss 279 or 304A, rash and negligent act has to be established, but
the only distinction is that in s 279 rash and negligent act related to the manner of driving
or riding on a public way, while the offence under s 304A extends to any rash and
negligent act falling short of culpable homicide. This section being distinct from s 279, an
accused, if found guilty of rash or negligent act under s 304A as well as ‘negligent
driving’, can be convicted for both the offences.

In Emperor v Omkar Ram Pratap , Emperor v Omkar Ram Pratap 4 Bom LR 679 Sir
Lawrence Jenkins observed as follows:

To impose criminal liability under s 304A, Indian Penal Code, it is necessary that the
death should have been the directly result of a rash and negligent act of the accused
and that act must be the proximate and efficient cause without the intention of
another’s negligence. It must be the causa sine qua non.

The test applied in this case was whether the act was caused without the intervention of
another’s negligence, though contributory negligence on the part of the person killed is no
defence, by itself, to a charge under this section. This case has been followed generally by
the High Courts in India, and applied by the Supreme Court in Kurban Hussein
Mohamedalli Rangawalla v State of Maharashtra AIR 1965 SC 1616

Proof

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 To establish an offence under this section, the prosecution must prove that:

1. there was the death of the person in question;

2. the accused caused the said death; Sheo Pershan Singh v State of Uttar Pradesh 1979
Cr LJ 517 and
3. the act of the accused, causing the death, was rash or negligent, but it did not amount
to culpable homicide.

As in any criminal case, in a case under s 304A also, the prosecution must establish the
guilt of the accused beyond reasonable doubt. The mere fact that the motor cycle leaves
the road and hits against a milestone, would not be presumptive proof of rash or negligent
driving requiring an accused to prove the contrary. The prosecution must stand on its own
legs rather than take advantage of the weakness of the accused. Syad Akbar v State of
Karnataka 1980 SCC (Cr) 59 The accused may refuse to enter any plea; he may refuse to
given an explanation, and he may refuse to examine any witnesses on his behalf. Still
none of these facts can be taken into consideration to assess the guilt of the accused. The
burden of proof, in a criminal case, never shifts and it is on the prosecution to prove its
case. Explanation of an accused, to the plea entered by him or the evidence adduced by
him, may succeed in making the case of the prosecution somewhat doubtful, and to that
extent the plea or the explanation or the evidence may be taken into account by the court.
Similarly, the onus of an accused, if any, in a criminal case, is discharged on the theory of
balance of probabilities.

S. 304B. Dowry death.—

(1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection

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 with any demand for dowry, such death shall be called “dowry death”, and such
husband or relative shall be deemed to have caused her death.

Explanation.—(1) For the purposes of this sub-section “dowry” shall have the
same meanings as in section 2 of the Dowry Prohibition Act 1961 (28 of
1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment
for life.]

Even before this section was inserted in the IPC, the Apex Court in a case Bhagwant
Singh v Commissioner of Police, Delhi AIR 1983 SC 826 stated that greed for dowry,
indeed the dowry system as an institution, calls for severest condemnation. It is evident
that legislative measures such as the Dowry Prohibition Act have not met with the success
for which they were designed. Where death in such cases is due to the crime, the
perpetrators frequently escape from the clutches of the law because of inadequate police
investigation. The Apex Court emphasised the need for expeditious investigation of such
cases and also the need of a female police officer of sufficient rank and status in the
police force to be associated with the investigation from its very inception.

The highly injurious and deleterious effect on the girl, her parents and the society at large
required legislative interference. It started with the enactment of the Dowry Prohibition
Act 1961, containing some penal provisions also. However, as the evil could not be taken
care of by this soft statute, the IPC was amended first by inserting ch XX-A (containing
only s 498-A, IPC ) in it by the Criminal Law (Second Amendment) Act 1983 (46 of
1983); and then, by insertion of s 304B, IPC by the Dowry Prohibition (Amendment) Act
1986 (43 of 1986). Section 498 -A, IPC seeks to protect a married woman from being
subjected to cruelty by her husband or his relative. Section 304B, IPC is aimed at those
who indulge in ‘dowry deaths’. To give teeth to these provisions, Act 46 of 1983 inserted
s 113-A in the Evidence Act, permitting a court to presume, having regard to the

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circumstances of the case, that suicide by the woman was abetted by her husband or his
relative. Similarly, Act 43 of 1986 inserted s 113B in the Evidence Act requiring some
presumption to be drawn in case of dowry death. Amendment was also made in the CrPC
making the offence of dowry death cognizable, non-bailable and triable by a court of
session.3

So far as offence under s 304B, IPC is concerned, there may be different facts and
circumstances of each case. There may be death of woman within two months of her
marriage or within seven years of her marriage. There may be death of woman in an
advanced stage of pregnancy. There may be death of a woman where demand of dowry is
made, with some more cruelty or regular harassment by her husband or any relative of her
husband. Keshav Dev v State of Rajasthan 2005 Cr LJ 3306 (Raj).

If all the other ingredients of s 304-B of the IPC are fulfilled, any death (whether
homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or
occurring otherwise than under normal circumstances shall, as per the legislative
mandate, be called a “dowry death” and the woman’s husband or his relative “shall be
deemed to have caused her death”. The section clearly specifies what constitutes the
offence of a dowry death and also identifies the single offender or multiple offenders who
has or have caused the dowry death. Suresh Kumar v State of Haryana 2014 Cr LJ 551

Analogous Law

Section 113B of the Indian Evidence Act 1872 was inserted by the same Act 43 of 1986
wef 5 January 1986 It reads:

“113B. Presumption as to dowry death.— When the question is whether a person

has committed the dowry death of a woman and it is shown that soon before her death
such woman had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume that such person

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 had caused the dowry death.

Explanation.— For the purposes of this section “dowry death” shall have the same
meaning as in section 304B of the Indian Penal Code (45 of 1860).”

Sections 304B and 306

Section 306 of the IPC is much broader in its application and takes within its fold one
aspect of s 304B of the IPC. These two sections are not mutually exclusive. If a
conviction for causing a suicide is based on s 304B of the IPC, it will necessarily attract s
306 of the IPC. However, the converse is not true. Bhupendra v State of Madhya Pradesh
2014 Cr LJ 546

Sections 304B and 498A, IPC

Section 304B and 498A, IPC are both distinct and separate offences. The ‘cruelty’ is a
common essential ingredient of both the offences. Under s 304B, it is the “dowry death”
that is punishable and such death should have occurred within seven years of the
marriage. In the statute, no such period is mentioned in s 498A, IPC. The husband or his
relative would be liable for subjecting the woman to ‘cruelty’ any time after the marriage.
A person charged and acquitted under s 304B can be convicted under s 498A, IPC. The
demand of dowry is an essential ingredients to attract s 304B, IPC, whereas under s 498A,
IPC the demand of dowry is not the basic ingredient of the offence. Therefore, even if
there is acquittal under s 304B, IPC, still conviction under s 498A can be recorded under
the law. State of UP v Santosh Kumar (2009) 9 SCC 62612

The offence punishable under s 304B, IPC, known as dowry death, was a new offence
created by insertion of the provision in the IPC providing for a more stringent offence
than s 498A. Soni Deverajbhai Babubhai v State of Gujarat AIR 1991 SC 2173
37
Sections 304B and 498A cannot be held to be mutually exclusive. These provisions deal

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with two distinct offences. Keshab Chandra Panda v State 1995 Cr LJ 174 (Ori). Under s
304B, it is ‘dowry death’, i.e., punishable, and such death should have occurred within 7
years of marriage. No such period is mentioned in s 498A. Unlike s 304B, it is not
necessary to establish demand of dowry for conviction under s 498A. Pyare Lal v State of
Haryana AIR 1999 SC 1563 If death occurs due to cruelty under the wider definition of
‘cruelty’ under s 498-A, and is not referable to cruelty in connection with demand of
dowry required under s 304B, then it would not be permissible for the court to convict a
person under s 304B, although he may be liable for conviction under s 498A. State of
Karnataka v KS Manjunatha Chari 1999 Cr LJ 3949 (Kant) (DB).

Unless cruelty is demonstrated to be of a level which would give rise to suicide or that it
has in fact given rise to the committing of the suicide, it would not be correct to record a
conviction under s 304B even in a situation where conviction under s 498A is justified.
State v Shivappa Bhimappa Pathat 2002 Cr LJ NOC 222 (Kant) (DB).

Section 304B has no Retrospective Effect

Section 304B, IPC has no retrospective effect. Article 20(1) of the Constitution provides
protection in respect of conviction for offences. No person as per this provision of the
Constitution shall be convicted of any offence except for violation of the law in force at
the time of commission of the act charged as an offence nor be subject to a penalty
greater than that which might have been inflicted under the law in force at the time of
commission of the offence. Section 304B is a new offence inserted in the IPC wef 19
November 1986 when Act no 43 of 1986 came into force. A person committing such an
offence prior to 19 November 1986 cannot be tried for the offence under s 304B as this
provision of the law was non-existent, nor a charge under s 304B can be framed against
him.

8. Essential Ingredients

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A careful analysis of s 304B, shows that this section has the following essentials: Anguri
Devi v State of Jharkhand 2007 Cr LJ 1074 (Jhar).

1. the death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances;
2. such death should have occurred within seven years of her marriage;
3. she must have been subjected to cruelty or harassment by her husband or any relative
of her husband;
4. such cruelty or harassment should be for or in connection with demand of dowry;
Biswajit Halder alias Babu Halder v State of West Bengal 2007 Cr LJ 2300 (SC).
5. such cruelty or harassment is shown to have been meted out to the woman soon
before her death. Gurdeep Singh v State of Punjab (2011) 2 SCC 408.

In order to hold an accused guilty of an offence under s 304B, IPC, it has to be shown that
apart from the fact that the woman died on account of burn or bodily injury, otherwise
than under normal circumstances, within 7 years of her marriage, it has also to be shown
that soon before her death, she was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any demand for dowry. Only then
would such death be called ‘dowry death’ and such husband or relative shall be deemed
to have caused the death of the woman concerned. Durga Prasad v State of MP 2010 Cr
LJ 3419.

Dowry

For the purposes of sub-s 1 of s 304B, ‘dowry’ shall have the same meaning as in s 2 of
the Dowry Prohibition Act 1961 in view of the explanation to sub-s 1 of s 304B. Section
2 of Dowry Prohibition Act is as follows:

“S. 2. Definition of “dowry”. —In this Act, “dowry” means any property or valuable
security given or agreed to be given either directly or indirectly—
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 1. by one party to a marriage to the other party to the marriage; or
2. by the parents of either party to a marriage or by any other
person, to either party to the marriage or to any other person.

at or before or any time after the marriage in connection with the marriage
of the said parties, but does not include dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat) applies.

Explanation 1.—***.

Explanation 2.—The expression “valuable security” has the same meaning as in s 30

of the Indian Penal Code (45 of 1860).”

According to the definition of ‘dowry’, any property or valuable security given or agreed
to be given either at or before or anytime after the marriage, comes within the meaning of
dowry.89 ‘Dowry’ definition is to be interpreted with the other provisions of the Act
including s 3, which refers to giving or taking dowry and s 4 which deals with penalty for
demanding dowry under the Dowry Prohibition Act 1961 and the IPC. This makes it clear
that even the demand of dowry on other ingredients being satisfied is punishable Pawan
Kumar v State of Haryana AIR 1998 SC 958. Customary payments in connection with
the birth of a child or other ceremonies, are not enveloped within ambit of ‘dowry’. Satvir
Singh v State of Punjab 2001 Cr LJ 4625 (SC).

The definition of ‘dowry’ beyond all proportions is not permissible by s 2 of the Dowry
Prohibition Act 1961. To illustrate, after 4 or 5 years of marriage the husband, being in
some difficulty in his business, requests or demands some money from his father-in-law
directly or through his wife, only with the view that he is able to advance in life. Such
demand cannot be termed as ‘dowry’ State of Punjab v Daljit Singh 1999 Cr LJ 2723
(P&H) (DB).The demand of Rs 50,000 made by the husband and in-laws of the deceased
after 4 years of marriage for sending the husband’s brother abroad cannot be termed as

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‘dowry’ under s 2 of the Dowry Prohibition Act.

Cases not Falling under ‘Demand of Dowry’

Following are the instances which were not found to be ‘demand of dowry’ within the
meaning of s 304B, IPC :

1. when there was no evidence on record to show that land was demanded as dowry
though it was given by the father of the deceased woman in the marriage ritual as
Pasupukumuma, the harassment or cruelty meted out to the deceased by the husband
after marriage, to force her to transfer the land in his name was ‘not in connection
with any demand for dowry’ K Prema S Rao v Yadala Srinivasa Rao 2003 Cr LJ 69
(SC).
2. where letters written by the deceased to her sister, mother and friend as well as the
suicide note and letters written by her mother to her did not show any demand of
dowry, and make the case projected by the prosecution at the trial about demand of a
car unacceptable, and there was no evidence on record to suggest that the deceased
was being maltreated or tortured, except that she was constantly being taunted for not
bringing a car as dowry Gurucharan Kumar v State of Rajasthan (2003) I AD 217
(SC).
3. Customary payment in connection with birth of child or other ceremonies are not
enveloped within the ambit of ‘dowry’ Satvir Singh v State of Punjab 2001 Cr LJ
4625 (SC).
4. When there is no consistency with regard to the amount of gold allegedly demanded,
and the statement of witnesses regarding the promise to give gold after marriage was
missing from their earlier statement under s 161, Crpc, recorded by the investigating
officer, such demands were found as not falling within the meaning of dowry M
Yadaiah v State of Andhra Pradesh 1996 Cr LJ 1456 (AP).
5. The demand made by the accused from the date of the function, held, to celebrate the
seventh month of pregnancy and onwards, cannot be styled as a demand in connection
with the marriage. Such demands have no nexus with the marriage and so the

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 conviction of the accused for the offence under s 304B is unsustainable in law
Balasaheb Annappa Waghmare v State of Maharashtra 1997 Cr LJ 3476 (Bom)
6. The demand of Rs 50,000/- made by the husband and her in-laws after four years of
marriage for sending her husband’s brother abroad cannot be termed as ‘dowry’ under
s 2 of the Dowry Prohibition Act 1961 State of Punjab v Daljit Singh 1999 Cr LJ 2723
(P&H) (DB).
7. When evidence led by the prosecution regarding demand of Rs 15,000 by the
accused-husband was self-contradictory, and even otherwise, such mere demand does
not constitute cruelty or harassment State of Himachal Pradesh v Yograj 1997 Cr LJ
2033.
8. Verbal alteration about money matters between the accused husband and the deceased
wife. Gopi v State 2011 Cr LJ 4815
9. Where the parents of the deceased-wife presented a dining-table to the accused
voluntarily but the accused expressed his preference to cash instead of table does not
constitute cruelty, harassment. S Abboy Naidu v R Sundrarajan 1994 Cr LJ 641
(Mad).
10. Where in the letter written by accused to father of deceased wife, he only requested
him to help in getting service, it is not a demand for dowry. Prabhakar K Ghate v
State of Maharashtra 2004 Cr LJ 5074 (Bom).
11. Demand of clothes from parents of the deceased/wife for family members of the
accused husband in function, i.e., Akhand Ramayan Katha organized at place of the
accused and about condition for parents of the accused to live separately from couple
do not come within definition of dowry. Vikram Singh v State of Rajasthan 2007 Cr
LJ 1622 (Raj).
12. A demand for money on account of some financial stringency or for meeting some
urgent domestic expenses or for purchasing manure cannot be termed as a demand for
dowry as the said word is normally understood. State of Karnataka v Chowdegowda
2007 Cr LJ 2812 (Kant) (DB)
13. Demand of money by accused husband to repay loan is not dowry demand. Modinsab
Kasimsab Kanchagar v State of Karnataka 2013 Cr LJ 2056 (SC)
14. Demand made by the accused husband for purchasing a computer to start a business
six months after the marriage, would not be in connection with the marriage and is not
really a ‘dowry demand’ within the meaning of s 2 of the Dowry Prohibition Act,

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 1961. Conviction of the accused under s 304B, IPC was set aside. Vipin Jaiswal v
State of AP 2013 Cr LJ 2095
15. Where the bride is subjected to ill-treatment and harassment which leads the wife to
commit suicide by consuming poison, but it is not related to dowry demand, accused
would not be convicted under s 304B, IPC. Conviction of the accused under s 304B,
IPC was converted under s 306, IPC.36

Section 304B and Section 498A —Distinction

The offence punishable under s 304B, IPC, known as dowry death, was a new offence
created by insertion of the provision in the IPC providing for a more stringent offence
than s 498A. Soni Deverajbhai Babubhai v State of Gujarat AIR 1991 SC 2173
37
Sections 304B and 498A cannot be held to be mutually exclusive. These provisions deal
with two distinct offences. Keshab Chandra Panda v State 1995 Cr LJ 174 (Ori). Under s
304B, it is ‘dowry death’, i.e., punishable, and such death should have occurred within 7
years of marriage. No such period is mentioned in s 498A. Unlike s 304B, it is not
necessary to establish demand of dowry for conviction under s 498A. Pyare Lal v State of
Haryana AIR 1999 SC 1563 If death occurs due to cruelty under the wider definition of
‘cruelty’ under s 498-A, and is not referable to cruelty in connection with demand of
dowry required under s 304B, then it would not be permissible for the court to convict a
person under s 304B, although he may be liable for conviction under s 498A. State of
Karnataka v KS Manjunatha Chari 1999 Cr LJ 3949 (Kant) (DB). Unless cruelty is
demonstrated to be of a level which would give rise to suicide or that it has in fact given
rise to the committing of the suicide, it would not be correct to record a conviction under
s 304B even in a situation where conviction under s 498A is justified. State v Shivappa
Bhimappa Pathat 2002 Cr LJ NOC 222 (Kant) (DB).

Section 304B Applies even if the Marriage is not valid

Where in the marriage of the deceased with accused no religious rites were performed and
the mandap was not made and there was total absence of participation of the priest and
the barber in the said marriage and the said marriage in Chumauna form was performed

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in the house of prosecution witness, who was the maternal uncle of the deceased. It,
therefore, appeared that the marriage of the deceased with accused was definitely
unlawful and void ab initio, but in view of the evidence on the record, it was crystal clear
that the deceased was living in the house of the accused persons leading marital life as
husband and wife for the last one year prior to the occurrence. The Apex Court has settled
the controversy regarding the concept of the marriage for the purposes of s 304-B of the
IPC in the case of Rema Aggarwal v Anupam , AIR 2004 SC 1418 and has thus observed
in para 12:

The concept of marriage to constitute the relationship of ‘husband’ and ‘wife’ may
require strict interpretation where claims for civil rights, right to property etc may
follow or flow and a liberal approach and different perception cannot be an anathema
when the question of curbing a social evil is concerned.

The Apex Court has further observed:

The concept of “dowry” is intermittently linked with a marriage and the provisions of
the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an
issue further legalistic problems do arise. If the validity of the marriage itself is under
legal scrutiny, the demand of dowry in respect of an invalid marriage would be
legally not recognizable. Even then the purpose for which Sections 498 -A and 304-
B, IPC and Section 113-B of the Indian Evidence Act, 1872 (for short the “Evidence
Act”) were introduced cannot be lost sight of. Legislations enacted with some policy
to curb and alleviate some public evil rampant in society and effectuate a definite
public purpose or benefit positively requires to be interpreted with certain element of
realism too and not merely pedantically or hyper-technically. The obvious objective
was to prevent harassment to a woman who enters into a marital relationship with a
person and later on, becomes a victim of the greed for money. Can a person who
enters into a marital arrangement be allowed to take a shelter behind a smokescreen
to contend that since there was no valid marriage the question of dowry does not
arise? Such legalistic niceties would destroy the purpose of the provisions. Such
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 hairsplitting legalistic approach would encourage harassment to a woman over
demand of money. The nomenclature “dowry” does not have any magic charm
written over it. It is just a label given to demand of money in relation to marital
relationship. The legislative intent is clear from the fact that it is not only the husband
but also his relation who are covered by Section 498-A. Legislature has taken care of
children born from invalid marriages. Section 16 of the Marriage Act deals with
legitimacy of children of void and voidable marriages. Can it be said that Legislature
which was conscious of the social stigma attached to children of void and voidable
marriages closed eyes to plight of a woman who unknowingly or unconscious of the
legal consequences entered into the marital relationship. If such restricted meaning is
given, it would not further the legislative intent. On the contrary, it would be against
the concern shown by the Legislature for avoiding harassment to a woman over
demand of money in relation to marriages. The first exception to Section 494 has
relevance too. According to it, the offence of Bigamy will not apply to “any person
whose marriage with such husband or wife has been declared void by a Court of
competent jurisdiction.” It would be appropriate to construe the expression “husband”
to cover a person who enters into marital relationship and under the colour of such
proclaimed or feigned status of husband subjects the woman concerned to cruelty or
coerce her in any manner or for any of the purposes enumerated in the relevant
provisions - Sections 304-B / 498-A, whatever be the legitimacy of the marriage itself
for the limited purpose of Sections 498 -A and 304-B, of the Indian Penal Code.
Such an interpretation, known and recognized as purposive construction has to come
into play in a case of this nature. The absence of a definition of husband to specially
include such persons who contract marriages ostensibly and cohabitate with such
woman, in the purported exercise of his role and status as ‘husband’ is no ground to
exclude them from the purview of Section 304 -B or 498-A, of the Indian Penal
Code, viewed in the context of the very object and aim of the legislations introducing
those provisions.

On the touchstone of the ratio of the Apex Court referred to above coupled with the facts
mentioned hereinabove, accused falls under the expression of ‘husband’ by solemnizing

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his marriage with the deceased in the Chumauna form of marriage and the accused had
entered into marital relationship with the deceased under the colour of such proclaimed or
feigned status of husband and the absence of definition of husband to specifically include
such person to contract marriage ostensibly and cohabitate with such woman in the
purported exercise of his role and status as husband is no ground to exclude them from
the purview of s 304-B or s 498-A of the IPC, viewed in the context of the very object and
aim of the legislations introducing those provisions. Rohit Das v State of Bihar 2005 Cr
LJ 4 (Jhar).

Section 304B, IPC and Section 113A, Indian Evidence Act

113A. Presumption as to abetment of suicide by a married woman.— When the

question is whether the commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of her husband.

On a plain reading of s 113A of the Indian Evidence Act 1872, it is obvious that if a wife
is shown to have committed suicide within a period of 7 years from the date of marriage,
and there is evidence that she was subjected to cruelty by her husband or his relatives, it
would be permissible for the court to presume that such suicide was abetted by her
husband or by such relatives of her husband. State of Rajasthan v Kesa 2002 Cr LJ 432
(Raj).

33. Section 304B, IPC and Section 113B, Indian Evidence Act 1872

Both s s 304B, IPC, and s 113B of the Indian Evidence Act were inserted by the Dowry

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Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of
dowry deaths. Section 113B reads as follows:

S. 113 B. Presumption as to dowry death.— When the question is whether a person

has committed the dowry death of a woman and it is shown that soon before her death
such woman has been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume that such person
had caused the dowry death.

Explanation.—For the purposes of this section “dowry death” shall have the same
meaning as in s 304B of the Indian Penal Code (45 of 1860).

The necessity for insertion of the two provisions has been amply analysed by the Law
Commission of India in its ninety-first report dated 10 August 1983 on ‘Dowry death and
Law Reform’. Keeping in view the impediment in the pre-existing law in securing
evidence to prove dowry related deaths, the legislature thought it wise to insert a
provision relating to presumption of dowry death, or proof of certain essentials. It is in
this background that s 113B of the Evidence Act, in the Act has been inserted. As per the
definition of ‘dowry death’ in s 304B, IPC, and the wording in the presumptive s 113B of
the Evidence Act, that one of the essential ingredients, amongst others, in both the
provisions is that the concerned woman must have been (soon before her death) subjected
to cruelty or harassment (for or in connection with the demand of dowry). Presumption
under s 113B is a presumption of law. On proof of the essentials 55 mentioned therein, it
becomes obligatory on the court to raise a presumption that the accused caused the dowry
death. The presumption shall be raised only on the proof of the following essentials:

(1) the question before the court must be whether the accused has committed the
dowry death of a woman (this means that the presumption can be raised only if
the accused is being tried for the offence under s 304B );

(2) the woman was subjected to cruelty or harassment by her husband or his relatives;
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 (3) such cruelty or harassment was for or in connection with any demand for dowry;
and

(4) such cruelty or harassment was soon before her death. Kaliyaperumal v State of
Tamil Nadu 2003 Cr LJ 4321 (SC).

The legislative intent is clear that the compelling presumption of s 113B of the Evidence
Act is confined only to cases where proximity of time by itself lands a safe assurance
about the existence of a proximate relation between torture over dowry demand and
unnatural death, as cause and effect.57

Section 304B, IPC and Section 167(2), Crpc

The circumstances of the situation brings the offences under s 304B, out of mischief
of s 167(2)(a)(i), CrPC and lands it under s 167(2)(a)(ii), CrPC. Thus, the result is
that in cases under s 304B, IPC, investigation has to be completed within 60 days
from the date of arrest/surrender of the accused and if the chargesheet is not submitted
then the accused becomes entitled to statutory bail under s 167(2)(a)(ii), CrPC, if he
was ready and furnishes bail bonds. This statutory right that had accrued to him
cannot be defeated.77 But a contrary view is taken by Rajasthan High Court by
observing that it is clear that the offence under s 304B, IPC is punishable for
imprisonment for a term which shall not be less than seven years but which may
extend to imprisonment for life, therefore, provisions of cl (i) of proviso(a) to s
167(2), Crpc would be attracted and if chargesheet has been filed within a period of
90 days, the accused persons are not entitled for bail under s 439 read with s 167(2),
Crpc. Keshav Dev v State of Rajasthan 2005 Cr LJ 3306 (Raj).

48. Proof

It is the settled law that in order to establish charges under s 304-B of the IPC, four
ingredients of the offence were necessarily to be established by the prosecution:

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 i. That the death took place within seven years of the marriage.
ii. The death was not under normal circumstances.
iii. The deceased was tortured and ill- treated with regard to demand of
dowry.
iv. Soon before her death, the deceased was subjected to mental or
physical cruelty with respect to the demand of dowry. Rajinder Kumar
v State of Haryana 2015 Cr LJ 1560 (SC).

The initial burden of proving the death of a woman within seven years of her marriage in
circumstances that are not normal is on the prosecution; such death should be in
connection with or for a demand of dowry which is accompanied by such cruelty or
harassment that eventually leads to the woman’s death in circumstances that are not
normal. After the initial burden of a deemed dowry death is discharged by the
prosecution, a reverse onus is put on the accused to prove his innocence by showing,
inter alia, that the death was accidental. Suresh Kuamr v State of Haryana 2014 Cr LJ
551

S. 305. Abetment of suicide of child or insane person.—

If any person under eighteen years of age, any insane person, any delirious person, any
idiot, or any person in a state of intoxication, commits suicide, whoever abets the
commission of such suicide, shall be punished with death or 29[imprisonment for life], or
imprisonment for a term not exceeding ten years, and also shall be liable to fine.

Scope and Applicability

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The offence of committing suicide itself is, obviously, unpunishable, but its abetment is
punishable under this section and an attempt to commit suicide is punishable under s 309,
IPC. The abetment of suicide by persons of immature years, or of impaired mental
powers, is more severely punished under this section than in the case of normal type of
persons. Mayne observes that suicide is the only offence for which it is impossible to
punish the principal offender. He is already beyond the reach of human law; those, who
instigate him, or help him in the act, remain. Where two persons agree to commit suicide
together, but if the means employed only take effect upon one, the survivor is held guilty
of murder. Purabi Banerjee v Basudeb Mukerjee AIR 1969 Cal 293 A person, who takes
an active part in the suicide of another by actually shooting him or administering poison
to him, would commit culpable homicide not amounting to murder under Exception 5 to s
300, IPC, if the person, being over 18 years of age, gave such consent as defined by s 90,
IPC. If he was younger than 18, or if his consent did not come within the purview of s 90,
he would be guilty of murder. If, however, he did not actually cause the death, but abetted
it within the meaning of s 107, IPC, he would be punishable under s 305 or 306, IPC, as
the person, actually committing suicide, was, or was not, capable of giving consent.

‘Commits suicide’

Suicide is the third offence affecting life; it is self-murder, i.e., a person who kills himself
in a manner which, in the case of another person, would amount to murder, is guilty of
that species of murder called ‘suicide’. The killing must take place by the hand of the
person himself. Purabi Banerjee v Basudeb Mukerjee AIR 1969 Cal 293

Proof

To establish an offence under this section, prove that:

(1) the person in question committed suicide;

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 (2) he was: under 18 years of age, or insane person, or delirious person, or an idiot, or
intoxicated, or at the time of the commission of the offence; and

(3) the accused abetted the commission of the said suicide.

S. 306. Abetment of suicide.—

If any person commits suicide, whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.

This section provides punishment for abetment of suicide generally while the preceding
section provided for abetment of suicide by persons under a disability.

Before s 306, IPC, can be acted upon, there must be clear proof of the fact that the death
in question was a suicidal death.40 Abetment of suicide is confined to the case of persons
who aid and abet the commission of suicide by the hand of the person herself who
commits suicide. When the question is whether commission of suicide by a woman had
been abetted by her husband or any relative of her husband, and it is shown that she had
committed suicide within a period of seven years from the date of her marriage, and that
her husband or such relative of her husband had subjected her to cruelty, the court may
presume having regard to all other circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband. However, the sine qua non for
application of s 306, is the factum of suicide. Where the circumstances did not establish
either murder or abetted suicide, the accused can escape the jaws of ss 300 and 306, IPC,
but they can be caught in the web of s 498A, IPC. The offence of ‘abetment’ must
naturally conform to the definition of that term as given in s 107, that is to say, there must
be instigation, co-operation or intentional assistance given to the suicide. It is not
necessary, nor indeed is it a part of the definition that the suicide should have been
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committed in consequence of the abetment. However, in order to render a person liable as
an abettor, it is of course necessary, as indeed it is in the case of any other offence, that
the abettor should be something more than a mute spectator—spectator hand particeps. It
is conceivable that such presence may encourage a woman to do a deed, which she might
otherwise refrain from. In that case the question whether mere presence amounted to
intentionally aiding another will have to be decided. Suicide is self-murder. Suicide as
such is no crime, as one committing suicide places herself beyond the reach of law, but its
abetment does not. Krushana Hari Debnath v State (1995) CUJ 3049 (Ori).

Ingredients

The necessary ingredients to attract s 306, IPC, are:

(a) a person must commit suicide;

(b) the accused must abet the commission of such suicide. Satvir Singh v State of
Punjab (1998) Cr LJ 405 (P&H).

In order to convict a person under s 306, IPC there has to be a clear mens rea to commit
the offence. It also requires an active act or direct act which led the deceased to commit
suicide seeing no option and this act must have been intended to push the deceased into
such a position that he committed suicide. The accused appellant who was an agriculturist
was alleged to have harassed his agriculture labour (servant) deceased, making allegations
that the deceased had committed theft of some gold ornaments two days prior to his
death. It was also alleged that the appellant had demanded Rs.7,000/- from the deceased
which was given in advance to him at the time when he was kept in employment. The
deceased could not bear the harassment meted out to him, consumed pesticide and
committed suicide. The deceased was highly supersensitive. His conviction under s 306,
IPC was set aside. Gangula Mohan Reddy v State of Andhra Pradesh 2010 Cr LJ 2110
(SC)

Mens Rea

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 The abetment of suicide implies intentional abetment. There can be no abetment if mens
rea is missing. When there was no transaction between the accused and the deceased
lady, and the accused made persistent demand for refund of his amount and also uttered
filthy words to the deceased and the deceased committed suicide under great mental
stress, as accused did not know that the deceased purchased poisonous tablets and
committed suicide, so the accused was not held liable for abetment of suicide.
Vedprakash Bhaiji v State of Madhya Pradesh (1995) Cr LJ 893 (MP).

S. 307. Attempt to murder.—

Whoever does any act with such intention or knowledge, and under such circumstances
that, if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine; and if hurt is caused to any person by such act, the offender shall be
liable either to [imprisonment for life], or to such punishment as is hereinbefore
28

mentioned.

Attempts by life convicts.—29[When any person offending under this section is under
sentence of 30[imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death
ensued, A would be guilty of murder. A is liable to punishment 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 defined by this section, though the
death of the child does not ensure.

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 (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 defined in this section,
and, if by such firing he wounds Z, he is liable to the punishment provided by the
latter part of 31[the first 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 the offence defined
in this section. A places the food on Z’s table or delivers it to Z’s servants to place
it on Z’s table. A has committed the offence defined in this section.

Scope and Applicability

An attempt is an intended, but unfinished, crime, tending, but failing, to effect its
commission. Specific intention to commit the crime of murder is a necessary prerequisite
of this section. In so far as the offence relates to an attempt, the overt act must necessarily
be left unaccomplished because otherwise the prosecution would be for the completed
crime. Apart from the necessary mens rea, actus reus must be more than a preliminary
preparation. The attempt must have gone so far that it would result in the commission of
the crime intended unless frustrated by the intervention of extraneous circumstances,
independent of the will of the accused. So, in order to constitute an offence under this
section, it must be established that the offender did an act (the actus reus) and that act was
actuated by an intention (the mens rea) to go further and to achieve a definite end, which
is a specific crime, namely, murder. The prosecution has to establish both the elements of
the crime by proving that the accused did something, which, in point of law, would be an
intention of the commission of an offence and in taking that step, he was inspired by an
intention to achieve the definite objective which constituted the particular crime.

For the application of this section, it is not necessary that the injury, capable of causing
death, should have actually been inflicted, State of Maharashtra v Balram Bama Patil
AIR 1983 SC 305 because the offence would emerge if the act attempted, if not prevented

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or intercepted, is such as to be sufficient to cause the death of the victim. John alias
Kunjukutty v State of Kerala (1969) Ker LT 488

Three Parts of Section 307

This section, which deals with an attempt to commit the offence of murder, may be
divided into three parts. The first part says that whoever does any act with such intention
or knowledge and under such circumstances, that if he, by that act caused death, he would
be guilty of murder, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine. Here, the stress is laid on
the intention of knowledge of accused and, on the circumstances. All that is, therefore,
necessary, is that the accused should have the intention to commit murder of the victim or
he should have knowledge that he is likely to cause his death. If he commits a certain act
with that intention or knowledge and there are circumstances to show that if he had by
that act caused the death of the victim, he would have been guilty of murder, he may be
punished under this section even though the victim may not be hurt at all. Prakash
Chandra Yadav v State of Bihar 2008 Cr LJ 438 (SC) This is clear from the second part
of the section which says that if hurt is caused to any person by such act, the offender
shall be liable either to imprisonment for life or to such punishment as is hereinbefore
mentioned. So, if no hurt is caused, a lighter punishment is provided in the first part; but
if hurt is caused, then the second part of the section would come into play and the
offender would be liable to an enhanced punishment provided by the second part of the
section. Also, the third part of the section provides that if the offender is already under
sentence of imprisonment for life and if hurt is caused, he may be punished with death.
Ramla v State (1903) 1 Cr LJ 387

3. Essential Ingredients

To constitute an offence under s 307, IPC, two ingredients of the offence must be present:

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 1. an intention of or knowledge relating to commission of murder; and
2. the doing of an act towards it. Parsuram Pandey v State of Bihar (2004) Cr LJ 4978
(SC)53

The essential ingredients required to be proved in the case of an offence under s 307, IPC
are:

1. That the death of a human being was attempted;

2. That such death was attempted to be caused by, or in consequence of the act of the
accused;
3. That such act was done with the intention of causing death; or that it was done with
the intention of causing such bodily injury as;
a. the accused knew to be likely to cause death; or
b. was sufficient in the ordinary course of nature to cause death, or that
the accused attempted to cause death by doing an act known to him to
be so imminently dangerous that it must in all probability cause
a. death, or
b. such bodily injury as is likely to cause death, the
accused having no excuse for incurring the risk of
causing such death or injury. State of Maharashtra v
Kashirao (2003) Cr LJ 4464 (SC)
4. To justify conviction under this section it is not essential that bodily injury capable of
causing death should have been inflicted. State of Madhya Pradesh v Kedar Yadav
(2011) 1 SCC (Cri) 1008

S. 308. Attempt to commit culpable homicide.—

Whoever does any act with such intention or knowledge and under such circumstances
that, if he by that act caused death, he would be guilty of culpable homicide not
amounting to murder, shall be punished with imprisonment of either description for a

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term which may extend to three years, or with fine, or with both; and, if hurt is caused to
any person by such act, shall be punished with imprisonment of either description for a
term which may extend to seven years, or with fine, or with both.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if
he thereby caused death he would be guilty of culpable homicide not amounting to
murder. A has committed the offence defined in this section.

Scope and Applicability

This section corresponds to s 307 with the exception that it deals with an attempt to
commit culpable homicide not amounting to murder. The punishment provided under this
section is less than that provided under the preceding section.

A person commits an offence under this section if he does not act with such intention or
knowledge, and under such circumstances, that if he thereby caused death, he would be
guilty of culpable homicide not amounting to murder. In Om Prakash v State of Punjab, it
was held that:

A person commits an offence under s 308 when he has an intention to commit

culpable homicide not amounting to murder and, in pursuance of that intention, does
an act towards the commission of that offence whether that act be the penultimate act
or not. But this is meant only to show the nature of the intention and of the act
required to constitute the offence. It does not speak of the alternative requirement of
knowledge. Again, except for a few lawyers, nobody knows, or is expected to know,
the fine distinction between culpable homicide amounting to murder and culpable
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 homicide not amounting to murder and it is, therefore, difficult to conceive of a man
to have an intention to commit culpable homicide not amounting to murder.

If an accused 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, he shall
be guilty of committing an offence punishable under s 307, but if an accused did any act
that he would be guilty of culpable homicide not amounting to murder, he shall be guilty
of committing an act punishable under s 308.

Culpable homicide does not amount to murder:

ii. if the act is done with the intention or knowledge referred to in s 300
but under circumstances which would bring the case within one of the
Exceptions mentioned in that section; or
iii. if the act is done with the intention or knowledge referred to in s 299,
IPC but not falling under cll (2), (3) and (4) of s 300, IPC.

In the latter case, it is not necessary that any of the exceptions mentioned in s 300 should
be applicable. Thus, if an accused does not intend to cause death or any bodily injury
which he knows to be likely to cause death or even to cause such bodily injury as is
sufficient in the ordinary course of nature to cause death, this section would apply even if
the case is not covered by any of the exception mentioned in s 300. 4 Where injuries,
including three serious head injuries, with underlying fractures of the skull were inflicted,
it was held that it could be considered sufficient to bring the case of the accused under s
308, because, had the injured died, the accused would have been easily convicted under s
304. Mohanlal v State AIR 1961 Raj 24

S. 3 09. Attempt to commit suicide.—

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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 38
[or with fine, or with both].

Scope

This section punishes the act of ‘attempt to commit suicide’. This section is the only
instance in the whole IPC wherein an attempt is made punishable while what is attempted
is not an offence because the offender, being dead, cannot be punished. In the expression
‘any act towards the commission of such offence’, the word ‘offence’ does not refer to
‘suicide’ but to the ‘attempt to commit suicide’ which is made punishable, as an offence,
under this section.

The question as to whether the suicide was committed explosively or whether it was
committed after prolonged deliberation is wholly irrelevant.

Maruti Shripati Dubal v State of Maharashtra , Maruti Shripati Dubal v State of

Maharashtra (1987) Cr LJ 743 (Bom). is a well-known case decided by a Division Bench
of the Bombay High Court. In that decision, PB Sawant J, as he then was, speaking for
the Division Bench held that s 309 is violative of art 14 as well as art 21 of the
Constitution. The provision was held to be discriminatory in nature and also arbitrary so
as to violate the equality principle enshrined in art 14. Article 21 was construed to include
the ‘right to die’ or to terminate one’s own life. For this reason it was held to violate art
21 also.

State v Sanjay Bhatia, (1985) Cr LJ 931 (Del). is a decision of Delhi High Court, wherein
Sachar J, as he then was, speaking for the Division Bench held that the continuance of s
309 is an anachronism unworthy of human society like ours. However, the question of its
constitutional validity with reference to any provision of the constitution was not
considered.

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In Chenna Jagadeeswar v State of Andhra Pradesh (1988) Cr LJ 549 (AP) a decision by a
Division Bench of Andhra Pradesh High Court, the challenge to the constitutional validity
of s 309, IPC was rejected. The argument that art 21 includes the ‘right to die’ was
rejected. It was also pointed out by Amareshwari J, speaking for the Division Bench that
the courts have sufficient power to see that unwarranted harsh treatment or prejudice is
not meted out to those who need care and attention. This negatives the suggested
violation of art 14.

The first decision of the Supreme Court in P Rathinam/Nagbhusan Patnaik v Union of

India AIR 1994 SCW 1764 by a Division Bench, wherein Hansaria J, speaking for the
Bench rejected the challenge to the constitutional validity of s 309 based on art 14 of the
Constitution, but upheld the challenge on the basis of art 21 of the Constitution. The
earlier decisions of the Bombay High Court and the Andhra Pradesh High Court were
considered and agreement was expressed with the view taken by the Andhra Pradesh
High Court as regards s 309qua art 14. The decision then proceeds to consider the
challenge with reference to art 21 of the Constitution. It was held that art 21 has enough
positive content in it so that is also includes the ‘right to die’ which inevitably leads to the
right to commit suicide. Expressing agreement with the view taken by the Bombay High
Court in respect of the content of art 21, it was held as under: ‘Keeping in view all the
above, we state that right to live of which art 21 speaks of can be said to bring in its trail
the right not to live a forced life’.

The conclusion of the discussion was summarised as under:

On the basis of what has been held and noted above, we state that section 309 of the
Penal Code deserves to be effaced from the statute book to humanise our penal laws.
It is a cruel and irrational provision and it may result in punishing a person again
(doubly) who has suffered agony and would be undergoing ignominy because of his
failure to commit suicide. Then an act of suicide cannot be said to be against religion,
morality or public policy, and an act of attempted suicide has no baneful effect on
society. Further, suicide or attempt to commit it causes no harm to others, because of
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 which state’s interference with the personal liberty of the persons concerned is not
called for.

We, therefore, hold that s 309 violates Article 21 and so, it is void. May it be said that
the view taken by us would advance not only the cause of humanization, which is a
need of the day, but of globalization also, as by effacing section 309 we would be
attuning this part of our criminal law of global wavelength.

In Gyankaur v State of Punjab (1996) Cr LJ 1660 (SC) a Constitutional Bench of the

Supreme Court examined the aforesaid decisions of the High Courts and the Supreme
Court and overruled P Rathinam’s case, stating as follows:

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’ under Article 21. The significant aspect of ‘sanctity of life’ is also not to
be overlooked. Article 21 is a provision guaranteeing protection of life and personal
liberty and by no stretch of imagination can extinction of life be read to be included
in ‘protection of life’. Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, we find it difficult to construe Article 21 to
include within it the ‘right to die’ as a part of the fundamental right guaranteed
therein. ‘Right to life’ is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of ‘right to life’ with respect and in all humility, we find
no similarity in the nature of the other rights, such as the right to ‘freedom of speech’
etc. to provide a comparable basis to hold that the ‘right to life’ also includes the
‘right to die’. With respect, the comparison is inapposite, for the reason indicated in
the context of Article 21. The decisions, relating to other fundamental rights wherein
the absence of compulsion to exercise a right was held to be included within the
exercise of that right are not available to support the view taken in P Rathinam, qua
Article 21.

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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 it but not
that which extinguishes it and is, therefore, inconsistent with the continued existence of
life resulting in effacing the right itself. The ‘right to die’, if any, is inherently
inconsistent with the ‘right to life’ as ‘death’ with ‘life’.

The Constitutional Bench however, approved the view taken in P Rathinam case that s
309 is not violative of art 14 by observing as follows:

With respect, we are in agreement with the view so taken qua Article 14, in P
Rathinam,.

We have already stated that the debate on the desirability of retaining such a penal
provision of punishing attempted suicide, including the recommendation for its
deletion by the Law Commission are not sufficient to indicate that the provision is
unconstitutional being violative of Article 14. Even if those facts are to weigh, the
severity of the provisions is mitigated by the wide discretion in the matter of
sentencing since there is no requirement of awarding any minimum sentence and the
sentence of imprisonment is not even compulsory. There is also no minimum fine
prescribed as sentence, which alone may be the punishment awarded on conviction
under s 309, IPC. This aspect is noticed in P Rathinam for holding that Article 14 is
not violated.

It is pertinent to note that against the decision of Bombay High Court in Maruti Shripati
Dubal v State of Maharashtra (1987) Cr LJ 743 (Bom).the matter came up in appeal
before the Supreme Court and the decision of Bombay High Court was overruled. State
of Maharashtra v Maruti Shripati Dubal (1996) Cr LJ 4457 (SC) In the below mentioned
case, the Supreme Court opined that although s 309 of the IPC (attempt to commit
suicide) has been held to be constitutionally valid in Gian Kaur case, the time has come
when it should be deleted by Parliament as it has become anachronistic. A person

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 attempts suicide in depression, and hence he needs help, rather than punishment, the
Court recommend to Parliament to consider the feasibility of deleting s 309 from the IPC
Aruna Ramchandra Shanbaug v Union of India (2011) 4 SCC 454.

Proof

It is to be proved that the accused did an act in the course of an attempt to commit suicide
and that it was for the purposes of committing suicide.

Where from the evidence of prosecution witness, it is clearly established that when
they tried to take accused into custody, he had attempted to commit suicide by biting a
cyanide capsule, the accused in his statement made under s 313, Crpc, also admitted
that he had tried to bite a cyanide capsule when he was caught by the police, the
acquittal of the accused under s 309 was altered to his conviction under the same
section.78 Where accused mother after altercation with other family members proved
to have locked herself in a room along with the deceased son, circumstantial evidence
listed and witness corroborated prosecution story, conviction of the accused woman
under ss 300 and 309 was found proper. Rukhmini Devi v State (1989) Cr LJ 548 (All)
(DB).

S. 310. Thug.—

Whoever, at any time after the passing of this Act, shall have been habitually associated
with any other or others for the purpose of committing robbery or child-stealing by means
of or accompanied with murder, is a thug.

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 1. Scope

This section defines the term ‘thug’. In order to be thug, a person must:

(i) habitually associate with any other or others;

(ii) for the purpose of committing robbery or child-stealing;

(iii) by means, or accompanied with, murder.

S. 311. Punishment—

Whoever is a thug, shall be punished with 86

[imprisonment for life], and shall also be
liable to fine.

S. 3 19. Hurt.—

Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

1. Scope

Section 319 of the IPC, gives the definition of hurt. It defines that whoever causes bodily
pain, disease or infirmity to any person is said to cause hurt. Section 323 of the IPC

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provides that whoever except in the case provided for by s 34, of the IPC voluntarily
causes hurt shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine which may extend to one thousand rupees, or with
both. Therefore, when a complaint in respect of offences punishable under provisions of
sections of IPC has been presented before the court, the court is bound to make a scrutiny
of the material which has been placed before it for the purpose of finding out whether any
prima facie case has been made out showing commission of offence punishable under
provisions of IPC or any other penal law. The court should not mechanically issue the
process whenever complaint has been presented before the magistrate. The court has to
make the scrutiny qua definition given by the penal provisions of the relevant law brought
in picture by allegations made in the complaint. Jancy Nelson D’Souza v Nelson D’Souza
(2004) Cr LJ 1690 (Bom). Where there was absolutely no allegation in the complaint that
accused persons committed any act for the purpose of causing any bodily pain, disease or
infirmity as contemplated by the provisions of s 319 of the IPC, when that was so there
was no question of issuing process against them for the offence punishable under s 323 of
the IPC.

‘Causes Bodily Pain’

A person, causing bodily pain to another, is said to cause ‘hurt’. However, it is not
necessary that the hurt should be caused by direct physical contact between the accused
and his victim. If a person, by administration of a drug, is thrown into delirium, with the
possible risk of falling into coma and becoming unconscious for the time being, it is clear
that both bodily pain and infirmity is caused. It may be remembered that bodily pain or
infirmity may either be permanent or temporary. Anis Beg v Emperor AIR 1924 All 215
Swelling amounts to hurt. Swelling necessarily causes bodily pain and as such the injury
amounts to hurt within the meaning of s 319 State of Himachal Pradesh v Karam Chand
(1980) Chand LR 21.

‘Infirmity’

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 Infirmity denotes an unsound or unhealthy state of the body or mind, and clearly a state of
temporary mental impairment or hysteria or terror would constitute infirmity within the
meaning of this expressions in this section Jashamal Jhamatmal v Brahmanand
Sarupanand AIR 1944 Sind 19. It is an inability of an organ to perform its normal
function, whether temporarily or permanently Anis Beg v Emperor AIR 1924 All 215.

S. 320. Grievous hurt.—

The following kinds of hurt only are designated as “grievous”:

First.—Emasculation

Secondly.—Permanent privation of the sight of either eye.

Thirdly.—Permanent privation of the hearing of either ear.

Fourthy.—Privation of any member or joint.

Fifthly.—Destruction or permanent imparing of the powers of any member or joint.

Sixthly.—Permanent disfiguration of the head or face.

Seventhly.—Fracture or dislocation of a bone or tooth.

Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the
space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

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Scope

The previous section having defined ‘simple hurt’, this section should logically have
defined ‘grievous hurt’ which is an aggravated form of hurt. However, the framers of the
IPC found it difficult to draw a line between the two forms of hurt, and, following art 309
of the French Penal Code, enumerated eight kinds of hurt and designated them as
‘grievous’. They observed:

We have found it very difficult to draw a line between those bodily hurts, which are
serious, and those which are slight. To draw such a line with perfect accuracy is,
indeed, absolutely impossible; but it is far better that such a line should be drawn,
though rudely, than that offences, some of which approach in enormity to murder,
while others are little more than frolics which a good natured man would hardly
resent, should be classed together...........Who have, therefore, designated certain
kinds of hurt as grievous.

Before a conviction can be passed for the offence of grievous hurt, one of the injuries,
defined in this section; must be strictly proved Empress v Vasta Chela ILR 19 Bom 247.
To make out a case of grievous hurt, therefore, there must be evidence to show that hurt
was caused and that it came within one or more of the eight kinds of hurt enumerated in
this section. If a man died of a blow, it must have been a violent blow, but that is not
technically the same as grievous hurt Queen v Badri Roy 23 WR (Cr) 65. It should be
remembered that it is the court that has to decide whether a bodily injury constitutes hurt
or grievous hurt. It is not the duty of a medical witness to classify a hurt; he is simply to
describe the facts Po Maung v Emperor 4 Cr LJ 202.

Strict Construction of the Section

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Some hurts which are not like those hurts which are mentioned in the first seven clauses,
are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus, a
wound may cause intense pain, prolonged disease or lasting injury to the victim, although
it does not fall within any of the first seven clauses. Before a conviction for the sentence
of grievous hurt can be passed, one of the injuries defined in s 320, IPC must be strictly
proved and the eighth clause is no exception to the general rule of law that a penal statute
must be construed strictly Mathai v State of Kerala 2005 SCC (Cri) 695.

‘First—Emasculation’

Emasculation means depriving a person of masculine vigour, castration. Emasculation

naturally applies only to a man. This clause was inserted to counteract the practice,
common in this country, for women to squeeze men’s testicles on the slightest
provocation.

Secondly—Permanent Privation of the Sight of Either Eye’

An injury of equal gravity is the permanent privation of the sight of either eye, the effect
of which would be depriving the person of the use of his one or both eyes permanently.
The gravity of such an injury lies in its permanency because it deprives a man of the use
of his sight and also disfigures him.

Thirdly—Permanent Privation of the Hearing of Either Ear’

This injury also is classified as grievous injury because it deprives a man of his sense of
hearing. Such injury is caused by a stemming blow, given on the head, ear, or those parts
of the head which communicate with and injure the tympanum or other auditory nerves,
caused by thrusting something into the ear or putting into it, some such substance which

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causes deafness.

‘Fourthly—Privation of any Member or Joint’

This injury is also classified as a grievous injury whereby a man is rendered less able to
defend himself or to annoy his adversary. The term ‘member’, as used here, means
nothing more than an organ or a limb, being a part of a man, capable of performing a
distinct function. As such, it includes eyes, ears, nose, mouth, hands, feet and, in fact, all
distinct parts of the human body designed to perform a distinct offence. A ‘joint’ is a
place where two of more bones or muscles join. Similarly, there are well known joints in
human anatomy at the lower jaw, shoulder, elbow, wrist, thumb, hip, knee and great toe.
All these joints are in the nature of hinges which perform a similar function Ellis’s
Anatomy, tenth edn, pp 85

‘Fifthly—Destruction or Permanent Impairing of the Powers of any Member or

Joint’

The use of limbs and joints of the body are very essential to the discharge of normal
functions of the body in the ordinary course of life. Their deprivation entails lifelong
crippling and makes the person defenceless and miserable. The law has classified the
destruction or permanent impairing of the powers of any member or joint as grievous hurt
as it causes great hardship to the human body by its retention without normal function
which is like amputation.

‘Sixthly—Permanent Disfiguration of the Head or Face’

The word ‘disfigure’, in this section, means to do a man some external injury which
detracts from his personal appearance, but does not weaken him, as the cutting off a
man’s nose or ears. Branding a girl’s cheeks with a red hot iron, which leaves scars of
a permanent character, amounts to disfigurement Re Anta Bin Dadoha 1 BHCR 101.
Likewise, is the case when acid is thrown on victim girls causing disfigurement of
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their faces Syed Shafiq Ahmed v State of Maharashtra and Ors 2002 Cr LJ 1403
(Bom). A cut on the bridge of the nose of a girl, caused by a sharp weapon like a razor
or knife has been held to be permanent disfigurement within the meaning of this
section even though the internal wall, separating the nostrils, is intact. Section 320,
IPC clearly lays down that injuries caused by way of permanent disfiguration of head
or face will be grievous in nature and even though doctor has come to a finding that
injuries are simple but in fact as per provision as laid down in s 320, IPC, this injury
will definitely be grievous in nature Sangeeta Kumari v State of Jharkhand 2004 Cr
LJ 1734 (Jhar).

‘Seventhly—Fracture or Dislocation of a Bone or Tooth’

The term ‘fracture’ has not been defined in IPC. In Maung Po Yi v Ma E Tin , Maung
Po Yi v Ma E Tin AIR 1937 Rang 253 it was held that the primary meaning of the
word ‘fracture’ is breaking, though it is not necessary in the case of a fracture of skull
bone that it should be divided into two separate parts because it may consist merely of
a crack; but if it is a crack, it must be a crack which extends from the outer surface of
the skull to the inner surface, which means the entire depth of the bone, it does not
amount to a fracture. The Patna High Court has also held that where the evidence is
merely that a bone has been cut and there is nothing to indicate the extent of the cut,
whether it is deep or a mere scratch upon the surface, it is impossible to infer from
that evidence alone that grievous hurt has been caused within the meaning of this
section. Mutukdhari Singh v Emperor AIR 1942 Pat 376. However, the said two cases
have not been followed fully in a later decision in Kalya v State , Kalya v State AIR
1955 Raj 36 where the view, expressed in this case, is stated thus:

Ordinarily, fracture means breaking of a bone. Fissured fracture is one, in which there
is no displacement of the fragments, and this condition may be caused by direct or
indirect violence, usually resulting from a fall or a blow from a blunt object. These
fissures may extend far and wide from the point struck, may implicate one or both
tables, and not infrequently run down into the base. A scratch or a cut, which does not
go across the bone, cannot be said to be a fracture of a bone within the meaning of s

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320. Both outer and the inner tables of the skull bone may be considered to be bones
by themselves and fracture of outer or the inner table by itself can be taken to be a
fracture of a bone within the meaning of s 320. A crack, which does not involve both
the tables of the skull bone, may amount to a fracture of a bone. A fissured fracture of
the outer table of the skull bone would, therefore, bring the case within the definition
of a grievous hurt. It would, thus, appear that both the outer and the inner tables of the
skull bone are bones by themselves and fracture of outer or the inner table, by itself,
will be a fracture of a bone within the meaning of this section.

The Supreme Court has, in a later case, said in unambiguous term, that it is not
necessary that a bone should be cut through and through or that the crack must extend
from the outer to the inner surface or that there should be displacement of any
fragment of the bone. If there is a break by cutting or splintering of the bone, or there
is a rupture or fissure in it, it would amount to a fracture. Hori Lal v State of Uttar
Pradesh AIR 1970 SC 1969. It cannot, therefore, be said that unless the crack
extends to the inner side, the hurt cannot be said to be grievous within the meaning of
this section. There can be a cut, though the division or split resulting from the cut
need not be complete. If, however, a cut results only in a scratch and does not go deep
in length into the bone, it will not be a fracture; otherwise, it should be deemed to be
one.

