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LAW OF CRIMES

Criminal Law is that segment of law that deals with human based actions known as crime or offence. Criminal Law to an extent is based on behavioral science. Any behavior or conduct by a person which is not acceptable in a civilized society, and is also specifically legislated as a non-acceptable conduct of a person in society is an offence or a crime. The objective of criminal law is to regulate human behaviour in society by restricting certain acts and simultaneously making them punishable.

For example; causing grievous injuries to a person is a non-acceptable behaviour in our society. Hence, there are laws that restrict a person from causing injury to any person without any legally justifiable cause. If a person does so, he can be tried in a court of law and then sentenced a jail term. The objective is to remove that person from society as he is not fit to co-exist with other citizens of the state and avoid further crimes that may be caused by such person.

It is contemplated in law and criminal jurisprudence, that the jail term so provided to a criminal is to help him attain stability as he is subsequently released back into society; deeming that the jail term has rehabilitated him. Expecting that the criminal is now fit to lead a not normal and non-violent life.

Alternatively, acts like terrorism can lead to capital punishment and the person can be ordered to be hung till death or life sentencing. In such cases the person is beyond help and cannot be improved to be released back in society, as he is extremely violent and poses a permanent threat to society. 

A classification of Law is referred to as below;

Civil Offences

Criminal Offences

[1] lower degree of harm

[2] right in personam, observed to be an offence against an individual

[3] only the injured party has a right against the offender

[4] Objective: to compensate/award damages to the victim in monetary terms (by payment of sum of money)

[1] higher degree of harm

[2] right in rem, observed to an offence against society

[3] the State takes action against the criminal on behalf of the whole community

[4] Objective: to punish the offender (imprisonment/jail)

 

Hence, in other words, such actions of a person which;

[1] cause greater harm than civil offences,

[2] affecting the whole society at large, [Right in Rem]

[3] where that state machinery has to step into force (police), [Doctrine of Parens Patriae] and

[4] the state has to remove that person (disturbing element to society) and keep that person in jail, as a corrective measure, stopping that person to cause greater and further harm to society. [Imprisonment/Jail Term/Capital Punishment]

Right in Rem

Rem means society or everyone. Civil offences generally do not affect more than the contesting parties in court of law. For example, your neighbour is running into a property dispute with his brother; this fact will not affect you and you also will declare it to be your neighbor’s personal problem.

On the other hand, if a murder takes place in the house of your neighbour; then in that case you will also feel unsafe, as a similar offence can happen with you also. Criminal acts do not only affect the victim but affects people generally, which is not the case in civil disputes.

Everyone’s right to lodge a criminal case-

Likewise, news everyday covers many criminal events, which does create an impact on you; also giving you the right to legally do something about it. For example, a FIR (First Information Report) i.e. reporting of a crime can be done by anyone, it does not require the affected party to go to a police station and lodge a case. A neighbour, friend, relative or even a completely unknown person can also report a crime by lodging a FIR. This way every citizen of the state has a right to file or lodge a FIR. Hence, and because the society at a large is getting affected, the state on behalf of all its citizens prosecutes criminals/accused. This is also closely related to the doctrine of parens patriae.

Under criminal jurisprudence, every individual of the state has a right to bring a cause of action against ill-elements of the state. In such situations, multiple people could file multiple cases against one accused (criminal), which makes less sense. Thus, in order to overcome this problem, the state on behalf of all its citizens prosecutes the offender. (eg. State of U.P. vs. Babban Lal, where state is the prosecuting party and Babban Lal is the defendant)

Doctrine of Parens Patriae

Parens Patriae is Latin, meaning parent of his country/citizens. It is a concept under juvenile justice legal system, where the state steps in as a guardian to children, mentally ill, incompetent and elderly persons of the state.

Although in criminal law this doctrine refers to the state acting as a guardian to all its citizens. As every citizen has a right to proceed against a person involved in a crime, the state/government/nation in order to avoid thousands of cases over one person involved in an offence, itself proceeds against him; as on behalf of all citizens of the state. That is why all criminal cases are fought by the ‘state’ (government) against the accused (criminal). Even though there is no bar to engage a private lawyer by the plaintiff party, but in any given circumstance the state lawyer will always represent the victim of the crime in court of law, fighting to prove and establish the criminal’s guilt.

Article 20 of the Constitution of India

No person can be prosecuted for a crime, unless and until the law of the land declares that act to be a crime. Again, crime is a human behaviour which has been restricted by law and anyone who performs that act is liable for criminal punishment.

If any act (human behaviour) is not specifically defined to be a crime under any legislation or law, then no person can be held criminally liable. For example; murder is a crime because killing a person is a restricted behaviour under Section 300 of the Indian Penal Code, 1860. On account of Section 300 not being into effect, if X commits a murder, he cannot be made criminally liable.

Moreover, it is not only the undefined act but the punishment as laid in the legislation/act/statute cannot also be exceeded, if so done it can be constitutionally challenged and struck down.

Article 20. Protection in respect of conviction of offences;

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

Also, Article 20(2) protects from ‘double jeopardy’; that is protection from being prosecuted and punished for one offence more than once. Article 20(3) protects one from ‘self-incrimination’, where the person is not liable to give a confession or be made to stand as a witness against himself.

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CONSTITUTION OF CRIME

Like tort law, crimes also have essential requirements without which a crime cannot be said to have been constituted. Any criminal act must contain two elements to constitute it as a crime;

[1] Actus Reus (Physical Act)

[2] Mens Rea (Mental Intention)

The following essentials are discussed as below:-

[1] ACTUS REUS

Actus Reus is the actual physical happening of the crime. It should be apparent and visible that a crime has been committed. For example; A wakes up to find that the safe in his house has been broken and all valuables kept inside it have been stolen. This given set of facts and circumstances clearly indicate fulfillment of the first essential, Actus Reus.

[2] CRIMINAL INTENTION (Mens Rea)

No act is a crime unless and until it is so committed with a ‘criminal intention’. If there is lack of intention to commit any act which is criminal in nature, it is not a crime and the person so committing the act is not criminally liable (maybe civilly liable for negligence). In simple words, criminal intention is knowing that, “I am committing a crime/wrong act.” and continuing to finally commit that crime.

For example, X is walking down the street on which Y’s house is located. At the time X is crossing Y’s house; a flower-pot falls on his head causing grievous hurt.

Situation 1: Y is X’s old business rival and X with an intention to injure Y threw a flower-pot on Y. On such a situation being proved, X shall be liable for the crime of grievous hurt; as an offence under Section 320 of Indian Penal Code, 1860.

Situation 2: X was standing in his balcony and due to rain the balcony floor was slippery. X accidently slipped on the floor and consequently hit a flower-pot which fell on Y’s head, accidently. In such facts and circumstances, X will not be criminally liable but may be civilly liable to compensate Y under tort law. In practicality, such an act would deem to be a mere accident attracting no criminal liability.

Hence, under criminal law the element of mental intention is the deciding factor that differentiates between civil liability and criminal charge. No intention equals no crime to have been committed.

For example, X goes to a night club to dance. There Z mixes his drinks with alcohol. X who is a teetotaler gets intoxicated and injures Y in a fight. X is not liable as he had no intention to injure Y and he did so because he was intoxicated involuntarily and was unable to control his actions (because of Z).

In another case, where if X has consumed alcohol voluntarily. X would have been completely liable for the crime of grievous hurt against Y.     

Burden of Proof

Burden of Proof is a concept which puts a legal liability on one party (plaintiff or defendant) to prove a fact; which happened or did not happen, establishing through other undisputed facts and/or ancillary supporting evidence.

a.    Proving Actus Reus-

Proof of Actus Reus is simple, as the act of crime happened or not is evident is most cases, unless exceptions such as accident or self-negligence (victim’s own negligence) are proved.

Accident: P while driving on the highway faces a tyre-burst and accidently runs over pedestrians. P is not criminally liable. P may be liable for negligence of not properly maintaining his car; or the tyre-company (or car-company) may be made liable for installing defective product. Conclusively, P did not intentionally commit such an act, hence not a crime.

Alternatively, if P was under the influence of alcohol, leading to injuring pedestrians on road; in such facts and circumstances P is clearly liable for the crime of drunk driving.

Negligence: S who mistakenly forgets a gold ring on a table in a coffee shop; has no proof that someone stole that ring. There is a possibility that the waiter cleaned the table along with the ring and threw it in the waste-bin. Hence, the act of crime, actus reus, did not happen as the ring being stolen cannot be proved. 

b.    Proving Mens Rea-

Proof of Mens Rea is technical and critical, as it decides the final liability of crime. Mental intention to commit a crime is tough to prove, as no person can read mind of another. Mental intention, meaning that an act was done with the intention of breaching/violating a law, having knowledge that such act is illegal and a crime. Mens rea is proved via established facts and circumstances under which the crime was committed.

