General Principles of Crime
Nature of a crime
- Definition: According to Blackstone’s, Crime is defined as a violation of public rights and duties due to the whole community, considered as a community. Blackstone does not intend to suggest that crimes violates no other rights besides public ones, obviously every theft violates some private right of property. It can be expressed more clearly as “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”
- Tort and Crime:
- Crime in the primitive state:
- Crimes the creation of Government policy:
- Distinction between Crime and other wrongs under common Law:
- Crime and morality distinction:
- Circumstances when morality amounts to crime:
- State’s responsibility to detect, control and punish crime:
Characteristics of a crime
- Brought about by Human Conduct
- Sovereign state desires to prevent it
- Measure for prevention includes threat of Punishment
- Special proceedings employed to decide whether the accused has caused the harm and inflicting punishment
The place of Criminal Law in Criminal Science
Three branches of Criminal Science:
- Criminology: It deals with the causes of Crime – both Biological and Social
- Criminal Policy: Studies the measures to limit the harmful conduct, Takes measures by setting up social organizations to prevent harmful activities and lays down the principles by which harms are classed as crimes and how criminals are to be treated
- Criminal law: What conduct is considered as tort and what is Crime, Prescribes the punishment. It is an instrument used to implement the Criminal policy
Principles of criminal liability
The period of Strict Liability
Strict liability crimes are those in which the defendant is held liable for a criminal offense he committed, even if mens rea is absent. Though the defendant did not intend any harm by his actions and was completely unaware that he was committing an illegal act, the doctrine of strict liability holds him liable for the criminal offenses committed.
Most cases of strict liaiblity are minor infractions and misdemeanors, not nearly as serious as felonies, but still warranting heavy fines and up to a year in jail. Examples of minor offenses for which violators are held strictly liable are parking violations, speeding unknowingly, selling alcohol to minors and, in some jurisdictions, employing people under the age of fourteen.
Mental Element in Criminal Liability
To constitute a crime and subject the offendor to a liability to punishment, i.e., to produce legal criminal “guilt”, a mental as well as a physical element is necessary. Thus, to use a maxim “Actus non facit reum mens sit rea“. The act does not make a person guilty unless the mind is also guilty.
It is a well known principle of natural justice meaning no person could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind.
Accordingly, every crime involves:
- A particular physical condition – a vicious conduct
- A particular mental condition – a vicious intention
Actus – A physical result of human conduct and Reus – criminal policy that prohibits and seek to prevent its occurrence by imposing penalty for its commission. Thus, Actus Reus means “such result of human conduct as the law seeks to prevent”
For example, A repeatedly stabbed B and thereby caused serious injury to his heart and lungs because of this injury B died. A stabbed B with an intention to cause death of B. Here A’s act of repeated stabbing and injuring of B is conduct, the result of such conduct is the death of B
A mere injury caused by a conduct is not actus reus:
For example, when the court sentences a death penalty to a person and the execution takes place.
Results of Omission: In many cases, even the omission of action qualifies as actus reus.
Causation: Harm is an event and event is the product of plurality of factors. There are several causes of one event. So, it can be reasonably said that the event is caused by one of these factors if it would not have happened without that factor. For example, a man can be said to have caused the actus reus of a crime if that actus would not have occurred without his participation in what was done.
No physical participation and liability for actus reus
- Circumstances where instigator is primarily liable and instigated is guiltless
Where another person intervened
- R v. Lawe: Engineer deserting his work, leaving the engine in charge of an ignorant boy who declared himself incompetent to handle the engine.
- R v. Jordon: A stabbed B, B subsequently died. Medical evidence showed that B died due to Broncho-Pneumonia due to mistaken administration of antibiotics and intravenous injection.
Victim’s Own Conduct has affected the result
- R v. Horsey: A sets fire to a stack of straw. While the stack was burning, the victim was seen in flames and his body was found in the stack yard. No evidence as to how he came there. A tried to save the deceased.
- R v. Swindall and Osborne: Each person driving horse cart on a public road encouraging each other to drive it at dangerous place, killed a pedestrian. It was alleged that deceased is deaf, careless and negligent.
One of the main characteristic of our legal system is that the individual’s liability to punishment for crimes depends, among other things, on certain mental conditions. The liability of conviction of an individual depends not only on his having done some outward acts which the law forbids, but on his having done them in a certain frame of mind or with a certain will. Mens Rea is the mental process of a person. At the time, when he was engaged in the activity which resulted in the deed. It is a legally reprehensible state of mind.
It means a mental state, in which a person deliberately violates a law. Thus, mens rea means intention to do the prohibited act.