‘Eighthly—Any Hurt...his Ordinary Pursuits’

Under this clause, three different classes of hurt are designated as dangerous. They
are:

Any hurt:

(1) which endangers life, or

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 (2) which causes the sufferer to be, during the space of twenty days, in severe bodily
pain, or

(3) which causes the sufferer to be, during the space of twenty days, unable to follow
his ordinary pursuits State of Gujarat v Samaj AIR 1969 Guj 337.

The said three classes are independent of each other; a hurt of any of the three classes
would be grievous hurt under this clause. An injury, which endangers life, may, unless it
results in instantaneous death, also causes severe bodily pain for twenty days; but an
injury, which causes such pain, may not be dangerous to life and it may still be grievous
hurt under this clause. Where a woman by reason of certain injuries inflicted on her, was
confined to a hospital for only seventeen days, but her life was in danger for three days, it
was held that her injuries amounted to grievous hurt. R v Bassoo Rannah 2 WR (Cr) 29
However, where the medical evidence does not reveal that the abdomen injury had
endangered the life of the victim, there can be no conviction by virtue of this clause.
Jagrup Singh v State of Punjab 1973 Chand LR (Cr) 253 An injury, even if called by the
medical witness to be a grievous one, may still not satisfy the ingredients of s 320 Pratap
Singh v State of Punjab (1981) 7 Cr LT 357.

S. 321. Voluntarily causing hurt.—

Whoever does any act with the intention of thereby causing hurt to any person, or with
the knowledge that he is likely thereby to cause hurt to any person, and does thereby
cause hurt to any person, is said “voluntarily to cause hurt”.

This section defines ‘voluntarily causing hurt’ which is an offence made punishable under
s 323, IPC. Almost every other offence has two elements, viz, actus reus and mens rea. It
is only a certain kind of act and certain intent or knowledge that makes an offence. What
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constitutes a particular offence depends not only upon the nature of the act done (actus
reus), but also upon the nature of the intention or knowledge (mens rea) with which it is
done. Section 319 described the nature of the actus reus or act, which would constitute
the offence of voluntarily causing hurt, punishable under s 323, and this section describes
the mens rea, or the intention or knowledge, necessary to constitute that offence. The
mens rea required to constitute the offence punishable under s 323 is either the intention
of causing such hurt as is described in s 319, or the knowledge that, by this act, the
offender is likely to cause such hurt. If the actus reus described in s 319 and the mens rea,
described in this section are present, the two together would constitute the offence which
is compendiously called ‘voluntarily causing hurt’, and is made punishable under s 323.

‘Voluntarily’

The word ‘voluntarily’, in connection with causing hurt, does not bear quite so wide a
meaning as it does in general in IPC, an effect is said to be caused ‘voluntarily’ if it is
either intended or is known to be likely, or if the doer of the act in question has reason to
believe that effect to be likely to happen. In this section (and in s 322, IPC ), the word is
restricted in meaning to intention or knowledge, and does not, therefore, include a case of
causing hurt by an act which the doer has only reason to believe to be likely to cause hurt
(for which refer to s s 337 and 338, IPC ). That the hurt was caused ‘voluntarily’, in the
above sense, is of the very essence of the offence Emperor v Khudiram Dass 7 Cr LJ 362,
and a verdict of ‘guilty of causing hurt, but not voluntarily’ is in effect a verdict of ‘not
guilty’. However, surgical injury for curing diseases cannot be said to be injury caused
voluntarily punishable under s 326 SD Khetani (Dr) v State of Rajasthan and Anor 1998
Cr LJ 2493 (Raj).

‘To any Person’

The person actually hurt need not necessarily be the person who was intended to be hurt,
e.g., A aims a blow at B, a woman who is carrying a child in her arms, and, failing to hurt

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 B, hits the child R v Sahae Rae ILR 3 Cal 623.

S. 322. Voluntarily causing grievous hurt.—

Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself
to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is
said “voluntarily to cause grievous hurt”.

Explanation.—A person is not said voluntarily to cause grievous hurt except when he
both causes grievous hurt and intends or knows himself to be likely to cause grievous
hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing himself to
be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another
kind.

Illustration

A, intending or knowing himself to be likely permanently to disfigure Z’s face, gives Z a

blow which does not permanently disfigure Z’s face, but which causes Z to suffer severe
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.

Scope

This section defines ‘voluntarily causing grievous hurt’ which is an offence punishable
under s 325, IPC. To make out an offence of voluntarily causing grievous hurt, there must
be some specific hurt, voluntarily inflicted, and coming within some of the eight kinds,
enumerated in s 320.

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In order to determine whether the offence has been committed, both the nature and extent
of the hurt caused and the intention or knowledge of the offender have to be taken into
account. The court has to see that the accused intended to cause grievous hurt, or that he
knew that grievous hurt was likely to be caused, and that such grievous hurt was actually
caused Param Dev v State 1975 Cr LJ 1346.

Explanation

The explanation to this section really unfolds the significance of the expression
‘voluntarily to cause grievous hurt’. It states, in clear terms, that the offence of grievous
hurt is not caused unless the offender both causes grievous hurt and intends, or knows
himself to be likely, to cause grievous hurt.79 It will appear from a perusal of s 325, IPC,
read with this section, that the essential ingredients of the offence of causing grievous
hurt are three, Rambarn Mohton v State AIR 1958 Pat 452 which are as follows:

(1) Grievous hurt as described in s 320, IPC, must first be caused. If the hurt, actually
caused is simple, a person cannot be held guilty of voluntarily causing grievous
hurt even if it was in his contemplation. Ramakrishna Panicker v State of Kerala
AIR 1959 Ker 372

(2) The offender intended, or knew himself to be likely, to cause grievous hurt. If he
intended, or knew himself likely, to cause only simple hurt, he cannot be
convicted for the offence under s 325 even if the resultant hurt was grievous.
Dipa v Emperor AIR 1947 All 408 In other words, to constitute the offence of
voluntarily causing grievous hurt, there must be complete correspondence
between the result and the intention.

(3) The hurt was caused voluntarily. In other words, the causation of the grievous
hurt was either in contemplation or was the likely result of the act done.

In order that a person may be held guilty of an offence of causing grievous hurt, it must
be proved that he either intended, or knew himself to be likely to cause grievous hurt, and
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 not otherwise Abdul Karim v State of Maharashtra 1978 Cr LJ 1485. And even if the
necessary intention is not proved, the requirement of the explanation will stand satisfied if
the offender is shown to have the knowledge that, by his act, he was likely to cause
grievous hurt Joseph Cheriyan v State AIR 1953 Tr & Coch 129. When a man strikes a
woman with a child in her arms, on that part of her person which is close to the head of
the child, it is impossible to say that he does not know that he is likely to cause grievous
hurt to the child.

Determination of Nature of Injury

In the nature of the things, it is difficult to obtain direct proof of what the offender
thought was likely to happen. In all cases, it is really a question of inference from the
nature of the act committed by the offender, his conduct and the surrounding
circumstances of the case. When the act, that he did in the process of causing hurt, is such
as any person of ordinary prudence knows it likely to cause grievous hurt, he may safely
be taken to have intended to cause grievous hurt or, at least, to have contemplated
grievous hurt as likely to occur. If the act was such that nothing more than simple hurt
could reasonably be thought likely to ensue from it, then, although grievous hurt may
unexpectedly have ensued, the offender can be convicted of simple hurt only, assuming
that grievous hurt was not in his contemplation. The means by which the injury is caused
are not the true criterion. If it were so, however grievous an injury may be, the provision
of s 325 will not be attracted if no weapon were used in causing it. The answer really
depends upon the nature of the injury caused and the manner in which the blows were
administered, whether by fists and slaps or by a weapon. Rambaran Mahton v State AIR
1958 Pat 452

S. 323. Punishment for voluntarily causing hurt.—

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Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be
punished with imprisonment of either description for a term which may extend to one
year, or with fine which may extend to one thousand rupees, or with both.

Scope

Section 319, IPC defines ‘hurt’ and s 321, IPC defines ‘voluntarily causing hurt’. This
section declares such voluntarily causing hurt to be an offence and prescribes a
punishment for it. It makes an exception only in cases provided for by s 334, IPC,i.e.,
‘voluntarily causing hurt on provocation’, for which a much lighter punishment is
provided. Section 337, IPC also prescribes a lighter punishment for causing hurt, but there
the hurt caused is not voluntarily, but by doing an act rashly or negligently. Sections 324,
327, 328 and 394, IPC also prescribe punishment for voluntarily causing hurt, but they
prescribe heavier punishment if the hurt is caused in aggravating circumstances, while
this section prescribes a punishment for voluntarily causing simple hurt when there are no
aggravating circumstances. It may be noted that even the voluntary causing of hurt would
not be an offence if the harm caused is so slight that no person of ordinary sense and
temper would complain of such harm State of Karnataka v M Babu Lool Cr LJ 3604
(Kant) CD. In this regard s 95, IPC may also be referred to. Similarly, it would not be an
offence if any of the general exceptions applies to it. Thus, a person causing hurt in the
exercise of the right of private defence of person or property, cannot be convicted of an
offence under this section. Where the accused caused slight injury while rescuing persons
who were unlawfully detained, it was held that he could not convicted of causing hurt
under this section Didar Khan v State AIR 1965 Cal 368.

3. Essential Ingredients

Reading this section with s s 319 and 321, IPC, it would appear that the essential
ingredients of the offence under this section are that:

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 (1) hurt, as described in s 319, must be actually caused; and

(2) it must be caused with the intention of causing it or with knowledge of its being
likely to be caused.

14. Proof

To establish an offence under this section, it has to be proved that:

1. the accused caused hurt, that is, bodily pain, disease or infirmity to the complainant;
and
2. he caused the hurt, voluntarily, that is, he did the act, causing hurt, with:
 the intention of causing hurt to the complainant, or
 the knowledge that he is thereby likely to cause hurt to the
complainant.

S. 324. Voluntarily causing hurt by dangerous weapons or means.—

Whoever, except in the case provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or cutting, or any instrument which, used
as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall
be punished with imprisonment of either description for a term which may extend to three
years, or with fine, or with both.

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 Scope and Applicability

This section deals with a case of causing voluntary hurt by means of an instrument
which, used as a weapon of offence, is likely to cause death. If this section is to be
applied, regard must be had, not to the injury caused, nor even to the part of the body
on which it is caused, but to the weapon with which it is caused. The other
considerations may be taken into account in assessing the punishment, but not in
determining the applicability of this section Shamsher Singh v State of Uttar Pradesh
1968 AWR 512 (SC). To constitute an offence under this section, the extent of the
injury caused is therefore, immaterial. The stress of the section is more on the nature
of the weapon, and not on the gravity of the injury. If bleeding head injuries are
caused with a wooden club and reaper, the offence under s 324, IPC, is made out
Habeeb Khan v State of Karnataka 1981 Cr LJ 562 (Kant).

21. Proof

To secure a conviction under this section, it must be established that:

(a) the accused voluntarily caused hurt; and

(b) the said hurt was caused by a dangerous weapon or means specified in the
section. Re Mooka Nadar AIR 1943 Mad 590

S. 325. Punishment for voluntarily causing grievous hurt.—

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt,
shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

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 Scope

This section prescribes the punishment for voluntarily causing grievous hurt which is
made an offence under s 322, IPC. A person is said to voluntarily cause grievous hurt
when the hurt caused by him, is of the nature of any of the eight kinds of hurt enumerated
in s 320, IPC, and he intends or knows himself to be likely to cause grievous hurt. It may
be presumed from the conduct of several persons, striking another with lathis, that each of
them intends to cause grievous hurt; but such a presumption alone is not sufficient to
establish the offence of causing grievous hurt against an accused unless it is further
shown that that accused actually caused grievous hurt. Dipa v Emperor AIR 1947 All 408
In short, to make out the offence of voluntarily causing grievous hurt, there must be some
specific hurt, voluntarily inflicted within the meaning of s 322, and coming within some
of the eight kinds of hurt enumerated in s 320. Empress v Budri Roy 23 WR (Cr) 65 A
person can be said to voluntarily cause grievous hurt even if, intending or knowing
himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of
another kind.

13. Proof

To establish an offence under this section, the prosecution must establish that:

1. the accused caused grievous hurt; and

2. he did it voluntarily Empress v Kaminee Dossee 12 WR (Cr)
25.

S. 326. Voluntarily causing grievous hurt by dangerous weapons or means.—

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Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt
by means of any instrument for shooting, stabbing or cutting, or any instrument which,
used as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall
be punished with [imprisonment for life], or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.

Scope

This section closely corresponds to s 324, IPC, the only difference between the two being
that while s 324 relates to simple hurt, this section relates to grievous hurt. The offences
under this section and s 324 are only aggravated forms of the offences under s s 325 and
323, IPC, respectively. This section applies only to a person who does a substantive act,
causing grievous hurt, as defined in s 320, IPC, by some dangerous weapon or means.

Section 325, IPC is an exception to this section also. Since this section closely
corresponds to s 324, IPC, the commentary under that section may be read as the
commentary under this section also, and what follows may be read as supplementing that
commentary.

Essential Ingredients

For commission of an offence under s 326, IPC, the essential ingredient is that the
grievous hurt must be caused by means of an instrument of cutting, stabbing, shooting,
etc. Amir Hassain alias Ali v State of Tripura 1998 Cr LJ 4315 (Gau); Santosh Kumar
Shukla v State of UP 2014 (137) AIC 307 (All). The heading of the section provides some
insight into the factors to be considered. The essential ingredients to attract s 326 are: (1)
voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous
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 hurt must have been caused by dangerous weapons or means Mathai v State of Kerala
2005 Cr LJ 898 (SC).

[S. 326A. Voluntarily causing grievous hurt by use of acid, etc.—

Whoever causes permanent or partial damage or deformity to, or burns or maims or

disfigures or disables, any part or parts of the body of a person or causes grievous hurt by
throwing acid on or by administering acid to that person, or by using any other means
with the intention of causing or with the knowledge that he is likely to cause such injury
or hurt, shall be punished with imprisonment of either description for a term which shall
not be less than ten years but which may extend to imprisonment for life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.]

[S. 3 26B. Voluntarily throwing or attempting to throw acid.—

Whoever throws or attempts to throw acid on any person or attempts to administer acid to
any person, or attempts to use any other means, with the intention of causing permanent
or partial damage or deformity or burns or maiming or disfigurement or disability or
grievous hurt to that person, shall be punished with imprisonment of either description for
a term which shall not be less than five years but which may extend to seven years, and
shall also be liable to fine.

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 Explanation 1.—For the purposes of section 326A and this section, “acid” includes any
substance which has acidic or corrosive character or burning nature, that is capable of
causing bodily injury leading to scars or disfigurement or temporary or permanent
disability.

Explanation 2.—For the purposes of section 326A and this section, permanent or partial
damage or deformity shall not be required to be irreversible.]

S. 327. Voluntarily causing hurt to extort property, or to constrain to an illegal act.—

Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from
any person interested in the sufferer, any property or valuable security, or of constraining
the sufferer or any person interested in such sufferer to do anything which is illegal or
which may facilitate the commission of an offence, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to
fine.

Scope

This section punishes voluntarily causing hurt to extort property or to constrain another to
do an illegal act. The simple offence of causing hurt is aggravated by the criminal motive
or object of the offender in causing the hurt.

Proof

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 To establish an offence under this section, the prosecution must prove that:

(1) the accused caused hurt, and

(2) he did so:

b. to commit extortion, or
c. to constrain a person to do anything illegal, or
d. to facilitate the commission of an offence.

S. 328. Causing hurt by means of poison, etc., with intent to commit an offence.—

Whoever administers to or causes to be taken by any person any poison or any stupefying,
intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person,
or with intent to commit or to facilitate the commission of an offence or knowing it to be
likely that he will thereby cause hurt, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Scope

This section punishes causing hurt by means of poison, or any stupefying, intoxicating or
unwholesome drug, or other thing, with the intent to commit an offence. The offence of
administering deleterious drugs, when life is not endangered, is punishable under this
section. Empress v Joygopal 4 (Cr) 4. To administer an innocuous substance, intended to
act as a ‘charm’ is no offence under this section. R v Jottee Ghoraee I WR (Cr)
7.However, it is otherwise if the ‘charm’ causes suffering. Re Dasi Pitchigadu 1 Weir
335 Where poison is administered but the victims escape death owing to ready help
rendered, the question is whether the offence falls under this section or under s 307. In
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Emperor v Israil Mahto , AIR 1931 Pat 346 the question was raised, but, without deciding
it, the High Court convicted the accused under this section on the ground that he was a
youth and probably acted under the instigation of another person, who was absconding,
and even if he was convicted under s 307, he would not have been sentenced to more than
ten years rigorous imprisonment which was the sentence impossible under this section. In
Narayani Dasi v State , 74 CWN 424 a lady-accused, on her lover’s marriage having been
arranged, offered arsenic poison in his food. The lover did not die as the arsenic poison
was in small quantity, but he succumbed due to maltreatment. It was held that the proper
section, which could be invoked to convict the lady, was s 328, and not s 307, IPC.

Essential Ingredients

The following elements are essential to constitute on offence under s 328, IPC :

1. some person or persons should administer and cause to be taken by any person any
poison and stupefying, intoxicating or unwholesome drug, or other thing; and
2. the intention of the person or persons mentioned in (i) should be to cause hurt to the
person concerned, or should be to commit or to facilitate commission of an offence or
there should be knowledge on the part of the person or persons that the result of his
act or their act was likely to cause hurt to the concerned persons

Both these elements should exist conjunctively, then and then alone would the offence be
complete and the person or persons, as the case may be, would be guilty of the offence
contained in s 328. Madhukar Damu Patil v State of Maharashtra 1996 Cr LJ 1062
(Bom) ; Birjo Mahto v State of Bihar 2015 Cr LJ 930 (Pat).

13. Proof

To establish an offence under this section, the prosecution must prove that:

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 1. the accused administered to, or caused to be taken by, any person, a thing;
2. the said thing was poison, or a stupefying, intoxicating or unwholesome drug, or any
other thing; and
3. the accused did so:

i. intending to cause hurt to the said person, or

ii. knowing it to be likely that he will thereby cause hurt, or
iii. intending to commit, or to facilitate the commission of an offence.

S. 329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal

act.—

Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer,
or from any person interested in the sufferer, any property or valuable security, or of
constraining the sufferer or any person interested in such sufferer to do anything that is
illegal or which may facilitate the commission of an offence, shall be punished with
3
[imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

Scope

This section is similar to s 327 of IPC except for the difference that hurt caused in the
offence under this section is grievous, whereas, only simple hurt is caused in an offence
under s 327. The commentary under that section may, therefore, usefully be read under
this section also.

This section will come into play if the act, which the other person is constrained to do, is

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 itself illegal. The illegality appertains to the action that the other person is compelled to
take; it does not arise from the means adopted in constraining that person to take the
action. Jorubha Anandsang v State AIR 1951 Sau 40

S. 330. Voluntarily causing hurt to extort confession, or to compel restoration of

property.—

Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from
any person interested in the sufferer, any confession or any information which may lead
to the detection of an offence or misconduct, or for the purpose of constraining the
sufferer or any person interested in the sufferer to restore, or to cause the restoration of
any property or valuable security or to satisfy any claim or demand, or to give
information which may lead to the restoration of any property or valuable security, shall
be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

Illustrations

(a) A, a police officer, tortures Z in order to induce Z to confess that he committed a

crime. A is guilty of an offence under this section.

(b) A, a police officer, tortures B to induce him to point out where certain stolen
property is deposited. A is guilty of an offence under this section.

(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of
revenue due from Z. A is guilty of an offence under this section.

(d) A, a Zamindar, tortures a ryot in order to compel him to pay his rent. A is guilty of
an offence under this section.

Scope

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This section is similar to s 327, IPC, with the difference that, while that section punished
the causing of hurt for the purpose of extorting property or valuable security or
constraining one to do anything illegal or to commit or facilitate the commission of an
offence, this section deals with the same offence when hurt is caused for the purpose of
extorting a confession, or information, leading to the detection of an offence or
misconduct, or for constraining the sufferer or another to restore any property or valuable
security, or to satisfy any claim or demand or do anything subservient thereto. The
difference between the two sections lies only in the purpose for which the hurt is caused.

To constitute an offence under this section, the hurt must be caused to extort a confession
of some offence or misconduct, etc.; Empress v Baboo Moondu 13 WR (Cr) 23 and
whether that offence or misconduct had been committed is wholly immaterial. Empress v
Nim Chand Mookerjee 20 WR (Cr) 41

Proof

To establish a charge under this section, the prosecution must prove that:

1. the accused voluntarily caused hurt (for which prove all that is required under s 321,
IPC ); and
2. the accused caused such hurt, to the sufferer or other person interested in him:

a) to extort a confession, or some information, which may lead to the detection of an

offence or misconduct, or
b) to constrain such person to restore, or to cause the restoration of, any property or
valuable security, or
c) to satisfy any claim or demand, or
d) to give information which may lead to the restoration of any property or valuable
security.

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S. 331. Voluntarily causing grievous hurt to extort confession, or to compel restoration
of property.—

Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or
from any person interested in the sufferer any confession or any information which may
lead to the detection of an offence or misconduct, or for the purpose of constraining the
sufferer or any person interested in the sufferer to restore or to cause the restoration of
any property or valuable security or to satisfy any claim or demand or to give information
which may lead to the restoration of any property or valuable security, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

Scope and Applicability

This section is similar to s 330, IPC, the only difference being that the hurt caused in a
case under this section is grievous. The commentary under the preceding section may,
therefore, be usefully read under this section also.

The section applies to cases where grievous hurt is caused by a person for the purpose of
having a claim or demand, which the other person owes to him, satisfied, and not to cases
where the claim or demand is owed by the culprit to the victim of assault. Jorubha
Anandsang v State AIR 1951 Sau 40 .

Proof

The elements, which require proof for establishing an offence under s 330, IPC, necessary

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 to be established for securing a conviction under this section, except the fact that hurt
need to be proved, must be grievous hurt, and not merely simple hurt.

S. 332. Voluntarily causing hurt to deter public servant from his duty.—

Whoever voluntarily causes hurt to any person being a public servant in the discharge of
his duty as such public servant, or with intent to prevent or deter that person or any other
public servant from discharging his duty as such public servant, or in consequence of
anything done or attempted to be done by that person in the lawful discharge of his duty
as such public servant, shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.

Scope

So far, the IPC has dealt, under the heading of ‘hurt’, with causing hurt or grievous hurt
to any person. This section deals with causing hurt, and the next section with causing
grievous hurt, to a public servant. A similar provision is to be found in s 353, IPC which
deals with assaulting or using criminal force on a public servant. Except for the nature of
the act done by the offender, in all other respects, the three sections are in exactly the
same or similar terms and they all mean the same thing. The object of this section is to
protect public servants so that they may discharge their duties without fear of being hurt
or assaulted. This protection is given to the public servant not only during, but also before
and after, the execution of his duty. The first clause in each of the said sections speaks of
causing hurt to a public servant while he is engaged in the discharge of his duty. The
second clause speaks of causing hurt to prevent or deter a public servant from discharging
his duty in future, and the third clause speaks of causing hurt in consequence of anything
done by the public servant in the past in the discharge of his duty. The said three clauses
also make it clear that the offence under this section is related not so much to a public

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 servant, but to the discharge of his duty by him. Therefore, merely causing hurt to a
public servant would not constitute an offence under this section if it is not connected
with the discharge of his duty as a public servant, whether in the present, future or past.
As regards mens rea, it is only the second clause that requires an intention to prevent or
deter a public servant from the discharge of his duty. The other two clauses do not require
any particular intention or knowledge. In cases falling under these two clauses, causing
hurt to a public servant is made an offence because it has the effect of preventing or
deterring the public servant from discharging his duty. Hardit Singh v Emperor 12 Cr LJ
236

Proof

To establish an offence under this section, the prosecution must prove that:

(1) the accused voluntarily caused hurt to a public servant; and

(2) the said public servant, at the time of being hurt, was discharging his duty as such
public servant, or

(3) the hurt was caused with intent to prevent or deter that public servant or any other
public servant from discharging his duty as such public servant, or

(4) the hurt was caused in consequence of anything done, or attempted to be done, by
that public servant in the lawful discharge of his duty as such public servant.

In the absence of corroboration by medical evidence, the allegation that the injured was
beaten by the accused, was not believed in Nirbhai Singh v State of Madhya Pradesh .
1972 Cr LJ 1474

S. 333. Voluntarily causing grievous hurt to deter public servant from his duty.—

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Whoever voluntarily causes grievous hurt to any person being a public servant in the
discharge of his duty as such public servant, or with intent to prevent or deter that person
or any other public servant from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by that person in the lawful
discharge of his duty as such public servant, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to
fine.

Scope

An offence under this section is an aggravated form of the same offence, which has been
dealt within the preceding section, with the only difference that hurt caused under this
section is grievous hurt, on account of which the section provides an enhanced penalty.
The commentary on the preceding s 332, IPC may, therefore, be usefully read as a
commentary on this section also.

Under the provisions of this section, a person who causes grievous hurt to a public servant
can be convicted under the following three circumstances:

(a) when the public servant, grievously hurt, was discharging his duty as such public
servant;

(b) when grievous hurt was caused with intent to prevent or deter the public servant,
or any public servant, from discharging his duty as such public servant; and

(c) when grievous hurt was caused in consequence of anything done, or attempted to
be done, by the public servant in the lawful discharge of his duty.

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 In the first case, motive and object are irrelevant. Similar is the position in the third case.
In the second case, it is, however, necessary that the object of the accused should be to
prevent or deter the public servant from discharging his duty, but it is not necessary that
the public servant should be discharging his duty at the time of being grievously hurt.
Emperor v Bandhoo Ahir AIR 1935 All 563

Proof

The proof is the same as under s 332, by substituting ‘grievous hurt’ for ‘hurt’. The
accused dealt a gupti blow on the chest of deceased-police constable who had caught hold
of his co-accused, there was sufficient light available at the spot to enable the witnesses to
identify both the accused and the co-accused, the medical evidence was in consonance
with the oral evidence of the prosecution witnesses. The conviction of accused under s s
302 and 333, IPC was found proper. Sabhabhai Kanabhai v State of Gujarat 2002 Cr LJ
4040 (Guj) (DB).

S. 334. Voluntarily causing hurt on provocation.—

Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends
nor knows himself to be likely to cause hurt to any person other than the person who gave
the provocation, shall be punished with imprisonment of either description for a term
which may extend to one month, or with fine which may extend to five hundred rupees,
or with both.

Scope

This section provides punishment for voluntarily causing hurt on grave and sudden
provocation, and forms a proviso to s s 323 and 324, IPC. It is immaterial in this section,
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 whether the instrument used for causing hurt is simple or deadly. R v Bhala Chula 1
BHCR 17

Under the explanation to s 335, IPC, this and that section are subject to the same provisos
to which exception 1 to s 300, IPC, is subject.

S. 335. Voluntarily causing grievous hurt on provocation.—

Whoever 87
[voluntarily] causes grievous hurt on grave and sudden provocation, if he
neither intends nor knows himself to be likely to cause grievous hurt to any person other
than the person who gave the provocation, shall be punished with imprisonment of either
description for a term which may extend to four years, or with fine which may extend to
two thousand rupees, or with both.

Explanation.—The last two sections are subject to the same provisos as Exception 1,
section 300.

Scope

This section, which, by virtue of the explanation annexed to it, is subject to the provisos
to exception 1 to s 300, IPC, prescribes punishment for voluntarily causing hurt on grave
and sudden provocation, and has to be read as a proviso to s s 325 and 326, IPC. Where
grievous hurt is caused to the person who gave the provocation, all that is necessary to
attract the provisions of this section is that it is caused on grave and sudden provocation.
This section is not attracted when hurt caused is not grievous within the meaning of s 320.
Sham Behera v State AIR 1953 Ori 308

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 Explanation

According to the explanation, this section and the preceding s 334 are subject to the same
provisos to which exception 1 to s 300, IPC, is subject.

S. 336. Act endangering life or personal safety of others.—

Whoever does any act so rashly or negligently as to endanger human life or the personal
safety of others, shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to two hundred and
fifty rupees, or with both.

Scope

This section punishes doing an act so rashly or negligently as to endanger human life or
personal safety of others. Gopinatha Pillai (Dr) v State of Kerala 2000 Cr LJ 3682
(Ker).The offences, punishable under this section and s s 337 and 338, IPC, are confined,
in their operation, to acts done without any criminal intent, apart from the rashness or
negligence which is their essential ingredient. Chhallu v Emperor AIR 1941 All 288

Proof

To establish an offence under this section, the prosecution must prove that:

(1) the accused did an act rashly or negligently; and

(2) the rashness or negligence was such as to endanger human life or the personal
safety of others.

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 In order to convict a person under this section, the prosecution must prove rashness or
negligence on the part of the accused, and also that by such rashness or negligence,
human life or the personal safety of others was actually endangered. Re Nga Tha Ku
(1879) SJLB 91

S. 337. Causing hurt by act endangering life or personal safety of others.—

Whoever causes hurt to any person by doing any act so rashly or negligently as to
endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to six months, or with
fine which may extend to five hundred rupees, or with both.

Scope

Under this section, whoever causes hurt to any person, by doing an act so rashly or
negligently as to endanger human life or the personal safety of others, is liable to be
punished in the manner provided. It is an aggravated form of the offence defined in s 336,
IPC. State v Kamalakar Prabhakar Juvekar AIR 1960 Bom 269 The operation of this
section is confined to acts done without any criminal intent, apart from the rashness or
negligence which is its essential ingredient. Chhallu v Emperor AIR 1941 All 288 If there
is no rashness or negligence, there is no offence. Desai v State of Maharashtra AIR 2014
SC 795 Personal injury, intentionally or knowingly caused, can never be a rash or
negligent act, Emperor v Nga Shwe Lu 1 Cr LJ 557. e.g., throwing missiles at human
beings. R v Nga San Pe 1 LBR 259

Essential Ingredients

The main ingredients of an offence under this section are:

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 (a) the doing, by the accused, of an act;

(b) so rashly or negligently as to endanger human life or the personal safety of other;
and

(c) thereby causing hurt to any person. Fiduhusen Abdulati v State AIR 1962 Guj 318

12. Proof

To establish an offence under this section, the prosecution must prove that:

1. the accused did an act so rashly or negligently as to endanger

human life or the personal safety of others; and
2. he thereby caused hurt to certain person/persons.

S. 338. Causing grievous hurt by act endangering life or personal safety of others.—

Whoever causes grievous hurt to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine
which may extend to one thousand rupees, or with both.

Scope

A reading of s 338, IPC would clearly indicate that there must be some act done by the
accused and that act must be done so rashly or negligently as to endanger human life or
the personal safety of others. Abdul Kalam v State (Govt of NCT of Delhi) (2006) Cr LJ
3071 (Del). This section deals with causing grievous hurt by any act endangering human

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life or the personal safety of others. The offence under this section is only an aggravated
form of the offence under the previous section, the only difference between the two being
the degree of the injury caused. Under the preceding section, it is simple hurt whereas,
under this, it is grievous hurt. Otherwise, the two sections are in identical terms.

The main feature of the offence under this section is the causing of grievous hurt by any
act, which is not voluntary, but which is rash or negligent. The liability is to be judged
with reference to the effect produced by the rash or negligent conduct of the accused.

Main Ingredients

The main ingredients Arumugham Pillai v Gnanasoundara Pandian AIR 1962 Mad 362
of an offence under this section are:

(a) the doing, by the accused, of an act;

(b) so rashly or negligently as to endanger human life or the personal safety of others;
and

(c) thereby causing grievous hurt to any person.

‘Proof’

The proof required is the same as under s 337, by substituting ‘grievous hurt’ for ‘hurt’.

Merely because a person got injured when he came in contact with the bumper of the car,
cannot lead to an inference that the driver must have been rash or negligent. The
prosecution should lead evidence to establish the fact of negligence. Ram Jiwan v State of
Uttar Pradesh (1972) All Cr R 507

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S. 339. Wrongful restraint.—

Whoever voluntarily obstructs any person so as to prevent that person from proceeding in
any direction in which that person has a right to proceed, is said wrongfully to restrain
that person.

Exception.—The obstruction of a private way over land or water which a person in good
faith believes himself to have a lawful right to obstruct, is not an offence within the
meaning of this section.

Illustration

A obstructs a path along which Z has a right to pass. A not believing in good faith that he
has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.

Scope

This section defines wrongful restraint which is made an offence punishable under s 341,
IPC. Similarly, s 340, IPC defines wrongful confinement which is an offence made
punishable under s 342, IPC. The remaining sections under this head, i.e., ss 343 to 348,
IPC, deal with aggravated forms of wrongful confinement.

Wrongful Restraint—Essentials

The essential ingredients of the wrongful restraint are:

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 (1) Accused obstructs voluntarily;

(2) The victim is prevented from proceeding in any direction;

(3) Such victim has every right to proceed in that direction. Keki Hormusji Gharda v
Mehervan Rustom Irani 2009 Cr LJ 3733

By wrongful restraint is meant the keeping of man out of a place where he wishes to be
and has a right to be. Wrongful confinement, which is a form of wrongful restraint, is the
keeping of a man within certain limits out of which he wishes to go and has a right to go.

Exception

The exception specially exempts from the operation of s 341, IPC, obstruction to a private
right of way. Where there is a dispute between the parties as to whether the obstruction is
to a public thoroughfare or to a private way, the procedure, provided by s 133, Crpc, is
more fitting than a prosecution under this section Emperor v Abdul Sattar Ilahibax 5 Cr
LJ 97. Where the obstruction is made in good faith and the accused believes himself to
have a lawful right to obstruct, no offence under this section committed Abdul Rehman v
Gulam Nabi AIR 1964 J&K 4.

Apart from the exception appended to this section, the general exceptions in ss 76 to
79, IPC, also protect persons acting bona fide, i.e., in good faith believing in a right.
Similarly, a police officer, arresting a person with warrant and refusing to let him go
home without furnishing bail, can seek the protection of the said provisions only if he
acted in good faith, i.e., with due care and attention. Otherwise, he would be guilty
under this section. Sheo Saran Sahai v Mohammed Fazil Khan 10 WR (Cr) 20.

S. 340. Wrongful confinement.—

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 Whoever wrongfully restrains any person in such a manner as to prevent that person form
proceeding beyond certain circumscribing limits, is said “Wrongfully to confine” that
person.

Illustrations

(a) A causes Z to go within a walled space, and locks Z in. Z is thus prevented from
proceeding in any direction beyond the circumscribing line of wall. A wrongfully
confines Z.

(b) A places men with firearms at the outlets of a building, and tells Z that they will
fire at Z if Z attempts to leave the building. A wrongfully confines Z.

Scope

This section defines the offence of wrongful confinement, which is made punishable
under s 342, IPC. Wrongful confinement, which is a form of wrongful restraint, as
defined in the s 339, IPC, is the keeping of a man within the prescribed limits, out of
which he wishes to go and has a right to go. In the case of wrongful restraint, a person is
restrained from proceeding in any direction, in which he has a right to proceed, while, in
the case of wrongful confinement, he is restrained from proceeding beyond certain
prescribed limits. If the acts, complained of, come within both the definitions, the offence
under this section has been committed unless there are other sections in this Code, which
provide an excuse for, or a defense to, what otherwise, would be a crime. Gopal Naidu v
Emperor AIR 1923 Mad 523 (2) (FB)

S. 341. Punishment for wrongful restraint.—

Whoever wrongfully restrains any person shall be punished with simple imprisonment for
a term which may extend to one month, or with fine which may extend to five hundred

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 rupees, or with both.

Scope

This section prescribes punishment for an offence of wrongful restraint as defined in s

339, IPC.

In order to attract this section, the alleged restraint must be wrongful. If the accused is
lawfully authorised to put restraint, he cannot be punished under this section Keso Sahu v
Saligram Shah (1977) Cr LJ 1725. For an action to amount to ‘wrongful restraint’, the
person concerned must have the ‘right to proceed’ in the direction in question, as would
appear from what has been stated in s 339, IPC, which has spelt out what is wrongful
restraint Vijay Kumar Magee v SM Rao & ors (1996) Cr LJ 1371 (SC).

S. 342. Punishment for wrongful confinement.—

Whoever wrongfully confines any person shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which may extend to
one thousand rupees, or with both.

Scope

This section, which prescribes the punishment for the offence of wrongful confinement
defined in s 340, IPC, is confined to simple wrongful confinement for less than three
days. The aggravated forms of the offence of wrongful confinement are dealt with in ss

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 343 to 348, IPC. Wrongful confinement is defined in s 340. As observed by the Supreme
Court in Shyam Lal Sharma and another v State of Madhya Pradesh, Shyam Lal Sharma
v The State of Madhya Pradesh AIR 1972 SC 886 where a person is wrongfully
restrained in such a manner as to prevent that person from proceeding beyond certain
circumscribed limits, he is wrongfully confined within the meaning of this section. Raju
Pandurang Mahale v State of Maharashtra (2004) Cr LJ 1441 (SC).

If some persons taking shelter in a house, being afraid of a crowd outside, and if that
crowd remains there, effectively preventing the inmates of the house from coming out,
there is no reason why it cannot be said that an offence punishable under s 342, IPC is
committed. Gambhir Dala Bhil v State of Maharashtra (1984) Cr LR 71 (Mah).

S. 343. Wrongful confinement for three or more days.—

Whoever wrongfully confines any person for three days or more, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.

S. 344. Wrongful confinement for ten or more days.—

Whoever wrongfully confines any person for ten days or more, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine.

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S. 345. Wrongful confinement of person for whose liberation writ has been issued.—

Whoever keeps any person in wrongful confinement, knowing that a writ for the
liberation of that person has been duly issued, shall be punished with imprisonment of
either description for a term which may extend to two years in addition to any term of
imprisonment to which he may be liable under any other section of this Chapter.

Scope

This section provides an additional penalty for the offence of wrongful confinement, the
aggravating circumstance being the keeping of a person in wrongful confinement in
contempt of a writ issued for his liberation. The section applies only if a writ for the
liberation of a person, wrongfully confined, has been issued and the offender keeps such
person in wrongful confinement even after knowing that a writ for his liberation has been
issued.

S. 346. Wrongful confinement in secret.—

Whoever wrongfully confines any person in such manner as to indicate an intention that
the confinement of such person may not be known to any person interested in the person
so confined, or to any public servant, or that the place of such confinement may not be
known to or discovered by any such person or public servant as herein before mentioned,
shall be punished with imprisonment of either description for a term which may extend to
two years, in addition to any other punishment to which he may be liable for such
wrongful confinement.

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 Scope

This section deals with wrongful confinement in secret which is another aggravated form
of wrongful confinement. To render a person liable under this section, it must be shown
that there was wrongful confinement of a person and that the wrongful confinement was
of such a nature as to indicate intention on the part of the accused, that the person
confined should not be discovered. If the complainant was only induced and not forced, to
go to different places and that her confinement was not actual, but only potential, it is not
sufficient to constitute wrongful confinement. Again, where, after taking the complainant
to different places, the accused themselves produced her before a pleader of the court, the
conduct of the accused cannot be said to indicate an intention on their part that the
complainant should not be discovered. In such circumstances, the accused cannot be
convicted of an offence under this section. Empress v Sreenath Banerjee ILR 9 Cal 221

S. 347. Wrongful confinement to extort property or constrain to illegal act.—

Whoever wrongfully confines any person for the purpose of extorting from the person
confined, or from any person interested in the person confined, any property or valuable
security or of constraining the person confined or any person interested in such person to
do anything illegal or to give any information which may facilitate the commission of an
offence, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.

Scope

This section deals with wrongful confinement, as s 329, IPC deals with voluntarily

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 causing grievous hurt, to extort any property or valuable security, or to constrain a person
to do an illegal act or to give any information which may facilitate the commission of an
offence. The difference between the two sections lies in the nature of the act, which is
made punishable, though the motive for doing the act is almost the same. The aggravating
circumstances, calling for enhanced punishment, are the same.

S. 348. Wrongful confinement to extort confession, or compel restoration of property.—

Whoever wrongfully confines any person for the purpose of extorting from the person
confined or any person interested in the person confined any confession or any
information which may lead to the detection of an offence or misconduct, or for the
purpose of constraining the person confined or any person interested in the person
confined to restore or to cause the restoration of any property or valuable security or to
satisfy any claim or demand, or to give information which may lead to the restoration of
any property or valuable security, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to fine.

Scope

This section deals with wrongful confinement, as s 330 deals with voluntarily causing
hurt, to extort a confession or to compel restoration of property. The difference between
the two sections lies only in the nature of the act made punishable, the motive for doing
the act being the same. The commentary on s 330 may, therefore, be usefully read as a
commentary on this section.

S. 349. Force.—

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A person is said to use force to another if he causes motion, change of motion, or
cessation of motion to that other, or if he causes to any substance such motion, or change
of motion, or cessation of motion as brings that substance into contact with any part of
that other’s body, or with anything which that other is wearing or carrying, or with
anything so situated that such contact affects that other’s sense of feeling: Provided that
the person causing the motion, or change of motion, or cessation of motion, causes that
motion, change of motion, or cessation of motion in one of the three ways hereinafter
described:

First.—By his own bodily power.

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

Thirdly.—By inducing any animal to move, to change its motion, or to cease to move.

Scope

This section does not define any offence; it only gives an elaborate explanation of the use
of force. Under the terms of the section, to cause motion, change of motion, or cessation
of motion, by one or other of the three means mentioned, to another person, either directly
or indirectly, bringing some substance in contact with his body, or with something that he
is wearing or carrying, or with something that affects his sense of feeling, is to use force.
Where the accused raised their lathis to strike another person with the result that he had to
flee to save himself, it was held that they used force on that person and by using bodily
power. Jai Ram v Emperor 15 Cr LJ 231

‘Force’ as defined in this section, and ‘criminal force’, as defined in s 350, must

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 necessarily be used against a human being, and not against an inanimate object. If any
motion, change of motion, or cessation of motion, is caused to any property without
affecting a human being, there is no use of force within the meaning of this section.
Maiku v State AIR 1953 All 749; Ramsingh Babanji v State of Mysore (1972) Cr LJ 1212.
Muneshwar Bux Singh v Emperor AIR 1939 Oudh 81, wherein it has been held that as,
acceding to s 47, IPC ‘animal’ does not include a human being, ‘force’ as used in this
section, cannot be said to have been used by one person to another by causing change in
the position of another human being. Where the accused removed a ladder and thereby
detained a person on the roof of a house, it was held that the act did not amount to an act
of using criminal force, but to an act of wrongful restraint. Re Telapolo Sabbad 1 Weir
340 However, causing an animal to move is to use force within the definition of this
section. Sheo Pratap Singh v Emperor AIR 1930 All 820

S. 350. Criminal force.—

Whoever intentionally uses force to any person, without that person’s consent, in order to
the committing of any offence, or intending by the use of such force to cause, or knowing
it to be likely that by the use of such force he will cause injury, fear or annoyance to the
person to whom the force is used, is said to use criminal force to that other.

Illustrations

(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus
intentionally causes the boat to drift down the stream. Here A intentionally causes
motion to Z, and he does this by disposing substances in such a manner that the
motion is produced without any other act on any person’s part. A has therefore
intentionally used force to Z; and if he has done so without Z’s consent, in order
to the committing of any offence, or intending or knowing it to be likely that this
use of force will cause injury, fear or annoyance to Z, A has used criminal force to
Z.

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(b) Z is riding in a chariot. A lashes Z’s horses and there by causes them to quicken
their pace. Here A has caused change of motion to Z by inducing the animals to
change their motion. A has therefore used force to Z; and if A has done this
without Z’s consent, intending or knowing it to be likely that he may thereby
injure, frighten or annoy Z, A has used criminal force to Z.

(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the
palanquin. Here A has caused cessation of motion to Z, and he has done this by
his own bodily power. A has therefore used force to Z; and asA has acted thus
intentionally, without Z’s consent, in order to the commission of an offence, A has
used criminal force to Z.

(d) A intentionally pushes against Z in the street. Here A has by his own bodily power
moved his own person so as to bring it into contact with Z. He has therefore
intentionally used force to Z; and if he has done so without Z’s consent, intending
or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has
used criminal force to Z.

(e) A throws a stone, intending or knowing it to be likely that the stone will be thus
brought into contact with Z, or with Z’s clothes, or with something carried by Z,
or that it will strike water and dash up the water against Z’s clothes or something
carried by Z. Here, if the throwing of the stone produce the effect of causing any
substance to come into contact with Z, or Z’s clothes, A has used force to Z; and if
he did so without Z’s consent, intending thereby to injure, frighten or annoy Z, he
has used criminal force to Z.

(f) A intentionally pulls up a woman’s veil. Here, A intentionally uses force to her,
and if he does so without her consent, intending or knowing it to be likely that he
may thereby injure, frighten or annoy her, he has used criminal force to her.

(g) Z is bathing. A pours into the bath water which he knows to be boiling. Here A
intentionally by his own bodily power causes such motion in the boiling water as
brings that water into contact with Z, or with other water so situated that such
contact must affect Z’s sense of feeling; A has therefore intentionally used force
to Z; and if he has done this without Z’s consent intending or knowing it to be
likely that he may thereby cause injury, fear, or annoyance to Z. A has used
criminal force.
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 (h) A incites a dog to spring upon Z, without Z’s consent. Here, if A intends to cause
injury, fear or annoyance to Z, he uses criminal force to Z.

Scope

The preceding section, s 349, IPC defined force or, rather, explained as to when a person
is said to use force. However, mere force or use of force is not criminal. This section,
therefore, proceeds to define ‘criminal force’ or, rather, to explain as to when the use of
force becomes criminal, or, in the language of the section, when a person ‘is said to use
criminal force’. If added, to the use of force, as defined in the preceding section: (1) the
intentional use of such force; (2) without the other person’s consent; and (3) with the
object of either committing an offence or of causing injury, fear or annoyance to the
person, to whom the force is used, the force becomes ‘criminal force’.

The use of criminal force, as defined in this section, is itself an offence made punishable
under s 352, IPC. However, there can be no question of using ‘criminal force’ if an
investigating officer uses reasonable means to obtain a few specimens of hair of the
accused for establishing the identity of those who took part in a crime. Mahipal Maderna
v State of Rajasthan 1971 Cr LJ 1405

Relative Scope of Section 349 and Section 350

It is obvious from a bare reading of s s 349 and 350, IPC, that it is the using of force
when a person brings a substance in contact with any part of another’s body. It would be
criminal force because by using force if fear or annoyance is caused to the person or an
offence is committed, it would be falling within the expression of ‘criminal force’.
Bhupinder Singh v State of Punjab (1997) Cr LJ 3416 (P&H).

Section 349 does not define any offence though it explains the use of force. The use of

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 criminal force defined in s 350 is punishable under s 352.

2. ‘Criminal Force’ Distinguished from ‘Assault’

Though the definition of ‘criminal force’ as defined in this section, has been included in
the definition of ‘assault’, defined in s 351, evident from the fact that in ss 352 to 358,
which prescribe the punishment for the offences, the expression used is ‘assault or
criminal force’, and no distinction is made between them in the matter of punishment,
they have been made separate offences in the IPC. However, ‘assault’ is confined to a
mere gesture or preparation to use criminal force while the actual use of criminal force is
made a separate offence designated as ‘criminal force’.

3. Essentials of an Offence Defined in this Section

To constitute the offence, defined in this section, the following elements are essential:

1. there must be an intentional use of force to any person;

2. such use of force must have been without the said person’s consent; and
3. the said use of force must have been

i. to commit any offence, or

ii. to cause, or knowing it to be likely that he will cause, injury, fear or annoyance to the
person to whom the force is used.

Mere use of force is not enough to bring an act within the ambit of s 350 or s 353, IPC. It
has further to be shown that force was used intentionally to any person, without that
person’s consent, in order to commit an offence or with the intention to cause, or with
the knowledge that the use of force will cause, injury, fear or annoyance to the person
against whom this force is used. Chandrika Sao v State of Bihar AIR 1967 SC 170;
Durga Prasad v State of Kerala 2014 (3) KLJ 875 (Ker).

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S. 351. Assault.—

Whoever makes any gesture or any preparation, intending or knowing it to be likely that
such gesture or preparation will cause any person present to apprehend that he who makes
that gesture or preparation is about to use criminal force to that person, is said to commit
an assault.

Explanation.—Mere words do not amount to an assault. But the words which a person
uses may give to his gestures or preparation such a meaning as may make those gestures
or preparations amount to an assault.

Illustrations

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby
cause Z to believe that A is about to strike Z. A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be

likely that he may thereby cause Z to believe that he is about to cause the dog to
attack Z. A has committed an assault upon Z.

(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the
words used by A could in no case amount to an assault, and though the mere
gesture, unaccompanied by any other circumstances, might not amount to an
assault, the gesture explained by the words may amount to an assault.

Scope

The preceding section defined the offence of using criminal force and this section defines
the offence of ‘assault’ which may be committed even by a mere gesture causing an
apprehension of criminal force being used. It is something less than the use of ‘criminal
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force’. An assault, when completed, becomes ‘criminal force’. According to this section,
a gesture or preparation, made by a person, who intends, or knows that it is likely, that
some person present will thereby apprehend that he is about to use criminal force is
assault. Any gesture, calculated to excite in the party threatened, a reasonable
apprehension that the party threatening intends immediately to offer violence, or is about
to use criminal force to the person threatened, constitutes, if coupled with a present ability
to carry such intention into execution, an assault in law AC Cama v HF Morgan (1864) 1
Bom HCR 205. However, mere threatening words, unaccompanied by any gesture or
preparation, may amount to intimidation under s 503, but not an assault punishable under
s 352 or s 353. Re Annakamu Chettiar (1959) Cr LJ 1084

Before an act can amount to an assault under s 351, IPC, it is necessary that gesture or
preparation should be made by the person who would cause another to apprehend that the
person is about to use criminal force to him, then and there, and the preparation, taken
with the words used, must cause him to apprehend that criminal force would be used on
him if he persisted in the particular course of conduct and there would be no assault if he
desisted from that conduct. Sriram Chandra Das v Krushna Chandra Roy (1969) 35 Cut
LT 788

The gist of the offence lies in the effect which the threat creates upon the mind of the
victim. Whether a particular act amounts, or does not amount, to an assault depends upon
the circumstances of each particular case. Thus, where an accused went away from the
scene, threatening certain officers that he would return and teach them a lesson, and soon
afterwards returned with a lathi in his hand and went sufficiently close to the officers to
raise in their minds a reasonable apprehension that actual force was likely to be used, it
was held that in these circumstances, the act of the accused fell within the definition of
assault. Ram Singh v Emperor AIR 1935 Pat 214

For an assault, it is not necessary that the threatened force should be used. An
apprehension, that it is about to be used, is sufficient. It is an assault to point a loaded
pistol at any one. Awadhesh Mahto v State of Bihar (1979) Cr LJ 1275 In the case of
attacks on human beings, mere preparation by itself may amount to an assault. Parasram
Ji v Imtiaz AIR 1962 All 22
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 3. Essential Ingredients of an Offence under this Section

The essential ingredients Banka Sahu v Mukta Sahu (1974) Cut LT 155 of an offence
under this section are as follows:

1. the accused must make a gesture or preparation to use criminal force;

2. the said gesture or preparation must be made in the presence of the person with
respect to whom it is made;
3. the accused must, by the said gesture or preparation, intend to cause, or know that it
would cause, that person to apprehend that criminal force would be used against him
by the accused; and
4. the said gesture or preparation must cause, in the mind of that person, apprehension
that the accused would use criminal force against him.

S. 352. Punishment for assault or criminal force otherwise than on grave provocation.—

Whoever assaults or uses criminal force to any person otherwise than on grave and
sudden provocation given by that person, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine which may extend
to five hundred rupees, or with both.

Explanation.—Grave and sudden provocation will not mitigate the punishment for an
offence under this section, if the provocation is sought or voluntarily provoked by the
offender as an excuse for the offence, or

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 If the provocation is given by anything done in obedience to the law, or by a public
servant, in the lawful exercise of the powers of such public servant, or

If the provocation is given by anything done in the lawful exercise of the right of private
defence.

Whether the provocation was grave and sudden enough to mitigate the offence, is a
question of fact.

Scope

Assault under s 351, IPC and the intentional use of criminal force under s 350 are
punishable alike, and this section provides just such a punishment. The application of this
section is, however, limited to the said two offences committed ‘otherwise than on grave
and sudden provocation’, given by the complainant. For assault and use of criminal force
on grave and sudden provocation, given by the complainant, mitigated punishment is
provided by s 358.

S. 353. Assault or criminal force to deter public servant from discharge of his duty.—

Whoever assaults or uses criminal force to any person being a public servant in the
execution of his duty as such public servant, or with intent to prevent or deter that person
from discharging his duty as such public servant, or in consequence of anything done or
attempted to be done by such person in the lawful discharge of his duty as such public
servant, shall be punished with imprisonment of either description for a term which may

Page 323 of 573

extend to two years, or with fine, or with both.

Scope

Sections 353 to 357, IPC provide for five aggravated forms of assault or use of
criminal force. This section deals with assault or use of criminal force to prevent or
deter a public servant from discharging his duty as such public servant. Section 353 of
the IPC states that whoever assaults or uses criminal force to any person being a
public servant in the execution of his duty as such public servant is punishable as
stated in that section. Mohammed Kutty v State of Kerala (2004) Cr LJ 1603 (Ker). To
attract the offence under this section, there should have been an assault or use of
criminal force on any public servant in the execution of his duty as a public servant or
with an intention to prevent or deter such public servant from discharging his duty.

Relative Scope of Sections 353, 332 and 333

This section is similar to ss 332 and 333, the only difference between the three sections
being the act constituting the offence. In s 353, it is assaulting or using criminal force; in s
332, it is causing hurt; and in s 333, it is causing grievous hurt. In all other respects, they
are exactly similar and are couched in the same terms.

2. Principle Underlying this Section

A public servant is often exposed to considerable risks in the discharge of his official
duties; the law, therefore, throws around him a special protection by prescribing
especially deterrent sentences to those who offend against the majesty of the law, of
which he is a minister. However, it is not intended to encircle him with a perennial halo
of sanctity and inviolability and the IPC has throughout, in referring to him, protected
him only when he is in the execution of duty, he being left at other times to have recourse
to the ordinary law, applicable to all alike. Richard Saldana v State AIR 1960 Ker 200
Page 324 of 573
Section 353, IPC, postulates that the public servant has jurisdiction to execute and insist
that he should be in the process of execution of his duty when he is assaulted or criminal
force is used. Legality of the execution of duty is the sine qua non for the application of s
353. When, therefore, a duty is prohibited by statute or by orders of a superior authority,
it cannot be said that the public servant acts in execution of his duty, for he was not duty
bound to execute any order. Administrative discipline compels obedience to the order of
the superior authority by the subordinate. A stay of an order issued by a higher authority
prevents its execution by the subordinate. Poulose v State (1985) Cr LJ 222.

5. Ingredients

The essential ingredients Dhunnalal v State AIR 1951 MB 42 of an offence under this
section are as follows:

(1) there must be assault or use of criminal force by the accused;

(2) the victim of the assault or use of criminal force must be a public servant; and

(3) the assault or use of criminal force must have a link with the discharge, by the
public servant, of his public duty. Manik Taneja v State of Karnataka 2015 Cr LJ
1483

It must be committed:

1) while the public servant is engaged in the discharge of his duty so that he cannot
proceed with it, or
2) in order to prevent him from discharging his duty in future, or
3) in consequence of anything, done, by him, in the past in discharging, or attempting to
discharge, his duty. Basavaraj Shivarudrappa Sirsi v State of Karnataka 2011 Cr LJ
4809 (Kant)
16. Proof

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 To establish a charge under this section, the prosecution must prove that:

(vi) the accused assaulted or used criminal force to a public servant; and

(vii) the said assault or use of criminal force was:

i. in the execution of his duty as such public servant, or

ii. with intent to prevent or deter that person from discharging his duty as such public
servant, or
iii. in consequence of anything done or attempted to be done by such person in the lawful
discharge of his duty as such public servant.

S. 354. Assault or criminal force to woman with intent to outrage her modesty.—

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it
to be likely that he will thereby outrage her modesty, 57
[shall be punished with
imprisonment of either description for a term which shall not be less than one year but
which may extend to five years, and shall also be liable to fine].