Situation 1: X and Y are neighbours, and are childhood enemies. They often fight over parking space as the road on which they reside is really congested. One such night X and Y have a huge fight. X angrily comments, “I shall end all this trouble, once and for all. It’s time to send you to hell.” The next morning Y is found dead in his house. Hemlal, a neighbour, testifies against X in court that the night before Y’s death, X had assaulted Y, showing intent to kill him. There is no other proof against X, hence X not liable. As there is Actus Reus but no proof that such act has been done by X or X’s intention could not be proved by evidence.

Situation 2: In the above mentioned circumstance, if there is a video recording showing X entering Y’s house at 3:00 a.m. at night, and subsequent finger prints of X in Y’s house; this proves that X had intention to kill Y and he actually did cause his death. Hence, X’s mens rea is proved using established undisputed facts, which are also called evidence.

 

Other criminal concepts:-

[A] CRIMINAL MOTIVE

Motive means the end goal which a criminal wants to achieve. The final outcome of a crime is said to be the motive for the crime. It is different from criminal intention.

For example, A is F’s adopted son. A knows that after his father’s death A will inherit all his property. A in order to procure the property of F, murders F. The act of A murdering F involves criminal intention, and subsequently due to the death of F, A inherits all his property is the motive behind the crime.

Also, forging a bank cheque. If Mallaya forges a bank cheque to buy a Villa in Goa. The act of forging a cheque is a crime which is done with a criminal intention, i.e. knowing that forging a negotiable instrument is a crime. On withdrawing money using a forged cheque and then buying a villa in Goa is the motive, the end goal of the crime.

Motive may not always be a criminal act. As buying a Villa in Goa is not a crime. Buying it with money that is obtained by forging a cheque is crime, which was done with a criminal intention i.e. knowing that Mallaya is doing a wrongful act.

Note:- Motive alone does not establish a crime. Criminal intent establishes a crime. Presence of motive complements criminal intention, but motive alone is not enough to prove a crime, it has to be coupled with criminal intention (mens rea). Motive merely helps in proving that Mens Rea was present.  

[B] SPECIFIC INTENTION

There are specific and practical cases when motive proves a crime and subsequently proving of mental intention (mens rea) is not required. Motive if coupled with the concept of ‘Specific Intent’, if proven can constitute a crime. In such cases proving of Mens Rea is not essential. It is different from general intention (mens rea).

General Intention

Specific Intent

Most crimes require general intent, meaning that the prosecution must prove only that the accused meant to do an act prohibited by law.

 

(meant to means- criminal intention)

In Specific Intent, a person commits an act, which per se cannot be proved that the act was done with knowledge or intention.

There are maximum chances to prove that the act was done by accident and was not done under knowledge of crime or criminal intention.

The actual outcome of the crime is irrelevant.

 

(motive- is irrelevant)

The actual outcome becomes relevant in this case; as the outcome of the crime is so typical and peculiar that it could not have been caused unless and until someone intended it to happen

 

For example; Arthur goes to a birthday party. In that party there is Mike, who is in enmity with Arthur. Someone mixes Arthur’s drink and gets him highly intoxicated. Arthur in fit of intoxication is barely able to walk and see objects around him. He then bangs into Mike, who was dancing in the party and beats him badly.

In such facts and circumstances, because Arthur was involuntarily intoxicated, normally no case can be made against him, as he was in no position to control his actions and he did not consume alcohol on his own.

But, under the principle of Specific Intent, Arthur who was barely able to walk and see, in a crowded place, hits only Mike against whom he had enmity with goes on to show that he possesses a criminal frame of mind and has a criminal intent to injure Mike. Thus, liable under crime on poof of specific intent.  

Comparative Study Chart

Criminal Intention

Motive

It is a state of mind, at the time of committing a crime.

It is the end goal that a criminal wish to achieve after commission of the crime.

Criminal intention flows from;

[1] knowledge of his action, that it might lead to a crime.

[2] explicitly knowing something to be a crime.

[3] having a fair idea that such actions may lead to commission of a crime.

It flows from greed and desire, which are coupled with malicious intent.

A commits theft in C’s house. Criminal intention is developed when he enters C’s house with the knowledge that what he is doing is wrong and a crime.

After commission of theft when A buys himself a Mercedes car, declares the motive behind A’s reason to commit theft in C’s house.

 

[Specific Intent: when motive established crime and mens rea cannot be proved]

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STAGES OF CRIME

No crime happens by accident. Most crimes are a planned activity.  There are four stages in crime;

1.    Intention

2.    Preparation

3.    Attempt

4.    Commission

The following are explained as follows;

1.             INTENTION

Intention or criminal intent is a state of mind. By state of mind it is meant that what the offender has in his mind; and is only in his mind where the planning is done and no one else knows about his plan. Because it is impossible to read a person’s mind, it is only when he tells about his criminal plan to someone else is when his intention can be established. Planning a crime in mind is no crime, but if the said intention can be established by due evidence then such intention may be punishable in law as the first role of the state police is to stop the crime from happening. It is the first stage of crime process.

 

For, example X is thinking to plant a bomb in Reserve Bank of India, Mumbai. It is not a crime. X tells Y about his plan and Y informs the police. The police can arrest X and proceed against him by lodging and First Information Report (FIR), as X is guilty of planning a terrorist activity. 

 

When knowledge becomes criminal intention

Criminal intention is when A decided to murder B and subsequently A kills B. A is guilty of murder as A had criminal intention (mens rea) and has performed the act of murder (actus reus). But, in certain cases criminal intention or mens rea is not so clear. For example, Ajju is a smoker and is smoking a cigarette sitting in his balcony. Ajju then negligently, without looking throws the cigarette down the balcony. The cigarette causes fire in an apartment causing burns to residents. In this case Ajju is criminally liable. It is so because Ajju while throwing the cigarette down the balcony was expected by law to be aware of the fact that such an act could cause serious damage. Thereby, meaning that Ajju had knowledge that such act of his can in all probability cause a serious damage. Hence, Ajju had criminal intention (mens rea) as he had knowledge that his act could cause a crime. 

 

2.             PREPARATION

Preparation is the second stage where the offender collects material to execute the crime he has planned. Preparation includes collecting acquaintances and other hardware to execute a crime. As prevention is better than cure, a person who is caught preparing for a crime is criminally liable to be prosecuted.

 

For example, X plans a bank robbery (criminal intention). X starts to collect people, Y and Z for helping him commit bank robbery. X buys a country made gun, rope, breaking tools and a gas-cutter. X is said to be preparing for execution of a crime. 

 

3.             ATTEMPT

Attempt is the third stage to a crime, where the offender executes the crime but the end result falls short of its achievement. Attempt is also punishable in law.

 

For example, X is a contract killer. He takes money from Z to kill Y. X plans out the crime and he reaches Y’s home to kill him. X shoots at Y but the bullet misses him. Y is able to flee from his house unharmed. X is liable for Attempt to Murder. 

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

 

4.             COMMISSION

Commission of a crime is the last stage where the offender has already committed a crime. The offender now needs to be caught by the police and be put in jail, after proving his guilt in court trial.

 

For example, X raises demand of dowry from the parents of his wife, W. Upon non-fulfillment of his demand in a fit of rage and anger he kills W. The crime has already been committed.

 

Exceptional circumstances (clubbing of crime stages)

It is not possible for every crime to be planned stage wise by an offender. For example, A and B go out for a celebration and get voluntarily intoxicated. In the middle of a conversation A and B get violent and B is choked to death by A. in such a case A did not make a plan to kill B, nor did he prepare to kill B. His attempt to choke B succeeded and hence B was killed. Will A still be liable for B’s death? Yes, because A at the time of choking B to death was possessed with a criminal intention (criminal mind) and hence liable for the crime of murder, as both contents of crime, actus reus and mens rea, are complete.

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INDIAN CRIMINAL LEGISLATIONS

[1] Indian Penal Code, 1860

The draft of the Indian Penal Code was prepared by the First Law Commission, chaired by Thomas Babington Macaulay in 1835 and was submitted to Governor-General of India Council in 1837. The code contains the following;

a.    It defines acts which shall be a crime.

(acts- human behaviour or way of conduct of a person)

b.    Such acts if done shall deem to be commission of a crime.

c.     Such crimes, if proven, shall lead to punishment by way of imprisonment in jail.

d.    The code specifies the minimum and maximum quantum (amount) of punishment to be awarded to a criminal (guilty person).