Development of Mens Rea
In the earliest time it was the fundamental presumption that a man in every case
intended to do what he has done. The English criminal law began with strict criminal liability, and there was no clear distinction between the Tort and crime.
Therefore the mental attitude of a person was an irrelevant consideration in so far as trial and punishment was concerned.
But later on bodily punishment came as a substitute of the payment of damag
then the importance of mens rea or the mental attitude of a person, at the time of
commission of crime was realized. With the passage of time requirement of mens rea as an essential element of a crime has firmly taken in its roots.
Mens rea in its root
Now it is the combination of act ( actus rea) and intent mens rea which makes a crime. And the maxim – Actus non facit reum nisi mens sit rea means act alone does not make a man guilty unless his intentions were so. It is a well known principle of natural justice. There can be no crime large or small without any evil intent. The responsibility in crimes must depend on the doing of a willed or voluntary act and a particular intent behind that act. Most conscious and voluntary acts are directed towards result or consequence. When one acts to produce a particular consequence he is said to do that act with that intention.
Intention + Act + attempt = Offence
Exceptions to mens rea
Crime = Voluntary act + foresight of the consequences
Acts under compulsion
If the consequence not looked for the act may be voluntarily but not intentional. For any criminal liability there must be a voluntary act, this preposition drive from the maxim – Actus me invite factus non est mens actus which means and act done by me against my will is not my act. This maxim support the doctrine of Mens Rea – for no person can be held liable for an act done under the fear or compulsion.
A holds B and compels him at gun point to open the lock of C’s house. Here B’s act not a willed or intentional act.
The basic requirement of the principle of Mens Rea is that accused must have been aware of all those elements in his act which make it the crime with which he charged.
Desire + Will + Motive + Intention + Preparation + Attempt = Commission of an offence
Application of Mens Rea in Indian Penal Code
Technically, the application of mens rea is not applied to the offences under IPC. Every offence is very clear under IPC 1860. The definition not only states what accused might have done, that also states about the state of his mind with regard to the act when he was doing it. Each definition of the offence is complete in itself. The word Mens Rea are not used anywhere in IPC. However, the equivalent words to those of mens rea in the IPC Code used are: Dishonestly (s. 24), Fraudulently (s. 25), reason to believe (s. 26) and voluntarily (s. 39)
Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC held that mens rea is an essential ingredient of the offence under section 494 (bigamy), where the second marriage has been entered in a bonafide belief that the first marriage was not subsisting, no offence under this section committed.
C. Veerudu v. State of Andhra Pradesh, SC held that under section 498 A, cruelty means “willful conduct”. Willful conduct includes mens rea.
In modern statutory offenses, the maxim has no longer applicable and the statutes are to be regarded as themselves prescribing the mental element which is pre-requisite to a conviction. So mens rea is an essential element of crime, in every penal statue unless the same either expressly or by necessary implication is ruled out by the statues.
Mala in Se and Mala Prohibita
Mala in se are usually common-law crimes or those dangerous to life or limb. Battery and grand larceny or petit larceny are examples of offenses that courts have held to be mala in se.
Mala prohibita is a term used to describe conduct that is prohibited by laws, although not inherently evil. Courts commonly classify statutory crimes as mala prohibita. This, however, is not a fixed rule since not all statutory crimes are classified as such. Examples of mala prohibita include public intoxication and carrying a concealed weapon
A man is guiltless if his movements which led to the harm were involuntary. For example: Nurse putting the child behind a large fire by thinking it as a log of wood.
Foresight of the consequences
An voluntary act resulted in the harm and the harm was not contemplated. Principle: A man should not be punished unless he had been aware that what he was doing might lead to mischievous result.
Direct appeal to your senses. Here the probability is very high (against to commit the act against Law). Exp. to purchase a stolen good. Theft – To taking possession without the consent of the owner.
Intention, Recklessness and Negligence
Intention denotes the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. There cannot be intention unless there is also foresight. For example, A man cannot intend to do a thing unless he desired to do it.
Intention is the most culpable form of mens rea, as it involves acting with the objective of bringing about a consequence or with the desire to bring about that consequence and foresight that your actions are virtually certain to do so. Presumption of Intention – Natural and probable consequences should be presumed.
Recklessness – Intention cannot exist without foresight but foresight can exist without intention. If a person foresees the possible consequences of his conduct, yet not desire them to occur but persists on his course. Thereby knowingly runs the risk of bringing about the unwished result. This state of mind is called reckless. Some feature of recklessness: Man who is reckless may prefer that the contemplated event shall not happen or, he may not care whether it happens or not. In both these situations that person does not desire the event to happen.
