Criminal Law SRM Uni Presentation PDF

Short Term Certificate Course on New Criminal Laws Topic : Incomplete Offences (Attempt, Abetment and Conspiracy) DR. HARDIK H. PARIKH ASSISTANT PROFESSOR OF LAW & HEAD, TRAINING DIVISION, FACULTY CONVENER : LEGAL SERVICES COMMITTEE & PRO BONO...

Short Term Certificate Course on New Criminal Laws Topic : Incomplete Offences (Attempt, Abetment and Conspiracy) DR. HARDIK H. PARIKH ASSISTANT PROFESSOR OF LAW & HEAD, TRAINING DIVISION, FACULTY CONVENER : LEGAL SERVICES COMMITTEE & PRO BONO CLUB COURSE COORDINATOR : PG DIPLOMA IN INTELLECTUAL PROPERTY RIGHTS CONTACT: [email protected], 8128650883 2 Criminal Law Criminal Law is defined as “a body of rules that defines the conduct prohibited by the State for being harmful to public safety and welfare and also prescribes punishment to be imposed for the commission of such acts”.  Criminal Law / Penal Law 3 deals with acts of intentional harm to individuals. In a larger sense, it can be said that it deals with offences against the State. Crime, in a Civilized Society, is considered to be a breach of duty, committed not only against a single individual, but also against the society at large. In other words, it is a breach of duty towards the public as a whole for which the offender is punished by the society or the State. A crime is a deliberate or reckless act that causes harm to another either to his/ her person or to his/her property. Moreover, it is also a crime to neglect a duty to protect others from harm. Criminal Law refers to the body of laws which deal with crimes and their consequences.  4 In Criminal Law, an individual may report a crime but can never file a case against another individual, only the government can file the case against the offender. Criminal Law defines the various offences caused to human body and property and also prescribes punishments for them. The objective of Criminal Law is to punish the wrongdoer and to deter him/her from repeating the commission of the crime again - Crime and punishment are two sides of the same coin. Every act that endangers social harmony is a crime. In fact, crime is an act forbidden by law, and thus any person committing crime is liable to punishment.  5 The basic concept of Criminal Law is based on the maxim “actus non facit reum, nisi mens sit rea”, which means that an act itself does not constitute a crime, unless it is accompanied with a guilty intention. A crime cannot be committed unless it is accompanied with a guilty mind. Similarly, mere guilty mind also does not constitute a crime unless it is accompanied with a wrongful act. E.g : if a person merely thinks of committing an act of kidnapping, he/she will not be called a kidnapper. This guilty intention must be accompanied by the wrongful act of kidnapping to constitute the crime. Similarly, when somebody strikes another person, it is the crime of assault but the person will only be liable if the blow was intentional.  Incomplete / Inchoate Offence 6 Inchoate – Unfinished / underdeveloped Offences which are not completed – they are performed in the process of commission of the final crime Help / aid in the final commission of crime 7 Two Elements of Crime Mens Rea – Guilty intention to commit any crime Actus Reus – Actual Commission of the Act 8 Incomplete / Inchoate Offence Only fulfilment of mens rea aspect and not the actus reus element  Incomplete / Inchoate Offence 9 Origin due to precautionary method to stop commission of crime. Prevention of the actual crime by making the step taken for the furtherance of a crime as an offence Originally attempt to commit crime – gradually, abetment and conspiracy also added. 10 Types of Crimes Under this category Abetment Attempt Conspiracy 11 Abetment A person doesn’t commit a crime himself but instead persuades the other person to commit the crime Section 107 and 108 of IPC Section 45 to 60 of the Bharatiya Nyaya Sanhita 12 Abetment In abetment, act of instigating, encouraging or aiding is seen as actus reus – intention behind doing this relates to mens rea Satisfied both elements needed for the offence 13 Attempt No direct definition of attempt Can be read with Section 511 of IPC (Sec. 62 of BNS) Movement towards commission of crime after preparation is done 14 Stages of Commission of Crime Idea / intention to commit crime Preparation Attempt Actual Commission 15 Attempt in three ways 1. Commission of offence and attempt both in same section and same punishment – Sec. 124 A (Sec. 152 of BNS) 2. Separate offences – punished separately – Sec. 307 (109 BNS) : Attempt to Murder, Sec. 308 (110 BNS) : Attempt to culpable homicide. 3. Offences not covered by above two – Sec. 511 of IPC (Sec. 62 of BNS) 16 Conspiracy Takes place when parties agree to commit an illegal act and take steps to complete the crime. Different from attempt – Person can be charged with both conspiracy to commit the crime and for the crime itself if it is committed  17 Criminal Conspiracy Sec. 120 A and 120 B of IPC : 61(1) and 61 (2) of BNS Act should be committed by two or more persons and there should be an agreement between them to commit an illegal act or a legal act by illegal means 18 Chapter IV of BNS Of Abetment, Criminal Conspiracy and Attempt  Sec. 45 – Abetment of a thing 19 A person abets the doing of a thing who – (a) instigates any person to do that thing or (b) engages with one or more other person or persons in any conspiracy for the doing of that thing , if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or (c) intentionally aids, by any act or illegal omission, the doing of that thing.  