The Indian Penal Code is a legislation which can be said to be a booklet of crimes. It contains definitions of different crimes and the punishment prescribed for them. 

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[2] Indian Evidence Act, 1872

The Indian Evidence Act, originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law. The act simply governs what evidence can be and cannot be accepted as evidence in court of law.

This Act is divided into three parts;

Part 1-

It deals with relevancy of the facts, meaning that in order to decide a case what factual circumstances (facts) are relevant and what factual circumstances are not relevant. Also, what relevant facts can be admitted as evidence is also explained.

Part 2-

It consists of Sections that explains of facts which need not be proved (admitted facts), when oral evidence can be admitted and vice-versa, importance and admissibility of documentary evidence.

Part 3-

The last part consists of burden of proof (on who has to prove, the plaintiff or the defendant). It entails concept of estoppel, witnesses, examination of witnesses and about improper admission & rejection of evidence.

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[3] Code of Criminal Procedure, 1963

The Code of Criminal Procedure is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. The code provides for a detailed procedure to be followed from the point of information of a crime till the time the offender serves his jail sentence. It can be said that a life cycle of a criminal is contained in this code. 

It provides the machinery for;

1.    the investigation of crime,

2.    apprehension of suspected criminals,

3.    collection of evidence,

4.    role of police and their conduct,

5.    determination of guilt or innocence of the accused person, and

6.    the determination of punishment of the guilty.

Additionally, it also deals with public nuisance, prevention of offences and maintenance of wife, child and parents (refer to Family Law).

The code also classifies crimes on basis of cognizable crimes and non-cognizable crimes. It further declares crimes to be bailable and non-bailable.

Cognizable

Non-cognizable

Offences where a police officer can arrest an accused person without a warrant

Offences where a police officer cannot arrest an accused person without a warrant

Non-bailable

Bailable

When bail cannot be granted with or without surety and/or is at the discretion of the Magistrate to grant or not grant a bail.

When bail can be granted with or without surety, as of right on commission of an offence, or being accused thereof.

 

Legal Knowledge:-

Bail- the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.

Parole-the temporary or permanent release of a prisoner before the expiry of a sentence, on the promise of good behaviour.

Probation- the release of an offender from detention, subject to a period of good behaviour under supervision.

House Arrest- the state of being kept as a prisoner in one's own house, rather than in a prison.

Remand- is a place (where a defendant is kept) on bail or in custody, especially when a trial is adjourned.

Police Custody- Police has physical control over accused. Police custody is given in non-bailable offences, depending upon the circumstances of the case, to facilitate investigation. Police custody cannot be given in bailable offences.

Judicial Custody- means that the accused is technically in the custody of the Magistrate. Police cannot interrogate a person in judicial custody without permission of the concerned Magistrate/court.

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CRIMES AND CLASSIFICATION

Crimes can be classified under the following headings;

[1] Crimes against Property- crimes that relate to movable and immovable property are discussed in this segment. Actions which are criminal in nature that affects a person’s right to his property, whether movable or immovable, are crimes against property.  

(a)   Theft

(b)   Extortion

(c)   Robbery

(d)   Criminal Misappropriation of Property

(e)   Criminal Breach of Trust

(f)    Mischief

(g)   Cheating

[2] Crimes against Government- These are offences which are committed against the Government of India, or it can be said that the areas over which government has a right are violated by an individual(s).

(a)   Sedition

(b)   Waging a War against Government of India

(c)   Counterfeit (of coin and currency)

[3] Tortious Crimes- Crimes that are an outfall of a tort i.e. offences which are originally tortious concepts but when done with criminal intent become crimes. Example, Defaming a person with the intention to cause him a loss of a specific kind (monetary, loss of relationship etc.) is a crime. A joke (no intention to cause loss) that lead to defamation is a tort.

(a)   Criminal Negligence

(b)   Defamation

(c)   Criminal Trespass

(d)   Wrongful Confinement

(e)   Wrongful Restraint 

[4] Crimes against Human Body- Crimes that are committed on the human body is a separate segment of crimes. It is when bodily injuries are incubated, or personal right to movement in physical form is curtailed. 

(a)   Culpable Homicide

(b)   Murder

(c)   [Right to Private Defence]

(d)   Attempt to Suicide

(e)   Abduction

(f)    Kidnapping

(g)   Hurt

(h)   Grievous Hurt

[5] Crimes of Abetment- Abetment is aiding a crime. When a person helps in a crime or facilitates a crime then it is said to be a crime of abetment. Though the concept is vast but its application to factual circumstances is specific.

(a)   Criminal Intimidation

(b)   Criminal Conspiracy

(c)   Unlawful Assembly

(d)   False Evidencing

(e)   Confession 

[6] Family Crimes- Crimes that are committed in a marital setup are segmented separately. These are offences that arise out of domestic setting of a house-hold. 

(a)   Dowry Death

(b)   Cruelty

(c)   Adultery

(d)   Bigamy

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[1] CRIMES AGAINST PROPERTY

(a)   Theft

Theft is said to have been committed when any person with the intention to steal (move a movable property out of legal possession of another) moves such property is said to have committed the crime of theft.

Essentials to theft;

1.    A person has to have criminal intention,

2.    Moves a property, which does not belong to him (has no ownership over that property),

3.    Moves it out of legal possession, (takes that property away from the true owner)

4.    The property has to be a movable property, no theft can take place of an immovable property,

Is said to have committed the crime of theft.

For example, A goes to a restaurant and with the intention to steal keeps a table spoon in his pocket. He has committed theft. It is immaterial if he later on keeps the spoon back on the table as all essential were complete when he kept the spoon in his pocket (completing all actions required to commit theft).   

Also, A goes for a reception ceremony, where he finds a gold ring. He hides the ring in a flower pot with the intention to come back later and take it away. He has committed theft. It is immaterial whether he comes back later or not as all the ingredients of theft have already been completed.   

Section 378 of the Indian Penal Code, 1860

Section 378. Theft-

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 movable 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 affects 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 the purpose authority either express or implied. Police has physical control over accused. Police custody is given in non-bailable offences, depending upon the circumstances of the case, to facilitate investigation. Police custody cannot be given in bailable offences. Whereas judicial custody means that the accused is technically in the custody of the Magistrate. Police cannot interrogate a person in judicial custody without permission of the concerned Magistrate/court.

Section 379 of the Indian Penal Code, 1860

Section 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.

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(b)   Extortion

Any person who induces fear of causing an injury to the other person and by putting fear asks him to give any property or valuable security (cash, jewelry, ornaments) is said to have committed the crime of extortion.

Essential to extortion;

1.    When a person induces fear,

2.    The fear is in relation to physical injury to one’s own body, or body of kin (wife, daughter, mother, friend etc.),

3.    But actual injury is not yet caused, but there is only fear that injury may be caused,

4.    Asks to deliver property or any valuable security, (gold, cash, signing of property-transfer paper etc.)

5.    Has committed the crime of extortion.

For example, Babbar enters Charlie’s house and threats him to give Rs. 2,00,000/- else he will kill his daughter. Babbar goes to the daughter’s room and hold her by her neck. Babbar has committed the crime of extortion.

Alternatively, Babbar enters Charlie’s house and threats him to give Rs. 2,00,000/- else he will kill his daughter. Babbar goes to the daughter’s room and finds that she is not present in the house. Babbar has not committed extortion, as fear can only be induced when Charlie’s daughter is in possession of Babbar.

Section 383 of the Indian Penal Code, 1860

Section 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 promissory note binding Z to pay certain monies to A. Z signs and delivers the note. A has committed extortion.

(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.

 

Section 384 of the Indian Penal Code, 1860

Section 384. Punishment for extortion

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.

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(c)   Robbery

In theft of extortion when a person also causes injury to the victim, robbery is said to have been committed. The physical injury could be to the victim’s body or to person near and dear to him. This physical injury can even extend up to causing death of a person.

In simple words,

Robbery = theft or extortion + physical injury to body

For example, A enters B’s house to commit theft. While committing theft B wakes up and tries to stop A. A in order to escape his B with a stick and runs away. A has committed robbery.

Alternatively,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.

 

Section 390 of the Indian Penal Code, 1860

Section 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 carving 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.

Section 392 of the Indian Penal Code, 1860

Section 392. Punishment for robbery

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.

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(d)   Dacoity

When robbery is committed by collusion of 5 or more persons then such robbery is said to be crime of dacoity.

Section 391 of the Indian Penal Code, 1860

Section 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, 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".