STATE AMENDMENTS

Andhra Pradesh— Section 2 of the Andhra Pradesh Act 6 of 1991 states as follows:

“In its application to the State of Andhra Pradesh, for section 354, substitute the following
section, namely:—

“354. Assault or criminal force to woman with intent to outrage her modesty.—
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it
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to be likely that he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which shall not be less than five years but
which may extend to seven years and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term which may
be less than five years, but which shall not be less than two years.” “

Madhya Pradesh— Section 3 of the Madhya Pradesh Act 14 of 2004 states as follows:

“In its application to the State of Madhya Pradesh, after section 354, insert the following
section, namely:—

“354A. Assault or use of criminal force to woman with intent to disrobe her.—
Whoever assaults or uses criminal force to any woman or abets or conspires to assault or
uses such criminal force to any woman intending to outrage or knowing it to be likely that
by such assault, he will thereby outrage or causes to be outraged the modesty of the
woman by disrobing or compel her to be naked on any public place, shall be punished
with imprisonment of either description for a term which shall not be less than one year
but which may extend to ten years and shall also be liable to fine.”

Orissa— Section 3 of the Orissa Act 6 of 1995 (wef 10-3-1995) states as follows:

“In its application to the State of Orissa, in First Schedule to the Code of Criminal
Procedure, in the entry under column 5 relating to section 354 of the Indian Penal Code,
for the word “bailable”, substitute “non-bailable”.

Legislative Changes

Page 327 of 573

Section 354 has been amended by the Criminal Law (Amendment), 2013 (13 of 2013),
(wef 3-02-2013) on the recommendations of the Justice J.S. Verma Committee. The
punishment/sentence imposable under this section has been enhanced, which now shall
not be less than one year but which may extend to five years and also fine.

Scope

This section deals with another aggravated form of assault or use of criminal force. The
offence under this section is committed only when a person assaults or uses criminal force
upon a woman, intending to outrage, or knowing it to be likely that he will thereby
outrage her modesty. It is not the act of outraging the modesty that is made an offence
under this section. In order to constitute an offence under this section, there must be an
assault, or use of criminal force, to any woman with the intention or knowledge that the
woman’s modesty will be outraged. State of Punjab v Major Singh AIR 1967 SC 63

As the section is intended to promote morality, its operation is not confined only to
females above a certain age. ‘Modesty’, in this section, is an attribute associated with
female human beings as a class. It is a virtue which attaches to a female owing to her sex.
‘Modesty’ is to be considered to be an attribute of a female human being, irrespective of
the fact whether the female concerned has developed enough understanding as to
appreciate the nature of the act or realise that it is offensive to decent female behaviour or
sense of propriety concerning the relations of a female with others. Girdhar Gopal v State
AIR 1953 MB 147

If any person uses criminal force upon any woman with the intention or knowledge that
the woman’s modesty will be outraged, he is to be punished. Ajahar Ali v State of West
Bengal (2013) 10 SCC 31

Elements

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To determine whether sexual assault has been committed, a court should consider all
relevant factors, including the body part touched, the nature of the contact, any words or
gestures including threats accompanying the conduct, and the accused’s intent or purpose,
including the presence or absence of sexual gratification. Sexual assault does not,
however, require sexuality or sexual gratification. A misguided and primitive disciplinary
exercise that is an aggressive act of domination, which violates the sexual integrity of the
complainant and constitutes an assault, may be a sexual assault. The accused’s intent is
only one factor to consider in deciding whether the overall conduct has a sexual context.
Its importance depends on the circumstances.

Actus reus

The actus reus of sexual assault is established by the proof of three elements: (i) touching,
(ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these
elements are objective. The sexual nature of the assault is determined objectively; it need
not prove that the accused had any mens rea with respect to the sexual nature of his or her
behaviour. The absence of consent, however, is subjective and determined by reference to
the complainant’s subjective internal state of mind towards the touching, at the time it
occurred.

Mens rea

Sexual assault is a crime of general intent. Therefore, it needs only to prove that the
accused intended to touch the complainant in order to satisfy the basic mens rea
requirement. However, since sexual assault only becomes a crime in the absence of the
complainant’s consent, the common law recognizes a defence of mistake of fact which
removes culpability for those who honestly but mistakenly believed that they had consent
to touch the complainant.

Validity of the Section

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This section is neither opposed to the provisions of art 14, on the ground that men only,
and not women are made punishable under this section, nor to the provisions of art 15
Constitution of India, on the ground that it discriminates between men and women on the
basis of sex alone Kuriminelli Chinna v State of AP (2004) Cr LJ 1634 (AP)..

Section 354 Distinguished from Section 366

Both s s 354 and 366, IPC require a particular intention or knowledge on the part of the
offender. However, the intention or knowledge, required by the one, is different from that
required by the other. The intention or knowledge, required by this section, is of
outraging the modesty of the woman concerned. On the other hand, the intention or
knowledge, required by s 366, is of compelling her to marry somebody against her will or
seducing her to illicit intercourse. In the absence of some evidence, that the accused
abducted the woman with the intent that she may be compelled, or knowing it to be likely
that she will be compelled, to marry any person against her will, or that she may be forced
or seduced to illicit intercourse, or knowing it to be likely that she will be forced or
seduced to illicit intercourse, a conviction under s 366 cannot stand. Where all that is
known is that the accused caught hold of a woman and dragged her, but there is nothing
to indicate what his real intention was, he cannot be convicted of an offence under s 366.
However, it may be taken that he, at least, intended to outrage the modesty of the woman,
or, at any rate, the culprit knew it to be likely that her modesty would be outraged by his
act, and he may be convicted of an offence under this section Fakir v Emperor 29 Cr LJ
479.

Essential Ingredients

In order to constitute an offence under this section, there must be: (1) an assault or use of
criminal force, (2) to any woman, (3) with the intention or knowledge that her modesty
will be outraged. Girdhar Gopal v State AIR 1953 MB 147, Ramkripal s/o Shyamlal
Charmakar v State of Madhya Pradesh (2007) Cr LJ 2302 (SC) There must be either
criminal force or assault on any woman, intending to outrage the modesty and in case if
Page 330 of 573
this much of evidence is available, the offence under s 354, IPC stands proved. Jayakanth
v State of Karnataka 2009 Cr LJ 1224.

Holding arms of the prosecutrix, gagging her mouth with one hand and holding her breast
with the other hand constitutes offence under s 354.

To pull a woman’s hair and hand, in the presence of several persons, is calculated to
outrage the woman’s modesty. However, there would be no offence under this section if
the girl is a consenting party to the affair. Where a court peon, executing a decree for
delivery of possession to the decree-holder, forcibly removed the judgment-debtor and his
wife, when they refused to vacate the house, and as the woman, offering resistance,
struggled and her dhoti got loose, it was held that as the woman was not a pardanashin
lady, the peon was within his powers when he forcibly removed her and as the getting
loose of her dhoti was a result of her own violence during the struggle and was not a
deliberate act of the peon, he was not liable under this section or even under s 323. Baij
Nath v Emperor AIR 1936 Oudh 379.

Bottom Slap Case Against DGP

The appellant accused Director General of Police of the State of Punjab at the dinner
hosted by Secretary to the Government of Punjab, gently slapped on the posterior of the
prosecutrix in the presence of some guests. This act on the part of the accused did
constitute the ingredient of s 354, IPC. The accused used criminal force with intent to
outrage the modesty of the complainant and he knew fully well that gently slapping on
the posterior of the prosecutrix in the presence of other guests would embarrass her.
Knowledge can be attributed to the accused that he was fully aware that touching the
body of the prosecutrix at that place and time would amount to outraging her modesty. He
was convicted under s s 354 and 509, IPC. However, he was granted probation and
directed to pay Rs. 2 lacs as compensation to the prosecutrix. Kanwar Pal S Gill v State
(Admn UT Chandigarh) 2005 Cr LJ 3443 (SC)

Page 331 of 573

[S.354A. Sexual harassment and punishment for sexual harassment.—

(1) A man committing any of the following acts—

i. physical contact and advances involving unwelcome and explicit sexual overtures; or
ii. a demand or request for sexual favours; or
iii. showing pornography against the will of a woman; or
iv. making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause
(iii) of sub-section (1) shall be punished with rigorous imprisonment for a term
which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall
be punished with imprisonment of either description for a term which may extend
to one year, or with fine, or with both.]

Legislative changes

This section is new, inserted by the Criminal Law (Amendment) 2013 (13 of 2013), (wef
3-02-2-13) on the recommendations of Justice J.S. Verma Committee.

Scope

This section is new.

In the undernoted case, there was evidence of the eye-witnesses that the appellant accused
forcibly stopped the minor girl going on cycle and tried to make physical contact with
her, but did not depose that the accused used criminal force or assaulted the victim. Held,
Page 332 of 573
 act fell under s 354A and not under s 354, IPC. Accused was convicted under s 354A,
IPC.82

[S.354B. Assault or use of criminal force to woman with intent to disrobe.—

Any man who assaults or uses criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than three years but
which may extend to seven years, and shall also be liable to fine.]

[S.354C. Voyeurism.—

Any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either
by the perpetrator or by any other person at the behest of the perpetrator or disseminates
such image shall be punished on first conviction with imprisonment of either description
for a term which shall not be less than one year, but which may extend to three years, and
shall also be liable to fine, and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which shall not be less than three years, but
which may extend to seven years, and shall also be liable to fine.

Explanation 1.—For the purpose of this section, “private act” includes an act of watching
carried out in a place which, in the circumstances, would reasonably be expected to
provide privacy and where the victim’s genitals, posterior or breasts are exposed or
covered only in underwear; or the victim is using a lavatory; or the victim is doing a
sexual act that is not of a kind ordinarily done in public.

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 Explanation 2.—Where the victim consents to the capture of the images or any act, but
not to their dissemination to third persons and where such image or act is disseminated,
such dissemination shall be considered an offence under this section.]

Legislative Changes

This section is new, inserted by the Criminal Law (Amendment), 2013 (13 of 2013), (wef
3-02-2013) on the recommendations of Justice J.S. Verma Committee.

Scope

This section is new, and deals with the offence of voyeurism.

[S.354D. Stalking.—

(1) Any man who—

1. follows a woman and contacts, or attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of disinterest by such woman; or
2. monitors the use by a woman of the internet, email or any other form of electronic
communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who
pursued it proves that—

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 i. it was pursued for the purpose of preventing or detecting crime and the man accused
of stalking had been entrusted with the responsibility of prevention and detection of
crime by the State; or
ii. it was pursued under any law or to comply with any condition or requirement imposed
by any person under any law; or
iii. in the particular circumstances such conduct was reasonable and justified.
3. Whoever commits the offence of stalking shall be punished on first conviction with
imprisonment of either description for a term which may extend to three years, and
shall also be liable to fine; and be punished on a second or subsequent conviction,
with imprisonment of either description for a term which may extend to five years,
and shall also be liable to fine.]

Legislative Changes

This section is new, inserted by the Criminal Law (Amendment), 2013 (13 of 2013), (wef
3-02-2013) on the recommendations of the Justice J.S. Verma Committee.

Scope

This section is new, and deals with the offence of stalking.

S. 509. Word, gesture or act intended to insult the modesty of a woman.—

Whoever, intending to insult the modesty of any woman, utters any word, makes any
sound or gesture, or exhibits any object, intending that such word or sound shall be heard,
or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy
of such woman, 72[shall be punished with simple imprisonment for a term which may
extend to three years, and also with fine].

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Scope

The IPC has made various provisions for the protection of women at different stages. The
outraging of modesty, by assault or use of criminal force, on any woman is made
punishable under s 354, IPC. In case of an unsuccessful attempt at rape, the offence is one
under s 376 read with s 511, IPC. In the case of a completed offence of rape, the offence
is punishable under s 376. In case of annoyance caused by obscene acts or words in a
public place, the offence is punishable under s 294. That section, however, applies to men
and women both. Intended insult to modesty of a woman is made punishable by this
section. Every woman is presumed to be modest until the contrary is clearly proved. And
even woman, immodest by profession or character, might still be insulted by the
grossness of the offender’s conduct or by reason of the publicity of the place where they
are at the relevant time. This section makes intention to insult the modesty of a woman an
essential ingredient of the offence. However, the question of an intention to insult the
modesty of a woman would depend upon the terms of familiarity between the parties.

To constitute an offence under this section, there must be some individual woman whose
modesty has been outraged. It is, of course, not necessary that individual woman or
women should make a complaint. However, there must be an allegation that the action
complained of has insulted the modesty of some particular woman or women, and not
merely of any class or section of women, however small. Khair Mahomed v Emperor 26
Cr LJ 904. A reading of the title of s 509, IPC itself shows that the section deals with an
offence involving word, gesture or act which are intended to insult modesty of a woman.
The offence under the said section will be attracted if a person intending to insult the
modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object,
intending that such word or sound shall be heard, or that such gesture or object shall be
seen by such woman. MM Haries v State of Kerala 2005 Cr LJ 3314 (Ker).

‘Gesture’

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 The word ‘gesture’ is ordinarily used to refer to making of body signs implying
movement of the limbs etc. It is used to refer to body-language. But, writing of letters
does not involve any body language and hence it may apparently appear that such act will
not amount to ‘making gesture’ as referred to in s 509, IPC. But, what does the
expression ‘gesture’ actually mean? Lord Denning, an English Judge cautioned in
Seaford Court Estate’s case[1949] 2 All ER 155 that ‘the English language is not an
instrument of mathematical precision’. To an Indian judge, English is even more intrinsic,
being a foreign language. The meaning of the word ‘gesture’ as per the Concise Oxford
Dictionary is, ‘a significant movement of a limb or the body; the use of such movements
especially to convey feeling or as a rhetorical device; an act to evoke a response or
convey intention’. It is thus clear from the above discussion that the word ‘gesture’ refers
not merely to body signs. Though the word ‘gesture’ is ordinarily used to mean
movement of the limbs or body to convey a person’s feelings, it can also connote an act
done by a person to convey his intentions. According to the dictionary meaning, an act
done by a person to express his attitude or intentions also is a ‘gesture’. A person can
express his attitude or convey his intentions in a number of ways. For example, by
speaking, giving, looking, writing etc. In that sense of the word, a person can make a
gesture by doing an act without involving any body signs. Any act done by a person to
express his attitude or convey his intentions is a gesture.

S. 359. Kidnapping.—

Kidnapping is of two kinds: kidnapping from 21

[India] and kidnapping from lawful
guardianship.

Scope

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 The word ‘kidnapping’, which seems to be derived from the words ‘kid’, which means a
child, and ‘nap’ or ‘nab’, which means ‘to steal’, originally meant ‘child-stealing’.
However now, it simply means the carrying away of a person against his will or, if he/
she is a minor, against the will of his/her lawful guardian.

This section simply declares that kidnapping is of two kinds, namely: (a) kidnapping from
India; and (b) kidnapping from lawful guardianship, both of which terms are defined in
the next s s 360 and 361, IPC respectively and both of which are made punishable alike
by s 363, IPC.

The classification of kidnapping in this section is not exhaustive as there may be cases in
which the two kinds overlap each other. For instance, a minor may be kidnapped from
India as well as from his/her lawful guardianship.

S. 360. Kidnapping from India.—

whoever conveys any person beyond the limits of [India] without the consent of that
person, or of some person legally authorised to consent on behalf of that person, is said to
kidnap that person from [India].

Comments

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 1. Scope

Out of the two kinds of kidnapping specified in s 359, IPC, this section defines the first
kind of kidnapping, namely, kidnapping from India, which is made punishable as an
offence by itself under s 363, IPC.

2. Kidnapping Distinguished from Wrongful Confinement

Kidnapping and abduction do not include the offence of wrongful confinement or

keeping, in confinement, a kidnapped person. Badlu Shah v Emperor AIR 1929 All 454

3. Essential Ingredients

The following are the essential ingredients of an offence under this section:

(1) conveyance of a person;

(2) beyond the limits of India; and

(3) without the consent of that person or of some person legally authorised to consent
on behalf of that person.

S. 361. Kidnapping from lawful guardianship.—

Whoever takes or entices any minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from lawful guardianship.

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 Explanation.— The words “lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.

Exception.— This section does not extend to the act of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good faith believes
himself to be entitled to the lawful custody of such child, unless such act is committed for
an immoral or unlawful purpose.

STATE AMENDMENT

Manipur— In s 361, for the word “eighteen”, substitute the word “fifteen”.

S. 3 61. Kidnapping from lawful guardianship.—

Whoever takes or entices any minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.— The words “lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.

Exception.— This section does not extend to the act of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good faith believes

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himself to be entitled to the lawful custody of such child, unless such act is committed for
an immoral or unlawful purpose.

STATE AMENDMENT

Manipur— In s 361, for the word “eighteen”, substitute the word “fifteen”.

Scope and Applicability

This section defines the second kind of kidnapping, namely, kidnapping from lawful
guardianship. This is kidnapping in the literal sense of the term, i.e., child-stealing.
Obviously, the section applies only to the kidnapping of a minor, or of a person of
unsound mind, whether male or female. The law does not permit even a girl of easy
virtues to be taken away from lawful guardianship without the consent of parents, the
object of the section being to provide security and protection to the wards themselves.
Rassol v State (1976) Cr LJ 363; Varadarajan v State of Madras AIR 1965 SC 942
Persuasion by the accused, which creates willingness on the part of the minor to be taken
out of the keeping of the lawful guardian, would be sufficient to attract this section. State
of Haryana v Raja Ram AIR 1973 SC 819

The offence of kidnapping under s 363, IPC consists solely of taking or enticing a minor
from the keeping of her/his lawful guardian and no intention on the part of the accused is
required to be established. All that is needed is that a minor under 16 years of age in the
case of a male, or under 18 years of age in the case of a female, is taken or enticed from
the keeping of the lawful guardian. The moment a child is taken out of the keeping of
his/her lawful guardian, the offence of kidnapping is complete, the criminal intention
being not a necessary ingredients for making out this offence. Dharmarajan v State of
Kerala (2014) 2 Ker LJ 314

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Since the offence under this section consists in taking or enticing a minor, or a person of
unsound mind, out of the keeping of a lawful guardian, it has no application to the taking,
or enticing, or a minor, or a person of unsound mind, who has no guardian, whether legal,
lawful or de facto, such as a street child who may permit himself to be taken away by
anyone who may choose to do so. But the person, taking away such a child, may himself
become the ‘lawful guardian’ of the child and any other person taking or enticing the
child out of his keeping, may be guilty of kidnapping. State v Harbansing Kisansing AIR
1954 Bom 339 The same rule applies to a lunatic without a lawful keeper.

Object

The object of this section seems to be as much to protect the minor children from being
seduced for improper purposes as to protect the rights and privileges of guardians having
the lawful charge or custody of their minor wards. State of Haryana v Raju Ram AIR
1973 SC 819

Essential Ingredients

To constitute an offence of kidnapping of a minor under this section:

(a) there must be taking or enticing of a minor;

(b) the minor must be under 16 years of age, if a male, or under 18 years of age, if a
female;

(c) the taking or enticing must be out of the keeping of the lawful guardian of the
minor; and

(d) the taking or enticing must be without the consent of such guardian. Habibulla v
Emperor 14 Cr LJ 93 ; Padmanabhan Nair v Kallyani Amma (1967) KLT 534

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The consent of the minor, who is taken or enticed, is wholly immaterial; it does not affect
the commission of the offence though it is a matter for consideration under the question
of sentence. Thakorlal D Vadgoma v State of Gujarat AIR 1973 SC 2313 The motive of
the kidnapper is also immaterial unless it falls within the exception to the section. Motive
is, however, an important consideration with reference to the question of punishment.

Minor Leaving Guardian

A minor may not be competent to give her consent to her taking, but is certainly
competent to leave the protection of her guardian on her own accord. Similarly, if a minor
girl, without any inducement on the part of the accused, has left her home to come to him,
he is not bound to return her to her father’s custody. To hold him guilty of the offence of
kidnapping, it must be shown that he took some active step by persuasion or otherwise to
cause the girl to leave her home. In the absence of any evidence as to inducement or
actual taking, the mere finding of the victim girl and the accused, living together under
the same roof, would not substantiate the prosecution case of kidnapping. Sachindra Nath
Majumdar v Bistupada Das (1978) Cr LJ 1494

Taking and Enticing—Distinction

There is an essential distinction between taking and enticing. The mental attitude of the
minor is immaterial in the case of taking. The word ‘take’ means ‘to cause to go’, ‘to
escort’ or ‘to get into possession’. When an accused takes a minor with him, whether he
or she is willing or not, the act of taking is complete and the condition is satisfied.
However the word ‘entice’, as stated in the preceding paragraph, involves an idea of
inducement or allurement by exciting hope or desire in the other. One does not entice
another unless the latter attempts to do a thing which she or he would not otherwise do.
Re Khalandar Sahab 56 Cr LJ 581. The Supreme Court, in Varadarajan v State of
Madras AIR 1965 SC 942, envisaged circumstances in which the two words ‘take’ and
‘entice’, though not synonymous, may be regarded as meaning the same thing for the
purpose of s 361.

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 It must, however, be borne in mind that there is a distinction between "taking" and
allowing a minor to accompany a person. The two expressions are not synonymous
though we would like to guard ourselves from laying down that in no conceivable
circumstance can the two be regarded as meaning the same thing for the purposes of s.
361 of the Indian Penal Code. We would limit ourselves to a case like the present
where the minor alleged to have been taken by the accused person left her father's
protection knowing and having capacity to know the full import of what she was
doing voluntarily joins the accused person. In such a case we do not think that the
accused can be said to have taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active participation by him in the
formation of the intention of the minor to leave the house of the guardian. It would,
however, be sufficient if the prosecution establishes that though immediately prior to
the minor leaving the father's protection no active part was played by the accused, he
had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if
evidence to establish one of those things is lacking it would not be legitimate to infer
that the accused is guilty of taking the minor out of the keeping of the lawful guardian
merely because after she has actually left her guardian's house or a house where her
guardian had kept her, joined the accused and the accused helped her in her design not
to return to her guardian's house by taking her along with him from place to place. No
doubt, the part played by the accused could be regarded as facilitating the fulfillment
of the intention of the girl. That part, in our opinion, falls short of an inducement to
the minor to slip out of the keeping of her lawful guardian and is, therefore, not
tantamount to "taking".

In Thakorlal D Vadama v State of Gujarat 1973 AIR 2313, the Supreme Court observed that
the two words ‘takes’ and ‘entices’, as used in s 361, IPC, are intended to be read together so
that each takes, to some extent, its colour and content front the other. The statutory language
suggests that if the minor leaves her parental home completely uninfluenced by any promise,
offer or inducement, emanating from the accused, then the latter cannot be considered to have
committed the offence, as defined in s 361, IPC. However if the accused has laid a
foundation by inducement, allurement or threat, etc., and if this can be considered to have

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influenced the minor or weighed with her in leaving her guardian’s custody or keeping and
going to the accused, then prima facie it would be difficult for him to plead innocence on the
ground that the minor had voluntarily come to him. If he has, at an earlier stage, solicited or
induced her, in any manner, to leave her father’s protection by conveying or indicating an
encouraging suggestion that he would give her shelter, then the mere circumstance, that his
act was not the immediate cause of her leaving her parental home or guardian’s custody,
would not absolve him. The question would truly fall for determination on the facts and
circumstances of each case.

Explanation

A guardian may be lawful without being a legal guardian. The words ‘lawful guardian’,
as is apparent from the language of this section, are of wider connotation than the words
‘legal guardian’. The word ‘lawful’, in the section, has deliberately been used in its wider
connotation State v Ramji Vithal Chaudhari (1958) Cr LJ 1296 and the explanation is
intended to extend protection, given, to parents and minors, by the section, by including,
in the term ‘lawful guardian’, any person lawfully entrusted with the care or custody of a
minor. Jagannadha v Kamaraju ILR 24 Mad 284 The entrustment may be by a legal
guardian, it may be written, oral, express or implied. In the absence of a legal guardian,
the entrustment may be presumed from the course of conduct of the person, actually
taking, upon himself, the duties of the care and custody of a minor, State v Ramji Vithal
Chaudhari (1958) Cr LJ 1296; Saharali Mahammad v Kamizuddin Mahammad 32 Cr LJ
888.as the guardianship connotes maintenance, protection and control of the minor.
Nathu Singh v Emperor 41 Cr LJ 356 The entrustment may be proved by oral evidence
as well as by surrounding circumstances and the conduct of the parties concerned, Kesar
v Emperor 20 Cr LJ 161 (entrustment must be proved to have been made by a person
competent to do so) and the prosecution need not prove the guardianship in the strict legal
acceptance of the word R v Pemantle ILR 8 Cal 971 ; Das v Bhaishinai Nekunjo ILR 4
Cal 374.if an orphan is left without the protection of the legal guardian and a
philanthropic person, out of humanitarian or charitable motives, takes up the care and
custody of such an orphan and treats him as his child, the person so taking the custody
and care of the orphan, would be a lawful guardian of the orphan within the meaning of
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this section. State v Harbansing Kisansing 55 Cr LJ 1032 ; State v Ramnji Vithal
Chaudhari (1958) Cr LJ 1296. However, it does not mean that the guardian, so treated as
a lawful guardian, would have any higher rights than the natural or legal guardian. State v
Ramji Vithal Chaudhari 1958 Cr LJ 1296

Exception

The exception is personal to the father or other person acting in good faith. The belief in
the fatherhood, Re Kannegati Chowdrayya AIR 1938 Mad 656 or in the right to custody,
must be entertained in good faith. Where a mother of an illegitimate child, believing
herself to be entitled to the custody of the child, removed the child from the father’s care,
it was held that she was protected by this exception. Re Howka Ramlakshmi 1 Weir 348

The exception has no application where the taking or enticing is ‘for an immoral or
unlawful purpose’. An intention to give a child in marriage in contravention of Act 19 of
1929 is an unlawful purpose. Khalilur Rahman v Emperor 1933 Rang 98 (100) (FB) It is
upon the prosecution to prove that the kidnapping under consideration was committed for
immoral or unlawful purpose. Mahendranath v Chakravarti v Emperor ILR 62 Cal 629 If
there is no proof of the purpose for which the accused caused the child to be taken away
from the keeping of his mother, and all that is proved is that the father of the child, by
deceitful means, got the child from the keeping of his mother to his own, it is no offence
under s 361, IPC. Re Kannegati Chowdrayya AIR 1938 Mad 656

The exception relates only to a person who in good faith believes himself to be the father
of an illegitimate child or who in good faith believes himself to be entitled to the lawful
custody of the child. It has no application to a person who does happen to be a lawful
guardian. Consequently the words ‘unless such act is convicted for an immoral or
unlawful purpose’ do not apply to a lawful guardian. The words ‘to the act of any person’
and ‘unless such act’ have to be read in conjunction with each other and not in isolation. 30
For further commentary, see s 52, IPC, vol 1.

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S. 362. Abduction.—

Whoever by force compels, or by any deceitful means induces, any person to go from any
place, is said to abduct that person.

Scope

This section merely defines what ‘abduction’ is. It does not define as offence Abduction
becomes an offence only when it is accompanied by one of the three intentions described
in s s 364, 365 and 366 of the IPC. Chitasen Goala v State of Assam (1998) Cr LJ 2118
(Guj) (DB). Apart from the elements or force or fraud, which may be involved in
abduction and which may attract punishment under other sections of the Code, abduction,
per se, of an adult person is not punishable under this Code. If kidnapping is accompanied
by any of the said intentions, it is more severely punished, in consequence, under the
same section. The offences of kidnapping and abduction are kindred or cognate offences.
The abduction of minors or persons of unsound mind from lawful guardianship may
constitute a species of kidnapping (differing from the usual form of that offence in the
nature of the means employed), if they are removed from the keeping of their guardians
without the latter’s consent, and is punishable under s 363. There may be cases in which
an act falls under both offences, e.g., when force or deceit is employed in removing a
female minor from the custody of the guardian with intent to murder her, or to force her
to illicit intercourse, etc. Gurcharan Singh v State of Haryana AIR 1972 SC 2661
However, in the majority of cases, the act, while coming within the purview of one of the
offences, will not attract the provisions of the other. Sant Ram v Emperor 1929 Lah 713
There may be abduction without the removal of a person from lawful guardianship.
Nanhua Dhimar v Emperor AIR 1931 All 55 It may also be observed that the words
‘kidnapping’ and ‘abduction’ do not include the offence of wrongful confinement of a
kidnapped person. The offence of abduction is a continuing offence and a woman is
abducted not only when she is first taken from any place, but also when she is
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subsequently removed from the place to another. Kashiram v State (1980) Cr LJ 333

‘Abduction’ Distinguished from ‘Kidnapping’

The offences of kidnapping and abduction, though cognate, are essentially dissimilar. In
the former, the person kidnapped, if not a person of unsound mind, must be minor of the
age specified in s 361 while the subject of abduction may be a person of any age. A child,
without a guardian, cannot be kidnapped, except when it is taken out of India, which is a
separate offence applicable equally to persons of all ages. Abduction, on the other hand,
has reference exclusively to the person abducted. Again, consent of the person abducted,
if freely and voluntarily given, condones abduction, and while in kidnapping, consent of
the kidnapped person is wholly immaterial. Further, the means employed in abduction
must have an element of force or deceit in it, whereas, in kidnapping, they may be
entirely absent. Another important distinction is that in kidnapping, the intent of the
offender is a wholly irrelevant consideration, whereas in abduction, it is an important
factor. Kidnapping from lawful guardianship is a substantive offence while ‘abduction’ is
an auxiliary act, not punishable by itself, but made criminal only when it is done with one
or other of the intents specified in ss 364, 365, and 366. Sheoraj Singh v State AIR 1967
All 528 Kidnapping from lawful guardianship is not a continuing offence because as soon
as the minor is removed out of his or her guardianship, the offence is completed whereas
a person is being abducted not only when he is first taken away from any place but also
when he is removed from one place to another. Parappa Sidram Karlati v Dundavwa
(1980) 24 MLJ (Cr) 56

3. Essential Ingredients

This section requires the following two essentials:

(1) there must be forcible compulsion or inducement by deceitful means; and

(2) the object of such compulsion or inducement must be the going of the abducted
person from any place. Gurdas v State AIR 1953 Punj 258
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Under this section, it is necessary for the prosecution to establish that the victim was, by
force, compelled to leave not only her house, but also to go to various places. Keramat
Mandal v Emperor AIR 1926 Cal 320

‘By Force Compels’

There can be no conviction for abduction if no force or deceit has been practiced in the
person abducted. Compulsion by force or inducement by deceitful means in an essential
element of abduction. In the case of a grown-up woman, it would be an offence to carry
her away by force even if it be with the object of restoring her to her husband. Fatnaya
Lal Khan v Emperor 1942 Lah 89 However if a minor girl voluntarily leaves the roof of
her guardian and, when out of her house comes across another who treats her with
kindness, or at least, without employing any force or without practising any fraud on her,
he cannot be held guilty for kidnapping or for abduction. Nura v Rex AIR 1949 All 710

Where in a case the person alleged to have been abducted on being persuaded went inside
the house and after being dressing properly accompanied the persons abducting him, no
charge of abduction can succeed against him. Vinod Chaturvedi v State of Madhya
Pradesh (1984) Cr LJ 864 (MP).

The compulsion, contemplated by this section, must be by force. The word ‘force’ is
defined in s 349, IPC of this Code as implying a contact between the person, on whom
force is used, and some other person or object in order to compel the former to move, or
to ceases to move, from a certain place. The word ‘force’ in this section means actual
force and not merely a show or threat of force, Nura v Rex AIR 1949 All 710 or
imaginary apprehension of force. Kashiram v State of Madhya Pradesh (1980) Cr LR 333
Where the accused lifted a woman to carry her away but dropped her when she raised an
alarm, it was held that he was not guilty of abduction as the woman was not compelled to
go from the place where she was, but was merely lifted up, and that the action of the
accused merely amounted to an attempt to abduct. Allu v Emperor AIR 1925 Lah 512. It

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is for the prosecution to prove compulsion by force. Allahrakhio v Emperor AIR 1934
Sind 164

‘By Deceitful Means’

The expression ‘deceitful means’ is wide enough to include the inducing of a girl to leave
her guardian’s house on some pretext. ‘Deceit’, according to its plain dictionary meaning,
signifies anything intended to mislead another. It is, really speaking, a matter of intention,
and even if the promise, held out by the accused, is fulfilled by him, the question is
whether he is acting in a bona fide manner when he is extending certain promises to a
woman and thereby inducing her to accompany him. If a woman is found to have
voluntarily gone from place to place with the accused without his employing any
deceitful means for inducing her so to go, then abduction cannot be said to have taken
place at all.

‘Induces’

To induce means ‘to lead into’; it connotes a leading of the abducted person in some
direction in which he would not otherwise have gone. There must be a change of mind
caused by an external pressure of some kind. Inducement does not involve any force or
compulsion. It simply means persuasion, but for abduction it must be by deceitful means.
Leading a girl to go by making a false representation would be inducing her to go by
deceitful means. When the girl is above 18 years of age and there is no evidence that the
accused induced her to go from her house to various places by deceitful means,
conviction for abduction cannot be sustained.

The recovery of money from the house of the accused A6 and A7 was proved, but there
was no evidence to show that the said amount was paid as ransom to the accused. The two
accused A6 and A7 were also not involved in his confessional statement by the co-
accused. Acquittal of the accused A6 and A7 for offences under s s 362 and 383, IPC was

Page 350 of 573

 held proper.

S. 363. Punishment for kidnapping.—

Whoever kidnaps any person from [India] or from lawful guardianship, shall be
57

punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Scope

This section merely prescribes the punishment for kidnapping whether it be from India or
from lawful guardianship. The offence of kidnapping from lawful guardianship, penalised
by this section, is the offence which is defined in s 361.

To constitute an offence of kidnapping, as defined in s 361, IPC, all that is required, is

that a minor, under 16, in the case of a male, or under 18, in the case of a female, must be
taken or enticed from the keeping of the lawful guardian of the minor without such
guardian’s consent. No intention of the kidnapper needs to be established. Where the
victim is below 18 years of age, her consent is immaterial.

[S. 363A. Kidnapping or maiming a minor for purposes of begging.—

(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains
the custody of the minor, in order that such minor may be employed or used for
the purposes of begging, shall be punishable with imprisonment of either

Page 351 of 573

 description for a term which may extend to ten years, and shall also be liable to
fine.

(2) Whoever maims any minor in order that such minor may be employed or used for
the purposes of begging, shall be punishable with imprisonment for life, and shall
also be liable to fine.

(3) Where any person, not being the lawful guardian of a minor, employs or uses
such minor for he purposes of begging, it shall be presumed, unless the contrary is
proved, that he kidnapped or otherwise obtained the custody of that minor in
order that the minor might be employed or used for the purposes of begging.

(4) In this section—

a. “begging” means—
i. soliciting or receiving alms in a public place, whether under the
pretence of singing, dancing, fortune-telling, performing tricks or
selling articles or otherwise;
ii. entering on any private premises for the purpose of soliciting or
receiving alms;
iii. exposing or exhibiting, with the object of obtaining or extorting
alms, any sore, wound, injury, deformity or disease, whether of
himself or of any other person or of an animal;
iv. using a minor as an exhibit for the purpose of soliciting or
receiving alms.
b. “minor” means—
i. in the case of a male, a person under sixteen years of age; and
ii. in the case of a female, a person under eighteen years of age.]

Scope

To effectively curb the evil of kidnapping of children for exploiting them for begging, the
provisions existing in the IPC, were quite inadequate. There was also no special provision
for deterrent punishment for the greater evil of maiming of children so as to make them
object of pity. This section makes kidnapping or obtaining custody of a minor and
Page 352 of 573
 maiming of a minor for employing him for begging specific offences and provides for
deterrent punishment.

S. 364. Kidnapping or abducting in order to murder.—

Whoever kidnaps or abducts any person in order that such person may be murdered or
may be so disposed of as to be put in danger of being murdered, shall be punished with
86
[imprisonment for life] or rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

Illustrations

(a) A kidnaps Z from 87[India], intending or knowing it to be likely that Z may be

sacrificed to an idol. A has committed the offence defined in this section.

(b) A forcibly carries or entices B away from his home in order that B may be
murdered. A has committed the offence defined in this section.

Scope and Applicability

This section deals with cases of kidnapping or abduction in order that the person,
kidnapped or abducted, may be murdered or may be so disposed of as to be put in danger
of being murdered. Re Arusami Goundan AIR 1959 Mad 274 ; Chunda Murmu v State of
West Bengal AIR 2012 SC 2160 Abduction, per se (i.e., pure and simple), is not
punishable under this Code. Mahesh Paswan v State of Bihar 2013 (127) AIC 738 (Pat).
In the absence of proof of any of the said intentions, mere decoying a boy is not
punishable under this section. Re Arusami Goundan AIR 1959 Mad 274

To establish an offence under s 364, IPC, it must be proved that the person charged with
Page 353 of 573
the offence had the intention at the time of kidnapping or abduction that the person was
kidnapped or abducted or so disposed of so as to put him in danger of being murdered.
Rabin Mallick v State of West Bengal 2011 Cr LJ 3801

Since this section provides for the case of a kidnapper, whose object is that the person
kidnapped may be murdered or may be so disposed of as to be put in danger of being
murdered. It has no application to a case where the object of the kidnappers is only to
hold the kidnapped person to ransom. However, where the modus operandi, disclosed in
the letters from the accused demanding ransom from the father of the boy, whom the
accused had kidnapped, was to put the father in fright of the boy being murdered and
there was throughout the likelihood of the boy being murdered in case the ransom, for any
reason, was not paid, it was held that the accused were guilty of the offences under s s
364, IPC (kidnapping) and 386, IPC (extortion). Ram Chandra v State AIR 1957 SC 381
However, where the deceased died even before he was kidnapped, it was held that the
accused could not be held guilty under this section. Podda Narayana v State of Andhra
Pradesh AIR 1975 SC 1252

Intention

The intention to murder or to so dispose of the victim as to put him in danger of being
murdered, being the important element of the offence under this section, must be proved
to have existed at the time of kidnapping or abduction. If the accused is not proved to
have had the necessary intention at the time of kidnapping or abduction, he cannot be held
guilty even though the kidnapping or abduction placed the victim in danger of being
murdered. Rabin Mallick v State of West Bengal 2011 Cr LJ 3801 (Cal) (DB) The
intention of the accused, or the common object of the unlawful assembly, can be judged
from the acts committed by the accused at the time of abduction or thereafter till the time
of their arrest. The intention of the accused while dragging away the victim is evidenced
by the statement attributed to one of the accused which the accused addressed to the son
of victim, calling him to bring a lathi to kill the victim. The acts and words imputed to the
accused when they pulled the victim, belaboured him and dragged him away, leaves in no

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 doubt that their intention was to so dispose him as to put him in danger of being
murdered. Murlidhar v State of Rajasthan (2005) Cr LJ 2608 (SC).

[S. 364A. Kidnapping for ransom, etc.—

Whoever kidnaps or abducts any person or keeps a person in detention after such
kidnapping or abduction and threatens to cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that such person may be put to death or
hurt, or causes hurt or death to such person in order to compel the Government or 42[any
foreign State or international inter-governmental organisation or any other person] to do
or abstain from doing any act or to pay a ransom,shall be punishable with death, or
imprisonment for life, and shall also be liable to fine.

Scope

This section was incorporated in the IPC in 1993 but was amended soon in 1995 with a
view to insert the cases pertaining kidnapping or abduction to compel any foreign state or
international or international inter-governmental organisation or to any other person to do
or abstain from doing any act or to pay a ransom. The offence committed under this
section is considered so serious that the punishment provided under IPC to a more serious
offence, i.e., murder under s 302, IPC is provided in it. An offence under s 364A, IPC is a
serious offence, but the court should not be influenced by sentiments, and the judgment of
the court should be objective, based on judicial considerations and evidence adduced in
the case. Lohit Kaushal v State of Haryana (2009) 17 SCC 106

From the language of s 364A, IPC, it becomes crystal clear that this section is applicable

Page 355 of 573

only when the kidnapping for ransom etc., is done in order to compel the government or
any foreign state or international inter-governmental organisation to do or abstain from
doing any act. Balwant Singh & anor v State of Haryana (2002) 2 RCR (Cri) 369 If it is
established that offender after kidnapping/abducting a person keeps him in detention and
threatens to cause death or hurt in order to extort ransom and communicates that demand,
he is guilty for kidnapping for ransom. When an individual person has been compelled to
pay the ransom amount, the offence under s 364A, IPC, is not made out at all. Once a
person (victim) is shown to have been kidnapped, onus would shift on the kidnapper to
show when the person kidnapped was released by him. Sunder v State by Inspector of
Police JT 2013 (2) SCC 483

Proof

In order to prove the offence under s 364A, IPC, the prosecution must establish that:

(a) the accused kidnapped or abducted any person; or

(b) the accused kept the person in detention after such kidnapping or abduction; and

(c) the accused threatened to cause death or hurt to that person; or

(d) the accused actually caused hurt or death that person in order to compel the
government or any foreign state or international inter-governmental organisation;

(e) such kidnapping or abduction was for ransom. Akram Khan v State of WB (2012)
1 SCC 406

Once the person concerned has been shown as having been kidnapped, the onus would
shift on the kidnapper to establish how and when the kidnapped individual came to be
released from his custody. In the absence of any such proof produced by the kidnapper, it
would be natural to infer/presume, that the kidnapped person continued in the kidnapper’s
custody, till he was eliminated. Sunder v State by Inspector of Police AIR 2013 SC 777

Page 356 of 573

 Where the accused appellant along with other co-accused was alleged to have kidnapped
niece of his brother-in-law, but there was no reliable evidence showing the involvement
of the accused appellant, the maruti car recovered from the possession of the accused was
not used in the kidnapping of the child, his conviction under s 364A, IPC was set aside.
Lohit Kaushal v State of Haryana (2009) 17 SCC 106

S. 365. Kidnapping or abducting with intent secretly and wrongfully to confine person.
—

Whoever kidnaps or abducts any person with intent to cause that person to be secretly and
wrongfully confined, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

STATE AMENDMENT

Madhya Pradesh.— In its application to the State of Madhya Pradesh, in section 365, for
the words “Magistrate of the First Class”, substitute “Court of Session”.

Scope

The gravamen of the offence under this section is the intention to keep the wrongful
confinement a secret. Samir Saha and anor v State of Tripura 1998 Cr LJ 1360 (Gau).
When the motive behind kidnapping the victim was to confine him wrongfully for
passing information to the army about the ULFA, the conduct of the accused clearly fells
within the mischiefs of this section. Tarun Bora alias Alok Hazarika v State of Assam
2002 Cr LJ 4076 (SC).

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The intention of the accused at the time of kidnapping or abduction can be deduced only
from what they subsequently did. Ghungru v Emperor AIR 1936 All 360 Where a woman
is forcibly dragged out of her house and kept locked up in a room in the house of the
accused, an offence under this section is made out. The mere fact, that the house, where
the woman is confined, is in the abadi, does not negative secret confinement. Roshan v
State AIR 1954 All 51

‘Secretly and Wrongfully Confined’

It would be apparent from s 365, IPC, that this section enacts that kidnapping or
abduction with intent to secretly and wrongfully confine a person is an offence. The
gravamen of the offence under this section is the intention to keep the wrongful
confinement a secret.

This section again embraces the offences of kidnapping as well as abduction and
prescribes the punishment, for either or both, if committed with the particular intention of
causing the person kidnapped or abducted to be secretly and wrongfully confined. Mere
kidnapping or abduction without the particular intent is not punishable under this section.
Re Amsami Goundan AIR 1959 Mad 274 88

The intention must be to cause the kidnapped or abducted person to be confined not only
wrongfully, but also secretly. Akbar Ali v Emperor 1925 Lah 61489

Proof

In order to establish the offence under this section, the prosecution must prove that:

(1) the accused kidnapped or abducted a person; and

(2) he did so with intent to cause him secretly and wrongfully confined.

Page 358 of 573

S. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—

Whoever kidnaps or abducts any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to marry any person against her will, or
in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely
that she will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine; 21[and whoever, by means of criminal intimidation as defined in this
Code or of abuse of authority or any other method of compulsion, induces any woman to
go from any place with intent that she may be, or knowing that it is likely that she will be,
forced or seduced to illicit intercourse with another person, shall also be punishable as
aforesaid].

Scope and Applicability

This section, which deals with kidnapping and abduction with the intention or knowledge
of forcibly marrying a woman or forcing or seducing her to illicit intercourse, Emperor v
Kali Udayan 12 Cr LJ 241 is an aggravated form of the offence punishable under s 364.
Asma v State AIR 1967 All 158 In the case of abduction, this section would apply where
the woman, at the time of her abduction, had no intention of being married or to be put to
illicit intercourse which, the offender contemplated, was to be brought about afterwards
by force or seduction. Parappa Sidram Karlati v Dondawwa (1980) 24 Mad LJ (Cr) 56

In the case of kidnapping, if the object of the offender is that which is specified in this
section, the consent of the minor girl does not affect the commission of the offence
thought that may be a consideration under the question of sentence. In Emperor v Safdar
Reza AIR 1922 Cal 508 it has been held that the offence, dealt with in s 366, IPC, is
Page 359 of 573
merely an aggravated form of the offence, created by s 363, IPC, and it would, therefore
seem to follow that when the matter under consideration, in relation to s 366, is the
seduction to illicit intercourse of a girl under 18 years of age, her consent or intention
would be just as immaterial as it would be in connection with the offence dealt with under
s 363, the object of this section being also to protect the girls themselves and to prevent
persons taking improper advantage of their youth and inexperience. The fact that the girl,
at the time when she was enticed away from her home by the accused, had the intention
of having illicit intercourse with him, is no defence to a charge under s 366.

Where a girl kidnapped by a person from her lawful guardianship and another person,
who was no party to that kidnapping, takes the girl away for illicit intercourse, the latter
person cannot be convicted under this section. State v Gopichand Fattumal AIR 1961
Bom 282

Section 366 Distinguished from Section 498

Section 366 applies to cases where, at the time of her abduction, the woman has no
intention of marriage or illicit intercourse, but it is evident that the intention of the
abductor was to compel her afterwards to marry any person against her will or to force or
seduce her afterwards to illicit intercourse, whereas to constitute an offence under s 498,
IPC, the ingredients of compulsion or deceit need not be there and further s 498 applies to
cases where the object of taking or enticing is that the woman may have illicit intercourse
with some other person even though, as generally happens she is quite aware of the
purpose for which she is quitting her husband and is an assenting party to it. Parappa
Sidram Karlati v Dundawwa (1980) 24 MLJ (Cr) 56

Sections 366 and 366A —Distinction

When the language of s 366A is contrasted with the language of s 366, it is clear that s
366A will be attracted only when the accused induces a minor girl to go from any place
with intent that such girl may be, or knowing that it is likely that she will be, forced or
seduced to illicit intercourse with another person, meaning thereby with a person other
Page 360 of 573
than accused. Mahendra Murtiyan Madrasi v State of Gujarat (2004) Cr LJ 539 (Guj)
(DB).Section 366, IPC, is an aggravated form of the offence under s 363. For proving the
offence under s 366, IPC, it must be proved by the prosecution that the girl may be forced
or seduced to illicit intercourse or knowing to be likely that she will be forced or seduced
to illicit intercourse. However, for proving the offence under s 366A, IPC, the prosecution
has to prove that the girl was kidnapped with the intention that she will be forced or
seduced to illicit intercourse with another person. Moti Chand and anor v State of
Rajasthan (2001) Cr LJ 1916 (Raj).
5. Ingredients

The first of the section requires:

(1) kidnapping, or abduction, of any woman;

(2) with intent that she may be compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will; or

(3) in order that she may be forced, or seduced, or knowing it to be likely that she
will be forced, or seduced, to illicit intercourse.

The second part of the section requires:

i. inducing, by means of criminal intimidation or of abuse of authority or

any other method of compulsion, any woman to go from any place;
ii. with intent that she may be, or knowing that it is likely that she will be,
forced or seduced to illicit intercourse with another person.

What the first part of the section requires is kidnapping or abduction. If the girl is 18 or
over, she can only be abducted and not kidnapped; if, however, she is under 18, she can
be kidnapped as well as abducted.40 It may be noted that the second part of the section
does not require kidnapping, as defined in s 360 or s 361, or abduction, as defined in s
362 ; it requires that a woman should be induced, by intimidation or abuse of authority or
Page 361 of 573
 any other method of compulsion, to go from a place with the same intent as in (2) (b) of
the ingredients of the first part of the section mentioned above.

To prove an offence of abduction, under the first part of the section, in respect of a major
woman, two ingredients must be established, namely:

a. she was abducted; and

b. she was abducted with the intention of compelling her to marry any person
against her will or in order that she may be forced or seduced to illicit sexual
intercourse.

In other words, for an offence under s 366, IPC, abduction, by itself, is not sufficient; in
the absence of evidence that the accused abducted the woman with the intention or
knowledge, specified in the section, a conviction under s 366 cannot be sustained.
Kashiram v State of Madhya Pradesh (1980) Cr LR 333 Similarly, where the first
ingredients of abduction itself is not proved, the allegation, that the prosecutrix was
forced to sexual intercourse with particular persons, would carry no weight to prove an
offence under s 366. Parappa Sidram Karlati v Dundawwa (1980) 24 MLJ (Cr) 56

Constitutional Right of Adults to Love and Marry

Article 19(1) (a), (b) and (c) of the Constitution of India reads as follow:

19. Protection of certain rights regarding freedom of speech etc.—(1) (1) All citizens
shall have the right—

(c) to freedom of speech and expression;

(d) to assemble peaceably and without arms;

(e) to move freely throughout the territory of India;

Page 362 of 573
 (f) to reside and settle in any part of the territory of India;

From a conjoint in depth reading of the aforementioned article it is clear that the
Constitution guarantees its citizens freedom of expression, who can meet peaceably
without arms, and move freely, reside and settle throughout the country.

Article 21 of the Constitution of India reads as follows—

21. Protection of life and personal liberty— No person shall be deprived of his life
or personal liberty except according to procedure established by law.

Its bare perusal shows that life and liberty of accused and prosecutrix both stand
guaranteed except according to the procedure established by law. When both are adults
the law does not prohibit them to love each other. They have a right to live with dignity
and honour and make their life meaningful. In Kharak Singh v State of Uttar Pradesh ,
AIR 1963 SC 1295 Gobind v State of Madhya Pradesh AIR 1975 SC 1378 and PUCL v
Union of India , AIR 1997 SC 568 it was held that art 21 guarantees the right to privacy.

Proof

Prove:

1. for an offence under the first part of this section, that:

a) the accused kidnapped, or abducted, a woman; and
b) he did so with the intent, or knowledge of likelihood, of her being:
i. compelled to marry any person against her will, or
ii. forced, or seduced, to illicit intercourse;
2. for an offence under the second part of this section, that:

Page 363 of 573

 i. the accused induced, by means of criminal intimidation, or abuse of
authority, or any other method of compulsion, a woman to go from any
place; and
ii. he did so with the intent that she may be, or knowing it to be likely that
she will be, forced, or seduced, to illicit intercourse with another
person.

to constitute an offence under s 366, IPC, it is necessary for the prosecution to prove that
the accused induced the complainant-woman or compelled by force to go from any place,
that such inducement was by deceitful means, that such abduction took place with the
intent that the complainant may be seduced to illicit intercourse and/or that the accused
knew it to be likely that the complainant may be seduced to illicit intercourse as a result
of her abduction. Mere abduction does not bring an accused under the ambit of this penal
section. Gabbu v State of MP 2006 Cr LJ 3276 (SC).

[S. 366A. Procuration of minor girl.—

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen
years to go from any place or to do any act with intent that such girl may be, or knowing
that it is likely that she will be, forced or seduced to illicit intercourse with another person
shall be punishable with imprisonment which may extend to ten years, and shall also be
liable to fine.]

Scope

This section is aimed at procurers only. If a person induces a girl under 18 years of age,
by whatever means, to go from one place, or do any act, with the intention that such girl
may be, or knowing that it is likely that she will be, forced, or seduced, to have illicit
intercourse with another man, he is punishable under this section. When the prosecutrix
had attained majority at time of occurrence, the offence under s 366A is not made out. If,

Page 364 of 573

however, the accused procures the girl for himself, his offence is not one which comes
within the purview of this section. Similarly, where it was found that the prosecutrix, who
was herself responsible for her misdeeds, herself wanted to have a good time and earning
out of prostitution and no force, threat, deceit or inducement were used, upon her, by the
accused and the illegal sexual intercourse, which she had, was not the result of any force
or seduction, it was held that the accused could not be held guilty under this section. State
of Madhya Pradesh v Suklu (1980) Cr LR 233 (MP) (DB) ; State of Bihar v Rakesh
Kumar 2013 Cr LJ 1990 (Pat) (No evidence of use of force, ingredients of s 366A, IPC
not satisfied in the case. An offence under this section is a continuing offence. Nanhua
Dhimar v Emperor AIR 1931 All 55 Similarly, when, after inducement, the offender
offers the girl to several persons, a fresh offence is not committed at every fresh offer for
sale and therefore several offers for sale show as much of a criminal intention of the
offender as that of one offer for sale. Sis Ram v Emperor AIR 1929 All 585

Essential Ingredients

The principal ingredients, Ramesh v State of Maharashtra AIR 1962 SC 1908 which are
essential for an offence under this section, are as follows:

(a) the accused must induce a girl;

(b) the age of the girl must be under 18 years;

(c) the said girl must be induced to go from a place or to do any act; and

(d) the accused must do so with the intention that she may be, or knowing that it is
likely that she will be, forced, or seduced, to illicit intercourse with another
person.

To constitute an offence under s 366A of the IPC, there must be kidnapping of an woman
under 18 years of age by inducing her to go from a place with intent that such woman
may be or knowing that it is likely that she will be forced or seduced to illicit intercourse
with another person. Gulab Mochi v State of Bihar (2005) Cr LJ 1759 (Jhar).

Page 365 of 573

 Proof

To establish an offence under this section, it has to be proved that:

(ii) the accused induced a minor girl under the age of 18 years to go from a place or
to do any act; and

(ii) he did so with the intent that the girl may be, or knowing it that it is likely that the
girl will be, forced, or seduced, to illicit intercourse with another person.

The prosecution must prove that the accused intended that the girl would be forced or
seduced.

[S. 366B. Importation of girl from foreign country.—

Whoever imports into India] from any country outside India [or from the State of Jammu
and Kashmir] any girl under the age of twenty-one years with intent that she may be, or
knowing it to be likely that she will be, forced or seduced to illicit intercourse with
another person, [***] shall be punishable with imprisonment which may extend to ten
years, and shall also be liable to fine.]

Scope

This section penalises the importation of minor girls, below the age of 21 years for
purposes of prostitution. The section makes it an offence to import, into India: (1) from
any country outside India, or (2) from the State of Jammu and Kashmir, a girl under the

Page 366 of 573

 age of twenty one years with the intent or knowledge as specified in the section.

Proof

To establish an offence under this section, it has to be proved that:

(1) the accused imported, into India, a girl below the age of twenty one years;

(2) the girl was imported from a country outside India or from the State of Jammu
and Kashmir; and

(3) he did so with intent that she may be, or knowing it to be likely that she will be,
forced, or seduced, to illicit intercourse with some person other than himself.

S. 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery,

etc.—

Whoever kidnaps or abducts any person in order that such person may be subjected, or
may be so disposed of as to be put in danger of being subjected to grievous hurt, or
slavery, or to the unnatural lust of any person, or knowing it to be likely that such person
will be so subjected or disposed of, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Scope

This section penalises kidnapping or abduction in order to subject a person to:

Page 367 of 573

 (1) grievous hurt,

(2) slavery, or

(3) unnatural lust.

Proof

To establish an offence under this section, it has to be proved that:

1. the accused kidnapped or abducted a person; and

2. he did so:

i. in order that such person may be subjected, or may be so disposed of

as put in danger of being subjected, to
ii. grievous hurt, or
iii. slavery, or unnatural lust, of any person, or
iv. knowing it likely that such person will be subjected, or disposed of, as
stated in the above sub-cl (a) or (b).

S. 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted

person.—

Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully
conceals or confines such person, shall be punished in the same manner as if he had
kidnapped or abducted such person with the same intention or knowledge, or for the same
purpose as that with or for which he conceals or detains such person in confinement.