Basic principle of fixing a criminal liability is the combination of : Foresight and Indifference. Doing something without the knowledge but the foresight.
Misnomer of recklessness
- Criminal negligence
- Culpable negligence
- Gross negligence
- Complete negligence
Most of these misnomers create more confusion as to the true meaning recklessness instead of clarifying them
Only two state of mind which constitute mens rea:
Vicarious Liability at Common Law
A person is negligent when:
- he fails to foresee a risk that a reasonable person would have foreseen; or
- he does foresee the risk, but either does not take steps to avoid the risk or takes inadequate steps, thereby falling below the standard to be expected of the reasonable person.
- In both intentional and reckless act – The person involved must necessarily foresee its possibility
- Still he adverts to the result
- If a man brings about an event without having adverted to it at all
- for him the event is surprise
- If the event is harmful then the question of his legal liability arises
Negligence & Criminal Liability
- For negligence at common law tortious liability can be imposed if certain conditions are fulfilled
- At common law there is no criminal liability caused by inadvertence
Difference between Negligence and Recklessness
- The difference between recklessness and negligence is that of difference between advertence and inadvertence
Negligence and Neglect
- Again negligence is Inadvertent and neglect is Advert
An offence is basically a violation of law. In legal parlance, the word “offence” is generally construed as a criminal wrong. Hence, offence means a wrong in penal law. The Code of Criminal Procedure, 1973 defines “offence”as “any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871( 1 of 1871)”. This is a guideline for offences related to the Code. But, there are other types of offences too; the ones that are created by different statutes, like those related to taxation, national security, etc.. These are commonly referred to as Statutory offences.
Mens Rea in Statutory offence
Before a criminal is made liable, he should be proven to have some blameworthy mental condition (mens rea). For example, when someone attacks you, then, causing injury to him in private defence is not a crime but, causing injury with the intention of revenge is a crime. This is how the presence of a guilty mind changes the nature of the offence. But, the requirement of a guilty mind varies from crime to crime. An intention which would qualify as the required mens rea for one crime, may not for some other crime.
Presumption requiring mens rea
In statutory interpretation, certain presumptions are taken into account by the court while interpreting the statutes. The presumption relevant here is that a criminal act in general requires the presence of mens rea. Almost all crimes that exist independently of any statute require, for their commission, some blameworthy state of mind on the part of the actor.
Where a statute creates an offence, no matter how comprehensive and absolute the language of the statute is, it is usually understood to be silently requiring that the element of mens rea be imported into the definition of the crime (offence) so defined, unless a contrary intention is express or implied. Hence, the plain words of a statute are read subject to a presumption (of arguable weight), which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment.
In determining whether a statutory provision does or does not create an offence of strict liability, the following considerations seem to be relevant, as given in the judgment of (M.H. George’s Case) :-
- Phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required.
- Object of the Statute
- Nature of public purpose purportedly preserved by the statute
- Nature of the mischief at which the provision or statute is aimed, and whether the imposition of strict liability will tend to suppress the mischief, although strict liability should not be inferred simply because the offence is described as a grave social evil.
Illustration of statutory offences and mens rea
- R v. Prince – Accused taking away a girl of 16 yrs old out of possession of her father
- Brand v. Evans – Licensee charged with permitting illegal activities in the licensed premises
- Possessing, for sale unsound meat
- Selling of adulterated article of food
- Un discharged Insolvent obtaining credit through agent
Variations in Criminal liability
Conditions to be fulfilled for availing mistake of fact as a defence – Sections 76 & 79 of IPC. The mistake must relate to FACT and not to LAW. The state of things believed to exist would, if true, have justified the act done. The mistake must be reasonable
Acts done under order of a superior authority – the accused believing himself to be bound by law was entitled to the protection under Sec 76 (State of West Bengal v. Shew Mangal Shah, 1981)
Charges of obscenity – Prior certification by the Censor board provides justification in law in exhibiting the film. (Raj Kapoor v. Laxman, 1980)
Involuntary intoxication under the IPC Section 85. Incapacity to know the nature of his act, Incapable of knowing that the thing he was doing was either wrong or contrary to law, Intoxication without knowledge or against will
Voluntary intoxication under the IPC Section 86 where there is a presumption of particular knowledge or intent
In the case of Jethuram Sukhra Nagbhansi v. State, 1960 – nature of intoxication n the basis of interpretation of ‘against the will’.
- An act done by me against my will, is not my act
- Defence of compulsion under Section 94 of IPC (except murder and offences against the State punishable with death)
- Defence of necessity (Section 81 of IPC) is based on the maxim ‘necessitas vincit legem i.e., necessity overcomes law.