 

Section 395 of the Indian Penal Code, 1860

Section 395. Punishment for dacoity

Whoever commits dacoity shall be punished with 152[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

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(e)   Criminal Misappropriation of Property

Criminal misappropriation of property is when a person misappropriates or converts a movable property and starts using that property as his own is said to have committed a crime,

Essentials;

1.    A person misappropriates, (makes changes to a movable property that it looks different)

2.    Or converts, (makes changes to movable property that it appears to be a different property)

3.    The person does so with a criminal intention to use such changed movable property as his own.

Has committed the crime of criminal misappropriation of property.

For example, Arkit is a class 12th student and one day while leaving school he finds a 64 GB pen-drive kept on the teachers table in a class room. He takes that pen-drive and paints it with a different colour. In order to give it a different look he also adds a sticker on it. Arkit has committed the above said crime.

Comparative Study Chart

Criminal misappropriation of property

Theft

1.    The movable property is already out of possession.

 

 

2.    The property comes into possession of the person.

 

3.    X finds a pen-drive in a park and misappropriates it to use it as his own.  

1.    The person intends to move a movable property out of possession.

 

2.    The person approaches the property to steal it.

 

3.    X steals a pen-drive from Y’s school bag.

 

Section 403 of the Indian Penal Code, 1860

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 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.

(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.

 

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(f)    Criminal Breach of Trust

When a person is entrusted with a property, movable or immovable, that person misappropriates that property or converts it for his personal use, has committed a crime of criminal breach of trust.

Essentials;

1.    A person has to be entrusted with a property,

2.    That person misappropriates that property, 

3.    Or converts that property,

4.    For his own benefit or use,

Has committed the crime of criminal breach of trust.

For example, Y gives Rs. 20,000/- to X for giving it to Z. X buys a mobile phone for himself with that money that was given to him on basis of trust that he will give it to Z. X has committed a crime of criminal breach of trust.

Criminal breach of trust

Theft

1.    The property is entrusted on a person. It is given in possession on basis of trust on that person.

2.    The property is given in possession of the person.

 

3.    X is given a pen-drive by Y to give it to Z. X keep it and converts it for his own use.  

1.    The person intends to move a movable property out of possession.

 

2.    The person approaches the property to steal it.

 

3.    X steals a pen-drive from Y’s school bag.

 

Section 405 of the Indian Penal Code, 1860

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".

 

Section 406 of the Indian Penal Code, 1860

Section 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.

 

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(g)   Mischief

When a person intentionally causes damage to a public property or personal property, by way of destruction, demolition, diminishing its utility and causing such change that it changes the nature of the property is liable for the crime of mischief.

Essentials;

1.    A person when intentionally and having knowledge,

2.    Destroys a property,

3.    Diminishes the property’s value,

4.    Changes its nature,

5.    The property being public or personal

Is said to have committed mischief.

For example, people who write their name on public historical monuments are liable for the crime of mischief.

Image result for writing names onmonuments

Image result for writing names onmonuments

Photographic Examples of Mischief

 

Section 425 of the Indian Penal Code, 1860

Section 425. Mischief

Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

 

Section 426 of the Indian Penal Code, 1860

Section 426. Punishment for mischief-

Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

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(h)   Cheating

Cheating is said to be have done when a person;

1.    By doing fraud and using dishonest means,

2.    Causes delivery of any property to him,

3.    Or causes any person to do an act which he would not have done if he was not deceived. Deceiving means making a person believe something which is not true.

Has committed the crime of cheating.

For example; X makes false documents of a property showing that the property belongs to him. X makes Z believe that the property is owned by X and takes a token money of Rs. 20,00,000/- in order to sell that property to Z. X has cheated Z.

Cheating by impersonation

Cheating by impersonation means that where a person disguises himself to be some other person which he is not. If X has to pay a sum of Rs. 3000/- to Y. Z impersonates himself to be Y and takes Rs. 3000/- from X, has committed the crime of cheating by impersonation. 

Section 415 of the Indian Penal Code, 1860

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 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".

Explanation- A dishonest concealment of facts is a deception within the meaning of this section.

Section 416 of the Indian Penal Code, 1860

Section 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.

Section 417 of the Indian Penal Code, 1860

Section 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.

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[2] CRIMES AGAINST GOVERNMENT

(a)   Sedition

Sedition is a crime against the government i.e. when any person tries to go against the government or revolts against it in order to overturn the government, commits such a crime. It is a crime of the highest order in Indian Penal Code, 1860. 

If any person by;

1.    by words, either spoken or written, or by signs, or by visible representation,

2.    brings or attempts to bring into hatred or contempt,

3.    or excites or attempts to excite disaffection,

4.    towards the Government established by law in India,

shall be liable for sedition.

Example, X a general candidate is unable to crack IIT-JEE. In frustration against the government he sets fire in a public place in order to attract people’s attention. He then provokes people by giving a speech, “all politicians are corrupt and use reservation for vote bank politics. The government has left all its citizens to die.” and then he asks public to accompany him to the parliament and directly confront all parliament members. Few members of the public agree to accompany X. X has committed sedition.  

Section 124A of the Indian Penal Code, 1860

Section 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, the Government established by law in India, shall be punished with 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.

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.

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(b)   Waging a War against Government of India

 Any person who attempts or actually wages a war against the government of India is said to have committed a crime under this section.

Three conditions are laid down;

1.    A person who himself resorts to war

2.    A person who attempts to wage war

3.    A person who abets in causing war

War means astate of armed conflict between different countries or different groups within a country.

For example, all terrorist activities fall under waging a war against the government.   

Section 124A of the Indian Penal Code, 1860

Section 121. "Waging, or attempting to wage war, or abetting waging of war, against the Government of India-

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

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(c)   Counterfeit (of coin and currency)

Counterfeiting is making fake notes and coins issued by the Government of India. Any person who makes such fake currency or coin is committing the crime of counterfeiting.

Also, any person who knows that the currency he possesses is fake and further transmits it to another person as payment is liable for using counterfeit currency.

Essentials;

1.    Making counterfeit coins

2.    Making counterfeit currency notes

3.    Making counterfeit government stamps

4.    Using of counterfeit coins as revenue/security/payment

5.    Using of counterfeit currency notes as revenue

6.    Using government stamps as original

7.    Selling buying of machine that makes fake counterfeit coins, currency, government stamps etc.

are all crimes of counterfeiting.

For example, A withdraws Rs. 2000/- from an ATM for making payment to B. A without checking the notes makes a payment to B. B after receiving the payment realizes that a fake note of Rs. 100/- has been handed over to him by A. B later uses that note to make a payment to C. B is guilty for the said offence as he knowingly uses a fake note.  

Section 231 of the Indian Penal Code, 1860

Section 231. Counterfeiting coin

Whoever counterfeits or knowingly performs any part of the process of counterfeiting coin, shall be punished with imprisonment of either description for a term which nay extend to seven years, and shall also be liable to fine.

Explanation- A person commits this offence who intending to practice deception, or knowing it to be likely that deception will thereby be practiced, causes a genuine coin to appear like a different coin.

Section 232 of the Indian Penal Code, 1860

Section 232. Counterfeiting Indian coin

Whoever counterfeits, or knowingly performs any part of the process of counterfeiting Indian coin, 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.

Section 255 of the Indian Penal Code, 1860

Section 255. Counterfeiting Government stamp

Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any stamp issued by Government for the purpose of revenue, 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- A person commits this offence who counterfeits by causing a genuine stamp of one denomination to appear like a genuine stamp of a different denomination.

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[3] TORTIOUS CRIMES

(a)   Criminal Negligence

Negligence is omitting to perform a duty liable to be performed as per law. Criminal negligence is intentionally omitting to perform a duty that one is bound to perform.

Essentials,

1.    Presence of a duty which is to be performed,

2.    Performance is bound under law to happen,

3.    Willfully omitting to perform that duty,

4.    Having knowledge that such non-performance can lead to commission of crime,

Such person is liable for criminal negligence.

For example, X is a resident of Surya Society and he resides on the 11th floor. The society had organized a Diwali mela in the society garden. X trying to pull up a prank, throws a cracker bomb in the society garden from the 11th floor. Y and Z get seriously injured. X is liable for criminal negligence because even though X did not intend to injure Y and Z, but X had full knowledge that his act can lead to serious consequences resulting into criminal injuries.

Hence, there was a duty upon X. X should not have thrown a cracker in the Society Diwali mela. He omitted to respect his duty towards other society members. X had full knowledge that his act can lead to dire consequences, but still he did so, thus developing criminal intention to cause damage. Therefore, liable for criminal negligence.       

Another example could be where a train ticket examiner is checking rail reservations of passengers without checking or confirming their credentials from their respective identity proofs. In such a case, where because of the willful negligence of the train ticket examiner, a passenger is allowed to travel who is otherwise not allowed to travel, could hold the TTE criminally liable. 