Scope and Applicability

Page 368 of 573

 This section applies to persons who assist in concealing or confining a kidnapped or
abducted person, and not to the principal offender, R v Sheikh Ooozeer 6 WR (Cr) 17
whose conviction is not necessary in order to convict the person who assists even
knowing that kidnapping or abduction has been committed by someone or the other. R v
Ameer Daraz 4 WR (Cr) 8 The section presupposes that the offence of kidnapping or
abduction has taken place so that anyone, wrongfully concealing or confining the person
kidnapped or abducted, is guilty of an offence under this section. Francis Hector v
Emperor AIR 1937 All 182 There must be a concealment or confinement, and not merely
keeping by giving food and shelter and allowing the person to live in the house. R v
Jhurrup 5 NWP (HCR) 133

Proof

In order to secure conviction under this section, the prosecution must prove Saroj Kumari
v State of Uttar Pradesh AIR 1973 SC 201 that:

(a) the person in question had been kidnapped or abducted;

(b) the accused knew that the said person had been kidnapped or abducted; and

(c) he, having such knowledge, wrongfully concealed or confined the person
concerned.

S. 369. Kidnapping or abducting child under ten years with intent to steal from its
person.—

Whoever kidnaps or abducts any child under the age of ten years with the intention of
taking dishonestly any moveable property from the person of such child, shall be
punished with imprisonment of either description for a term which may extend to seven

Page 369 of 573

 years, and shall also be liable to fine.

Scope

This section deals with the kidnapping or abduction of a child under the age of 10 years
with the intention to take away the movable property from the person of such child.

Proof

To establish an offence under this section, it has to be proved that:

(1) the accused kidnapped or abducted a child;

(2) such child was, then, under 10 years of age; and

(3) he did so with the intention of taking dishonestly any movable property from the
person of such child.

[S. 375. Rape.—

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any
other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so
with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person, under the circumstances falling under any of the
following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting
her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by

reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of that to which she
gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of

age.

Seventhly.—When she is unable to communicate consent.

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Explanation 1.—For the purposes of this section, “vagina” shall also include labia
majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman

by words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not
by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.]

Legislative changes

The present section has been substituted for the old s 375, IPC by the Criminal Law
(Amendment), 2013 (13 of 2013), s 9 (wef 3-02-2013) on the recommendations of the
Justice J.S. Verma Committee.

The constitution of this Committee was in response to the country-wide peaceful

public outcry of civil society, led by the youth, against the failure of governance to
provide a safe and dignified environment for the women of India, who are constantly
exposed to sexual violence. The immediate cause was the brutal gang rape of a young
woman in the heart of the nation’s capital in a public transport vehicle in the late
evening of 16 December 2012…

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 The urgency of the matter impelled the Committee to undertake the performance of
the assigned task within the short period of 30 days to enable the authorities, with all
their resources, to take the necessary follow-up action within a further 30 day period,
so that the same or a substantial portion of the same may be completed before
commencement of the next session of the Parliament, which, we hope, will undertake
the needed legislative exercise recommended by this Committee

New ss 375, 376, 376A, 376B, 376C, 376D and 376E have been substituted for old ss
375, 376, 376A, 376B, 376C and 376D by the Act No. 13 of 2013, s 9 (wef 3-2-2013).
The notable changes introduced by the present amendment are —

1. When a person is said to commit rape, has been defined in s

375, IPC.
2. The definition of rape has been expanded.
3. Explanation to old s 375, which provided “penetration is
sufficient to constitute the sexual intercourse necessary to the
offence of rape” has been omitted in new s 375.
4. Explanation I to old sub-s 376 provided for offence of gang
rape. New s 376-D specifically deals with the offence of gang
rape.
5. A new s 376-E provides for enhancement of punishment where
the accused is a repeat offender.
6. Under the new sections, sentence has been enhanced. The
sections prescribe punishment extending to the sentence of
death, for an offence where in the course of commission of an
offence of rape, the offender inflicts any injury which causes
the death of the victim or causes the victim to be in a persistent
vegetative state, and punish the repeat offenders of rape with
imprisonment for life (which shall mean the remainder of the

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 person’s natural life), or with death, prescribe that those
convicted for the offence of gang rape shall be punished with
rigorous imprisonment for a minimum of twenty years
extendable to life (which shall mean the remainder of that
person’s natural life) and fine; to be paid to the victim to meet
the medical expenses, etc.

The definition of the offence of rape has been expanded but the essential ingredients of
the offence of rape remain the same.

Prior to its substitution, s 375 ran thus —

“S. 375. Rape.— A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any
of the six following descriptions:—

First.— Against her will.

Secondly.— Without her consent.

Thirdly.— With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt.

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 Fourthly.— With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes that he is another man to whom she is
or believes herself to be lawfully married.

Fifthly.— With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.

Sixthly.— With or without her consent, when she is under sixteen years of age.

Explanation.— Penetration is sufficient to constitute the sexual intercourse necessary

to the offence of rape.

Exception.— Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.”.

Scope

The offence of rape is stated in ch XVI of the IPC. It is an offence affecting the human
body. In that chapter, there is a separate heading for ‘Sexual Offences’, which
encompasses s s 375, 376, 376A, 376B, 376C, 376D and 376E, IPC. ‘Rape’ is defined in s
375. Sections 375 and 376 have been substantially changed by the Criminal Law
(Amendment) Act 1983, and several new sections were introduced by the said new Act,

Page 375 of 573

i.e., s s 376A, 376B, 376C and 376D, IPC. Sections 375, 376 to 376D have further been
amended and a new s 376E, 376A to 376D have further been amended and a new s 376E,
IPC has been added by the Criminal Law (Amendment) Act 2013 (13 of 2013).

The fact that sweeping changes were introduced reflects the legislative intent to curb with
an iron hand, the offence of rape which affects the dignity of a woman. The offence of
rape in its simplest term is ‘the ravishment of a woman, without her consent, by force,
fear or fraud’, or as ‘the carnal knowledge of a woman by force against her will’. ‘Rape’
or ‘Raptus’ is when a man hath carnal knowledge of a woman by force and against her
will; or as expressed more fully, ‘rape is the carnal knowledge of any woman, above the
age of particular years, against her will; or of a woman child, under that age, with or
against her will’. The essential words in an indictment for rape are rapuit and carnaliter
cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit,
are not sufficient in a legal sense to express rape. In the crime of rape, ‘carnal knowledge’
means the penetration to any slightest degree of the organ alleged to have been carnally
known by the male organ of generation. In the Encyclopaedia of Crime and Justice, it is
stated ‘...even slight penetration is sufficient and emission is unnecessary’. In Halsbury’s
Statutes of England and Wales, it is stated that even the slightest degree of penetration is
sufficient to prove sexual intercourse. By the very nature of the offence it is an obnoxious
act of the highest order. The physical scar may heal up, but the mental scar will always
remain. When a woman is ravished, what is inflicted is not merely physical injury but the
deep sense of some deathless shame. State of Madhya Pradesh v Munna Choubey (2005)
Cr LJ 913 (SC) ; Rajendra Patel v State of Orissa 2013 (127) AIC 796 (Ori) The offence
of rape may be defined, in its simplest terms, as ‘the ravishment of woman, without her
consent, by force, fear or fraud’, Mozley and Whiteley’s Law Dictionary, seventh edn,
1962 or as ‘the carnal knowledge of a woman by force against her will’. Wharton’s Law
Lexicon, fourteenth edn. Ordinarily, rape is violation, with violence, of the private person
of a woman—an outrage by all means. Phul Singh v State of Haryana AIR 1980 SC 249
Under this Code, prior to its substitution vide the Criminal Law (Amendment) Act 2013,
the offence consisted in having sexual intercourse with a woman without her consent, or
when she is of such an age that she cannot, in law, consent, and the offence consisted in
the fact of intercourse, independently of the circumstances of intention, knowledge and
consequences. Empress v Thuree Mohun Mythre ILR 18 Cal 49
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The essence of the offence is that the connection takes place without the consent of the
woman. Non-consent is, therefore, the gist of the offence and the seven clauses set out the
circumstances in which the law holds that there is no consent. If there be no consent or
the sexual intercourse is against the will of the girl, the age of the girl is immaterial for
the offence of rape. Kamakhya Prasad Agarwalla v State (1957) Cr LJ 353Under the
Code, consent is no defence when the girl is under 16 years (now, 18 years) of age; or if
the sexual intercourse is by a man with his own wife, and the wife is under 15 years of
age. Re Anthony AIR 1960 Mad 308 When the intercourse is with the consent of the
prosecutrix, aged above 16 years (now, 18 years), the sexual intercourse does not come
within the definition of rape and, therefore, is not punishable under this section. Gurdial
Singh v State of Punjab 1980 Chand LR 108 Sexual intercourse, to constitute an offence
of rape, in the case of a married woman, aged about 19 years, who has already given birth
to a child, should have been committed against her will or without her consent. Ishwarpal
v State 1980 Cr LR 472-73

The Courts should bear in mind that false charges of rape are not uncommon. There have
also been rare instances where a parent has persuaded a gullible or obedient daughter to
make a false charge of a rape either to take revenge or extort money or to get rid of
financial liability. Whether there was rape or not, would depend ultimately on the facts
and circumstances of each case. Radhu v State of Madhya Pradesh 2007 Cr LJ 4704

A rapist not only violates the victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm in the process. Rape is not merely
assault, it is often destructive of the whole personality of the victim. The murderer
destroys the physical body of his victim. The rapist degrades the very soul of the helpless
female. State of Punjab v Gurmit Singh 1996 AIR SCW 998 ; Rajiner v State of HP 2009
Cr LJ 4133 (SC)

Essential Ingredients of the Offence of Rape

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 Prior to its substitution vide the Criminal Law (Amendment) Act 2013, the two essential
ingredients of s 375, IPC, were:

1. Sexual intercourse by a man with a woman;

2. The sexual intercourse must be under circumstances falling under any of the six
clauses of s 375, IPC. DA Jakati v State of Karnataka 2005 Cr LJ 2687 (Kant) 25

Under the substituted section,

A person is said to commit rape if he—

i. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman
or makes her to do so with him or any other person; or
ii. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
iii. manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
iv. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person, under the circumstances falling under any of the seven
clauses specified immediately below in the section.

This is a new definition of rape in the amended section.

Where the accused and the prosecutrix above the age of 16 years (now, 18 years) have
fallen in love, no offence under s 375, IPC is committed. Vinod Kumar v State of Kerala
(2014) 5 SCC 678 Further, in the absence of evidence of sexual intercourse, the accused

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would not be convicted on the charge of rape. Hussain Kutty v State of Kerala 2013 (2)
KLJ 474

Sexual intercourse by a man with his wife, if she is not under 15 years of age, is not rape.

Dehumanising Effect of Rape—Violation of Prosecutrix’s Right Under Article 21 —

Socially Sensitised Judge

No father or mother of a girl will falsely involve her daughter in a rape case. Sexual
violence, apart from being a dehumanising act is an unlawful intrusion on the right of
privacy and sanctity of a female. It is a serious blow to her supreme honour and offends
her self-esteem and dignity—it degrades and humiliates the victim and where the victim
is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist
not only causes physical injuries but more indelibly leaves a scar on the most cherished
possession of a woman, i.e., her dignity, honour, reputation and not the least, her chastity.
Rape is not only a crime against the person of a woman; it is a crime against the entire
society. It destroys the entire psychology of a woman and pushes her into deep emotional
crisis. It is a crime against basic human rights, and is also violative of the victims’ most
cherished of the fundamental rights, namely, the right to life contained in art 21 of the
Constitution of India. The courts are, therefore, expected to deal with cases of sexual
crime against women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitised judge is better statutory armour in cases of crime against
women than long clauses of penal provisions, containing complex exceptions and
provisos. Bahadur Singh v State of Uttaranchal (2005) Cr LJ 2865 (Uttr).

‘Man’

‘Man’, according to s 10 of this Code, denotes a male human being of any age. By s 82 of
the Code, a child under seven years of age is immune from criminal liability. By s 83, if
the child is above seven and under 12 years of age, his criminal liability depends on his
understanding being sufficiently mature to judge the nature and consequences of his
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conduct on that occasion. Khalilur Rahman v Emperor 1933 Rang 98 (FB) However, a
child not under 12 years of age has no such immunity and the question of his criminal
liability for the offence of rape must be decided as in the case of an adult.

First Clause—‘Against her Will’

The expression ‘against her will’ imports that the act is done inspite of the opposition of
the person to the doing of the act, whereas ‘without her consent’ imports only a passive
attitude without active opposition. The IPC draws a distinction between an act, which is
done against the will, and an act, done without the consent, of a person. Every act done
against the will of a person is done without his consent, but an act done without the
consent of a person is not necessarily against the will of that person, which expression
imports that the act is done inspite of the opposition of the person to the doing of it.
Kalilur Rahman v Emperor 1933 Rang 98 Where it is not at all established that the
woman was ever subjected to any sexual intercourse by the accused against her will, the
charge under this section must fail. Lalta Prasad v State of Madhya Pradesh 1979 Cr LJ
867

Second Clause—‘Without her Consent’

Forcible sexual intercourse with a woman falls in this clause. When the accused caught
the prosecutrix by her neck and felled her on the ground and had sexual intercourse with
her without her consent, he committed rape. Parbata v State of Rajasthan (2006) Cr LJ
562 (SC) Bruises, abrasions and scratches on the victim, especially on the forearms, wrist,
face, breast, thighs and back are indicative of struggle and will support the allegation of
sexual assault. Radhu v State of Madhya Pradesh 2007 Cr LJ 4704 Where the prosecutrix
was 13-15 years of age at the time of the incident, the consent of the prosecutrix, if any,
was held immaterial. The accused was convicted for the offence of rape under s 376, IPC.
Abbas Ahmad Choundhary v State of Assam 2010 Cr LJ 2060

Page 380 of 573

Third Clause—‘With her consent when her Consent has been Obtained by Putting
her or any Person in whom she is Interested, in Fear of Death or of Hurt’

Submission of her body, by a prosecutrix, under fear or terror, is no consent. A mere act
of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or
passive giving in, when volitional faculty is either clouded by fear or vitiated by duress,
cannot be deemed to be a consent as understood in law. Gopi Shanker v State of
Rajasthan AIR 1967 Raj 159 However, to vitiate consent, the threat of injury must be
sufficient to show that it instilled fear and coerced the woman into submission so as to
make the consent involuntary. Where, however, the fear, to which the woman is
subjected, is neither of death, nor of hurt, but only of being arrested, when, actually, there
is no warrant of arrest against her, the consent, though obtained by fraud, is none the less
consent because, in such a case, she is willing to allow sexual intercourse for a price, even
if it is fictitious. In a case, the prosecution evidence showed that the prosecutrix was
having a love affair with the accused appellant and was a consenting party. The accused
appellant belonged to the same caste and gotra as the prosecutrix and was a frequent
visitor to the house of the prosecutrix. There was a love affair between them and she
never resisted being repeatedly deflowered by the accused appellant. In this background,
close and careful determination of the age of the prosecutrix was imperative. The doctor
who had clinically examined the prosecutrix, found that her secondary sex character were
well developed. Thus, the appellant accused was entitled to benefit of doubt, and he was
acquitted of the charge under s 376, IPC Sunil v State of Haryana 2010 Cr LJ 839 (SC).

Fourth Clause—Sexual Intercourse with a Married Woman by the Accused by

Impersonating himself to be her Husband

Clause fourthly of s 375 of the IPC applies when a man induces a married woman to have
sexual intercourse with him by impersonating her husband. When consent by a woman to
a man is given under the misconception that he was her husband, it amounts to rape by a
person to whom the woman believes to be her husband. Sunil Vishnu Salve v State of
Maharashtra (2006) Cr LJ 587 (Bom). This clause is attracted where the woman
consents, but the man knows: (1) that he is not her husband; and (2) that the consent is
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given under the belief that he is the man to whom she is, or believes herself to be,
lawfully married. In such a case, the sexual intercourse is rape. The kind of consent,
envisaged by the fourth clause, is covered by s 90, which deals, inter alia, with consent
given under a misconception of facts that arises under the mistaken belief that the ravisher
is her husband whereby the married woman consents to have sexual intercourse with him.
Consent, in such circumstances, is not such a consent as is required by law, and the
offender is guilty of rape if he knew that he was not her husband; if however, he too
believed that he was her husband, he would be innocent of the offence. The
misconception must have been induced by the fraud of the ravisher; even if he does not
actively induce the belief in the woman, but he has knowledge of it and chooses to keep
silent, when he is under a duty to speak the truth, in order to effectuate his criminal
intention, he is guilty of rape. In A Krishnaraj v State of Mysore (1969) 1 Mys LJ 304 the
accused, a married person, tied a thali round the neck of a Christian girl of 17 years
before the picture of Christ and thereby induced her to believe that he was her husband.
He took her out occasionally for sexual intercourse. The girl agreed believing the accused
to be her husband. It was held that he was guilty of the offence of rape. This clause covers
a case where a prosecutrix marries a man without the knowledge of the first marriage of
the husband. In any event, the accused could not have lawfully married the complainant.
Further, a bare reading of cl ‘Fourthly’ of s 375, IPC makes this position clear. The delay
in filing FIR would not be fatal in such a case and the accused would be guilty of the
offence of rape if the complainant had given her consent considering the accused to be
her husband, therefore, the conviction of the accused under s 376, IPC was upheld
Bhupinder Singh v Union Territory of Chandigarh 2008 Cr LJ 3546.

Fifth Clause—Consent of the Prosecutrix when Immaterial in a Case of Rape

The fifth clause was added to s 375, IPC by virtue of statutory amendment by the
Criminal Law (Amendment) Act, 1983 (43 of 1983). Even before this amendment, the
legal position was that a woman, who is in a state of insensibility, arising from sleep,
liquor, drugs or hypnotism, is incapable of giving her consent; so also a woman who
suffers from feebleness of intellect or any other defect of mind. Rao Hamarain Singh v
State AIR 1958 Punj 123

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The essence of the offence is that the connection takes place without the consent of the
woman.

The same legal portion is incorporated in the definition of rape by virtue of this fifth
clause.

Non-consent is, therefore, the gist of the offence and the five clauses set out the
circumstances in which the law holds that there is no consent. If there be no consent or
the sexual intercourse is against the will of the girl, the age of the girl is immaterial for
the offence of rape. Kamakhya Prasad Agarwalla v State 1957 Cr LJ 353 An idiot girl
may ‘consent’ to the act from mere animal instinct as in the case of R v Fletcher (1859)
Bell 63

Consent given under Fear/coercion/misconception — No Consent

The concept of ‘consent’ in the context of s 375, IPC has to be understood differently,
keeping in mind the provision of s 90, IPC, according to which consent given under
fear/coercion or misconception/mistake of fact is not a consent at all. Satpal Singh v State
of Haryana 2010 Cr LJ 4283

Sixth Clause—Consent of the Prosecutrix, when Prosecutrix is under Eighteen

Years of Age

In a case it was held that sex with a woman above the age of 16 years (now, 18 years) is
not rape. KP Thimmappa Gowda v State of Karnataka 2011 Cr LJ 259. 1Further, consent
is immaterial in the case of rape on a girl under 16 years (now, 18 years) of age subject to
the exception that if the sexual intercourse is by a man with his own wife, the wife is
under 15 years of age, as the law of rape does not apply as between husband and wife
when the wife is above 15 years of age. Empress v Hurree Mohan Mythee ILR 18 Cal 49.
This clause embodies the principle that the consent of a girl below the age of 16 years
Page 383 of 573
(now, 18 years) is immaterial to the offence of rape as, by reason of their immaturity,
such girls require to be protected against premature cohabitation as well as immature
prostitution. Resistance, therefore, need not be looked for when the girl is incapable of
giving consent by reason of her age, as prescribed in the section, i.e., when the girl is
under 16 years (now, 18 years) of age, and if sexual intercourse is by a man with his own
wife when she is under fifteen years of age. Re Anthony 1960 Cr LJ 927 However, when
the age of the victim at the time of incident was 11 years and four months and in any
circumstances of the matter, she was below the stated age, then the question of consent
does not arise at all and the case of the prosecution would fall under s 375(6) of the IPC.
Rafik Khan Asgarkhan Pathan v State of Gujarat 2005 Cr LJ 1284 (DB).

Seventh Clause—When she is Unable to Communicate Consent

This clause is new, added by the Criminal Law Amendment Act (13 of 2013).

Consent—Meaning of

A woman is said to consent only when she freely agrees to submit herself, while in free
and unconstrained possession of physical and moral power to act in a manner she wants.
Consent implies the exercise of a free and untrammeled right to forbid or withhold what
is being consented to; it is always a voluntary and conscious acceptance of what is
proposed to be done by another and concurred in by the former. Rao Harnarain Singh v
State AIR 1958 Punj 123, 126 (an attractive girl of 19, under pressure of her lowly-placed
husband, obliged to surrender her chastity to third person). Consent on the part of a
woman, as a defence to an allegation of rape, requires voluntary participation, not only
after the exercise of intelligence based on the knowledge of the significance and moral
quality of the act, but also after having freely exercised a choice between resistance and
assent. Roop Singh v State of MP (2013) 7 SCC 89 It must be an act of reason,
accompanied with deliberation, after the mind has weighed, as in a balance, the good and
evil on each side with the existing capacity and power to withdraw the assent according to
one’s will or pleasure. Consent, that the law requires to negative rape, is free and
conscious permission and the act of sexual intercourse must be contemporaneous with the
consent. Jarnail Singh v State of Rajasthan AIR 1972 Raj LW 18 (if the woman consents
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prior to penetration, no matter how reluctantly and no matter how much force had been
used, the act is not rape).

Burden of Proof of Consent

It is not for the victim to show that there was no consent. The question of consent is really
a matter of defence by the accused and it was for him to place materials to show that there
was consent. State of Himachal Pradesh v Shree Kant Shekari 2004 Cr LJ 4232 (SC).

Act Without Consent, Against the Will—Distinction

The expression ‘against her will’ imports that the act is done in spite of the opposition of
the person to the doing of the act whereas ‘without her consent’ imports only a passive
attitude without active opposition. The IPC draws a distinction between an act, which is
done against the will, and an act, done without the consent of a person. Every act done
against the will of a person is done without his consent, but an act done without the
consent of a person is not necessarily against the will of that person, which expression
imports that the act is done in spite of the opposition of the person to the doing of it.
Kalilur Rahman v Emperor 1933 Rang 98

The expression ‘against her will’ and ‘without her consent’ may overlap sometimes but
surely the two expressions in cll ‘First’ and ‘Secondly’ have different connotations and
dimensions. The expression ‘against her will’ would ordinarily mean that the intercourse
was done by a man with a woman despite her resistance and opposition. On the other
hand, the expression ‘without her consent’ would comprehend an act of reason
accompanied by deliberation. State of UP v Chhoteylal AIR 2011 SC 697

Male Aggressiveness and Females Submissiveness vis-à-vis Consent—Quantum of

Resistance

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Male aggressiveness and female submissiveness vis-à-vis consent as defence in an
offence of rape would be always factual, to be decided in a given case. Quantum of
resistance of a woman may vary from person to person and no uniform standard can be
laid down. Male aggression and female submission in this regard out of threat, timidity,
fear or other like physical or psychological factors also may have some impact on the
quantum of resistance. The mere absence of serious injuries on the person of the
prosecutrix cannot always be taken as an inference of consent. Revella Sivaiah v State of
AP 2005 Cr LJ 526 (AP).

Can a Healthy Adult Female be Violated Against her Will

Modi’s Medical Jurisprudence and Toxicology, twenty second edn states:

Can a healthy adult female be violated against her will?

Under ordinary circumstances it is not possible for a single man to hold sexual intercourse
with a healthy adult female in full possession of her senses against her will, unless she
is taken unawares, thrown accidentally on the ground and placed in such a position as
to render her completely helpless, or unless she swoons away from fright or
exhaustion after long resistance. The act may be accomplished, if more than one man
are concerned in the crime, or if the woman is too feeble to resist. In giving a definite
opinion, it is necessary to take into consideration the relative strength of the parties
and the community to which particularly the woman belongs. It is obvious that a
woman belonging to a labouring class who is accustomed to hard and rough work will
be able to offer a good deal of resistance and deal blows on her assailant and will thus
succeed in frustrating his attempts at violation. On the contrary, a woman belonging
to a middle or rich class of an educated family and not habituated to go about along
by herself will not be able to resist for long and will soon faint or will be rendered
powerless from fright or exhaustion. Revella Sivaiah v State of AP 2005 Cr LJ 526
(AP).

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Presumption of Absence of Consent— Section 114A, Indian Evidence Act 1872

In State of Karnataka v Mahabaleshwar Surya Naik AIR 1992 SC 2043 the Supreme
Court went to the extent of laying down that even if the victim of rape is not available to
give evidence on account of her having committed suicide, the prosecution case cannot be
thrown overboard. In such a case, the non-availability of the victim will not be fatal and
the court can base conviction on the basis of the available evidence brought on record by
the prosecution.

In spite of the decision of the Supreme Court that (depending upon the circumstances of
the case) corroboration of the prosecutrix was not necessary, the cases continued to end in
acquittal on account of mishandling of the crime by the police and the invocation of the
theory of ‘consent’ by the courts who tried the offence. To overcome this difficulty, the
legislature intervened and introduced s 114A in the Evidence Act 1872 reading as under:

S. 114-A. Presumption as to absence of consent in certain prosecution for rape.

— In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause
(e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause
(m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of
1860), where sexual intercourse by the accused is proved and the question is whether
it was without the consent of the woman alleged to have been raped and such woman
states in her evidence before the court that she did not consent, the court shall
presume that she did not consent.

Explanation.— In this section “sexual intercourse” shall mean any of the acts
mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).”

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A bare perusal of s 114A of the Evidence Act 1872 shows that in a prosecution for rape
under cll (a)-(n) of sub-s (2) of s 376 of the IPC, where sexual intercourse by the accused
is proved and the woman alleged to have been raped states that she did not consent, the
court shall presume she did not consent.

Section 114A of the Evidence Act enables a court to raise a presumption that the woman
who was the victim of rape had not consented and that the offence was committed against
her will. The situation, however, has hardly improved. Conviction rates for rape are still
lower than any other major crime and the woman continue to argue even today that in
rape cases the victimised women, rather than the rapists, were put on trial. A large
number of women still fail to report rapes to the police because they fear embarrassing
and insensitive treatment by the doctors, the law enforcement personnel and/or the cross
examining defence attorneys. The fear has to be allayed from the minds of women so that
if and when this crime is committed, the victim may promptly report the matter to the
police and on a charge sheet being submitted, the trial may proceed speedily without
causing any embarrassment to the prosecutrix who may come in without fear psychosis.
Bodhisatwa Gautam v Ms Subra Chakraborty AIR 1996 SC 922 It may further be stated
here that the presumption about want of consent under s 114A is not conclusive. Evidence
may still be given to disprove it. But in the absence of any evidence of disproof, there is
no option with the court but to raise a presumption about non-consent if circumstances for
raising the presumption under s 114A exist. Jogi Dan v State of Rajasthan 2004 Cr LJ
1726 (Raj).

Explanation 1—Vagina

The new expln 1 provides that for the purposes of this section, ‘vagina’ shall also include
labia majora.

Explanation 2—Consent

The new expln 2 provides that the consent in this section means an unequivocal voluntary

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 agreement when woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not
by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1—Medical Procedure or Intervention is not Rape

The new Exception 1 to s 375 provides that medical procedure or intervention shall not
constitute rape.

Exception 2

The exception embodies the rule that when the woman is married and not less than 15
years of age, sexual intercourse, by the husband, with her is not rape. If this exception had
not been there, clause fifthly would have applied to such a case holding the husband
guilty of rape. However, if a husband has connection with his wife, who is under 15 years
of age, whether with her, or without her consent, he is guilty of rape. The object of the
exception is to protect married women, of less than 15 years, against being forced into
premature sexual intercourse with their husbands with disastrous consequences to
themselves and also the infant mortality that may follow such cohabitation Kartick Kundu
v State 1967 Cr LJ 1411.

[S. 376. Punishment for rape.—

1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for a term which shall not

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 be less than seven years, but which may extend to imprisonment for life, and shall
also be liable to fine.
2. Whoever,—
a) being a police officer, commits rape—
i. within the limits of the police station to which such police officer is appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officer’s custody or in the custody of a police officer
subordinate to such police officer; or
b) being a public servant, commits rape on a woman in such public servant’s custody or
in the custody of a public servant subordinate to such public servant; or
c) being a member of the armed forces deployed in an area by the Central or a State
Government commits rape in such area; or
d) being on the management or on the staff of a jail, remand home or other place of
custody established by or under any law for the time being in force or of a women’s
or children’s institution, commits rape on any inmate of such jail, remand home, place
or institution; or
e) being on the management or on the staff of a hospital, commits rape on a woman in
that hospital; or
f) being a relative, guardian or teacher of, or a person in a position of trust or authority
towards the woman, commits rape on such woman; or
g) commits rape during communal or sectarian violence; or
h) commits rape on a woman knowing her to be pregnant; or
i) commits rape on a woman when she is under sixteen years of age; or
j) commits rape, on a woman incapable of giving consent; or
k) being in a position of control or dominance over a woman, commits rape on such
woman; or
l) commits rape on a woman suffering from mental or physical disability; or
m) while committing rape causes grievous bodily harm or maims or disfigures or
endangers the life of a woman; or
n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten
years, but which may extend to imprisonment for life, which shall mean imprisonment for the

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remainder of that person’s natural life, and shall also be liable to fine.

Explanation.—For the purposes of this sub-section,—

a) “armed forces” means the naval, military and air forces and includes any
member of the Armed Forces constituted under any law for the time being in
force, including the paramilitary forces and any auxiliary forces that are under
the control of the Central Government or the State Government;
b) “hospital” means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or
of persons requiring medical attention or rehabilitation;
c) “police officer” shall have the same meaning as assigned to the expression
“police” under the Police Act, 1861 (5 of 1861);
d) “women’s or children’s institution” means an institution, whether called an
orphanage or a home for neglected women or children or a widow’s home or
an institution called by any other name, which is established and maintained
for the reception and care of women or children.]

Legislative Changes

The present section has been substituted for the old s 376, IPC by the Criminal Law
(Amendment), 2013 (13 of 2013), s 9 (wef 3-02-2013) on the recommendations of the
Justice J.S. Verma Committee.

Recommendations of Justice J.S. Verma Committee on Sentence

While we believe that enhanced penalties in a substantial number of sexual assault

cases can be adjudged on the basis of the law laid down in the aforesaid cases, certain
situations warrant a specific treatment. We believe that where the offence of sexual
assault, particularly ‘gang rape’, is accompanied by such brutality and violence that it

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 leads to death or a Persistent Vegetative State (or ‘PVS’ in medical terminology),
punishment must be severe - with the minimum punishment being life imprisonment.
While we appreciate the argument that where such offences result in death, the case
may also be tried under Section 302 of the IPC as a ‘rarest of rare’ case, we must
acknowledge that many such cases may actually fall within the ambit of Section 304
(Part II) since the ‘intention to kill’ may often not be established. In the case of
violence resulting in Persistent Vegetative State is concerned, we are reminded of the
moving story of Aruna Shanbagh, the young nurse who was brutally raped and lived
the rest of her life. (i.e. almost 36 years) in a Persistent Vegetative State.

In our opinion, such situations must be treated differently because the concerned
effort to rape and to inflict violence may disclose an intention deserving an enhanced
punishment. We have therefore recommended that a specific provision, namely,
Section 376(3) should be inserted in the Indian Penal Code to deal with the offence
of “rape followed by death or resulting in a Persistent Vegetative State”

In our considered, view, taking into account the views expressed on the subject by an
overwhelming majority of scholars, leaders of women’s organizations, and other
stakeholders, there is strong submission that the seeking of death penalty would be a
regressive step in the field of sentencing and reformation. We, having bestowed
considerable thought on the subject, and having provided for enhanced sentences
(short of death) in respect of the above-noted aggravated forms of sexual assault, in
the larger interest of society, and having regard to the current thinking in favour of
abolition of the death penalty, and also to avoid the argument of any sentencing
arbitrariness, we are not inclined to recommend the death penalty. Vide Report of the
Committee on Amendments to Criminal Law by Justice J.S. Verma dated 23 January
2013. See also, relevant extracts from the report at the end of vol 4

Scope

Page 392 of 573

The general features of the offence, punishable under this section, have already been set
out in the commentary under the preceding s 375. Under s 375, irrespective of consent, it
is rape when a man has sexual intercourse with a woman (a) under sixteen years of age
(now, 18 years), if she is not his wife; or (b) under fifteen years of age if she is his wife.
In this class of cases, only the following two questions will arise:

(ii) was the woman, at the time of the act, under the prescribed age aforesaid? and

(ii) was there penetration? This was the position prior to the substitution of s 375vide
the Criminal Law (Amendment) Act 2013.

However, there is another and larger class of cases where the girls are of the prescribed
age of 15 or 16 years, as the case may be. In this class of cases, different questions will
arise. All persons, other than the husbands, commit rape on a woman without her consent.
Consent is, thus, the most important ingredient of the offence of rape in this large class of
cases. Hence, the evidence will focus on that question to show that there was no consent
which the law requires, namely, free and conscious permission before the act began or
was completed. The consent, that will relieve the act of sexual intercourse of criminality,
must be real consent to the act and it must be both free and previous to the act. A consent,
subsequent to the act, is no defence to a charge of rape. This is why the law does not
allow an offence of rape to be compounded. Further, consent, after the first act of rape,
might purely be the result of sexual urge and would not, therefore, be after the first act of
coitus against the will of the woman. Every act of sexual intercourse would, thus, be a
separate offence of rape. Re Anthony AIR 1960 Mad 308 The circumstances, vitiating
apparent consent, have been explained in the commentary under the preceding s 375, IPC.

Attempt to Rape or Outraging the Modesty

It is now well settled that in a case of attempt to rape, in order to come to a conclusion
that the conduct of the accused was indicative of a determination to gratify his passion at

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all events and in spite of all resistance, a preparation reasonably proximate to the
consummation of the offence is sufficient to bring home the offence of attempt to rape. It
is not only that the accused tore the clothes and took bites on the cheeks of his victim but
forcibly tore the cord of the salwar and tried to go on the grown up lady from the leg-
side. It is definitely an act beyond the stage of preparation proximate to the commission
of the offence of rape taking it to the stage of attempt. Sulekhan Singh and Ors v State
1999 Cr LJ 3798 (Raj).

The difference between preparation and an attempt to commit an offence consists chiefly
in the greater degree of determination, and what is necessary to prove for an offence of an
attempt to commit rape is that the accused has gone beyond the stage of preparation. If an
accused strips a girl naked and then making her lie flat on the ground undresses himself
and then forcibly rubs his erected penis on the private part of the girl, but fails to
penetrate the same into her vagina and on such rubbing ejaculates himself, then it is
difficult to hold that it was a case of merely assaulting under s 354 and not an attempt to
commit offence under s 376 read with s 511, IPC. Madan Lal v State of J&K 1998 Cr LJ
667 (SC).

Abetment of Rape

In order to bring home the conviction under s 376 read with s 114, IPC, the prosecution
has to establish the presence of the accused person if it was committed as also their
abetment to commit the offence by the perpetrator. In order to bring home such
conviction under s 376 read with s 114, IPC, there must be evidence on record to show,
(a) that there was abetment of rape to be committed; (b) that the abettors have actually
abetted the commission of rape; and (c) that they were present at the time when the
commission of rape took place. Mangiya and Ors v State of Rajasthan 2000 Cr LJ 4814
(Raj).

Abetment of doing of a thing is when a person instigates any person to do that thing or

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enters into conspiracy for the doing of that thing and if an act or illegal omission takes
place in pursuance thereof, in order to the doing of that thing or intentionally aids by any
act or illegal omission the doing of that thing. If anything is done in order to facilitate the
commission of that act, it amounts to aiding the doing of that thing. When the two
accused did not commit rape with the prosecutrix, they did not physically hold any part of
her body nor intimidate her nor do any other act to facilitate the commission of rape by
the main accused, the two accused could hardly be held to have committed abetment of
the offence of rape. Lakhan Singh and Ors v State of Uttar Pradesh 1999 Cr LJ 4087
(All).

Sexual Intercourse with false Promise of Marriage is Cheating

When an accused makes a false promise to marry, which he never intends to carry out,
and induces thereby the victim, so deceived, to have with him the sexual act, which the
victim would not have indulged in or permitted, had she not been induced by such
deception and when such act of having sexual intercourse by her with the accused causes,
or is likely to cause, damage or harm to her body, mind or reputation, the act of the
accused would amount to cheating. Thus, when a woman is induced to part with her
chastity or virginity, which is the most valued possession of hers, the person, who so
induces the woman by making false representation, would be liable for punishment under
s 417, IPC. If the victim’s having sexual intercourse with such a person, causes, or is
likely to cause harm to her body, mind or reputation, for, in such a case, unless so
deceived, the victim would not have permitted sexual act by the accused. To put it
differently, had such a victim not been deceived, she would not have permitted sexual act
or would have refrained from allowing such sexual act and clearly in such a case, but for
her permitting such sexual act, she would not have suffered harm to her body, mind or
reputation. Md Jakir Ali v State of Assam 2007 Cr LJ 1615 (Gau); State of UP v Naushad
AIR 2014 SC 384

In a case, the prosecutrix and the accused had sexual intercourse continuously for a long
period and when the prosecutrix became pregnant, she filed complaint for offence under s
376, IPC, on the allegation that she gave consent on misconception of fact or belief of
Page 395 of 573
 false promise of marriage by the accused. It was held that the circumstances of the case
showed that continuous sex between the parties was consensual. This was a relationship
between two co-workers who were intimately known to each other, and in the
circumstances, they had spent time together for long periods and that it was also possible
that the desire to have sex was mutual and consensual. Hence, given the circumstances of
the case, it was possible to hold in favour of the accused that there was consensual sex
between the complainant and the accused. It is only when the relationship soured and
when the appellant refused to marry the complainant that a case of rape has been brought
against him. The accused was acquitted of the charge of rape under s 376, IPC.
Anjinappa v State of Karnataka 2014 Cr LJ 82

If a woman, believing in the promise of marriage made by a man, consents to the

promisor having sexual intercourse with her, the promisor would be liable for the offence
of rape if the Court finds, on examination of the materials on record, that the promise of
marriage made by the promisor was really a hoax to obtain consent of the woman, for,
such a consent given by the woman would not, in the light of the provisions of s 90, IPC,
amount to consent in law and the sexual intercourse by such a promisor with a woman, so
induced, would constitute a offence of rape. Bipul Medhi v State of Assam 2008 Cr LJ
1099

Please check the latest position in this point.

Section 376(2) (g) [old clause]—Gang Rape—Ingredients

To bring the offence of rape within the purview of s 376(2)(g), IPC, read with expln 1 to
this section, it is necessary for the prosecution to prove:

i. that more than one person had acted in concert with the common intention to commit
rape on the victim;
ii. that more than one accused had acted in concert in commission of crime of rape with
pre-arranged plan, prior meeting of minds and with element of participation in action.
Page 396 of 573
 Common intention would be action in consort in pre-arranged plan or a plan formed
suddenly at the time of commission of offence which is reflected by element of
participation in action or by the proof of the fact of inaction when the action would be
necessary. The prosecution would be required to prove pre-meeting of minds of
accused persons prior to commission of offence of rape by substantial evidence or by
circumstantial evidence; and
iii. that in furtherance of such common intention one or more persons of the group
actually committed offence of rape on victim or victims. Prosecution is not required to
prove actual commission of rape by each and every accused forming the group.
Pardeep Kumar v Union Administration, Chandigarh 2006 Cr LJ 3894 (SC).

In order to establish an offence under s 376(2)(g), IPC, read with expln 1 thereto, the
prosecution must adduce evidence to indicate that more than one accused had acted in
concert and in such an event, if rape had been committed by even one, all the accused
would be guilty irrespective of the fact that she had been raped by one or more of them
and it is not necessary for the prosecution to adduce evidence of a completed act of rape
by each one of the accused. In other words, this provision embodies a principle of joint
liability and the essence of that liability is the existence of common intention; that
common intention pre-supposes prior concert which may be determined from the conduct
of offenders revealed during the course of action and it could arise and be formed
suddenly, but, there must be meeting of minds. It is not enough to have the same intention
independently of each of the offender. In such cases, there must be criminal sharing
marking out a certain measure of jointness in the commission of offence. Ashok Kumar v
State of Haryana 2003 Cr LJ 4932 (SC)

Explanation I—A Woman Cannot Be Prosecuted For Gang Rape

A bare reading of s 375 makes the position clear that rape can be committed only by a
man. The section itself provides as to when a man can be said to have committed rape.
Section 376(2) makes certain categories of serious cases of rape, as enumerated therein,
attract more severe punishment. One of them relates to ‘gang rape’. The language of sub-s
(2)(g) provides that whoever commits ‘gang rape’ shall be punished etc. The explanation
Page 397 of 573
only clarifies that when a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each such person shall be deemed to have
committed gang rape within this sub-s (2). That cannot make a woman guilty of
committing rape. This is conceptually inconceivable. The expression ‘in furtherance of
their common intention’ as appearing in the explanation to s 376(2) relates to intention to
commit rape. A woman cannot be said to have an intention to commit rape. Therefore, a
woman cannot be prosecuted for alleged commission of the offence punishable under s
376(2)(g), IPC Priya Patel v State of Madhya Pradesh 2006 Cr LJ 3627 (SC).

Principles Underlying Corroboration of Testimony of Prosecutrix

In Moti Chand v State of Rajasthan 2001 Cr LJ 1916 (Raj).

the Rajasthan High Court after analysing the observations of the Apex Court in several
cases has summarised the principles pertaining to corroboration of testimony of
prosecutrix based upon these decisions of the Apex Court as follows:

1. corroboration of the testimony of prosecutrix in rape cases is not required as a rule of

law;
2. corroboration in such cases is, however, required as a matter of prudence and this rule
of prudence has now almost hardened into rule of law;
3. the rule of prudence which has been hardened into rule of law is that the rule as to
corroboration must be present in the mind of the judge and must have been
incorporated in the judgment;
4. if the evidence of the prosecutrix does not suffer from any basic infirmity and the
probabilities factor does not render it unworthy of credence, as a general rule,
corroboration should not be insisted upon;
5. the corroboration of the prosecutrix evidence may be dispensed with where
circumstances of a case make it safe to do so, but the reasons for dispensing with the
necessity of such corroboration should be forthcoming in the judgment;
6. corroboration should ordinarily be required in the case of a woman having attained
majority and who is habitual to sexual intercourse as, in such cases, there is likelihood

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 of her having leveled such an accusation on account of her instinct of self preservation
or when the probabilities factor is found to be out of time;
7. the view that though corroboration should ordinarily be required in the case of a
grown up woman, it is unnecessary in the case of a child of tender years is not correct;
whether corroboration is unnecessary is a question of fact in every case.

Two Fingers Test

The fact of admission of two fingers and the hymen rupture does not give a clear
indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to
whether the hymen stood ruptured much earlier or carried an old tear. The factum of
admission of two fingers could be held adverse to the prosecutrix, as it would also depend
upon the size of the fingers inserted. The doctor must give his clear opinion as to whether
it was painful and bleeding on touch, for the reason that such condition obviously relates
to the hymen. Lillu v State of Haryana 2013 Cr LJ 2446 (SC)

Page 399 of 573

S. 376A. Punishment for causing death or resulting in persistent vegetative state of
victim.—

Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of

section 376 and in the course of such commission inflicts an injury which causes the
death of the woman or causes the woman to be in a persistent vegetative state, shall be
punished with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, or with death.]

Legislative changes

This section is new, inserted by the Criminal Law (Amendment), 2013 (13 of 2013), with

Page 400 of 573

 effect from 3-2-2013 on the recommendations of Justice J.S. Verma Committee.

Scope

This section is new, providing severe punishment when in the course of commission of
rape, the offender inflicts an injury which causes the death of the woman or causes the
woman to be in a persistent vegetative state.

When the accused committing rape kept his hand on mouth of the prosecutrix, so that she
should not shout and in that process, if she died due to suffocation, then certainly the
accused caused an injury to the prosecutrix which caused the death of the prosecutrix, and
the offence falls within the purview of s 376A, IPC. The conviction of the accused
appellant under s 376A, IPC was held proper. Sessions Judge v Arvind 2014 Cr LJ 4024

Vegetative state

Concised Oxford Dictionary defines vegetative state as ‘concerned with growth and
development as distinct from sexual reproduction’. We are reminded of the moving story
of Aruna Shanbaug, the young nurse who was brutally raped and lived the rest of her life
(i.e. almost 36 years) in a persistent vegetative state. Unfortunately the petitioner has died
in the year 2015, while the accused who put the petitioner in such a stage is still alive.
Aruna Ramchandra Shanbaug v Union of India AIR 2011 SC 1290

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

Whoever has sexual intercourse with his own wife, who is living separately, whether
under a decree of separation or otherwise, without her consent, shall be punished with
imprisonment of either description for a term which shall not be less than two years but
which may extend to seven years, and shall also be liable to fine.
Page 401 of 573
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned
in clauses (a) to (d) of Section 375 .]

Legislative Changes

This section has been substituted for old s 376A by the Criminal Law (Amendment) Act
2013 (13 of 2013), s 9, wef 3-2-2013 on the recommendations of Justice J.S. Verma
Committee. Explanation to the section is new, though the new section is the same as the
old section. However, under the new section, the punishment shall not be less than two
years, which may extend to seven years while under the old section, the punishment could
be imposed upto two years. The old s 376A ran thus:

“376A. Intercourse by a man with his wife during separation.— Whoever has
sexual intercourse with his wife, who is living separately from him under a decree of
separation or under any custom or usage without her consent shall be punished with
imprisonment of either description for a term which may extend to two years and
shall also be liable to fine.”

Scope

Sexual intercourse, whether forced or voluntary, between the husband and wife is no
offence when the age of the wife is not less than 15 years. When the age of the wife is
under 12 years then the sexual intercourse by a man with his wife amounts to rape.
However, when the age of the wife is 12 years and above but less than 15 years, the
sexual intercourse by a husband with his wife though it amounts to rape, but of mild
category, is punishable with imprisonment with imprisonment of either description for a
term which shall not be less than two years, but which may extend to seven years, and

Page 402 of 573

 shall also be liable to fine. By insertion of this section in the IPC, another offence against
a husband is added, when despite a decree of separation or under any custom or usage the
husband and wife are living separately but still the husband has sexual intercourse with
his wife without her consent.

5. Proof

In order to establish the offence against the accused under this section, the prosecution
has to prove that,

(a) the accused had sexual intercourse with his own wife.

(b) the wife was living separately from him under a decree of separation or any
custom or usage,

(c) sexual intercourse was done by the accused without her consent.

S. 376C. Sexual intercourse by a person in authority.—

Whoever, being—

(a) in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody

established by or under any law for the time being in force, or a women’s or
children’s institution; or

(d) on the management of a hospital or being on the staff of a hospital,

abuses such position or fiduciary relationship to induce or seduce any woman

Page 403 of 573
 either in his custody or under his charge or present in the premises to have
sexual intercourse with him, such sexual intercourse not amounting to the
offence of rape, shall be punished with rigorous imprisonment of either
description for a term which shall not be less than five years, but which may
extend to ten years, and shall also be liable to fine.

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

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

Explanation 3.—”Superintendent”, in relation to a jail, remand home or other place of

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

Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall

respectively have the same meaning as in Explanation to sub-section (2) of section 376 .]

Legislative changes

This section has been substituted for old s 376C and s 376D by the Criminal Law
(Amendment) Act 2013 (13 of 2013), s 9 on the recommendations of Justice J.S. Verma
Committee wef 3-02-2013. The old s 376C and s 376D ran thus—

“S. 376C. Intercourse by superintendent of jail, remand home, etc.— Whoever,

being the superintendent manager of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a women’s children’s
Page 404 of 573
institution takes advantage of his official position and induces or seduces any female
inmate of such jail, remand home, place or institution to have sexual intercourse with
him, such sexual intercourse not amounting to the offence of rape, shall be punished
with imprisonment of either description for a term which may extend to five years
and shall also be liable to fine.

Explanation 1. ‘Superintendent’ in relation to a jail, remand home or other place of

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

Explanation 2. The expression women’s or children’s institution shall have the same
meaning as in Explanation 2 to sub-section (2) of Section 376.

S. 376D. Intercourse by any member of the management or staff of a hospital

with any woman in that hospital.— Whoever, being on the management of a
hospital or being on the staff of a hospital takes advantage of his position and has
sexual intercourse with any woman in that hospital, such sexual intercourse not
amounting to the offence of rape, shall be punished with imprisonment of either
description for a term which may extend to five years and shall also be liable to fine.

Explanation. The expression ‘hospital’ shall have the same meaning as in

Explanation 3 to sub-section (2) of Section 376 .”

Page 405 of 573

 Scope

When a person being on the management or on staff of jail or other place, custody
established by or under the law takes advantage of his official position and commits rape
on any inmate of such jail etc., he commits rape of a severe category punishable under s
376(2)(b), IPC. However, when he being a superintendent or manager of a jail etc., takes
advantage of his official position and induces or seduces any female inmate of such jail
etc. to have sexual intercourse with him which does not amount to rape, he commits a
milder offence under this section inserted by the Legislature in the IPC to avoid the
misuse of their position by the superintendent or manager of the jail etc. by taking
advantage of custody of female inmates and committing sexual intercourse with them.

The two accused hospital employees allured the prosecutrix, a patient, with refund of
money and free treatment, s 376D was attracted in the case. Babubhai Punjabhai Vaghela
v State of Gujarat 2013 Cr LJ (NOC) 182 (Guj) (DB).

S. 376D. Gang rape.—

Where a woman is raped by one or more persons constituting a group or acting in

furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with rigorous imprisonment for a
term which shall not be less than twenty years, but which may extend to life which shall
mean imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.]

Page 406 of 573

 Legislative Changes

This section is new, inserted by the Criminal Law (Amendment) Act 2013 (13 of 2013), s
9 wef 3-02-2013 on the recommendations of Justice J.S. Verma Committee. Explanation
1 to old s 376, IPC provided as under:

“Explanation 1. Where a woman is raped by one or more in a group of persons acting

in furtherance of their common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-section.”

Scope

This section deals with the offence of gang rape and provides enhanced punishment for
the offence. It is not necessary that in case of a gang rape, the victim should have been
raped by all the accused persons. If she is raped by one or more in a group of persons,
each of the persons shall be ‘deemed to have committed gang rape’, provided those
persons are acting in furtherance of their common intention. The common intention of all
the five accused persons can be gathered from their conduct, prior to the incident and
during the course of the incident. State of Rajasthan v Roshan Kaur (2014) 2 SCC 476

S. 376E. Punishment for repeat offenders.—

Whoever has been previously convicted of an offence punishable under section 376 or
section 376A or section 376D and is subsequently convicted of an offence punishable
under any of the said sections shall be punished with imprisonment for life which shall

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 mean imprisonment for the remainder of that person’s natural life, or with death.]

Legislative Changes

This section is new, inserted by the Criminal Law (Amendment) Act 2013 (13 of 2013), s
9 wef 3-2-2013 on the recommendations of Justice J.S. Verma Committee.

S. 377. Unnatural offences.—

Whoever voluntarily has carnal intercourse against the order of Nature with any man,
woman or animal, shall be punished with [imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to
fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section.

Constitutional Validity

Recently three Judges Bench of the Supreme Court has held that s 377, IPC is
constitutionally valid, is not ultra vires of art 14 and art 15 of the Constitution. Suresh
Kumar Koushal v NAZ Foundation 2014 Cr LJ 784 The Supreme Court held:

Those who indulge in carnal intercourse in the ordinary course and those who indulge
in carnal intercourse against the order of nature constitute different classes and the

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 people falling in the latter category cannot claim that Section 377 suffers from the
vice of arbitrariness and irrational classification. What Section 377 does is merely to
define the particular offence and prescribe punishment for the same which can be
awarded if in the trial conducted in accordance with the provisions of the Code of
Criminal Procedure and other statutes of the same family the person is found guilty.
Therefore, the High Court was not right in declaring Section 377, IPCultra vires
Articles 14 and 15 of the Constitution.

Scope

A civilised society abhors unnatural carnal intercourse and reckons it a crime which this
section punishes. The crime is committed by persons of all ages, in all stations of life, and
in all countries, and it is committed stealthily.

Unlike in an offence of rape under s 376, consent of the victim is immaterial though it
may be taken into consideration in awarding punishment. Jagif Singh v State 69 PLR 34
(SN). However, as in rape penetration is an essential ingredient of the offence under this
section. Nowshirwan Irani v Emperor 36 Cr LJ 718

The unnatural carnal intercourse with a human being generally consists in penetration per
anus. Under the English law, to constitute the offence, the act must be in that part where
sodomy is usually committed. Hence, the act, in child’s mouth, does not constitute the
offence. R v Jacobs (1817) R&R 331 However, in Khanu v Emperor , Lohana Vasantlal
Devchand v State AIR 1968 Guj 252 it was held that coitus per os (through the mouth) is
punishable under this section, though not with the same severity as coitus per anus.

Sodomy

By virtue of the explanation to the section, it is necessary to prove penetration, however

little, to constitute carnal intercourse. Under the English law, to constitute a similar

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offence the act must be in that part where sodomy is usually committed. According to that
law, the unnatural carnal intercourse with a human being generally consists in penetration
per anus. Calvin Francis v State of Orissa 1992 (2) Crimes 455 In R V Jacobs (1817)
Russ & Ry 331 CCR and Re Govindarajulu, (1886) 1 Weir 382 it was held that the act in
a child’s mouth does not constitute the offence. However, in Khanu v Emperor, it was
held that coitus per os is punishable under the section. These is no statutory definition of
sodomy.

The Shorter Oxford English Dictionary gives the meaning of the term ‘Sodomy’ thus:

An unnatural form of sexual intercourse, esp that of one male with another.

Webster’s Third New International Dictionary gives the meaning of the term ‘sodomy’
thus:

Carnal copulation with a member of the same sex or with an animal, non coital carnal
population with a member the opposite sex, specific, the penetration of the male
organ into the mouth or anus of another.

Thus, it enlarges the meaning of the term ‘sodomy’ to include non coital carnal
copulation with a person of the other sex also. Halsbury’s Laws of England,66 under
criminal law, gives the meaning of Sodomy thus in para 1281—

1281. Sodomy. The offence of Sodomy can only be committed per annum (RV
Jacobs (1817), Russ & Ry 331, CCR). It may be committed by a man upon a woman
(R v Wiseman (1718) Fortes Rep 91, 1 Russel on Crime (10th edn 846) even upon his
own wife (RV Jellyman (1838) 8 C&P 604; Stathan v Statham (1929) p 131 CA).

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Further in Jowitts Dictionary of English Law, the term ‘Sodomy’ is described thus:

Sodomy, unnatural sexual intercourse by a man whether with a man or a woman so

called from Sodom (Gen xiii 13). In the criminal law it is known as buggery.

Orifice of Mouth and Intercourse

The orifice of the mouth is not, according to nature, meant for sexual or carnal
intercourse. ‘Intercourse may be defined as mutual frequent action by members of
independent organisation’. Commercial intercourse is therefore, referred to; emphasis is
made on the reciprocity. By metaphor the word intercourse like the word commerce is
applied to the relations of the sexes. Here also there is the temporary visitation of one
organism by a member of the other organisation, for certain clearly defined and limited
objects. The primary object of the visiting organisation is to obtain euphoria by means of
a detent of the nerves consequent on the sexual crises. However, there is no intercourse
unless the visiting member is enveloped at least partially by the visited organism, for
intercourse connotes reciprocity, and in this view it would seem that sin of gomorrah is no
less carnal intercourse than the sin of sodomy. These aspects have been illuminatingly
highlighted in Khanu v Emperor. Coitus per os is punishable under s 377, IPC.

Consent of Victim

In cases of unnatural offences the consent of the victim is hardly of any consequence.
Unlike in an offence of rape under s 376, IPC, the consent of the victim in a case under s
377, IPC, is immaterial though it may be taken into consideration in awarding
punishment. Jagif Singh v State 1969 PLR 34 (SN);Suresh Kumar Koushal v NAZ
Foundation 2014 Cr LJ 784 (SC).

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Chapter XVII Of Offences Against Property

TOPICAL INTRODUCTION

For human society to regulate its administration, it requires the protection of not only the
person of individuals, but also of their property. All systems of jurisprudence from the
earliest times have, therefore, made provisions for its protection.

To a considerable extent, provisions for violation of property rights have been provided in
civil law and remedies are sought by private individuals in civil courts to obtain relief. A
stage is, however, reached when violations of property rights become so violent, mischievous
or fraudulent that the state finds it necessary to step in and utilise the machinery of its
criminal law to afford protection to property in a speedy and effective way. To achieve this
objective, this chapter, i.e., ch XVII, classifies the offences against property under the
following ten heads:

(a) Theft (ss 378 to 382 ).