- Necessity as a reason for homicide – R v Dudley and Stephens, 1884
Legally Abnormal Persons
Persons who are not invested with the same responsibility for their acts as are those whom the term as legally normal owing to some peculiarity in themselves. e.g.,
- The Sovereign: Based on the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution
- Infants: Incapacity to understand the nature and consequence of an act or omission – basis exempting a child below seven years from criminal liability (Section 82 of IPC)
- Insane persons: A complete defence to criminal liability in offences involving mens rea. Insanity in IPC Sec. 84. Every type of insanity is not a legal insanity unless the cognivance faculty is destroyed as a result of unsoundness of mind. Baburam Mahali v. State of West Bengal, 2005
Possible parties to the crime
Classification of crimes for the purpose of determination of parties to Crime. They are: 1. Treasons 2. Felony 3. Misdemeanors
No legal distinction between the various recognized modes of taking part in the commission of such offences.
- Slightest share in treason is regarded as heinous
- No activity in a misdemeanor is considered as heinous and no formal distinction between it and any less prominent mode of taking part in the offence
- All persons who are concerned in it in any way – whether by actually committing it or even by keeping near in order to assist while it is being committed or merely suggesting it are classed together
Notice will be taken of the gradations of participation in them
Four categories of guilty association with a felony:
Principal in the I degree
Actual offender: The person whose guilty mind is the latest blamable mental cause of the criminal act. In most of the cases the person who actually done the act.
- Doctor asking nurse to administer poisonous substance as drug to kill a patient
- Using child to commit felony
- Using animal to commit any felony
More than one Principal of first degree:
- Dishonest servant who unlocks the door of master’s house to commit burglary with others
- Father and mother for allowing a child’s death due to starvation
- A man holds the victim and the other person cuts his throat
Principal in the II degree (Aiders and Abettors)
The person who aided and abetted at the very time when the offence is committed.
- Car owner sitting beside the driver who kills by over – fast driving
- Bigamist second spouse
- Receiver of stolen property
Accessories before the fact;
- He knows the particular deed contemplated
- He approved it
- His views are expressed in such a form which encouraged the principal to perform the deed
- The person is absent at the time when felony is committed
- These things happened before the offence is committed
- A person who procure, counsel, commend or abet the commission of offence
Accessories after the fact
- He knows that the felony has been committed
- He shelters or relieves any felons
- Enable him to elude justice
- Supplies the felons the means to escape
- Helps the felons to get out of the prison
- Active assistance to felons is necessary
- Wife’s immunity for helping husband who is a felon
A misdemeanor, a criminal offense that is less serious than a felony. It is is generally punishable by a fine or incarceration in a local jail, or both. Many jurisdictions separate misdemeanors into three classes: high or gross misdemeanors, ordinary misdemeanors, and petty misdemeanors.
Indian Penal Code
Sec. 1 – Title and extent of operation of the code
This act shall be called the Indian Penal Code, and shall extend to the whole of India except the State of Jammu and Kashmir.
Sec. 2 – Punishment of offences committed with-in India
Every person shall be liable punishment under this Code and not otherwise for every act of omission contrary to the provisions thereof, of which, he shall be guilty within India.
Sec. 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 India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.
Sec. 4 – Extension of Code to extra-territorial offences
The provisions of this Code apply also to any offence committed by
- Any citizen of India in any place without and beyond India;
- Any person on any ship of aircraft registered in India wherever it may be.
Explanation – In this section the word “offence” includes every act committed outside India which, If committed in India, would be punishable under this code.
A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in 3[India] in which he may be found.
Sec. 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.
General Explanations – S. 6 – S. 52A
Sections 6 – 33 and 39 – 52A
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 exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.
- (a) The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age can not 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”.
Servant of Govt. and Public Servant (Sec 14, 21)
*The words “servant of Government” denote any officer or servant continued, appointed or employed in India by or under the authority of Government.]
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 definitive, or a judgment which, is 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.
- (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.
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.
The words “public servant” denote a person falling under any of the descriptions hereinafter following namely:-
- Every Commissioned Officer in the Military, Naval or Air Forces of India;
- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory function;
- Every officer of a Court of justice including a liquidator, receiver or commissioner
- Every juryman, assessor, or member of a panchayat assisting a Court of justice or public servant;
- 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;
- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
- Every officer of 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;
- Every officer whose duty it is, as such officer, to take, receive, keep or extend 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 interests of the Government;
- 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;
- Every persons 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;
Movable Property (Sec 22)
The words “moveable 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.
Wrongful Gain/Wrongful Loss, Dishonestly, and Fraudulently (Sec 23, 24, 25)
“Wrongful gain” is gain by unlawful means of property 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.