Ignorance when equals intention

Negligence is closely related to ignorance. Under basic principle, no act is a crime unless and until it is done with the intention to cause a criminal act. Negligence is a tedious case where criminal intention is drawn from reasonable awareness of consequences of one’s act. Like, if A is driving a car at 80km/hr on a busy city street. A meets with an accident injuring Mr. Hari. A even though does not have any intention to hurt anyone or Mr. Hari specifically, but because he knows that such act of rash and speedy driving can lead to a major accident and injure someone; in law it is presumed that A had a criminal intention to injure that person, in this case being Mr. Hari.

[note: in practicality under criminal law, criminal negligence is restricted to causing death by negligence. Only when a person dies due to negligence it is criminally triable.]

Section 304A of the Indian Penal Code, 1860

Section 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.

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(b)   Defamation

Defamation is causing harm to reputation of a legal person. It is a crime when such defamation is caused with an intention/criminal motive to intentionally cause intangible damage to reputation or monetary loss to the victim.

 

Types of Defamation:-

There are two types of defamation, libel and slander.

 

[1] Libel- when the defamatory material is in a permanent form, meaning it can be stored as an evidence. Any material which is in tangible form which has caused defamation. Example, letter, video, card, recordings etc.

 

[2] Slander- when the source by which defamation is caused is in temporary form is called slander. Any material which cannot be saved as evidence or be repeated because of being in intangible form. For example, defamation by spoken words or over an unrecorded phone call.

 

Essentials to defamation,

1.    Any person by words, written documents, signs or any other representation (by libel or slander),

2.    Such words, written documents, signs or any other representation must compulsorily be published, (any third party should come to know about such defamation)

3.    Intentionally causes defamation, loss of reputation,

4.    With a criminal motive/intention to be achieved,

5.    Causes loss/damage to the plaintiff,

has committed the crime of defamation.

For example; A and B are sweet shop owners and are placed across the street with each other. A in order to hamper the sweet business of B, makes a false advertisement in the local newspaper that, “B’s sweet shop is unhygienic and he uses sub-standard material to make his sweets”, because of which B’s sale of sweets drop. A is liable for the crime of defamation.

Another example, A runs a coaching class. G, a student studying in A’s coaching class starts to spread a rumor amongst his school mates that A is having an affair with S, a girl student studying in A’s coaching. Fearing A’s character, parents of girl children start to withdraw their girl child from A’s coaching; causing monetary loss and loss of reputation to A. G is guilty of the crime of defamation.

G may have not intentionally thought of causing monetary loss to A, but legally G is expected to have been reasonably informed that his actions could possibly lead to a criminal act, hence G is criminally liable for defamation.

Injury to reputation

Injury to reputation for a purpose, that a person causing defamation is causing loss of reputation for some personal gain or a hidden motive qualifies from criminal defamation. If a defamation is done accidently then in such a case it will not be a crime but an offence of tort, incubating civil liability, not criminal.

Ulterior motive/ criminal intent-

Under criminal defamation, mens rea is drawn from the motive one has behind defaming a person or a company. Intentionally causing loss of any nature, directly or indirectly, to reputation, causing financial loss, loss of goods, loss of property, loss of credibility etc. is drawn by a hidden cause because of which he is causing such defamation. Such motive is important to establish as this proves that he had mens rea to cause defamation.

Publication

No act of defamation is a crime unless and until it is published. Publication means that such defamatory action (by speech, writing or otherwise) has to be exposed to a third party. If any defamatory content is exchanged only between the plaintiff and the defendant, the act is not defamation and not a crime.

For example, X and Y are rival politicians. They exchange abusive words between themselves in a closed room. No one, either X or Y, can make a successful case of the crime of defamation as the defamatory content was not published i.e. no one else, apart from X and Y, came to know about the such defamation. In this case if Z over hears the conversation between X and Y, the defamatory content is said to have been published and a case of defamation is made out.

Voluntary publication-

When the defamatory content is published by the victim himself, in such a case publication is not said to have been made. For publication to be complete, it has to be published by the defendant (the one who is defaming) and if not so, then defamation is not said to have been made, as publication was never made.

For example, A writes a defamatory letter to his Boss. The boss in retaliation puts up the letter on the notice board and fires A from the job. The boss later cannot file a case of defamation against A, as the boss himself published the letter (exposed it to third parties) by pasting it on the notice board.

Alternatively, if A writes a defamatory letter to his boss in Urdu language, knowing that the boss cannot read Urdu. The boss receives the letter and then shows it to a translator to read out the meaning of the letter to him. In this case A is liable for the crime of defamation, as A reasonably knew that in all probability his boss would not know how to read and understand Urdu and he will have to show it to a third person to read it for him, thereby causing publication of the letter.

Alternatively, A writes a defamatory letter to his boss and keeps it on his table. Z, boss’s secretary open and reads the letter. A will not be liable for defamation as A did not publish the letter nor did he intend to publish the letter.

Alternatively, A writes a defamatory letter to his boss. The boss was having lunch when he received the letter. Not wanting to open the letter with dirty hands, he asks his secretary, Z to read out the letter to him. A is not liable for defamation as he did not cause the publication of the letter. 

Exceptions to Defamation

[1] Domestic setting:-no defamation caused between a legally wedded man and woman is an offence. Both are exempted from being liable under the crime of defamation. 

Example, A comes home and tells his wife, W about how stupid and idiot his boss is. W while attending a kitty party tells her friend, F about A’s boss and what A thinks about him. In this case all communication between A and W is fine, but when W told F, she committed the crime of defamation as she now steps outside the scope of exception. 

[2] Politicians in Parliamentary Capacity:- no defamation caused between politicians in the house of parliament when the parliament is in session is a crime. All members in central and state legislative parliament are exempted from being liable under the crime of defamation when the gathering is in session. All public statements can be held against a candidate for the crime of defamation.

Section 499 of the Indian Penal Code, 1860

Section 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 expected, to defame that person.

Explanation 1- It may amount to defamation to impute anything to a deceased person, if 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 loath some state, or in a state generally considered as disgraceful.

Section 500 of the Indian Penal Code, 1860

Section 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.

 

Comparative Study Chart

Libel

Slander

Permanent form of defamation

Temporary form of defamation

Can be preserved as a form of an evidence

Cannot be preserved as a form of an evidence

Letter, video, phone recordings

Spoken words, snap-chat, phone calls

 

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(c)   Criminal Trespass

When any person trespasses a property of another with the intention to cause any illegal or unlawful act to that person who is in possession of the property is liable for the crime of criminal trespass.

Essentials,

1.    A person trespasses a property,

2.    Which is in possession of another,

3.    With the intention to commit an illegal or an unlawful act,

4.    To that person, enters that property

is said to have committed the crime of criminal trespass.

For example, X is a spy. In order to procure sensitive information he enters a prohibited zone of Reserve Bank of India. X has committed the crime of criminal trespass. 

Section 441 of the Indian Penal Code, 1860

Section 441. Criminal trespass

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".

Section 447 of the Indian Penal Code, 1860

Section 447. Punishment for criminal trespass

Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.

 

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(d)   Wrongful Confinement

When a person illegally with a criminal motive circumscribes another person within a defined boundary limit is said to have committed the crime of wrongful confinement.

Essentials,

1.    When a person illegally or unlawfully

2.    Restraints a person in a limited area

3.    With a motive to achieve a criminal task

has committed the crime of wrongful confinement.

For example, A locks B in a room to stop him from producing himself as a witness in court of law. A has committed the crime of wrongful confinement.

Also, X in order to take revenge from Z, steals X’s passport, due to which X is unable to leave the premises of India. X has committed the crime of wrongful confinement.

Section 340 of the Indian Penal Code, 1860

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.

Illustrations

(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.

Section 342 of the Indian Penal Code, 1860

Section 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.

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(e)   Wrongful Restraint

When a person illegally or unlawfully to support his criminal motive restrains a person from moving in a direction to which he is legally entitle to move towards, has committed the crime of wrongful restraint.

Essentials,

1.    A person illegally or unlawfully,

2.    To support his hidden criminal motive

3.    Stops a person to move in a certain direction

4.    To which that person is legally entitled to move in

is said to have committed the crime of wrongful restraint.

For example, X ties up Y with ropes and throws him in a public dustbin; X has committed the crime of wrongful restraint.

A is obstructing B from crossing a bridge without and reason. A knows that he has no sufficient reason to stop B from moving in a direction he desires. A has committed the crime of wrongful restraint.

Section 339 of the Indian Penal Code, 1860

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 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.