(b) Extortion (ss 383 to 389 ).

(c) Robbery and dacoity (ss 390 to 402 ).

(d) Criminal misappropriation of property (ss 403 to 404 ).

(e) Criminal breach of trust (ss 405 to 409 ).

(f) Receiving stolen property (ss 410 to 414 ).

(g) Cheating (ss 415 to 420 ).

(h) Fraudulent disposal of property (ss 421 to 424 ).

(i) Mischief (ss 425 to 440 ).

(j) Criminal trespass (ss 441 to 462 ).

S S. 378. Theft.—

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

Explanation 1.— A thing so long as it is attached to the earth, not being moveable
property, is not the subject of theft; but it becomes capable of being the subject of theft as
soon as it is severed from the earth.

Explanation 2.— A moving effected by the same act which effects the severance may be a
theft.

Explanation 3.— A person is said to cause a thing to move by removing an obstacle

which prevented it from moving or by separating it from any other thing, as well as by
actually moving it.

Explanation 4.— A person, who by any means causes an animal to move, is said to move
that animal, and to move everything which, in consequence of the motion so caused, is
moved by that animal.

Explanation 5.— The consent mentioned in the definition may be express or implied, and
may be given either by the person in possession, or by any person having for that purpose
authority either express or implied.

Illustrations

(a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree
out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree
in order to such taking, he has committed theft.

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(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if
A’s intention be dishonestly to take the dog out of Z’s possession without Z’s
consent, A has committed theft as soon as Z’s dog has begun to follow A.

(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain
direction, in order that he may dishonestly take the treasure. As soon as the
bullock begins to move, A has committed theft of the treasure.

(d) A, being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly
runs away with the plate, without Z’s consent. A has committed theft.

(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z
shall return. A carries the plate to a goldsmith and sells it. Here the plate was not
in Z’s possession. It could not, therefore, be taken out of Z’s possession, and A
has not committed theft, though he may have committed criminal breach of trust.

(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the
ring is in Z’s possession, and if A dishonestly removes it, A commits theft.

(g) A finds a ring lying on the high-road, not in the possession of any person. A, by
taking it, commits no theft, though he may commit criminal misappropriation of
property.

(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the
ring in a place where it is highly improbable that it will ever be found by Z, with
the intention of taking the ring from the hiding place and selling it when the loss
is forgotten. Here A, at the time of first moving the ring, commits theft.

(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A,

not owing to the jeweller any debt for which the jeweller might lawfully detain
the watch as a security, enters the shop openly, takes his watch by force out of Z’s
hand, and carries it away. Here A, though he may have committed criminal
trespass and assault, has not committed theft, inasmuch as what he did was not
done dishonestly.

(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully
as a security for the debt, and A takes the watch out of Z’s possession, with the

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 intention of depriving Z of the property as a security for his debt, he commits
theft, inasmuch as he takes it dishonestly.

(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession, without
Z’s consent, not having paid what he borrowed on the watch he commits theft,
though the watch is his own property, inasmuch as, he takes it dishonestly.

(l) A takes an article belonging to Z out of Z’s possession, without Z’s consent, with
the intention of keeping it until he obtains money from Z as a reward for its
restoration. Here A takes dishonestly; A has therefore committed theft.

(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes
away a book without Z’s express consent for the purpose merely of reading it, and
with the intention of returning it. Here, it is probable that A may have conceived
that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has
not committed theft.

(n) A asks charity from Z’s wife. She gives A money, food and clothes, which A
knows to belong to Z her husband. Here, it is probable that A may conceive that
Z’s wife is authorised to give away alms. If this was A’s impression, A has not
committed theft.

(o) A is the paramour of Z’s wife. She gives A valuable property, which A knows to
belong to her husband Z, and to be such property as she has no authority from Z to
give. If A takes the property dishonestly, he commits theft.

(p) A, in good faith, believing property belonging to Z to be A’s own property, takes
that property out of B’s possession. Here, as A does not take dishonestly, he does
not commit theft.

Scope

This section defines the offence of theft and the next section prescribes the punishment
thereof. In order to constitute the offence of theft, there must exist the following
ingredients,1 namely:
Page 415 of 573
 (ii) the accused must have an intention to taking dishonestly;

(ii) the subject of the theft must be some movable property;

(ii) the said movable property must be taken out of the possession of any person;

(ii) the said taking must be without that person’s consent; and

(ii) the property must be moved in order to such taking.

Similarly, the commission of theft consists in: (a) moving a movable property of a person
out of his possession without his consent; and (b) the moving being in order to taking the
property with dishonest intention. Thus, the absence of the person’s consent at the time of
moving and the presence of dishonest intention in so taking at that time are essential
ingredients of the offence of theft.2 The Supreme Court while analysing the ingredients of
this section in Pyarelal Bhargava v State of Rajasthan ,3 observed that this section may be
dissected, into its component parts. Thus, a person will be guilty of the offence of theft:

(viii) if he intends to cause a wrongful gain, or a wrongful loss, by unlawful

means, of property to which the person gaining is not legally entitled, or to which
the person losing is legally entitled, as the case may be;4

(ix) the said intention to act dishonestly is in respect of movable property;

(x) the said property is taken out of the possession of another person without his
consent; and

(xi) he moves that property in order to such taking.

As theft is an offence against possession and not title, the criminal courts are not required
to adjudicate on rival claims of the parties about title while deciding whether offence of
theft is made out or not. 5

Theft Distinguished from Extortion

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A distinction between theft and extortion is well known. Whereas offence of extortion is
carried out by over-powering the will of the owner; in commission of an offence of theft
the offender’s intention is always to take without that person’s consent. 16

Criminal Misappropriation Distinguished from Theft

Theft and criminal misappropriation are two distinct offences and are defined in s s 378
and 403, IPC, respectively. A person commits theft when he dishonestly removes any
movable property out of the possession of another person without that person’s consent.
In other words, a person is said to have committed theft of a movable property which is
not in his own possession but in the possession of some other person. On the other hand, a
person commits the offence of criminal misappropriation when he dishonestly
misappropriates or converts to his own use any movable property which has already come
into his possession by innocent means.17

Where a person commits theft or criminal misappropriation, the subsequent restoration of

the theft or criminal misappropriation will not undo the offence which has already been
committed although in fit and proper circumstances the High Court in view of the
particular facts and circumstances of the case may, in exercise of its inherent power under
s 482, Crpc, quash the proceeding or pass such other order as it may deem fit and proper
in view of the subsequent development or the parties may even compromise or compound
the offence where it is permissible or the trial court in awarding punishment may take into
consideration the subsequent development in mitigating the severity of punishment. 18
Where an exclusive property of one of the spouses is unwarrantedly taken away or
misappropriated by the other and the marriage breaks down, it will not be correct to have
a rigid approach, divorced from facts and circumstances of each case, to hold that the
offence of misappropriation or theft cannot be made out.19

‘Intending to Take’

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The intention of the accused must be to take, i.e., to acquire, possession of something in
another’s possession. The moving of property should be effected with a view to take
possession or custody of property. Re Chockalingam Pillay 13 Cr LJ 131 Again, to
commit theft, one need not take movable property permanently out of another’s
possession with the intention of not returning the same to him. It would be sufficient if he
takes any property out of the possession of another person though he intends to return it to
him later on. Pyare Lal Bhargava v State of Rajasthan AIR 1963 SC 1094 Where the
accused snatched away some books from a boy, as he came out of school, and told him
that they would be returned when he came to his house, it was held that theft had been
committed. Naushe Ali Khan v Emperor (1912) ILR 34 All 89 However, snatching of a
revolver by the accused from a member of the complainant’s party, in order to prevent
further bloodshed and surrendering it to the police at the earliest possible opportunity, is
not theft as there is no intention to steal it. Mohar Singh v State of Rajasthan 1980 Supp.
SCC 655

‘Dishonestly’

The word ‘dishonestly’, as is used in this section, does not carry its ordinary meaning. It
is a technical term which has been expressly defined in s 24, IPC. A person can be said to
have dishonest intention if, in taking the property, it is his intention to cause gain, by
unlawful means, of the property to which the person so gaining is not legally entitled, or
to cause loss, by unlawful means, of property to which the person so losing is legally
entitled. KN Mehta v State of Rajasthan AIR 1957 SC 369 ‘Dishonestly’ involves the
twin ingredients of ‘intention’ and ‘dishonestly’. ‘Dishonestly’ again involves intention,
i.e., the doing of a thing with an intention to cause wrongful gain or wrongful loss. Re
Puchalapalli Rama Chandrareddy 1960 Cr LJ 1414. The intention of a person who takes
a thing, is not dishonest unless it is with the intention to cause either such gain or loss as
is provided in s 24. A person cannot be convicted of theft of a property unless it has been
found, as a matter of fact, that he is not entitled to it. Harendra Narayan Das v Ramjan
Khan 15 Cr LJ 298 The section requires that the removal of property from the possession
of another should be with the intent to cause wrongful gain to himself or wrongful loss to

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 another person. Dishonest intention is the gist of the offence. Re Kakarla Narasayya AIR
1953 Mad 516 This intention is known as animus furandi and without it the offence of
theft is not complete. Chandi Kumar Das v Abanidhar Roy AIR 1965 SC 585 Unless the
removal of property by the accused with dishonest intention is established, no offence
under s 378, IPC, can be made out. Satyanarayan v Bhanwarlal 1978 Crlr (Raj) 608

S. 379. Punishment for theft.—

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

Scope

This section deals only with the punishment for the offence of theft which has already
been defined in the preceeding s 378, IPC. As all the aspects as to the ingredients, which
constitute the offence of theft, have been dealt with under that section, the commentary
under this section is confined to practice and procedure only.

Proof

In order to establish a charge of theft, the prosecution must prove that:

(a) the accused moved some movable property;

(b) that property was in possession of some other person;

(c) the accused had the intention of taking the property out of the possession of that
person;
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 (d) he moved the property without that person’s consent; State of Maharashtra v
Vishwanath Tukaram AIR 1979 SC 1825 and

(e) in intended to take that property dishonestly.

S. 380. Theft in dwelling house, etc.—

Whoever commits theft in any building, tent or vessel, which building, tent or vessel is
used as a human dwelling, or used for the custody of property, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

STATE AMENDMENT

Tamil Nadu.— Section 380 of the Indian Penal Code (Central Act XLV of 1860) shall
be renumbered as sub-section (1) of that section and after sub-section (1) as so
renumbered, the following sub-section shall be added, namely:—

“(2) Whoever commits theft in respect of any idol or icon in any building used as a place
of worship ‘shall be punished with rigorous imprisonment for a term which shall not be
less than two years but which may extend to three years and with fine which shall not be
less than two thousand rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the
judgment impose a sentence of imprisonment for a term of less than two years.” 30

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Scope

This and the following two sections treat all the three kinds of aggravated theft:

(a) on account of the place (s 380 );

(b) on account of the capacity of the thief (s 381 ); and

(c) on account of the nature of the preparation for the theft (s 382 ).

This section provides for punishment for an offence of theft, committed inside any
building, etc, in the committing of which the accused would not only commit trespass on
the property, but would also endanger the security of the inmates of the building. The
essential point in the offence of theft in a building is that the property should be under the
protection of the building and the offence may be committed by the owner of the
building, or by any other person, who has lawful access to the building. Empress v Nga
Pan E (1872-1892) LBR 367 ; Gopal Chauhan v Satya 1979 Cr LJ 446 In the case of
theft in a dwelling-house, the invasion would not reduce the culpability by the presence of
the owner of the house. Re Kashinath Bhaushet (1871) Unrep Cr C 56. Where the
accused finding the door of a house open, walked in and proceeded to steal certain articles
therefrom, but before he could get away, he was actually caught, it was held that the
offence was one under s 380, and not under s 457, IPC. Bhagwana v Emperor 19 Cr LJ
609

‘Building’

The expression ‘building’ has not been defined anywhere in the IPC. A building within
the meaning of s s 380 and 442, IPC, includes structure, whether covered or not, made of
any material whatsoever. The limitation, which appear to have been imposed by the
legislature, are not as to the nature of the structures or materials of which they are made,
but to the use to which such structures are intended to be put. Walimahomed v Emperor
AIR 1929 Sind 17 ((2) The expression ‘building’, having regard to the expressions ‘tent’
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 and ‘vessel’ that follow, must be regarded as indicating some structure intended for
affording some sort of protection to the persons, dwelling inside it, or for the property
placed there for custody. Any structure, which does not afford any such protection by
itself, but merely serves as a fencing or other means of merely preventing ingress or
egress, cannot make the place a ‘building’ or ‘house’ within the meaning of s 380 or s
442, IPC. Lakshmana Koundan v Emperor AIR 1927 Mad 343

Proof

In order to secure a conviction under this section, the prosecution must prove that:

1. the movable property was taken out of the possession of a person by the accused;
2. such taking was without that person’s consent;
3. he did so with the intention of taking away the movable property dishonestly; and
4. the said property was taken away from a building, tent or vessel which building, tent
of vessel was used as a human dwelling or for the custody of the property. Sterling
Holiday Resort (India) Ltd v Murli Khemchand 2014 (137) AIC 576 (Mad) ; Prafulla
Sakia v State of Assam 2012 (115) AIC 828 (Gauh).

Thus, an offence under s 380, IPC would be committed:

i. if the ingredients of theft, as required under s 378, IPC, are established; and
ii. if the theft is committed in a building, tent or vessel, which is used:

a. as a human dwelling, or
b. for the custody of property.

S. 381. Theft by clerk or servant of property in possession of master.—

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Whoever, being a clerk or servant, or being employed in the capacity of a clerk or
servant, commits theft in respect of any property in the possession of his master or
employer, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.

Scope

Possession of a clerk or that of a servant being the possession of his master or employer
(s 27, IPC ), theft (s 381, IPC ) and breach of trust (s 408, IPC ), etc, have been treated as
the more aggravated forms of the offence because the very position of a clerk or of a
servant, which involves the placing of confidence in him by his master or employer, give
him ample opportunities to handle his (master’s or employer’s) property on account of
which particular importance is attached to it. The distinction between an offence by a
clerk or a servant under s 381 and one under s 408, IPC, is that under the former section,
the property is taken out of the possession of the owner, by the clerk or servant, having, at
the time of taking, a mere custody thereof, whereas under the latter section, the property
is converted by the offender when it is in his possession and before that possession is
changed into mere custody by the property passing into the possession of the master. The
main distinguishing feature is the nature of the possession of the property by a clerk or a
servant. Where the possession of the master continues inspite of its physical possession
by the clerk or servant, the offence would be under s 381, but if the clerk or servant, when
he himself is in legal possession of the property in the nature of a trust, converts the
property to his use or dishonestly uses and disposes it of, the offence would be one under
s 408, IPC. Thus, if a clerk first reduces some property into his master’s possession as by
putting a bank-note into the master’s till or cash box, R v Grove (1835) 7 C&P 635 or by
putting the goods in the master’s cart, R v Hayward (1844) 1 C&K 518 and then takes it
out animo furandi, he is guilty of theft; but if he dishonestly misappropriates it before
putting it into his master’s possession, he commits breach of trust.

‘Clerk or Servant’

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 A man may be a clerk or servant though:

(a) he was appointed or elected to the employment, in respect of which he is a clerk

or servant, by some person, other than the master, whose orders he is bound to
obey;

(b) he is paid for his services by a commission or a share in the profits of a business;

(c) he is a director of the company which he serves;

(d) he is a clerk or servant of more masters than one, eg, the clerk or servant of a firm
is the servant of several partners, and therefore, of each of them;

(e) he acts as a clerk or servant only occasionally, or only on the particular occasion,
on which the offence is committed.
Proof

In order to secure conviction under this section the prosecution has to prove that:

1. the accused committed theft (for which all the ingredients of

theft required for an offence under s 378, IPC, must be proved);
2. at the time, when the theft was committed, the accused was a
clerk or servant or was being employed in the capacity of a
clerk or servant; and
3. the theft was committed by him in respect of the property of his
master or employer.

S. 382. Theft after preparation made for causing death, hurt or restraint in order to the
committing of the theft.—

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Whoever commits theft, having made preparation for causing death, or hurt, or restraint,
or fear of death, or of hurt, or of restraint, to any person, in order to the committing of
such theft, or in order to the effecting of his escape after the committing of such theft, or
in order to the retaining of property taken by such theft, shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Illustrations

(a) A commits theft on property in Z’s possession; and, while committing this theft,
he has a loaded pistol under his garment, having provided this pistol for the
purpose of hurting Z in case Z should resist. A has committed the offence defined
in this section.

(b) A picks Z’s pocket, having posted several of his companions near him, in order
that they may restrain Z, if Z should perceive what is passing and should resist, or
should attempt to apprehend A. A has committed the offence defined in this
section.

Scope

The section provides for an even more aggravated form of the offence of theft. That
which renders the theft an aggravated offence in this section, is when the thief has made
preparation for causing:

i. death, i.e., death of a human being (s 46 ), or

ii. hurt [ss 319 and 11(a) ] or,
iii. restraint [ss 340 and 11(b) ], or
iv. the fear of one or the other in order to show the commission of theft for
his escape or the safety of the property after the theft.

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An accused cannot be convicted under this section, unless there is proof of actual theft for
which he was present at the scene of occurrence Lal Singh v Emperor AIR 1923 Lah 512.

Offence under Section 382 Distinguished from Robbery

When the offender makes preparation for causing death, etc, in the event of any resistance
during the commission of theft, it would be an offence under this section. The guilty
preparation is the essence of this offence. If, however, hurt is attempted or actually
inflicted, the theft would amount to robbery. R v Hushrnt Sheikh 6 WR (Cr) 85 ; Re
Diwan Singh 1980 Cr LJ 760 If one, keeps a knife with him and commits theft, he may be
liable for conviction for the offence under this section even though there was no occasion
for him to wield the knife or cause injury. What is relevant is preparedness of the accused
in such a manner that he may be able to cause hurt, etc, to others who might resist or may
come in his way while escaping or taking the stolen property away Re Diwan Singh 1980
Cr LJ 760.

‘Preparation for Causing Death’ etc

The possession by a thief at the time of his committing a theft, of a knife or other weapon
which, if used (on a human being), might cause death, or hurt, etc, would not, by itself,
justify the conviction under this section. There must be something to show, or from which
it may properly be inferred, that the offender made a preparation for causing one or more
of the result mentioned in this section Nga Shan Gale v Crown 1 Cr LJ 378 ; Nga Shwe
Brau v King AIR 1937 Rang 542.

Proof

To establish a charge under this section, the prosecution must prove that:

1. the accused committed theft as defined in s 378, IPC;

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 2. the accused committed theft having made preparation for causing death, hurt, restraint
or fear of death, hurt or restraint; and
3. he did so:

a. in order to the committing of theft, or

b. to effect his escape, or
c. o retain property taken by such theft.

If the prosecution fails to prove mens rea as contemplated in s 378 against the accused,
the proceeding under s 382, IPC, must fail. Parmeshwar Singh v State 1977 Cr Cas 185

S. 383. Extortion.—

Whoever intentionally puts any person in fear of any injury to that person, or to any other,
and thereby dishonestly induces the person so put in fear to deliver to any person any
property or valuable security, or anything signed or sealed which may be converted into a
valuable security, commits “extortion”.

Illustrations

(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money.
He thus induces Z to give him money. A has committed extortion.

(b) A threatens Z that he will keep Z’s child in wrongful confinement, unless Z will
sign and deliver to A, a promissory note binding Z to pay certain monies to A. Z
signs and delivers the note. A has committed extortion.

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 (c) A threatens to send club-men to plough up Z’s field unless Z will sign and deliver
to B a bond binding Z under a penalty to deliver certain produce to B and thereby
induces Z to sign and deliver the bond. A has committed extortion.

(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his
seal to a blank paper and deliver it to A. Z signs and delivers the paper to A. Here,
as the paper so signed may be converted into a valuable security. A has committed
extortion.

Scope

If a person voluntarily delivers any property without there being any fear of injury, an
extortion cannot be said to have been committed. Even the illustrations under s 383 of
IPC would reveal that the delivery must be pursuant to threat of injury to reputation; to
the body or to the body of another person. If someone forces another person to deliver
some property, without there being an element of dishonest intention to cause injury or
the feeling of fear of injury in the deliverer, an offence of extortion cannot be made out.
Lanka Hanumantha Rao v State of Andhra Pradesh 2005 Cr LJ 4327 (AP). In contrast to
theft, in extortion there is an element of consent, obtained by putting the victim in fear of
injury. In extortion, the will of the victim has to be overpowered by putting him in fear of
injury. Forcibly taking any property will not come under this definition. It has to be
shown that the person was induced to part with the property by putting him in fear of
injury. The illustrations to the section given in the IPC make this perfectly clear. Most
Indrasana Kuer v Siya Ram Pandey 1970 Cr LJ 647 (Pat).

Nature of Offence

The threat need not be one for the accused to do anything personally. ‘Attempt to obtain’
is specifically made a mode of the full offence of extortion. The conviction should thus be
for the full offence and not merely attempted extortion even if the target does not
capitulate. Extortion contrary to s 346 of the Criminal Code can be made out by ‘veiled’
threats. The accused’s conduct must be viewed in the context of his entire course of

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 behaviour.

Double Jeopardy

The Kienapple principle bars convictions for both extortion and robbery (s 344 ) arising
from the same factual and legal nexus. Where accused was guilty of 2 counts: (1) sexual
assault, and (2) making threats that induced the complainant to engage in sexual
intercourse and fellatio (extortion), then the sexual assault conviction was stayed in
accordance with Kienapple.

In R v Gigliotti , R v Gigliotti (2012) O.J. No. 1066. it was observed that ‘The elements of
extortion are included in the sexual assault offence, and the elements of sexual assault are
included in the extortion offence. Therefore, in this way, I find that the elements of
extortion are substantially the same as the elements of sexual assault in the present case. I
find that there is a sufficient legal nexus between the two counts. The two counts refer to
the same matter, cause, or delict.’

Ingredients

The following ingredients would constitute the offence of extortion:

1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any
property, valuable security or anything signed or sealed which may be converted into
a valuable security.
4. Such inducement must be done dishonestly. Dhananjay v State of Bihar 2007 Cr LJ
1440 (SC).

S. 384. Punishment for extortion.—

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

Scope

This section prescribes punishment for the offence of completed extortion which is
defined in the preceding section. Provision for a minor offence of attempted extortion and
punishment, therefore, has been made in s 385, IPC.

Where the accused husband took his wife to the forest and obtained her ornaments under
threat to kill, but the FIR indicated a slightly less serious situation, the accused is liable to
be convicted under s 384 and not under s s 386 / 392, IPC. State of Karnataka v
Basavegowda alias Chandra 1997 Cr LJ 4386 (Kant) (DB).

S. 385. Putting person in fear of injury in order to commit extortion.—

Whoever, in order to the committing of extortion, puts any person in fear, or attempts to
put any person in fear, of any injury, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

Scope

This section deals with a case of attempted extortion. The section prescribes punishment
for extortion which remains incomplete by reason of the fact that the accused fails to
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 induce delivery of property by putting the complainant in fear of an injury. Extortion
consists of two parts, i.e.,

(a) causing fear of injury, which induces the person, labouring under the fear, and

(b) to deliver up the property.

If the complete offence, i.e., fear caused and a consequent delivery of the property is
committed, then it is punishable under s 384. If only the first part of the offence is
committed, it is punishable under this section. Hem Chandra Singha v Emperor AIR
1927 Pat 89, 27 Cr LJ 1244 wherein it has been held that a charge under s 384 read
with s 511, IPC, is not bad. It is submitted that s 385 does provide for an attempt to
commit extortion and s 11 has no application to it. The extortion, defined in s 383,
includes putting any person in fear of injury and covers this section which deals with
a less serious offence. Mansharam Gianchand v Emperor AIR 1941 Sind 36
Similarly, this section must be read in conjunction with s 383, IPC. Tonumal
Udhosingh v Emperor AIR 1944 Sind 203

Proof

For establishing a charge under this section, the prosecution must prove that:

1. the accused put, or attempted to put, the complainant in fear of an injury; and
2. the accused did so in order to the committing of extortion (as defined in s 383 ).

Where the prosecution case was that the accused had asked the complainant to pay 10%
of the project, otherwise he would be implicated in serious offences, the presence of the
accused at that time was found doubtful, no other witness corroborated the prosecution
case, the accused was acquitted of the charge under s 385, IPC. State of Gujarat v
Kiritsinh Mahobatsin Brahmbhath 2014 (3) Crimes 187

S. 386. Extortion by putting a person in fear of death or grievous hurt.—

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 Whoever commits extortion by putting any person in fear of death or of grievous hurt to
that person or to any other, shall be punished with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.

Scope

This section prescribes punishment for an aggravated form of extortion by subjecting the
victim in fear of death or of grievous hurt to him or to another person. Where the modus
operandi disclosed in the ransom letters, was clearly to put the father of the kidnapped
boy into a state of fright of the boy being murdered, and there was throughout the
likelihood of the boy being murdered if the ransom money was not paid for one reason or
the other, it was held that the accused were guilty of the offences under s s 364 and 386,
IPC. Ram Chandra v State AIR 1957 SC 381

S. 387. Putting person in fear of death or of grievous hurt, in order to commit extortion.
—

Whoever, in order to the committing of extortion, puts or attempts to put any person in
fear of death or of grievous hurt to that person or to any other, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

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 Scope

Sections 386 and 387, IPC have the same relation as s s 384 and 385, IPC, the only
difference being that in a case of this section and s 386, the injury in fear of which a
person is put is death or grievous hurt. The sections do not, however, provide that the fear
of death or grievous hurt should necessarily be instant. Nga Tun Bow v Emperor 13 Cr LJ
864 (FB).

S. 388. Extortion by threat of accusation of an offence punishable with death or

imprisonment for life, etc.—

Whoever commits extortion by putting any person in fear of an accusation against that
person or any other, of having committed or attempted to commit any offence punishable
with death, or with imprisonment for life, or with imprisonment for a term which may
extend to ten years, or of having attempted to induce any other person to commit such
offence, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and, if the offence be one punishable
under section 377 of this Code, may be punished with imprisonment for life.

Scope

The preceding sections deal with the putting of a ransom into fear of different kinds of
injury. This section also deals with an aggravated form of extortion, but under this
section, the threat is of accusing the victim of an offence, punishable with death/or with
imprisonment for life/or with imprisonment for a term which may extend to ten years. An
accusation of a charge of unnatural offence under s 377, IPC, is viewed with even greater

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 seriousness. In that case, the punishment extends to imprisonment for life, while in other
cases, it may extend to ten years.

Accusation need not be against the person who is put in fear. Such accusation against any
other person would bring the offence under this section if a person is put into fear of such
accusation against another person. The term ‘accusation’ is not confined to a threat to
prefer a charge before a tribunal; it includes a threat to accuse before any third person. R
v Robinson (1837) 2 M&R 14

S. 389. Putting person in fear of accusation of offence, in order to commit extortion.—

Whoever, in order to the committing of extortion, puts or attempts to put any person in
fear of an accusation, against that person or any other, of having committed or attempted
to commit, an offence punishable with death or with imprisonment for life, or with
imprisonment for a term which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine; and, if the offence be punishable under section 377 of this Code,
may be punished with imprisonment for life.

Scope

This section is to the preceding s 388, in the same position as s 385 is to s 384 and s 387
to s 386, IPC.

5. Proof

Prove that:

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 (a) the accused put, or attempted to put, a person in fear;

(b) the fear was of the accusation of an offence or an attempt to commit it;

(c) such offence was punishable with death or imprisonment for life or for a term
which may extend to ten years; and

(d) this was done in order to commit extortion (as defined in s 383, IPC ).

S. 390. Robbery.—

In all robbery there is either theft or extortion.

When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or
in committing the theft, or in carrying away or attempting to carry away property
obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to
any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or
of instant wrongful restraint.

When extortion is robbery.—Extortion is “robbery” if the offender, at the time of

committing the extortion, is in the presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of instant hurt, or of instant
wrongful restraint to that person or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver up the thing extorted.

Explanation.—The offender is said to be present if he is sufficiently near to put the other

person in fear of instant death, of instant hurt, or of instant wrongful restraint.

Illustrations

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 (a) A holds Z down, and fraudulently takes Z’s money and jewels from Z’s clothes,
without Z’s consent. Here A has committed theft, and, in order to the committing
of that theft, has voluntarily caused wrongful restraint to Z. A has therefore
committed robbery.

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

(c) A meets Z and Z’s child on the high road. A takes the child, and threatens to fling
it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his
purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant
hurt to the child who is there present. A has therefore committed robbery on Z.

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

Scope

Robbery involves either theft or extortion. The difference in the effects of theft and
extortion for constituting robbery may be analysed as follows:

Robbery consists of either:

Aggravated theft or aggravated extortion,

1. i.e., where the offender, in order to commit the theft,

2. or in committing the theft,
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 3. or in carrying away the stolen property,
4. or in attempting to carry it away, thereto voluntarily causes, or attempts to cause, to
any person, death, hurt or wrongful restraint, or fear of instant death, hurt or wrongful
restraint.

Where the property is taken under the above circumstances, the theft becomes robbery [refer
to illust (a)].

i. i.e., where, at the time of extortion,—the offender, in the presence of the person put in
fear,
ii. puts him in fear of instant death, hurt or wrongful restraint to himself or any other
person,
iii. thereby inducing him then and there to deliver up the thing extorted.

Where the owner is induced, under above circumstances, to deliver up the property, the
extortion becomes robbery [refer to illusts (b) and (c)]. Extortion need not fall immediately
upon the restraint in order to constitute a robbery if there is fear of restraint at the relevant
time. Kattua Rewther v Suppan Asari AIR 1927 Mad 307; Venu v State of Karnataka 2008 Cr
LJ 1634

Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use
of violence of death, hurt or restraint. Violence must be in the course of theft and not
subsequently. It is not necessary that violence actually should be committed but even attempt
to commit it is enough. Where there is no theft committed, then as a natural corollary there
cannot be robbery. Venu v State of Karnataka 2008 Cr LJ 1634

The essence of the offence of robbery is that the offender, for committing theft, or for
carrying away or attempting to carry away the looted property, voluntarily causes, or attempts
to cause, death/or hurt/or wrongful restraint. The use of violence will not, therefore, ipso
facto convert the offence of theft into robbery unless the violence is committed for one of the

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ends specified in the section. Abdul Rashid v Nausher Ali 1979 Cr LJ 1158, 1159 (Cal) If
violence is used in order to help an offender to escape, or to make good his own escape,
Jagan Singh v State of Rajasthan 1978 Cr LR (Raj) 43 the act does not become robbery. The
mere fact that the assault and the theft took place in the same transaction, is not enough. The
assault must be to facilitate commission of theft. 24If the threat, if any, is occasioned
subsequent to the act of carrying away the property, it is theft, and not robbery. Nila Naik v
Shyamasundar Mohapatra (1966) 32 Cut LT 310

Robbery with Theft

Before theft can amount to robbery, the offender must have voluntarily caused, or attempted
to cause, to any person, death/or hurt/or wrongful restraint/or fear of instant death/or fear of
instant hurt/or fear of instant wrongful restraint. The second ingredient, necessary to
constitute robbery, is that the (accused’s) act must be in order to the committing of the theft
of, or carrying away, or attempting to carry away, the property obtained by theft. The third
ingredient is that the offender must voluntarily attempt to cause, to any person, hurt for that
end in view. K Muhammad v State 1974 Cr LJ 204

However, before a person can be convicted of robbery, theft by him must be established; if
theft is not established, the accused would not be guilty. Budho v Emperor AIR 1945 Sind 38
A charge of robbery cannot be entertained if there is evidence that the accused acted in good
faith under a claim of right, however erroneous the belief may have been. Suvval Sanyasi
Apparao v Boddepalli Lakshminarayana AIR 1962 SC 586

S. 391. Dacoity.—

When five or more persons conjointly commit or attempt to commit a robbery, or where
the whole number of persons conjointly committing or attempting to commit a robbery,
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and persons present and aiding such commission or attempt, amount to five or more,
every person so committing, attempting or aiding, is said to commit “dacoity”.

Scope

Dacoity, which is an aggravated form of robbery, is viewed with great seriousness and
has been made punishable at different stages as follows:

(a) Preparation. —Preparation is not punishable except under a few sections like s s
121 and 126, IPC. Express provision has been made under s 399, IPC in respect
of preparation to commit dacoity.

(b) Assembling for dacoity.—This is made punishable under s 402, IPC.

(c) Attempt at dacoity.—Preparation and attempt are treated as separate offences in

other cases. In the case of dacoity, even attempt is itself a dacoity (s 391, IPC ).

(d) Commission of the actual dacoity.

Punishments have also been graduated as under s 395, IPC. Even association with dacoits
is made punishable under s 400, IPC.

The term ‘dacoity’ is defined in s 391 of the IPC, which clearly postulates that when five
or more persons conjointly commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or more, every person so
committing, attempting or aiding, is said to commit ‘dacoity’. Where the offence is said
to have been committed by only 3-4 persons, conviction in and sentence of accused under
s 391 is illegal and cannot be sustained. Atar Singh v State of Uttar Pradesh 2003 Cr LJ
676 (All) ; Manmeet Singh v State of Punjab 2015 (89) ACC 638

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Dacoity and Robbery—Distinction

For an offence of dacoity, minimum number of the miscreants required is five. The term
‘dacoity’ is defined in s 391, IPC, which clearly postulates that when five or more
persons conjointly commit or attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a robbery, and persons present
and aiding such commission or attempt, amount to five or more, every person so
committing, attempting or aiding, is said to commit ‘dacoity’. The offence of ‘robbery’ is
defined in s 390, IPC, and as is clear from a perusal of the said section, even a theft is
‘robbery’ if during its commission, the offender voluntarily causes or attempts to cause to
any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or
of instant wrongful restraint. Whereas ‘robbery’ is punishable under s 392, IPC, dacoity is
punishable under s 395, IPC. Atar Singh v State of Uttar Pradesh 2003 Cr LJ 676 (All) ;
Manmeet Singh v State of Punjab 2015 (89) ACC 638

‘Conjointly’

The essential ingredient of the offence of dacoity is that five of more persons should be
concerned in the commission of it, and they should either commit, or attempt to commit, a
robbery. Shyam Behari v State of Uttar Pradesh AIR 1957 SC 320

The word ‘conjointly’ is the most important word appearing on the liability of person
against an offence of dacoity. Raja Singh v State of Bihar 2000 Cr LJ 3388 (Pat). The
word ‘conjointly’, used in s 391, IPC, manifestly refers to united or concerted action of
the persons participating in the transaction. Gouranga Charan Bhuyan v Fakir Charan
Nayak (1977) 2 Cut LT 311

Motive Unnecessary in Dacoity Cases

In cases of dacoity and cognate offences where it is alleged that substantial property has

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 been stolen, it is entirely unnecessary to consider motive at all. The taking of body in such
cases itself provides a sufficient motive for the offence if any motive is required. Arjun
Panda v Emperor AIR 1942 Pat 199 It is not necessary that the accused should have
known their victim previously and should have some personal grievance against them
before they would commit dacoity. Re Mattaya Filial AIR 1929 Mad 135

Attempt to Robbery Sufficient for Dacoity

Dacoity begins as soon as there is an attempt to commit robbery. A shot fired in order to
keep off the rescue party and allow the theft to be committed is an act committed in
committing the dacoity. Sita Ram v Emperor AIR 1925 Oudh 723 It cannot be argued that
no dacoity was committed if the dacoits were unsuccessful. Sirajuddin v State AIR 1951
All 834 There is no distinction between a dacoity and an attempt to commit one. It may
be noted that in the case of robbery, an attempt at robbery is treated as a separate offence
under s 393 with a much lesser punishment than for robbery under s 392, IPC. In the case
of dacoity, however, attempt stands at the same level as the commission of dacoity and is
punishable to the same extent.

Aiding the Commission of Dacoity

Under this section, not only the persons directly committing or attempting to commit
robbery but also those present and aiding such commission or attempt will be guilty of
dacoity. It may be noted that the word used is ‘aiding’, and not ‘abetting’. The presence at
the scene of the dacoity is necessary for aiding although it is not so for abetment.
Knowing of a design to commit dacoity and voluntarily concealing the existence of that
design, with the knowledge that such concealment would facilitate the commission of
dacoity, does not amount to the abetment of dacoity.

S. 392. Punishment for robbery.—

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

Scope

The various aspects of the offence of robbery have been discussed in s 390, IPC.
Punishments for robbery are prescribed under s s 392 to 394, IPC. This section covers the
case of simple robbery and s 393, IPC of attempt to commit robbery. The punishment has
been made heavier in the case of highway robberies between sunset and sunrise. Section
394, IPC, provides for even higher sentences for causing hurt in committing robbery
which is a more aggravated form.

Violence—Two Views—Effect

The facts constituting the offence either by reason of it being a theft or extortion, as the
case may be, must be proved for establishing a charge under this section. Ordinarily, if
violence or hurt, etc, is caused at the time of theft it would be reasonable to infer that the
violence or hurt was caused for facilitating the commission of theft or for facilitating the
carrying away of the property stolen or for facilitating the attempt to do so. However,
there may be something in evidence to show that hurt or violence was caused not for this
purpose, but for a different purpose. If two views can be taken as to the object for which
the violence has been used, it would be safer to take the view which would be more
favourable to the accused. Himatsing Shivsing v State of Gujarat (1962) 2 Cr LJ 415

Proof

To secure a conviction under this section, the prosecution must prove:

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 1. in the case of a robbery by theft, Himatsing Shiv Singh v State of Gujarat (1962) 2 Cr
LJ 41537 that:

i. the offender voluntarily caused, or attempted to cause, to any person:

ii. death, or hurt, or wrongful restraint, or
iii. fear of instant death, or of hurt, or of wrongful restraint; and
iv. the above was done that end, namely:
a) in order to the committing of the theft, or
b) in committing the theft, or
c) in carrying away, or in attempting to carry away, property obtained by the theft;

2. in the case of a robbery by extortion, that:

a. extortion, as defined in s 383, IPC, was committed;

b. the offender, at the time of committing extortion, was in the presence of the person
put in fear;
c. extortion was committed by putting that person in fear of instant death, or of hurt; or
of wrongful restraint, to that person or to some other person; and
d. by so putting the person in fear; he was induced to deliver up then and there the thing
extorted.

Presumption under Illustration (A) to Section 114, Indian Evidence Act 1872

Illustration (a) to s 114 of the Evidence Act provides that a presumption arises when a man is
in possession of stolen goods, soon after the theft, he is either the thief or has received the
goods knowing then to be stolen, unless he can account for his possession. Presumption of
facts are assumptions resulting from one’s experience in the course of the natural events of
human conduct and character, and all those which one is entitled to make use of or has to

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make use of in the ordinary course of life, as well as the business of courts. State of
Karnataka v David Razorio 2002 Cr LJ 4127 (SC).

S. 393. Attempt to commit robbery.—

Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a
term which may extend to seven years, and shall also be liable to fine.

Scope

Attempts for offences under the IPC are punishable under s 511, IPC where no express
provision is made for punishment of such attempts. This section expressly provides for
punishment for an attempt to commit robbery. Section 511 would not apply to it. Robbery
stands on a different footing from dacoity in this respect as an attempt at dacoity is
punishable as a dacoity.

S. 394. Voluntarily causing hurt in committing robbery.—

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt,

such person, and any other person jointly concerned in committing or attempting to
commit such robbery, shall be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Scope

This section applied to cases where, during the course of robbery, voluntary hurt is
caused. There may be a dacoity without hurt being caused, but in the case of an offence
under this section, hurt is one of the essential elements and if no hurt is caused, no
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offence would be made out. Re Virummadithyan AIR 1928 Mad 207 However, even if
hurt is caused voluntarily, no offence under this section is committed where the victim
does not offer resistance against the dispossession of movables during the course of
robbery. Devassia Joseph v State of Kerala 1982 Ker LT 20 Similarly, no conviction can
be sustained under this section if there is no convincing evidence that the ears of the
victim were chopped off before her death. To attract the applicability of this section, hurt
must be caused to a living person. If, after death, her ears were chopped off for removing
the ornaments from her body, the accused cannot be held guilty under this section. K
Muhammad v State 1974 Cr LJ 204,

Section 392, Section 394 and Section 397 Compared

In cases of robbery, the legislature has provided three different degrees of punishment
which may be inflicted. Under s 392, IPC, the punishment may be extended to fourteen
years imprisonment. Under s 394, IPC, the punishment may be extended to imprisonment
for life, and under s 397, IPC, the punishment cannot be less than seven years. Section
392 is the general section, and the other two sections specify the same offence under
aggravated circumstances. With reference to s 394, it is for the magistrate in the exercise
of his discretion to decide whether he will dispose of the case himself or commit the
accused to the sessions court. Under s 397, the effect of a sentence of imprisonment of not
less than seven years being provided takes the case out of the jurisdiction of the
magistrate. If a magistrate finds that an accused has caused grievous hurt in committing
robbery, he is bound to commit him to the court of sessions under s 397 and has no
discretion to the contrary. It is illegal to treat the grievous hurt as a simple hurt and
convict the accused under s 394. Empress v Jobania Ratanlal Unrep Cr C 4762

Proof

To secure a conviction under this section, the prosecution must prove that:

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 (a) the accused committed, or attempted to commit, robbery; and

(b) the accused (or someone jointly concerned in doing so) caused hurt;

(c) the hurt was caused voluntarily. Paramjit Singh v State of Rajasthan 2001 Cr LJ
757 (Raj).

S. 395. Punishment for dacoity.—

Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Scope

The ingredients of the offence of dacoity and the various aspects of the requirements for
committing the offence have been discussed under s 391, IPC. This section provides
simply for the punishment for the offence. The section is to be read along with s s 397
and 398, IPC which prescribe the minimum sentence for the offences. In the case of an
attempt at dacoity and of causing grievous hurt, the offence would be under s 395, and not
under s s 395 / 511, IPC. Queen v Koonee 7 WR (Cr) 48

Mandatory Requirement

The perusal of s 395, IPC reveals that it is mandatory that there must be 5 or more
persons to commit the robbery. In other words, there must be 5 or more persons and
injuries should have been caused to the injured. Arbinder Singh v State of Uttaranchal
2006 Cr LJ 1021 (Uttr) ; Ram Rais v State 2012 (116) AIC 339 In dacoity six or seven
persons were alleged to have committed offence, the conviction of the sole appellant for
offence under s 395, IPC was held not legal exercise. Conviction of the sole appellant
recorded by court below was set aside. Arbinder Singh v State of Uttaranchal 2006 Cr LJ

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 1021 (Uttr) ; Ram Rais v State 2012 (116) AIC 339

S. 396. Dacoity with murder.—

If any one of five or more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall be punished with
death, or imprisonment for life, or rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine.

Scope

This section, which deals with dacoity with murder, the liability of the other accused
persons, is co-extensive with that of the actual murderer. Similarly, any death, caused by
a dacoit in a dacoity is murder and is attributable to all of them, if it is proved that they
were ‘conjointly committing’ dacoity, Samunder Singh v State AIR 1965 Cal 598 even
though they may have participated in dacoity, and not in murder. Sheikh Halim v State of
Orissa (1978) 45 Cut LT 393 It does not matter whether murder is committed in the
immediate presence of the other accused persons. Samunder Singh v State AIR 1965 Cal
598 In the case of committing dacoity (attempting to commit robbery conjointly by more
than five persons is dacoity) if murder is caused, all persons who have conjointly
committed the offence of dacoity are liable to be punished under s 396, IPC. Dacoity
begins as soon as an attempt is made to commit robbery by a gang of five or more persons
and if a person is murdered during the attempt, every member of the gang is guilty under
s 396, IPC. Sharafu v State of Kerala 2007 Cr LJ 2908 (Ker) (DB) It also does not
matters whether the particular dacoity charged under s 396 was inside the house, or
outside the house, when the dacoity was committed, or whether the murder was
committed inside or outside the house, so long as the murder was committed in the
commission of that dacoity. Empress v Teja 17 All 86 It is not even necessary that the

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 murder should have been with the previous contemplation of the perpetration of the
crime. Samunder Singh v State AIR 1965 Cal 598 It may be remembered that the
offence of dacoity starts with the entry of the raiders into the premises, where they
propose to commit dacoity, and ends with departure from the premises. So long as the
culprits remain on the premises, the process of dacoity continues. Re Katta Rama
Krishna Reddi(1974) 1 AP WR 358

In so Committing Dacoity’

The question, whether murder was committed during the course of committing dacoity, is
a pure question of fact to be determined by the special circumstances of each case. In
deciding the question whether the transaction of murder is distinct from the transaction of
dacoity, the helpful facts are whether the dacoits retreated without plunder and the murder
was committed while retreating, the lapse of interval between the attempt at dacoity and
murder, the distance between the places of the attempt at dacoity and murder, and
whether the dacoits abandoned the booty, and the lapse of the interval between the
abandonment of the booty and the commission of the murder. However, each fact should
not, by itself, be treated as invariably conclusive. Laliya v State of Rajasthan AIR 1967
Raj 134 If there is nothing to show that murder was so dissociated by time or space from
the dacoity that it can be said that one chapter had closed and a new chapter had begun,
the case would fall under this section. Sirajuddin v State AIR 1951 All 834

Proof

In order to establish a charge under this section, the prosecution must prove, Shivappa v
Hyderabad State AIR 1955 Hyd 147 that:

(a) a dacoity was committed;

(b) any one of five or more persons committed murder; and

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 (c) the murder was committed while committing the said dacoity. Rafiq Ahmad v
State of UP (2011) 8 SCC 300

S. 397. Robbery or dacoity, with attempt to cause death or grievous hurt.—

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished shall not be less
than seven years.

Scope

The plain reading of s 397 of IPC as well as per the settled legal position, it is merely a
rider to s 394 of IPC. It does not create any substantive offence. It is complimentary to s s
392 and 395 of IPC which create substantive offence. But merely because the offence
committed falls in the area which could be covered under s 392 of IPC, has been
committed by a mob of the persons who have been charge-sheeted are more than five in
number, by itself would not attract s 397 of IPC. The facts stated by each prosecution
witness and the complainant should be weighed and some sifting permissible can be done.
Amrish Devnarayan Rajput v State of Gujarat 2006 Cr LJ 876 (Guj). A conviction under
s 397 is equally good whether the number of thieves be five or less than five. The
provisions of this section are attracted if, at the time of committing robbery or dacoity, the
offender uses a deadly weapon, or causes grievous hurt to any person, or attempts to
cause death or grievous hurt to any person. A deadly weapon must have been used at the
time of committing robbery or dacoity, and not before its commission. Unless it is proved
that the accused was armed with a gun or a deadly weapon at the time of commission of
robbery or dacoity to threaten the persons robbed or their companions, the accused cannot
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 be convicted under s 397, IPC. Jagdeva v State 1977 Raj Cr C 348, p 350

Ingredients of the Offence

The ingredients of the offence are as under:

(1) The commission of robbery or dacoity as described in s s 392 and 395, IPC
respectively;

(2) The accused -

a. used a deadly weapon, or

b. caused grievous hurt, or
c. attempted to cause death or grievous hurt;

(3) he did so at the time of committing the robbery or dacoity. Niranjan Singh v State
of Madhya Pradesh 2007 Cr LJ 3523

S. 398. Attempt to commit robbery or dacoity when armed with deadly weapon.—

If, at the time of attempting to commit robbery or dacoity, the offender is armed with any
deadly weapon, the imprisonment with which such offender shall be punished shall not be
less than seven years.

Scope and Applicability

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 This section also, like the preceding s 397, does not, by itself, create a substantive
offence. Sections 397 and 398 always revolve around the provisions of s 395, IPC.

Where a dacoity has been committed, and not merely attempted, and weapons are not
merely carried, but are actually used, s 397, and not s 398, would apply. Ghassu v
Emperor AIR 1925 Nag 136 A man cannot be convicted of abetting an offence under s
398, IPC. Nga Pu v Emperor AIR 1926 Rang 207

Distinction between Sections 397 and 398

The distinction between the provision of s s 397 and 398, IPC will appear from a
comparison of the provisions of the two sections as follows:

Section 397 Section 398

(a) If, at the time of (a) If, at the time of

committing attempting to
robbery or commit robbery
dacoity, or dacoity,

(b) The offender (b) The offender is

uses any deadly armed with any
weapon, or deadly weapon,
causes grievous
hurt to any
person, or
attempts to
cause death or
grievous hurt to
any person,

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(c) The (c) The
imprisonment imprisonment
with which such with which such
offender shall offender shall
be punished be punished
shall not be less shall not be less
than seven than seven
years. years.

It will thus appear that s 397, IPC would be attracted to cases in which robbery or dacoity
has been committed, while s 398 would apply only to an attempt to commit robbery or
dacoity. Secondly, s 397 would operate where the offender, at the time of committing
robbery or dacoity, uses the deadly weapon while, on the other hand, s 398, IPC would
apply when, at the time of attempting to commit robbery or dacoity, he is merely armed
with a deadly weapon though he has not used it at all.

S. 399. Making preparation to commit dacoity.—

Whoever makes any preparation for committing dacoity, shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Scope

Dacoity is the only offence which the legislature has made punishable at four stages, i.e.,
preparation [s 399, IPC ], assembling for the purpose of committing dacoity [s 402, IPC ],
attempt at dacoity [s 395 read with s 398, IPC ], and commission of dacoity [s 395 read

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with s 397, IPC ]. The last two stages are treated alike and come within the detention
under s 395, IPC. State v Dhanpat Chamara AIR 1960 Pat 582

This section provides for punishment for preparation of the offence of dacoity. Dacoity is
one of those offences in which preparation alone is an offence which is not the case with
any other offence except those under s s 122 and 126, IPC.

Preparation, which is punishable, is only for the offence of dacoity, and not for any lesser
offence like house-breaking or robbery. In the words, in ‘preparation for committing
dacoity’, it is implicit that the persons making preparation have conceived the design of
committing dacoity. In other words, the section contemplates that there is a general
design to commit dacoity or engage in an expedition for that purpose though the plans of
the dacoits are not matured. Karam Dass v State AIR 1952 Punj 249 It is not necessary
that the persons shown to be making the preparation should be five or more in number. It
is, however, necessary to prove that the raid, for which they were making preparation,
was to be committed by five or more persons; otherwise, it would not be a dacoity, but
merely a robbery. It is also not necessary that the accused should have done an overt act
towards the commission of dacoity. The law requires that they should have done some act
to get ready for a dacoity. The prosecution need not prove what part the accused took. It
is sufficient if it is shown that the accused was a member of the gang who made
preparation for dacoity. If five or more persons of different castes and places move about,
armed with guns and a lot of ammunition and torches, and are found assembled at night,
in a solitary place and begin to run when challenged by the police, then there are very
strong circumstances for coming to the conclusion that the accused assembled for the
purpose of and were all set for committing a dacoity. Popi v State of Rajasthan 1976 Raj
Cr C 303

Section 399 and Section 402 Compared and Contrasted

The legislature wanted to draw a distinction between preparation for a dacoity and
assembling for committing dacoity. There may be preparation for dacoity without any
assembling. For example, five persons in their respective villages are asked by a person to
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make preparations, one by purchasing a gun, another by getting torches, the third by
buying masks, the fourth by buying gun-powder, and the fifth by collecting lathis, each
with the intention of committing dacoity. Each one of them would be guilty of
preparation for dacoity. Jain Lal v Emperor AIR 1943 Pat 82. Section 402 contemplates a
stage when the whole project still lies in the realm of design and intention without any
attempt having yet been made to give a concrete shape.

However, the project advances a step further when one of them does some act amounting
to a preparation even if it be by himself. In certain circumstances, the assembly may itself
amount to preparation, for example, when five or more persons, after having planned a
dacoity and after having collected the necessary arms and implements, agree to assemble
at a forsaken temple in a jungle in order to proceed therefrom to the place of the raid, and,
in pursuance of that agreement, do, in fact, assemble there. The assembly, in such a case,
would not be an assembly as contemplated by s 402, but would be an act of preparation
and the person may be charged under s 399. Madhusudan Sen Gupta v State of West
Bengal AIR 1958 Cal 25. Thus, the offence falling under s 402 and the one falling unders
399, would probably involve almost similar ingredients, the only difference being that
under s 402, mere assembly without other preparation is enough, whereas s 399 is
attracted when some additional step is taken only in the course of preparation. Lekh Raj v
State AIR 1960 Punj 482 The offence under s 402 is complete as soon as five or more
persons assemble together for the purpose of committing a dacoity. Preparation for
committing a dacoity may take place before or after the dacoits assemble together. State v
Dhanpat Chamara AIR 1960 Pat 582 However, a mere assembly without further
preparation is not a preparation within the meaning of s 399. If this were so, s 402 would
be redundant. Section 402 applies to the case of mere assembling without proof of other
preparations. Similarly, a person may be guilty of preparation though not of dacoity, or of
an assembly though not of preparation. Romesh Chandra Banerjee v Emperor AIR 1914
Cal 456 Whether a case falls under s 402 or s 399 depends on the facts and circumstances
of each case. It is not always easy to find out with what intention and purpose the persons
had assembled because very rarely there would be direct evidence in this respect. The
purpose or intention, with which the crime is committed, has to be deduced from the facts
and circumstances of each case. If persons merely assemble with the object of committing
a dacoity, the case may be covered by s 402, but may not be covered by s 399 without
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 there being any preparation in that direction. Essential requirements of s 399 are that the
accused had made some preparation and that the preparation was for the purpose of
committing dacoity. As to what particular act or kind of steps would constitute
preparation, no hard and fast rule can be laid down. Once the circumstances make out that
the persons assembled had conceived the design of committing dacoity, then any step,
taken with the intention or purpose of forwarding that design, would justify the court in
coming to the conclusion that there had been preparation within the meaning of s 399,
IPC. Singha v State 1972 PLR 176

From the above discussion, it is clear that in order to establish an offence punishable
under s 399, IPC, some act amounting to preparation must be proved and what must be
proved further is an act for which preparation was being made was a dacoity, that is to
say, robbery to be committed by five or more persons. The prosecution has to establish
under s 402, IPC that there had been an assembly of five or more persons constituted for
the purpose of committing dacoity, and that the accused persons were members of that
assembly. If there is no clear and acceptable evidence of any assemblage of the appellants
with three or more persons for the purpose of committing dacoity, then the appellants
cannot be held liable under s 402, IPC.

S. 400. Punishment for belonging to gang of dacoits.—

Whoever, at any time after the passing of this Act, shall belong to a gang of persons
associated for the purpose of habitually committing dacoity, shall be punished with
imprisonment for life, or with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

Scope

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 The section was intended by the legislature to provide for punishing those who belong to
a gang of persons who make it their profession to commit dacoities. Similarly, the offence
is entirely a creature of statute, and is intended to break up the gang, by punishing their
associates who share their purpose. Sharaf Shah Khan v State of Andhra Pradesh AIR
1963 AP 314 Association for the habitual pursuit of dacoity is the gist of the offence.
Kader Sundar v Emperor 13 Cr LJ 39; Ramdas v State AIR 1966 AP 344 In other words,
the essence of the section is the agreement habitually to commit dacoity, and not the
actual commission for attempted commission of dacoities. Suresh Chandra Banerjee v
Emperor AIR 1928 Cal 309 The existence of such an agreement and the participation of
any person in that agreement may be inferred from the established circumstances. State v
Hetep Boro 1972 Cr LJ 1074; Ramdas v State 1966 Cr LJ 1234; Re Akbar Ali 1980 LW
(Cr) 245

S. 401. Punishment for belonging to gang of thieves.—

Whoever, at any time after the passing of this Act, shall belong to any wandering or other
gang of persons associated for the purpose of habitually committing theft or robbery, and
not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a
term which may extend to seven years, and shall also be liable to fine.

Scope

The preceding section applies to persons belonging to a gang associated for the purposes
of habitually committing dacoity, while this section relates to person belonging to similar
gangs associated for the purpose of habitually committing theft or robbery. The section
expressly excludes a gang of thugs and dacoits. A provision for the punishment of thugs,
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as defined in s 310, IPC, has been made in s 311, IPC for being habitually associated for
the purpose of committing robbery or child stealing. For belonging to a gang of dacoits,
the case is covered by s 400, IPC.