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”.
Fraudulently: A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
Document and Valuable Security (Sec 29, 30)
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 marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or no.
- 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 man or plan which is intended to be used or which may be used as evidence, 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.
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.
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 whereby any person acknowledges that the lies under legal liability, or has not a certain legal right.
A writes his name on the back of a bill of exchange. As the effect of this endorsement is transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a “valuable security”.
Common Intention and Common Object. (Sec 34, 149)
Sec. 34: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Sec. 149: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Wrongful Restraint and Wrongful Confinement (Sec 339, 340)
Section 339- Wrongful restraint:
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has 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 lawful right to obstruct, is not an offence within the meaning of this section.
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.
Section 340- Wrongful confinement
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.
- (a) A causes Z to go within a walled space, and locks Z in. A 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.
Cheating, Criminal Misappropriation, Criminal Breach of Trust
Section 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 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”.
Explanation. A dishonest concealment of facts is 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 make 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 believer 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 on money, and by which A expects that the will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
- (e) A, by pledging as diamonds article 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 led 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 deliver. A cheats; but if A, at the 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 coveys 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 for Z. A cheats.
Section 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 any time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
- (b) A, being on friendly term 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.
- (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 dose not dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of any offence under this section.
Explanation.1-A dishonest misappropriation for a time only is a misappropriation with the meaning of this section.
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 if 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 the appropriates it to his own use, when the 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 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 found.
- (a) A find 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.
- (b) 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.
- (c) 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.
- (d) A see 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.
- (e) 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.
- (f) 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.
Section 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 willfully suffers any other person so to do, commits “criminal breach of trust”.1[Explanation
2. -A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees’ Provident funds and Miscellaneous Provisions 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 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.]4[Explanation
2. -A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ 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 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.]
- (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 appropriate them to his own use. A has committed criminal breach of trust.
- (b) A is a warehouse-keeper. Z gong 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 direction 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.
Of Punishments – S. 53 – S. 75
Kinds of punishments:
1. Death punishment
It is the most grave penalty imposed by IPC. Many sections still prescribe the punishment of death. Some of them are as follows:
- (a) Offence under Section 194 IPC where a person gives false evidence with intention to cause any person to be convicted of capital punishment and if an innocent person is convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished with death or life imprisonment or rigorous imprisonment and fine.
- (b) Offence of murder for which punishment of death or imprisonment of life is prescribed under Section 302.
- (c) Offence of murder committed by life convict as described in Section 303. This section has been held unconstitutional by the Supreme Court in Mithu v. State of Punjab [AIR 1983 SC 473]. The peculiarity of this Section is that punishment of death only is provided. No other alternative punishment is seen provided.
- (d) Offence of abetting suicide of child or insane person as mentioned in Section 305 IPC where death is a punishment with other alternative punishments.
- (e) In Section 307 when a life convict attempts to murder and hurt is caused Death Sentence may be imposed.
- (f) Kidnapping for ransom as described under Section 364A may be met with punishment of Death along with other alternative punishments.
- (g) If any one of five or more person s who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death along with other alternative punishments.
- In Bachan Singh v. State of Punjab[AIR 1980 SC 898] hon’ble Supreme Court of India held that death sentence is to be given only in rarest of rare cases.
2. Imprisonment for life
Living behind the bars are sometimes far more painful than death sentence. It is the most popular type of sentence after death penalty. In most serious offences this type of punishment is prescribed. Wherever death penalty is prescribed, life imprisonment also finds a place as an alternative punishment.
As there is hue and cry regarding imposing of death penalty, in appropriate cases Courts impose life imprisonment as a safe method. Some sections which impose Life Imprisonment as a penalty are : Sections 194, 255, 304, 304(B), 305, 307, 311, 313, 314, 326, 329, 364, 364(A), 376, 377, 394, 395, 396, 400, 409, 412, 413, 436, 449, 459, 460, 467, 472, 477, 489A, 489B, 489D and 511.
Rigorous imprisonment is of such type where the convict will have to do hard labour. In many offences the period of imprisonment varies. In simple imprisonment also the term of imprisonment varies according to offences.
3.1 Simple imprisonment
3.2 Rigorous imprisonment
Forfeiture of property is not very common in IPC. Section 61 which specified sentence of forfeiture of property has been repealed by Indian Penal Code (Amendment) Act, 1921. In the present IPC three sections viz 126, 127 and 129 describes forfeiture of property.
IPC prescribes fine as a penalty both independent and along with other penalties. The amount of fine varies with offences. Section 63 says that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. Sentence for non-payment of fine is also dealt with in IPC [Sec.64].