Section 341 of the Indian Penal Code, 1860

Section 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 rupees, or with both.

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Comparative Study Chart

Wrongful Restraint

Wrongful Confinement

To confine a person completely or illegally stopping him to move in a specific desired direction

To confine a person within a periphery or a circumference

X by use of a gun, stops Z from giving  a testimony (statement given by a witness to a crime) in the Magistrate’s Court.

A illegally and with a criminal motive to loot the house, locks B in a room. A is liable under this crime.

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[4] CRIMES AGAINST HUMAN BODY

(a)   Culpable Homicide

The word culpable means ‘responsible’. Homicide means ‘death’. Hence a person who is responsible for causing death of another person is liable under culpable homicide.

There are three categories of responsibility under culpable homicide;

[a] with intention to cause death- (also specifically called as murder)

A shoots B in the head. A intention is clear hence is liable for culpable homicide.

[b] with the intention of causing bodily injuries which are likely to cause death-

P is a psychopath. He ties up Q in an apartment and makes cuts on Q’s body causing excessive bleeding. Q dies. P is liable for culpable homicide.

[c] having knowledge that by such act he will cause death-

X knows Y cannot swim. X pushes Y into a river. X is liable for culpable homicide. Also, X adds poison to Y’s drink. Y dies. X is liable for culpable homicide.

Section 299 of the Indian Penal Code, 1860

Section 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

(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 laboring 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 skillful treatment the death might have been prevented.

Explanation 3- The causing. of the death of 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.

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(b)   Murder

Murder can be empirically said to be a subset of culpable homicide. Those special cases of culpable homicide where death of a person has been caused with the criminal intention to cause death is called murder.

Essentials to murder,

1.    A person who has the intention to kill a person,

2.    Having knowledge that his act will kill that person,

3.    Kills that person,

is guilty of the crime of murder.

For example, X shoots Y with the intention to kill Y; shooting him in the head, as X is a contract killer. X is liable for Y’s murder.

Section 300 of the Indian Penal Code, 1860

Section 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-

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 shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

 

Section 302 of the Indian Penal Code, 1860

Section 302. Punishment for murder

Whoever commits murder shall be punished with death, or 104[imprisonment for life], and shall also be liable to fine.

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(c)   Right to Private Defence [Defence]

Right to private defence is a right to physically injure a person, who under reasonable apprehension will cause injury to you, if no action is taken against him. This right to defence can be exercised for one’s own body, property and body of other persons, against danger caused by another.

For example, X and Y meet with an accident on the road. Y being highly short tempered pulls out a gun on X. X pushes Y off the road and runs away. X has exercised the right to private defence.

 

Objective

The objective of this right is to let the victim escape the situation by causing minimum injury to the other person. This right in no way allows the person, who is defending himself, to cause excess damage in the name of private defence. It has to exercised cautiously and with reasonability as to merely run away from the incoming threat.

 

Essential conditions for exercise of the Right to Private Defence;

 

[1] Imminent threat: the threat has to be imminent for one to have the legal right to exercise private defence. Imminent means immediate. If a person has no time to escape the incoming injury and is left with no option than to confront the intruding person, only then such right can be exercised.

For example, A is a lunatic and somehow comes into possession of a sharp knife. Running on the street, A starts chasing F and corners him. F now left with no option hits A on his leg to dislodge him and runs away. F is not liable as he has rightfully exercised his right to private defence.

Alternatively, if A is approaching F in an open ground, where F can run away easily. In this case if F injures A. F is criminally liable for causing hurt to A.

 

[2] Reasonable Reaction: the responding action to the threat has to be reasonable in eyes of law. Reasonable action means the retaliation force that is used for self defence should not be excessive and dis-proportionate to the incoming danger.

For example, A is approaching B with an iron rod, B in order to defend himself cannot take out a gun and shoot B straightaway. This action is unreasonable and dis-proportionate.

Alternatively, in the same case if B warns A by showing a gun and then tells him that if you come close I will shoot you. Still if A is approaching B to hit him with an iron rod, B can at most shoot A in the hand or leg; as to escape the situation. This is called reasonable reaction to the incoming danger.  

 

Scope of Right to Private Defence

Under any given circumstance the right to private defence does not extend to taking of a person’s life or causing death of a person. If a person kills another is exercise of right of private defence then such person will be compulsorily tried under the crime of culpable homicide, even though he is acquitted later, but a case shall be registered. 

 

Note: culpable homicide vs. murder

If a person is intentionally and knowingly killed for self defence, such a person is still tried under the crime of Culpable Homicide; as in this circumstance the death was caused with intention to cause death (not being criminal intention) but to protect oneself. In any case it completes the essentials of culpable homicide, as the defender is the reason of death. It is not murder because even when there was intention to kill, it lacks a criminal intent or criminal motive, hence not murder.

 

Comparative Study Chart

Culpable Homicide

Murder

When a person is responsible for a person’s death.

Three circumstances:

[1] with intention to cause death

[2] by causing injury which is known to cause death

[3] by committing an act which causes death

When a person intentionally and knowingly takes life of another person is called Murder.

If a person is intentionally and knowingly killed for self defence, such a person is still tried under Culpable Homicide

In murder, the intention to cause death of a person is criminal in nature and does not include cases of self defence

 

Section 96 of the Indian Penal Code, 1860

Section 96. Things done in private defense

Nothing is an offence which is done in the exercise of the right of private defense.

Section 97 of the Indian Penal Code, 1860

Section 97. Right of private defense of the body and of property

Every person has a right to defend,

First-   His own body, and the body of any other person, against any offence affecting the human body;

Secondly-   The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 98 of the Indian Penal Code, 1860

Section 98. Right of private defense against the act of a person of unsound mind, etc.

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defense against that act which he would have if the act were that offence.

 

Illustrations

Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defense which he would have if Z were sane.

Section 99 of the Indian Penal Code, 1860

Section 99. Acts against which there is no right of private defense

There is no right of private defense against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

 

[1] There is no right of private defense against an act which does not, reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law

 

[2] There is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised-

[3] The right of private defense in no case extends to the inflicting. of more harm than it is necessary to inflict for the purpose of defense.

 

Explanation 1-   A person is not deprived of the right of private defense against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2- A person is not deprived of the right of private defense against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 100 of the Indian Penal Code, 1860

Section 100. When the right of private defense of the body extends to causing death

The right of private defense of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

[1] First-   Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

[2] Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

[3] Thirdly-   An assault with the intention of committing rape;

[4] Fourthly- An assault with the intention of gratifying unnatural lust;

[5] Fifthly-   An assault with the intention of kidnapping or abducting;

[6] Sixthly-   An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

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(d)   Attempt to Suicide

Committing suicide is often debated and demanded to be a private fundamental right under Article 21 of the Constitution of India. But if such right is given, then it will cause havoc in society, leading us again into barbarism. Thus, attempt to suicide is a crime. If a person performs any act which will result into causing death of himself, then such person is liable for the crime of attempt to suicide.

 

Essentials,

[1] a person must be caught attempting

[2] or performing such an act

[3] which will result into his own death

is liable for attempt to suicide.

 

For example, X is running towards a dried-deep well. Y catches X in the path before X is able to approach the well. X is not liable as X’s intention is not known.

Alternatively, X is shouting and running towards the well in an attempt to commit suicide. In such a case if Y catches him, X shall be guilty of the crime as his intention was now clear from his shouting of what he was going to do.       

Section 309 of the Indian Penal Code, 1860

Section 309. Attempt to commit suicide

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine, or with both.

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(e)   Abduction

Any person using criminal force by fraud in a deceitful manner compels a person to be in a place which he otherwise would not so desire if not so deceived commits the crime of abduction.

Essentials;

[1] a person uses fraud and deceitful means

[2] to cause a person to be in a place

[3] which he otherwise would have not desired to be in that place

[4] if he would have been not so deceived

commits abduction.

 

For example, A calls B for dinner at his place and then locks him in a room. A has committed abduction, as B was under the impression that he was being called for a meal and would have not come otherwise. This is caused by fraud and deceiving B.

Harish, a wealthy merchant, gets a call from Rani for a business meeting. Harish when reaches the spot is tied with ropes and demand for money is raised. Harish has been abducted as he was deceived first and then compelled to be in a place which he otherwise does not desire to be in.   

Section 362 of the Indian Penal Code, 1860

Section 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.

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(f)    Kidnapping

Kidnapping is said to be committed when a person by use of physical force is compelled to be in a place which he does not desire to be in. kidnapping generally lacks the element of fraud commission and use of deceiving techniques.

 

Essentials;

[1] when a person is illegally restricted to a place

[2] by use of physical/criminal force

[3] which he does not desire to be in

is said to be subject to kidnapping.