Before a person can be convicted under s 401, IPC, it should be proved that he belonged
to a gang. Individual adventures of theft or robbery are not sufficient. It must be proved
that he carries on his activities in conjunction with other thieves or robbers. Where
individuals operate separately, they cannot be said to be members of a gang, a gang being
an association of certain persons.72 A resort to the provisions of s 401, IPC by the police
for the purpose of sweeping into a wide net, a large number of persons, whom they
suspect, or who gave them trouble, is not to be encouraged. Empress v Jahangira 1886
AWN 16 ; Surjan Singh v Emperor AIR 1932 Lah 298

It is not necessary for a conviction under s 401 that the person convicted must have taken
part in any one theft or robbery. Lale v Emperor AIR 1929 Oudh 321, (evidence showing
the actual participation of an accused in a given theft or robbery is evidence both of his
association with the gang and of his object in such an association). Nor is it necessary that
each individual member of the gang should be proved to have habitually committed theft
in company with other members. Once it is established that a gang, however small in
number, was formed for the purpose of habitually committing theft, all persons, who
thereafter join the gang in one or more cases of thefts, come within the purview of this
section. Beja v Emperor AIR 1914 Lah 539

3. Essential Ingredients of an Offence under Section 401

The essential ingredients Dhani Majhi v State 1972 Cut LT 683 of an offence under this
section must be as follows:

(a) there should be, in existence, a gang of persons;

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 (b) such a gang should be associated for the purpose of habitually committing theft or
robbery; and

(c) the accused should belong to that gang.

Essentially, the ingredients of the offence under this section are the same as for the
offence under the preceding s 400, IPC, except that in one case the purpose of association
is habitual commission of dacoity while in the other it is habitual commission of theft or
robbery. Dhani Majhi v State 1972 Cut LT 683

S. 402. Assembling for purpose of committing dacoity.—

Whoever, at any time after the passing of this Act, shall be one of five or more persons
assembled for the purpose of committing dacoity, shall be punished with rigorous
imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Scope

This section deals with the assemblage of persons for the purpose of committing dacoity.
Brijial Mandal v State of Bihar 1978 Cr LJ 877 Presence of at least five persons,
assembled for the purpose of committing dacoity, is an essential ingredient for the
operation of this section. Similarly, before the members of an assembly can be punished
under this section, it must be shown that there was agreement to commit dacoity, Shive
Sharnagat v State AIR 1953 Bhopal 21 and the purpose of the assemblage must be to
commit dacoity, and no other offence. Brijial Mandal v State of Bihar 1978 Cr LJ 877
Thus, no conviction under this section can be recorded simply on the basis of the fact that
a certain number of persons, some being armed, are apprehended at the platform of a

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 railway station. However, where some of the accused merely came to the assembly on the
direction of other persons and there was no evidence that there was any previous
consultation or agreement between them for assemblage at the particular place for the
purpose of committing dacoity, and there was no other circumstance except the mere fact
of assemblage for commission of dacoity, it was held that they were guilty only under s
402, but not under s 399. Nathawa v State AIR 1951 All 452 After assembling for the
purpose of committing dacoity and proceeding to a certain distance on their way to their
destination, it is possible that the idea be abandoned or the process be intercepted. Once
the destination is reached or almost reached, preparation becomes complete and till then
there would be mere assemblage. In that case, conviction can be made under s 402, and
not under s 399. Trays Bhoora Nathu v State of Kutch AIR 1954 Kutch 1

S. 403. Dishonest misappropriation of property.—

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

Illustrations

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

(b) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes
away a book without Z’s express consent. Here, if A was under the impression
that he had Z’s implied consent to take the book for the purpose of reading it. A
has not committed theft. But, if A afterwards sells the book for his own benefit, he
is guilty of an offence under this section.

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 (c) A and B being joint owners of a horse, A takes the horse out of B’s possession,
intending to use it. Here, as A has a right to use the horse, he does not dishonestly
misappropriate it. But, if A sells the horse and appropriates the whole proceeds to
his own use, he is guilty of an offence under this section.

Explanation 1.— A dishonest misappropriation for a time only is a misappropriation

within the meaning of this section.

Illustration

A finds a Government promissory note belonging to Z, bearing a blank endorsement. A,

knowing that the note belongs to Z, pledges it with a banker as a security for a loan,
intending at a future time to restore it to Z. A has committed an offence under this section.

Explanation 2.— A person who finds property not in the possession of any other person,
and takes such property for the purpose of protecting it for, or of restoring it to, the
owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but
he is guilty of the offence above defined, if he appropriates it to his own use, when he
knows or has the means of discovering the owner, or before he has used reasonable means
to discover and give notice to the owner and has kept the property a reasonable time to
enable the owner to claim it.

What are reasonable means or what is a reasonable time in such a case, is a question of
fact.

It is not necessary that the finder should know who is the owner of the property, or that
any particular person is the owner of it: it is sufficient if, at the time of appropriating it, he
does not believe it to be his own property, or in good faith believe that the real owner
cannot be found.

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Illustrations

16. A finds a rupee on the high road, not knowing to whom the rupee belongs. A picks
up the rupee. Here A has not committed the offence defined in this section.

17. A finds a letter on the road, containing a bank note. From the direction and
contents of the letter he learns to whom the note belongs. He appropriates the
note. He is guilty of an offence under this section.

18. A finds a cheque payable to bearer. He can form no conjecture as to the person
who has lost the cheque. But the name of the person, who has drawn the cheque,
appears. A knows that this person can direct him to the person in whose favour the
cheque was drawn. A appropriates the cheque without attempting to discover the
owner. He is guilty of an offence under this section.

19. A sees Z drop his purse with money in it. A picks up the purse with the intention
of restoring it to Z, but afterwards appropriates it to his own use. A has committed
an offence under this section.

20. A finds a purse with money, not knowing to whom it belongs; he afterwards
discovers that it belongs to Z, and appropriates it to his own use. A is guilty of an
offence under this section.

21. A finds a valuable ring, not knowing to whom it belongs. A sells it immediately
without attempting to discover the owner. A is guilty of an offence under this
section.

Scope

Section 403, IPC speaks about dishonest misappropriation of property. This section
defines criminal misappropriation and prescribed penalty for it. Criminal
misappropriation takes place when the possession has been innocently come by, but
where, by a subsequent change of intention, or from the knowledge of some new fact with
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which the accused was not previously acquainted, the retaining becomes wrongful and
fraudulent. The essence of the offence of criminal misappropriation is that the property of
another person comes into the possession of the accused in some neutral manner and is
misappropriated or converted to his own use by the accused. Mohammed Ali v State of
Madhya Pradesh 2006 Cr LJ 1368 (MP).

The offence of dishonest misappropriation of property, with which this section deals, is
distinguished from the foregoing offences of that, extortion, and robbery by the fact that
whereas the taking must be dishonest in those offences, the taking of the property is not
necessarily dishonest (and to emphasise the distinction it may, therefore, be termed an
innocent taking) under this section, but an innocent taking is followed by a dishonest
misappropriation or conversion of the property thereby obtained. It may be that a person
takes possession of a thing because it has been delivered into his possession by the former
possessor under some relation of trust or confidence, existing between the parties, as to
the thing in question, as where a man hands over his property to an agent, bailor or carrier
for some specific purpose. In such a case, a subsequent dishonest misappropriation is
termed ‘criminal breach of trust’, an offence which falls under s s 405 to 409, IPC.
Therefore, the original taking, in offences falling under this section, is the taking
possession of a thing by someone otherwise than in consequence of a delivery of
possession thereof in pursuance of a fiduciary relation between a former possessor and
himself. The three illustrations to the main section illustrate such an innocent taking:

1. In illust (a) [illust (p) to s 378, IPC ], the taking is not dishonest
because it is under a bonafide, though mistaken, claim of right.
2. In illust (b) [illust (m) to s 378, IPC ], the taking is dishonest
because he intends to take the book with the implied consent of
Z.
3. In illust (c), A takes the horse in the exercise of a valid claim of
right, as owner to its use.

The English law on this point is different. A dishonest misappropriation, following an

innocent taking, is not criminal (though it is a civil injury for which a civil action lies)
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unless it has been expressly declared an offence by some statute law. Therefore, many
acts of criminal misappropriation, which are punishable under IPC, are not punishable
under the English Law. In India, if a change of intention occurs, i.e., intention becomes
dishonest from honest, the offence of criminal misappropriation is committed. Surendra
Bahadur Singh v State 1955 AL 397 In Emperor v Anant Narayan 1 Cr LJ 105 the
accused misappropriated a certain sum of money and, in order to conceal the
misappropriation, also falsified the accounts. It was held that the offence of falsification
of accounts was included in the offence of criminal misappropriation and the entire
transaction should be considered as an offence of criminal misappropriation. The agent,
including a commercial agent, who has been entrusted with the goods for the purpose of
sale, may be guilty of dishonest conversion if, under the terms of entrustment, he is bound
to hand over the sale proceeds to his constituent after deducting his commission. Sitaram
Nandram v Jasubhai Raghubhai Jani 1997 Guj LR 808 However, a person cannot be
convicted of misappropriation if his agent commits an offence of misappropriation.
Chimanlal Hargovanda v State 8 Guj LR 552

Section 403, IPC is in no way restricted to appropriating property to one’s own use. If a
person sets apart an article for the use of another person, of which article he is a trustee of
the complainant, he misappropriates it even though he has not put it to his own use, Indar
Singh v Emperor AIR 1926 All 302 because setting apart by one person for the use of
some other person, other than himself and the true owner, is misappropriation. Ram
Dayal v Emperor 24 PR 1886 The offence of dishonest misappropriation may be
committed by a person in respect of the property possessed by a deceased person at the
time of his death by dishonestly appropriating the money entrusted to him although the
accused does not bring such money to his own use. Re Enayet Hossein 11 WR (Cr) 1

Object

The framers of IPC framed this section to keep ‘dishonest misappropriation of property’
distinguished from ‘theft’. They observed: ‘If we call it theft, we speak the popular
language; if we call it misappropriation of property not in possession, we avoid an
anomaly and maintain a line which in the great majority of cases is reasonable and
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expedient. On the whole, we are inclined to maintain this line’.

Essence of the Offence

The essence of an offence under this section is that the property of another person comes
into the possession of the accused in some neutral manner and is misappropriated or
converted to his own use, by the accused. No entrustment is required for this offence to be
constituted unlike the offence defined in s 405. State of Madhya Pradesh v Pramode
Mategaonkar (1965) 2 Cr LJ 562 In other words, it must first be shown that the property,
which did not belong to the accused, came in his possession and it was subsequently
misappropriated by the accused. Balwantrao Anandrao Raut v Malharrao Rajam Desai
1979 Bom Cr R 20 Where, however, a person, in a crowded gathering, picks up from the
floor, a purse, containing articles of appreciable value, from the club, takes no action to
discover its owner and is arrested a short while after, he is not guilty either under s 379, or
of criminal misappropriation, as these circumstances alone cannot establish that the
person intended to appropriate or convert the property to his own use. Phuman v Emperor
8 Cr LJ 250

Ingredients

If s 403, IPC is analysed, it is gathered that it has following ingredients which reads thus :

1. The property must belong to a person

other than accused;
2. the accused must have misappropriated
property or converted it to his own use;
and
3. there must be dishonest intention on the
part of the accused. Mohammed Ali v
State of Madhya Pradesh 2006 Cr LJ
1368 (MP).
Page 464 of 573
Criminal Misappropriation Distinguished from Theft

In cases of theft, mere removal of property from the possession of a person with dishonest
intention is enough, while under s 403 there must be further misappropriation or
conversion. Nathulal v State AIR 1953 Pat 100. Where property, lost by the owner, is
found in the possession of the accused, the offence committed is not theft, but criminal
misappropriation, as the property is not taken away from the possession of the owner.
Nga Shwe Le v Emperor 1 LBR 123. However, the taking of cattle, turned out to graze in
the pasture or jungle, is theft, and not criminal misappropriation, because they are still in
the possession of the owner unless the contrary is shown. Adhargir Chhotegir Gosal v
State AIR 1954 Nag 55.

Explanation 1

According to this explanation, a dishonest misappropriation for a time only is

‘misappropriation’ within the meaning of this section. Accordingly, it is no answer to a
charge of criminal misappropriation that the money, after the matter was reported to
higher authorities, was subsequently disbursed for the purpose for which it was entrusted.
Khandu Sonu Dhobi v State of Mararashtra AIR 1972 SC 958 However, even to
constitute temporary misappropriation, it must be shown that the accused retained the
amount or converted it to his use dishonestly. Mahananda Bhaduri v SE Railway 1974
Lah 1 C 1054 Retaining of the articles by the accused for some time does not mean that
he has misappropriated them or converted them to his own use. Dishonesty can, however,
be inferred from false accounting, absence of bonafide or reasonable explanation for non-
accounting. Where the accused, an income tax clerk, who was under a duty to receive
moneys, paid by assessees, and to enter such receipts in the remittance book and pay the
moneys into the treasury immediately, retained two sums for several months without
entering them into the book and paid up the money when he knew that the detection was
inevitable, it was held that he was guilty under this section. Empress v Rama Krishna 1
Weir 457. Where a court amin collects a large sum of money and does not pay it into
court until five months have lapsed, it is a fair presumption that he has misappropriated
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the amount unless he can explain his action. Re Dewasikhamani Asari AIR 1926 Mad
727. However, this presumption may be negatived by evidence to the effect that the delay
was caused by forgetfulness or that it was acquiesced in by the person to whom the
money was due. Temporary retention is, however, not necessarily misappropriation. The
fact that the accused found a thing and merely retained it in his possession without
conversion to his own use, would not amount to criminal misappropriation. Empress v
Abdool 10 WR (Cr) 23-A

Explanation 2

This explanation clarifies as to what extent a person, who finds property, not in
possession of any other person, and takes such property, can be considered to be liable
under this section. It makes it clear that:

1. there will be no offence if:

i. a person takes the property for the purpose of

protecting it, or for the purpose of restoring it to
the owner, and
ii. does not take or misappropriate it dishonestly;
but

2. there will be an offence under this section if a person

appropriates the property to his own use:

i. when he knows, or has means of discovering, the owner, or

ii. before the has used reasonable means to discover, and gives notice to,
the owner and has kept the property for a reasonable time to enable the
owner to claim it.

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Thus, where the accused finding a gold mohur in an open plain, sold it the next day to a
saraf for the full value and appropriated the sale-proceeds, it was held that no offence
under this section was committed. It was observed that it might have been different if the
mohur had been found on a thorough-fare in which case the finder would naturally
believe that the property has been recently lost and the owner would be discoverable.
Empress v Sita 18 Bom 212. In Mahadev Govind Nagarkar v Emperor AIR 1930 Bom
176 the accused found a spanner lying on a public road. He tried to sell it. It was held that
the accused was not guilty of the offence under this section because it was not such a case
where the accused could be said to have reasonable means of discovering and giving
notice to the owner of the spanner of having found it. Where a sub-inspector of police,
who found a lawaris bullock, sold it after keeping it for twenty days when no owner
turned up even after he advertised it, it was held that he was not guilty. In Sirajul Haque v
Emperor 23 Cr LJ 401 it was observed that a person finding a property, is not bound to
adopt extraordinary means for the discovery, nor is he bound to discover the owner by
means of advertisement. Thus, a person, who takes possession of cattle found wandering
in the village, cannot be convicted under this section.

With respect to the question as to when the appropriation of the stray cattle can be the
subject of a charge under this section, it may be stated that when any stray animal is
found and is taken into possession by the finder thereof, he may, in the first instance, do it
with no criminal intent. If afterwards, he changes his intention and converts the animal to
his own use, he commits an offence under this section. The finder of an article should
take some steps in order to ascertain who the true owner is. If, after he has taken such
steps, the true owner is not discovered, then, under certain circumstances, the finder may
retain the article and, in such a case, he would not be held guilty of criminal
misappropriation. However, if he acts with reference to the article found in such a way
that the true owner may never discover that it had been picked up by him, then he
undoubtedly attempts to create a situation where the conversion of the article to his own
use would be easy. In such a case, the conduct of the finder is criminal conduct and he
would come within the ambit of s 403. Ram Bharosy v State AIR 1952 All 481.

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 Constructive Liability

When there is nothing on record to indicate that in the action of misappropriation of

property by the accused, the co-accused persons had also joined or that they had shared
the intention with which the accused had taken away the watch and the cash of the victim,
the accused having done the said acts beyond any intention of the others, he alone would
be liable for that extra act under s 403 and not the other three accused persons who had
not shared any common intention of criminal misappropriation and so were found entitled
to an acquittal under s 403 read with s 34, IPC. Raghuraj Singh v State of Uttar Pradesh
1999 Cr LJ 3759 (All) (DB).

S. 404. Dishonest misappropriation of property possessed by deceased person at the

time of his death.—

Whoever dishonestly misappropriates or converts to his own use property, knowing that
such property was in the possession of a deceased person at the time of that person’s
decease, and has not since been in the possession of any person legally entitled to such
possession, shall be punished with imprisonment of either description for a term which
may extend to three years, and shall also be liable to fine; and if the offender at the time
of such person’s decease was employed by him as a clerk or servant, the imprisonment
may extend to seven years.

Illustration

Z dies in possession of furniture and money. His servant A, before the money comes into
the possession of any person entitled to such possession, dishonestly misappropriates it. A
has committed the offence defined in this section.

Page 468 of 573

Scope

The preceding s 403, IPC deals with criminal misappropriation in general. This section
deals with an aggravated form of that offence. It specially provides for protection to the
property of a deceased person and the offence is punishable with three years’
imprisonment as against a punishment of two years under s 403, IPC. The punishment is
made much higher in the case of criminal misappropriation by a clerk or a servant and it
may be up to seven years. A person may commit the offence of dishonest
misappropriation of money, possessed by a deceased person at the time of his death,
although he does not bring such money to his own use. Re Enayat Hossein 11 WR (Cr) 1
Removal of ornaments from a dead body, a dead body not being a person, amounts to
dishonest misappropriation of the property possessed by the deceased and falls within the
ambit of this section. Balla Munshi Bhoi v State AIR 1958 MP 192. Under this section, all
the elements, required to constitute the offence of criminal misappropriation in respect of
the property of a living person, are necessary. Re Enayat Hossein 11 WR (Cr) 1

Object

The object behind this section is to afford protection to property which, by reason of its
being peculiarly placed, needs protection where the person, who could look after it, is
dead and the person, who expected and is entitled to look after it, has not appeared on the
scene, there being a change available to strangers to dishonestly misappropriate and
convert the same to their own use. Under such circumstances, if such strangers are
allowed to do so, the subsequent owner may lose that property entirely. Dhulji v Kanchan
AIR 1956 Madhya Bharat 49. In Re Karri Mangadu, 15 Cr LJ 602 it was observed that
though this section was intended to punish servants and strangers, who can possibly have
no right or interest in the effects of a dead man and misappropriate such effects, yet it was
not intended to punish near relatives who take possession of and deal with, the deceased’s
effects under the claim of an independent ownership or claim to succeed as heir to the
deceased. Thus, where the mother of the deceased took possession of his movables and
discharged one of the debtors of her son from his obligation and there was dispute with a
daughter-in-law as to who was entitled to the assets, it was held that the mother could not
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 be convicted under this section. Re Karri Mangadu 15 Cr LJ 602. Where the accused
persons were the sons of the deceased, and not strangers or outsiders, and the question of
their legitimacy had not been decided, it was held that when they took the plea that they
acted in good faith, such plea could not be lightly brushed aside. Harendra Nath Mandal
v Bejoy Krishna Das AIR 1949 Cal 171.

S. 405. Criminal breach of trust.—

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

[Explanation 1.— A person, being an employer [of an establishment whether exempted

under section 17 of the Employees’ Provident Funds and Miscellaneous Provision Act,
1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages
payable to the employee for credit to a Provident Fund or Family Pension Fund
established by any law for the time being in force, shall be deemed to have been entrusted
with the amount of the contribution so deducted by him and if he makes default in the
payment of such contribution to the said Fund in violation of the said law, shall be
deemed to have dishonestly used the amount of the said contribution in violation of a
direction of law as aforesaid.]

[Explanation 2.—A person, being an employer, who deducts the employee’s contribution
from the wages payable to the employee for credit to the Employee’s State Insurance
Fund held and administered by the Employees’ State Insurance Corporation established
under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have
been entrusted with the amount of the contribution so deducted by him and if he makes
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default in the payment of such contribution to the said Fund in violation of the said Act,
shall be deemed to have dishonestly used the amount of the said contribution in violation
of a direction of law as aforesaid.

Illustrations

(a) A, being executor to the will of a deceased person, dishonestly disobeys the law
which directs him to divide the effects according to the will, and appropriates
them to his own use. A has committed criminal breach of trust.

(b) A is a warehouse-keeper, Z, going on a journey, entrusts his furniture to A, under

a contract that it shall be returned on payment of a stipulated sum for warehouse-
room. A dishonestly sells the goods. A has committed criminal breach of trust.

(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or

implied contract between A and Z, that all sums remitted by Z to A shall be
invested by A, according to Z’s direction. Z remits A lakh of rupees to A, with
directions to A to invest the same in Company’s paper. A dishonestly disobeys the
directions and employs the money in his own business. A has committed criminal
breach of trust.

(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it
will be more for Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s
directions, and buys shares in the Bank of Bengal, for Z, instead of buying
Company’s paper, here, though Z should suffer loss, and should be entitled to
bring a civil action against A, on account of that loss, yet A, not having acted
dishonestly, has not committed criminal breach of trust.

(e) A, a revenue-officer, is entrusted with public money and is either directed by law,
or bound by a contract, express or implied, with the Government, to pay into a
certain treasury all the public money which he holds. A dishonestly appropriates
the money. A has committed criminal breach of trust.

(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A

dishonestly misappropriates the property. A has committed criminal breach of
trust.
Page 471 of 573
Scope

The offence under this section is committed when a person, who is entrusted, in any
manner, with property or with dominion over it, dishonestly misappropriates it, or
converts it to his own use, or dishonestly uses it, or disposes it off, in violation of any
direction of law, prescribing the mode, in which the trust is to be discharged, or of any
lawful contract, express or implied, made by him, touching such discharge, or wilfully
suffers any other person so to do. Sushil Kumar Gupta v Joy Shankar Bhattacharjee AIR
1971 SC 1543. What follows is that ownership or beneficial interest, in respect of which
criminal breach of trust is alleged to have been committed, must be in some person, other
than the accused, and the latter must hold it on account of some person or, in some way,
for his benefit. Chelloor Mankkal Narayan v State of Travancore & Cochin AIR 1953 SC
478. It cannot, however, be said that it is impossible, under all circumstances, for a person
to commit criminal breach of trust in respect of his own property. Where the accused,
who pledged promissory notes with the complainant as security for a loan, induced him to
hand them over to him (i.e., the accused) by pretending that he required them to collect
money from his debtors with the aid of which he would pay cash to him (i.e., the
complainant), it was held that the possession of the promissory notes, even without
endorsement, in the hands of the person, with whom they were pledged, was of some
value to the complainant as it gave him control over the accused and so long as they
remained with him, they prevented the accused from using them to discharge the debts
due by him to other creditors in preference to him and that the complainant had, thus,
some sort of beneficial interest in the property and when he gave the notes to the accused
for a definite purpose and the accused dishonestly disposed them of in violation of the
legal contract, there was both entrustment and dishonest misappropriation. Re Venkata
Gurunatha AIR 1923 Mad 597.

In cases of criminal breach of trust, a distinction has to be made between the person
entrusted with the property and a person having control or general charge over the
property. In case of entrustment of property, if it is found that the property is missing, the
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 person, to whom the property has been entrusted, will, without further proof, be liable for
accounting for the sums, whereas, in the case of a person having supervisory or general
control over a certain property, he would be liable only when it is shown that he
misappropriated it or was party to criminal breach of trust committed in respect of it by
any other person. State of Rajasthan v Kesar Singh 1969 Raj LW 235.

A criminal act can be dealt with under the provisions of the IPC if necessary ingredients
to constitute an offence under this section are brought out or established even if the same
criminal act is an offence under the provisions of another statute. Merely because the
Carriers Act 1865, declares the liability of a carrier for loss, occasioned by the criminal
acts of himself or his servant or agent, it cannot be said that the same criminal act cannot
be dealt with under the provisions of the IPC if necessary ingredients are brought out or
established. Kankuyalal Baid v Rajkumar Agarwal 1981 Cr LJ 824.

Ingredients

The following essential ingredients Om Parkash Gupta v State of Uttar Pradesh AIR
1957 SC 458 are absolutely necessary to attract the operation of the section:

a. the accused must be entrusted with property or dominion over property; and
b. the person so entrusted (i.e., the accused) must:

i. dishonestly misappropriate, or convert to his

own use, that property, or
ii. dishonestly use or dispose of that property or
wilfully suffer any other person to do so in
violation of—
2. any direction of law, prescribing the mode, in which such trust
is to be discharged, or

3. any legal contract made touching the discharge of such trust.

The essential ingredients in order to constitute a criminal breach of trust are (i) that the
Page 473 of 573
accused was entrusted with property or with dominion over property; (ii) dishonestly
misappropriated or converted that property to his own; (iii) dishonestly using or disposing of
that property or wilfully suffering any other person was so to do a violation, (a) of any
direction of law prescribing the mode in which such trust is to be discharged, (b) of any legal
contract made touching the discharge of the trust. Ashok Basak v State of Maharashtra (2010)
10 SCC 660 The basic requirement to bring home the accusations under s 405 are the
requirements to prove conjointly (i) entrustment and (ii) whether the accused was actuated by
dishonest intention or not, misappropriated it or converted it to his own use to the detriment
of the persons who entrusted it. Sadhupati Nageswara Rao v State of Andhra Pradesh 2012
Cr LJ 4317 (SC)

S. 406. Punishment for criminal breach of trust.—

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

Scope

The pre-requisite for the applicability of s 406 of IPC would be fulfilment of the
condition under s 405. This section deals only with the punishment for the offence of
criminal breach of trust which has already been defined in the preceding s 405. The
following three sections, i.e., s s 407, 408 and 409, IPC, relate to the aggravated forms of
criminal breach of trust and punishment thereof. They being a specific section, all the
cases which are not covered by those sections, fall within the purview of this section.

An agreement to the effect, that if there is embezzlement, the person who embezzles, will
not be prosecuted and the matter will be referred to arbitration, cannot exclude the
applicability of this section, the reason being that to permit such an agreement to operate
would be contrary to s 23 of the Indian Contract Act 1872. Mohendra Pal v State 1965
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 ALJ 538 Similarly, the fact that the amount involved in a case is petty, cannot be a reason
for not taking cognizance under this section. Likewise, the fact that the employer had
taken a bond for the amount misappropriated, will not prevent the prosecution or
conviction of the accused under this section. Zamindar of Ettiyapuram v Ramasamy 1
Weir 465 Where a teacher having worked in an educational institution for several years,
resigns, the education institution has no right to retain the original testimonials of the
teacher, refusal to return original testimonials would constitute an offence under s 406
IPC. A John Paul v State 2013 (1) Crimes 200 (Mad) Similarly, a criminal complaint
cannot be thrown out merely because a remedy to recover the amount through civil courts
is open to the complainant. Wahid Ali v Eshwariah (1957) 1 Andh WR 242

As all the aspects as to the ingredients, which constitute the offence of criminal breach of
trust, have been dealt with under the commentary of the preceding section, the
commentary under this section is more or less confines to practice and procedure only.

S. 407. Criminal breach of trust by carrier, etc.—

Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper,

commits criminal breach of trust in respect of such property, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

Scope

This and the following two sections relate to the more aggravated forms of criminal
breach of trust, by reason of the offender holding a particular office, for which higher

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 punishments have been prescribed. However, the fact that the accused held the particular
office in question and that he received the property in that capacity, has to be proved. This
section deals with the cases of persons, who are in the nature of bailees, to whom certain
goods are entrusted for the purpose of safe storage or for conveyance of the goods to
other places.

S. 408. Criminal breach of trust by clerk or servant.—

Whoever, being a clerk or servant or employed as a clerk or servant, and being in any
manner entrusted in such capacity with property, or with any dominion over property,
commits criminal breach of trust in respect of that property, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

Scope

This is an aggravated form of the offence of criminal breach of trust which has already
been defined in s 406, IPC. By virtue of the position of a clerk or servant, enjoying a
position of confidence, protection to the public is offered, against an abuse of such
position, under this section.

Mens rea is essential to constitute the offence under this section. If a servant above the
age of 12 years commits criminal breach of trust, he can be held guilty under this section.
Criminal breach of trust committed by a regular salaried employee of a registered co-
operative society, would fall under this section, and not under s 409, IPC, as he is not in
any of the persons enumerated in s 409, IPC. Harjinder Singh v State of Punjab (1980) 7

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 Cr LT 106 (Punj). a person can also be charged for abetment of criminal breach of trust
by a servant under this section if the essential elements which constitute abetment exist.
Balgobinda Shaha v Empress 4 CWN 309. Demand or collection of excess profit, does
not amount to cheating or criminal breach of trust. Muraleedharan v State of Kerala 2011
(106) AIC 300

S. 409. Criminal breach of trust by public servant, or by banker, merchant or agent.—

Whoever, being in any manner entrusted with property, or with any dominion over
property in his capacity of a public servant or in the way of his business as a banker,
merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of
that property, shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to
fine.

Scope

This section also relates to an aggravated form of criminal breach of trust which has
already been defined in s 405, IPC. In the commission of the offence of criminal breach
of trust, two distinct parts are involved. The first consists of the creation of an obligation
in relation to the property, over which dominion or control is acquired by the accused,
while the second part deals with the misappropriation of the said property dishonestly and
contrary to the terms of the obligation created. Supdt and Remembrancer of Legal Affairs
v SK Roy 1974 Cr LJ 678

In order to sustain conviction under s 409, IPC, two ingredients are to be proved; namely,

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(i) the accused, a public servant or a banker or agent was entrusted with the property of
which he is duty bound to account for; and (ii) the accused has committed criminal breach
of trust. What amounts to criminal breach of trust is provided under s 405, IPC.
Sadhupati Nageswara Rao v State of Andhra Pradesh 2012 Cr LJ 4317 (SC)

This section can be invoked only if it can be shown that the accused, being in any manner
entrusted with property or with dominion over property in his capacity as a public
servant, committed criminal breach of trust in respect of that property. VP Srivastaqva v
Indian Explosives Ltd (2010) 10 SCC 361 However, it is not necessary that
misappropriation must necessarily take place after the creation of a legally correct
entrustment or dominion over property. The entrustment may arise in ‘any manner
whatsoever’. That manner may, or may not, involve fraudulent conduct of the accused.
This section covers dishonest misappropriation in both types of cases, i.e., those cases
where the receipt of property is itself fraudulent or improper and those cases where the
accused misappropriates what may have been quite properly and innocently received. All,
that is required, is that may be described as ‘entrustment’ or acquisition of dominion
over-property in the capacity of a public servant who, as a result of it, becomes charged
with a duty to act in particular way or at least honestly. Channulal Dhaketra v State of
Madhya Pradesh (1980) 2 (MP) WN 47 It is wrong to say that a mistaken receipt or
money in official capacity does not create an obligation upon the receiver as a public
servant. It is enough if the payment is made by a person, dealing with a public servant in
his capacity as a public servant, even if it is made on an erroneous assumption which the
public servant concerned does nothing to remove. Section 409, IPC, is meant for the
protection, among others, of those dealing with public servants purporting to have the
authority to act in a certain way in exercise of their official capacities. A legal defect in
the scope of the ostensible authority of a public servant does not prevent an entrustment
to, or an obligation to be fastened upon, a public servant in his capacity as a public
servant if the fact of the case establishes the required nexus or connection between acts
which create the obligation and the capacity.

In the case of criminal breach of trust by a public servant, the acquisition of dominion or
control over the property must also be in the capacity of a public servant. This is not the

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 same thing as having the authority, as a public servant, to get the control or dominion
over property annexed with an obligation. The ‘entrustment’ results from what the person,
handing over money or property, is made to think, understand, and believe about the
purpose for which he hands over money or property to a public servant if this takes place
because, and due to exercise of the official authority, the requirements of s 409, IPC, are
satisfied. Ordinarily, it is the ostensible or apparent scope of a public’s authority when
receiving property, and not its technical limitations under some internal rules of the
department or office concerned, and the use made by the servant of his actual official
capacity which would determine whether there is a sufficient nexus or connection
between the acts complained of and the official capacity so as to bring it within the ambit
of this section. Supdt and Remembrancer of Legal Affairs v SK Roy 1974 Cr LJ 678

S. 410. Stolen property.—

Property, the possession whereof has been transferred by theft, or by extortion, or by

robbery, and property which has been criminally misappropriated or in respect of which
criminal breach of trust has been committed, is designated as “stolen property”, whether
the transfer has been made, or the misappropriation or breach of trust has been
committed, within or without India. But, if such property subsequently comes into the
possession of a person legally entitled to the possession thereof, it then ceases to be stolen
property.

Scope

This section defines ‘stolen property’ by saying that the property:

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 (a) the possession whereof has been transferred by theft, or by extortion, or by
robbery, or

(b) which has been criminally misappropriated, or in respect of which criminal

breach of trust has been committed, is ‘stolen property’. Mir Nagvi Askari v CBI
(2009) 15 SCC 643

Where the transfer has been made, or the misappropriation or the breach of trust has been
committed, in India, or without India, it ceases to be such stolen property if it
subsequently comes into the possession of the person legally entitled to it. Emperor v
Man Mohun Roy 24 WR (Cr) 33

Property, which has been abandoned, would not be ‘stolen property’ within the meaning
of this section, and the person in possession of it cannot be prosecuted under s 411.
Likewise, the proceeds of stolen property do not constitute stolen property if their
possession was not transferred by the theft, etc, in question and they have not been the
subject-matter of an offence. Thus, the property would not continue to be stolen property
if the form, in which it is received, has undergone a change. Consequently, money
obtained upon forged money orders, is not stolen property. Empress v Mon Mohun Roy 24
WR (Cr) 33 Likewise, money received as a result of selling stolen property, would not be
stolen property. Ram Narain v Central Bank of India Ltd AIR 1952 Punj 178 Similarly,
property, into or for which stolen property has been converted or exchanged, is not stolen
property. Emperor v Subha Chand 39 PR 1881 On the other hand, the mere change of
form of the property would not necessarily mean that the property is not stolen property.
Mutton, obtained by killing sheep, which was stolen alive, would be stolen property.
Cowell v Green (1796) 2 East 617 Similarly, an ingot of gold or silver, obtained by
melting gold or silver articles, which were stolen, does not cease to be stolen property.
Public Prosecutor v India China Lingiah AIR 1954 Mad 433 Where, therefore, a servant,
who was entrusted with a currency note of one thousand rupees, changed it into notes of
smaller denominations and lost the exchanged notes at gambling to other accused, it was
held that the accused were rightly convicted of an offence under s 411, IPC. Imperator v
Maulabux 11 Cr LJ 750.

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S. 411. Dishonestly receiving stolen property.—

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

STATE AMENDMENT

Tamil Nadu — Section 411 of the principal Act shall be renumbered as sub-section (1)
of that section and after sub-section (1), the following sub-section shall be added, namely
—

“(2) Whoever dishonestly receives or retains any idol or icon stolen from any building
used as a place of worship knowing or having reason to believe the same to be stolen
property shall, notwithstanding anything contained in sub-section (1), be punished with
rigorous imprisonment which shall not be less than two years but which may extend to
three years and with fine which shall not be less than two thousand rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than two years.” [Vide
Tamil Nadu Act 28 of 1993, s 3 .]

Scope

The preceding section explains as to what ‘stolen property’ is. This section prescribes
punishment for a person who dishonestly receives, or dishonestly retains, any stolen
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 property, knowing, or having reason to believe, the same to be stolen property. To
constitute an offence under this section:

(a) the stolen property must be found in possession of the accused;

(b) some person, other than the accused, must possess that property before the
accused got possession of the same; and

(c) the accused must dishonestly receive it, or must dishonestly retain it, knowing, or
having reason to believe, that the said property is stolen property. Trimbak v State
of Madhya Pradesh AIR 1954 SC 39

However, the mere demand of gratification by the accused to help the complainant to
recover his buffaloes does not render him liable under this section. Nazar Ali v State 1977
All Cr R 63

S. 412. Dishonestly receiving property stolen in the commission of a dacoity.—

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

Scope

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This section prescribes punishment for an aggravated form of the offence punishable
under the preceding s 411, IPC. The section covers two classes of cases, i.e.—

(a) receiving or retaining property which the accused knows, or has reason to believe,
to have been transferred at a dacoity (irrespective of the person, whether the
dacoit himself or any other person, from whom the property has been received),
and

(b) receiving property, which the accused knows, or has reason to believe, to be
stolen property, from a person whom the accused knows, or has reason to believe,
to belong, or to have belonged, to a gang of dacoits.

Receiving stolen property from such a person would be covered by this section,
irrespective of whether it was transferred by commission of a dacoity or theft.

Knowledge possessed by the accused that possession of property in question was

transferred by commission of dacoity, is one of the essential ingredient of an offence
under this section and unless there is proof of such knowledge, no conviction can be
sustained. Pramod Bhanudas Soundankar v State of Maharashtra (2013) 1 SCC 635
Therefore, before convicting a person under this section, the court must come to the
conclusion that the dishonest receiver of the stolen property was in possession of the
same, knowing or having reason to believe that its possession had been transferred by the
commission of dacoity. Moinuddin Mazumdar v State of Assam AIR 1972 SC 635 Where
appellants accused are alleged to have misappropriated stolen property of dacoity, their
conviction merely on the basis of possession of property would be improper. Bhaskar
Chandra Nayak v State of Orissa 2009 Cr LJ 3787 (Ori). Where the ornaments stolen as a
result of dacoity, were recovered from the possession of the accused, it was held that
these two facts, by themselves, were not sufficient to show that the accused either knew,
or had reason to believe, that the ornaments had been transferred by the commission of a
dacoity and, therefore, his conviction under this section was not sustainable. Pramod
Bhanudas Soundankar v State of Maharashtra (2013) 1 SCC 635 However, if the

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 articles, recovered, from the possession of the accused, very soon after the dacoity has
taken place, have been proved to have been stolen in the course of the dacoity, the case of
the accused would clearly fall within the ambit of this section, and not under s 395, IPC.
Amar Singh v State of Madhya Pradesh AIR 1982 SC 129

S. 413. Habitually dealing in stolen property.—

Whoever habitually receives or deals in property which he knows or has reason to believe
to be stolen property, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to
fine.

Scope

This section provides for a higher punishment for a person who is not a mere casual
receiver of stolen property, but does so as a profession. Habitual offenders are punishable
with higher punishment under some other provisions of IPC also, for instance, under s s
371, 400 and 401 of the IPC. The punishment is determined by the frequency of the
occasions on which stolen property is dealt with.

Relative Scope of Section 411 and Section 413

A bare perusal of s 411 and s 413 indicates that while s 411 prescribes a punishment for
dishonestly receiving stolen property knowing the same or having reason to believe the
same to be stolen property, s 413 prescribes a punishment for an accused who habitually
receives or deals in property which he knows or has reason to believe to be stolen
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 property. One act of receiving stolen property knowing the same to be stolen property can
attract s 411 of IPC, whereas a person who receives stolen property habitually or deals in
such property knowing or having reason to believe that the property is stolen property can
be punished under s 413 of the IPC. Kotta Gopinarayan Choudhary v State of Orissa
2003 Cr LJ 4050 (Ori)

S. 414. Assisting in concealment of stolen property.—

Whoever voluntarily assists in concealing or disposing of or making away with property

which he knows or has reason to believe to be stolen property, shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

Scope and Applicability

This section brings within its scope persons who are not proved to be in possession of
stolen property. The thief is naturally in possession of stolen property and so is the
receiver of stolen property. However, there may be a category of persons who never get
actual possession of the stolen property and yet they assist in its disposal. It is this
category of persons to which this section applies. Ram Bharosey v State AIR 1952 All
481. It, therefore, applies only to person who, not having such possession as would
sustain a charge of himself concealing, disposing of, or making away with it, voluntarily
renders assistance in such dealing. Emperor v Subha Chand (1881) 31 PR 83 When a
person is shown to stand in such relation to stolen property as falls short of possession,
his manner of dealing with the property may warrant a charge of assisting in concealing
or disposing of, or making away with, the property with guilty knowledge. Khona v
Empress (1879) 31 PR 83

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S. 415. Cheating.—

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or to consent that any person shall retain
any property, or intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to “cheat”.

Illustrations

Explanation.—A dishonest concealment of facts is a deception within the meaning of

this section

(a) A, by falsely pretending to be in the civil service, intentionally deceives Z, and

thus dishonestly induces Z to let him have on credit goods for which he does not
mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a

belief that this article was made by a certain celebrated manufacturer, and thus
dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into

believing that the article corresponds with the sample, and thereby dishonestly
induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no
money, and by which A expects that the bill will be dishonoured, intentionally
deceives Z, and thereby dishonestly induces Z to deliver the article, intending not
to pay for it. A cheats.

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 (e) A, by pledging as diamonds articles which he knows are not diamonds,
intentionally deceives Z, and thereby dishonestly induces Z to lend money. A
cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z
may lend to him and thereby dishonestly induces Z to lend him money. A not
intending to repay it, A cheats.

(g) A intentionally deceives Z into A belief that A means to deliver to Z a certain

quantity of indigo plant which he does not intend to deliver, and thereby
dishonestly induces Z to advance money upon the faith of such delivery. A cheats;
but if A, at the time of obtaining the money, intends to deliver the indigo plant,
and afterwards breaks his contract and does not deliver it, he does not cheat, but is
liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract
made with Z, which he has not performed, and thereby dishonestly induces Z to
pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he
has no right to the property, sells or mortgages the same to Z, without disclosing
the fact of the previous sale and conveyance to B, and receives the purchase or
mortgage money from Z. A cheats.

Scope

The offence of cheating, as defined in this section, contemplates two distinct forms of
cheating, namely:

i. a fraudulent or dishonest inducement of the person deceiving to act in

one or the other of the two ways, specified in the section, in respect of
his property, and

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 ii. an intentional inducement of the person deceived to act, or omit to act,
to his injury.

Deception, which is the means of the offence, is common to both forms. Deception has in
it the element of misleading, or of making a person to believe something which is not
real. It implies causing of a person to believe as true something that is false. PM
Natarajan v Krishna Chandra Gupta 1975 Cr LJ 899 (All) To constitute an offence of
cheating, the first and foremost element is deception. Unless there is deception, the
offence of cheating cannot be made out. In the explanation to the section, dishonest
concealment of facts is a deception within the meaning of the section. Therefore, the
prosecution must prove dishonest concealment of facts in order to secure a conviction for
cheating. Ramkrishan Baburao Maske v Kishan Shivraj (1974) 76 Bom LR 424.

The offence of cheating is committed if property is obtained by a false statement or

misrepresentation. It is no doubt true that to constitute deception, the false statement must
be of an existing fact. However, a statement as to future conduct, which amounts to
misrepresentation of fact, is nonetheless a statement of an existing fact. It follows that
every promise by a person as to his future conduct implies a statement of intention about
it. If a person makes a false representation regarding his future conduct and thereby
obtains property from another, the misrepresentation made by him would fall within the
ambit of s 415, IPC. As already stated, the explanation to s 415, IPC, says that a dishonest
concealment of facts is a deception within the meaning of the section. If an accused
makes a false representation that he would deliver goods to the complainant on a future
date which, he knows, he has no intention of doing, and thereby obtains property from the
complainant, it would be reasonable to infer that the accused was acting dishonestly.
Roopchand v State 1966 Cr LJ 1367. The language of the said s 415 makes it abundantly
clear that where property is obtained by an accused by misrepresentation, it will be safe to
infer that his intention was to deceive the other person into the belief that he would
perform his part of the contract.

Money obtained by a person through deception may give rise to a civil liability, but that
does not, and cannot, mean that he is immune from a criminal charge even if the
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prosecution succeeds in proving that he intended to dishonestly obtain money by
misrepresentation. Arun Bhandari v State of UP (2013) 2 SCC 801 It would be an error
to suppose that the existence of civil proceedings between the parties, or a civil remedy,
should necessary exclude trial by a criminal court of a criminal offence. Where the
accused obtained money on a hypothecation bond on a false representation that the
property belonged to him, it was held that the accused was guilty under s 420, IPC.
Sakaria v Narayanan (1962) 1 Cr LJ 649. It is only in case where the representation, on
the basis of which money is obtained by the accused, was correct at the time when it was
made, or was not false to the knowledge of the accused, and only subsequently the
accused became dishonest or failed to carry out his part of the contract that the dispute
can be said to be of a civil nature. Budwar v State 1957 All LJ 141

The Two Parts of Section 415 —Analysis

The section may be analysed as follows: Setti Rangayya v Somappa 25 Cr LJ 1193

Whoever, by deceiving any person, induces the person, so deceived,

1. fraudulently or dishonestly:

i. to deliver any property to any person, or

ii. to consent that any person shall retain any
property; or

2. intentionally:

i. to do, or omit to do, anything which he would not do, or omit, if he

were not so deceived, and
ii. such act, or omission, causes, or is likely to cause, damage or harm to
that person in body, mind, reputation or property.
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It would be found from the above analysis that there are the following two common
elements in respect of cheating in either of the two ways:

a. some person has been deceived, and

b. as a result of such deception he is induced to do any of the acts specified in the
section.

In other particulars, the two parts of the section are different. The main points of
difference are as follows:

First Part

i. It is necessary that the person deceiving acts fraudulently or

dishonestly. Chauthi v State 1978 AWC 187
ii. There must be reference to some property which the person deceived,
delivers to any person or consents to its being retained by any person.
iii. A damage or harm is not necessary.

Second Part

i. The act must be intentional. The terms ‘fraudulently’ or ‘dishonestly’

do not find a place in the second part.
ii. No property may, at all, be involved. Iridium Indian Telecom Ltd v
Motorola Incorporated AIR 2011 SC 20
iii. Some damage or harm is necessary by any act or omission which the
person deceived is induced to do or omit to do.

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The form of cheating under the first part of the section consists of deceit coupled with
fraudulent or dishonest inducing of the person deceived to do one or the other of the two
things regarding the disposal of his property, whereas, the form of cheating under the
second part of the section consists of deceit coupled with an intentional inducing of the
person deceived to do, or omit to do, any act which act results, or which is likely to result,
in damage or harm to that person in his body, mind, reputation or property. There are,
thus the following two elements in the form of cheating under the second part:

a. The person deceived is thereby intentionally induced to act, or to omit to act,

in consequence of the deceit, i.e., there is deceit, followed by an action or non-
action in consequence, which is intended by the deceiver. However, this by
itself, is not cheating. The conduct contemplated by the deceiver, which
follows in consequence of his deceit, may be to the advantage even of the
person deceived. Deception in order to induce beneficial action is not cheating
(a pius fraus is not fraud in law); and
b. The act, or omission, of the person deceived, which is intended by the
deceiver, must be one which is injurious to the person deceived, either in fact
or in tendency, i.e., it must cause, or it must be likely to cause, ‘damage or
harm in body, mind, reputation or property’. These words have nothing to do
with the first part of the section which deals with a delivery, or retaining, of
property in consequence of the deceit. They refer only to the doing of, or
omitting to do, anything else. Isher Uass v Emperor 8 Cr LJ 75

The aforesaid distinction has been clearly brought out in the under noted cases.
Tammineedi Bhaskara Rao and Ors v State of Andhra Pradesh 2007 Cr LJ 1204 (AP).

Essential Ingredients

To constitute an offence under this section, the following ingredients Satish Jain v State
of Uttaranchal 2006 Cr LJ 1172 (Uttr). must exist, namely:

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1. the accused must have deceived the complainant fraudulently or dishonestly or
intentionally; and
2. by means of such deceit, the complainant must have been induced to change his
position:
i. by delivering any property to any person (including the accused
himself) or by consenting that any person shall retain any property, or
ii. by doing, or omitting to do, anything which he would not do, or omit,
if he were not so deceived, and such act, or omission, causes, or is
likely to cause, damage or harm to the complainant in body, mind,
reputation or property.

There must either be dishonest misrepresentation or dishonest concealment of facts on the

basis of which the complainant (i.e., the person deceived) delivers any property to the
offender or consents that the offender shall retain the property already delivered.
Deception is the quintessence of the offence under s 415.

Mere Failure to Keep Promise is no Cheating

In order to constitute an offence of cheating the intention to deceive should be in

existence when the inducement was made. It is necessary to show that a person had
fraudulent or dishonest intention at the time of making the promise. Mere failure to keep
the promise subsequently cannot be presumed as an act leading to cheating. Vesa
Holdings P Ltd v State of Kerala 2015 (2) Crimes 114 (SC)

Doctrine of Constructive Notice

What the court has to consider as to what were the facts and whether the person cheated
did know the real facts or not. That he must be deemed to know certain facts because of
the operation of law will not affect the case. That will only affect his right in the property
which he acquires. The doctrine of constructive notice is intended to safeguard the
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interests of a third person, and not to exonerate the offender who obtains money by
making a false representation. ML Gael v Mukhtiar Singh 1980 Chand LR 262

Wrongful Gain and Wrongful Loss

It must further be noted that as a result of the dishonest inducement of a person, there can
be either wrongful loss to the complainant or wrongful gain to another person including
the offender. Whether any one of these results follows on account of the deception
practiced by the offender, then the offence of cheating would be complete. State v
Ramdas Naidu 1977 Cr LJ 2048

Requirement of Section 415

Section 415, IPC defines ‘cheating’. The said provision requires: (i) deception of any
person; (ii) whereby fraudulently or dishonestly inducing that person to deliver any
property to any person or to consent that any person shall retain any property; or (iii)
intentionally inducing that person to do or omit to do anything which he would not do or
omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property. Deception of any
person is common to the second and third requirements of the provision. The said
requirements are alternative to each other and this is made significantly clear by use of
disjunctive conjunction ‘or’. The definition of the offence of cheating embraces some
cases in which transfer of property is occasioned by the deception and some in which no
transfer occurs. Deception is the quintessence of the offence. Devender Kumar Singla v
Baldev Krishan Singla 2004 Cr LJ 1774 (SC)

Cheating Distinguished from Extortion

Extortion, like cheating, requires that there is dishonest inducement. The act must also be
done intentionally. Both s 383 and the second part of s 415, IPC use the word
‘intentionally’. In both cases, consent is given. Thus, inducement, intention and consent
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are common elements in both the offences. The difference, however, lies in the modus
operandi. In extortion, consent is obtained by putting a person in fear of any injury while
in the case of cheating, consent is obtained by deception. In the case of cheating, consent
is willingly given, though by reason of deception it is not a consent. In the case of
extortion, consent is not intended to be given but is obtained by putting the victim in fear.
However, the obtaining of decrees by means of forged documents is neither cheating nor
extortion as defined in the IPC. Emperor v Chuni 16 Cr LJ 136 (2).

Explanation: Dishonest Concealment

A dishonest concealment of facts is a deception within the meaning of this section. The
explanation refers to a dishonest concealment of facts which it is the duty of the person
concealing them to disclose to the person with whom he is dealing. ; Iridium Indian
Telecom Ltd v Motorola Incorporated AIR 2011 SC 20. Secondly, the explanation refers
only to actual deception, and not to the concealment of deception by someone. Nga Po
Maung v Empress (1892-1896) 1 UBR 255 a vendor of immovable property cannot be
convicted of cheating if he omits to mention that’ there is an encumbrance on the property
unless it is shown that he was asked by the vendees whether the property was so
encumbered and he had replied that it was not or that he sold the property on the
representation that it was unencumbered. Emperor v Bishan Dass 1 Cr LJ 218. Where
there is no pleading in complaint petition or in FIR that property was sold with a
predetermined intention of cheating, no offence under s 420, IPC is made out;
FIR/complaint would be quashed. Gopinath Achari v Madusoodanam 2014 (3) Ker LJ
635 (Ker). In Ramkrishna Nandram v Ganesh Narain, a person mortgaged a house to A,
but prior to that he suffered a decree (passed against him) creating a charge upon the
mortgaged property and the mortgage deed contained a recital that the mortgaged
property was not under mortgage or sale anywhere. It was held that it did not amount to
cheating as the mortgagor was not bound to disclose the charge. Where the person, whose
title was defective, mortgaged a house and agreed that the mortgagor would make good
money from other property if the mortgagee was not able to recover it from the mortgage
rights, it was held that the mortgagor was not guilty of cheating even though he knew at

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 the time of borrowing the money that his title was defective. Hari Krishan v Emperor 11
Cr LJ 610 (Punj

S. 416. Cheating by personation.—

A person is said to “cheat by personation” if he cheats by pretending to be some other

person, or by knowingly substituting one person for another, or representing that he or
any other person is a person other than he or such other person really is.

Explanation.— The offence is committed whether the individual personated is a real or

imaginary person.

Illustrations

(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by
personation.

(b) A cheats by pretending to be B, A person who is deceased. A cheats by

personation.

Scope

The preceding s 415, IPC defined cheating generally. This section defines a particular
specie of cheating which is an aggravated form of ordinary or simple cheating. The
offence under this section is committed if:

1. the accused pretended to be some other person; or

2. knowingly substituted one person for another; or

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3. represented that he or any other person is a person other than he, or such other person,
really is.

It is not necessary that the person personated is an existing or known person, whether
alive [illust (a)] or dead [illust (b)]. Such personated person may be wholly imaginary or
non-existent. A false personation need not be made in express words. It may be made by
conduct or acts.

The two elements of this offence are cheating and personation. Personation, by itself, is
no offence. State of Madhya Pradesh v Padam Singh 1973 Cr LJ 877. The offence of
cheating by personation is made when an accused assumes a different status or character
even though he does not change his name at any stage. The offence of cheating by
personation was held to have been made where the accused represented himself to be a
bachelor to the complainant though he was not. MNA Achar v DL Rajagopal 1977 Mad
LJ (Cr) 167.

Illustrative Cases

Cases of false personation

i. The two accused induced a moharrir at a fair to

write out a certificate of sale of a mare, giving
wrong names of the seller and the purchaser, and
one of them affixed his thumb mark to the
receipt in the name of the person who was
named as the seller, it was held that the accused
were guilty under this section as they deceived
the moharrir and induced him to write a false
certificate. Ahmad v Emperor AIR 1914 Lah
558.

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 ii. Where the accused posed himself to be a police
officer and cheated several villagers out of
money, he was held guilty of cheating and also
of falsely personating as a public servant.
Empress v Sadanand Dass 2 WR (Cr) 29 .
iii. In Re Matameswara Rao, AIR 1957 AP 4 the
accused used a railway seasonal ticket, issued in
the name of a different person, by pretending to
be that person. He was held guilty under this
section.
iv. Where a person, by falsely personating himself
as another, dishonestly or fraudulently induced a
health officer to deliver a health certificate to
him, he was held guilty of an offence under this
section. Re Packanathan 21 Cr LJ 478.
v. The appellant personating as KK had forged two
sale deeds. KK was the owner of the land and
the sale deeds were executed in favour of one G.
Held, the appellant committed the offence of
cheating by personation punishable under s 419,
IPC. Suresh Hingorani v State of Haryana
(2013) 123 AIC 161 (SC).

S. 417. Punishment for cheating.—

Whoever cheats shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.

Scope
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 An offence of cheating has been defined in s 415, IPC, and the other three aggravated
forms of cheating in s s 416, 418 and 420, IPC. Section 416 defines cheating by
personation and s 419, IPC prescribes punishment for cheating by personation. Cheating,
with knowledge that wrongful loss may ensue to the person whose interest the offender is
bound to protect, is defined in s 418 in which punishment for this offence is also
prescribed. And cheating, involving delivery of property or some valuable security, is
defined in s 420, IPC which also prescribes the punishment for the offence. This section
(i.e., s 417, IPC ) provided for punishment for those cases of simple cheating which are
not covered by any of the said sections, i.e., ss 419, 418 and 420, IPC.

Dishonest concealment by an accused is a deception punishable under this section. Where

there was deception and the deceiver’s object was dishonest and fraudulent and he
intended to retain wrongfully the excise duty, to which the state, under the statute, and
notifications made thereunder, had a claim and which the state was entitled to recover
under law, from a person who removed non-duty paid tobacco from a bonded warehouse
to another bonded warehouse, it was held that he practiced deceit and, therefore, the
offence under s 417, IPC, was made out against him. Mohammad Riaz v State of Uttar
Pradesh 1980 Cr LJ 369. However, no case against the appellant under s 417, IPC, was
held to have been made out in Gopal Musalgaonkar v State of Madhya Pradesh , 1976
Jab LJ 201 where the allegation against him was that he, representing himself to be an
unmarried person, induced the complainant to have sexual intercourse with him. Her own
evidence in the case was that she, prior to her marriage with him, was having intimacy
with the appellant and also had sexual intercourse with him. In these circumstances, it
was observed that it could not be believed that the complainant did not know about the
appellant’s relation whatsoever with another lady, and, therefore, no offence against the
appellant under s 417, IPC, was made out.