20 Explanation 1 – A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure a thing to be done is said to instigate the doing of that thing. Explanation 2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitation the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.  Sec. 46 – Abettor 21 A person abets and offence, who abets either the commission of an offence or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.  22 Explanation 1 – The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2 – To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3 – It is not necessary that the person abetted should be capable by law of committing an offence or that he should have the same guilty intention of knowledge as that of the abettor or any guilty intention or knowledge.  23 Explanation 4 – The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Explanation 5 – It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. 24 Sec. 47 – Abetment in India of offences outside India A person abets an offence within the meaning of this Sanhita who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India. 25 Sec. 48 – Abetment outside India for offences in India A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India.  Sec. 49 – Punishment of abetment if act abetted is committed in consequences and where no express 26 provision is made for its punishment Whoever abets any offence shall, if the act abetted is committed in consequences of the abetment, and no express provision is made by this Sanhita for the punishment of such abetment, be punished with the punishment provided for the offence.  Sec. 50 – Punishment of abetment if 27 person abetted does act with difference intention from that of abettor. Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other  28 Sec. 51 – Liability of abettor when one act abetted and different act done. When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Provided that the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment 29 Sec. 52 – Abettor when liable to cumulative punishment for act abetted ad for act done. If the act for which the abettor is liable under section 51 is committed in addition to the act abetted, and constitute a distinct offence, the abettor is liable to punishment for each of the offences  30 Section 53 - Liability of abettor for an effect caused by act abetted different from that intended by abettor. When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. 31 Sec. 54 - Abettor present when offence is committed Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence  32 Sec. 55 - Abetment of offence punishable with death or imprisonment for life Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine  33 Sec. 56 - Abetment of offence punishable with imprisonment. Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one- fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both; and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both 34 Sec. 57 - Abetting commission of offence by public or by more than ten persons Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to seven years and with fine.  Sec. 58 - Concealing design to commit offence 35 punishable with death or imprisonment for life. Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any act or omission, or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design shall,– – (a) if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years; or (b) if the offence be not committed, with imprisonment of either description, for a term which may extend to three years, and shall also be liable to fine  36 Sec. 59 - Public servant concealing design to commit offence which it is his duty to prevent. Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or omission or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall,–– (a) if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both; or (b) if the offence be punishable with death or imprisonment for life, with imprisonment of either description for a term which may extend to ten years; or (c) if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both.  37 Sec. 60 Concealing design to commit offence punishable with imprisonment. Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall,–– (a) if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth; and (b) if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.  38 Sec. 61 - Criminal conspiracy. (1) When two or more persons agree with the common object to do, or cause to be done–– (a) an illegal act; or (b) 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.  39 Criminal conspiracy. (2) Whoever is a party to a criminal conspiracy,–– (a) 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 Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; (b) 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  Sec. 62 Punishment for attempting to commit 40 offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one- half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.