 

For example, A, a businessman sits in his car and finds a man sitting on the back seat pointing a gun at him. A is then compelled to drive to a far-away house in a village. A has been kidnapped, as only by using criminal force (gun) without any deceitful means he was compelled to be in a place which he does not desire.

 

Also, Pappu, a school going boy is picked/pulled into a van outside his school and then driven away. Hence, only physical force was used making it a crime of kidnapping.  

Types/Kinds of Kidnapping under Indian Penal Code, 1860

Section 359 Kidnapping (general definition)

Section 360 Kidnapping from India

Section 361 Kidnapping from lawful guardianship

Section 363A Kidnapping or maiming a minor for purposes of begging

Section 364 Kidnapping or abducting in order to murder

Section 364A Kidnapping for ransom, etc.

Section 365 Kidnapping or abducting with intent secretly and wrongfully to confine person

Section 366 Kidnapping, abducting or inducing woman to compel her marriage etc.

Section 366A Procuration of minor girl

Section 366B Importation of girl from foreign country

Section 367 Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.

Section 368 Wrongfully concealing or keeping in confinement, kidnapped or abducted person

Section 369 Kidnapping or abducting child under ten years with intent to steal from its person

 

Comparative Study Chart

Kidnaping

Abduction

Compelling a person to be in a place by use of physical or criminal force

Compelling a person to be in a place by use of fraudulent and deceitful techniques or manner

Perception: kidnaping is a term associated with minors is an incorrect perception. It is because minors are physically weak and can be over-powered, hence are generally kidnapped. 

Perception: abduction is a term associated with major persons is an incorrect perception. It is because a major person is physically strong and difficult to over-power, hence are generally deceived before they could be kidnapped/abducted.

Kidnapping is not a crime by itself, as explained above it is connected with a criminal motive.

For example, kidnapping for ransom, hence kidnapping is being done to generate demand for ransom.

Abduction is a crime in itself as covered in the Indian Penal Code.

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(g)   Hurt

Any person who causes bodily pain, disease or infirmity to any person commits the crime of hurt. Under the crime of hurt a temporary bodily injury is causes, from which the person can recover with time. If the injury is permanent it is not hurt but grievous hurt.

In illustration-

[1] bodily pain- if A slaps B without any reasonable cause. A is said to commit the crime of hurt. If A being a teacher slaps B for not doing his homework, A is not criminally liable for causing hurt but may be civilly liable for battery.

[2] disease- X knows that Y is allergic to kokum seeds which cause Y rashes all over his body. X knowing induces Y with kokum seeds causing him bodily rashes is said to commit hurt.

[3] infirmity- it means to cause physical or mental weakness. F knows that E is a chronic stress patient and cannot stay healthy without medications. F replaces E’s medication with the objective to cause E stress. E falls ill due to the act carried out by F. F is liable for the crime of hurt.  

Section 319 of the Indian Penal Code, 1860

Section 319. Hurt

Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

 

Section 321 of the Indian Penal Code, 1860

Section 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".

 

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(h)   Grievous Hurt

When hurt caused is of a permanent nature it is called grievous hurt. When a body part is disabled permanently or any bodily function which is disrupted permanently is said to be covered under grievous hurt.

 

Under the Indian Penal Code, 1860, the following are said to cause grievous hurt;

1.    Emasculation- the removal of the external male genitals. 

2.    Permanent damage to the sight of either eye.

3.    Permanent damage to the hearing of either ear.

4.    Damage to bones or joints.

5.    Destruction or permanent damage to human skeleton or muscle body.

6.    Permanent disfiguration of the head or face.

7.    Fracture or dislocation of a bone or tooth.

8.    Any hurt which endangers life or causes sufferance for a period of twenty days (20 days) in severe bodily pain, or unable to follow his ordinary routine.

 

Section 320 of the Indian Penal Code, 1860

Section 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,

Fourthly- Privation of any member or joint.

Fifthly- Destruction or permanent impairing 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.

Section 322 of the Indian Penal Code, 1860

Section 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 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 cause Z to suffer severe bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.

 

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[5] CRIMES OF ABETMENT

(a)   Criminal Intimidation

The word intimidation means to create pressure by inducing force or coercion. Criminal intimidation means unlawful use of force, using criminal pressure against person, property or reputation, with a defined criminal motive. It simply means, putting a person into criminal fear of harm, demanding the victim to do an act in pressure of that fear.

 

For example, X is a witness in a criminal case, where Y is the accused. On the date when X was supposed to witness against Y, Y’s gang members enter the house of X and tells him, “you are free to go, but if you say anything against Y in court, your house will turn into ashes.” This is criminal intimidation.

 

Hence, the following essentials can be drawn;

[1] when a person threatens another person (victim),

[2] to cause the victim injury,

[3] injury to person (physical injury), property or reputation,

[4] with a clear criminal motive

[5] making the victim do something which he is not legally bound to do,

[6] but the victim does so, to avoid the execution of threat,

Commits criminal intimidation.

 

Likewise, Mr. Gazi enters a chemist shop and demands for a hazardous chemical, Nitrous-peri-oxide, which can only be issued to persons who have a valid chemical license issued by the government of India. The shopkeeper refuses to sell the chemical to Gazi, upon which he threats the shopkeeper that if he will not sell the chemical to him then he will shoot him. The act of criminal intimidation is complete.

 

Section 503 of the Indian Penal Code, 1860

Section 503. Criminal intimidation

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

Illustration

A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.

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(b)   Criminal Conspiracy

Conspiracy means to plot or plan. Criminal conspiracy means to plot or plan a criminal act; it is a group crime, where if two or more persons commit an illegal act or a legal act illegally, then all such persons are liable for criminal conspiracy. Criminal conspiracy is caused when the persons agree to do a crime, thus it is deemed to be committed even when the crime is not executed, but is just planned for. All such persons who have together decided to commit an illegal act (or legal act illegally) are liable to have committed that crime.

 

Essentials;

[1] when two or more persons,

[2] decide to commit-

(a) an illegal act

(b) a legal act illegally

            [3] are liable under criminal conspiracy.

For example, A, B and C decide to commit ATM robbery and they prepare for the same, are liable under criminal conspiracy.

 

Limited act not to reduce criminal charge

In the above example, if A and B were to enter the bank compound to rob the ATM and C was to wait in a running car, helping A and B flea from the crime spot; all three are equally liable for the crime as they together decided to commit that crime. In this case C will not be excused because he never entered the bank compound to commit the crime, but in fact he was an involved party to the crime, thus making him equally liable under criminal conspiracy.  

 

Act done contrary to agreement

When any person involved in criminal conspiracy does an act which was not decided by the group, that person is individually liable for the crime. For example, A, B and C decide to rob a bank, but they clearly decide that none of them will injure or cause death of any person while robbing the bank. A, B and C after robbing the bank are running towards their car to run away from the spot. A is resisted by the bank watchman, when A pulls out a gun and shoots the watchman dead. In this case, A is individually liable for murdering the watchman.

 

Likewise, X, Y and Z decide to commit theft in a house. Z’s role is to wait for X and Y on a motorcycle. X’s role is to break the house door and keep a watch. Y’s role is to collect valuable articles from inside the house. The owner of the house wakes up in between and Y in order to successfully run from the house shoots the owner on his arms and legs.

In this case even though X and Z did not actually by themselves commit theft, but because they were party to the crime and had agreed upon the commission of the act, are equally liable under criminal conspiracy.

Also, Y is solely liable for shooting the owner of the house, as this act was not part of the agreement, not being agreed upon by X and Z.

Section 120A of the Indian Penal Code, 1860

Section 120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation-   It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

 

Section 120B of the Indian Penal Code, 1860

Section 120B. Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

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(c)   Unlawful Assembly

In simple terminology for understanding purpose, when criminal conspiracy is done by five or more persons it is said to be unlawful assembly. Though it may not be the correct position in criminology; unlawful assembly is a more serious gathering which has the capacity to disturb legal processes, causing breach of public peace. 

 

Essentials under Section 141 of the Indian Penal Code, 1860, assembly is gathering of five or more persons with a criminal objective. When five or more persons come together with a ‘common object’, an object to commit the following;

[1] to use criminal force against lawful act of a public servant; stopping him from completing his legal/lawful duty.

[2] to resist the enforcement of any law or legal process.

[3] to commit mischief or criminal trespass by use of criminal force.

[4]by use of criminal force, obtaining a property of a person or stopping a person to enjoy a property which he is legally entitled to use.

And/or

[5] to use criminal force, or show of criminal force, compelling any person to do what he is not legally bound to do, or to omit to do what lie is legally entitled to do.