S. 418. Cheating with knowledge that wrongful loss may ensue to person whose interest
offender is bound to protect.—

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

Scope

This section is an example of the aggravated form of cheating, defined under s 415, IPC,
viz, the intentional inducing of a person by means of deceit to do, or omit to do,
something which is likely to cause injury to his property by causing a wrongful loss to
him. The section provides for an abuse of trust by a person who is bound by law, or legal
contract, to protect some interest. It is this fact which renders cheating an aggravated
offence under this section. It presumes the existence of some position of confidence
between the cheat and the person cheated. It may be noted that the section does not
expressly define the kind of relationship between the parties (like trustee, banker,
guardian, etc). All, that it requires, is that the position is one in which the offender stands
in such a position as would necessarily involve, on his part, the protection of the interest
generally of the person deceived. Where the directors, manager and accountant of a bank
put, before the shareholders, balance sheets, which they knew to be materially false,
misleading the public as to the true condition of the bank, and thereby induced the
depositors to allow their money to remain on deposit, it was held that they were guilty of
cheating under this section. R v Moss 16 All 88 ; GS Clifford v Emperor 15 Cr LJ 80.
Every breach of contract does not give rise to a criminal prosecution for cheating. The
element, which converts a breach of contract into an offence of cheating, is the dishonest
or fraudulent intention of the accused which induces the complainant to enter into the
contract. Mere non-payment by the purchaser of the price, or the balance of the price, of
the articles purchased cannot constitute the offence of cheating in the absence of proof of
any dishonest misrepresentation on the part of purchaser. If there is no proof of dishonest
intention on the part of the accused at the time when he made the promise, which induced
the complainant to do something which the complainant would not have done but for the
promise, there can be no offence of cheating. Intention of an accused may no doubt be
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 judged by his subsequent conduct, but mere subsequent conduct cannot be the sole
creation to conclude his intention at the time of the initial promise. Aitha Narasimham v
Duvvuru Adisesha Reddy 1977 Andh LT 316.

S. 419. Punishment for cheating by personation.—

Whoever cheats by personation shall be punished with imprisonment of either description

for a term which may extend to three years, or with fine, or with both.

Scope

This section, which simply provides for punishment for an offence, defined in s 416, IPC,
provides for punishment for the offence of simple cheating defined in s 415, IPC, which
operates when all the ingredients of the offence of cheating under the said s 415 are made
out. Ram Jus v State of Uttar Pradesh 1974 Cr LJ 1261. Thus, though the mere giving out
of a fictitious name may amount to personation, yet, in order to attract this section, there
must be cheating in addition to personation. The prosecution must be for cheating as
cheating is an essential ingredient of the offence. State of Madhya Pradesh v Padam
Singh 1973 Cr LJ 877. If it, however, involves the delivery of property, which is covered
by s 420, the offence would be punishable under that section, and not under this section.
Thus, where A, representing himself to B, obtained the delivery of some quantity of
opium from an opium shop on B’s ticket, he was convicted under s 420, IPC.

S. 420. Cheating and dishonestly inducing delivery of property.—

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

Scope

Cheating as defined in s 415, IPC, is made punishable under s 417, IPC, which deals with
cheating generally. Section 420, IPC, deals with that species of cheating which involves
delivery of property or destruction of valuable security. Skaria v Narayanan (1962) Cr LJ
649. In other words, this section deals with the aggravated form of cheating where, by the
cheating, there is dishonest inducement of the person cheated to deliver any property to
any person or to make, alter or destroy the whole, or any part of a valuable security or
anything which is signed or sealed and is capable of being converted into a valuable
security. Pramode Ranjan Choudhury v State (1963) 1 Cr LJ 716.

Section 417 and Section 420 —Distinction

As already stated, s 417, IPC deals with cheating generally, prescribes punishment for
simple cheating, while this section dealing with that species of cheating which involves
delivery of property or destruction of valuable security, lays down the sentence for the
aggravated form of the offence. Setti Rangayya v Somappa 25 Cr LJ 1193 (Mad). The
latter kind of cheating being of a punishment. This section (i.e., s 420, IPC ), being a
special provision, is to be treated as an exception to the general rule enacted in s 417. If a
case falls within the ambit of any of the s s 418, 419 and 420, IPC, the offender must
receive the punishment prescribed thereunder; he cannot claim that he should receive the
lesser punishment provided for by s 417. Sher Singh v Emperor AIR 1928 Lah 935. The
word ‘fraudulently’, used in s 415, finds no place in s 420. A, for example, may, by a false
representation, induce B to advance money in such circumstances that he is exposing B to
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 considerable risk of loss, but without the intention of causing wrongful loss. A would be
acting fraudulently; and if he intended to cause wrongful loss, he would be acting
dishonestly. In the former case, he would be punishable under s 417, and in the latter
under s 420. Ba Shein v Emperor 1992 LB 106. The vital difference between the offences
under ss 417 and 420, IPC, is that whereas, an offence against the latter section is the
cognizable one, that against a former is non-cognizable and investigation of it can only be
undertaken by the police on the instructions of a magistrate, whereas in the other case, the
police can act on their own motion under s s 154 and 156, CrPC. Emperor v Khwaja
Nazir Ahmed AIR 1945 PC 18. Where, in pursuance of the deception, no property passes,
the offence is one of cheating punishable under s 417, IPC. Where, however, in pursuance
of the deception, property is delivered, the offence is punishable under s 420. Anilesh
Chandra v State AIR 1951 Assam 122 ((2)). It may also be noted that an offence under s
420, IPC, is a cognizable one while an offence under s 417, IPC, is only a non-cognizable
offence. Emperor v Nazir Ahmed AIR 1945 PC 18.

Essential Ingredients

To constitute an offence under the relevant section, the essential ingredients are as
follows:

1. there must be deception (as contemplated in s 415, IPC ) by the accused; and
2. by the said deception, the accused must dishonestly induce the complainant:

i. to deliver any property to any person, or

ii. to make, alter or destroy the whole, or any part, of the valuable security or anything
which is signed or sealed and which is capable of being converted into a valuable
security.
The essential ingredients of the offence under s 420 are as follows: Kailash Chand Gupta v
State of Rajasthan and Another 2002 Cr LJ 2439  

1. There should be fraudulent or dishonest inducement of a person by deceiving him.

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 2. The person so induced should be intentionally induced to deliver any property to any
person or to consent that any person shall retain any property; or
3. The person so induced to do anything which he would not do or omit if he were not so
deceived; and
4. In cases covered by second part of (a), the act or omission should be one which
caused or was likely to cause damage or harm to the person induced in body, mind or
property. RS Nayak v AR Antulay (1986) 2 SCC 716,; Mobarak Ali v State AIR 1957
SC 857 .

The essential ingredients to attract s 420, IPC are: (i) cheating; (ii) dishonest inducement
to deliver property or to make, alter or destroy any valuable security or anything which is
sealed or signed or is capable of being converted into a valuable security; and the (iii)
means rea of the accused at the time of making the inducement. The making of a false
representation is one of the ingredients for the offence of cheating under s 420.
Bashirbhai Mohamed-bhai v State of Bombay AIR 1960 SC 979.

The two essential ingredients of the offence under this section are:

1. deceit, that is to say, dishonest or fraudulent misrepresentation;

and
2. inducing the person deceived to part with property.

The offence of cheating is complete the moment the cheat obtains delivery of property as
a result of his deception. The fact that he long afterwards returned it under pressure,
cannot, in any way, affect his criminality.

Chapter XXI Of Defamation

TOPICAL INTRODUCTION

It is a fundamental principle, long established that the freedom of speech and of the press
which is secured by the Constitution does not confer an absolute right to speak or publish,

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without responsibility, whatever one may choose, or an unrestricted and unbridled license
that gives immunity for every possible use of language, and prevents the punishment of those
who abuse this freedom. Reasonably limited, it was said by Story in the passage cited, this
freedom is an inestimable privilege in a free government; without such limitation, it might
become a scourge of the republic. Benjamin Gitlow v People of the State of New York (1923)
69 Law Ed 1138.

Freedom of speech and expression under art 19(1)(a) of the Constitution cannot be taken to
mean absolute freedom to say or write whatever a person chooses recklessly and without
regard to any person’s honour and reputation. Indeed the right has its own natural limitation.
Article 19(2) of the Constitution in this behalf contains safeguards of reasonable restrictions
on the exercise of the right.

Under s 499, IPC, only such imputation as are malicious and reckless and not for public
good, tranquillity or peace or public security or as are not made in good faith, have been
brought within the definition of defamation which is but the abuse of the freedom of speech
and expression punishable under s 500, IPC. Therefore, the provisions of s 499, IPC cannot
be said to place any unreasonable restriction on the freedom of speech or expression. Hence,
s 499, IPC, is not violative of art 19 of the Constitution. The Constitution does not grant
immunity from all punishments of abuse of freedom of speech and the accused can be put to
answer criminally for the breach of reasonable restrictions on his freedom of speech or for his
abuse of the freedom of speech. Punishment is not a restriction in itself, but is indeed a
consequence of the breach of restriction which the defaulter cannot escape. KV Ramaiah v
Special Public Prosecutor AIR 1961 AP 190

Section 499, IPC has a large number of exceptions. They cover the entire field of
privileges available in cases of defamatory statements. In fact, these privileges represent
the freedom of speech and expression which is the foundation of all democratic
institutions. However, while a considerable latitude is allowed in respect of these
privileges, they are also subject to a large number of conditions. Loss of life and loss of
reputation are two things which cannot be compensated in terms of money. Reputation,
especially is something which is a treasure to a person. Dhyandevrao L Waghmode v
Allabaksh Gulab Nadaf 1999 Cr LJ 1754 (Bom).

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 The provisions of this chapter act as deterrent against the commission of the offence of
defamation. However, due to restrictions imposed in s 199, Crpc, it is the aggrieved person
and when he is incapable, a proper person on his behalf can set the criminal law in motion
against the person accused. The chapter consists of the following four sections:

(a) Section 499 : It defines the offence of defamation along with four explanations and
three illustrations. The section also has ten exceptions to the offence of defamation.

(b) Section 500 : The offence of defamation as defined under s 499 is punishable under
this section with simple imprisonment which may extend upto two years, or with fine,
or with both.

(c) Section 501 : The offence under this section is distinct from an offence under s 500.
Crown v Uma Shankar 18 PR 1889. Printing or engraving matter known to be
defamatory is made punishable under this section though the sentence prescribed is
the same as prescribed in the preceding section.

(d) Section 502 : The sale of printed or engraved substance containing defamatory matter
is made punishable under this section. The sentence prescribed is the same as in the
preceding two sections.

S. 499. Defamation.—

Whoever, by words either spoken or intended to be read, or by signs or by visible

representations, makes or publishes any imputation concerning any person intending to
harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter excepted, to defame that
person.

Explanation 1.— It may amount to defamation to impute anything to a deceased person, if

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the imputation would harm the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.

Explanation 2.— It may amount to defamation to make an imputation concerning a

company or an association or collection of persons as such.

Explanation 3.— An imputation in the form of an alternative or expressed ironically, may

amount to defamation.

Explanation 4.— No imputation is said to harm a person’s reputation, unless that

imputation directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that person, or causes it to be believed that
the body of that person is in a loathsome state, or in a state generally considered as
disgraceful.

Illustrations

(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it to
be believed that Z did steal B’s watch. This is defamation, unless it fall within one
of the exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed
that Z stole B’s watch. This is defamation, unless it fall within one of the
exceptions.

(c) A draws a picture of Z running away with B’s watch, intending it to be believed
that Z stole B’s watch. This is defamation, unless it fall within one of the
exceptions.

First Exception.— Imputation of truth which public good requires to be made or

published.—It is not defamation to impute anything which is true concerning any person,

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if it be for the public good that the imputation should be made or published. Whether or
not it is for the public good is a question of fact.

Second Exception.— Public conduct of public servants.—It is not defamation to express

in good faith any opinion whatever respecting the conduct of a public servant in the
discharge of his public functions, or respecting his character, so far as his character
appears in that conduct, and no further.

Third Exception.— Conduct of any person touching any public question.—It is not
defamation to express in good faith any opinion whatever respecting the conduct of any
person touching any public question, and respecting his character, so far as his character
appears in that conduct, and no further.

Illustration

It is not defamation in A to express in good faith any opinion whatever respecting Z’s
conduct in petitioning government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending at such meeting, in forming or
joining any society which invites the public support, in voting or canvassing for a
particular candidate for any situation in the efficient discharge of the duties of which the
public is interested.

Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation

to publish a substantially true report of the proceedings of a court of justice, or of the
result of any such proceedings.

Explanation.— A justice of the peace or other officer holding an enquiry in open court
preliminary to a trial in a court of justice, is a court within the meaning of the above
section.

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Fifth Exception.—Merits of a case decided in court or conduct of witnesses and
others concerned.—It is not defamation to express in good faith any opinion whatever
respecting the merits of any case, civil or criminal, which has been decided by a court of
justice, or respecting the conduct of any person as a party, witness or agent, in any such
case, or respecting the character of such person, as far as his character appears in that
conduct, and no further.

Illustration

22. A says—“I think Z’s evidence on that trial is so contradictory that he must be
stupid or dishonest”. A is within this exception if he says this in good faith,
inasmuch as the opinion which he expresses respects Z’s character as it appears in
Z’s conduct as a witness, and no further.

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

Sixth Exception.—Merits of public performance.— It is not defamation to express in

good faith any opinion respecting the merits of any performance which its author has
submitted to the judgment of the public, or respecting the character of the author so far as
his character appears in such performance, and no further.

Explanation.— A performance may be submitted to the judgment of the public expressly

or by acts on the part of the author which imply such submission to the judgment of the
public.

Illustrations

(ii) A person who publishes a book, submits that book to the judgment of the public.
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 (ii) A person who makes a speech in public, submits that speech to the judgment of
the public.

(ii) An actor or singer who appears on a public stage, submits his acting or singing to
the judgment of the public.

(ii) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man.
Z’s book is indecent; Z must be a man of impure mind.” A is within this
exception, if he says this in good faith, inasmuch as the opinion which he
expresses of Z respects Z’s character only so far as it appears in Z’s book, and no
further.

(ii) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is
a weak man and a libertine”. A is not within this exception, inasmuch as the
opinion which he expresses of Z’s character is an opinion not founded on Z’s
book.

Seventh Exception.—Censure passed in good faith by person having lawful authority

over another.—It is not defamation in a person having over another any authority, either
conferred by law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful authority
relates.

Illustration

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

Eighth Exception.—Accusation preferred in good faith to authorised person.—It is

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not defamation to prefer in good faith an accusation against any person to any of those
who have lawful authority over that person with respect to the subject-matter of
accusation.

Illustration

If A in good faith accuses Z before a magistrate; if A in good faith complains of the

conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, a
child, to Z’s father,—A is within this exception.

Ninth Exception.—Imputation made in good faith by person for protection of his or

other’s interests.—It is not defamation to make an imputation on the character of another
provided that the imputation be made in good faith for the protection of the interests of
the person making it, or of any other person, or for the public good.

Illustrations

(ii) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless

he pays you ready money, for I have no opinion of his honesty”. A is within the
exception, if he has made this imputation on Z in good faith for the protection of
his own interests.

(ii) A, a magistrate, in making a report to his own superior officer, casts an

imputation on the character of Z. Here, if the imputation is made in good faith,
and for the public good, A is within the exception.

Tenth Exception.—Caution intended for good of person to whom conveyed or for

public good.— It is not defamation to convey a caution, in good faith, to one person
against another, provided that such caution be intended for the good of the person to
whom it is conveyed, or of some person in whom that person is interested, or for the
public good.

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Scope

This section defines the offence of defamation with the aid of four explanations and ten
exceptions with more explanations and illustrations appended to the exceptions. The
framers of IPC observed that the essence of the offence of defamation consists in its
tendency to cause that description of pain, which is felt by a person who knows himself to
be the object of the unfavourable sentiments of his fellow-creatures, and those
inconveniences to which a person, who is the object of such unfavourable sentiments, is
exposed.

Whether the publication of defamatory words or uttering defamatory words, heard and
listened to by people takes place in a proceeding in a court room or outside the court
precincts does not matter as long as the defamatory words are intended to harm the
reputation of another Amar Nath v State 1971 Cr LJ 1335, p 1339.

Ingredients

The offence of defamation consists of three essential ingredients: Empress v Nagappa

(1891) ILR 15 Bom 344.

1. there must be a making or publishing of an imputation concerning a person;

2. such imputation must have been made by words, either spoken or intended to be read,
or by signs or by visible representations; and
3. the said imputation must have been made with the intention to harm, or with
knowledge or reasonable belief that it will harm, the reputation of the person
concerned.

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 Imputation—Facts to be Considered by Court

Where the words are obviously defamatory, the court has to consider the following facts
for arriving at a decision whether the words are defamatory:

i. Circumstances and context: The court must be put in possession, not only of the
words used, but also of the context in which they were used in order to find the
intention and the effect of the words. Bhola Nath v Emperor AIR 1929 All 1 Spoken
words, divorced from their context and surroundings, may appear to be slander,
which, when controlled by the context and surroundings, are nothing of the sort.
Broome v Agar (1928) 138 LT 698. The court should have regard to the time and
place of publication, the relationship between the parties, and, in fact, the whole
circumstances of the case. Rajan Babu v Anitha Chandra Babu 2011 (3) KLT 415
ii. Words should be considered as a whole: Where some passages in a petition are
alleged to be defamatory, the document should be read as a whole with a view to find
out the main purport, and too much importance should not be attached to a few
isolated passages here and there. Cassem Kurrim v Jonus Hadjee Seedick 9 CWN
195. The accused is entitled to know specifically as to what are the words which are
considered to be defamatory. Attention of the accused must be drawn pointedly to the
expression considered to be defamatory. Rukamani Bai v Radha Ballabh 1955 NUC
469
iii. Alleged defamatory words, etc, should be interpreted in a manner in which a
reasonable man would do: The test is, whether, under the circumstances in which the
writing was published, reasonable man, to whom the publication was made, would be
likely to understand it in the libellous sense. Capital and Counties Bank v Henty
(1882) 7 AC 741. Standard opinion is that of a reasonable man of normal intelligence
possessed of a degree of the knowledge of circumstances of the case. Holdsworth v
Associated Newspapers Ltd (1937) 3 All ER 872. It is not sufficient that persons in
one section only of the community might so understand them. The test to apply is
reasonableness, whether the hearers or the readers, as the case may be, are few or
many, expert or inexpert. Tolley v Fry and Sons Ltd (1930) 1 KB 467. The court must
consider what might be conveyed by the notice to a reasonable fair-minded man, and

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 not what might be inferred from it by a man of a morbid or suspicious mind. Lachmi
Narain v Shambhu Nath AIR 1931 All 126.

Proof of Actual Harm to Complainant—Not Necessary

To sustain a charge of defamation, it is not necessary to prove that the complainant

actually suffered directly or indirectly from the scandalous imputation alleged; it is
sufficient to show that the accused intended that the imputation should harm, or that he
knew or had reason to believe that imputation made by him would harm, the reputation of
the complainant. MP Narayan v MP Chako 1986 Cr LJ 2002 (Ker). A person who
commits defamation, is not to be excused from the penalties attached to the offence
merely because he has composed himself in respect of the modes of giving expression to
the defamatory matter in such a way that little real injury results from the offence.
Senthinathaiyar v Gnanamuthu Nandan 1 Weir 594. A person, who publishes defamatory
matter against another in a case, not covered by any of the exceptions, cannot escape
punishment on the ground that the reputation of the person attacked was so good, or that
of the persons attacking so bad, that serious injury to the reputation was not in fact
caused. Ram Narain v Emperor AIR 1924 All 566. Explanation 4 merely describes the
quality or nature of the imputation and not its actual effects. Anandrao Balkrishan
Rangnekar v Emperor 16 Cr LJ 177. It is not necessary to show that the words, as found
to have been used by the accused, lowered the prestige of the complainant in the
estimation of others. Jagannath Misra v Ram Chandra Deo AIR 1945 Pat 450.

Intention or Knowledge

In judging whether the accused had the requisite intention or knowledge, the
circumstances under which, and the main object with which, the defamatory statements
were made, and the background of the dispute between the parties should all be
considered. Chaitan Charan Das v Raghunath Singh 1959 Cr LJ 1006. Where the tenor of
a document shows that the publication tends to harm the reputation of a person, the court
would be justified in gathering from the terms of the matter itself that the publishers
intended to harm, or they knew or had reason to believe that the imputation would harm,
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his reputation. Deohrat Shastri v Rang Bahdur AIR 1950 Pat 545.

‘Harm’

‘Harm’ has to be to the reputation itself of the person defamed. Amar Singh v KS Badalia
(1965) 2 Cr LJ 693. Words which do not disparage a man’s reputation but occasion a
pecuniary loss to him do not amount to defamation. Where a notice was published by the
auctioneers that they would sell by public auction some goods on account, and at the risk,
of the plaintiff, who, in spite of repeated demands and notice, had failed to pay for, and
take delivery of, the goods which he had purchased, it was held that the words did not
bear a defamatory meaning. Lachmi Narnin v Shambhu Nath AIR 1931 All 126 . Even a
false claim on a postcard, that the complainant should pay a certain sum of money to the
accused, which the complainant owes to him, is not prima facie defamatory. Abdulla v C
Clarke 9 Cr LJ 154. Indulging in exaggeration, or even falsehood, by the accused in
respect of their own position and importance is not defamation. It must be proved that the
imputation was calculated to harm the reputation of the complainant. Genda Ram v
Emperor AIR 1936 All 143

‘Reputation’

Reputation is a jus in rem, a right absolute and against all the world. A man’s reputation
is his property. Dixon v Holden LR 7 Eq 488. Hence, nobody can so use his freedom of
speech or expression as to injure another’s reputation.

The term ‘character’, ‘reputation’ and ‘rumour’ are prone to be confused. ‘Character’ is
what a person actually is and ‘reputation’ is what neighbors say, what he is. Thus, though
a man may have, in fact, a good character, yet he may suffer from a bad reputation or vice
versa. ‘Reputation’ is the common knowledge of the community or a general opinion in
respect to a person. ‘Reputation’ being the community’s opinion, is distinguished from
mere rumor in two respects. On the one hand, reputation implies the definite and final
formation of opinion by the community, while rumor implies merely a report that is not
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yet finally credited. On the other hand, a rumor is usually thought of as signifying a
particular act or occurrence, while a reputation is predicated upon a general trait of
character. A man’s reputation, for example, may declare him honest and yet today’s
rumor may have circulated that this reputed honest man has defaulted yesterday in his
accounts. Harbhajan Singh v State of Punjab (1961) 1 Cr LJ 710. In other words,
character is an expression of very wide import which takes in all the traits, special and
particular qualities, impressed by nature of habit, which serve as an index to the essential
intrinsic nature of a person. Character also includes reputation, but character and
reputation are not synonymous. D Ram Subha Reddy v PVS Rama Das 1970 Cr LJ 83.

Explanation 1

In order to amount to defamation under expln 1 to this section, the imputation alleged
must not only harm the reputation of the person concerned if he were living, but also be
‘intended to be hurtful to the feelings of his family or other relatives’. NJ Nanporia v
Brojendra Bhowmick (1974-75) 79 Cal WN 531; Emperor v Parwari 17 ALJ 24 . This
explanation would not be attracted if any of the said two elements is lacking.

Explanation 2

Company

As in the case of natural persons, reputation is an asset to companies, corporations and

other bodies of persons and they are also entitled to the protection of their reputation.
However, the reputation of a corporation is not, in all cases, similar to that of natural
persons. A corporation cannot well suffer damage in mind or body. Legal Remembrancer
v Manmatha Bhusan Chatterjee AIR 1924 Cal 495. An incorporated company may have a
reputation for the good conduct of the business or undertaking of the company, and the
company’s reputation may be quite distinct from that of any of its officers, however
highly placed. A municipal board per se has hardly any reputation. If, however, a person
makes any imputation so as to cause any special injury to the property of the board, then
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the board can maintain a complaint under s 500. Municipal Board v Ganesh Prasad
Chaturvedi 1952 Cr LJ 282. If a company is defamed, one of the members may file a
complaint on its behalf. If, however, the complaint is of an individual as such expln 2 has
no application. Ahmedali Adamali v Emperor AIR 1938 Sind 88.

Explanation 3

The essence of defamation is that it conveys a discreditable imputation. It is, therefore,

immaterial in what medium the discreditable imputation is made. For example, a play,
which is woven out of the imagination of an author, can possibly contain more deadly
imputations against real persons than a mere narrative. Re MKT Subramanik 1971 LW
(Cr) 131. Where, in an article in department with his own underlings, the minister had
made the appointment of a particular person and that this was but the prelude to further
appointments of the like nature, it was held that the caption. ‘So prospers the incorrupt
administration of Minister Krishna Iyer’ was obviously an ironical statement implying
that the minister’s administration was a bad administration riddled with corruption and
nepotism. R Shanker v State 1959 Cr LJ 464.

Explanation 4

The conjoint reading of s 499, IPC, with this expln 4, would make it clear, that in the
complaint, there shall be an averment to the effect, that because of the imputation, the
complainant’s reputation had been lowered in the estimation of others. J Jayalalitha v
Arcot N Veerasamy 1997 Cr LJ 4585 (Mad). Explanation 4 implies a fallen reputation,
and, therefore, a person, who does not stand in high estimation of others, cannot get a fall
if the imputation be such as may not bring his reputation to a level, below the one he
enjoys. Ram Subhag Pandey v State 1971 All LJ 1005. If the words are prima facie
defamatory, then one need not find out as to whether the imputation was likely to lower
the moral or intellectual character of person defamed mentioned in expln 4. Amar Singh v
KS Badalia (1965) 2 Cr LJ 693.

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Exceptions to Section 499

This section has got a large number of exceptions. They cover the entire field of the
privileges available in cases of defamatory statements. In fact, these privileges represent
the freedom of speech and expression which is the foundation of all democratic
institutions. However, while a considerable latitude is allowed in respect of these
privileges, they are also subject to a large number of conditions.

There are many points, in respect of which the question is one which relates to a number
of exceptions generally. One such point, relates to burden of proof. When an accused
claims the benefit of any of the exceptions, the burden of proof is upon him. Jagdish B
Rao v State 1974 Cr LJ 1358 (Goa). In such a case, though the evidence, which the
accused is required to produce to discharge this burden, is not of any particular standard
as is required, yet there must be material on the record to show that this burden has been
discharged. Jagdish B Rao v State 1974 Cr LJ 1358 (Goa). His plea is taken as established
if a preponderance of probability is established, in favour of his plea, either by the
evidence led by him or from the other evidence on record. Bhimanagouda Mallangouda
Patil v Malleshappa Basappa Konnur (1980) 24 Mad LJ (Cr) 373. Before dealing with
each exception separately, points, which require consideration generally in respect of
various exceptions, are noted below under the following heads:

i. analysis of the exceptions;

ii. good faith generally;
iii. excessive publication;
iv. fair comments and related headings;
v. definition and liability of editor and publishers etc, of newspapers in
different headings.

The protection under exceptions 1 and 4 is not available when process is being issued in a
defamation case. SM Katwal v Virbhadra Singh 2014 Cr LJ 3036 (HP).

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 Analysis of the Exceptions

All the exceptions under this section may be classified in five groups, Potaraju Venkata
Reddy v Emperor 13 Cr LJ 275 all relating to occasions as to which qualified privilege is
recognised:

(a) Exception 1 relates to the plea of justification;

(b) Exceptions 2, 3, 5 and 6 relate to the plea of fair comment on a matter of public
interest;

(c) Exceptions 7 and 8 cover the cases of censure by a lawful authority passed in
good faith and accusation made to a person in lawful authority in good faith;

(d) Exceptions 9 and 19 cover the cases of imputation made in good faith, by a
person for the public good, and the case of caution intended for the good of the
person to whom it is conveyed or for the public good; and

(e) Exception 4 covers the plea of fair report of the public proceedings.

Good Faith Generally

It may be stated that good faith finds place in all the exceptions to this section except
exceptions 1 and 4. Cases falling under the different exceptions have been dealt with there.
The general features of good faith, which apply to the various exceptions, have been dealt
with under s 52, IPC, which provides: ‘Nothing is said to be done or believed in ‘good faith’
which is done or believed without due care and attention.’ Re P Ramaswami 1971 LW (Cr)
63. The said s 52 excludes the element of negligence from the purview of ‘good faith’. It
implies not only an upright mental attitude which shows that ordinary prudence has been
exercised according to the standards of a reasonable person. It contemplates an honest effort
to ascertain the facts, upon which exercise of the power must rest. Harbhajan Singh v State of
Punjab (1961) 1 Cr LJ 710. Mere subjective belief without any objective basis is not a
dependable criterion. An unnecessary aspersion is indicative of want of good faith. 49 Due care
and attention means that the libeler should show that he had taken particular steps to
investigate the truth and had satisfied himself from his inquiry, as a reasonable man, that he

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had come to a true construction, G Chandrasrkhara Pillai v K Karthikeyan (1964) 2 Cr LJ
549 even though, on further searching investigation, it may not be found to be true. Paduram
Saliu v Biswambar Sahu AIR 1958 Ori 259 . An imputation against another person, although
made in the absence of actual ill-will, is not, on that account, to be accepted as being made
bona fide. Simple belief or actual belief in the truth by itself is not enough. The accused can
only succeed on producing proof of the truth of matter charged as libelous, and not by leading
evidence to his own belief in its truth.

Whether good faith has been proved is a question of fact. A plea of good faith would be a
question to be considered on facts and circumstances of each case, and must be decided with
reference thereto. The court will consider, in view of what is said about good faith in s 52,
IPC, whether the accused acted with due care and attention. Sasadhar Banerjee v Prahlad
Chandra Dutta AIR 1949 Cal 292.

Excessive Publication

A privilege under s 499, IPC, is destroyed if the publication has been unnecessarily wide and
is published among persons who cannot be possibly interested in the statements made. 61 The
manner in which an imputation is made and the nature of the medium that is selected for
making it are very much material. Talangare Mamunhi v Abdul Rahiman AIR 1949 Mad 524
Publication, in newspaper, of a charge of bribery against a magistrate is not for protection of
any person or for public good. The privilege would be destroyed because public action in the
newspaper in such a case, is excessive. State v D Packiaraj 52 Cr LJ 623. Where the accused
felt some suspicion about corruption in a society from the audit report and thought that the
publication was necessary, but the accused made some embellishments, additions, etc., in the
article in a newspaper, it was held that it was clearly a case of excessive publication which
would take the case out of the privilege conferred by exception 9. G Chandrashekhar Pillai v
K Karthikeyan (1964) 2 Cr LJ 549.

Fair Comments—Principles

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Honest criticism ought to be, and is, recognised in any civilised system of law as
indispensable to the efficient working of any public institution or office and as salutary for
private persons who make themselves or their work the object of public interest. The defense
of fair comment is established if the facts on a matter of public interest have been truly stated.
The test is whether the opinion, which is expressed in the comment, however exaggerated,
obstinate or prejudiced it may be, was honestly held by the writer. The doctrine of fair
comment is based on the hypothesis that the publication in question is one which, broadly
speaking, is true in fact, and is not made to satisfy a personal vendetta, and further the fact,
stated therein, are such as would serve public interest.

Principles, Durga Pershad Chowdhury v State of Rajasthan (1969) Raj LW 202. in respect of
fair comment, may be stated as under:

1. no kind of privilege attaches to the profession of press as distinguished

from the members of the public;
2. in the context of a welfare state, the role of a newspaper editor is to give
outlet to public feelings, to analyse public opinion and to create and
educate healthy public opinion. This must be kept in mind in judging their
liability;
3. defense of fair comment applies only to expression of opinion or
imputation of character, but not to facts; and
4. fair comment cannot be built upon facts which are not truly stated.

If facts are themselves defamatory, they can be justified only by their truth.

The principles have been summarised by Garley thus:

‘In order that a comment may be fair, the following conditions must be satisfied:

I. it must be based on facts truly stated;

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 II. it must not contain imputations of corrupt or dishonorable motives on the person,
whose conduct or work is criticized, save in so far as such imputation are warranted
by the facts; and
III. it must be the honest expression of the writer’s real opinion.’ Radhanath Rath (Dr) v
Balakrishna Swain (1985) 59 Cut 226 (Ori).

Exception 1

In order to invoke the applicability of this exception, there are two conditions, namely
that the alleged imputation regarding the complainant must be true and it must be made
or published for the public good. It is a good defence in criminal cases that the words
complained of are true and that it is for public benefit that the matters charged be
published though the actual motive for publication was malevolence. Jaffar Fadu v
Emperor 11 Cr LJ 588. It is, however, to be noted that if any of the two conditions is not
satisfied, exception 1 would not be attracted. Similarly, though the truth of a defamatory
matter is a complete defence to an action for damages in a civil suit, it is not so in a
prosecution for the crime of defamation. Raghunath Damodar v Janardhan Gopal (1891)
ILR 15 Bom 599.

As stated earlier, the accused has to establish that the alleged imputation was true. If what
is said is true, then justification is a good defence. On the other hand, if there is a doubt as
to whether it is true, there is no defence at all. Lalmohan Singh v King 51 Cr LJ 1288. If a
statement contains only the truth but is incomplete and misleading, the accused cannot
plead that the imputation, made by him on the complainant’s character, was made in good
faith or for the public good. Imperative v Kakde (1879-1880) ILR 4 Bom 298. When truth
is set up as a defence, it must extend to the entire libel and it is not sufficient that only a
part of the libel is proved to be true. G Chandrashakhara v K Karthikeyam (1964) 2 Cr LJ
549.

Exception 2

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Whosoever fills a public position renders himself open thereto. He must accept an attack
as a necessary, though unpleasant, appendage to his office, because exposing the conduct
of a public servant in discharge of his public duties as being unsatisfactory or
reprehensible cannot but be said to be for public good. Brahmadeo Singh Sharma v State
of Bihar 1972 BLJR 187. Whenever a person accepts government service or a public
office, he must try to imbibe the spirit of toleration and forbearance so as not to be carried
away by emotion and sentiment and get provoked by the slightest criticism of his conduct
in the discharge of his public duties. He should not be too hypersensitive so as to feel hurt
by any and every imputation that is made against him; he should try to stand up to any
fair comments, that are made in the interest of public good, even though the comments
may not be palatable to the government official. Narsingdas Nargis v Bansi Lal 1974
Kash LJ 198. However, public affairs cannot be conducted by men of honour with a view
to the welfare of the country if we were to sanction attacks upon them destructive of their
honour and character and made without any foundation.

Even a person claiming the benefit of the second exception to s 499, IPC is required to
show that the opinion expressed by him was in good faith which related to the conduct of
a public servant in the discharge of his public functions or respecting his character so far
as his character appears in that context. Re Arundhati Roy Contemnor 2002 Cr LJ 1792
(SC).

Exception 3

In respect of this exception, the authors of IPC observed:

There are public men who are not public functionaries; persons, who hold no office,
may yet... take a very active part in urging or opposing the adoption of measure in
which the community is deeply interested. It appears clear to us that every person
ought to be allowed to comment, in good faith, on the proceedings of these volunteer
servants of the public with the same freedom with which we allow him to comment
on the proceedings of the official servants of the public. Murlidhar Jeramdass v
Narayandas 16 Cr LJ 141.
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 In an Allahabad newspaper, an advertisement was published by the complainant in
which he solicited the public to subscribe to a hospital of which he was the surgeon in
charge, stating the number of successful operations which had been performed. It was
held that as such advertisement had the effect of making such hospital a ‘public
question’ and of submitting it to the ‘judgment of the public’, the accused, who had
expressed himself in good faith in criticising the advertisement as unprofessional, was
within the third, sixth and ninth exceptions to this section.

Exception 4

This is one of the two exceptions which do not make a reference to good faith. What is
needed is that the report of the proceedings of a court of justice, or the result of any such
proceedings, should be substantially true even though it may not be for public good.
Annada Prasad v Monotosan Roy AIR 1953 Cal 503 . In other words, the publication
should be a substantially true report. It need not be true absolutely word by word; but
taking the whole thing, it must be a substantially true account. If based on the contents of
the FIR that impugned news item has been published, whether the allegations made are
true or false need not concern the journalist while publishing the same. When the public
authorities had taken cognizance of the complaint and have initiated necessary legal
action and any of the proceedings relating to the crime that occured and if the report is
published in the newspaper, it would not amount to defamation and squarely fall within
the fourth exception to s 499, IPC. T Satish Pai v Narayan Nagappa Nayak 2002 Cr LJ
4416 (Kant). It is also not necessary that the report should be contemporaneous, the
reason being that law-books and reports of decisions, etc., are not published on the same
day, or, very often, soon after the delivery of judgment in court. In view of the above,
only two things have to be proved by the accused, i.e., (a) that the report is substantially
true account of the proceedings or the result of such proceedings; and (b) that the
proceedings are of a court of justice.

Exception 5

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This Exception, confined only to comments on cases which have been decided, and not
on cases which are sub judice, deals with two classes of cases, viz.,

1. with opinion respecting the merits of any civil or criminal case; and
2. with the conduct of person connected with judicial proceedings and character
deducible therefrom.

A declaration or an opinion expressed in his judgment by a magistrate or a judge is open

to searching and severe observations, and may be freely criticized and commented upon
by the editor of a newspaper. However, where the criticism is converted into an attack
upon the judge or magistrate as a conspirator against justice, a traitor to his oath, a
trickster, or a man who had maneuvered his procedure so as to defeat the truth, it is for
the person, who has uttered these things, to justify them, or, under the IPC, to establish
affirmatively that he believes them to be true, and that too an reasonable grounds.
Charming Arnold v Emperor 15 Cr LJ 309 (PC).

Exception 6

This exception covers a wide range of subjects. The object of the exception is that the
public should be aided by comments, in its judgment, of the public performance
submitted to its judgment. Comment, otherwise defamatory, is justified on this ground
alone. Good faith is an essential condition for claiming the benefit of this exception. The
right involves two essentials, first, that the imputations should be commented on the work
criticized, and secondly, that it should be fair, that is to say, that if it professes to be an
inference drawn from the contents of that work, it must be an inference which it is
possible to draw therefrom. It would be monstrous, for instance, for a critic to suggest as
an inference from a mere grammatical inaccuracy in a work that its author was a swindler
or a libertine. The excuse of fair comment may be forfeited by reason of mere
recklessness in making an unwarrantable assertion. Good faith does not, however, require
logical infallibility. Emperor v Abdool Wadood Ahmed (1907) ILR 31 Bom 293.
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Exception 7

This exception allows a privilege for censure by one person against another. The
requirements for it are that:

1. the person, passing the queasier, has authority over the other person;
2. such authority was conferred by law or it arose out of a lawful contract made with
that person;
3. the conduct was in a matter to which such lawful authority related; and
4. it was passed in good faith.

The lawful authority, contemplated by the exception, is fairly wide as would be evident
from the illustration to the exception. Such authority may be deemed to be vested in a
variety of relationships. Judge or any other judicial authority may be protected by some
statutes or may gain the benefit of exception 9. This exception makes the position clear
and the case may also be covered by this exception. A municipal engineer reported to the
vice-chairman of the municipality that he had found that some stocks of metal had been
taken away and he learnt on inquiry that the complainant, who was the contractor, had
done this. It was held that if the report was made in good faith, the engineer was entitled
to the benefit of the seventh and eighth exceptions. Jotindra Nath Mukherjee v Radha
Krishna Buddhia AIR 1934 Pat 548. Similarly, the adverse remarks given by a sub-
divisional officer, regarding the work of a storekeeper, in the annual confidential report,
sent to the chief engineer, were held as no defamation. Mohindra Singh Dhillon v Ganga
Dhar Sharma (1975) 77 Punj LR 716.

Exception 8

Under this exception, a legitimate complaint against a person to a person in authority

is no defamation. A bona fide complaint to the postmaster-general to obtain redress

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 for a grievance against a postal employee is privileged. Woodward v Lander (1834) 6
C and F 548 ; Blake v Pilford 1 M and R 198. One, who wants to bring himself within
this exception, must affirmatively establish that the complaint was preferred in good
faith and that it was preferred to a person who had authority over the person
complained against. Re Karumara Anjaneyalu 17 Cr LJ 381. The accused must prove
that the person, to whom the complaint was made, had lawful authority over the
person complained against in respect of the subject-matter of the accusation. Kanwal
Lal v State of Punjab (1963) Cr LJ 345. Similarly, where the accusations were made,
in a complaint, by the accused to the superior authority of the complainant, it was held
that even if the complaint contained defamatory matter, it was privileged by exception
8 to this section. When a counsel of the court, duly instructed by his client, thinks it
necessary to state facts in a petition for the purpose of affording redress to him, he is
protected under the eighth exception. Hari Shankar Joshi v Shyam Sunder 1972 All
Cr R 480.

As already mentioned earlier, the eighth exception would apply only if the statements
complained of, are made in good faith. Thiruvengada Mudali v Thipurasundari Ammal
AIR 1926 Mad 906 Exceptions 8 and 9 would not apply to a case if the accused has
acted recklessly and without due care and caution. Modappa Goundan v Emperor 19 Cr
LJ 115 Where the accused stated that the complainant was actuated by personal ill-will
and malice against the accused in passing an order and it was found that the complainant
by his previous conduct had given ample reason to the accused for believing, rightly or
wrongly, that he was acting with personal ill-will against him, it was held that the accused
was protected by exceptions 8 and 9. Anandrao Balkrishna Rangnekar v Emperor 16 Cr
LJ 177. A complaint was made to the president of a local board. It was suggested that the
complainant was suffering from leprosy in order to disqualify him from nomination. In
Romesh Roy v King AIR 1952 Cal 228 after a meeting, some 42 members of the locality
presented a petition to the deputy commissioner of police stating that the complainant was
living an immoral life and that a young girl was not his wife, but his mistress, and further
that he and one other person were using the girl as a prostitute and living on her earnings.
No enmity was proved and no motive ascribed as to why the accused should defame the
complainant in this manner. It was held that the accused was entitled to the benefit of this
exception. However, no plea of good faith can be advanced for claiming benefit under

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this exception in respect of a manner which is false within the knowledge of the person
making it. Once the accusation is found to be false, it follows that it was not made in good
faith. Haji Ahmed Hussain v State AIR 1960 All 623

Exception 9

Scope

Under this exception, it is not a defamation to make an imputation on the character of

another if the imputation is made in good faith for the protection of the interest of the
person making it, or of any other person, or for the public good. Sukhdeo Vithai Pansare
v Prahhakar Sukhdeo Pasare 1974 Cr LJ 1435 (Bom). The ingredients of this exception
are that the imputation must be made in good faith and it must be for the protection of the
interests of the person making it, or of any other person, or for the public good. Pitamber
Guru v Ambika Charan Sharma (1974) 1 Cut LR (Cr) 116. Therefore, if one invokes the
aid of this exception on the ground that he published the impugned article in good faith
and for the public good, he has to establish both good faith and public good. IG
Chandrashekhara Pilial v K Karthikeyan (1964) 2 Cr LJ 549. The failure to prove good
faith would exclude the application of the ninth exception in favour of the accused even if
the requirement of public good is satisfied. Harbhajan Singh v State of Punjab 1966 Cr
LJ 82. However, if defamatory statements are made in good faith and for public good,
they are entitled to be protected under this exception even if they are found to be baseless
and incorrect. Re Hari Narayann (1963) 1 Cr LJ 186, AIR 1963 MP 60. The truth of the
imputation need not be proved by the accused for claiming the benefit of this exception.
Kurupanna Goundan v Kuppuswami 1935 MWN 365. If the impugned imputation has
been made in good faith, i.e., after due care and caution, and the move behind it to
safeguard the interest of his daughter, and not to defame the complainant, this exception
would be attracted. Balai v Heerji AIR 1969 Raj 119 In KM Cherian v D Johnson, 1969
Ker LT 597. the report in connection with an offence, published in a daily, was made with
the best of intentions and for the public good. It was factually true and the comment, if
any, was based on the facts and supported by good faith. It was held that the accused was
protected by the ninth exception.
Page 527 of 573
Exception 9—Ingredients

The ingredients of the nineth exception are that (1) the imputation must be made in good
faith; and (2) the imputation must be for the protection of the interests of the person
making it or of any other person or for the public good. MN Damani v SK Sinha 2001 Cr
LJ 2571 (SC).

Exception 9—Burden of Proof of Exception is on Accused

A magistrate cannot, soon after examining the complainant and recording his/her
statement, dismiss the complaint on the ground that the imputation falls under the ninth
exception to s 499, IPC, because the burden, that the case comes under any exception, is
on the accused.

Without there being any material in the complaint or in the sworn statement of the
complainant, it is premature for a magistrate to hold that exception 9 to s 499, IPC, would
apply. Chinnammal v A Subramanyam 1980 Cr LJ (NOC) 154 (Mad). It is for the accused
to plead that he is protected under exception 9 to s 499, IPC. The burden to prove that his
case falls within the ambit of the said exception is on him. Sewakram Sobhani v RK
Karanjia 1981 Cr LJ 894.

Exception 9 Distinguished from Exception 1

The two requirements of the first exception are that the impugned statement must be
shown to be true and that its publication must be shown to be for public good. The proof
of truth, which is one of the ingredients of the first exception, is not an ingredient of the
ninth exception. What the ninth exception requires an accused to prove is that he made
the statement in good faith. Proof of truth of the impugned statement is not an element of
the ninth exception as it is of the first. In dealing with the claim of the accused under the

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ninth exception it is not necessary and, indeed, it is immaterial, to consider whether the
accused had strictly proved the truth of the allegations made by him. Harbhajan Singh v
State of Punjab AIR 1966 SC 97.

Exception 9 Distinguished from Exception 8

The point of difference between exception 8 and exception 9 is that whereas in the former
the person, to whom the complaint is made, must have lawful authority to deal with
subject-matter of the complaint and take proceedings against that person (i.e.,
complainant), there is no such requirement to exception 9 where it is sufficient if a
communication is made to a person for the protection of one’s own interest in which the
other also has an interest. This is clearly brought out by the illustrations to the exception.
Kanwal Lal v State of Punjab (1963) 2 Cr LJ 345.

Exception 10

This exception deals with cases, for instance, where one warns another against
employing a third person in his service saying that he is a dishonest person. Hari
Pada Boidya v Emperor AIR 1930 Cal 645. To bring a case within this exception, it
must be proved that the accused intended, in good faith, to convey a caution to one
person against another, that such caution was conveyed by the proper means.
Thiagaraya v Krishnasami (1892) ILR 15 Mad 214. The gist of the tenth exception is
that the imputation must be made in good faith, U Aung Pe v King AIR 1938 Rang
232 and for the good of the person to whom it was conveyed and for the public good.
Gautam Dev v Mukul Roy 2012 (112) AIC 585 (Cal).Where the complainant was put
out of caste by a meeting of his caste fellows and the accused warned certain other
members of the caste that if they took water from the hands of the complainant, they
would also be liable to be put out of caste, it was held that the action of the accused
was covered by the tenth exception. Umed Singh v Emperor 25 Cr LJ 172.

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S. 500. Punishment for defamation.—

Whoever defames another shall be punished with simple imprisonment for a term which
may extend to two years, or with fine, or with both.

Scope

This section provides the penalty for the simple and plain act of defamation as defined in
the preceding s 499, IPC. Ramesh Chander v State AIR 1966 Punj 93 Filing of private
complaint under s 500, IPC, which ultimately was quashed would not amount to
defamation. Equally, it cannot be stated that the service of summons on the said
complaint would amount to defamation, as the service of summons was only in pursuance
of the order of the court. Surendra Choudhary v State of Bihar and Ors 2003 Cr LJ 2596
(Pat). Accused had lodged complaint bonafidely as to demand for bribe. Complaint was
dismissed and accused was acquitted giving benefit of doubt. Whenever any investigation
is made on information supplied in good faith or without any mala fide intention, then the
person who made the report cannot be prosecuted for the offence under s 500, IPC. No
case for defamation under s 500, IPC was made out, and accused was acquitted of the
charge under s 500, IPC. Bashir Ulla Khan v Mohd Rafi 2006 Cr LJ 3549.

Ingredients

So far as the ingredients of s 500, IPC, are concerned the complainant has to make out a
case of:

(a) making any imputation concerning the complainant by the accused;

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 (b) that such imputation was made by words spoken or written or by sign or visible
representations; and

(c) that such imputation was made with the intention of harming or with the
knowledge or having reason to believe that it would harm the reputation of the
complainant against whom such statement was made. Goutam Sahu and Ors v
State of Orissa and Anor 1999 Cr LJ 838 (Ori).

Artificial/Juristic Person

One of the essential ingredients to constitute an offence under s 499, IPC is either
intention to harm or knowledge or reasons to believe that such imputation will harm the
reputation of the other. Therefore, artificial/juristic persons cannot be prosecuted for
offence under s 500, IPC. Chief Education Officer v Parents Teacher Association 2013
(1) Crimes 172.

Prosecution—Essentials

It is well-settled that a prosecution for defamation cannot be actually instituted unless the
following sine qua non stand fulfilled, viz:

i. an offence has been committed;

ii. its commission has become known; and
iii. its offender is identified.

A prosecution otherwise would be a still-born process which is bad ab initio. M

Chandran v F Fanthome 2003 Cr LJ 2173 (Sikkim).

Proof

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 In order to secure a conviction for defamation under s 500, IPC, the prosecution must
prove that:

1. an imputation against a person (i.e., the complainant) was made or published by the
accused;
2. the said imputation was made by:
a. word, spoken or intended to be read, or
b. signs, or
c. visible representations; and
3. by the said imputation, the accused intended to harm, or he knew or he had reason to
believe that such imputation would harm the reputation of the said person (i.e., the
complainant).

S. 501. Printing or engraving matter known to be defamatory.—

Whoever prints or engraves any matter, knowing or having good reason to believe that
such matter is defamatory of any person, shall be punished with simple imprisonment for
a term which may extend to two years or with fine, or with both.

Scope

An offence under this section is distinct from an offence under the preceding s 500, IPC.
What is made punishable under that section is defamation, whether verbal or written
However, if the matter is otherwise defamatory, the mere printing or engraving of it
would fall under this section if the offender has good reason to believe that such matter is
defamatory. This section does not expressly refer to the publication of defamatory matter

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 or to any intention to cause harm to the reputation of the person against whom
imputations are made. One person may be guilty of defamation and another person, who
prints or engraves it, would be only an abettor of that offence. By the provisions of this
section, such abetment has been made an independent offence by itself. It is however,
possible that a person may be guilty of both offences under s s 500 and 501, IPC, if he not
only makes or publishes defamatory matter, but also prints or engraves it. If the publisher
is also the printer of the newspaper, the case against him would also be covered by this
section, it would not, in any way, affect his liability as a publisher under the preceding s
500, IPC. The publisher cannot escape his liability for the offence under s 500, if the case
be otherwise proved against him, merely because of his having got the issue in question
printed. He cannot also escape his liability by alleging that he had entrusted the selection
of news items to the editor. In Gour Chandra Rout v Public Prosecutor , the accused, the
editor printed and publisher of a newspaper, published statements, grossly defamatory of
the Governor, which were not true, and the accused published the statement neither in
good faith nor for the public good. It was held that the conviction of the accused as editor
under s 500 and as the printer and publisher under s 501 was correct. Where, however, a
declared printer was absent in good faith and the defamatory article appeared without his
knowledge, it was held that this was sufficient for his acquittal.

Proof

In order to establish a charge under this section, prove that:

(a) the accused printed or engraved any matter;

(b) the said matter was defamatory; and

(c) he did so knowing, or having good reason to believe, that it was defamatory of a
person.

S. 502. Sale of printed or engraved substance containing defamatory matter.—

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Whoever sells or offers for sale any printed or engraved substance containing defamatory
matter, knowing that it contains such matter, shall be punished with simple imprisonment
for a term which may extend to two years, or with fine, or with both.

Scope

Section 499, IPC, ante, deals with the general offence of defamation, punishment for
which is prescribed in s 500, IPC. Under the preceding s 501, a person, who prints or
engraves any matter, knowing, or having reason to believe, that such matter is
defamatory, is made punishable. And this section deals with the offence of selling, or
offering to sell, any printed or engraved substance, containing defamatory matter,
knowing that it contains such matter. To constitute an offence under this section, in spite
of the fact that the printed or engraved matter, sold or offered for selling, is a defamatory
matter, it is essential that the offender should then know that the printed or engraved
matter, which he sold, or which he offered for selling, contained defamatory matter. In the
absence of such knowledge, no offence under this section is made. It is possible that the
seller may not have the requisite knowledge though he might have sold a certain
defamatory matter.

Proof

In order to establish a charge under this section, prove that:

(a) the accused sold, or offered for sale, any printed or engraved substance;

(b) the said substance contained defamatory matter; and

(c) he then knew that it contained such defamatory matter.

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Chapter XXII Of Criminal Intimidation Insult and Annoyance

TOPICAL INTRODUCTION

The offences under this chapter are amongst the minor offences in the IPC. Except s 509, all
the offences under this chapter are non-cognisable offences. Therefore, no FIR (First
Information Report) is registered or matter investigated by the police, unless directed by a
judicial magistrate, in respect of these non-cognisable offences. An investigation in respect of
offences under this chapter is often preceded by private criminal complaints filed before
judicial magistrates.

This chapter consists of following 8 sections:

(a) Section 503 : This section defines ‘criminal intimidation’.

(b) Section 504 : It pertains to punishment for intentional

insult to provoke breach of peace.

(c) Section 505 : This section makes statements conducing to

public mischief, creating or promoting
enmity, hatred or ill-will between classes
whether committed at place of worship or
otherwise, punishable under this section.

(d) Section 506 : This section makes the offence of criminal

intimidation as defined in s 503 punishable
under this section. The latter part of this
section being a more severe offence than the
former is punishable with imprisonment for
a term which may extend for seven years or
fine or both, as against the former part of

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 this section which is made punishable with
imprisonment for two years or with fine or
both.

(e) Section 507 : It makes criminal intimidation by

anonymous communication, punishable
under this section.

(f) Section 508 : The punishment for causing or attempt to

cause an act, by inducing any person to
believe that he will be rendered an object of
divine displeasure is prescribed under this
section.

(g) Section 509 : The uttering of word, gesture or act intended

to insult the modesty of a woman is made
punishable under this section.

(h) Section 510 : The punishment for misconduct in public

place by a drunken person is prescribed
under this section.

Criminal Law I Important Cases Laws

● Jurisdiction

1. State of Maharashtra v Mayer Hans George AIR 1965 SC 722

2. Mobarik Ali Ahmed v State of Bombay AIR 1957 SC 857

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3. Pheroz Jehangir Dastoor v Roshan Lal Nanavati (1964) 2 Cr LJ 533

4. The 'Enrica Lexie' Case (Italy v. India)

5. Central Bank of India Ltd v Ram Narain AIR 1955 SC 36

6. Lee Kun Hee V State of UP AIR 2012 SC 1007

7. Emperor v Vinayak Damodar Savarkar (1910) 12 Cr LJ 256(Bom)

8. Om Hemrajani v State of Uttar Pradesh & Anr AIR 2005 SC 392

9. Remia v Sub-Inspector of Police, Tanur (1993) Cr LJ 1098 (Ker).

10. Muhammad v State of Kerala (1994) 1 KLT 464(DB)

11. Samarudeen v Assistant Director of Enforcement, Trivandrum (1995) Cr LJ 2825

(Ker)

12. Muhammed Sajeed v State of Kerala (1995) Cr LJ 3313 (Ker).

Public Servant

13. PVN Rao v. CBI AIR 1998 SC 2120

14. Ramesh Balkrishna Kulkarni v State of Maharashtra AIR 1985 SC 1655

Dishonestly

15. KN Mehra v State of Rajasthan AIR 1957 SC 369

Fraudlently

16. Vimla (Dr) v Delhi Admn (1963) Sup 2 SCR 585

Section 33

17. Emperor v. Bhogilal Chimanlal AIR 1931 Bom 409

18. Om Prakash v State of Punjab AIR 1961 SC 1782

19. Emperor v Gajjan Singh AIR 1931 Lah 27

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20. Sesha Ayyar v Venkatachala Chetty AIR 1924 Mad 487

21. Raj Karan Singh v State of Uttar Pradesh (2000) Cr LJ 555 (All) .

22. PB Desai v State of Maharashtra 2014 Cr LJ 385

Section 34

23. Barendra Kumar Ghosh v King-Emperor AIR 1925 PC 1

24. Mahbub Shah v Emperor AIR 1945 PC 118

25. Pandurang v. State of Hydrabad AIR 1955 SC 216

26. Ram Tahal V. state of UP AIR 1972 SC 254

27. Tara Devi State of UP AIR 1991 SC 342

Excusable and Justifiable Acts

28. State of Orissa v KhoraGhasi 1978 CrLJ 1305

29. State of West Bengal v Shiv Mangal Singh AIR 1981 SC 1917

30. Dakhi Singh v State. AIR 1955 All 379

31. Raj Kapoor v Laxman AIR 1980 SC 605

32. Tis Hazari Court v State of Gujarat. AIR 1991 SC 2176

33. State of Madhya Pradesh v Rangaswamy AIR 1952 Nag 268

34. Raj Karan Singh v State of UP[2000] CrLJ 555 (All)

35. Gopal Naidu v Emperor AIR 1923 Mad 523

36. R v Dudley Stephens [1884] 14 QBD 273

37. Gopinath Ghosh v State of West Bengal. AIR 1984 SC 237

38. Shrikant Anandrao Bhosale v State of Maharashtra [2003] 7 SCC 748

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39. Basdev v State of PepsuAIR 1956 SC 488

40. Emperor v Antar AIR 1925 All 315

41. MirzaZahid Beg v Emperor AIR 1939 All 91

42. VeedaMenezes v Yusuf Khan AIR 1966 SC 1773

43. Nabia Bai v State of Uttar Pradesh AIR 1992 SC 602

44. Jai Dev v State of Punjab AIR 1963 SC 612

45. Balbir Singh Balwant Singh v The State AIR 1959 P H 332

46. James Martin v State of Kerala (2004) 2 SCC 203

Section 511 Attempt

• 4 stages of Crime,3rd Stage: Attempt

• 4 ways of Attempt

• 5 Test

• Case Laws

47. Sudheer Kumar Mukerjee v. State of WB AIR 1973 SC 2655 : (1974) 3 SCC 357->
There was buying and selling of limestone, where one individual would sign on the
challan form that 4 bags have been sent and deliver only 2 bags. Upon verification, it
was found that he was guilty of misappropriation of goods. Whether his acts
amounted to preparation or attempt. It amounted to Attempt-> Overt act->
furtherance of that intention-> for completion of that offence.