 

For example, assembly of people with the objective to commit rioting. Also, if a gathering is acquired with the objective to vacate a public office, are examples of unlawful assembly. 

 

[Note:- ‘Criminal Force’ is an act in which by use of physical, mechanical, influential, intimidation or any combination of the above a person unlawfully forces a person to do something or omit to do something which is unlawful, illegal or so done without the wish of that person.

Section 350 of the Indian Penal Code, 1860

Section 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.]

 

Section 141 of the Indian Penal Code, 1860

Section 141. Unlawful assembly

An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-

[1] First-   To overawe by criminal force, or show of criminal force, 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

[2] Second-   To resist the execution of any law, or of any legal process; or

[3] Third-   To commit any mischief or criminal trespass, or other offence; or

[4] 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

[5] 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 lie is legally entitled to do.

Explanation- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

 

Comparative Study Chart

Criminal Conspiracy

Unlawful Assembly

An agreement to commit a criminal act

A meeting of 5 or more people likely to cause breach of peace or to endanger the public

Generally, it limits to cause of crime against an individual or limited scope of persons

It is a more serious offence which has the capacity to cause disruption of public peace and tranquility. In example, offences planned against government processes of law

Common agreement determines the liability of crime

Common object determines the liability of the crime committed

Two or more persons involved in a crime

Five or more persons involved in a crime

 

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(d)   False Evidencing

When a person who is under oath to state the truth, intentionally makes a statement which is not true is said to be guilty of the crime of giving false evidence.

 

Essentials for the crime of giving false evidence;

[1] when a person is under oath

[2] he knowing make a statement,

                        [a] which he knows to be false

                        [b] which he believes to be false

                        [c] which he knows or believes to be not true

[3] makes that incorrect statement, which he is bound under law to make;

Is guilty of the crime of giving false evidence.

 

For example, Y is a witness to a crime scene and initially agrees to make a statement in the court of law. Later, Y thinks that why should he trouble himself by going to the court again and again to make statements; and thus, makes a statement in court under oath that he has not seen anything. Y is guilty of the crime of false evidencing.

If a person makes a false oath under coercion or threat, he is not guilty of the said crime, as the act of giving false evidence is not intentional (lack of mens rea). 

 

Fabrication of False Evidence

When any person by an explicit act places evidence or material as to depict an innocent person guilty of a crime which is not committed by him, is said to be fabricating false evidence.

 

For example, A commits the murder of C using a knife. J, who is A’s best friend hides that knife in the house of D, as to show that D is the murderer. J commits the crime of fabricating false evidence. 

Section 191 of the Indian Penal Code, 1860

Section 191. Giving false evidence

Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1- A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2- A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

Illustrations

(a) A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B's claim. A has given false evidence.

(b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which he knows to be false, and therefore gives false evidence.

 

Section 192 of the Indian Penal Code, 1860

Section 192. Fabricating false evidence

Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".

Illustrations

(a) A, puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.

(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.

 

Section 193 of the Indian Penal Code, 1860

Section 193. Punishment for false evidence

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, 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 whoever intentionally gives or fabricates false evidence in any other case, 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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(e)   Confession

 

Section 164 in The Code Of Criminal Procedure, 1973

Section 164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

 

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B. Magistrate".

(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

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(f)    Rioting

Whenever force or violence is used by an unlawful assembly, and such assembly has decided to act upon a ‘common object’, then every member of such assembly is guilty of the offence of rioting. The common objective could be in relation to disrupting public peace generally, not allowing the executive to execute a law, protesting illegally by using violence, etc. are all elements of rioting.

Essentials to rioting,

[1] when by use of criminal force or violence,

[2] members of unlawful assembly pursue a ‘common object’

[3] to disrupt public peace and tranquility

commit the offence of rioting.  

 

Section 146 of the Indian Penal Code, 1860

Section 146. Rioting

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Section 147 of the Indian Penal Code, 1860

Section 147. Punishment for rioting

Whoever is guilty of rioting, 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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[6] FAMILY LAW CRIMES

(a)   Dowry Death

Atrocities against women has been an ancient practice of regime in different eras, where women were kept devoid of their rights, many a times denying needs beyond humanitarian pursuit. This legislation is in furtherance to protection of women who face cruelty in their married life for something beyond their control, dowry. Demand and acceptance of dowry is not only prohibited, but illegal under theDowry Prohibition Act, 1961,Protection of Women from Domestic Violence Act, 2005, section 198A of the Criminal Procedure Code, 1973 and under Section 498-A of the Indian Penal Code, 1860.

 

When death of a woman is caused over demand or dowry, the persons causing such death of a woman are guilty of dowry death. Dowry death is different from murder of a woman, as in dowry death the in-law’s family, friends and relatives could be co-jointly liable for such death of a woman. Also, dowry death is a provision only invokable against death of a woman only.

 

The essentials of dowry death are as follows;

[1] where death of a woman

[2] is caused by burns or bodily injury

[3] within 7 years of marriage

[4] and was subject to cruelty right before her death

[5] such exercise of cruelty was with respect of dowry

such husband, in-laws, friends or relatives are liable for the crime of dowry death.

 

Hence, dowry death is caused when a death of a woman is caused by burns or bodily hurt (in order to show that the women committed suicide by hanging herself or by burning), within 7 years of marriage and she was subject to cruelty (in demand of dowry) right before her death.

 

Why 7 years?

A person can be held guilty under Section 304B of the Indian Penal Code, 1860 only when the death of such woman has been caused within 7 years of the marriage. It is so because the legislature while framing such law deems 7 years to be reasonable and sufficient time period into the marriage, that after expiry of the said time, the women will not be subject to cruelty on demand of dowry. While, there could be other reasons on basis of which a woman could be subject to cruelty. Hence, we learn that our law makers have also to look into practicality of criminal law drafting as to even prevent misuse of protective provisions.   

Section 304B of the Indian Penal Code, 1860

Section 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 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- For the purpose of this sub-section, "dowry" shall have the same meaning. as in section 2 of the Dowry Prohibition Act, 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.

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(b)   Cruelty

Cruelty is a crime that can be exercised by a husband to his wife. It is a law that protects the interest of a woman. Cruelty means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, being mental or physical; or

(b) harassment of the woman with a view to force her to meet any unlawful demand for any property, cash, jewelry or other gifts, by her or by any person related to her to meet such demand.

 

Hence, when a person himself or his relatives subject that person’s wife to harassment causing her mental or physical harm, or demand from her valuable assets and security, all of which resulting into threat to her life is said to have committed cruelty.

 

For example, Ajit Kavde since childhood is fascinated by the delicious dishes his mother makes for him. He gets married to Shujeeta and starts living independently in a different house. Shujeeta is unable to replicate the taste of the food made by her husband’s mother. After sometime into the marriage Ajit gets frustrated and starts to beat his wife. Ajit is liable for the crime of cruelty. 

Section 498A of the Indian Penal Code, 1860

Section 498A. Husband or relative of husband of a woman subjecting her to cruelty

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

 

Explanation- For the purpose of this section, "cruelty" means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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(c)   Adultery

Having sexual intercourse outside one’s wed-lock is a crime. Any man who has sexual intercourse with a woman (with her consent) whom he knows or has sufficient reasons to believe that she is wife of another man, is guilty under the crime of adultery.

 

No man is guilty of adultery if the woman has given the man sufficient reasons to believe that she is not married and is over and above 18 years of age. 

 

Charge or adultery against women

A woman cannot be liable for the crime adultery, but could be held liable for abetting the crime of adultery. Thereby meaning that a woman is not liable for the crime of adultery but is liable for facilitating or helping a person to commit the crime of adultery.

 

Section 497 of the Indian Penal Code, 1860

Section 497. Adultery

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.

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(d)   Bigamy

‘Bi’ means two and ‘gamy’ means marriage. A person having two simultaneously subsisting and one being subsequent marriage is illegal and it is a crime under the Indian Penal Code. Any person who has a living husband or a wife, marries again without obtaining divorce from such spouse, is guilty of the crime of bigamy.

Effect of second marriage

The second marriage so made is null and void since the very start, as it is a crime and cannot be validated by any law; being in contravention to the criminal legislation of the Indian Penal Code, 1860.

Exception

Muslim marriages are an exception to this as their personal family law (specific law) supersede over the Indian Penal Code (general legislation). If a Muslim male marries till three times after his first marriage with the consent of his earlier wives at the time of marriage, he is allowed to do so under his personal marriage laws.  

Section 494 of the Indian Penal Code, 1860

Section 494. Marrying again during lifetime of husband or wife

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception- This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during. the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are with in his or her knowledge.

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