48. Malkit Singh v. State of Punjab-> Truck Driver carrying paddy out of Punjab
border. He was stopped few kilometres before the border and held liable for attempt.
Not attempt as he could have changed his mind anytime by the time he reached the
border.

49. Asgar Ali v. Emperor-> Attempt to cause miscarriage by administering wrong

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 medicine. Not attempt to cause miscarriage as the chemicals could not have caused
miscarriage. Wrong chemicals on part of accused. Hence not liable

50. Jivaji Case-> Pickpocket attempted to steal. Pocket empty. Held liable as his act
failed because of accidental circumstances not because of his own volition to not
commit the act

51. Munah Binti Case-> attempt to cause abortion. Same application as jivaji as
accidental non happing of the crime not based on her actions. Overt act committed in
furtherance of the intention to cause abortion.

52. R v. Taylor

53. State of Maharashtra v Mohammad Yakub

54. State v Parasmal

55. Vaikuntham Jaganadham v State of Orissa the accused, a merchant of Salur in

Madras Presidency loaded some bags of rice in a lorry in Orissa State and himself sat
in it and, while it was proceeding towards Salur, it was stopped about 28 miles away
from Madras border by the police and the rice was seized as transport outside Orissa
was prohibited. It was held that there was a clear case of attempt to transport rice in
question without a proper permit. The mere possibility, that before the lorry crossed
Orissa border the accused might have changed his mind and thrown away the rice
somewhere in Orissa, would not suffice to indicate that the act complained of was still
in a preparatory stage, and had not ripened into an attempt.

56. State of Uttar Pradesh v Ram Chandra the accused was transporting wheat by ferry
boat from one block to another across the river and was stopped midstream. He was
prosecuted for contravention of cl 3 of the Uttar Pradesh Wheat (Restriction on
Movement) Order 1949. It was held that the act of the accused amounted to an
attempt to transport the grain.State v Haricharan Rakshit the accused was travelling in
the Puri-Howrah Express, with new cloth which was in excess of the permitted
quantity for export to any place outside Orissa. It was held that the only reasonable
inference that could be drawn was that he intended to take those articles also with him

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 to Howrah and, therefore, he was guilty of attempt to transport cloth in contravention
of the notification in question.

Sections 107 – 109 Abetment

• 3 kinds of Abetment

• 3 Ingredients

57. Queen v. Mohit-> People chanting rama rama to a woman who was setting herself
on fire to perform sati. Their approval of the act enough to constitute abetment by
instigation (Sati case)

58. Faguna Kanta Nath v. State of Assam-> A was accused for abetting the accepting
of a bribe under section 161 by K an inspector. K was acquitted of the offence and
there was no sufficient evidence to prove that A was the one who had paid the
officer Rs.

200. He merely handed over the money. Hence A was not held guilty for the offence of
abetment.

59. Jamuna Singh v. State of Bihar-> A instigated B to burn the hut of C. B was
acquitted of the offence. Whether A should also be acquitted of the offence of
abetment by instigation? Court held No. It cannot be said that merely because a
person is acquitted of committing a certain offence, the instigator should be
acquitted as well. They are two separate offences. A was held guilty of abetment.

60. Protima Dutta v. State -> Victim committed suicide by burning herself. Whether
husband and Mother in law are guilty? Court held that under normal circumstances
cruelty is not a ground to hold one liable for abetment. However, court examined
letter of the victim from 2 years before the incident, where the victim was being
asked to burn herself and kill herself. Mother in law and son held guilty for
abetment.

• Distinction between 107 clause 2 and Section 120 A

• Section 108 and its 5 Explanations

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 • 3 Essentials

61. State of Maharashtra v. Pandurang Ramji -> If A instigates B to murder D and B in

pursuance of the instigation stabs D, but D recovers from the wounds. A is guilty
instigating B to murder, in spite of the fact that the act of B did not produce of the
desired effect i.e. the death of D.
62. Praveen Pradhan v. State of Uttaranchal 2012 (10) JT 478
63. Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460
64. Shri Ram v State of Uttar Pradesh AIR 1975 SC 17
65. Jainoon v State (1990) LW (Cr) 346
66. CBI v VC Shukla AIR 1998 SC 1406

 Section 108A

67. QE v. Ganapatrao Ramachandra -> Held that an offence of abetment in India of an

offence committed in a foreign country is not an offence which is punishable under
the code. Later 108A was inserted to over- rule the decision. Hence, an abettor can
be held liable if he abets the commission of an offence in a foreign state and the
offence is punishable under the IPC.

 Section 109 – Punishment

 3 Ingredients

Criminal Conspiracy

 2 Ingredients

68. Topindas v State of Bombay AIR 1956 SC 33-> The appellant and three others were
accused of forging certain documents and inducing the Controler of Imports to grant
certain import liscences. The other three accused were acquitted of all their charges.
The HC convicted the appellant for the charge of conspiracy. The SC held that in
order to constitute conspiracy, one needs to conspire with another person. A person
cannot alone conspire to do an illegal act. Hence, appellant was acquitted. No
Conspiracy.

69. Ram Narain Poply v CBI AIR 2003 SC 2748-> Harshad Mehta Scam: A-1 to A-5
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 entered into a criminal conspiracy to siphon off the funds of MUL in favour of A-5
for which five transactions took place, even though there was prohibition on granting
loan by Maruthi Udyog Limited to individuals. The appellant contended that he did
not perform any overt act in furtherance of this conspiracy and hence could not be
held liable. Court held that an overt act is not necessary, proof of agreement to do an
unlawful act by illegal means is enough to constitute conspiracy.

 Court laid down 4 elements of Sec. 120 A

70. State of TN v. Nalini AIR 1999 SC 2640-> Rajib Gandhi Murder Case-> The
apex court held that an agreement to do an illegal act itself is enough for the act to
constitute a conspiracy. It is immaterial whether an illegal act is done in furtherance
of that agreement. In this case the appellant alleged that the Courts basis of holding
the appellant guilty of conspiracy was liable to be struck down as the evidence was
based on their illegal possession of a wireless telegraphy machine, through which the
agreement and the details of the act was discussed. Court held them liable for
conspiracy.

71. State (NCT Delhi v. Navjoit Sandhu& Ors-> Parliament Attack Case: The Court
held that the evidence should not be tied to independent acts alone, but the acts of
the conspirators should be clear to indicate some concurrence to the common design
and its execution.

72. Ajay Aggarwal v UOI 1993 AIR 1637-> Appellant was a NRI in Dubai and
conspired with 4 others to defraud Pubjab National Bank. The appellant did not visit
India, and set up certain foreign accounts with the bank in order to defraud the bank
and obtain illegal moneis. The appellant when convicted held that he has never
visited India and hence cannot be subject to the laws on India. The Court held that
since the place of the crime was in Chandigarh, even though the appellant had never
entered our country, he was liable to be tried acc to our laws. Appellant held liable
for conspiracy. (Emphasis laid on Mubarak Ali v State of Bombay- A merchant in
Pak took money for delivery of gods to India and never delivered them. Court held
since place of crime was Ind, accused was bound by Indian Laws).

73. Pramatha Nath Talukdar v Saroj Ranjan Sarkar (1962) 1 Cr LJ 770

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 74. Yashpal v State of Punjab (1978) Cr LJ 189, AIR 1977 SC 2433

75. R Balakrishna Pillai v State (1996) Cr LJ 757 (Ker).

76. Pravindbhai Kashiram Patel v State of Gujarat 2011 Cr LJ 3174

77. Dharmarajan v State of Kerala 2014 Cr LJ 3162

78. Surekha Singh v State of Madhya Pradesh 2014 Cr LJ 1194 The accused husband
was already married, still, he got married to the prosecutrix, and had sexual
intercourse with her, without disclosing his earlier marriage to the prosecutrix.
Prima facie a case under s 376, IPC was made out against the accused. The parents
of the accused husband residing with him did not disclose the fact of earlier marriage
to the complainant, and were part of the conspiracy; thus, they can be prosecuted
under s 376, IPC, read with ss 120B and 34, IPC.

79. Sanjay Dutt v State of Maharashtra 2013 Cr LJ 3538

80. Definition: Mulcahy v. R -> The defendants appealed sentences of 7.5 and 3 years
for conspiracy to facilitate illegal immigration. They had hired lorries with a view to
bringing people in It was submitted that the sentences were outside the powers under
the Act. The Court dismissed the appeal and said that “When two or more agree to
carry a criminal scheme into effect, the very plot is the criminal act itself, the
conspiracy.”

Offences against State

 Sec.121

 4 ingredients

81. R.v Gordon: Definition-> There are two kinds of war against the king; the first is to
imprison, dethrone or kill him and the second is to use force and violence against the
general public nature to overturn the existing govt, destroy the king and restrain him
from reigning acc to law.

82. State v. Navjot Sandhu -> Parliament Attack Case-> 5 armed men entered the
Parliament building with rifles and started to fire against the people in the Parliament
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 building. The Court held that the parliament building is a symbol of sovereignty of
the Indian republic and entering the Parliament is an attempt to destabilize the
Government. The terrorists were also indulging in jihad operations with a definite
purpose to destabilize the govt. Held liable u/s 121.

83. Vasu Nair v Travancore - Cochin State AIR 1955 Trav-Co 33-> In this case the
court held that any person can resort to delivering public speeches and garner public
opinion in order to bring about a change through peaceful means. Merely because
the accused used words like fight and war, does not mean he intendd to wage war
against the govt. The objective of the person needs to be taken into consideration.

84. Emperor v. Surya Kumar Sen AIR1934 Cal 221-> Ever since the accused’s release
from detention, he had been plotting against the government and had done acts
without any regard to human life. He was guilty of waging war against the
government and liable for murder and abetment of murder.

85. Emperor v Ganesh Damodar Savarkar 34 ILR Bom 394

86. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra AIR 2012 SC
3565

87. State of Gujarat v Jaman Haji Mamad Jat, 2007 Cr LJ 1584

88. Md. Jamiluddin Nasir v State of West Bengal 2014 Cr LJ 3589, AIR 2014 Cr LJ 2587
In an earlier incident, one person of the ‘Jehadi’ group was killed. The accused
persons in order to take revenge attacked the American Centre causing the death of
five police personnel and injuries to others. As many as seventeen persons including
the two accused appellants participated in the attack. The accused were found guilty
for waging war/attempting to wage war against the Government of India. The attack
was supported by foreign nationals. On the facts and circumstances of the case, the
imposition of death sentence on the appellants AF and N was held not warranted, the
accused appellant N was sentenced to imprisonment for minimum thirty years without
remission and accused AF was sentenced to imprisonment for entire life.

89. Manmohan Singh v State AIR 1969 Punj 225

90. VR Nedunchezhian v State (2000) Cr LJ 976 (Mad)

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91. Mir Hasan Khan v State AIR 1951 Pat 60

92. Maganlal Radhakishan v Emperor AIR 1946 Nag 173

 121A Conspiracy to commit S121

 2 Kinds

93. SH Jhabwala v. Emperor ILR (1933) All 1040 (Meerut Conspiracy case)-> The
ccused formed unions on the lines of Soviet Russia and pled their allegiance to them
The court held that one cannot be punished u/s 121 A, unless they collect arms and
perform an overt act to destabilize the govt machinery. Forming a union is not a
crime u/s 121A.

94. Mir Hassan Khan v. State of Bihar AIR 1951 Pat 60-> Police officers in Bihar
went on a strike and left their official guarding positions and formed a barrier of
sorts arounf the armoury. The armed forces surrounded them and a fight broke out
and some officers were killed. Court held that this is not waging war against the
government, but is a form of civil war and hence can be held liable for mutiny.

95. Nazir Khan v State of Delhi AIR 2003 SC 4427

96. Ashok Kumar v Union of India AIR 1991 SC 1792

97. Satpal v State of Haryana and another AIR 1993 SC 1218

 Section122 :even preparation is a crime

 Section 123: even concealing the design with an intention to wage war is a crime.

98. NCT v. Navjoit Sandhu-> See previous explanations.

99. Shaukat Hussain Guru v. NCT Delhi -> One of the conspirators in the Parliament
attack case. However, the Supreme Court only held him liable for concealing with
intent to wage war against the government of India. He knew of the plan to attack
over the parliament over a call, and did not perform any overt act to stop the

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 conspirators and was hence held liable for concealing.

Sec.122

100. (Javed alias Java Ahmed Mohammed Akbar Bhatt & others v State of
Maharashtra (2007) Cr LJ 1386 (Bom) (DB)

Section 124

101. Alvi v State of Kerala (1982) KLT 205

102. Bengal Immunity Co Ltd v State of Bihar AIR 1955 SC 661

a. 124A Sedition

103. Tara Singh Gopi Chand v State: The section 124A was struck down as being
unconstitutional and being contrary to the freedom of speech and expression under
article 19 of the Constitution.

104. Kedar Nath v State of Bihar: Struck down Tara Devi and said that 124A goes hand
in hand u/Art 19 of freedom of speech and expression. Court held that 124A does not
put a bar on any form of expression about the government, but only when such an
expression excited feeling of hatred towards a govt and creates disloyalty will it be
considered a crime against the state.

105. Niharendhu Majumdar v Emperor: Gave a liberal interpretation to the Section and
held that anticipation or instigating public disorder is enough for it to constitute
sedition. When there is loss of respect for the govt, public disorder follows which is
followed by anarchy. Hence, the court said that only when one’s actions results in
public disorder should the court brig in 124A. This case was struck down and the
interpretation of QE V Balgangadhar Tikal restored.

106. QE v. Balgangadhar Thilak cases-> Whoever attempts to induce mere enmity in

the govt in the minds of people is liable under this section. It is not necessary that he,
with his words or expression tried to induce a rebellion against the govt. Creating
feeling of enmity is enough.

107. QE v. J. C Bose Definition of ‘Disaffection’-> Disaffection means the contrary of

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 affection, in other words dislike or hatred. Disapprobation means to disapprove of
something, but does not always result in hate. Any person who by words,
expressions, written or oral attempts to create a feeling of dissatisfaction against the
govt, which results in a feeling of hate towards the govt and the existing machinery
will be held liable for Sedition.

108. Queen-Empress v Ramchandra Narayan 22 ILR Bom 152 (FB)

109. Emperor v Sadashiv Narayan Bhalerao AIR 1947 PC 82

110. Balwant Singh & Anor v State of Punjab AIR 1995 SC 1785

Public Tranquility

a. Section 141- 143. definition of Unlawful Assembly

b. 3 essentials

c. Conditions

111. Mohan Singh v State of Punjab-> In this case 10 people were mentioned in the
charge sheet out of which 5 could not be caught and identified. The HC acquitted
two of the other members for charges under 302 r/w 149 and convicted the other 3
for being members of the unlawful assembly. The SC held that 3 persons does not
constitute an unlawful assembly and cannot be convicted. (min 5 people to constitute
unlawful assembly.)

112. Acchi Lal v State of UP-> Charge of 203 r/w 149. Out of the 15 accused for
assaulting the deceased 14 were acquitted. Sole person cannot be held guilty for
criminal conspiracy.

113. Ramprit Ahir v State-> (Comes under the 2nd object of an unlawful assembly- to
resist a legal process. However, the court has held that, when a process done by legal
persons is not legal, resistance to an illegal process is not illegal) In this case, the
police got a tip that certain individuals were waiting near a railways line to commit a
robbery in the oncoming train. The police went near the railway line and caught a
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 group of persons and a fight started between the individuals and the police. The court
stated that the accused cannot be held liable for resisting the arrest as the arrest of the
persons itself not legal. Nothing to prove that such a plan of robbery existed. The
police just found a random group of individuals and arrested them without cause.

114. Pagla Baba v State of Orissa-> -> (Comes under the 2nd object of an unlawful
assembly- to resist a legal process. However, the court has held that, when a
process done by legal persons is not legal, resistance to an illegal process is not
illegal) In this case the Police entered a religious math, in search of arms. When the
priests resisted such an act cannot be termed as resisting a process of law as the
arrest itself was illegal.

115. Ram Bilas Singh v. State of Bihar -> SC identified situations where a group of less
than 5 persons can be held liable for unlawful assembly. If the court finds that there
were several other persons apart from those charged in the charge-sheet who had the
same common object and ill intention as the accused. Second, if the evidence and
FIR prove an unlawful assembly even if it not mentioned in the charge-sheet and
third, if the prosecution and the Prosecution witnessed mention that only the accused
(either acquitted or convicted) were part of the unlawful assembly and the court
finds evidence of more persons who were part of such an assembly, then such
persons can be held liable for unlawful assembly. (IMP:- The court upon finding that
more persons have participated in the offence, cannot increase the sentence or
punishment of the accused for failing to mention that there were more persons
involved.)

116. Mukunda v State AIR 1957 Raj 331

117. Masalti v State of Uttar Pradesh AIR 1965 SC 202

a. Section 146 - Rioting

b. 4 essentials

118. Vasu Nair v Travancore - Cochin State AIR 1955 Trav-Co 33-> At about 11

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 p.m. an organised body of persons attacked the Inspector of Police, Adoor and a
party of Police constables who were camping with him at Sooranad in Kunnathoor
Taluk, while they were on patrol duty, and murdered the Inspector and three Police
constables and also caused hurt to some of the other police constables in the party.
The court found that there was an unlawful assembly and a riot under section 141
and 146 of the code. In addition to this the accused were also held liable under
Section 148 and 149 for carrying deadly weapons and committing riot. There was no
evidence to show who had inflicted which injury to the victim so the court
“constructively” held them liable under Section 141.
119. Hazara Singh v State of Punjab (1971) 1 SCC 529-> firing shots on police party
in darkness-No evidence that shots were fired in direction of members of police
party- Offence of attempt to murder could not be said to be made out-Firing of
such shots is not use of force as defined in s. 349-Offenders even though more than
five do not commit a riot within meaning of s. 146- Cannot be held guilty of
offence under
s. 148. Court said that force or violence must be used in furtherance of common object of the
assembly. If common object different then no riot.

a. Sec.147 Punishment

b. Section 148 &149

c. 2 conditions

120. Umesh Singh v. State of Bihar (2000) 6 SCC 89-> Accused 1 and 2 went in an
unlawful assembly of 20 people with lathis and guns to Bhola Singh’s Paddy field
where they tried to snatch away paddy and said that any resistance will be met with
death. Accused 2 picked up a child and threw him on the floor resulting in his
death. HC held the members liable for riot but gave reduced sentence to accused 1
and 2. SC reversed decision and said the object of the assembly was clear that if one
resisted their acts it would be met with death hence punishment should not be
reduced

 Liability

121. State of Rajasthan v. Nathu (2003) 5 SCC 725-> 5 accused had long standing
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 enemity with complainant and entered his house with lathis, but on not finding him
there butchered his children. HC held one person who struck the fatal blow liable
and acquitted the rest. The SC convicted all of them, for they had a ore-meditated
common intention to commit a crime and the change in victim is not a factor for
dismissing the charges of 149.

122. Shambhu Nath Singh AIR 1960 725-> The court held that all members of an
unlawful assembly will be held liable for acts done by other if they had knowledge
that such acts would be committed, irrespective of them committing the acts or not.
However, if it is proved that different persons in the assembly has different degrees
on knowledge then sec 149 cannot apply and they will be held guilty according the
level of knowledge they possessed about the crime.

123. Lalji &Ors v. State of UP 1989 CriLJ 850-> An appeal was filed in SC against the
decision of the HC acquitting two accused for not being part on an unlawful
assembly. Court looked into the matter and held that there is an unlawful assembly,
however the acquitted were did not have a common object with the rest of the
assembly and will be held liable for their individual acts and not for 302 r/w 149.

124. Shivaji Singh v State of Bihar AIR 2009 SC 413-> In this case the accused went
to one Bhagwan Singhs house and sarted quarrelling with him. Villagers assembled
and asked accused to stop the quarrel. However, accused along with his family
members carried guns, brick pieces and sticks, went on the roof top of accused’s
house and strted pelting stones at bhagwan singh’s house. Accused asked his son
Ambika Singh to open fire from his gun. One shot killed a villager and other shots
injured various others. Not an unlawful assembly as the accused shared no common
object or pre-mediated plan.

125. Maiku v State of Uttar Pradesh : AIR 1989 SC 67

Affray

126. Podan v State of Kerala (1962) 1 Cr LJ 339

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Offences Against Human Body

 Offences affecting Life Ss. 299 – 318

 S.46 Death

 2 kinds of lawful Homicide i. justifiable and ii. Excusable

 Unlawful Homicide are dealt within Ss. 299 - 318 of IPC

 8 categories of homicide:

i. Culpable Homicide 299

ii. Murder 300

iii. Transfer of Malice 301

iv. Death by Negligence 304A

v. Dowry Death 304B

vi. Abetment of Suicide 305

vii. Attempt to Murder and CH 307 & 308

viii. Attempt to Commit Suicide 309

• Hurt & Grievous Hurt 319 -325

• Kidnapping and Abduction 359 – 363, 365 – 373 (General Understanding)

• Sexual Offences 375- 377 & 354 – 354D

• Offences relating to Marriage 498A, 304B & 306

Section 299 & 300

• 3 Essential elements

• 3 degree of Culpable Homicide

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 • 3 kinds of Mens Rea

• Sec.46 Death

• Distinction between 299& 300

127. R v. Govinda-> The accused and his wife were having a quarrel. The accused
kicked the victim and hit her on her back several times. Then the victim fell on the
floor and the accused placed one knee on her chest and hit her eye with a closed fist.
After which her eye protruded out, caused a rupture and she died on the spot. The
accused was charged with murder. However, the Court held him liable for culpable
homicide not amounting to murder as he had no intention to cause murder and in
normal circumstances such a blow would normally not result in the death of the
victim.

128. Virsa Singh State of Punjab-> The accused struck the victim with a knife and
caused a blow to his abdomen which injured his bowels. The Court held him liable
under Section 302 as a prudent man could have reasonably foreseen that such an act
will cause a bodily injury that is likely to cause death.

129. Anda v. State of Rajasthan-> A fight broke out between A and B after which B
sustained some injuries and no police complaint was lodged. The next morning
relatives of B proceeded to the police station in order to lodge a complaint. While on
the way, the Accused Anda Ram and another started to hit the deceased with lathis
and threatened to kill the other relatives if they came closer. The deceased was left
with several bodily injuries and died later. The appellants pleaded that the sentence
be change to Culpable Homicide. However, the court reaffirmed the decision in
Virsa Singh v State of Punjab and held that the accused are guilty u/s 302 as they
had the intention to cause such a bodily injury that is likely to result in death.

130. Kapur Singh v. state of Pepsu-> In this case the appellant struck several injuries to
various parts of the body of the victim. This was in revenge of the fact that the
victim’s father had struck the leg of the appellant’s son and the leg had to be
amputated. The Court altered the charge of Murder to culpable homicide on the
ground that the accused had no intention to cause harm and had no intention to cause
such bodily injury to result in death.
Page 553 of 573
131. State of Andhra Pradesh v Rayavarapu Punnayya AIR 1977 SC

132. Ruli Ram and Anor v State of Haryana (2002) 7 AD 492 (SC) ;

133. Ramakrishnan Nair alias Raju v State of Kerala 2000 Cr LJ 416 (Ker) (DB)

134. Saju v. State of Kerala (2001) 1 SCC 378

135. Dilipbhai Madhubhai Patel v State of Gujrat 2003 CR LJ 565

136. BD Khunte v Union of India 2015 Cr LJ 243 (SC), KM Nanavati v State of

Maharashtra AIR 1962 SC 60.

137. Anguri Devi v State of Jharkhand 2007 Cr LJ 1074 (Jhar).

138. Biswajit Halder alias Babu Halder v State of West Bengal 2007 Cr LJ 2300
(SC).

139. Gurdeep Singh v State of Punjab (2011) 2 SCC 408.

 5 Exception to Section 300

 6 conditions for invoking the Exceptions

 3 conditions

 1st exception Sudden provocation

140. Resonable man’s test – K.M.Nanavati v State of Maharashtra – 4 conditions

a. The test is whether a reasonable man in the same situation would be

provoked and lose his self -control?

b. Words and Gestures can also cause grave and sudden provocation u/s 300

c. Mental background of the previous acts of the victim needs to be taken

into consideration which could have resulted in a provocation in a future
act.

d. Fatal blow should have arisen after the grave and sudden provocation and
not after the person has cooled down.
Page 554 of 573
 141. Muthu v. State of TN decided on 5.11.2007 by J A.K Mathur and Markandey
Katju.-> In this case the accused had a shop and the deceased was a rag picker who
would throw waste into his shop every day. The accused one day picked up a knife
and stabbed the deceased to death. As there was no pre-mediated plan or intention to
cause death, the court held him liable for culpable homicide. The court held that
constant harassment may lead to a situation of loss of self-control and thereby cause
grave and sudden provocation.

 Exception 2

142. State v. Adra AIR 1958 Raj 52-> Accused was in peaceful possession of his
property. The accused started to plough his property one day and the complainant
along with a

few other tried to sto the accused and drive a claim over his land. A fight started the result of
which the deceased being part of the complainant’s gang suffered blows to his ribs and body
and later died. The court held that this case falls within the 2nd exception to Section 300 and
the accused cannot be held guilty for murder has he did not wilfully start any aggressive act.

143. Lachhmi Koeri v. State of Bihar AIR 1960 Pat 62-> A sub-inspector deputed a
Havaldar and a constable to arrest the accused but gave no order in writing. The
havildar was dressed in plain clothes. When the havildar went to arrest the accused, a
fight broke out between the two and the havildar tore the shirt of the accused. As a
result of this, the accused removed a knife and injured the hand of the havildar who
fell into a drain while still holding on to the accused. As a result of this the accused
fell on the havildar in the drain and ended up inflicting several blows to the havildar
which resulted in his death. The court held that although he could have not
reasonably foreseen that the deceased was an officer, the amount of injury inflicted
was far greater than what was necessary and held him liable for murder u/s 302.

 Exception 3

144. Dukhi Singh v. State AIR 1955 All 379-> The accused was a police officer who
was on duty near a train and saw a man suspiciously loitering around the train. When
he caught the man and took him aboard the train to investigate, the man jumped out

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 of the train when it started moving and absconded. The officer thought that the
railway fireman had concealed him, he went to ask him the whereabouts of the man
and said that he would shoot at him (the absconding thief). Subsequently, when the
fireman questioned the officer as to why he would shoot at the thief the officer shot
the fireman and killed him. He was held liable under s/302 for murder. The court
held that he has surpassed his official powers and committed an offence without
cause and thus the case will not fall under the 3rd exception to Section 300.

 Exception 4

 5 ingredients

145. Suraj Mal v. Union Territory of Chandigarh AIR 1992 SC 599-> The accused
and his brother went to attend to natures call after consuming alcohol. On the way
back the deceased asked them accused as to why he decided to sell off all his
property to which the accused replied that it is his property and he can do whatever
he likes. This started a fight between the two where the accused pulled out a knife
and stabbed his brother. The court held that this case falls under exception 4 of
section 300 as there was no intention to kill the deceased neither had the accused
used any unfair advantage or indulged in any cruel behaviour.

146. Sukhdev Singh v. NCT Delhi (2003) 7 SCC 441-> The accused was a security
officer who asked the deceased to not park near his employers parking. As a result,
when the deceased objected the accused took out his pistol and the deceased tried to
snatch the pistol and this resulted in a shot being fired, thereby killing him. The court
held that this falls under the 4th exception to Section 300 as all the 5 conditions have
been met.

147. Suresh Chandra v. St. of UP (2005) 6 SCC 130-> In this case, the deceased in a
marriage ceremony remarked that the dancers have become tired so the groom’s side
should start dancing. This led to a heated argument and verbal abused after which 3
men from the grooms who were carrying arms shot at the deceased and another
family member, thereby killing them. The court held that the 4 th exception under
section 300 could not be attracted and the accused was held liable for murder u/s
302.

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  Exception 5

148. Dasrath Paswan v. State of Punjab AIR 1958 SC 190 -> The accused was a
student of class X and had failed in his exams for 3 continuous years. As a result of
this he was

visibly depressed and decided to end his life and informed his wife about the same.
The wife asked him to kill her first and then kill himself. As a result of her words he
killed his wife but was arrested before he could kill himself. The court held that the
wife had consent to being killed without any coercion, or any force and out of her
own will. Due to this the accused was held liable for culpable homicide under
Exception 5 of Section 300.

 302 & 304 Punishment

149. Gyanendra Kumar v. St of UP AIR 2005SC 502 (302)-> (Pertaining to section

301 of IPC) In this case B in a school committee meeting remarked that all the seats
in the authority are being taken by the accused’s father and uncle and are being
manipulated. The accused then went to his house and brought his gun by which time
the meeting had ended. The accused then asked everyone to move away from b and
pointed the gun at him. The deceased, who was the maternal uncle came in between
B and the Accused and was killed. Court held that the person is not liable for
culpable homicide as there was no grave and sudden provocation and held him liable
under section 301 r/w 302.

150. Bhagwan Singh v The State Of Uttarakhand-> The accused in his sons marriage
ceremony fired celebratory shots and this killed two people who are the deceased.
The court held that since the accused did not have any intention to kill the deceased,
he cannot be held guilty of murder u/s 302. However, he cannot be absolved of the
charge of carrying a loaded gun into a crowded place and not taking any safety
measures for its use and was hence held liable under Section 304 for culpable
homicide not amounting to murder.

151. Kunwar Pal v. State of Uttarakhand-> The accused and two others carried
guns to a marriage ceremony to fire shots to celebrate. Though this was opposed by

Page 557 of 573

 the hosts of the marriage the accused fired shots which hit the neck of the deceased
thereby killing him. The court held that it could not be said that the fatal shot was
fired from the appellant’s gun only. There was no intention to kill that was
established beyond a reasonable doubt. Hence accused held liable under Part 2 of
section 304 for culpable homicide.

152. State of U.P v. Sahrunnisa & Another-> In this case the two deceased were 2
children of the accused who were killed as a way of sacrifice and the accused stated
that they would come back to life. The accused were Accused 1- father of the
children, accused 2- paternal aunt were involved. The accused 3 was the mother and
accused 4 was the husband of Accused 2. They were all charged for committing
murder under section 300, 302 r/w Section 34. The court convicted Accused 1 and 2
for this charge but acquitted Accused 3 and 4 as they had no intention to kill the
boys and had no pre-mediated plan to commit such an act. They were mute
spectators to the entire incident and could not be held liable as they had not
performed any overt act in furtherance of the common intention; no intention to kill.

153. Kripal Singh v. State of UP-> In this case the 3 accused went to the field of the
deceased whose ownership was a longstanding dispute between the two. They
carried weapons with them. Two labourers were walking towards the field of the
deceased and the accused shouted at them not to work there. As a result of this a
fight started between the 2 labourers and the accused. X tried to intervene and in the
fight a stabbed the deceased with a spear through his head and he died instantly. The
court held the accused 1 (one who killed with the spear) guilty of murder. However,
the court acquitted the other two accused of charged under 302 r/w section 34as
there was no common intention between the three of them to murder. There existed a
common intention to cause hurt and hence the other 2 accused were held liable for
causing grievous hurt u/s 326 r/s 34.

154. Umesh Singh v. State of Bihar-> The accused was 13 years old at the time of the
crime and was charged with murder and causing grevious hurt with 2 others who
were not minors. The Court found that the accused being a minor had not had a
separate trial as stipulated under the CrPc either in the trial court or the High Court
and held that in such circumstances, the sentence is to be set aside and acquitted him

Page 558 of 573

 of all charges.

155. BD Khunte v Union of India 2015 Cr LJ 243

156. Madhavan v State of Kerala AIR 1966 Ker 258

157. Gurubasavaiah v State of Karnataka 1979 Cr LJ 603

158.  Raj Kishore Jha v. State of Bihar and Ors 2003 (4) RCR (Criminal) 935

159. Bittu v. State of Uttaranchal (2006) 3 Supreme Court Cases (Cri) 328

160. Bhagwan Singh v. State Of Uttarakhand

161. Kunwar Pal v. State of Uttarakhand

Section 301

162. Jagpal Singh v. State of Punjab (1991) Cr LJ 597 (SC)

163. State of Maharashtra v. Kashirao AIR 2003 SC 3901

164. Ballan v. State of UP AIR 1955 All 626

165. Gyaneder Kumar v. State of Uttar Pradesh AIR 1972 SC 502

 Section 304

 2 Parts

 Part 1 - based on Intention

 Part 2 – under exceptions of S.300

 5 Distinctions

 Different punishments based part 1 & 2

 Section 304A Death by negligence

166. 4 Principles of criminal liability laid down in R v. Adomado (1993) 4 All ER 935->

Page 559 of 573

 Doc- failed to notice that the supply for oxygen had stopped during an eye operation
and the patient died. To establish negligence, the following principles of law will
apply:-

a. Whether defendant was in breach of duty of care

b. Whether the breach of duty of care caused the death of the victim. If yes is
it gross negligence?

c. Negligence will depend upon the seriousness of the breach caused

d. In essence, negligence can be established as manslaughter without going

into the defendants state of mind during the act.

 3 Essential Ingredients

167. Cherubin Gregory v. State of Bihar Air 1965 SC 205-> Appellant charged u/s
304A for the death of Ms. Madilen. The accused installed an electrically charged
copper wire, in order to keep intruders out from using his latrine. Since the latrine
wall of the deceased had broken, and was exposed to public view, the deceased came
to the accused’s house. It was proved that the accused had installed the live copper
wire, the wire was live and naked and electrically charged and the accused had
issued no warning that such a wire exists. The deceased entered the house of the
accused but missed the wire; on another occasion here hand touched the wire and the
shock killed her instantaneously. The accused was held liable as keeping a live
electric wire of that voltage was a rash act and he had also acted negligently by not
giving a warning about the existence of such a wire.

168. Re Kudumula Mahanandi Reddi AIR 1960 AP 141

169. Hansa Singh v State of Punjab AIR 1977 SC 1801

170. Gulab Singh v State of Rajasthan 1974 WLN 168

Sec.304A

171. State of Tr PS Lodhi Colony, New Delhi v Sanjeev Nanda 2012 Cr LJ 4174

Page 560 of 573

 172. Emperor v Omkar Ram Pratap 4 Bom LR 679

173. Kurban Hussein Mohamedalli Rangawalla v State of Maharashtra AIR 1965

SC 1616  

174. Sheo Pershan Singh v State of Uttar Pradesh 1979 Cr LJ 517

 Offences relating to marriage

 Sections 304B Dowry Death (S.113 B of Indian Evidence Act)

 498A Cruelty of Woman (S.113 A of Indian Evidence Act)

 306 Abetment of Suicide

Sections 304B Dowry Death

• Clause 1 defines Dowry Death while Clause 2 deals with Punishment

• The Explanation to Clause 1 gives clarity to the term ‘Dowry’

• 5 Essentials of Dowry Death

175. Shard Birdhichand Sarada v. State of Maharashtra- The case pertains to the
death of one Manju who was the wife of the main accused (Sharad Birdichand
Sarda). The facts surrounding her death and evidences put forth paint a rough sketch
of the events leading up to the unfortunate death.The deceased was in an unhappy
marriage. She was depressed and sad about the ill-treatment she received by her in-
laws and her husband. Even the court observed that she was a sensitive person
and was depressed. The

supreme court held that The conviction awarded by the lower courts was based loosely on
appreciating circumstantial evidence and by shifting the burden of proof on the accused. The
court laid down that the onus of proving the guilt rests on the prosecution, and the inability
to defend oneself extensively should not be attributed to the accused is a negative manner.
The facts and the hypothesis should be in line and there should be apparent coherence

Page 561 of 573

between the two to be able to accept the circumstantial evidences against the accused. The
sequence of the events must be such as to not leave any reasonable ground in favour of the
innocence of the accused.

176. Hans Raj v. State of Punjab-> The victim was found dead at her matrimonial
home 3 years after marriage and upon post mortem the doc found varius bruises all
over her body and also found that her jaw had been hit. The victim was never
allowed to visit her parents’ house and her parents were not informed about her
death. The husband, FIL, MIL, BIL and his wife were held guilty for Dowry Death.
They harassed her for a two-wheeler and a refrigerator which was given. They also
harassed her for a colour TV which was given, but the harassment did not stop. Apex
Court held all husband and his relatives mentioned above guilty.

177. State (Delhi Adminstration) v. Laxman Kumar and

178. Indian Federation of Women Lawyers v. Shakuntala :- Sudha (Deceased) was

married to Laxman Kumar, and the second accused is the mother; Shakuntala and
third accused is BIL, Shubash. Sudha was living with her BIL and fam and her
husband’s two younger bros (unmarried) and the MIL would visit them some times.
The neighbours in the night heard her cry for help and found her to be ablaze and
running around the house. She was also due to deliver anytime soon. While on the
way to the hospital Sudha pointed to her MIL as her Killer and stated that her
husband set her ablaze with the help of BIL. They were also not happy with the
amount of dowry given and were harassing her for more which she refused to do.
The Trial Court Convicted them, but the HC acquitted all 3 as they believed the story
of the accused that it was accidental, and that the deceased had died when her clothes
caught on fire while cooking. The SC restored the decision of Trial Court and said
that evidence itself point otherwise since the stove was on the floor and it was
impossible for a pregnant woman to bend to a stove on the floor and cook and held
them guilty for dowry death. Not only this but they also awarded them with
imprisonment for life as they committed an atrocious degree of dowry death.

179. Subedar Tewari v. State of UP-> Deceased Veena, was an extremely intelligent
woman with MSc in Botany. She was married to Dr. Narendra. Within 7 months of
the marriage Veena was found murdered through burn injuries. The Husband was
Page 562 of 573
 found to be having an illicit relationship with his 20-year-old niece and another illicit
relationship with his sister Meera. The milkman went to deliver milk and found the
decease’s body on fire and that the sister and husband were doing nothing to prevent
it from containing. Held liable u/s 304B.

180. Biswajit Halder alias Babu Halder v State of West Bengal 2007 Cr LJ 2300

181. Gurdeep Singh v State of Punjab (2011) 2 SCC 408

182. Rajinder Kumar v State of Haryana 2015 Cr LJ 1560 (SC)

183. Kaliyaperumal v State of Tamil Nadu 2003 Cr LJ 4321 (SC)

498A Cruelty of women

 Definition of Cruelty

184. Shard Birdhichand Sarada v. State of Maharashtra- The case pertains to the
death of one Manju who was the wife of the main accused (Sharad Birdichand
Sarda). The facts surrounding her death and evidences put forth paint a rough sketch
of the events leading up to the unfortunate death.The deceased was in an unhappy
marriage. She was depressed and sad about the ill-treatment she received by her in-
laws and her husband. Even the court observed that she was a sensitive person and
was depressed. The supreme court held that The conviction awarded by the lower
courts was based loosely on appreciating circumstantial evidence and by shifting the
burden of proof on the accused. The court laid down that the onus of proving the
guilt rests on the prosecution,

and the inability to defend oneself extensively should not be attributed to the accused is a
negative manner. The facts and the hypothesis should be in line and there should be
apparent coherence between the two to be able to accept the circumstantial evidences
against the accused. The sequence of the events must be such as to not leave any reasonable
ground in favour of the innocence of the accused.

185. Inder Raj Malik v. Sunita Malik: Complainant was married to Accused 1 and
Accused 2 was mother in law and Accused 3 and 4, were brothers in law of
complainant. The accused forced the complainant to have their wedding in Taj
Page 563 of 573
 which meant more expenses. The victim was beaten, tortured and starved in relation
to dowry demands. The victim also fainted in her matrimonial home due to such
pressures and no doc was called. The accused contended that the section 498A of
IPC is ultravires to Article 14[ii] and Article 20(2)[iii] of the Constitution of India.
The Dowry Prohibition Act 1961also deals with cases involving similar subject
matter, and when we follow two statues which deal with the same subject matter, it
leads to double jeopardy. Delhi High Court negated this contention and held that
double jeopardy does not arise in such a situation. Section 4 of the Dowry
Prohibition Act 1961 talks only about the penalty for demanding dowry, and
elements of Section 498A are not necessary conditions to attract Section 4 of Dowry
Prohibition Act 1961. Husband and family members held liable. Their appeals were
dismissed.

Section 306 Abetment of Suicide

186. Shard Birdhichand Sarada v. State of Maharashtra-> The case pertains to the
death of one Manju who was the wife of the main accused (Sharad Birdichand
Sarda). The facts surrounding her death and evidences put forth paint a rough sketch
of the events leading up to the unfortunate death.The deceased was in an unhappy
marriage. She was depressed and sad about the ill-treatment she received by her in-
laws and her husband. Even the court observed that she was a sensitive person and
was depressed. The supreme court held that The conviction awarded by the lower
courts was based loosely on appreciating circumstantial evidence and by shifting the
burden of proof on the accused. The court laid down that the onus of proving the
guilt rests on the prosecution, and the inability to defend oneself extensively should
not be attributed to the accused is a negative manner. The facts and the hypothesis
should be in line and there should be apparent coherence between the two to be able
to accept the circumstantial evidences against the accused. The sequence of the
events must be such as to not leave any reasonable ground in favour of the innocence
of the accused.

Page 564 of 573

187. Queen v. Mohit Pandey: People chanting rama rama to a woman who was setting
herself on fire to perform sati. Their approval of the act enough to constitute
abetment by instigation (Sati case)

188. State of Punjab v. Iqbal Singh: In this case the victim was married to the accused
and killed herself and her three children by setting them ablaze. The husbands
mother and sister were also held liable for abetment. The wife was subject to
harassment by husband and relatives, and when she approached the police for
instituti9on od divorce proceedings, the husband’s relatives came and stopped her.
When she attempted to use her hard-earned money through her job as a school
teacher for herself, the husband would steal it from her or beat her up if she didn’t
hand over the money to him. He also abused her for dowry. Husband, mother and
sister held liable for abetment to suicide.

189. Sanj alias Sanjay v State of MP: The charge-sheet filed against the accused was
liable to be quashed, as words like “go kill yourself” said in a heated quarrel in the
spur of the moment cannot be held as abetment to suicide. It was said in a fit of
anger and emotion.

190. Protima Dutta v. State of WB- Victim committed suicide by burning herself.
Whether husband and Mother in law are guilty? Court held that under normal
circumstances cruelty is not a ground to hold one liable for abetment. However,
court examined letter of the victim from 2 years before the incident, where the
victim was being asked to burn herself and kill herself. Mother in law and son held
guilty for abetment.

Sec.307

191. State of Maharashtra v Kashirao (2003) Cr LJ 4464 (SC)

192. State of Madhya Pradesh v Kedar Yadav (2011) 1 SCC (Cri) 1008

Wrongful Restraint

193. Keki Hormusji Gharda v Mehervan Rustom Irani 2009 Cr LJ 3733

Page 565 of 573
194. Navnie Chatterji v. QE-> X took away J a minor girl from the lawful guardianship
of her husband and kept her in his house for 2 days.(It was in 1900, so yeah!)Then
one M took J and kept her in his house for 20 days and then moved J to Y’s house
for a few days before taking her away to Calcutta. The Court held that Y could not
be held liable under this section as the act of kidnapping had started with X
kidnapping her. Y had no role to play and could not be held liable merely because J
was kept at his house.

 S. 360 - 2 Ingredients

 S361 – 4 Ingredients

195. Thakore Lal D Vadagama v. State of Gujarat-> The accused kidnapped a minor
16- year-old girl from her lawful guardianship. He induced her to leave her parental
home by promising to give her shelter. The supreme court held him liable for
Kidnapping u/s 363 and said that a contention that the victim did not leave her
lawful guardianship as soon as the accused promised her shelter is not a defence.

196. S. Varadarajan v. State of Madras-> In this case Savitri was a BSc student who’s
neighbour was the appellant. The two became friendly and started developing
intimate relations. One day Savitri left her lawful guardianship and called the
appellant to come and pick her up from a certain place. The appellant arrived in a car
and S got into the car out of her own will. The two then proceeded to go to the
Registrar’s Office and became Husband and Wife. When the appellant was charged
with Kidnapping, the Court held that, when S had done all acts out of her own will
be called kidnapping as there was no form of force or coercion from the accused.

a. 8 differences between Kidnapping and Abduction: -

197. Habibulla v Emperor 14 Cr LJ 93 ; Padmanabhan Nair v Kallyani Amma (1967)

KLT 534

198. Gurdas v State AIR 1953 Punj 258

Assault

199. Banka Sahu v Mukta Sahu (1974) Cut LT 155

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Sexual
offences
Rape:

200. Meaning: Phul Singh v. State of Haryana-> The court stated that a rape is the
violation of a woman’s private parts with violence, which is an outrage by all means

 S. 228A of IPC – Disclosure of Identity (Om Prakash v State of UP)

 S. 146 Of Indian Evidence Act – Character Assassination of the victim

201. Thukaram v. State of Maharashtra -> Mathura Rape Case Mathura a Harijan girl
was called to the police station on an abduction claim by her brother. The constables
held Mathura in the station after normal hours. Ganpat a constable took her to the
s=toilet and raped her. Tukaram also molested her, and tried to rape her but could
not do so because of being intoxicated. The Supreme Court held that the gtwo
accused could not be held guilty of rape and attempt to rape, as Mathura never
objected against her will or neither did she consent to the act. The court held that this
case does not fall under the 3rd clause as there was no fear of death as three was no
marks of injury on her and all evidence showed that the acts were committed with
the consent of both the parties.

 9 Ingredients

 Role of Section 109 of IPC

202. Consent and Submission – Rao Harnam Singh v. State-> The victim was forced
by her husband to submit herself to an “entertainment party” of the three accused to
celebrate the transfer of a Superintendent of Jail. Though the victim refused to
maintain her chastity, she was coerced by her husband. In the party she was ravished
by the three accused and died immediately. The court differentiated between
submission and consent. They said a mere act of giving in or agreeing due to
helplessness cannot be consent under this section. A woman consents to a sexual act
when she exercises a choice between “assent” and “resistance” and has knowledge
of the act and voluntarily participates in the act after the exercise of her intelligence.

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 203. Thulasidas Kanolkar v. State of Goa-> The victim was a girl with underdeveloped
mental faculties and the accused raped her several times and she became pregnant.
Apex court held that she was in in the mental capacity to exercise her intelligence
and voluntarily resent or consent to an act. Accused was held liable for rape.

204. State of Punjab v. Gurmit Singh-> The victim was was a schoolgirl in 10th Std.
while she was waiting for her uncle to pick her up from school, a blue car with 3
men came and accused 1 forcefully pushed her into the car. She was threatened with
death if she tried to raise an alarm and also made to consume liquor. Then the 3
accused committed rape on her the entire night. She was dropped to the place she
was picked up from the next day. The SC held the accused liable and issued the
following guidelines.

5 guideline laid down in Gurmit Singh:-

205. State of Kerala v. Joseph @Baby and others-> Prosectorix was 16 years old who
eloped from her hostel with another man. They ran off in a bus and after a while the
man absconded. The girl the decided to go to her relative’s house for which she had
to

change few buses. All through her journey she noticed a woman following her. She reached
Kottayam Bus Stand and the woman called her name and said that she cannot go to her
relative’s house and that other arrangements for her stay has been made. She also introduced
her to a lawyer named Dharmajan and took her to a lodge and said that Dhramajans mom is
there and asked her not to worry. Following this she was raped in the lodge and then sold to
various other people in Kerala and raped. After 40 days she returned to her father’s house.
Charges were Rape, Kidnapping, Gang Rape and Sexual Trafficking. Whether it is rape or
consensual sexual Intercourse? (in 1999 age of consent was 16 not 18). Out of 41 accused
36 convicted on various grounds. Dharmajan sentenced to life for being the main
perpetrator. Kerala HC acquitted all the 35 of the 36 accused and Dharmajan’s sentence was
reduced to 10 years from Life Imprisonment. Court looked at med reports and found violent
sexual acts done but no sign of resistence. They also said that when the victim was being
transported from one place to another in a public bus she did not raise any alarm. In another

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instance, when she went to a doctor alone due to injury and infection in her private parts she
did not disclose anything to the doctor or try to escape. After the Nirbhaya Case, protests
started against this judgement and the SC took cognisance of the case and asked KHC to
start re-trial. Then KHC reversed its judgement and held all 36 guilty The case is now being
appealed in the SC.

206. Govindaswamy v. State of Kerala-> In this case the victim entered the ladies
compartment of a train and sat there alone. The accused entered the ladies
compartment and smashed the victims head against the wall and tried to assault her.
She jumped out of the train and the accused jumped out of the train after her. He
then produced to drag her badly injured self to a place and committed rape. He then
ran away from the scene of the crime. The victim succumbed to her injuries a few
days later in the hospital. The court held that since the rape was committed when the
victim was ina supine position the accused cannot be held guilt of 302. There was no
intention to murder that was established. He was held guilty of rape and assault.

207. Uday v. State of Karnataka (promise to marry)-> The complainant was a girl who
was in love with the accused but knew that the two could not marry as they were
from different castes. The complainant exercised her intelligence and did not resist
any sexual acts between the two and became pregnant. She then alleged that she had
been raped with the “promise to marry” and the accused in not doing so had raped
her. The court found that there was no evidence suggesting that the accused never
intended to marry her. He desired to do so but did not have the courage. Therefore, it
was not hlad as rape.

208. Babu v. State of Kerala-> Victim was 16. She was raped by the accused and
resisted the rape but was in no position to move because of use of force. Accused
alleged that it was consent as she did not resist the act. In order to prove that there
was consent on the part of the victim it must be established that she freely submitted
herself while in free and unconstrained position of her physical and mental power to
act in a manner she wanted. Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in the face of inevitable compulsion,
non -resistance and passive giving in cannot be deemed to be "Consent". Consent
means active will in the mind of a person to permit the doing of the act of and

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 knowledge of what is to be done, or of the nature of the act that is being done is
essential to a consent to an act. Consent supposes a physical power to act, a moral
power of acting and a serious and determined and free use of these powers. Every
consent to act involves submission, but it by no means follows that a mere
submission involves consent.

209. Bhuni lal Mahato v. State of Bihar-> The prosecutrix became widow two years
before and any how pulling her life along with a child roughly a year before the
appellant, a co-villager, started coming to her house by showing sympathy and
assurance to get married her and started developing sexual relationship which
continued for six-seven months. During the period he took Rs. 20,000/- received as
pension of deceased husband of the prosecutrix on the ground to meet the expenses
of marriage with her. Ultimately, when she became pregnant and was putting
pressure upon the appellant to execute the assurance of marriage, she was assaulted
and thrown away. However, the circumstances could not prove that the accused had
committed rape and was charged for Adultery under Section 497.

210. Mukesh v. State (NCT Delhi)-> Nirbhaya Rape Case. Just remember the facts of
the case and that all were held guilty for rape except the juvenile who was sentenced
to 2 years imprisonment and released.

211. State of UP v. Chohteylal (2011) Distinction between will and consent

 S. 377 - https://www.escr-net.org/caselaw/2009/naz-foundation-v-government-nct-
new- delhi-and-others-wpc-no-74552001

Section 354

 2 ingredients

212. Ram Kripal v. State-> The accused charged with the rape of a woman pleaded that
he was at the worst liable for outraging a women’s modesty u/s 354. The court struck
down this contention and held him guilty of rape. The court said that the essence of
her modesty is her sex. Pulling a woman and removing her saree, coupled with
sexual intercourse is enough to constitute knowledge in the accused that he has
already outraged her modesty and gone a step further to commit rape.
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 213. Ram Das v. State of West Bengal-> Accused was a traveller on the train where the
two victims were also travelling. In the middle of the journey, the accused switched
to the compartment of the victims due to over-crowding. Then after a while, the
trains chain was pulled and the victim was weeping. The victim alleged that the
accused had removed his clothes and held the two victims by their breasts. However,
there was no evidence to support this and the court also found that claims in the FIR
had been exaggerated. The Court found no evidence that he had in anyway outraged
the modesty of a woman, and acquitted him of the S 354 charge and held him guilty
for assault under Section 352.

214. Ruben Deol Bajaj v. KPS Gill-> KPS Gill was the DGP of Punjab and at a party
stood about 4 inched from Mrs Bajaj and asked to get up from her chair and come
with him. When she refused to do so, he slapped her on her “posterior” (butt). The
Supreme Court said that slapping a woman’s posterior amounts to outraging the
modesty u/s 354 as it was a disrespectful act of feminine decency and also a slap on
her dignity.

215. Girdhar Gopal v State AIR 1953 MB 147,

216. Kanwar Pal S Gill v State (Admn UT Chandigarh) 2005 Cr LJ 3443 (SC)

217. S. 354A – Vishaka v. State of Rajasthan (Just know the facts of the case in
brief and how the court came up with the Prevention of Sexual Harassment at
Workplace Act. The 4th guideline in the Act says as follows, “Where such conduct
amounts to a specific offence under the Indian Penal Code or under any other law the
employer shall initiate appropriate action in accordance with law by making a
complaint with the appropriate authority. In particular, it should ensure that victims,
or witnesses are not victimized or discriminated against while dealing with complaints
of sexual harassment. The victims of sexual harassment should have the option to
seek transfer of the perpetrator or their own transfer.”

S. 354B –

S.354C – 3ingredients

S. 354D –

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Sec.378

218. Brajmohan Pradhan v State (1985) 59 Cut LT 177

219. Pyarelal Bhargava v State of Rajasthan , AIR 1963 SC 1094

Extortion

220. Dhananjay v State of Bihar 2007 Cr LJ 1440 (SC)

221. Venu v State of Karnataka 2008 Cr LJ 1634

222. Abdul Rashid v Nausher Ali 1979 Cr LJ 1158, 1159 (Cal).

223. Om Parkash Gupta v State of Uttar Pradesh AIR 1957 SC 458

224. Ashok Basak v State of Maharashtra (2010) 10 SCC 660

Sections 403 &404

225. Sathi Prasad vs State of Uttar Pradesh AIR 1973 SC 448

Cheating

226. Setti Rangayya v. Somappa 25 Cr LJ 1193

227. Chauthi v State1978 AWC 187

228. Iridium Indian Telecom Ltd v Motorola Incorporated AIR 2011 SC 20

229. Satish Jain v State of Uttaranchal 2006 Cr LJ 1172

230. RS Nayat v AR Antulay (1986) 2 SCC 716,

231. Mobarak Ali v State AIR 1957 SC 857

Defamation

232. Empress v Nagappa (1891) ILR 15 Bom 344

233. Radhanath Rath (Dr) v Balakrishna Swain (1985) 59 Cut 226 (Ori).

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234. Goutam Sahu and Ors v State of Orissa and Anor 1999 Cr LJ 838

***Plus, the cases that we have discussed in the class as well as the latest cases that we
did not discussed.

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